Gabriel Lazaro Garcia-Hernandez, Petitioner - Appellant v. United States of America, Respondent - Appellee
No. 17-3027
United States Court of Appeals For the Eighth Circuit
Submitted: October 18, 2018; Filed: February 11, 2019
Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Gabriel Lazaro Garcia-Hernandez was sentenced as an armed career criminal. He moved to vacate his sentence under
The Supreme Court in Johnson invalidated the ACCA‘s residual clause, later holding Johnson‘s new rule retroactive on collateral review. Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016). In May 2016, less than a year after Johnson, Garcia-Hernandez filed his first 2255 motion to vacate his sentence, claiming he no longer qualified as an armed career criminal due to Johnson. The district court, following United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017), did not require Garcia-Hernandez to show he was sentenced under the residual clause. The court denied relief, finding four of his prior convictions qualify as violent felonies under the force clause, with one also qualifying as a serious drug offense. The district court granted a certificate of appealability about whether he qualifies as an armed career criminal in light of Johnson.
While this appeal was pending, this court decided Walker v. United States, 900 F.3d 1012 (8th Cir. 2018). A 2255 movant bringing a Johnson claim must “show by a preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA enhancement.” Walker, 900 F.3d at 1015 (agreeing with the First, Tenth, and Eleventh circuits). A “more likely than not” burden reflects the “importance of the finality of convictions, one of Congress‘s motivations in passing the Antiterrorism and Effective Death Penalty Act.” Id. at 1014. This court rejected the Fourth and Ninth circuits’ approaches that require showing only that a sentencing
Walker‘s principles govern here, at the merits stage of an initial 2255 motion. Garcia-Hernandez must “show by a preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA enhancement.” Walker, 900 F.3d at 1015. If he was sentenced based on the residual clause, then “his sentence was both in excess of the statutory maximum and imposed in violation of the Constitution.” Cravens v. United States, 894 F.3d 891, 893 (8th Cir. 2018). A Johnson error entitles Garcia-Hernandez to relief under 2255 “unless the error was harmless.” Id., applying Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), to Johnson error in 2255 proceeding.
To determine whether there was a Johnson error, a court first makes factual findings about the sentencing record. Walker, 900 F.3d at 1015. If the record is inconclusive, the court then evaluates the legal environment at the time of sentencing.1 Id. A district court‘s “factual findings about the sentencing record” are reviewed for clear error, and “its assessment of the background legal environment [depends] upon legal conclusions . . . reviewed de novo.” Dembry v. United States, 2019 WL 436580, at *2 (8th Cir. Feb. 5, 2019) (emphasis in original). Without the benefit of Walker, the district court here did not find whether the record was inconclusive (and a finding on that issue would not be clearly erroneous). A remand would normally be required.
Nonetheless, on collateral review, an error is harmless unless it results in “actual prejudice,” that is, a “substantial and injurious effect or influence in determining” a movant‘s sentence. Brecht, 507 U.S. at 637, citing United States v. Lane, 474 U.S. 438, 439 (1986)). Cf. Davis v. Ayala, 135 S. Ct. 2187, 2193 (2015) (on collateral review, finding error was harmless after “[a]ssuming without deciding that a federal constitutional error occurred“). The harmless-error inquiry is not limited to the legal environment at the time of sentencing. See Dembry, 2019 WL 436580, at *2-3; United States v. Lewis, 904 F.3d 867, 873 (10th Cir. 2018) (“[C]urrent, post-sentence cases are only applicable at the harmless error stage of review, once the movant has established the existence of a Johnson error.“).
Garcia-Hernandez has at least three qualifying convictions under current law. Resentencing would not change his ACCA enhancement, so any Johnson error was harmless. See Dembry, 2019 WL 436580, at *2-3; Fletcher v. United States, 858 F.3d 501, 506-08 (8th Cir. 2017). See generally Welch, 136 S. Ct. at 1268 (noting that the Court of Appeals on remand might “determine . . . that the District Court was correct to deny [petitioner‘s] motion to amend his sentence” on the ground that his “robbery conviction qualifies as a violent felony under the [force] clause,” which makes him eligible for the same ACCA enhancement “regardless of Johnson“).
Garcia-Hernandez agrees that his prior controlled substance conviction is a serious drug offense. His Florida and New Jersey armed robbery convictions are violent felonies under the force clause. He argues that both states’ robbery statutes require only force necessary to overcome a victim‘s resistance, and that this is not “violent force” under Johnson v. United States, 559 U.S. 133 (2010). His argument is foreclosed by Stokeling v. United States, 139 S. Ct. 544 (2019), addressing a lesser offense of the Florida statute at issue here. “[T]he force necessary to overcome a victim‘s physical resistance is inherently ‘violent’ in the sense contemplated by Johnson, and ‘suggest[s] a degree of power that would not be satisfied by the merest touching.‘” Stokeling, 139 S. Ct. at 553 (second alteration in original), quoting Johnson, 559 U.S. at 139. Both parties agree that he was convicted of armed robbery in 2003 under
Garcia-Hernandez has at least three qualifying convictions under current law, so any Johnson error did not result in actual prejudice. He is not entitled to 2255 relief.
The judgment is affirmed.
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