                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2283
                         ___________________________

                                   Roderick Colvin

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: April 18, 2019
                                 Filed: July 1, 2019
                                   [Unpublished]
                                   ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________

PER CURIAM.

       Roderick Colvin appeals the denial of his 28 U.S.C. § 2255 petition, alleging
that he lacks the requisite prior convictions to qualify for an enhancement under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), in the wake of Johnson v.
United States, 135 S. Ct. 2551 (2015). We affirm in part, reverse in part, and remand
for the district court to determine whether Colvin’s sentencing court more likely than
not relied on the ACCA’s invalidated residual clause to classify his resisting arrest
conviction as a violent felony.

       Colvin pleaded guilty in December 2008 to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). The presentence report recommended an
ACCA enhancement, citing eight prior convictions that constituted violent felonies
and serious drug offenses. The district court calculated a U.S. Sentencing Guidelines
advisory range of 188 to 235 months’ imprisonment. After initially imposing a 210-
month sentence in March 2009, the court granted the government’s motion for a
reduction and imposed a 180-month sentence, the mandatory minimum permitted
under the ACCA, in May 2010. 18 U.S.C. § 924(a)(2).

        Following the Supreme Court’s decision in Johnson, Colvin moved to vacate
his sentence under 28 U.S.C. § 2255. The government conceded that five of Colvin’s
prior convictions no longer qualified as ACCA predicate offenses, but argued that he
retained three qualifying convictions: second-degree assault; unlawful use of a
weapon—exhibiting (unlawful use), see Mo. Rev. Stat. § 571.030.1(4) (1995); and
resisting arrest, see Mo. Rev. Stat. § 575.150.1(1) (1995). Colvin contended that the
latter two offenses were no longer violent felonies and that they could not count as
separate predicate offenses because they were not committed on separate occasions.
The district court denied Colvin’s § 2255 motion and granted a certificate of
appealability on the question whether his unlawful use conviction qualified as a
violent felony.

      While his appeal was pending and after the briefs were filed, we adopted a new
standard, which requires § 2255 claimants to “show by a preponderance of the
evidence that the residual clause led the sentencing court to apply the ACCA
enhancement.” Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019)
(quoting Walker v. United States, 900 F.3d 1012, 1015 (8th Cir. 2018)). Whether a
claimant meets his burden under this standard is generally a factual question for the

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district court. Id. To determine whether the sentencing court more likely than not
relied on the residual clause, the court reviews the record and, if it is inconclusive,
controlling law at the time of sentencing. Id. at 567-68. We may review controlling
law in the first instance only “[i]f the district court determines that the record is
inconclusive, or if the parties concede that the record does not show that [the
defendant] was sentenced on the basis of the residual clause.” Lofton v. United
States, 920 F.3d 572, 574 (8th Cir. 2019). And if “the sentencing court likely relied
upon the residual clause, but the conviction qualifies as a violent felony under current
law, resentencing is not required because any error by the sentencing court would be
harmless.” Id. at 574-75.

       Without the benefit of our decisions in Walker and Golinveaux, the district
court did not determine as a factual matter whether Colvin showed by a
preponderance of the evidence that the sentencing court relied on the residual clause
in classifying his unlawful use and resisting arrest convictions as violent felonies.
Remand is unnecessary on Colvin’s unlawful use claim, however, because United
States v. Swopes, 892 F.3d 961, 962 (8th Cir. 2018) (per curiam), establishes that
such a conviction is a violent felony under current law. Accordingly, even if Colvin’s
sentencing court relied on the residual clause to classify that conviction as a violent
felony, the error is harmless because resentencing would not change his ACCA
classification. See Golinveaux, 915 F.3d at 570. The district court thus did not err
by denying relief on the basis of the unlawful use conviction.

       Remand is required on Colvin’s claim that resisting arrest qualified as a violent
felony only under the residual clause, and we exercise our authority to expand the
certificate of appealability to address this issue. See Noe v. United States, 601 F.3d




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784, 792 (8th Cir. 2010). We remand for a determination whether the residual clause
more likely than not led the sentencing court to apply the ACCA enhancement.1

      The judgment is affirmed in part, reversed in part, and remanded for
consideration of Colvin’s resisting arrest claim under the standards set forth in
Walker and Golinveaux. We decline to expand the certificate of appealability to
include the question whether Colvin’s convictions were separate offenses for ACCA
purposes.
                      ______________________________




      1
        We note that our decision to vacate the defendant’s sentence in United States
v. Shockley, 816 F.3d 1058 (8th Cir. 2016), did not rely on our discussion of resisting
arrest “by using or threatening the use of violence or physical force.” Id. at 1063
(quoting Mo. Rev. Stat. § 575.150.1(1)). We additionally note that our brief
discussion did not include an analysis of relevant Missouri case law. Id.

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