United States v. Ronald Peppers

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-1029

_____________

UNITED STATES OF AMERICA

v.

RONALD PEPPERS

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. No. 1-00-cr-00105-001)

District Judge: Hon. Sylvia H. Rambo

_______________

Argued

October 12, 2017

Before: CHAGARES, JORDAN, and FUENTES, Circuit

Judges.

(Filed: August 13, 2018)

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Heidi Freese

Frederick W. Ulrich [ARGUED]

Tammy L. Taylor

Office of Federal Public Defender

100 Chestnut Street - #306

Harrisburg, PA 17101

Counsel for Appellant

David J. Freed

Carlo D. Marchioli [ARGUED]

Kate L. Mershimer

Office of United States Attorney

228 Walnut Street - #220

P.O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Ronnie Peppers was sentenced in 2003 to fifteen years

of imprisonment for being a felon in possession of a firearm.

That was the mandatory minimum under the Armed Career

Criminal Act (“the ACCA” or “the Act”), and the District

Court imposed it because of Peppers’s previous convictions.

Peppers now challenges that sentence as unconstitutional in

light of the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551 (2015), which invalidated a clause of

the ACCA – the “residual clause” – as unconstitutionally

vague. He argued in District Court in a motion under 28

2

U.S.C. § 2255 that he was impermissibly sentenced under that

invalid clause. But that § 2255 motion was not his first, and

§ 2255 itself, through subsection (h), places limits on any

effort to file a second or successive collateral attack on a

criminal judgment. The District Court denied Peppers’s

second § 2255 motion after determining that his prior

convictions remained predicate offenses for ACCA purposes

because they are covered by portions of the Act that survived

Johnson. Because we disagree with the District Court’s

conclusions, we will vacate its decision and remand the case

for further proceedings.

Five holdings lead to our remand. First, the

jurisdictional gatekeeping inquiry for second or successive

§ 2255 motions based on Johnson requires only that a

defendant prove he might have been sentenced under the

now-unconstitutional residual clause of the ACCA, not that

he was in fact sentenced under that clause. Second, a guilty

plea pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C) does not preclude a defendant from collaterally

attacking his sentence in a § 2255 motion, if his sentence

would be unlawful once he proved that the ACCA no longer

applies to him in light of Johnson. Third, a defendant seeking

a sentence correction in a second or successive § 2255 motion

based on Johnson, and who has used Johnson to satisfy the

gatekeeping requirements of § 2255(h), may rely on post-

sentencing cases (i.e., the current state of the law) to support

his Johnson claim. Fourth, Peppers’s robbery convictions,

both under Pennsylvania’s robbery statute, are not

categorically violent felonies under the ACCA, and,

consequently, it was error to treat them as such. Fifth and

finally, Peppers failed to meet his burden of proving his

Johnson claim with respect to his Pennsylvania burglary

3

conviction. We will therefore vacate the District Court’s

order and remand for an analysis of whether the error that

affected Peppers’s sentence, i.e., the error of treating the

robbery convictions as predicate offenses under the ACCA,

was harmless in light of his other prior convictions.

I. FACTS AND PROCEDURAL HISTORY

A. The Initial Trial and Subsequent Guilty Plea

This case has a long history. In 2000, Peppers was

indicted for numerous federal firearms and drug offenses.

Among those charges was murder with a firearm, in violation

of 18 U.S.C. § 924(j). Peppers pled not guilty to all of the

charges, but a jury saw things differently. It convicted him on

every count, including the murder charge. He was sentenced

to life imprisonment plus five years.

Peppers filed a direct appeal, challenging, among other

things, the District Court’s denial of his request to proceed

pro se. United States v. Peppers, 302 F.3d 120, 123 (3d Cir.

2002). We concluded that the District Court erred in handling

Peppers’s request to represent himself, and thus we vacated

the judgment and commitment order and remanded the case

for a new trial.

On remand, Peppers was adamant that he did not want

to go through another trial. Instead, he chose to plead guilty

under Federal Rule of Criminal Procedure 11(c)(1)(C) (the

“(C) plea”). As part of his plea agreement with the

government, he waived indictment and pled to a one-count

information charging him as an armed career criminal in

possession of a .22 caliber revolver, in violation of 18 U.S.C.

4

§§ 922(g)(1) and 924(e)(1). The charging document stated

that Peppers had previously been convicted of a variety of

state and federal felonies in six separate proceedings: first, in

1979, when he was a juvenile, for both armed robbery and

robbery; second, in 1984 for burglary; third, in 1984 for

possession of instruments of a crime; fourth, in 1985 for

escape; fifth, in 1985 for armed robbery and criminal

conspiracy; and sixth, in 1993 for criminal conspiracy to

commit unauthorized use of an access device. Because of his

admitted status as an armed career criminal, the mandatory

minimum penalty for the crime to which Peppers pled guilty

was fifteen years’ imprisonment. The (C) plea was

conditioned upon the District Court sentencing him to that

minimum penalty.

The plea agreement also stated that the parties

understood the United States Sentencing Guidelines applied

to the offense to which Peppers was pleading guilty.

Although the agreement made plain that Peppers was being

convicted and sentenced as an armed career criminal under

the ACCA, it failed to disclose which of the six convictions

stated in the information qualified as the three predicate

“violent felonies” that made him eligible for enhanced

penalties under the ACCA. That Act provides, in relevant

part, that “a person who violates section 922(g) … and has

three previous convictions … for a violent felony …

committed on occasions different from one another, … shall

be fined … and imprisoned not less than fifteen years[.]” 18

U.S.C. § 924(e)(1). The statute defines “violent felony” as

“any crime punishable by imprisonment for a term exceeding

one year … that [A] has as an element the use, attempted use,

or threatened use of physical force against the person of

another; or [B] is burglary, arson, or extortion, involves use of

5

explosives, or [C] otherwise involves conduct that presents a

serious potential risk of physical injury to another[.]” Id.

§ 924(e)(2)(B). The parts labeled here as [A], [B], and [C]

are commonly referred to, respectively, as the force or

elements clause, the enumerated offenses clause, and the

residual clause.

At the plea colloquy, the District Court and the parties

discussed only in broad terms whether the prior convictions

fell within the ACCA, as the following exchange shows:

[Peppers’s Counsel]: We also agree to

the applicability of the sentence enhancement

under the Armed Career Criminal Act, in that

the government has shown the existence of

three prior convictions which meet the

definitions under the Armed Career Criminal

Act. So we have agreed to that, and I have

explained that to Mr. Peppers. Is that correct?

… [Peppers and his attorney confer off

the record.] …

The Court: At least, number one, the

armed robbery and robbery and probably the

burglary and the other armed robbery and

criminal conspiracy would probably meet the

Armed Career Criminal.

[Peppers’s Counsel]: The armed robbery

and robbery would definitely meet the

requirements of the Armed Career Criminal

Act. The burglary as stated at number two

6

would meet the requirements of the Armed

Career Criminal Act. Possession of instruments

of a crime may or may not. Escape may or may

not. But armed robbery definitely would.

The Court: We have got at least three

there.

[Peppers’s Counsel]: Correct.

(App. at 55-56.) There was no discussion concerning which

of the specific ACCA clauses were thought to make three of

Peppers’s prior convictions “violent felonies.” On August 13,

2003, the District Court accepted the (C) plea and sentenced

Peppers to fifteen years in prison.

As allowed by his plea agreement,1 Peppers filed a

direct appeal challenging the constitutionality of the felon-in-

possession statute he was convicted of violating, and we

affirmed his conviction. United States v. Peppers, 95 F.

App’x 406 (3d Cir. 2004). The Supreme Court later denied

his petition for a writ of certiorari. Peppers v. United States,

543 U.S. 894 (2004).

B. Peppers’s First § 2255 Motion

On November 3, 2005, Peppers filed his first motion

under § 2255, collaterally attacking both his conviction and

sentence. He advanced nine claims, all of which were

rejected by the District Court, and Peppers appealed. We

1

There was no waiver of appellate or collateral attack

rights, as is often found in plea agreements.

7

granted a certificate of appealability solely as to whether

Peppers’s plea counsel was ineffective for allegedly

misinforming him about the ACCA’s application and for

failing to challenge its applicability on appeal. We ultimately

determined that Peppers did not receive ineffective assistance

of counsel for either reason. It was not ineffective to concede

that Peppers was eligible for enhanced punishment under the

ACCA and to negotiate for him to receive a sentence of

fifteen years in prison, rather than having him face the

potential of a life sentence, which he would have risked if all

the original charges had been reinstated. Thus, we affirmed

the denial of Peppers’s § 2255 motion. United States v.

Peppers, 273 F. App’x 155, 156 (3d Cir. 2008).

C. Peppers’s Second § 2255 Motion

In Johnson v. United States, 135 S. Ct. 2551 (2015),

the Supreme Court invalidated the residual clause of the

ACCA as being unconstitutionally vague. Then, in Welch v.

United States, 136 S. Ct. 1257 (2016), the Court made that

ruling retroactive, so that it applies to cases on collateral

review. Peppers filed a timely second § 2255 motion seeking

resentencing based on Johnson. He also submitted the

required application for permission to file a second such

motion, under 28 U.S.C. §§ 2255(h) and 2244(b)(3). We

allowed him to proceed with his second § 2255 motion,

concluding that he had satisfied the gatekeeping requirements

of § 2255(h) – which are jurisdictional – by making “a prima

facie showing that his proposed § 2255 motion contains a

new rule of constitutional law made retroactive to cases on

collateral review by the Supreme Court that was previously

unavailable.” (App. at 136.)

8

Peppers claimed that his armed robbery convictions

under Pennsylvania law no longer qualify as violent felonies

after Johnson invalidated the ACCA’s residual clause. He

also claimed that his burglary conviction under Pennsylvania

law no longer qualifies as a violent felony under the ACCA.

Both of those claims required the District Court to resentence

him, he said, because the fifteen-year minimum imprisonment

sentence dictated by the ACCA no longer applied to him and

the maximum sentence for the felon-in-possession offense he

pled to is only ten years’ imprisonment.

The government moved to dismiss the second § 2255

motion for three reasons. First, it argued that the District

Court lacked jurisdiction to consider a second § 2255 motion

from Peppers “because he has not shown that the new rule of

constitutional law announced in Johnson applies in his case.”

(App. at 173, 175-76.) Essentially, the government

contended that, because the District Court never said at

sentencing that Peppers’s prior convictions fell under the

ACCA’s residual clause and Peppers submitted no evidence

showing that those convictions did not fall under another

ACCA clause, he failed to meet the jurisdictional gatekeeping

requirements of § 2255(h). Second, the government

contended that, looking to the case law that existed when

Peppers was sentenced, Peppers’s Pennsylvania armed

robbery convictions qualify as violent felonies under the

ACCA’s elements clause. Finally, the government argued

that Peppers’s Pennsylvania burglary conviction was a violent

felony under the ACCA’s enumerated offenses clause,

particularly in light of “the unobjected-to-facts in the PSR[.]”

(App. at 181.)

9

The District Court directed the government to file a

supplemental brief addressing the impact of Peppers’s (C)

plea on his claim for resentencing based on Johnson. The

government did so and argued that the plea agreement

precluded Peppers from challenging his sentence because the

sentence was based on the agreement and the strictures of

Federal Rule of Criminal Procedure 11(c)(1)(C), not on the

ACCA’s invalid residual clause. Peppers countered that the

plea agreement should not affect his ability to seek relief

under § 2255 in light of Johnson because that agreement was

grounded in legal error about the residual clause.

The District Court ultimately denied the second § 2255

motion on the merits because it found that Peppers’s predicate

offenses were violent felonies under the ACCA, even in the

absence of the residual clause. It noted the threshold

jurisdictional issue raised by the government but did not

provide any independent analysis or discussion of it. Instead,

in a footnote, the Court adopted “the reasons set forth in

Peppers’[s] response” to explain why he satisfied the

jurisdictional requirements of § 2255(h). (App. at 4 n.1.) On

the merits, the Court concluded that the residual clause had no

effect on this case because Peppers had three predicate

offenses that qualified as violent felonies under the ACCA’s

other clauses. Specifically, it determined that Peppers’s two

previous armed robbery convictions in 1979 and 1985,

respectively, qualified under the elements clause, and that

Peppers’s burglary conviction qualified under the enumerated

offenses clause. The Court reached the latter conclusion

despite recognizing that the Pennsylvania burglary statute is

broader than generic burglary, reasoning that the evidence

showed his conviction met the elements of the generic

10

offense. Therefore, the District Court held that Peppers was

ineligible for relief under § 2255.

We granted Peppers a certificate of appealability on

the question of whether he was improperly sentenced in light

of Johnson.2 He timely appealed.

2

Specifically, we said the following:

Peppers’s application for a certification of

appealability is granted as to his claim that, in

light of Johnson v. United States, 135 S. Ct.

2551 (2015), he was not properly sentenced

under the Armed Career Criminal Act because

he does not have three or more previous

convictions for a “violent felony.” As to this

claim, we are satisfied that Peppers has made a

substantial showing of the denial of a

constitutional right. In addition to any other

issues that the parties wish to raise in their

briefs, they are directed to address (a) whether

Peppers may raise his Johnson challenge

notwithstanding the fact that he pleaded guilty;

(b) whether the record reveals if the District

Court relied on the residual clause at the time of

sentencing, and if it does not, whether this

affects Peppers’s ability to raise a Johnson

claim in a second or successive § 2255 motion;

and (c) whether Peppers may rely on decisions

that post-date his sentencing (such as Mathis v.

United States, 136 S. Ct. 2243 (2016),

Descamps v. United States, 133 S. Ct. 2276

(2013), and Johnson v. United States, 559 U.S.

11

II. DISCUSSION

A. Standard of Review and Jurisdiction

This appeal raises purely legal issues, which we review

de novo. United States v. Doe, 810 F.3d 132, 142 (3d Cir.

2015).

Under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.

1214 (1996), a defendant in federal custody may file a motion

collaterally attacking his sentence based on certain

specifically listed grounds, namely that the sentence was

imposed in violation of the Constitution or federal law, that

the court was without jurisdiction to impose the sentence, that

the sentence exceeded the maximum authorized by law, or

that the sentence “is otherwise subject to collateral attack[.]”

28 U.S.C. § 2255(a). And a defendant is allowed only one

such motion as of right. Id. § 2255(b), (h). A second or

successive motion must be certified by a court of appeals to

rely upon either “newly discovered evidence” showing

innocence or “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” Id. § 2255(h).

Those are the gatekeeping requirements of § 2255(h) that

133 (2010)) to show that his prior convictions

do not qualify as violent felonies or whether he

may rely on Johnson v. United States, 135 S.

Ct. 2551 (2015), and the law as it otherwise

existed at the time of his sentencing.

(App. at 9-10 (citations omitted).)

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limit collateral review. See In re Dorsainvil, 119 F.3d 245,

247-48 (3d Cir. 1997) (analyzing “the two prongs of § 2255’s

gatekeeping provision”). The required certification is made

pursuant to § 2244, which directs that a panel of “[t]he court

of appeals may authorize the filing of a second or successive

application only if it determines that the application …

satisfies the [gatekeeping] requirements[.]” Id.

§ 2244(b)(3)(C) (made applicable by 28 U.S.C. § 2255(h)).

But, even after we authorize a second or successive petition, §

2244 still requires the district court to “dismiss any claim

presented in a second or successive application … unless the

applicant shows that the claim satisfies the [gatekeeping]

requirements[.]” Id. § 2244(b)(4). Thus, both we and the

district court are responsible to conduct independent analyses

of whether the gatekeeping requirements have been satisfied

in any particular case. Only after a defendant’s second or

successive motion has made it past the gatekeeping

requirements of § 2255(h) may the district court consider the

merits of the claims. See In re Hoffner, 870 F.3d 301, 308

(3d Cir. 2017) (“[W]e do not address the merits at all in our

gatekeeping function.”).

Our jurisdiction to review the District Court’s rulings

is uncontested and is rooted in 28 U.S.C. § 2253(a), which

provides that the final order from a proceeding under § 2255

before a district judge “shall be subject to review, on appeal,

by the court of appeals for the circuit in which the proceeding

[was] held.” The District Court’s jurisdiction is contested.

The government argued below, and argues again on appeal,

that the District Court lacked jurisdiction over Peppers’s

second § 2255 motion because he did not satisfy the

gatekeeping requirements of 28 U.S.C. §§ 2244(b)(4) and

2255(h), given that no new rule of constitutional law applies

13

to him. Even in the absence of the government’s challenge,

we would be obligated to assess whether the District Court

had jurisdiction to consider the motion.3 See Bruce v.

Warden Lewisburg USP, 868 F.3d 170, 177 (3d Cir. 2017)

(quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (“An

appellate federal court must satisfy itself … of [the] …

jurisdiction … of the lower courts in a cause under review.”)).

The government’s jurisdictional argument, however,

falls short. In our view, § 2255(h) only requires a petitioner

to show that his sentence may be unconstitutional in light of a

3

The gatekeeping requirements of § 2255(h), which

appear in § 2244(b)(4) and are incorporated into § 2255(h),

are jurisdictional. See In re Pendleton, 732 F.3d 280, 283 (3d

Cir. 2013) (“[T]he District Court must dismiss [a] habeas

corpus petition for lack of jurisdiction if it finds that the

requirements for filing such petition have not in fact been

met.”); see also Hoffner, 870 F.3d at 308 (“[W]e do not

address the merits at all in our gatekeeping function.”);

Goldblum v. Klem, 510 F.3d 204, 219 n.9 (3d Cir. 2007)

(“The merits of the claims in a second petition may not be

considered by the district court until the application clears the

‘two gates’ erected under section 2244, that of the court of

appeals and that of the district court.”). The Department of

Justice has recently changed its position and no longer views

the gatekeeping inquiry as jurisdictional, see letter of Jan. 26,

2018, from government counsel (“Although the Government

continues to maintain that Peppers … failed to meet the

gatekeeping requirements and [was] properly denied relief,

the Department of Justice no longer views the gatekeeping

inquiry as jurisdictional.”), but that change does not comport

with our established precedent.

14

new rule of constitutional law made retroactive by the

Supreme Court. Peppers met that standard by demonstrating

that he may have been sentenced under the residual clause of

the ACCA, which was rendered unconstitutional in Johnson.

Although, as already noted, both we and the District

Court must determine whether the gatekeeping requirements

of § 2255(h) have been met, there is a difference. Our inquiry

does not go as deep because we are in search of a mere

“‘prima facie showing’ … that the petitioner has satisfied the

pre-filing requirements ‘to warrant full exploration by the

district court.’” Hoffner, 870 F.3d at 308 (quoting Goldblum,

510 F.3d at 219 & n.9). The District Court’s analysis of the

gatekeeping requirements, by contrast, must be “more

extensive,” more “thorough,” and “a fuller exploration.”

Goldblum, 510 F.3d at 220 (citation omitted). The District

Court is not bound by our preliminary examination of the

gatekeeping requirements, nor should it rest on our

determination; it must conduct an independent inquiry. Id. at

219-20.

The specific AEDPA provision that Peppers says

should permit consideration of his second § 2255 motion is

the one allowing a successive collateral attack when a “claim

relies on a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable[.]” 28 U.S.C. §§ 2244(b)(2)(A),

(b)(4). The government contends that that provision requires

a defendant to do more than merely invoke Johnson and

assert that he was possibly sentenced under the residual

clause. Rather, the government argues, he must demonstrate

that the sentencing court did in fact employ the residual

clause in imposing an enhanced sentence under the ACCA.

15

That view suggests a defendant can only pass through the

jurisdictional gate by producing evidence that his sentence

depended “solely” upon the ACCA’s residual clause.

(Answering Br. at 21.) Peppers counters that AEDPA’s

gatekeeping requirements are satisfied by showing that the

sentencing judge may have used the residual clause. (Reply

Br. at 4.) Peppers has the better position.

The statutory text, case law from our sister circuits,

and policy considerations indicate that § 2255(h) only

requires a movant to show that his sentence may be, not that it

must be, unconstitutional in light of a new rule of

constitutional law made retroactive by the Supreme Court. It

is true that Congress passed AEDPA with the purpose of

restricting a defendant’s ability to collaterally attack his

conviction or sentence, especially with a second or successive

attack. See Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.

2004) (recognizing Congress’s goal of limiting opportunities

for filing second or successive habeas petitions). But, strict

though Congress intended it to be, AEDPA surely was not

meant to conflate jurisdictional inquiries with analyses of the

merits of a defendant’s claims.

“We begin, as usual, with the statutory text,”

Maslenjak v. United States, 137 S. Ct. 1918, 1924 (2017), and

although the text here is inconclusive, it supports adopting a

flexible approach to satisfying the gatekeeping requirements.

As a reminder, the burden on someone launching a second or

successive collateral attack like Peppers’s on a conviction or

sentence is to show that the attack “relies on a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court[.]” Id. § 2244(b)(2)(A). In In

re Hoffner, we recently held that “whether a claim ‘relies’ on

16

a qualifying new rule must be construed permissively and

flexibly on a case-by-case basis.”4 870 F.3d at 308. We

recognized that “a motion ‘relies’ on a qualifying new rule

where the rule ‘substantiates the movant’s claim.’” Id.

(citation omitted). And that “is so even if the rule does not

‘conclusively decide []’ the claim or if the petitioner needs a

‘non-frivolous extension of a qualifying rule.’” Id. (alteration

in original) (citation omitted).

While the statutory text arguably could support the

government’s contention that a movant only “relies” on a new

rule of constitutional law if he can prove his sentence in fact

4

In Hoffner, we considered “what is required for a

claim to ‘rel[y]’ on a qualifying new rule for the purposes of

Section 2255(h)(2).” 870 F.3d at 308 (alteration in original).

We made that interpretation based on what a petitioner must

show to demonstrate a prima facie case that the prerequisites

for a motion under § 2255(h) are met. Id. Section 2255(h)(2)

does not include the word “relies” at all. Rather, that

language was taken from the Supreme Court’s decision in

Tyler v. Cain, 533 U.S. 656 (2001), where the Court laid out

the three requirements for bringing a claim based on

§ 2244(b)(2)(A). See Hoffner, 870 F.3d at 308 (“Even the

Government concedes that Section 2255(h)(2) has ‘no express

requirement that the ‘new rule’ must actually pertain to the

petitioner’s claim.’” (citation omitted)). But that language

does appear in § 2244(b)(2)(A), and there is no principled

reason for treating the term differently between the two

provisions of AEDPA when both provisions are nearly

identically worded and serve the same gatekeeping function,

§ 2255(h)(2) for the court of appeals and § 2244(b)(2)(A) for

the district court.

17

is unconstitutional under that new rule, Peppers’s

interpretation is more consistent with Hoffner and a common

sense analytical approach. Because the word “relies” should

be interpreted “flexibly” on a “case-by-case basis,” the

implication is that a movant satisfies the gatekeeping

requirements under § 2244(b)(2)(A) and 2255(h)(2) when he

demonstrates that his sentence may be unconstitutional in

light of the new rule of constitutional law. Cf. Griffin v.

United States, 502 U.S. 46, 53 (1991) (“[W]here a provision

of the Constitution forbids conviction on a particular ground,

the constitutional guarantee is violated by a general verdict

that may have rested on that ground.”). To interpret the

language as the government suggests would effectively turn

the gatekeeping analysis into a merits determination, which

defeats the purpose of the jurisdictional review. See Hoffner,

870 F.3d at 308 (“[W]e do not address the merits at all in our

gatekeeping function.”). We thus conclude that a movant like

Peppers satisfies the jurisdictional requirements for a

§ 2255(h)(2) motion by showing the new rule of

constitutional law he advances may require resentencing.

That conclusion finds support in decisions from other

circuit courts. In United States v. Winston, the Fourth Circuit

held “that when an inmate’s sentence may have been

predicated on application of the now-void residual clause and

therefore, may be an unlawful sentence under the holding in

[Johnson], the inmate has shown that he ‘relies on’ a new rule

of constitutional law within the meaning of 28 U.S.C.

§ 2244(b)(2)(A).” 850 F.3d 677, 682 (4th Cir. 2017). The

Ninth Circuit recently reached a similar conclusion in United

States v. Geozos, 870 F.3d 890 (9th Cir. 2017), in which the

court said that, “when it is unclear whether a sentencing court

relied on the residual clause in finding that a defendant

18

qualified as an armed career criminal, but it may have, the

defendant’s § 2255 claim ‘relies on’ the constitutional rule

announced in [Johnson].” Id. at 896.5

5

The government would have us rely on In re Moore,

830 F.3d 1268 (11th Cir. 2016). But that case is inapposite

when one is considering the burden at the gatekeeping stage,

rather than the merits stage, of the analysis. In Moore, the

United States Court of Appeals for the Eleventh Circuit said

in dicta that a movant cannot meet his burden in a § 2255

proceeding “unless he proves that he was sentenced using the

residual clause and that the use of that clause made a

difference in the sentence.” Id. at 1273. So “[i]f the district

court cannot determine whether the residual clause was used

in sentencing and affected the final sentence—if the court

cannot tell one way or the other—the district court must deny

the § 2255 motion.” Id. But that standard describes the

burden on the movant to show “that he is entitled to relief in a

§ 2255 motion—not just a prima facie showing that he meets

the requirements of § 2255(h)(2), but a showing of actual

entitlement to relief on his Johnson claim.” Id. at 1272. In

other words, the dicta referenced requirements for a merits

ruling.

The Eleventh Circuit applies a different standard at the

gatekeeping stage. It uses a “clear/unclear test” to make “a

preliminary determination about whether a habeas petitioner

[has] made out a prima facie showing sufficient to warrant

leave to file a second or successive section 2255 motion.”

Beeman v. United States, 871 F.3d 1215, 1224 n.6 (11th Cir.

2017). That allows a movant’s § 2255 motion to be denied at

the gatekeeping stage only if it is clear that he was sentenced

under the elements clause or the enumerated offenses clause,

or if it is clear that prior convictions qualifying under the

19

Policy considerations also favor the same

interpretation. As stated in Winston, “[n]othing in the law

requires a [court] to specify which clause … it relied upon in

imposing a sentence.” 850 F.3d at 682 (alterations in

original) (citation omitted). A defendant’s Johnson claim

should not be unfairly tethered to the discretionary decision of

his sentencing judge to specify the ACCA clause under which

each prior conviction qualifies as a violent felony. Id. The

government’s rule results in randomly unequal treatment of

§ 2255 claims.

Finally, contrary to the government’s characterization,

the rule that Peppers advocates does not deprive the

gatekeeping requirements of force. Under the rule we

announce today, simply mentioning Johnson in a § 2255

motion is not enough. The movant must still show that it is

possible he was sentenced under the now-unconstitutional

residual clause of the ACCA. There are likely to be situations

where the record is clear that a defendant was not sentenced

under the residual clause, either because the sentencing judge

said another clause applied or because the evidence provides

clear proof that the residual clause was not implicated. When

that happens, the movant cannot establish that he may have

been sentenced under the residual clause, and the court must

dismiss the § 2255 motion for lack of jurisdiction.6 So we are

“serious drug offense” provision of the ACCA are taken into

account. In re Rogers, 825 F.3d 1335, 1338 (11th Cir. 2016).

6

The government also contends that allowing Peppers

to “pass through the jurisdictional door by merely identifying

the possibility that he was sentenced based on the residual

20

not undermining AEDPA by holding that a movant satisfies

§ 2255(h)’s gatekeeping requirements with a showing that he

may have been sentenced under the now-unconstitutional

residual clause of the ACCA.

Peppers met those requirements by demonstrating that

the claims in his second § 2255 motion rely on the new rule

of constitutional law announced in Johnson and made

retroactive on collateral review in Welch. The record

indicates that Peppers was sentenced to the minimum of

fifteen years’ imprisonment under the ACCA because the

District Court and the parties believed he had at least three

prior convictions qualifying as violent felonies under that

statute. But the Court did not specify the clauses under which

those prior convictions qualified as violent felonies. Once it

was satisfied that, as defense counsel acknowledged, there

were at least three prior convictions that “would definitely

meet the requirements of the Armed Career Criminal Act[,]”

it stopped its analysis and concluded that the Act applied.

(App. at 56.) Therefore, the evidence demonstrates that

Peppers may have been sentenced under the ACCA’s residual

clause, and that, in turn, is enough to demonstrate that his

motion to correct his sentence relies on the new rule of

constitutional law announced in Johnson. The District Court

clause” has the practical effect of shifting the burden of proof

from the defendant to the government. (Answering Br. at 17.)

We disagree. Peppers, as the movant, retains the burden to

prove both that he has met the gatekeeping requirements and

that his claim under Johnson is meritorious. See United

States v. Hollis, 569 F.2d 199, 205 (3d Cir. 1977) (“[I]n

habeas cases the general rule is that the petitioner himself

bears the burden of proving that his conviction is illegal.”).

21

thus properly determined that it had jurisdiction to reach the

merits of Peppers’s § 2255(h)(2) motion.

Having concluded the District Court had jurisdiction to

hear Peppers’s claims, we must decide the effect of Peppers’s

(C) plea on his ability to raise Johnson claims collaterally

attacking his sentence.

B. Peppers’s Rule 11(c)(1)(C) Plea

Federal Rule of Criminal Procedure 11(c)(1)(C)

provides that “[a]n attorney for the government and the

defendant’s attorney, or the defendant when proceeding pro

se, may discuss and reach a plea agreement” that includes an

agreement “that a specific sentence or sentencing range is the

appropriate disposition of the case, or that a particular

provision of the Sentencing Guidelines, or policy statement,

or sentencing factor does or does not apply[.]” Generally,

“[a] plea of guilty [under that rule] and the ensuing conviction

comprehend all of the factual and legal elements necessary to

sustain a binding, final judgment of guilt and a lawful

sentence.” United States v. Broce, 488 U.S. 563, 569 (1989).

The government argues that, because “Peppers explicitly and

voluntarily exposed himself” to a fifteen-year sentence in a

(C) plea, “he cannot now seek collateral relief by arguing that

his sentence was based on the residual clause.” (Answering

Br. at 35.) Peppers counters that his (C) plea does not

preclude him from collaterally attacking his sentence because

his challenge is directed at a sentencing enhancement rather

than a conviction and “a guilty plea does not foreclose

challenges to the constitutionality of a statute as applied to a

22

particular defendant.”7 (Opening Br. at 13.) We agree with

Peppers that his (C) plea does not preclude his § 2255 motion.

As a general rule, only a limited set of grounds are

available for a defendant to challenge a conviction or

sentence based on a guilty plea. The Supreme Court has

stated that “when the judgment of conviction upon a guilty

plea has become final and the offender seeks to reopen the

proceeding, the inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary.” Broce,

488 U.S. at 569. If the plea was both counseled and

voluntary, that will generally “foreclose the collateral attack.”

Id. Nevertheless, “[t]here are exceptions where on the face of

the record the court had no power to enter the conviction or

7

Our precedent allows a defendant to directly

challenge the constitutionality of the statute of conviction

notwithstanding a guilty plea. See United States v. Whited,

311 F.3d 259, 262 (3d Cir. 2002) (stating that a defendant’s

direct challenge to the constitutionality of the statute of

conviction was not barred by her guilty plea). And the

Supreme Court recently held that “a guilty plea [does not] bar

a criminal defendant from later appealing his conviction on

the ground that the statute of conviction violates the

Constitution[.]” Class v. United States, 138 S. Ct. 798, 801-

02 (2018). The Court’s holding, however, was cabined to

direct appeal. Id. at 803, 805, 807. In any event, that holding

does not bear on our resolution of whether Peppers’s (C) plea

precludes his Johnson claim because Peppers is not

collaterally attacking the constitutionality of the statute

underlying his conviction, 18 U.S.C. § 922(g). Instead, his

Johnson claim is directed at a sentencing enhancement

applied under 18 U.S.C. § 924(e).

23

impose the sentence.” Id. While “the circumstances under

which a guilty plea may be attacked on collateral review” are

strictly limited, “it would be inconsistent with the doctrinal

underpinnings of habeas review to preclude [a] petitioner

from relying on [a new rule of constitutional law] in support

of his claim that his guilty plea was unconstitutionally

invalid.” United States v. Bousley, 523 U.S. 614, 621 (1998).

In line with those principles, we conclude that

Peppers’s guilty plea does not preclude a collateral attack

pursuant to Johnson. It would be impermissible to preclude a

§ 2255 motion to correct sentence, which meets the

gatekeeping requirements and is not procedurally barred,

based on a (C) plea that preserves a now-unlawful sentence.

Parties may not stipulate to an unlawful sentence in a plea

agreement. See, e.g., United States v. Symington, 781 F.3d

1308, 1313 (11th Cir. 2015) (stating that a district court has

no authority to impose an unlawful sentence even if stipulated

to by the parties in a plea agreement); United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“[A] district

court has no discretion to impose a sentence outside of the

statutory range established by Congress for the offense of

conviction.” (emphasis omitted)); United States v. Moyer, 282

F.3d 1311, 1318-19 (10th Cir. 2002) (concluding that the

district court erred when it sentenced the defendant pursuant

to the plea agreement when that sentence contravened the

applicable law). If, at the time of sentencing, a plea

agreement requires imposition of a sentence that either falls

below or exceeds the statutory penalty limits, the district

court is without authority to accept that plea. Therefore,

when a new rule of constitutional law made retroactive to

cases on collateral review by the Supreme Court renders

illegal a sentence that was imposed based on a Rule

24

11(c)(1)(C) plea agreement, a defendant who otherwise can

successfully challenge that sentence in a § 2255 motion

cannot be held to the unlawful term of imprisonment.

Here, assuming Peppers makes a meritorious § 2255

claim, it would be unlawful for the District Court to impose

upon him the sentence he is now serving based on his (C)

plea agreement. If Peppers wins on the merits of his Johnson

claim because he was sentenced under the residual clause and

his prior convictions do not fall within the remaining clauses

of the ACCA, then that statute cannot be constitutionally

applied to him. In the absence of the ACCA, there is no

applicable sentencing enhancement that carries with it a

minimum sentence of fifteen years’ imprisonment. See

18 U.S.C. § 924(e)(1). Instead, the maximum sentence for his

underlying conviction is ten years of imprisonment. See id.

§ 924(a)(2). Therefore, the District Court would be without

authority to impose a sentence upon Peppers with a term of

imprisonment any greater than ten years, even if the

government and Peppers stipulated to a greater term. The

plea agreement in this case does just that – it stipulates to a

term of imprisonment of fifteen years. For those reasons, the

(C) plea does not stand as an obstacle to Peppers’s collateral

attack on his sentence in light of Johnson.8

8

The government asserts that the Supreme Court’s

decision in Freeman v. United States, 564 U.S. 522 (2011),

dictates the outcome we should reach here. In Freeman, the

Court considered whether a defendant who was sentenced

pursuant to a Rule 11(c)(1)(C) plea could challenge that

sentence after a subsequent amendment to the applicable

Guidelines sentencing range. Id. at 525. Although no single

opinion garnered a majority of the Justices’ support, we have

25

Given that conclusion, we turn to the merits of

Peppers’s second § 2255 motion. The analysis requires us to

determine whether his prior felony convictions qualify under

either the elements clause or the enumerated offenses clause

of the ACCA. To do so, however, we must first consider

whether case law that developed after his sentencing can

apply to Peppers’s Johnson claims.9

said that Justice Sotomayor’s concurring opinion controls.

See id. at 534 (Sotomayor, J., concurring); see also United

States v. Weatherspoon, 696 F.3d 416, 422 (3d Cir. 2012)

(stating that Justice Sotomayor’s opinion concurring in the

judgment is the controlling opinion in Freeman). Recently,

however, the Supreme Court resolved the sentencing issue

and held that, contrary to Justice Sotomayor’s concurrence in

Freeman, “a sentence imposed pursuant to a Type-C

agreement is ‘based on’ the defendant’s Guidelines range so

long as that range was part of the framework the district court

relied on in imposing the sentence or accepting the

agreement.” Hughes v. United States, 138 S. Ct. 1765, 1775

(2018).

We do not need to decide here whether to extend the

rule in Hughes to collateral attacks on sentences under § 2255

based on Johnson because neither Freeman nor Hughes

addressed a situation where a new rule of constitutional law

may have rendered the sentence imposed in a (C) plea

agreement unlawful. Under those circumstances, the rule in

Hughes is inapposite.

9

Specifically, the parties dispute whether, in resolving

the merits of a Johnson claim, we must apply the law as it

existed at the time of sentencing to determine whether the

defendant could have been sentenced under the elements or

26

C. Using Post-Sentencing Case Law to Establish

the Merits of a Johnson Claim

Ordinarily, new constitutional rules of criminal

procedure, though they form the current state of the law, are

not applicable to cases that became final before the new rules

were announced. Teague v. Lane, 489 U.S. 288, 310 (1989).

Nevertheless, Peppers argues that we should use “the current

state of the law” to determine whether his prior convictions

qualify as violent felonies under either the elements clause or

the enumerated offenses clause of the ACCA. (Opening Br.

at 20.) The government counters that we may only use

“available prior conviction records and case law as it existed

at the time of sentencing.” (Answering Br. at 22.) Under the

circumstances here, we agree with Peppers.

Supreme Court cases since Peppers’s sentencing have

provided important guidance on how to interpret whether a

conviction falls within a given clause of the ACCA. Those

decisions include Mathis v. United States, 136 S. Ct. 2243

(2016), Descamps v. United States, 570 U.S. 254 (2013), and

enumerated offenses clause or, conversely, whether the

defendant is entitled to rely on post-sentencing case law. For

reasons discussed herein, see infra Subsection II.C. & n.21,

we conclude that, once a defendant has satisfied § 2255(h)’s

gatekeeping requirements by relying on Johnson, he may use

post-sentencing cases such as Mathis, Descamps, and

Johnson 2010 to support his Johnson claim.

27

Johnson v. United States, 559 U.S. 133 (2010) (“Johnson

2010”).10

In Mathis, the Supreme Court stated that, “[t]o

determine whether a past conviction [falls within the ACCA’s

enumerated offenses clause], courts compare the elements of

the crime of conviction with the elements of the ‘generic’

version of the listed offense—i.e., the offense as commonly

understood.” 136 S. Ct. at 2247. The Court made it clear that

there is no exception to that rule, even “when a defendant is

convicted under a statute that lists multiple, alternative means

of satisfying one (or more) of its elements.” Id. at 2248. The

rule remains “that the prior crime qualifies as an ACCA

predicate if, but only if, its elements are the same as, or

narrower than, those of the generic offense.” Id. at 2247.

That rule, well known as the “categorical approach,” requires

the sentencing court to look solely at the elements of the

crime of conviction and the elements of the generic offense,

without consulting any of the specific facts of the case. Id.

When the elements of the statute of conviction – as

opposed to the means of satisfying the elements – are stated

“in the alternative,” then the statute is said to be “divisible,”

and the Supreme Court allows a “modified categorical

10

To the extent the parties also dispute the

applicability of United States v. Steiner, 847 F.3d 103 (3d Cir.

2017), that is better understood as an attack on the

applicability of Mathis, which dictated our conclusion there.

See Steiner, 847 F.3d at 119 (holding that the Pennsylvania

burglary statute is not divisible after Mathis, and must be

analyzed using a categorical rather than modified categorical

approach).

28

approach.” Descamps, 570 U.S. at 257. Under that approach,

sentencing courts may “consult a limited class of documents,

such as indictments and jury instructions, to determine which

alternative formed the basis of the defendant’s prior

conviction.” Id. After that, the sentencing court proceeds as

it would under the categorical approach. Id. In Descamps,

the Court considered whether that modified categorical

approach should be used “when a defendant was convicted

under an ‘indivisible’ statute—i.e., one not containing

alternative elements—that criminalizes a broader swath of

conduct than the relevant generic offense.” Id. at 258. The

Court answered no and held that “sentencing courts may not

apply the modified categorical approach when the crime of

which the defendant was convicted has a single, indivisible

set of elements.” Id. Indicating that the rule it announced in

Descamps was not new but rather rested upon old precedent,

the Court said its “caselaw explaining the categorical

approach and its ‘modified’ counterpart all but resolves this

case.” Id. at 260.

Finally, in Johnson 2010, the Supreme Court

interpreted what the ACCA means when it speaks of a crime

involving “physical force.” 559 U.S. at 138. The Court

concluded that “physical force” under the ACCA’s elements

clause means “violent force—that is, force capable of causing

physical pain or injury to another person.” Id. at 140

(emphasis omitted). It said that such “physical force” cannot

“be satisfied by the merest touching.” Id. at 139. The Court

then applied that interpretation to hold that Florida’s “felony

offense of battery by ‘[a]ctually and intentionally touch[ing]’

another person” does not have “as an element the use … of

physical force against the person of another,” and thus is not

categorically a “violent felony” under the ACCA. Id. at 135,

29

145 (alterations in original) (citations omitted). Thus,

Supreme Court cases like Mathis, Descamps, and Johnson

2010 are instructive on how sentencing courts can properly

apply the categorical and modified categorical approaches, as

well as how they must interpret the ACCA’s terms.

Lower federal courts are decidedly split on whether

current law, including Mathis, Descamps, and Johnson 2010,

may be used when determining which ACCA clauses a

defendant’s prior convictions may implicate. The Courts of

Appeals for the Seventh and Eleventh Circuits, as well as

many district courts, have held that only case law existing at

the time of a defendant’s sentencing may be used to decide

the merits of the defendant’s § 2255 motion based on

Johnson. See, e.g., In re Hires, 825 F.3d 1297, 1302-04 (11th

Cir. 2016) (concluding that a defendant could not rely on

Descamps to prove a Johnson claim); Holt v. United States,

843 F.3d 720, 721-24 (7th Cir. 2016) (determining that a

defendant’s § 2255(h)(2) motion could not rest on Johnson

because his claim ultimately turned on other post-sentencing

cases, such as Mathis).11 Meanwhile, a subsequent panel of

11

See also In re Thomas, 823 F.3d 1345, 1349 (11th

Cir. 2016); Moore, 830 F.3d at 1273; Kane v. United States,

No. 16-00146, 2016 WL 7404720, at *3 (W.D.N.C. Dec. 21,

2016), aff’d, 706 F. App’x 141 (4th Cir. 2017); Traxler v.

United States, No. 16-747, 2016 WL 4536329, at *5 (W.D.

Mich. Aug. 31, 2016), vacated on other grounds, 2017 WL

4124880 (6th Cir. Mar. 7, 2017); Ziglar v. United States, 201

F. Supp. 3d 1315, 1325-26 (M.D. Ala. 2016); Peek v. United

States, No. 408-221, 2016 WL 4926431, at *3 (S.D. Ga. Sept.

14, 2016); Perez v. United States, No. 16-22379, 2016 WL

6996150, at *3 (S.D. Fla. Nov. 28, 2016), aff’d, 2018 WL

30

the Eleventh Circuit, as well as many other district courts,

have concluded that courts can use case law post-dating a

defendant’s sentence when deciding the ACCA clauses into

which that defendant’s prior convictions may fall. See, e.g.,

In re Adams, 825 F.3d 1283, 1285-86 (11th Cir. 2016)

(concluding that a defendant could rely on Descamps to prove

his Johnson claim because Descamps “is not an independent

claim that is itself subject to the gatekeeping

requirements”).12

This issue, which is one of first impression for us, has

been divisive because of an underlying difference of opinion

over the effect of § 2255(h)’s gatekeeping function. As noted

earlier, when a defendant brings a second or successive

§ 2255 motion, the district court must first consider whether

the motion relies on “a new rule of constitutional law, made

1750555 (11th Cir. Apr. 12, 2018); Dimott v. United States,

No. 06-26, 2016 WL 6068114, at *3 (D. Me. Oct. 14, 2016),

aff’d, 881 F.3d 232 (1st Cir. 2018); Burgess v. United States,

No. 493-205, 2016 WL 4618814, at *2 (S.D. Ga. Sept. 6,

2016); King v. United States, No. 16-22261, 202 F. Supp. 3d

1346, 1359-60 (S.D. Fla. 2016); Leone v. United States, No.

16-22200, 203 F. Supp. 3d 1167, 1178-79 (S.D. Fla. 2016).

12

See also United States v. Christian, 668 F. App’x

820, 820-21 (9th Cir. 2016); Rogers, 825 F.3d at 1337-40; In

re Parker, 827 F.3d 1286, 1287-88 (11th Cir. 2016), vacated

on other grounds, 832 F.3d 1250 (11th Cir. 2016); United

States v. Carrion, 236 F. Supp. 3d 1280, 1284-88 (D. Nev.

2017); United States v. Avery, No. 02-113, 2017 WL 29667,

at *1 (D. Nev. Jan. 3, 2017); United States v. Ladwig, 192 F.

Supp. 3d 1153, 1159-61 (E.D. Wash. 2016).

31

retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 28 U.S.C.

§ 2255(h)(2); accord 28 U.S.C. § 2244(b)(2)(A). And, for

such motions, “a new rule is not ‘made retroactive to cases on

collateral review’ unless the Supreme Court holds it to be

retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001); see

also In re Olopade, 403 F.3d 159, 162 & n.3 (3d Cir. 2005)

(extending Tyler’s holding with respect to § 2244(b)(2)(A) to

the identical language in § 2255(h)(2)). A new rule is only

made retroactive by the Supreme Court if that Court has

“explicitly held, or two or more of its decisions when read

together … absolutely dictate, that a particular rule is

retroactively applicable to cases on collateral review.”

Olopade, 403 F.3d at 162.

The Supreme Court has never held that Mathis,

Descamps, or Johnson 2010 apply retroactively to cases on

collateral review, nor do any combination of Supreme Court

precedents dictate the retroactivity of those cases. See Holt,

843 F.3d at 722 (“Mathis has not been declared retroactive by

the Supreme Court[.]”); In re Jackson, 776 F.3d 292, 295-96

(5th Cir. 2015) (indicating that the Supreme Court has not

made Johnson 2010 retroactive); Groves v. United States, 755

F.3d 588, 593 (7th Cir. 2014) (stating that “the Supreme

Court has not made Descamps retroactive on collateral

review”). Because only the Supreme Court can declare which

new rules of constitutional law are retroactively applicable to

cases on collateral review in the second or successive habeas

motion context, Mathis, Descamps, and Johnson 2010 cannot

provide the foundation that satisfies the gatekeeping

requirements for a § 2255(h)(2) motion.

32

But that does not end our inquiry into whether those

cases may be part of a defendant’s arsenal in a collateral

attack on his sentence. When a defendant’s second or

successive § 2255 motion recites a Johnson claim that

satisfies § 2255(h)’s gatekeeping requirements, the defendant

is through the gate. See Welch, 136 S. Ct. at 1264-65

(concluding that Johnson is “a substantive decision and so has

retroactive effect under Teague in cases on collateral

review”). At that point, we are no longer concerned with

AEDPA retroactivity and it makes perfect sense to allow a

defendant to rely upon post-sentencing Supreme Court case

law that explains the pre-sentencing law. Cf. Rivers v.

Roadway Express, Inc., 511 U.S. 298, 312-13 (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.”).

Mathis, Descamps, and Johnson 2010 are such cases.

An analysis of which ACCA clauses a defendant’s prior

convictions might fall under should be guided by precedent

that will “ensure we apply the correct meaning of the

ACCA’s words.” Adams, 825 F.3d at 1286. Indeed, the

Supreme Court’s decisions in Mathis, Descamps, and

Johnson 2010 instruct courts on what has always been the

proper interpretation of the ACCA’s provisions. That is

because, when the Supreme Court “construes a statute, it is

explaining its understanding of what the statute has meant

continuously since the date when it became law.” Rivers, 511

U.S. at 313 n.12. In short, those decisions interpreting the

ACCA are not new law at all, in the sense contemplated by

Teague. The rules in Mathis, Descamps, and Johnson 2010

are “authoritative statement[s] of what the [ACCA] meant

before as well as after [those] decision[s.]” Rivers, 511 U.S.

33

at 312-13; see Dawkins v. United States, 829 F.3d 549, 551

(7th Cir. 2016) (“Mathis … is a case of statutory

interpretation.”); Ezell v. United States, 778 F.3d 762, 766

(9th Cir. 2015) (“Descamps is a statutory interpretation

case[.]”); United States v. Voisine, 778 F.3d 176, 194 (1st Cir.

2015) (describing Johnson 2010 as a case involving statutory

interpretation). Furthermore, “a rule that requires judges to

take a research trip back in time and recreate the then-existing

state of the law—particularly in an area of law as muddy as

this one—creates its own problems in terms of fairness and

justiciability.” United States v. Carrion, 236 F. Supp. 3d

1280, 1287 (D. Nev. 2017); see also United States v. Ladwig,

192 F. Supp. 3d 1153, 1160 (E.D. Wash. 2016) (“Attempting

to recreate the legal landscape at the time of a defendant’s

conviction is difficult enough on its own.”).

We thus hold that, once a defendant has satisfied

§ 2255(h)’s gatekeeping requirements by relying on Johnson,

he may use post-sentencing cases such as Mathis, Descamps,

and Johnson 2010 to support his Johnson claim because they

are Supreme Court cases that ensure we correctly apply the

ACCA’s provisions.13

13

The government’s argument that allowing the use of

post-sentencing case law impermissibly bootstraps Mathis,

Descamps, and Johnson 2010 claims onto a Johnson claim

ignores that there remains, throughout the entire collateral

attack, a valid Johnson claim upon which the sentencing court

is passing judgment. The post-sentencing case law is not

being smuggled in under Johnson’s cloak because a proper

analysis in light of Johnson warrants applying the ACCA’s

terms correctly. But see Hires, 825 F.3d at 1303 (“[A

34

Having decided all of the preliminary matters, we can

now proceed to consider whether Peppers’s prior convictions

were properly determined to be predicate offenses under the

ACCA. We begin with Peppers’s prior convictions for

robbery under Pennsylvania law.

D. Peppers’s Pennsylvania Robbery Convictions

Peppers’s prior robbery convictions14 do not qualify as

predicate offenses under the ACCA because a conviction

under Pennsylvania’s robbery statute does not categorically

constitute a “violent felony.”

Under the ACCA’s elements clause, any crime that

“has as an element the use, attempted use, or threatened use

of physical force against the person of another” qualifies as a

violent felony. 18 U.S.C. § 924(e)(2)(B)(i). The parties do

not dispute which two convictions are at issue here: Peppers’s

1979 juvenile robbery conviction and his 1985 robbery

conviction. When Peppers was convicted for those crimes,

the Pennsylvania robbery statute stated:

defendant] cannot use Johnson as a portal to challenge his

ACCA predicates … based on Descamps.”).

14

The ACCA states that the term “conviction” as used

in the definition of the term “violent felony” includes “a

finding that a person has committed an act of juvenile

delinquency involving a violent felony.” 18 U.S.C.

§ 924(e)(2)(C). Thus, we treat Peppers’s 1979 juvenile

robbery adjudication of delinquency as a “conviction” for

purposes of our ACCA analysis.

35

(1) A person is guilty of robbery if, in the

course of committing a theft, he:

(i) inflicts serious bodily injury upon

another;

(ii) threatens another with or

intentionally puts him in fear of

immediate serious bodily injury;

(iii) commits or threatens immediately

to commit any felony of the first

or second degree;

(iv) inflicts bodily injury upon another

or threatens another with or

intentionally puts him in fear of

immediate bodily injury; or

(v) physically takes or removes

property from the person of

another by force however slight.

18 Pa. Cons. Stat. § 3701(a) (June 24, 1976 to May 16, 2010).

The grading provision provided that: “[r]obbery under

subsection (a)(1)(iv) is a felony of the second degree; robbery

under subsection (a)(1)(v) is a felony in the third degree;

otherwise, it is a felony of the first degree.” Id. § 3701(b).

The District Court concluded that Peppers’s robbery

convictions qualified as violent felonies under the ACCA’s

elements clause rather than the unconstitutional residual

36

clause. But that conclusion cannot be supported on this

record.15

As discussed earlier, supra at section II.D., when a

statute is divisible because it comprises multiple, alternative

versions of a crime, sentencing courts can resort to the

“modified categorical approach” to determine whether a

defendant’s prior convictions qualify as predicate offenses

under the ACCA. Descamps, 570 U.S. at 260-62. That

approach allows a court “to identify, from among several

alternatives, the crime of conviction so that the court can

compare it to the generic offense.” Id. at 264. To make that

determination, it is permissible to look to a narrow category

of “extra-statutory materials” known as Shepard documents.

Id. at 263; see generally Shepard v. United States, 544 U.S.

13 (2005). Those documents include the “charging

document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the

defendant assented.” Shepard, 544 U.S. at 16. After

consulting Shepard documents and applying the modified

categorical approach to determine the specific crime of

conviction, the sentencing court then resorts to the traditional

15

The District Court drew its conclusion from the

government’s earlier use of “the phrase ‘has as an element the

use, attempted use or threatened use of physical force against

another,’” in a court filing from 2000 titled “Notice of

Intention to Seek Enhanced Sentencing,” to describe

Peppers’s prior robbery convictions. (App. at 5-6; ECF No.

46 at 2.) But what the government said in 2000 does not tell

us under which ACCA clause the District Court later

concluded Peppers’s prior Pennsylvania robbery convictions

qualify as predicate offenses.

37

“categorical approach” that requires comparing the criminal

statute to the relevant generic offense. Mathis, 136 S. Ct. at

2249.

“Given the clearly laid out alternative elements of the

Pennsylvania robbery statute, it is obviously divisible and,

therefore, a sentencing court can properly look to the kinds of

documents listed by the Supreme Court in … Shepard to

determine which subsection was the basis of [the defendant’s]

prior convictions.” United States v. Blair, 734 F.3d 218, 225

(3d Cir. 2013); see also Mathis, 136 S. Ct. at 2256 (“If

statutory alternatives carry different punishments, then …

they must be elements.”); see generally 18 Pa. Cons. Stat.

§ 3701(b) (providing the punishment grading for violating

various provisions of subsection (a)(1)). But, when there are

no Shepard documents for the sentencing court to consult, the

modified categorical approach becomes a useless tool. The

only thing differentiating the categorical and modified

categorical approaches is the consultation of Shepard

documents to determine which of multiple alternative

offenses in a single criminal statute the prisoner was

convicted under. Without Shepard documents, the

categorical and modified categorical approaches are the same,

and the sentencing court is forced to proceed under the

categorical approach. Here, that is exactly what is required.

The parties admit that no Shepard documents have been

produced by either Peppers or the government and, thus, we

do not know under which provision of the Pennsylvania

robbery statute Peppers was convicted.16 Therefore, we must

turn to the categorical approach.

16

Peppers admitted through his counsel at the time of

sentencing that his 1979 and 1985 robbery convictions were

38

both “armed robbery” convictions. (App. at 31, 56.) Yet,

even if a defendant’s admissions are encompassed within

those forms of evidence contemplated by Shepard, the fact

that Peppers’s convictions were for “armed robbery” does not

help us identify under which of the five subsections of

Pennsylvania’s robbery statute he was convicted. One would

think that an “armed” robbery, which involves the use of a

weapon, would typically be charged as a first-degree felony,

and Peppers acknowledges that “armed” robberies are

“generally charged under § 3701(a)(1)(ii),” which is a first-

degree felony under Pennsylvania’s robbery statute.

(Opening Br. at 32); see, e.g., Commonwealth v. Ruffin, 10

A.3d 336, 337 (Pa. Super. Ct. 2010) (noting that a defendant

was charged and convicted of armed robbery under 18 Pa.

Cons. Stat. § 3701(a)(1)(ii)). But Pennsylvania case law

suggests that there are several instances in which defendants

were convicted of armed robbery under other provisions,

including the third-degree felony provision, § 3701(a)(1)(v).

See, e.g., Commonwealth v. Ali, No. 525-EDA-2014, 2015

WL 7430301, at *1 & n.1, *4-5, *7 (Pa. Super. Ct. Mar. 25,

2015) (affirming a defendant’s sentence following

convictions under 18 Pa. Cons. Stat. § 3701(a)(1)(ii), (iii),

and (v) based on facts involving an armed robbery);

Commonwealth v. Runk, No. 1621-MDA-2014, 2015 WL

7260326, at *1 & nn.1-2, *3 (Pa. Super. Ct. May 28, 2015)

(same following convictions under § 3701(a)(1)(ii) and (v));

Commonwealth v. Haynes, No. 58-EDA-2013, 2014 WL

10965752, at *1, *4 & n.1, *6 (Pa. Super. Ct. Apr. 9, 2014)

(denying a defendant’s petition for post-conviction relief

following a conviction for armed robbery under, among other

things, § 3701(a)(1)(v)).

39

As a reminder, under the categorical approach, the

“focus [is] solely on whether the elements of the crime of

conviction sufficiently match the elements of generic

burglary, while ignoring the particular facts of the case.”

Mathis, 136 S. Ct. at 2248. “How a given defendant actually

perpetrated the crime … makes no difference; even if his

conduct fits within the generic offense, the mismatch of

elements saves the defendant from an ACCA sentence.” Id.

at 2251. We are required to “presume that the conviction

‘rested upon [nothing] more than the least of th[e] acts’

criminalized, and then determine whether even those acts are

encompassed by the generic federal offense.” Moncrieffe v.

Holder, 569 U.S. 184, 190-91 (2013) (alterations in original)

(quoting Johnson 2010, 559 U.S. at 137).

The least culpable act covered by Pennsylvania’s

robbery statute at the time of Peppers’s convictions

criminalizes physically taking or removing “property from the

person of another by force however slight.” 18 Pa. Cons.

Stat. § 3701(a)(1)(v). Pennsylvania law interprets “force

however slight” to include “any amount of force applied to a

person while committing a theft[,]” including the mere “use

of threatening words or gestures, and operates on the mind.”

Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984).

“The degree of actual force is immaterial, so long as it is

sufficient to separate the victim from his property[.]” Id.

Although we held in United States v. Cornish “that any

conviction for robbery under the Pennsylvania robbery

statute, regardless of the degree, has as an element the use of

force against the person of another[,]” 103 F.3d 302, 309 (3d

Cir. 1997), the Supreme Court’s subsequent decision in

Johnson 2010 has placed significant doubt on that holding.

40

As previously noted, the Supreme Court in Johnson

2010 held that the phrase “physical force” in the ACCA’s

elements clause “means violent force—that is, force capable

of causing physical pain or injury to another person.” 559

U.S. at 140 (emphasis omitted). It concluded that a prior

conviction under Florida’s battery law, which criminalized

“any intentional physical contact, ‘no matter how slight,’”

was not a violent felony under the ACCA’s elements clause

because the broad range of conduct encompassed by that state

law did not have “as an element the use … of physical force

against the person of another.” Id. at 135, 138, 145 (citations

omitted). It reached that conclusion because “physical force”

under the ACCA’s elements clause is not “satisfied by the

merest touching.” Id. at 139.

Here, again, the Pennsylvania robbery statute

criminalizes “physically tak[ing] or remov[ing] property from

the person of another by force however slight[.]” 18 Pa.

Cons. Stat. § 3701(a)(1)(v) (emphasis added). Because that

has been interpreted to include “any amount of force applied

to a person while committing a theft[,]” including the mere

“use of threatening words or gestures, and operates on the

mind,” and because “[t]he degree of actual force is

immaterial, so long as it is sufficient to separate the victim

from his property,” Brown, 484 A.2d at 741, Pennsylvania’s

robbery statute suffers from the same issues the Supreme

Court identified with Florida’s battery statute in Johnson

2010. Both laws proscribe the merest touching, which is

insufficient conduct to meet the “physical force” requirement

under the ACCA’s elements clause. Thus, we think it plain

that Johnson 2010 abrogated our holding in Cornish with

respect to third degree robbery under Pennsylvania law.

41

Consequently, Pennsylvania’s robbery statute for third

degree robbery does not fall within the elements clause of the

ACCA because that state law provision is broader than the

generic force requirements under the ACCA. Since we have

no Shepherd documents to guide us and are thus left to apply

the categorical approach in assessing Peppers’s robbery

convictions, we must assume he was convicted under the

third degree robbery provisions and hence under a provision

of Pennsylvania law that is broader than the generic

requirements of the elements clause of the ACCA.17

Furthermore, a conviction under that Pennsylvania statute

does not fall within the ACCA’s enumerated offenses clause

because robbery is not enumerated. See 18 U.S.C.

§ 924(e)(B)(2)(ii) (enumerating only burglary, arson,

extortion, and crimes involving the use of explosives). The

only remaining option, then, is that Peppers was sentenced

pursuant to the unconstitutional residual clause.18

17

Importantly, our holding today does not speak to

whether convictions under any single provision of the

Pennsylvania robbery statute, other than 18 Pa. Cons. Stat.

§ 3701(v), categorically qualify as violent felonies under the

ACCA.

18

This is yet another example of a disconcerting

outcome driven not by statute or a common understanding of

concepts like “violent felony” but by the strictures of the

categorical approach. See, e.g., United States v. Chapman,

866 F.3d 129, 136-39 (3d Cir. 2017) (Jordan, J., concurring)

(noting Judge Wilkinson’s non-exhaustive list of ten cases in

which the categorical approach allowed “repeat offenders [to]

avoid sentencing enhancements for their violent crimes[,]”

and Judge Lynch’s recognition that “the categorical approach

42

E. Peppers’s Pennsylvania Burglary Conviction

It is less clear whether Peppers’s prior burglary

conviction qualifies as a predicate offense under the ACCA.19

Looking first at the enumerated offenses clause, we are once

again, under the categorical approach, required to determine

“whether the crime of conviction is the same as, or narrower

than, the relevant generic offense.” Mathis, 136 S. Ct. at

2257. If the statute under which the defendant was previously

convicted is broader than the generic crime of burglary, and if

that statute is indivisible, then that prior conviction does not

qualify as an ACCA predicate under the enumerated offenses

clause. Id.

One of the ACCA’s enumerated offenses is burglary,

in its generic variety. 18 U.S.C. § 924(e)(2)(B)(ii); Taylor,

495 U.S. at 598. But the generic version of burglary has “the

basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a

crime.” Id. at 599. Those elements encompass a narrower

forces judges into an alternative reality” (citing United States

v. Doctor, 842 F.3d 306, 315 (4th Cir. 2016) (Wilkinson, J.,

concurring) and United States v. Faust, 853 F.3d 39, 60 (1st

Cir. 2017) (Lynch, J., concurring))).

19

Pennsylvania law at the time of Peppers’s burglary

conviction provided that “[a] person [was] guilty of burglary

if he enter[ed] a building or occupied structure, or separately

secured or occupied portion thereof, with intent to commit a

crime therein, unless the premises [were] at the time open to

the public or the actor [was] licensed or privileged to enter.”

18 Pa. Cons. Stat. § 3502(a) (1973).

43

class of behavior than does the relevant version of the

Pennsylvania burglary statute because Pennsylvania’s statute

includes vehicles within its definition of occupied structure,

while the generic version does not. See 18 Pa. Cons. Stat.

§ 3501 (defining “occupied structure” to include “any …

vehicle … adapted for overnight accommodation of persons,

or for carrying on business therein”); Taylor, 495 U.S. at 599

(indicating that state burglary statutes criminalizing entry into

“places, such as automobiles …, other than buildings,” define

burglary more broadly than Congress’s generic definition);

see also United States v. Bennett, 100 F.3d 1105, 1109-10 (3d

Cir. 1996) (concluding that Pennsylvania’s burglary statute is

broader than the generic burglary offense). Under the

categorical approach then, there is not an equivalence that

allows us to say that burglary under Pennsylvania law

categorically qualifies as an ACCA predicate offense, at least

not under the enumerated offenses clause of the ACCA.20

20

That conclusion is not altered by resort to the

modified categorical approach because there can be no such

resort. We have foreclosed application of the modified

categorical approach when analyzing convictions under

Pennsylvania’s burglary statute. In our recent decision in

United States v. Steiner, we considered the effect of the

Supreme Court’s decision in Mathis on the proper

interpretation of that statute. 847 F.3d 103, 106 (3d Cir.

2017). We held “[t]he statute is not divisible and, after

Mathis, a categorical approach, rather than a modified

categorical approach, must be used.” Id. at 119. While the

Steiner decision dealt with the 1993 Pennsylvania burglary

statute, it is identical to the statute Peppers was convicted

under in 1983 in Pennsylvania state court. Compare 18 Pa.

Cons. Stat. § 3502(a) (1973), with id. § 3502(a) (1991). The

44

To determine whether the unconstitutional residual

clause of the ACCA was necessarily the basis for Peppers’s

burglary conviction, we must also rule out the elements

clause as a basis. Peppers has the burden of proving the

merits of his Johnson claim, see supra note 6, which means

he bears the burden of demonstrating that his sentence

implicated the residual clause of the ACCA.21 But he has

District Court therefore erred by applying the modified

categorical approach to determine whether Peppers’s prior

Pennsylvania burglary conviction qualified as a violent felony

under the enumerated offenses clause of the ACCA. The

specific facts of Peppers’s case are irrelevant. Given the state

of our law, Peppers’s conviction under Pennsylvania’s

burglary statute cannot qualify as a predicate offense pursuant

to the ACCA’s enumerated offenses clause.

21

To prove a Johnson claim, we think it incumbent on

a § 2255 movant to demonstrate that his sentence necessarily

implicates the residual clause, which may be shown either by

evidence that the district court in fact sentenced him under the

residual clause or proof that he could not have been sentenced

under the elements or enumerated offenses clauses based on

current case law, and that that made a difference in his

sentence. Although it appears that different tests have

emerged for determining whether a movant has proven a

Johnson claim at the merits stage, see, e.g., Beeman, 871 F.3d

at 1221 (“We conclude, and hold, that, like any other § 2255

movant, a Johnson § 2255 claimant must prove his claim …

[by showing] that—more likely than not—it was use of the

residual clause that led to the sentencing court’s enhancement

of his sentence.”); Geozos, 870 F.3d at 895-97 (indicating that

a movant proves a Johnson claim by showing that it is unclear

45

neither briefed nor argued on appeal that, categorically, his

Pennsylvania burglary conviction does not qualify as a

predicate offense under the ACCA’s elements clause. That

argument was thus forfeited.22 See Barna v. Bd. of Sch. Dirs.

of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)

(“‘[F]orfeiture is the failure to make the timely assertion of a

right,’ an example of which is an inadvertent failure to raise

whether a sentencing court relied on the residual clause and

that that error was not harmless based on categorical analyses

of those prior convictions under current case law); see also

United States v. Taylor, 873 F.3d 476, 479-81 (5th Cir. 2017)

(summarizing different approaches among circuit courts for

deciding Johnson claims), the main distinguishing feature

seems to be whether a movant may rely on post-sentencing

case law to prove his Johnson claim. We have resolved here

that § 2255 movants are entitled to use current case law to

prove their claims. See supra Subsection II.C. We have also

already established that there is a meaningful difference

between the standard to be met at the jurisdictional

gatekeeping stage of the analysis of a second-or-successive §

2255 motion and at the merits stage. See discussion supra

Subsection II.A. Thus, for the merits analysis to be

meaningfully different and to keep the burden of proof on the

movant, where it belongs, it is appropriate to require the

movant to prove by a preponderance of the evidence that his

sentence depends on the ACCA’s residual clause.

22

We do not decide whether a conviction under

Pennsylvania’s burglary statute categorically qualifies as a

violent felony under the ACCA’s elements clause.

46

an argument.” (alteration in original) (quoting United States

v. Olano, 507 U.S. 725, 733 (1993))).

For that reason, although Peppers’s burglary

conviction cannot qualify as a predicate offense under the

enumerated offenses clause of the ACCA, we conclude that

Peppers has not met his burden of proving that he was

necessarily sentenced under the unconstitutional residual

clause of the ACCA because he failed to show that the

burglary conviction does not qualify under the elements

clause.23 Peppers’s burglary conviction thus stands as a

qualifying predicate offense.

III. CONCLUSION

Because we have decided that Peppers’s sentence was

imposed due to constitutional error given that he may have

been sentenced pursuant to the now-unconstitutional residual

clause of the ACCA, the District Court must resolve whether

that error was harmless. See Brecht v. Abrahamson, 507 U.S.

619, 638 (1993) (indicating that when a court finds that a

defendant’s sentence was imposed due to constitutional error,

it must then determine whether that constitutional error was

harmless). The District Court noted that “the record reflects

that Peppers also has a prior drug charge which qualifies as a

23

Peppers also argues that the District Court erred

when it relied upon his Presentence Investigation Report and

the government’s brief to determine he was not sentenced

under the ACCA’s residual clause, both of which he argues

are improper Shepard documents. We do not need to address

those concerns, however, because our analysis does not rely

on that body of disputed evidence.

47

predicate offense.” (App. at 7.) The District Court should

analyze in the first instance whether Peppers has at least two

other qualifying predicate offenses rendering any

constitutional error harmless. If the Court concludes that the

error was not harmless, it must proceed to correct Peppers’s

sentence by removing the sentencing enhancement under the

ACCA and resentencing him for the underlying crime he pled

guilty to – being a felon in possession of a firearm, which

carries a maximum term of imprisonment of ten years.

Accordingly, we will vacate the judgment of the

District Court and remand the case for further proceedings.

48