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United States v. Geozos

United States Court of Appeals, Ninth Circuit

August 29, 2017

DAVID P. GEOZOS, Defendant-Appellant.

          Argued and Submitted August 15, 2017 Anchorage, Alaska

         Appeal from the United States District Court for the District of Alaska D.C. Nos. 3:15-cv-00227-RRB 3:06-cr-00082-RRB-1, Ralph R. Beistline, District Judge, Presiding

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


          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), 135 S.Ct. 2551, 2563 (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, 136 S.Ct. 1257, 1268 (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.


         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 F.App'x 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 (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.

         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.


         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).


          This case presents a question that has cropped up somewhat frequently[4] 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 ...

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