from the United States District Court for the Northern
District of Oklahoma (D.C. Nos. 4:16-CV-00490-CVE-PJC &
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.
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.
MATHESON, PHILLIPS, and EID, Circuit Judges.
MATHESON, Circuit Judge.
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
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.
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.
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. §
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
the enumerated and residual clauses are pertinent to this
appeal. Note that "burglary" is listed as one of
the offenses in the enumerated clause.
Johnson v. United States
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.
Section 2255 and Second or Successive Motions
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).
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). "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).
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
Mr. Copeland's Guilty Plea and Sentencing
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.
Change of Plea Hearing
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
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
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
Id. at 14. The district court then explained to Mr.
[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.
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.
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.
Presentence Investigation Report
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.
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.
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.
Post-Conviction § 2255 Proceedings
Copeland did not appeal but filed several unsuccessful motions
to challenge his sentence under 28 U.S.C. §
2255. 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
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." 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.
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.
district court entered judgment against Mr. Copeland, and Mr.
Copeland timely appealed. See Fed. R. App. P.