UNITED STATES of America, Plaintiff-Appellee, v. David P. GEOZOS, Defendant-Appellant.
No. 17-35018
United States Court of Appeals, Ninth Circuit.
Filed August 29, 2017
Argued and Submitted August 15, 2017 Anchorage, Alaska
870 F.3d 890
Daniel F. Poulson, FPDAK-Federal Public Defenders, Anchorage, AK, for Defendant-Appellant.
Before: SUSAN P. GRABER, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.
OPINION
GRABER, Circuit Judge:
Defendant David P. Geozos appeals the district court‘s denial of his
In Johnson v. United States (Johnson II), 576 U.S. 591, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), the Supreme Court held that “imposing an increased sentence under the residual clause of [ACCA] violates the Constitution‘s guarantee of due process.” The Court made that rule of constitutional law retroactively applicable to cases on collateral review in Welch v. United States, 578 U.S. 120, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). Before Johnson II and Welch were decided, Defendant unsuccessfully moved to vacate, set aside, or correct his sentence under
In October 2006, Defendant was indicted on one count of possession of a firearm by a convicted felon in violation of
The Presentence Investigation Report (“PSR“), prepared in advance of Defendant‘s sentencing hearing, stated that Defendant was “subject to an enhanced sentence” for the firearms charge under ACCA because of his criminal history. ACCA provides that “a person who violates [§] 922(g) ... and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, ... shall be fined under this title and imprisoned not less than fifteen years.”
The sentencing court found that Defendant qualified as an armed career criminal, but it did not specify which of the prior convictions served as the three predicate convictions. It is clear from the record that the court did not rely on the conviction for possession of cocaine,3 and it appears that the court found that all five of the other convictions qualified as convictions for “violent felonies.” But the court did not say whether it found any or all of those convictions to qualify as a conviction for a violent felony under the residual clause of ACCA. On direct appeal, we affirmed Defendant‘s sentence, holding that the three Florida robbery convictions and the Alaska assault conviction qualified as convictions for violent felonies under ACCA and declining to decide whether the Florida burglary conviction qualified. United States v. Geozos, 286 Fed.Appx. 517, 518 n.1 (9th Cir. 2008) (unpublished).
In late 2009, Defendant filed a motion to vacate his sentence under
In the meantime, the Supreme Court decided Johnson v. United States (Johnson I), 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), a case involving the interpretation of the “force clause” of ACCA. In Johnson I, the Supreme Court held that “the phrase ‘physical force‘” in the force clause “means violent force-that is, force
Five years later, the Supreme Court invalidated the residual clause of ACCA in Johnson II, 135 S.Ct. at 2563. Less than one year after that, in Welch, 136 S.Ct. at 1268, the Court held that the rule of Johnson II applies retroactively to cases on collateral review.
Following the Court‘s decision in Johnson II, Defendant sought leave of this court to file a second
STANDARD OF REVIEW
We review de novo a district court‘s decision to deny a
DISCUSSION
This case presents a question that has cropped up somewhat frequently4 in the wake of Johnson II and Welch: When a defendant was sentenced as an armed career criminal, but the sentencing court did not specify under which clause(s) it found the predicate “violent felony” convictions to qualify, how can the defendant show that a new claim “relies on” Johnson II, a decision that invalidated only the residual clause? We address that question first. Because we hold that Defendant‘s claim “relies on” Johnson II, we then address the merits of the claim and consider whether the Johnson II error at Defendant‘s sentencing was harmless.
A. What It Means for a Claim to “Rely On” Johnson II
The threshold question is whether Defendant‘s claim relies on the rule announced in Johnson II such that he may bring that claim in a second or successive
To answer that question, we begin by noting that a court‘s determination that a defendant qualifies for an ACCA enhancement is a finding. Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). As with any finding that is necessary for a conviction-or a sentencing enhancement-it is made (or not made) based on the evidence introduced to the relevant factfinder, and it is generally improper to supplement that evidence on appeal. See Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011) (“[I]t is not within our province to sentence the defendant based on considerations outside the sentencing decision. Appellate courts are not sentencing courts.“); see also United States v. Petite, 703 F.3d 1290, 1292 n.2 (11th Cir. 2013) (“The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence.“), abrogated on other grounds by Johnson II. And, as with any other finding, a finding that a defendant qualifies for an ACCA enhancement may be deemed to rest on a valid or an invalid legal theory.
Had the sentencing court stated that the past convictions at issue were convictions for “violent felonies” only under the residual clause, it would have been, in effect, specifying the legal theory on which its ACCA determination rested. We would know that Defendant‘s sentence was imposed under an invalid-indeed, unconstitutional-legal theory, and that Defendant was, therefore, sentenced in violation of the Constitution. As the Government concedes, a defendant who shows that a sentencing court relied solely on the residual clause in imposing an ACCA enhancement has a claim that “relies on” Johnson II.
Conversely, had the sentencing court specified that a past conviction qualified as a “violent felony” only under the force clause, we would know that the sentence rested on a constitutionally valid legal theory. In that situation, the statute would preclude the filing of a second or successive petition.
But when it is unclear from the record whether the sentencing court relied on the residual clause, it necessarily is unclear whether the court relied on a constitutionally valid or a constitutionally invalid legal theory. Defendant argues that this situation is analogous to that of a defendant who has been convicted, in a general verdict, by a jury that was instructed on two theories of liability, one of which turns out to have been unconstitu
We are persuaded that a rule analogous to the Stromberg principle should apply in the sentencing context. It is true that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt in order for a defendant to be exposed to an enhanced sentence because of that conviction. Apprendi v. New Jersey, 530 U.S. 466, 488-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But it does not follow that, when a judge makes a finding that a defendant qualifies for an enhanced sentence, and that finding may rest on an unconstitutional ground, the finding should be treated any differently than a finding made by a jury for the purpose of conviction. Indeed, treating those findings differently because one involves sentencing and the other involves conviction would be contrary to the principle that any “fact increasing either end of [a sentencing] range produces a new penalty and constitutes an ingredient of the offense.” Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2160, 186 L.Ed.2d 314 (2013). We therefore hold that, when it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant‘s
We recognize that there are differences between a jury‘s finding and the type of finding that a court makes when it rules that a defendant qualifies as an armed career criminal. The latter finding rests largely on legal conclusions-state offense X is categorically a “violent felony,” state offense Y is not, etc. For that reason, it may be possible to determine that a sentencing court did not rely on the residual clause-even when the sentencing record alone is unclear-by looking to the relevant background legal environment at the time of sentencing. If, for instance, binding circuit precedent at the time of sentencing was that crime Z qualified as a violent felony under the force clause, then a court‘s failure to invoke the force clause expressly at sentencing, when there were three predicate convictions for crime Z, would not render unclear the ground on which the court‘s ACCA determination rested. “Even under the traditional Stromberg analysis, a verdict need not be set aside where it is possible to conclusively determine the jury relied on a valid ground....” United States v. Holly, 488 F.3d 1298, 1306 n.5 (10th Cir. 2007). By analogy, a claim does not “rely on” Johnson II if it is possible to conclude, using both the record before the sentencing court and the relevant background legal environment at the time of sentencing, that the sentencing court‘s ACCA determination did not rest on the residual clause.
B. Merits
The next question is whether the Johnson II error is harmless-in other words, are there three convictions that support an ACCA enhancement under one of the clauses of ACCA that survived Johnson II? If so, then the Johnson II error did not prejudice Defendant, and he is not entitled to relief. United States v. Montalvo, 331 F.3d 1052, 1057-58 (9th Cir. 2003) (per curiam). We need only consider the Florida robbery convictions because, as noted, if those convictions do not count as predicate convictions under ACCA, then the sentencing court‘s Johnson II error was not harmless.
1. Use of Current Law in Assessing Harmlessness
To decide whether Defendant‘s Florida robbery convictions qualify him as an armed career criminal, we look to the substantive law concerning the force clause as it currently stands, not the law as it was at the time of sentencing. Critically, this means that we must consider the Supreme Court‘s interpretation of the force clause in Johnson I. We do so for two reasons.
First, in general, judicial interpretations of substantive statutes receive retroactive effect. See, e.g., Harper v. Va. Dep‘t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (“When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.“); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.“). Although the Supreme Court has sometimes been careful to limit that principle to cases on direct review, it has also applied the principle in collateral challenges. See, e.g., Bousley v. United States, 523 U.S. 614, 618-21, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)
Second, if this were Defendant‘s first
That reason applies with equal force to a second or successive petition or motion. The habeas petitioner filing a second or successive petition or motion who claims to have been convicted of a crime that was not a crime is at no less risk of being erroneously imprisoned than a habeas petitioner filing a first petition or motion. Accordingly, once the bar to considering a second or successive petition or motion has been overcome, the analysis of the merits is the same as if the petitioner were bringing a first petition or motion. Indeed, the Tenth Circuit has noted that, “if a court hears a second-or-successive § 2254 petition on its merits, the standards are no different than hearing a first § 2254 petition on its merits.” Case v. Hatch, 731 F.3d 1015, 1038 n.12 (10th Cir. 2013).
2. Categorical Approach
We must determine whether robbery, armed robbery, and use of a firearm in the commission of a felony in violation of Florida law qualify as “violent felonies” under the force clause of ACCA. To do so, we employ the categorical approach.7 E.g., United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016). We ask whether each statute “has as an element the use, attempted use, or threatened use of physical force against the person of another,”
“[I]n the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force-that is, force capable of causing physical pain or injury to another person.” Johnson I, 559 U.S. at 140, 130 S.Ct. 1265. “Even by itself, the word ‘violent’ in
In January 1981, Defendant was convicted of armed robbery in violation of section 812.13(2)(a) of the Florida Statutes. In June of that same year, he was convicted of robbery in violation of section 812.13 of the Florida Statutes and of using a firearm in the commission of a felony in violation of section 790.07(2). And, in September 1981, Defendant was again convicted of armed robbery in violation of section 812.13(2)(a).
At the time of his convictions, section 812.13 defined robbery as “the taking of money or other property which may be the subject of larceny from the person or custody of another, by force, violence, assault, or putting in fear.” Brown v. State, 397 So.2d 1153, 1154 (Fla. Dist. Ct. App. 1981) (emphasis omitted) (quoting
The crucial question, therefore, is whether robbery as defined in section 812.13(1) “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The text of the statute itself, together with the relevant Florida caselaw, shows that the answer is “no.”
Section 812.13(1) uses the terms “force” and “violence” separately, which suggests that not all “force” that is covered by the statute is “violent force.” But only violent force-that is, “strong physical force,” Johnson I, 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added)-qualifies under the force clause of ACCA. Before even turning to the caselaw, then, there is reason to doubt whether a conviction for violating section 812.13 qualifies as a conviction for a “violent felony.”
The Florida caselaw makes it clear that one can violate section 812.13 without using violent force. “[I]n order for the snatching of property from another to amount to robbery, the perpetrator must employ more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.” Robinson v. State, 692 So.2d 883, 886 (Fla. 1997). Crucially, the amount of resistance can be minimal. See Mims v. State, 342 So.2d 116, 117 (Fla. Dist. Ct. App. 1977) (per curiam) (“Although purse snatching is not robbery if no more force or violence is used than necessary to physically remove the property from a person who does not resist, if the victim does resist in any degree and this resistance is overcome by the physical force of the perpetrator, the crime of robbery is complete.” (emphasis added)).9 Under Florida law, then, a person who engages in a non-violent tug-of-war with a victim over the victim‘s purse has committed robbery. See Benitez-Saldana v. State, 67 So.3d 320, 323 (Fla. Dist. Ct. App. 2011) (“[A] conviction for robbery may be based on a defendant‘s act of engaging in a tug-of-war over the victim‘s purse.“). According to our precedent, such an act does not involve the use of violent force within the meaning of ACCA. See Strickland, 860 F.3d at 1227 (citing an Oregon case in which “the victim and the thief had a tug-of-war over [a] purse” as an example of a case involving something less than violent force within the meaning of Johnson I).
The Florida robbery statute is not as broad as the robbery statute that we considered in Parnell, which proscribed the taking of property from a victim when the
We hold that neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a “violent felony.” We recognize that this holding puts us at odds with the Eleventh Circuit, which has held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are “violent felonies” under the force clause. See United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011) (robbery); see also United States v. Fritts, 841 F.3d 937, 942 (11th Cir. 2016) (“[W]e hold here that under Lockley ... a Florida armed robbery conviction under § 812.13(a) [sic] categorically qualifies as a violent felony under the ACCA‘s elements clause.“), cert. denied, 137 S.Ct. 2264, 198 L.Ed.2d 704 (2017). But we are bound by our own precedent-including Parnell and Strickland-which may differ from the Eleventh Circuit‘s interpretation. Moreover, we think that the Eleventh Circuit, in focusing on the fact that Florida robbery requires a use of force sufficient to overcome the resistance of the victim, has overlooked the fact that, if the resistance itself is minimal, then the force used to overcome that resistance is not necessarily violent force. See Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922) (“The degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim‘s resistance.“).
In summary, none of the Florida robbery convictions qualifies as a “violent felony” under the force clause, so the Johnson II error at Defendant‘s sentencing was not harmless. Accordingly, Defendant is entitled to relief.
We reverse the district court‘s order denying Defendant‘s
REVERSED.