United States v. Geozos

• Decision Date: 29 August 2017
• Docket Number: No. 17-35018.,17-35018.
• Citation: 870 F.3d 890
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David P. GEOZOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

870 F.3d 890

UNITED STATES of America, Plaintiff-Appellee,

v.David P. GEOZOS, Defendant-Appellant.

No. 17-35018.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 15, 2017 Anchorage, Alaska

Filed August 29, 2017

Bryan Schroder, William A. Taylor, Frank V. Russo, Assistant U.S. Attorneys, Jo Ann Farrington, OFFICE OF THE U.S. ATTORNEY, Federal Bldg. & U.S. Courthouse, Anchorage, AK, for Plaintiff-Appellee.

Daniel F. Poulson, FPDAK-Federal Public Defenders, Anchorage, AK, for Defendant-Appellant.

Before: Susan P. Graber, Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges.

OPINION

GRABER, Circuit Judge:

Defendant David P. Geozos appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. When Defendant was sentenced in 2007, the district court determined that he was an armed career criminal under the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. 924(e), and sentenced him to 15 years in prison—the mandatory minimum sentence under ACCA. The court found that Defendant had five convictions that qualified as "violent felonies" under ACCA, but the court did not specify whether it found each of those convictions to qualify under the "residual clause" of the statute, the "force clause," or both.¹

In Johnson v. United States (Johnson II ), ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), the Supreme Court held that "imposing an increased sentence under the residual clause of [ACCA] violates the Constitution's guarantee of due process." The Court made that rule of constitutional law retroactively applicable to cases on collateral review in Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). Before Johnson II and Welch were decided, Defendant unsuccessfully moved to vacate, set aside, or correct his sentence under § 2255. Defendant now brings a second § 2255 motion. He argues that his new motion relies on the rule announced in Johnson II and that, therefore, he may bring his motion under one of the narrow exceptions to the bar on second or successive § 2255 motions. He also argues that any reliance by the sentencing court on the now-invalidated residual clause of ACCA is not harmless, because at least three of his convictions do not qualify as "violent felonies" under any of the remaining valid ACCA clauses. We agree with Defendant on both points, and we therefore reverse.

FACTUAL AND PROCEDURAL HISTORY

In October 2006, Defendant was indicted on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and one count of felony possession of cocaine. In January 2007, Defendant pleaded guilty to both counts, and the Government agreed that it would dismiss the drug charge at sentencing.

The Presentence Investigation Report ("PSR"), prepared in advance of Defendant's sentencing hearing, stated that Defendant was "subject to an enhanced sentence" for the firearms charge under ACCA because of his criminal history. ACCA provides that "a person who violates [§] 922(g) ... and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, ... shall be fined under this title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). The PSR did not specify which of Defendant's prior convictions qualified as "violent felonies" or "serious drug offenses" for ACCA purposes. There were six convictions listed in the PSR that could conceivably have qualified: (1) a 2001 conviction for assault in the third degree in Alaska, (2) a 1992 conviction for possession of cocaine in Florida, (3) a 1992 conviction for burglary in Florida, (4) a 1981 conviction for armed robbery in Florida, (5) a 1981 conviction for robbery and for using a firearm in the commission of a felony in Florida,² and (6) another 1981 conviction for armed robbery in Florida.

The sentencing court found that Defendant qualified as an armed career criminal, but it did not specify which of the prior convictions served as the three predicate convictions. It is clear from the record that the court did not rely on the conviction for possession of cocaine,³ and it appears that the court found that all five of the other convictions qualified as convictions for "violent felonies." But the court did not say whether it found any or all of those convictions to qualify as a conviction for a violent felony under the residual clause of ACCA. On direct appeal, we affirmed Defendant's sentence, holding that the three Florida robbery convictions and the Alaska assault conviction qualified as convictions for violent felonies under ACCA and declining to decide whether the Florida burglary conviction qualified. United States v. Geozos, 286 Fed.Appx. 517, 518 n.1 (9th Cir. 2008) (unpublished).

In late 2009, Defendant filed a motion to vacate his sentence under § 2255, claiming that his lawyers had provided ineffective assistance at sentencing. United States v. Geozos, No. 3:06-cr-082-RRB-JDR, 2010 WL 4942571, at *1 (D. Alaska Nov. 24, 2010). The district court denied Defendant's motion in early 2011.

In the meantime, the Supreme Court decided Johnson v. United States (Johnson I ), 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), a case involving the interpretation of the "force clause" of ACCA. In Johnson I, the Supreme Court held that "the phrase 'physical force' " in the force clause "means violent force—that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265.

Five years later, the Supreme Court invalidated the residual clause of ACCA in Johnson II, 135 S.Ct. at 2563. Less than one year after that, in Welch, 136 S.Ct. at 1268, the Court held that the rule of Johnson II applies retroactively to cases on collateral review.

Following the Court's decision in Johnson II, Defendant sought leave of this court to file a second § 2255 motion in district court. After Welch was decided, we granted Defendant leave, and he filed his motion. The district court denied the motion. We granted a certificate of appealability, and he now brings this timely appeal.

STANDARD OF REVIEW

We review de novo a district court's decision to deny a § 2255 motion. United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).

DISCUSSION

This case presents a question that has cropped up somewhat frequently⁴ in the wake of Johnson II and Welch: When a defendant was sentenced as an armed career criminal, but the sentencing court did not specify under which clause(s) it found the predicate "violent felony" convictions to qualify, how can the defendant show that a new claim "relies on" Johnson II, a decision that invalidated only the residual clause? We address that question first. Because we hold that Defendant's claim "relies on" Johnson II, we then address the merits of the claim and consider whether the Johnson II error at Defendant's sentencing was harmless.

A. What It Means for a Claim to "Rely On" Johnson II

The threshold question is whether Defendant's claim relies on the rule announced in Johnson II such that he may bring that claim in a second or successive § 2255 motion. See United States v. Buenrostro, 638 F.3d 720, 721 (9th Cir. 2011) (per curiam) ("[T]he Anti-Terrorism and Effective Death Penalty Act of 1996 precludes [a movant] from filing a 'second or successive' § 2255 motion unless he can show either that he relies on a new rule of constitutional law, § 2255(h)(2), or 'that no reasonable factfinder would have found [him] guilty of the offense,' § 2255(h)(1)." (alteration in original)).⁵ We hold that his claim does rely on Johnson II.

The relevant exception to the bar on second or successive § 2255 motions requires a movant to show that the 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. § 2255(h)(2) (emphasis added). A claim necessarily "relies on" a rule of constitutional law if the claim is that the movant was sentenced in violation of that constitutional rule. So, to show that 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," it is sufficient for a § 2255 movant to show that (1) he or she was sentenced in violation of the Constitution and that (2) the particular constitutional rule that was violated is "new," was "previously unavailable," and was "made retroactive to cases on collateral review by the Supreme Court." Here, there is no doubt that the rule in Johnson II meets the latter requirements; the only question is whether Defendant also can show that he was sentenced in violation of the Constitution.

To answer that question, we begin by noting that a court's determination that a defendant qualifies for an ACCA enhancement is a finding. Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). As with any finding that is necessary for a conviction—or a sentencing enhancement—it is made (or not made) based on the evidence introduced to the relevant factfinder, and it is generally improper to supplement that evidence on appeal. See Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011) ("[I]t is not within our province to sentence the defendant based on considerations outside the sentencing decision. Appellate courts are not sentencing courts."); see also United States v. Petite, 703 F.3d 1290, 1292 n.2 (11th Cir. 2013) ("The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence."), abrogated on other grounds by Johnson II. And, as with any other finding, a finding that a defendant qualifies for an ACCA enhancement may be deemed to rest on a valid or an invalid legal theory.

Had the sentencing court stated that the past convictions at issue were convictions for "violent...