Golinveaux v. United States, 17-3099

• Decision Date: 11 February 2019
• Docket Number: No. 17-3099,17-3099
• Citation: 915 F.3d 564
• Parties: Pamela GOLINVEAUX, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

915 F.3d 564

Pamela GOLINVEAUX, Petitioner - Appellant
v.
UNITED STATES of America, Respondent - Appellee

No. 17-3099

United States Court of Appeals, Eighth Circuit.

Submitted: October 16, 2018
Filed: February 11, 2019

Counsel who presented argument on behalf of the appellant was Forest David Eastman, of Clear Lake, IA.

Counsel who presented argument on behalf of the appellee was Mark Tremmel, AUSA, of Cedar Rapids, IA. The following attorney(s) appeared on the brief: Aaron J. Shileny, AUSA, of Cedar Rapids, IA.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Pamela Jo Golinveaux was sentenced as an armed career criminal. She moved to vacate her sentence under 28 U.S.C. § 2255, invoking Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The district court¹ denied her motion. She appeals. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.

In 2008, Pamela Golinveaux pleaded guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The plea agreement stipulated she is an Armed Career Criminal under§ 924(e)(1) because she had at least three prior qualifying felony convictions. The Presentence Investigation

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Report (PSR), adopted by the district court, identified six qualifying convictions for violent felonies, but did not specify whether ACCA’s residual clause or another ACCA provision (such as the force clause) supported the enhancement.

The Supreme Court in Johnson invalidated the ACCA’s residual clause, later holding Johnson ’s new rule retroactive on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1264–65, 194 L.Ed.2d 387 (2016). In April 2016, less than a year after Johnson , Golinveaux filed her first 2255 motion to vacate her sentence, claiming she no longer qualified as an armed career criminal due to Johnson . The Government conceded that two of the six prior offenses no longer qualify as violent felonies under ACCA. The district court denied relief.

A federal prisoner may collaterally attack a sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The movant bears the burden to prove each ground entitling relief. E.g. , Kress v. United States , 411 F.2d 16, 20 (8th Cir. 1969) (per curiam).

I.

While this appeal was pending, this court decided Walker v. United States , 900 F.3d 1012 (8th Cir. 2018). A 2255 movant bringing a Johnson claim must "show by a preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA enhancement." Walker , 900 F.3d at 1015 (agreeing with the First, Tenth, and Eleventh circuits). A "more likely than not" burden reflects the "importance of the finality of convictions, one of Congress’s motivations in passing the Antiterrorism and Effective Death Penalty Act." Id. at 1014. This court rejected the Fourth and Ninth circuits’ approaches that require showing only that a sentencing court "may have" relied on the residual clause. Id.See also United States v. Peppers , 899 F.3d 211, 226, 235 n.21 (3d Cir. 2018) (applying the Fourth and Ninth circuits’ "may have" standard at the gatekeeping stage, but adopting "preponderance" at the merits stage). Though Walker addressed a successive 2255 motion, two of the three cases it followed involved initial 2255 motions. Compare Dimott v. United States , 881 F.3d 232, 235 (1st Cir. 2018) (initial), and Beeman v. United States , 871 F.3d 1215, 1220 (11th Cir. 2017) (initial), with United States v. Washington , 890 F.3d 891, 893 (10th Cir. 2018) (successive). See also United States v. Driscoll , 892 F.3d 1127, 1135 & n.5 (10th Cir. 2018) (initial motion subject to "more likely than not" standard).

At the merits stage of an initial 2255 motion, Golinveaux must "show by a preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA enhancement." Walker , 900 F.3d at 1015. If she was sentenced based on the residual clause, then her "sentence was both in excess of the statutory maximum and imposed in violation of the Constitution." Cravens v. United States , 894 F.3d 891, 893 (8th Cir. 2018). A Johnson error entitles Golinveaux to relief under 2255 "unless the error was harmless." Id. , applying Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), to Johnson error in 2255 proceeding.

"Whether the residual clause provided the basis for an ACCA enhancement is a factual question for the district court." Walker , 900 F.3d at 1015, citing

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Beeman , 871 F.3d at 1224 n.5 (stating that the basis for an enhancement is "a historical fact"). The district court should first review the sentencing record. For example, "comments or findings by the sentencing judge," unobjected-to statements in the PSR, or "concessions by the prosecutor" may show which ACCA clause was the basis of an enhancement. Beeman , 871 F.3d at 1224 n.4. Reviewing these possible sources, the district court here made detailed findings of historical facts. The district court—without the benefit of the Walker opinion—did not find a precise historical fact about which clause was the basis of the enhancement. The court’s detailed findings show that the record is inconclusive. At oral argument, Golinveaux’s counsel agreed that the record does not state which ACCA clause was the basis of her sentencing enhancement.

II.

When the record is inconclusive, the second step is to determine the relevant legal environment at the time of sentencing. Driscoll , 892 F.3d at 1133. "[T]he district court may consider ‘the relevant background legal environment at the time of ... sentencing’ to ascertain whether the movant was sentenced under the residual clause." Walker , 900 F.3d at 1015, quoting Washington , 890 F.3d at 896, and citing United States v. Snyder , 871 F.3d 1122, 1129 (10th Cir. 2017) (explaining that the "relevant background legal environment is a ‘snapshot’ of what the controlling law was at the time of sentencing and does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions"). See also United States v. Taylor , 873 F.3d 476, 482 (5th Cir. 2017) (legal environment at time of sentencing established that the ACCA enhancement was necessarily based on the residual clause). Walker does not "require remand in cases which turn solely upon the background legal environment." Dembry v. United States , 914 F.3d 1185, ––––, 2019 WL 436580, at *2, No. 17-2849 (8th Cir. Feb. 5, 2019) (explaining that this court remanded Walker to the district court to review the sentencing record). Here, the district court sufficiently developed the record, which is inconclusive. This court now considers the second step.

Determining the legal environment requires a "legal conclusion" about the controlling law at the time of sentencing. Driscoll , 892 F.3d at 1133 n.3, quoting Snyder , 871 F.3d at 1128–29. This court reviews these legal conclusions de novo. Dembry , 914 F.3d at ––––, 2019 WL 436580, at *2. See generally U.S. Bank N.A. v. Village at Lakeridge, LLC , ––– U.S. ––––, 138 S.Ct. 960, 967, 200 L.Ed.2d 218 (2018) ("[T]he standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work."). " Walker does not require that the district court examine the background legal environment in the first instance." Dembry , 914 F.3d at ––––, 2019 WL 436580, at *2. As in the First, Fifth, Tenth, and Eleventh circuit cases that Walker favorably and repeatedly cites, this court may determine the legal environment at the time of sentencing.² See Walker , 900 F.3d at 1015, citing Dimott , 881 F.3d at 242 ; Taylor , 873 F.3d at 482 ; Washington , 890 F.3d at 899 ; Beeman , 871 F.3d at 1224. In those circuits, courts of appeals

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reviewing the basis of an ACCA enhancement determine the legal environment at the time of sentencing. See cases listed in the appendix to this opinion.

Based on the legal environment at the time of Golinveaux’s sentencing, she cannot carry her 2255 burden. Golinveaux concedes two of her prior convictions qualify as ACCA predicates. A third, her Iowa robbery conviction under Iowa Code § 711.1(1), also qualified. Section 711.1(1) has two elements: "(1) intent to commit a theft, and (2) an assault in carrying out the intent to commit a theft." State v. Wilson , 523 N.W.2d 440, 441 (Iowa 1994). The Iowa Supreme Court "follow[s] the definition of assault in Iowa Code section 708.1 when applying the assault alternative of robbery under Iowa Code section 711.1(1)." State v. Heard , 636 N.W.2d 227, 230 (Iowa 2001). At the time of Golinveaux’s sentencing, a person committed an assault under Iowa Code § 708.1(1) by committing an act intended to cause pain, injury, or offensive or insulting physical contact; § 708.1(2) by placing one in fear of such contact; or § 708.1(3) by displaying in a threatening manner any dangerous weapon toward another. Iowa Code § 708.1...