Tenth Circuit: ‘Relevant Background Law’ Trumps Unclear Record in Granting § 2255 Relief From Johnson Error
by Michael Berk
The U.S. Court of Appeals for the Tenth Circuit reversed the denial of a successive motion under 28 U.S.C. § 2255, remanding the case for resentencing where the “relevant background legal environment” demonstrated that his sentence was based on the Armed Career Criminal Act’s (“ACCA”) unconstitutional residual clause.
On September 9, 2008, Aaron Eugene Copeland pleaded guilty to possession of a firearm as a felon. Although 18 U.S.C. § 922(g) carries a statutory maximum of 10 years, the sentencing court found that three prior convictions — two “serious drug offenses” and a 1981 seconddegree burglary in California — qualified Copeland for the 15-year mandatory minimum sentence under the ACCA, 18 U.S.C. § 924(e). On December 5, 2008, Copeland was sentenced to 15 years’ imprisonment.
Originally, the ACCA sentence enhancement was triggered when sufficient prior convictions were classifiable as “serious drug offenses” or “violent felonies” under any of three provision, known as the elements clause, the enumerated offense clause, and a catch-all residual clause. The U.S. Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), struck down the residual clause as unconstitutionally vague.
As Copeland had filed several unsuccessful collateral attacks prior to the decision in Johnson, he brought this successive motion with the permission of the Tenth Circuit under § 2255(h)(2), asking the district court to vacate his unconstitutional sentence. The court rejected Copeland’s motion on October 25, 2017, stating that there was “no possibility that [Copeland’s] burglary conviction was treated as a violent felony under the residual clause” and thus, because “Johnson has no application in this case,” it could not even entertain the motion under § 2255(h)(2). Copeland appealed, and the Tenth Circuit granted a certificate of appealability.
To prevail on his Johnson challenge, Copeland needed to show, by a preponderance of the evidence, that the sentencing court relied on the residual clause to enhance his sentence. United States v. Driscoll, 892 F.3d 1127 (10th Cir. 2018). In the Tenth Circuit, this question is evaluated by first considering statements in the record. Id. To the extent that the record is inconclusive, a court next considers whether the “relevant background legal environment at the time of sentencing” forecloses the likelihood that the sentencing court would have relied on either of the other “violent felony” clauses in the ACCA. Id.
Because the district court’s disposition was effectively a dismissal as a matter of law, the Tenth Circuit was able to engage in detailed de novo review. The record in Copeland’s case, although lacking a “clear pronouncement” of the sentencing court’s rationale, was suggestive of reliance on the enumerated clause. At the change-of-plea hearing, for example, the court mentioned potential comparison of Copeland’s prior to the statutory definition, and the PSR described Copeland’s prior conviction in terms of the elements of generic burglary, an offense listed in the ACCA’s enumerated clause.
But contrary to the statement of the district court (which did not purport to rely on its memory of the proceedings) that the record showed “no possibility” that the residual clause was used, the Tenth Circuit found the record inconclusive. As the lower court had thus erred in determining otherwise, the Court looked past the judge’s conclusion and turned to the relevant background law.
A “snapshot” of the case law in 2008 showed, in fact, that the sentencing court could only have relied on the residual clause in qualifying Copeland’s 1981 conviction under the ACCA, the Court determined. In United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), the court held that a court could rely on a PSR’s description of an offense as a “violent felony” only when the PSR’s determination was backed by charging documents as allowed under Shepard v. United States, 544 U.S. 13 (2005). In Copeland’s case, the PSR lacked such support, and so its description could not legitimately have served as the basis for a finding that his prior offense qualified under the enumerated clause.
The Court noted that, had it not looked to the background law, Copeland would not have carried his burden because the record appeared to suggest that the sentencing court thought the enumerated clause was appropriate. But since the law in 2008 only permitted a residual clause classification of Copeland’s California prior, the sentencing court had committed a Johnson error.
The Court determined that the error was not harmless because, even under current law, Copeland’s 1981 prior could not qualify under any clause of the ACCA. Copeland thus showed that Johnson indeed had some “application in this case” and therefore not only that his successive motion met the criteria in § 2255(h)(2) but that he should prevail on the merits. Accordingly, the Court reversed and remanded with instructions to grant the motion and resentence Copeland consistent with its opinion. See: United States v. Copeland, 921 F.3d 1233 (10th Cir. 2019).
Related legal case
United States v. Copeland
|Cite||921 F.3d 1233 (10th Cir. 2019)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|