Submitted: October 16, 2018
from United States District Court for the Northern District
of Iowa - Waterloo
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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, 135 S.Ct. 2551
(2015). The district court denied her motion. She appeals. Having
jurisdiction under 28 U.S.C. §§ 1291 and 2253, this
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 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
Supreme Court in Johnson invalidated the ACCA's
residual clause, later holding Johnson's new
rule retroactive on collateral review. Welch v. United
States, 136 S.Ct. 1257, 1264-65 (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.
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).
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 United States v.
Beeman, 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"
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 (1993), to Johnson error in 2255
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
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.
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, 2019 WL
436580, at *2No. 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.
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, 2019 WL 436580,
at *2. See generally U.S. Bank N.A. v. Village at
Lakeridge, LLC, 138 S.Ct. 960, 967 (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, 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. 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 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.
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 (2002). Consulting
unobjected-to statements in the PSR, the district court found
Golinveaux committed assault under either § 708.1(1) or
§ 708.1(3). Cf. United States v.
Garcia-Longoria, 819 F.3d 1063, 1067 (8th Cir. 2016).
legal environment at the time of Golinveaux's sentencing
establishes that assault under either § 708.1(1) or
§ 708.1(3) qualified as an ACCA predicate under the
force clause. See United States v. Smith, 171 F.3d
617, 621 (8th Cir. 1999) (offense charged under Iowa Code
§ 708.1(1) has an element of physical force within the
meaning of similar force provision in 18 U.S.C. §
921(a)(33)(A)(ii)); United States v. McDile, 914
F.2d 1059, 1061-62 (8th Cir. 1990) (violation of Missouri
statute similar to § 708.1(3) is a violent felony under
ACCA force clause because it "involv[es] the use,
attempted use, or threatened use of physical force against
the person of another"). Cf. Snyder, 871 F.3d
at 1129-30 (Wyoming burglary qualifies as predicate under
ACCA enumerated offenses clause because pre-sentencing case
found similar Missouri burglary qualifies as predicate under
ACCA enumerated offenses clause). "[G]iven the relevant
background legal environment that existed at the time of
[Golinveaux's] sentencing, there would have been no need
for reliance on the residual clause." Id. at
1130. See Walker, 900 F.3d at 1015, quoting
Washington, 890 F.3d at 898-99 ("[I]t is not enough
for [a movant] to show that . . . 'the residual clause
offered the path of least analytical resistance.'").
short, neither the relevant background legal environment nor
the materials before the district court reveal that the court
more likely than not used the residual clause . . . in
sentencing." Washington, 890 F.3d at 900-01.
Golinveaux is unable "to show by a preponderance of the
evidence that the residual clause led the sentencing court to
apply the ACCA enhancement." Walker, 900 ...