                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            April 4, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-6342
                                                    (D.C. Nos. 5:16-CV-00217-F
NEIL JASON WILFONG,                                   and 5:11-CR-00192-F-1)
                                                         (W.D. Oklahoma)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________


      Neil Jason Wilfong was sentenced to 300 months’ imprisonment under the

Armed Career Criminal Act (ACCA). He now challenges that sentence on habeas

review as unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015),

and argues that his conviction for making a bomb threat no longer qualifies as a

violent felony under the ACCA. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253, we reverse.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                               I.     BACKGROUND

      In 2011, Mr. Wilfong was convicted of possession of a firearm after a felony

conviction, and the government sought an enhanced sentence on the ground that Mr.

Wilfong was an armed career criminal. See United States v. Wilfong (Wilfong I), 528

F. App’x 814, 815–16 (10th Cir. 2013) (unpublished). Under the ACCA, a felon with

three or more convictions for a serious drug offense or violent felony is an armed

career criminal and faces a mandatory minimum sentence of fifteen years’

imprisonment. 18 U.S.C. § 924(e). The ACCA defines “violent felony” as an offense

which either: (1) “has as an element the use, attempted use, or threatened use of

physical force against the person of another” (the elements clause); (2) “is burglary,

arson, . . . extortion, [or] involves use of explosives” (the enumerated offenses

clause); or (3) “otherwise involves conduct that presents a serious potential risk of

physical injury to another” (the residual clause). Id. § 924(e)(2)(B). At sentencing,

the government claimed that four of Mr. Wilfong’s prior convictions were violent

felonies under the ACCA: two Oklahoma state convictions for assault with a

dangerous weapon, one Oklahoma state conviction for larceny, and one federal

conviction for using a telephone to make a bomb threat, in violation of 18 U.S.C.

§ 844(e). Wilfong I, 528 F. App’x at 819–20.

      At sentencing, Mr. Wilfong challenged his classification as an armed career

criminal, arguing that his larceny conviction could not be a violent felony because the

residual clause of the ACCA was unconstitutional and his § 844(e) bomb threat

conviction could not be a violent felony because the threat of force against another

                                           2
person was not a required element of that offense. The sentencing court rejected both

arguments. First, the court held that, under Tenth Circuit precedent, his larceny

conviction was a violent felony under the residual clause. Next, the court relied on

the factual circumstances of Mr. Wilfong’s offense—specifically, that he knew the

building he threatened was occupied—to find that his § 844(e) bomb threat

conviction was a violent felony under the elements clause. After determining that Mr.

Wilfong was an armed career criminal, the court sentenced him to 300 months’

imprisonment. Id. at 816.

       On appeal, Mr. Wilfong again argued that neither his larceny conviction nor

his § 844(e) bomb threat conviction was a violent felony under the ACCA. Id. at 819.

But he conceded that his two convictions for assault with a dangerous weapon were

violent felonies under the ACCA and thus, “only one additional conviction was

necessary to justify the [fifteen]-year minimum” sentence. Id. at 820. “[L]ook[ing] to

the clearer conviction,” a panel of this court determined that Mr. Wilfong’s larceny

conviction was a violent felony under the residual clause and upheld his sentence. Id.

at 820–21. Critically, we did not address his challenge to the § 844(e) bomb threat

conviction under the elements clause. Mr. Wilfong did not pursue certiorari review or

collateral relief at that time.

       More than two years later, in Johnson, the Supreme Court held that the

residual clause of the ACCA was unconstitutionally vague and that using it to

enhance a defendant’s sentence violated the Due Process Clause. 135 S. Ct. at 2557.

The Court cautioned, however, that its decision “does not call into question

                                           3
application of the [ACCA] to the four enumerated offenses, or the remainder of the

Act’s definition of a violent felony.” Id. at 2563. Then in Welch v. United States, the

Court held that, because the ACCA’s residual clause “can no longer mandate or

authorize any sentence,” Johnson announced a new substantive rule retroactively

applicable to cases on collateral review. 136 S. Ct. 1257, 1264–65 (2016).

      Within one year of the Supreme Court’s decision in Johnson, Mr. Wilfong

filed a § 2255 motion for habeas relief, asserting that in the absence of the residual

clause none of his prior convictions qualify as violent felonies and, therefore, he was

entitled to be resentenced. See Order, United States v. Wilfong (Wilfong II), No.

15:16-cv-00217-F, slip op. at 2 (W.D. Okla. Nov. 21, 2016). The government

conceded that, in light of Johnson, Mr. Wilfong’s prior conviction for larceny was no

longer an ACCA predicate. Id. But the government argued that Mr. Wilfong “is not

entitled to § 2255 relief because [his] remaining three convictions qualify as violent

felonies under the elements clause . . . and [his § 844(e) bomb threat] conviction[]

also qualifies under the enumerated offenses clause.” Id. The district court agreed,

first concluding that Mr. Wilfong’s two convictions for assault with a dangerous

weapon were violent felonies under the elements clause. Id. at 6. The district court

then determined that, because the sentencing court made a finding that Mr. Wilfong’s

§ 844(e) bomb threat conviction was a violent felony under the elements clause,

“Johnson is not implicated and [Mr. Wilfong] cannot challenge his federal prior

conviction under Johnson.” Id. at 7–8. Finally, the district court concluded that

because Johnson was not implicated, Mr. Wilfong’s challenge to the classification of

                                            4
his § 844(e) bomb threat conviction as a violent felony was time-barred and he was

not entitled to habeas relief or a certificate of appealability (COA). Id. at 8–9.

      Mr. Wilfong then sought a COA in this court, asserting two claims in support.

United States v. Wilfong (Wilfong III), No. 16-6342, 2017 WL 1032571, at *2 (10th

Cir. Mar. 17, 2017) (unpublished), vacated, 2017 WL 1371299 (10th Cir. Apr. 14,

2017). First, he argued that his bomb threat conviction under 18 U.S.C. § 844(e) is

not a violent felony under the ACCA. Id. Second, Mr. Wilfong argued, for the first

time, that his counsel on direct appeal was ineffective for failing to argue that the

sentencing court erred in its application of the modified categorical approach by

relying on the underlying facts, rather than the elements, of the § 844(e) bomb threat

conviction to determine that it was a violent felony. Id.

      Initially, we denied Mr. Wilfong’s application for a COA, concluding it was

not debatable among reasonable jurists whether the district court correctly ruled that

Mr. Wilfong’s § 2255 motion was untimely. Id. at *3. We reasoned that Mr. Wilfong

filed his motion more than one year from the date on which his conviction became

final, and that “Johnson is not implicated because the sentencing court concluded that

Mr. Wilfong’s § 844(e) [bomb threat] conviction is a violent felony under the

elements clause, not the residual clause.” Id.

      Mr. Wilfong then filed a Petition for Rehearing and Rehearing En Banc, in

which he argued, among other things, that “denying his § 2255 motion as untimely

violates the Suspension Clause of the United States Constitution because it divests

him ‘of his constitutional right to bring an ineffective assistance of counsel claim in a

                                            5
§ 2255 motion.’” United States v. Wilfong (Wilfong IV), 705 F. App’x 672, 675 (10th

Cir. 2017) (unpublished), vacated, Order, United States v. Wilfong (Wilfong V), No.

16-6342 (10th Cir. Oct. 25, 2017) (unpublished).

      In view of Mr. Wilfong’s Suspension Clause argument, we vacated our

previous order and granted a partial COA on his ineffective assistance of counsel

claim, but “reaffirmed our decision denying a COA on Mr. Wilfong’s ACCA claim”

on timeliness grounds. Id. at 675 (citation omitted). Analyzing his argument under

the plain-error standard, we concluded that any asserted error was not plain and held

his “motion—and his ineffective-assistance-of-appellate-counsel claim, in

particular—is untimely.” Id.

      Mr. Wilfong again filed for rehearing and rehearing en banc. Prior to our

consideration of the petition, another panel of this court issued United States v.

Snyder, 871 F.3d 1122 (10th Cir. 2017). Snyder held that “in order to be timely under

§ 2255(f)(3), a § 2255 motion [challenging an ACCA sentence] need only ‘invoke’

the newly recognized [Johnson] right.” 871 F.3d at 1126. Because Mr. Snyder

challenged his ACCA sentence by “assert[ing] the right established in Johnson,” his

motion was timely. Id. In light of Snyder, we granted Mr. Wilfong’s petition for a

COA, ordered additional briefing, and set the matter for oral argument. See Wilfong

V, slip op. at 1–2. We now address the merits of Mr. Wilfong’s § 2255 application.

                          II.    STANDARD OF REVIEW

      “On appeal from the denial of a § 2255 motion, ordinarily, we review the

district court’s findings of fact for clear error and its conclusions of law de novo.”

                                            6
Snyder, 871 F.3d at 1125. “A court’s determination that a defendant qualifies for an

ACCA enhancement is a finding . . . that rests largely on legal conclusions. . . .” Id.

at 1128–29. As such, we review the determination de novo. United States v.

Martinez, 602 F.3d 1166, 1168 (10th Cir. 2010).

                                 III.   DISCUSSION

      In the nearly three years since the Supreme Court’s decision in Johnson, courts

across the country have received thousands of motions from federal prisoners

challenging their ACCA enhancements. Even now, courts continue to grapple with

the ever-evolving legal and practical difficulties of distinguishing between movants

who are entitled to habeas relief under Johnson and movants who are not. To

evaluate the merits of these claims, this circuit has established a two-step analytical

framework under which we determine first, whether the movant’s ACCA-enhanced

sentence is erroneous under Johnson and second, whether any identified error is

harmless. See United States v. Garcia, 877 F.3d 944, 948 (10th Cir. 2017) (citing

O’Neal v. McAninch, 513 U.S. 432, 437–45 (1995)). Under the first step of our

analysis, it is the movant’s burden to make a threshold showing that his sentence is

erroneous under Johnson. See Garcia, 877 F.3d at 947–48; Snyder, 871 F.3d at 1128.

Because Johnson only invalidated the residual clause of the ACCA, the movant’s

sentence is erroneous only if it relied on or was authorized by the residual clause. See

id. If a movant can make this showing, the burden shifts to the government to prove

that reliance on the residual clause was harmless. See Garcia, 877 F.3d at 948 (citing

O’Neal, 513 U.S. at 437–45). In the Johnson context, erroneous reliance on the

                                            7
residual clause is only harmless if the government can prove that, even without

relying on the invalidated residual clause, the movant has three qualifying ACCA

predicate offenses. See id. at 947–48.

      We now apply this framework to Mr. Wilfong’s claim, keeping in mind three

key points unique to his case: first, it is clear from the record which clause the

sentencing court relied on for finding his larceny and § 844(e) bomb threat

convictions violent felonies; second, Mr. Wilfong challenged both the

constitutionality of the residual clause and the classification of his § 844(e) bomb

threat conviction as a violent felony under the elements clause at sentencing and on

direct appeal; and third, this court upheld Mr. Wilfong’s sentence solely on the

ground that the larceny offense was a violent felony under the residual clause.

                    A. Sentence Relied on the Residual Clause

      Several guiding principles govern our determination of whether the movant

can successfully show erroneous reliance on the residual clause. First, whether the

movant’s sentence relied on the residual clause is a question of historical fact that

asks whether the sentencing court imposed the ACCA sentence based on the residual

clause at the time of sentencing, not whether the challenged offense would qualify as

an ACCA predicate offense under current law. See Snyder, 871 F.3d at 1128–29; see

also United States v. Buck, ___ F. App’x ___, 2017 WL 5615844, at *3 & n.3 (10th

Cir. Nov. 21, 2017) (unpublished) (finding it irrelevant that arson might not qualify

as an enumerated offense under current law because “at the time of sentencing, there

would have been ‘little dispute’ . . . [the] convictions fell within the scope of the

                                            8
ACCA’s enumerated-offense clause”). Second, the accuracy of a sentencing court’s

determination that a prior offense is an ACCA predicate under the elements or

enumerated offenses clause is generally not within the scope of a Johnson challenge.

See Stanley v. United States, 827 F.3d 562, 565 (7th Cir. 2016) (“Johnson does not

have anything to do with the elements clause, . . . and § 2255(f)(3) therefore does not

afford prisoners a new one-year period to seek collateral relief on a theory that the

elements clause does not apply to a particular conviction.”). Finally, when the record

is unclear as to which clause the sentencing court relied upon (the court’s clausal

basis or classification), we look to the “relevant background legal environment at the

time of sentencing,” i.e., “what the controlling law was at the time of sentencing,” to

determine the clausal basis of the sentencing court’s decision. Snyder, 871 F.3d at

1129. This test is applicable, however, only when the record is silent, and the sole

question before the reviewing court at this stage is whether the sentencing court

relied on the residual clause.

      The government argues that Mr. Wilfong’s claim fails on the merits because

“the record is clear that the sentencing court qualified Mr. Wilfong’s prior [§ 844(e)]

bomb threat conviction under the elements clause.” Aplee. Oral Arg. Resp. at *4.

Thus, the government continues, Mr. Wilfong is not entitled to relief because he

cannot show that his sentence relied on the residual clause.1 At first blush, the

government’s argument is compelling. Indeed, we have consistently denied habeas

      1
       Although the government initially raised a timeliness argument, it has
conceded that Mr. Wilfong’s Johnson claim is timely under United States v. Snyder,
871 F.3d 1122 (10th Cir. 2017).
                                            9
relief where it is clear a sentencing court’s ACCA classification relied on the

elements clause or enumerated offenses clause. See, e.g., United States v. Safford,

707 F. App’x 571, 573 (10th Cir. 2017) (unpublished) (concluding defendant’s

challenge that his burglary conviction no longer qualified as an ACCA predicate was

not a Johnson claim, but rather an attempt “to leverage the irrelevant Johnson

decision to enable him to apply Mathis[v. United States, 136 S. Ct. 2243 (2016),]

retroactively”); United States v. Westover, 713 F. App’x 734, 736–37 (10th Cir.

2017) (unpublished) (rejecting the argument that defendant’s “burglary convictions

were too broad to fit under the ACCA’s enumerated-offenses clause, so the district

court must have determined they were residual clause offenses”); United States v.

Smith, 712 F. App’x 789, 790–91(10th Cir. 2017) (unpublished) (denying a COA to

defendant where the sentencing court clearly relied on the elements and enumerated

offenses clauses despite the offenses failing to meet those clauses under current law).

Upon closer review, however, it is apparent that under the unique circumstances of

this case, Mr. Wilfong’s ACCA sentence was dependent upon the residual clause.

      Although an ACCA sentence requires only three predicate offenses, the

sentencing court here relied on four of Mr. Wilfong’s prior convictions: two for

assault with a dangerous weapon, which Mr. Wilfong does not challenge; one for

larceny, which the sentencing court classified as a violent felony under the residual

clause; and one under § 844(e) for making a bomb threat, which the sentencing court

classified as a violent felony under the elements clause. Wilfong I, 528 F. App’x at

819–20. As a result, even though the sentencing court identified a residual clause

                                          10
offense as one of his prior offenses, Mr. Wilfong’s sentence was not necessarily

authorized or mandated by the residual clause. Rather, it might have been supported

by the three convictions the sentencing court identified as predicate offenses under

the elements clause or enumerated offenses clause. See Westover, 713 F. App’x at

736 & n.1 (holding that Mr. Westover was not entitled to relief under Johnson

because his three burglary offenses qualified as violent felonies under the enumerated

offenses clause without considering whether the additional predicate offenses of

escape and attempted escape identified in the PSR could have counted toward his

sentence); United States v. Cherry, 641 F. App’x 829, 833 (10th Cir. 2016)

(unpublished) (holding that Mr. Cherry was not entitled to be resentenced because the

sentencing court explicitly found that his prior robbery conviction qualified as a

violent felony under both the residual and enumerated offenses clause). And, as the

government notes, we do not allow movants to “use Johnson’s retroactivity as a back

door way of attacking prior convictions that qualified under the elements [or

enumerated offenses] clause.” Appellee’s Resp. to Appellant’s Pet. for Reh’g and

Reh’g En Banc at *8 (Sept. 14, 2017); see Snyder, 871 F.3d at 1130; United States v.

Geozos, 870 F.3d 890, 895 (9th Cir. 2017).

      Although the government is correct that this might be fatal to a Johnson claim

in other contexts, Mr. Wilfong challenged the classification of his § 844(e) bomb

threat conviction as a violent felony both at sentencing and on appeal. The sentencing

court rejected both challenges and relied on all four of Mr. Wilfong’s convictions to

support the ACCA enhancement. But on appeal, we upheld Mr. Wilfong’s conviction

                                          11
solely on the larceny charge, which we identified as a violent felony under the

residual clause. Wilfong I, 528 F. App’x at 820–21. By doing so, we avoided the

question of whether the § 844(e) bomb threat conviction was also a violent felony. As

a result, Mr. Wilfong’s ACCA sentence—unlike the sentences in Smith, Westover,

and Cherry—was authorized by reliance on the residual clause.2

      Because Mr. Wilfong’s sentence relied on and was authorized by the residual

clause, he has met his burden to show error under the first step of our analysis.

                                 B. Harmless Error

      Having determined that Mr. Wilfong’s enhanced ACCA sentence rested on an

error, the burden shifts to the government to prove that the error was harmless. A

Johnson error is harmless only if the government can identify three qualifying

predicate offenses, without relying on the residual clause. See Garcia, 877 F.3d at

947–48; United States v. Mitchell, 653 F. App’x 639, 642 (10th Cir. 2016)

(unpublished). Mr. Wilfong does not challenge the classification of his assault with a

dangerous weapon convictions as violent felonies, and the government has conceded

that his larceny conviction no longer qualifies as an ACCA predicate. So, Mr.

Wilfong’s § 844(e) bomb threat conviction must serve as a third predicate offense


      2
        We note that, in a typical Johnson case, the sentencing court’s ACCA
determination is dispositive. A departure from this principle is warranted here only
because the panel in Mr. Wilfong’s direct appeal relied solely on the larceny
conviction to affirm Mr. Wilfong’s sentence, and did so under the residual clause.
Had the panel used both the larceny and § 844(e) bomb threat convictions to affirm
the ACCA enhancement, Mr. Wilfong would be unable to make the threshold
showing that his sentence erroneously relied on or was authorized by the residual
clause.
                                          12
under the elements clause or enumerated offenses clause for the error to be harmless.

See Garcia, 877 F.3d at 946–47 (finding Johnson error was harmless where the

government could “substitute” the invalid residual clause conviction relied on at

sentencing with the defendant’s prior conviction for a valid predicate offense under

the elements clause).

      Before we analyze the merits of this claim, we must determine our standard of

review. The government argues the sentencing court’s determination that Mr.

Wilfong’s § 844(e) bomb threat conviction qualifies as a violent felony under the

elements clause is dispositive; thus, any reliance on the residual clause with respect

to the larceny conviction was harmless. In essence, the government asks us to accept

the sentencing court’s clausal classification of Mr. Wilfong’s prior convictions when

analyzing harmless error in the same way that we defer to its express reliance on the

residual clause as satisfying the first part of the analysis. We decline to do so for

several reasons.

      First, the two parts of our Johnson analysis present different inquiries. The

first question asks, as a matter of historical fact, whether the sentencing court relied

on the residual clause in imposing the ACCA sentence. See Snyder, 871 F.3d at 1129.

Our sole objective at that first stage of the analysis is to determine what the

sentencing court did—even if that decision would be erroneous under current law.

See id. at 1129–30. The answer to this question determines whether the movant is

entitled to seek relief under Johnson at all. In contrast, the second part of our analysis

tasks us with deciding whether an identified error is harmless as a matter of law. See

                                           13
Garcia, 877 F.3d at 948. That is, we must decide whether the sentencing court’s

reliance on the now-invalidated residual clause prejudiced the movant. Our

determination is not what the sentencing court did; it is whether the classification of

the movant as an armed career criminal is correct. The government bears the burden

of proof on this issue. See id.

         The second reason we do not defer to the sentencing court’s classification of

offenses as violent felonies on harmless error review is that, unlike the sentencing

court’s historical basis for its imposition of an ACCA sentence, our analysis of the

correctness of the ACCA sentence occurs under current law. See id. at 948–49

(analyzing whether New Mexico’s robbery statute is a violent felony under current

law); see also Geozos, 870 F.3d at 897–98 (citing Schriro v. Summerlin, 542 U.S.

348, 351–52 (2004); Bousley v. United States, 523 U.S. 614, 618–21 (1998); Rivers v.

Roadway Express, Inc., 511 U.S. 298, 312–13 (1994); Harper v. Va. Dep’t of

Taxation, 509 U.S. 86, 97 (1993)). Finally, even on a motion for habeas relief,

“[w]hether a prior conviction satisfies the ACCA’s violent felony definition is a legal

question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263 (10th Cir.

2017).

         Having decided that the sentencing court’s classification of Mr. Wilfong’s

§ 844(e) bomb threat conviction is not entitled to deference, we now analyze de novo

whether the offense is a violent felony under the ACCA. At oral argument, the

government conceded that Mr. Wilfong’s § 844(e) bomb threat conviction “is not a

violent felony under the elements clause,” Oral Arg. at 23:33–23:53, and we accept

                                            14
this apt concession. Instead, the government relies on the “involves use of

explosives” section of the enumerated offenses clause. As a result, Mr. Wilfong’s

classification as an armed career criminal is dependent on whether the § 844(e) bomb

threat conviction is a violent felony under the ACCA’s enumerated offenses clause.

       The phrase “involves use of explosives” is not defined in the ACCA. See 18

U.S.C. § 924(e)(2)(B)(ii). The government argues that a threat to use explosives

“involves use of explosives” for ACCA purposes, and Mr. Wilfong’s § 844(e) bomb

threat conviction therefore qualifies as a violent felony.3 In support, the government

cites United States v. Shannahan, which held, for purposes of 18 U.S.C. §§ 2113(a)

and (d),4 a bank robber who threatens a teller with a bomb that does not actually exist


       3
         Mr. Wilfong argues that the government waived its enumerated offenses
clause argument by failing to raise the argument in its initial briefing to this court and
by disclaiming any reliance on the enumerated offenses clause in its sentencing
memorandum. See ROA vol. 1 at 67 (“[T]hreatening or conveying false information
to destroy an unoccupied building by means of an explosive or fire would suffice as
conduct that violates [18 U.S.C. § 844(e)], but [does] not constitute a crime of
violence/violent felony.”). Because we conclude the government’s enumerated
offenses argument fails on the merits, we do not decide the waiver issue. See United
States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014) (“Because [the defendant’s]
SORNA claim fails on the merits, this court exercises its discretion to bypass the
relatively complex waiver issue and resolve [the defendant’s] appeal on the merits.”);
Planned Parenthood of Kansas & Mid-Missouri v. Moser, 747 F.3d 814, 837 (10th Cir.
2014) (“Waiver . . . binds only the party, not the court. . . . [I]t is well-settled that courts
have discretion to raise and decide issues sua sponte, even for the purpose of reversing a
lower-court judgment.”).
       4
           Title 18, United States Code, Section 2113 states:

       (a) Whoever, by force and violence, or by intimidation, takes, or attempts to
       take . . . [any]thing of value belonging to, or in the care, custody, control,
       management, or possession of, any bank, credit union, or any savings and
       loan association; or
                                              15
“puts in jeopardy the life of [a] person by the use of a dangerous weapon or device.”

605 F.2d 539, 541 (10th Cir. 1979). We are not convinced Shannahan is controlling

here. Instead, we take guidance from the Supreme Court’s decision in Bailey v.

United States, 516 U.S. 137 (1995).

      In Bailey, the Court considered the meaning of “use” in 18 U.S.C. § 924(c)(1),

which at that time imposed increased penalties if the defendant “used” a firearm

during certain crimes. 516 U.S. at 148. The Court concluded that “use” as for

purposes of the statute, includes only “active employment of a firearm,” not mere

possession.5 Id. at 144. The decision in Bailey was superseded by a subsequent

amendment to § 924(c)(1) that added “possession” to the statute. Welch, 136 S. Ct. at

1267 (noting that “Congress could (and later did) reverse Bailey by amending the

statute to cover possession as well as use”). Nonetheless, the Supreme Court’s

reasoning in Bailey suggests that the enumerated offenses clause’s reference to any


      ...
      (d) Whoever, in committing, or in attempting to commit, any offense
      defined in subsections (a) and (b) of this section, assaults any person, or
      puts in jeopardy the life of any person by the use of a dangerous weapon or
      device, shall be fined not more than $10,000 or imprisoned not more than
      twenty-five years, or both.

18 U.S.C. §§ 2113(a), (d) (emphasis added).
      5
         A conviction for using a telephone to make a bomb threat does not even
require possession of explosives. See 18 U.S.C. § 844(e) (providing that any person
who “through the use of the . . . telephone . . ., willfully makes any threat . . .
concerning an attempt or alleged attempt . . . to kill, injure, or intimidate any
individual or unlawfully to damage or destroy any building, vehicle, or other real or
personal property by means of fire or an explosive” will be fined and/or imprisoned
for up to ten years).

                                          16
offense that “involves the use of explosives” requires “active employment” of the

explosives. See United States v. Bowler, 422 F. App’x 687, 694 (10th Cir. 2011)

(unpublished) (“We decline the government’s suggestion to ascribe to ‘involving the

use of’ a meaning that would require no more than manufacture or possession.”).

       Further, the statutory language of § 924(e)(2)(B)(i)–(ii), which criminalizes

certain uses of a firearm, demonstrates legislative intent to distinguish between active

use and threatened use. The elements clause expressly includes “the use, attempted

use, or threatened use of physical force.” See 18 U.S.C. § 924(e)(2)(B)(i) (emphasis

added) (stating that “violent felony” includes any crime that “has an element the use,

attempted use, or threatened use of physical force against the person of another”). In

contrast, the enumerated offenses clause is limited to offenses which “involve[] use

of explosives,” but does not say anything about threatened use. Id. at

§ 924(e)(2)(B)(ii). Under “standard principle[s] of statutory interpretation . . .[,]

‘where Congress includes particular language in one section of a statute but omits it

in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.’” United States v.

Pauler, 857 F.3d 1073, 1076 (10th Cir. 2017) (quoting Russello v. United States, 464

U.S. 16, 23 (1983)). Despite the statutory exclusion of threatened use from the

enumerated offenses clause, the government asks us to interpret the “involves use of

explosives” language as including both the actual use and the threatened use of

explosives. But doing so is contrary to well-established rules of statutory

interpretation. See Pauler, 857 F.3d at 1077 (“‘[S]upplying omissions transcends the

                                            17
judicial function,’ Nichols v. United States, 136 S. Ct. 1113, 1118 (2016), and

‘drawing meaning from silence is particularly inappropriate when Congress has

shown that it knows how to address an issue in express terms,’ Kimbrough v. United

States, 552 U.S. 85, 103 (2007).”). If Congress had intended to include offenses

involving the threatened use of explosives as a violent felony under the enumerated

offenses clause, it could have said so.6

       For these reasons, we hold that Mr. Wilfong’s conviction for making a threat

as to an explosive device in violation of 18 U.S.C. § 844(e) is not a violent felony

under the ACCA. Mr. Wilfong therefore does not have three prior violent felony

offenses as required to classify him as an armed career criminal. The erroneous

reliance on the residual clause at Mr. Wilfong’s sentencing is not harmless and he is

entitled to relief.7



       6
          Our conclusion is further supported by decisions from our sibling circuits
discussing the “use of explosives” in the ACCA context. See United States v. Flores,
477 F.3d 431, 436 (6th Cir. 2007) (“Section 924(e)(2)(B)(ii) . . . provides that the use—
rather than the possession—of explosives is conduct that rises to the level of a violent
felony.”); United States v. Alexander, 217 F. App'x 417, 421 (6th Cir. 2007)
(unpublished) (“[T]he enumerated ‘violent felonies’—burglary, arson, extortion, use of
explosives—all typically require the offender to engage in active conduct. . . . [A]n
individual who merely possesses explosives or possesses a match would not commit a
‘violent felony[.]’”); United States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994)
(§ 924(e)(2)(B)(ii) “requires that the use—rather than possession—of explosives gives
rise to a potential violent felony”); see also United States v. Davis, 202 F.3d 212, 220
(4th Cir. 2000) (relying on Bailey to conclude that the “use of explosive[s]” enhancement
under the Sentencing Guidelines “requires ‘active employment’ of explosives”).
       7
        Because we grant Mr. Wilfong relief on the merits of his Johnson claim, we
do not address his related ineffective assistance of appellate counsel claims.

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                              IV.   CONCLUSION

      We REVERSE the district court’s denial of Mr. Wilfong’s § 2255 motion and

remand the case for resentencing.

                                        Entered for the Court


                                        Carolyn B. McHugh
                                        Circuit Judge




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