and Submitted August 15, 2017 Anchorage, Alaska
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:
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
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.
AND PROCEDURAL HISTORY
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.
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,  and (6) another
1981 conviction for armed robbery in Florida.
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,  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).
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.
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.
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.
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.
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).
case presents a question that has cropped up somewhat
frequently 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