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Tenth Circuit Grants Habeas Relief When ACCA Predicate Offense No Longer Qualifies as ‘Violent Felony’

by Christopher Zoukis

The U.S. Court of Appeals for the Tenth Circuit granted a federal prisoner’s 28 U.S.C. § 2255 petition because one of the predicate offenses used to enhance his sentence under the Armed Career Criminal Act (“ACCA”) could no longer qualify as a “violent felony” post-Johnson v. United States, 135 S. Ct. 2551 (2015). The June 14, 2018, ruling overturned a district court’s contrary finding and remanded for resentencing.

In 2004, Chance Wade Driscoll pleaded guilty to being a felon in possession of a firearm. Because his Presentence Investigation Report noted that he had one previous drug conviction and two previous burglary convictions, the sentencing court applied the ACCA and sentenced Driscoll to the 15-year mandatory minimum.

On June 26, 2015, the U.S. Supreme Court decided Johnson. In Johnson, the Supreme Court held that the “residual clause” of the ACCA is unconstitutionally vague. Driscoll filed his § 2255 motion within one year of the Johnson decision. He argued that Johnson rendered his ACCA sentence void.

The district court denied Driscoll relief. That court found that it was not clear that the sentencing court utilized the residual clause to enhance Driscoll’s sentence. As such, the lower court ruled that his § 2255 was time-barred.

The Tenth Circuit reversed. The Court found that the sentencing court must have relied on the residual clause in enhancing Driscoll’s sentence. Moreover, because one of the three predicate convictions could not have qualified under any of the “violent felony” clauses found in the ACCA, the error was not harmless.

The Court began with analysis of whether the sentencing court relied on the residual clause in determining that Driscoll’s prior Nebraska burglary conviction qualified as a violent felony for purposes of the ACCA. The sentencing court did not expressly articulate that it relied on the residual clause, but the Tenth Circuit reasoned that it did.

In order to reach this conclusion, the Court considered the “relevant background legal environment” in 2005, when Driscoll was convicted. The U.S. Supreme Court had decided in Taylor v. United States, 495 U.S. 575 (1990) that a sentencing court could examine the underlying charging documents or jury instructions to determine whether a burglary would qualify under the enumerated clause of the ACCA. Assuming that the sentencing court did so, it could not have relied on the enumerated clause—Driscoll’s Nebraska burglary charge exceeded the generic definition of burglary and therefore was not a burglary, for purposes of the ACCA enumerated clause.

“The sentencing court in this case could not have relied on the enumerated offenses clauses because that would have violated Taylor,” wrote the Court. “To impose the ACCA enhancement, its only option was the residual clause.”

Despite the sentencing court having relied on the unconstitutional residual clause, the Court said that it would still uphold Driscoll’s sentence if the Nebraska burglary would fall under the enumerated clause. But even without resorting to a Taylor-style look through, the Court found that the Nebraska burglary statute that Driscoll was convicted of could not fall under the enumerated clause.

This is because the Nebraska burglary statute includes land and as such “does not categorically fit under the generic offense of burglary, which is limited to buildings and structures.” Without this predicate conviction, Driscoll did not qualify as an armed career criminal under the ACCA. The sentencing court’s error was not harmless error, so resentencing was required.

Accordingly, the Tenth Circuit reversed and remanded with instructions to vacate his sentence and to resentence him. See: United States v. Driscoll, 892 F.3d 1127 (10th Cir. 2018).  

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