United States v. Driscoll
| Citation | 892 F.3d 1127 |
| Decision Date | 14 June 2018 |
| Docket Number | No. 16-8118,16-8118 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Chance Wade DRISCOLL, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
892 F.3d 1127
UNITED STATES of America, Plaintiff–Appellee,
v.
Chance Wade DRISCOLL, Defendant–Appellant.
No. 16-8118
United States Court of Appeals, Tenth Circuit.
June 14, 2018
Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, and Grant R. Smith, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing for Appellant.
Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Wyoming, Lander, Wyoming, appearing for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.
BRISCOE, Circuit Judge.
This is a 28 U.S.C. § 2255 challenge, under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), to an Armed Career Criminal Act (ACCA) sentencing enhancement. In 2004, Chance Wade Driscoll ("Driscoll") pleaded guilty to being a felon in possession of a firearm. At Driscoll’s sentencing in January 2005, the sentencing court1 accepted the Presentence Investigation Report’s ("PSR") determination that Driscoll was an armed career criminal based upon one previous drug conviction and two previous burglary convictions. The sentencing court did not state whether the two burglary convictions counted as violent felonies under the ACCA’s enumerated offenses clause or the residual clause. Over ten years later, Driscoll filed this § 2255 motion, arguing it was possible the sentencing court relied on the now-unconstitutional residual clause of the ACCA to enhance his sentence. The district court denied his § 2255 motion as untimely. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291, 2255(d), we REVERSE and REMAND with instructions to VACATE Driscoll’s sentence and resentence him.
I
On September 20, 2004, Driscoll pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i). In Driscoll’s PSR, the probation office determined Driscoll qualified as an armed career criminal under 18 U.S.C. § 924(e)(2)(B) due to his prior convictions under: (1) Nebraska’s burglary statute; (2) Wyoming’s burglary statute; and (3) Wyoming’s marijuana possession statute. Driscoll did not object to the PSR. On January 3, 2005, the sentencing court sentenced Driscoll to 120 months for the § 922(g)(1) conviction and 60 months for the § 924(c)(1)(A)(i) conviction, to be served consecutively. The sentencing court observed that neither party objected to the guideline calculation contained in the PSR.
At the time of Driscoll’s sentencing, a defendant qualified as an armed career criminal under the ACCA if he or she had "three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1) (2004). Congress provided the following definition of "violent felony":
(B) [T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any
act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
Id. § 924(e)(2)(B) (2004). That is, a prior conviction could serve as a predicate violent felony if it fit under (1) the elements clause ("has an element the use, attempted use, or threatened use of physical force against the person of another"); (2) the enumerated offenses clause ("is burglary, arson, or extortion, involves use of explosives"); or (3) the residual clause ("or otherwise involves conduct that presents a serious potential risk of physical injury to another"). See United States v. Hamilton , 889 F.3d 688, 691 (10th Cir. 2018).
One of Driscoll’s three predicate offenses was a prior conviction for violating the Nebraska burglary statute. At the time of Driscoll’s Nebraska burglary conviction in 1988, that statute stated:
(1) A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.
(2) Burglary is a Class III felony.
Neb. Rev. Stat. § 28-507 (1977).
More than ten years after Driscoll’s sentencing, on June 26, 2015, the Supreme Court issued Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson , the Court held that one definition of "violent felony" in the ACCA—"or otherwise involves conduct that presents a serious potential risk of physical injury to another" (otherwise known as the "residual clause")—is unconstitutionally vague. Id. at 2563. On April 18, 2016, the Court issued Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which made Johnson retroactively applicable to cases on collateral review. Id. at 1268.
On April 20, 2016 (less than one year after Johnson ), Driscoll filed his first § 2255 motion to vacate his sentence. He claimed the sentencing court enhanced his sentence under the residual clause and that, pursuant to Johnson and Welch , he was entitled to relief.
On October 10, 2016, the district court dismissed Driscoll’s § 2255 motion. The district court held that, "[b]ecause Driscoll cannot show that his sentence was enhanced under the residual clause, Johnson is inapplicable and his § 2255 motion is therefore time-barred." ROA, Vol. I, at 105. Following its order, the district court granted Driscoll a certificate of appealability. On October 11, 2016, Driscoll timely appealed.
II
"On appeal from the denial of a § 2255 motion, ordinarily ‘we review the district court’s findings of fact for clear error and its conclusions of law de novo.’ " United States v. Barrett , 797 F.3d 1207, 1213 (10th Cir. 2015) (quoting United States v. Rushin , 642 F.3d 1299, 1302 (10th Cir. 2011) ).
A. Timeliness and Procedural Default
Less than a year after the district court dismissed Driscoll’s § 2255 motion, we decided United States v. Snyder , 871 F.3d 1122 (10th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 1696, ––– L.Ed.2d –––– (2018), a case factually similar to this one.
Snyder also involved a pre- Johnson sentencing enhancement under the ACCA, and the sentencing record was unclear as to whether the Snyder sentencing court relied on the enumerated offenses clause or the residual clause to enhance Snyder’s sentence. Id. at 1124–25. Within a year following Johnson , Snyder filed a § 2255 motion, challenging his sentencing enhancement as invalid under Johnson , and arguing the record did not establish whether his sentence was enhanced under the residual clause or the enumerated offenses clause. The government argued the defendant’s motion was both untimely and procedurally barred. We rejected both arguments. Id. at 1126–28.
First, we discussed whether Snyder’s § 2255 motion was timely under § 2255(f), which "allows a § 2255 motion to be filed within one year of ‘the date on which the right asserted was initially recognized by the Supreme Court.’ " Id. at 1126 (quoting § 2255(f) ). We held:
Whether or not Snyder can ultimately prevail on his motion, he asserts the right established in Johnson , to be free from a sentence purportedly authorized by the unconstitutionally vague residual clause. Thus, his § 2255 motion, filed within a year of the Court's decision in Johnson , is timely under § 2255(f)(3).
Id. Applying Snyder , Driscoll’s § 2255 motion was timely because he asserted a Johnson claim within a year of the Court’s Johnson decision. The district court’s holding that, "[b]ecause Driscoll cannot show that his sentence was enhanced under the residual clause, Johnson is inapplicable and his § 2255 motion is therefore time-barred," ROA, Vol. I at 105, was legally erroneous. For timeliness purposes, it does not matter "[w]hether [Driscoll] can ultimately prevail on his motion." Snyder , 871 F.3d at 1126. It only matters that "he asserts the right established in Johnson ." Id.
Second, in Snyder we held
Snyder asserts, and we agree, that he has demonstrated cause and prejudice sufficient to overcome the procedural default rule....
....
As the District of Columbia Circuit has noted, "it is fair to say that no one—the government, the judge, or the [defendant]—could reasonably have anticipated Johnson ." United States v. Redrick , 841 F.3d 478, 480 (D.C. Cir. 2016).... We therefore conclude that the Johnson claim was not reasonably available to Snyder at the time of his direct appeal, and that this is
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