                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1623
                         ___________________________

                                   Fabian Jackson

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 16, 2018
                            Filed: December 19, 2018
                                  [Unpublished]
                                  ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

        A jury convicted Fabian Jackson of one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and he was sentenced
as an armed career criminal to 295 months’ imprisonment. We affirmed his
conviction and sentence on direct appeal. United States v. Jackson, 365 F.3d 649,
654-56 (8th Cir. 2004). Jackson’s first motion to vacate his sentence under 28 U.S.C.
§ 2255 was denied. In 2015, the Supreme Court ruled that the residual clause of the
Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Johnson v.
United States, 135 S. Ct. 2551, 2557, 2563 (2015). Subsequently, the Court held that
Johnson announced a “new rule” that is retroactive on collateral review. Welch v.
United States, 136 S. Ct. 1257, 1264-65 (2016). As a result, in November 2016, we
granted Jackson authorization for a successive § 2255 motion, in which he claimed
that his prior Missouri convictions for burglary of an inhabitable structure no longer
qualify him as an armed career criminal. In a brief order, the district court denied his
successive motion, concluding that Jackson’s § 2255 claims were procedurally
defaulted. We granted a certificate of appealability, and Jackson now appeals from
the district court’s denial of his successive § 2255 motion.

       On appeal, the Government submitted a letter stating that it “expressly
withdraws and abandons its procedural default defense, and requests that this Court
issue an opinion on the merits.” Cf. Day v. McDonough, 547 U.S. 198, 199 (2006)
(“And the Court would count it an abuse of discretion to override a State’s deliberate
waiver of the limitations defense.”). As we have explained, however, a movant first
must meet certain threshold requirements in bringing a successive § 2255 motion.
Kamil Johnson v. United States, 720 F.3d 720, 721 (8th Cir. 2013) (per curiam)
(“[T]he district court must dismiss the motion that we have allowed the applicant to
file, without reaching the merits of the motion, if the court finds that the movant has
not satisfied the requirements for the filing of such a motion.”). In particular,
§ 2255(h)(2) precludes a movant from bringing a successive motion unless it
contains “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” In authorizing
Jackson to file a successive § 2255 motion, we made a preliminary determination that
he met this requirement. See id. at 720-21. But Jackson also had to satisfy the district
court that his claim in fact relies on a new rule. See Walker v. United States, 900 F.3d
1012, 1014 (8th Cir. 2018).



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       As in Walker, it is not immediately apparent from the record whether Jackson’s
motion relies on Johnson’s new rule. The original sentencing court did not specify
whether it sentenced Jackson as an armed career criminal based on the residual clause
or another provision of the ACCA, such as the enumerated-offenses clause. Cf. id.
at 1014. Likewise, while Jackson contends that the “relevant background legal
environment” at the time of sentencing makes clear that he was necessarily sentenced
pursuant to the unconstitutionally vague residual clause, the district court’s order
denying Jackson’s successive § 2255 claim does not state whether or not the residual
clause led the sentencing court to apply the ACCA enhancement. Cf. id. at 1015. As
in Walker, we think it prudent that the district court consider this issue in the first
instance. See. id. (noting that the basis for an enhancement is “a historical fact” and
that “it is the function of the District Court rather than the Court of Appeals to
determine the facts”). Thus, we vacate the order denying Jackson’s second motion
and remand to the district court to determine in the first instance whether Jackson has
shown by a preponderance of the evidence that his successive § 2255 claim relies on
Johnson’s new rule invalidating the residual clause. The district court should proceed
to the merits only if Jackson is able to carry his burden. See Kamil Johnson, 720 F.3d
at 721.
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