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United States v. Copeland

United States Court of Appeals, Tenth Circuit

April 23, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
AARON EUGENE COPELAND, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Oklahoma (D.C. Nos. 4:16-CV-00490-CVE-PJC & 4:08-CR-00137-CVE-1)

          Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, Office of the Federal Public Defender, with him on the briefs), Tulsa, Oklahoma, for Defendant - Appellant.

          Leena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney, Northern District of Oklahoma, with her on the brief), Tulsa, Oklahoma for Plaintiff -Appellee.

          Before MATHESON, PHILLIPS, and EID, Circuit Judges.

          MATHESON, Circuit Judge.

         In 2008, Aaron Eugene Copeland pled guilty to being a felon in possession of a firearm. The district court imposed an enhanced sentence of 15 years in prison under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on his two prior drug offenses and one prior burglary. Mr. Copeland did not appeal. After he brought several unsuccessful motions for habeas relief under 28 U.S.C. § 2255, we authorized Mr. Copeland to bring a successive § 2255 motion to assert that his sentence is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the ACCA's definition of violent felony in its residual clause is unconstitutionally vague.

         Mr. Copeland's § 2255 motion claimed the sentencing court relied on the unconstitutional residual clause to find that his prior burglary was a violent felony and therefore the court should not have enhanced his sentence. The district court denied the motion, finding that it did not sentence Mr. Copeland under the residual clause and that his motion accordingly could not rely on Johnson. Exercising jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), we reverse.

         I. BACKGROUND

         To help understand the facts and issues that Mr. Copeland's § 2255 motion presents, we sketch the legal landscape surrounding this case, including discussion of the ACCA's definitions of "violent felony," the Supreme Court's decision in Johnson, and the requirements for bringing second and successive § 2255 motions. We then describe the district court proceedings in 2008 leading to Mr. Copeland's sentence, followed by the § 2255 proceedings in 2017 leading to this appeal. We present additional legal background later in the opinion.

         A. Legal Landscape

         1. The ACCA

         It is a federal crime "for any person . . . who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm or ammunition." 18 U.S.C. § 922(g). A violation of this felon-in-possession statute usually carries a maximum penalty of 10 years in prison. 18 U.S.C. § 924(a)(2). But under the ACCA, a person who "has three previous convictions . . . for a violent felony or serious drug offense, or both" is subject to a minimum sentence of 15 years. 18 U.S.C. § 924(e).

         This appeal concerns the meaning of "violent felony." The ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that also:

(1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," id. § 924(e)(2)(B)(i)-the elements clause;
(2) "is burglary, arson, or extortion, [or] involves the use of explosives," id. § 924(e)(2)(B)(ii)-the enumerated clause; or
(3) "otherwise involves conduct that presents a serious potential risk of physical injury to another," id § 924(e)(2)(B)(ii)-the residual clause.

         Only the enumerated and residual clauses are pertinent to this appeal. Note that "burglary" is listed as one of the offenses in the enumerated clause.

         2. Johnson v. United States

         In 2015, the Supreme Court held in Johnson that the ACCA's residual clause is "unconstitutionally vague," 135 S.Ct. at 2557, leaving only the elements and enumerated clauses to define a violent felony. In 2016, the Court held in Welch v. United States, 136 S.Ct. 1257 (2016), that Johnson "announced a substantive rule that has retroactive effect in cases on collateral review." Id. at 1268.

         3. Section 2255 and Second or Successive Motions

         A federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution" may move the district court that sentenced him "to vacate, set aside[, ] or correct the sentence." 28 U.S.C. § 2255(a). "Before a federal prisoner may file a second or successive motion under § 2255, the prisoner must first obtain an order from the appropriate court of appeals authorizing the district court to consider the motion." In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008) (per curiam); see 28 U.S.C. §§ 2244(b)(3), 2255(h).

         A circuit court may authorize a second or successive § 2255 motion in two circumstances. This appeal turns on one of them-whether the motion "contain[s] . . . 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. § 2255(h)(2).[1] "A motion 'contains' a new rule of constitutional law, as required by § 2255(h), if the claim for which authorization is sought 'relies on' the new rule." United States v. Murphy, 887 F.3d 1064, 1067 (10th Cir. 2018).

         A movant attempting to file a second or successive § 2255 motion must pass two gates. The first is obtaining authorization from the circuit court to file the motion, which requires only "a prima facie showing to the court of appeals that the motion satisfies the requirements of § 2255(h), defined as a sufficient showing of possible merit to warrant a fuller exploration by the district court." Id. at 1068 (quotations omitted). The second requires "a determination by the district court that the petition does, in fact, satisfy those requirements." Id. This appeal concerns the second gate.

         B. Mr. Copeland's Guilty Plea and Sentencing

         In 2008, Mr. Copeland pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The following describes the proceedings leading to his plea and sentence.

         1. Change of Plea Hearing

         At Mr. Copeland's change of plea hearing, the district court and the parties discussed whether Mr. Copeland had at least three prior offenses that qualified him for an ACCA-enhanced sentence. The parties agreed that Mr. Copeland had two predicate serious drug offenses. See ROA, Vol. II at 13-15.

         The discussion turned to whether Mr. Copeland's 1981 conviction in California for second-degree burglary was a § 924(e) violent felony. Mr. Copeland's counsel said:

I've pulled the statutes there in California, and I was not able to get the actual judgment and sentence. You have to do that in writing, and it takes a lot of-a long time, more than I had. But out of an abundance of caution, I certainly counseled Mr. Copeland as to my concerns, and I hope I'm wrong.

Id. at 14. The district court then explained to Mr. Copeland,

[W]hat we're talking about is whether . . . second-degree burglary . . . meets the definition of a violent felony under the Armed Career Criminal Act. We won't know until the probation officer and your attorney get all the records from California, compare your conviction to the statute, compare it to the [U.S. Sentencing Guidelines ("Guidelines")] to determine whether you fall under the act or not.

Id. at 15.[2]

         The court asked the probation officer whether he had "any better information than [the court or the parties] on whether or not [the § 924(e) enhancement] applie[d]." Id. at 16. The probation officer responded that he did not, but he added that, according to an application note in U.S.S.G. § 4B1.4, "the definition of a crime of violence under the [G]uidelines is different than the one in the statute. And the one in the [G]uidelines limits burglaries to residential, but the one in the statute does not limit it." Id. at 16. The court asked, "So when we're doing Armed Career Criminal Act, we're going under the statutory definition?" The probation officer affirmed the court's understanding. Id.[3]

         The district court advised Mr. Copeland again that the "burglary charge" was a "sentencing factor[] that c[ould] enhance [his] sentence." Id. at 28. Then Mr. Copeland pled guilty, and the district court accepted his plea. Id. at 36-37. The court concluded the proceedings by advising Mr. Copeland that the probation officer would prepare a Presentence Investigation Report ("PSR"), "[a]nd if there are any issues, particularly with regard to the Armed Career Criminal Act, we'll have a sentencing hearing if that's an issue." Id. at 37-38.

         2. Presentence Investigation Report

         The PSR reported that Mr. Copeland had been convicted in 1981 of "Burglary Second Degree" in Oakland Superior Court and sentenced to one year in jail and three years on probation. ROA, Vol. III at 7. It said Mr. Copeland and two other men "used a water meter cover to break a window and enter" a California shoe store. Id. "The trio stole 104 pairs of shoes, valued at a total of $2, 600. They were apprehended due to a witness observing them run out of the store carrying large plastic bags and notifying police." Id. The PSR did not reveal the source of this information. See id.

         The PSR advised that Mr. Copeland was "an armed career criminal under the provisions of 18 U.S.C. § 924(e), due to his convictions for Burglary Second Degree" and the two serious drug offenses. Id. at 6. It did not cite to which part of § 924(e)(2)(B)(ii)-the enumerated clause or the now-unconstitutional residual clause-it relied on to categorize Mr. Copeland's California second-degree burglary conviction as a violent felony. See id.

         3. Sentencing Hearing

         At the sentencing hearing, Mr. Copeland, through counsel, stated he had no objection to the PSR. ROA, Vol. II at 43-44. The district court accepted the PSR's findings of fact. Id. at 44. It then sentenced Mr. Copeland to 180 months in prison-the statutory minimum under § 924(e)-and five years of supervised release. Id. at 50. The court did not address its basis for treating California second-degree burglary as a violent felony.

         C. Post-Conviction § 2255 Proceedings

         Mr. Copeland did not appeal[4] but filed several unsuccessful motions to challenge his sentence under 28 U.S.C. § 2255.[5] After Welch held that Johnson applies retroactively on collateral review, we granted Mr. Copeland's request to file a successive § 2255 motion to challenge his sentence on the ground that it was based on the ACCA's unconstitutional residual clause, in violation of Johnson. In re Copeland, No. 16-5075 (10th Cir. July 22, 2016). With this authorization, Mr. Copeland moved the district court under § 2255 to vacate, set aside, or correct his sentence. ROA, Vol. I at 32.

         The district court denied his motion. United States v. Copeland, No. 08-CR-0137-CVE, 2017 WL 4819108, at *4 (N.D. Okla. Oct. 25, 2017). It found "there is no possibility that [Mr. Copeland's] burglary conviction was treated as a violent felony under the residual clause." Id. at *3. The court pointed to the discussion at the change of plea hearing: "The [c]ourt advised [Mr. Copeland] that it would not know if he qualified for sentencing under the ACCA until the probation office and his attorney gathered the necessary records to determine if his conviction qualified as a generic burglary."[6] Id. (emphasis added). The court concluded: "[T]he evidence is clear that [Mr. Copeland's] conviction for second[-]degree burglary was treated as a violent felony under the enumerated offense clause of the ACCA." Id.

         Because the court found in 2017 that it sentenced Mr. Copeland in 2008 under the enumerated clause, it concluded that "Johnson has no application in this case" and that any other arguments Mr. Copeland urged were beyond the scope of our authorization of his successive § 2255 motion. Id. at *4.

         The district court entered judgment against Mr. Copeland, and Mr. Copeland timely appealed. See Fed. R. App. P. ...


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