Waagner v. United States

• Decision Date: 20 August 2020
• Docket Number: No. 19-3008,19-3008
• Parties: Clayton Lee WAAGNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

971 F.3d 647

Clayton Lee WAAGNER, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 19-3008

United States Court of Appeals, Seventh Circuit.

Argued May 20, 2020

Decided August 20, 2020

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Petitioner-Appellant

Eugene L. Miller, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Respondent Appellee

Before Sykes, Chief Judge, and Ripple and Kanne, Circuit Judges.

Ripple, Circuit Judge.

Clayton Waagner filed a second collateral attack on his sentence under 28 U.S.C. § 2255. He now claims that his classification as an armed career criminal under the Armed Career Criminal Act ("ACCA") is improper in light of the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Specifically, he challenges the classifications of his Ohio aggravated burglary convictions and Ohio attempted robbery conviction as violent felonies under the ACCA. The district court denied his motion. It concluded that, although his prior convictions for Ohio aggravated burglary no longer constitute predicate offenses for ACCA purposes under the invalidated residual clause, they still qualify as predicate offenses under the enumerated offenses clause of that statute.

We now affirm the judgment of the district court. We agree with Mr. Waagner that the advent of Johnson permits him to bring a second motion under § 2255, because prior to Johnson, any such challenge would have been futile. Nonetheless, because Ohio aggravated burglary and Ohio attempted robbery are violent felonies as that term is defined in the ACCA, the sentencing court properly adjudicated Mr. Waagner as an armed career criminal.

IBACKGROUND

A.

After a jury trial in 2000, the United States District Court for the Central District of Illinois convicted Mr. Waagner of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and of possessing a stolen vehicle that had crossed a state line, in violation of 18 U.S.C. § 2313(a). At sentencing, the district court adopted the finding of the presentence investigation report ("PSR") that Mr. Waagner was an armed career criminal under the ACCA. The ACCA mandates increased sentences for defendants who have amassed qualifying prior convictions, termed "predicate offenses." One such predicate offense is a "violent felony," defined as:

(B) any crime punishable by imprisonment for a term exceeding one year ... 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 .

18 U.S.C. § 924(e)(2)(B) (emphasis added). The Supreme Court of the United States now has held that the last clause of this provision—italicized above and known in common parlance as the "residual clause"—is unconstitutionally vague. See Johnson , 576 U.S. 591, 135 S.Ct. 2551. Consequently, under current law an offense is a violent felony within the meaning of § 924(e)(2)(B) only if it qualifies under the "elements" clause or the "enumerated offenses" clause.

The PSR, submitted in preparation for Mr. Waagner's sentencing, recited that he had at least three prior convictions that qualified as predicate offenses: two 1978 convictions for Ohio aggravated burglary and one 1992 conviction for Ohio attempted robbery. These prior offenses qualified Mr. Waagner as an armed career criminal with a sentencing guidelines range of 262 to 327 months’ imprisonment.¹ They also carried a statutory minimum imprisonment of fifteen years.

While awaiting sentencing, Mr. Waagner escaped from custody and, while a fugitive, committed various other offenses in multiple districts. After his apprehension, he pleaded guilty to a charge of escape. At sentencing, the district court imposed a sentence of 327 months’ imprisonment for the felon-in-possession charge and 120 months’ for the stolen vehicle charge, to run concurrently, and an additional 37 months’ for the escape charge. The total sentence was 364 months’ imprisonment.²

B.

Mr. Waagner's direct appeal of his conviction and sentence was not successful. See United States v. Waagner , 319 F.3d 962 (7th Cir. 2003). In 2013, he filed a § 2255 motion collaterally attacking his sentence in light of the Supreme Court's decision in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). That decision had resolved a division among the circuits about the application of the "categorical approach" employed by the courts to determine whether a prior conviction is a predicate offense under the ACCA.

In applying the categorical approach, a court compares the elements of the statute with the elements of the "generic" crime. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). If a statute's elements cover conduct broader than the elements of the generic offense, the offense does not qualify as an ACCA predicate. Id. If a statute is "divisible," that is, if there are alternative ways to violate it, a court applies the "modified categorical approach." Id. at 2249. It may look at certain documents in addition to the elements of the offense to determine which alternative formed the basis of the conviction. Id. The court then applies the categorical approach, comparing the elements of the offense of conviction (specifically, the alternative that formed the basis of conviction) with the elements of the generic offense. In Descamps , the Supreme Court held that a court may not apply the modified categorical approach—and thus may not consult additional documents outside of the elements of the offense—when a defendant is convicted under an indivisible statute. 570 U.S. at 258, 133 S.Ct. 2276.

In his first § 2255 motion, Mr. Waagner contended that his Ohio aggravated burglary convictions were actually burglary convictions. He argued that Ohio burglary, like the California burglary statute in Descamps , is broader than generic burglary and that therefore, a conviction under the Ohio statute did not qualify as a violent felony under the ACCA. The district court denied Mr. Waagner's motion. It concluded that Ohio's burglary statute is distinguishable from the statute in Descamps and that burglary under Ohio law involves the risk of physical injury to another. Thus, the court rejected Mr. Waagner's argument that his prior convictions were not predicate offenses for ACCA purposes.³

After the Supreme Court's decision in Johnson , we granted Mr. Waagner permission to file a second or successive § 2255 motion, which is the motion on appeal before us. In the successive motion, Mr. Waagner challenged his sentence in light of Johnson , which held unconstitutional the residual clause of the ACCA.

Before the district court, Mr. Waagner contended that his prior convictions for Ohio aggravated burglary qualified as predicate offenses only under the now-invalid residual clause. He therefore argued that the convictions could no longer form the basis for his classification as an armed career criminal. He further submitted that the Government could not argue that Ohio aggravated burglary falls within the scope of generic burglary under the ACCA (and thus is a predicate offense under the enumerated offenses clause). As he saw the matter, during the first § 2255 motion, the Government had conceded that Ohio aggravated burglary is not within the scope of generic burglary, and therefore it could not argue the contrary position in the second § 2255 proceedings. Mr. Waagner also contended that his prior conviction for Ohio attempted robbery did not constitute a predicate offense.

In response, the Government first argued that Mr. Waagner was not entitled to bring a second § 2255 motion. In its view, the claim did not actually arise from the Supreme Court's decision in Johnson and therefore was not based on a new rule of constitutional law, as required by the statute governing successive collateral attacks.⁴ The Government further contended that, in any event, all five of Mr. Waagner's prior convictions—including his Virginia and Georgia convictions, which the district court had not used as a basis for his ACCA classification—qualified as violent felonies.⁵

The district court determined that Mr. Waagner's claim relied on Johnson because it was not until the residual clause was invalidated that he was able to file a nonfrivolous motion for relief. Prior to Johnson , any attack on the Ohio statute under the enumerated offenses clause would have been met by the rejoinder that the convictions certainly fell under the residual clause. Nonetheless, the district court held that his prior convictions for Ohio aggravated burglary and Ohio attempted robbery were violent felonies under the ACCA. It rejected Mr. Waagner's contention that estoppel prevented the Government from arguing that aggravated burglary was not a violent felony. In its view, collateral estoppel did not apply because the relevant legal principles had changed: "[i]ndeed, if the legal principles had not changed, Waagner would not be able to bring his claim at all."⁶ The court also rejected the Government's argument that Mr. Waagner's additional prior convictions under Virginia and Georgia law constituted predicate offenses. However, because Mr. Waagner's three prior Ohio convictions qualified as violent felonies under the ACCA, the district court affirmed his status as an armed career criminal and denied his § 2255 motion.

Mr. Waagner timely appealed.

IIANALYSIS

A.

We review de novo the legal questions presented on appeal from a district court's denial of a § 2255 motion. Delatorre v. United States , 847 F.3d 837, 843 (7th Cir. 2017). We first address the Government's threshold contention that Mr. Waagner cannot bring a second or successive § 2255 motion.

Section 2255 provides...