United States v. Peppers, 081318 FED3, 17-1029
| Opinion Judge | JORDAN, Circuit Judge. |
| Party Name | UNITED STATES OF AMERICA v. RONALD PEPPERS Appellant |
| Attorney | Heidi Freese Frederick W. Ulrich [ARGUED] Tammy L. Taylor Office of Federal Public Defender Counsel for Appellant David J. Freed Carlo D. Marchioli [ARGUED] Kate L. Mershimer Office of United States Attorney Counsel for Appellee |
| Judge Panel | Before: CHAGARES, JORDAN, and FUENTES, Circuit Judges. |
| Case Date | August 13, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Third Circuit |
Argued October 12, 2017
On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. No. 1-00-cr-00105-001) District Judge: Hon. Sylvia H. Rambo
Heidi Freese Frederick W. Ulrich [ARGUED] Tammy L. Taylor Office of Federal Public Defender Counsel for Appellant
David J. Freed Carlo D. Marchioli [ARGUED] Kate L. Mershimer Office of United States Attorney Counsel for Appellee
Before: CHAGARES, JORDAN, and FUENTES, Circuit Judges.
OPINION OF THE COURT
JORDAN, Circuit Judge.
Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm. That was the mandatory minimum under the Armed Career Criminal Act ("the ACCA" or "the Act"), and the District Court imposed it because of Peppers's previous convictions. Peppers now challenges that sentence as unconstitutional in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated a clause of the ACCA - the "residual clause" - as unconstitutionally vague. He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause. But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Peppers's second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson. Because we disagree with the District Court's conclusions, we will vacate its decision and remand the case for further proceedings.
Five holdings lead to our remand. First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on post-sentencing cases (i.e., the current state of the law) to support his Johnson claim. Fourth, Peppers's robbery convictions, both under Pennsylvania's robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction. We will therefore vacate the District Court's order and remand for an analysis of whether the error that affected Peppers's sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.
I.
Facts and Procedural History
A. The Initial Trial and Subsequent Guilty Plea
This case has a long history. In 2000, Peppers was indicted for numerous federal firearms and drug offenses. Among those charges was murder with a firearm, in violation of 18 U.S.C. § 924(j). Peppers pled not guilty to all of the charges, but a jury saw things differently. It convicted him on every count, including the murder charge. He was sentenced to life imprisonment plus five years.
Peppers filed a direct appeal, challenging, among other things, the District Court's denial of his request to proceed pro se. United States v. Peppers, 302 F.3d 120, 123 (3d Cir. 2002). We concluded that the District Court erred in handling Peppers's request to represent himself, and thus we vacated the judgment and commitment order and remanded the case for a new trial.
On remand, Peppers was adamant that he did not want to go through another trial. Instead, he chose to plead guilty under Federal Rule of Criminal Procedure 11(c)(1)(C) (the "(C) plea"). As part of his plea agreement with the government, he waived indictment and pled to a one-count information charging him as an armed career criminal in possession of a .22 caliber revolver, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The charging document stated that Peppers had previously been convicted of a variety of state and federal felonies in six separate proceedings: first, in 1979, when he was a juvenile, for both armed robbery and robbery; second, in 1984 for burglary; third, in 1984 for possession of instruments of a crime; fourth, in 1985 for escape; fifth, in 1985 for armed robbery and criminal conspiracy; and sixth, in 1993 for criminal conspiracy to commit unauthorized use of an access device. Because of his admitted status as an armed career criminal, the mandatory minimum penalty for the crime to which Peppers pled guilty was fifteen years' imprisonment. The (C) plea was conditioned upon the District Court sentencing him to that minimum penalty.
The plea agreement also stated that the parties understood the United States Sentencing Guidelines applied to the offense to which Peppers was pleading guilty. Although the agreement made plain that Peppers was being convicted and sentenced as an armed career criminal under the ACCA, it failed to disclose which of the six convictions stated in the information qualified as the three predicate "violent felonies" that made him eligible for enhanced penalties under the ACCA. That Act provides, in relevant part, that "a person who violates section 922(g) … and has three previous convictions … for a violent felony … committed on occasions different from one another, … shall be fined … and imprisoned not less than fifteen years[.]" 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year … that [A] has as an element the use, attempted use, or threatened use of physical force against the person of another; or [B] is burglary, arson, or extortion, involves use of explosives, or [C] otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" Id. § 924(e)(2)(B). The parts labeled here as [A], [B], and [C] are commonly referred to, respectively, as the force or elements clause, the enumerated offenses clause, and the residual clause.
At the plea colloquy, the District Court and the parties discussed only in broad terms whether the prior convictions fell within the ACCA, as the following exchange shows:
[Peppers's Counsel]: We also agree to the applicability of the sentence enhancement under the Armed Career Criminal Act, in that the government has shown the existence of three prior convictions which meet the definitions under the Armed Career Criminal Act. So we have agreed to that, and I have explained that to Mr. Peppers. Is that correct?
… [Peppers and his attorney confer off the record.] …
The Court: At least, number one, the armed robbery and robbery and probably the burglary and the other armed robbery and criminal conspiracy would probably meet the Armed Career Criminal.
[Peppers's Counsel]: The armed robbery and robbery would definitely meet the requirements of the Armed Career Criminal Act. The burglary as stated at number two would meet the requirements of the Armed Career Criminal Act. Possession of instruments of a crime may or may not. Escape may or may not. But armed robbery definitely would.
The Court: We have got at least three there.
[Peppers's Counsel]: Correct.
(App. at 55-56.) There was no discussion concerning which of the specific ACCA clauses were thought to make three of Peppers's prior convictions "violent felonies." On August 13, 2003, the District Court accepted the (C) plea and sentenced Peppers to fifteen years in prison.
As allowed by his plea agreement, 1 Peppers filed a direct appeal challenging the constitutionality of the felon-in-possession statute he was convicted of violating, and we affirmed his conviction. United States v. Peppers, 95 Fed.Appx. 406 (3d Cir. 2004). The Supreme Court later denied his petition for a writ of certiorari. Peppers v. United States, 543 U.S. 894 (2004).
B.
Peppers's First § 2255 Motion
On November 3, 2005, Peppers filed his first motion under § 2255, collaterally attacking both his conviction and sentence. He advanced nine claims, all of which were rejected by the District Court, and Peppers appealed. We granted a certificate of appealability solely as to whether Peppers's plea counsel was ineffective for allegedly misinforming him about the ACCA's application and for failing to challenge its applicability on appeal. We ultimately determined that Peppers did not receive ineffective assistance of counsel for either reason. It was not ineffective to concede that Peppers was eligible for enhanced punishment under the ACCA and to negotiate for him to receive a sentence of fifteen years in prison, rather than having him face the potential of a life sentence, which he would have risked if all the original charges had been reinstated. Thus, we affirmed the denial of Peppers's § 2255 motion. United States v. Peppers, 273 Fed.Appx. 155, 156 (3d Cir. 2008).
C.
Peppers's Second § 2255 Motion
In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court invalidated the residual clause of the ACCA as being unconstitutionally vague. Then, in Welch v. United States, ...
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