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

                             FOR THE TENTH CIRCUIT                          October 31, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-8013
                                                (D.C. Nos. 1:16-CV-00112-SWS and
MICHAEL BRADLEY WESTOVER,                             2:04-CR-00171-CAB-4)
                                                             (D. Wyo.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before McKAY, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

      Michael Bradley Westover appeals from a district court order that dismissed his

28 U.S.C. § 2255 motion to vacate the sentence he received under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e). Exercising jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we vacate the district court’s decision and remand with directions

that Mr. Westover’s motion be denied rather than dismissed.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 May 2006, Mr. Westover pled guilty to one count of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). A conviction for that offense carries a

baseline statutory maximum sentence of 10 years. See id. § 924(a)(2). But because

Mr. Westover had three or more prior convictions “for a violent felony or a serious drug

offense, or both,” he was subject to the ACCA’s 15-year minimum sentence. See id.

§ 924(e)(1). When Mr. Westover was sentenced in 2006, the ACCA defined a “violent

felony” as an offense that (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, or 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). 18 U.S.C. § 924(e)(2)(B).

       The Probation Office’s presentence report (PSR) identified six ACCA predicate

convictions based on the following offenses: three Wyoming burglaries, one cocaine

distribution, an escape, and an attempted escape.1 In his written objections to the PSR,

Mr. Westover argued that some of his 1985 burglary convictions were not violent




       1
         When Mr. Westover was sentenced, escape convictions were routinely held
to fall within the ACCA’s residual clause. See, e.g., United States v. Moudy, 132
F.3d 618, 620 (10th Cir. 1998). The Supreme Court later clarified that escape-related
convictions do not automatically support an ACCA enhancement. See Chambers v.
United States, 555 U.S. 122, 124 (2009). In deciding Mr. Westover’s appeal, we do
not consider whether his escape-related convictions could have counted toward his
ACCA sentence.

                                             2
felonies under the ACCA because they did not involve a dwelling or a threat of violence.2

The Probation Office responded, stating that “any generic burglary qualifies, and the

analysis is not limited to burglaries of dwellings. See Taylor v. United States, 110 S. Ct.

2143 (1990).” R., Vol. III at 19.3

       At the July 2006 sentencing hearing, Mr. Westover’s counsel did not mention his

prior written objection to the PSR. Instead, he argued that although Mr. Westover

“qualifie[d] technically as an armed career offender” under the Sentencing Guidelines,

the ACCA was not “appropriately applied in his case.” R., Vol. II at 38. He argued for a

lesser sentence based on Mr. Westover’s mental-health issues, childhood trauma, drug

use, and non-violent behavior. The district court noted that counsel had not addressed

“the subject of objections to the [PSR],” and it then summarily overruled them. Id. at 42.

After hearing allocution, the court sentenced Mr. Westover to the 15-year minimum

required by the ACCA. Mr. Westover did not appeal.

       Almost ten years later, in May 2016, Mr. Westover filed the instant § 2255 motion

to vacate his ACCA sentence. He contended that his burglary convictions were too broad

to fit under the ACCA’s enumerated-offenses clause, so the district court must have


       2
        The scope of his objection is unclear. It has not been included in the record.
We assume that he objected to at least two of his burglary convictions because if his
objection covered only one, his drug offense and remaining (unchallenged) two
burglary convictions would have been sufficient to support an ACCA enhancement.
       3
        In Taylor, the Supreme Court held that the ACCA’s sentencing enhancement
applies to burglary convictions “if [the defendant] is convicted of any crime,
regardless of its exact definition or label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” 495 U.S. at 599.
                                             3
determined they were residual clause offenses. He then pointed out that the Supreme

Court has declared the ACCA residual clause to be unconstitutionally vague. See

Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (holding that “[i]ncreasing a

defendant’s sentence under the [residual] clause denies due process of law” because the

“clause both denies fair notice to defendants and invites arbitrary enforcement by

judges”); Welch v. United States, 136 S. Ct. 1257, 1268 (2016) (holding that Johnson

applies retroactively in cases on collateral review).

       The district court rejected Mr. Westover’s arguments, determining that (1) “the

sentencing court relied on the enumerated offenses clause” and (2) “at the time of [Mr.

Westover’s] sentencing in 2006, his prior [burglary] convictions properly counted under

the ACCA’s enumerated offenses clause.” R., Vol. I at 187, 189. The court thus

concluded that, without a sentence tied to the invalidated residual clause, Mr. Westover

could not seek relief under Johnson. It further held that this conclusion rendered his

§ 2255 motion untimely. See 28 U.S.C. § 2255(f) (prescribing a one-year limitations

period). The district court granted Mr. Westover a certificate of appealability.

                                       II. DISCUSSION

       Mr. Westover argues that a Johnson error occurred because “the ACCA [gave] the

sentencing court the option of applying the residual clause.” Aplt. Opening Br. at 13.

Similarly, he claims error because “the residual clause potentially played a role in his

sentencing” in that “[i]t is impossible to tell from the sentencing record whether the

sentencing court found that his burglary predicates fell under the enumerated clause, the

elements clause, or the residual clause.” Id. at 9.

                                              4
                      A. Standard of Review and Legal Background

       “[W]e review the district court’s legal rulings on a § 2255 motion de novo and its

findings of fact for clear error.” United States v. Miller, 868 F.3d 1182, 1186 (10th Cir.

2017) (internal quotation marks omitted). “A court’s determination that a defendant

qualifies for an ACCA enhancement is a finding,” albeit one “that rests largely on legal

conclusions.” United States v. Snyder, 871 F.3d 1122, 1128-29 (10th Cir. 2017)

(brackets and internal quotation marks omitted).

       In Snyder, this court recently articulated the framework to evaluate Johnson claims

like Mr. Westover’s: We examine “both the record before the sentencing court and the

relevant background legal environment at the time of sentencing” to determine whether

an ACCA sentence was based on the residual clause. Id. at 1128-29 (internal quotation

marks omitted).4

                                         B. Analysis

       We reject Mr. Westover’s argument, as inconsistent with Johnson and Snyder, that

the sentencing court’s mere “option” of applying the ACCA’s residual clause constitutes

a Johnson error. First, Johnson involved an actual application of the residual clause—the

imposition of an ACCA sentence based on a prior unlawful possession of a short-barreled

shotgun. See Johnson, 135 S. Ct. at 2556. Second, Snyder calls for a record and legal


       4
        Mr. Westover’s reliance on In re Chance, 831 F.3d 1335 (11th Cir. 2016), to
argue he has no burden to show he was in fact sentenced under the ACCA’s residual
clause is misplaced. We must follow the analytical framework established in Snyder.




                                             5
review to determine whether the sentencing court relied on the residual clause for the

ACCA sentence. We therefore turn to the Snyder analysis.

1. The Sentencing Record

       The record shows that the sentencing court relied on the enumerated offenses

clause to find that Mr. Westover’s burglary convictions were violent felonies and

qualified as predicates for an ACCA sentencing enhancement. The PSR (1) noted the

ACCA’s applicability, R., Vol. III at 8; (2) detailed the circumstances of Mr. Westover’s

three burglary convictions, which involved “a dwelling,” a “High School,” and “a

building,” id. at 10; and (3) rejected Mr. Westover’s attempt to avoid the ACCA by

objecting that some of his burglaries did not involve a dwelling or a threat of violence, id.

at 18-19. The PSR considered the crimes as burglaries, not as whether they “otherwise

involve[d] conduct that presents a serious potential risk of physical injury to another,”

18 U.S.C. § 924(e)(2)(B) (the residual clause). Indeed, the probation officer who

prepared the PSR expressly characterized the crimes as “generic burglar[ies].” R., Vol.

III at 19.

       Further, at Mr. Westover’s sentencing hearing, the court overruled Mr. Westover’s

objections to the PSR “for [the] reasons stated by the probation officer.” R., Vol. II at 42.

Defense counsel disputed neither the probation officer’s characterization of the crimes as

generic burglaries nor the court’s reliance on that characterization.

       Finally, no reference to the residual clause appears anywhere in the PSR or in the

sentencing transcript. Nor is there any discussion as to whether the burglaries might



                                              6
qualify as ACCA predicate offenses because they posed a “risk of physical injury” to

others.

          The record thus demonstrates that the sentencing court viewed Mr. Westover’s

burglary convictions as falling squarely in the ACCA’s enumerated-offenses clause—

which specifically lists “burglary” as the first of four such offenses.

2. Legal Environment

          The relevant background legal environment at the time of sentencing likewise

shows that Mr. Westover was sentenced under the enumerated-offenses clause. Taylor

provided well-established Supreme Court precedent on burglary under the ACCA when

Mr. Westover’s sentencing proceeding occurred. Taylor addressed the meaning of

“burglary” in the ACCA’s enumerated-offenses clause, holding that it covers “generic”

burglary; i.e., any “unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” 495 U.S. at 599.

          To determine whether an offense constitutes generic burglary, Taylor explained

that a court should generally use a categorical approach, “look[ing] only to the fact of

conviction and the statutory definition of the prior offense.” Id. at 602. Taylor provided

for a modified categorical approach when the statute “define[s] burglary more broadly,

e.g., by . . . including places, such as automobiles and vending machines, other than

buildings.” Id. at 599. This approach is relevant here, given that Wyoming’s burglary

statute included entry of “occupied structure[s] or vehicle[s].” Wyo. Stat. Ann. § 6-3-

301(a) (emphasis added).



                                              7
       In such cases, Taylor said a court may examine “the indictment or information and

jury instructions” to ascertain whether the defendant was convicted of a generic burglary

offense that would justify a sentence enhancement. Taylor, 495 U.S. at 602. When the

defendant entered a guilty plea, that examination may include “the terms of the charging

document, the terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the defendant, or to

some comparable judicial record of this information.” Shepard v. United States, 544 U.S.

13, 26 (2005) (plurality opinion).

       This legal background shows the sentencing court determined that Mr. Westover’s

burglary convictions were for generic burglaries, as the charging documents referenced

entries of “a dwelling,” a high school “building,” and another “building.” R., Vol. I at

16, 20. The PSR detailed the contents of these documents, and Mr. Westover tendered no

objection to their consideration.5



       5
         “[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of
what the controlling law was at the time of sentencing and does not take into account
post-sentencing decisions that may have clarified or corrected pre-sentencing
decisions.” Snyder, 871 F.3d at 1129 (emphasis added). For instance, in Descamps
v. United States, 133 S. Ct. 2276 (2013), the Supreme Court clarified that the
modified categorical approach can be used only when a statute is “divisible,” such
that it defines the crime “alternatively, with one statutory phrase corresponding to the
generic crime and another not.” Id. at 2284, 2286. And in Mathis v. United States,
136 S. Ct. 2243 (2016), the Supreme Court stressed that “the modified approach
serves—and serves solely—as a tool to identify the elements of the crime of
conviction when a statute’s disjunctive phrasing renders one (or more) of them
opaque,” and that it is not “a technique for discovering whether a defendant’s prior
conviction, even though for a too-broad crime, rested on facts (or otherwise said,
involved means) that also could have satisfied the elements of a generic offense.” Id.
at 2253-54.
                                             8
                                          ****

       In light of Mr. Westover’s sentencing record and the relevant legal background,

we agree with the district court that Mr. Westover’s sentence was enhanced based on the

ACCA’s enumerated-offenses clause, not the residual clause.

       The district court erred, however, in concluding that Mr. Westover’s § 2255

motion was untimely. His motion was timely because he asserted the right established by

Johnson— “to be free from a sentence purportedly authorized by the unconstitutionally

vague residual clause”—within one year of Johnson’s release. Snyder, 871 F.3d at 1126;

see also 28 U.S.C. § 2255(f)(3) (prescribing a one-year limitations period, running from,

as relevant here, “the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review”). Specifically, the Supreme Court

decided Johnson on June 26, 2015, and made it retroactive in Welch. Mr. Westover filed

his § 2255 motion asserting Johnson’s applicability roughly eleven months after Johnson.

His motion was therefore timely.

                                   III. CONCLUSION

       The district court’s judgment is vacated, and the case is remanded with directions

that Mr. Westover’s motion be denied rather than dismissed.


                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge


                                             9
