                                                                                        FILED
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                                       PUBLISH                                      April 23, 2019

                      UNITED STATES COURT OF APPEALS                           Elisabeth A. Shumaker
                                                                                   Clerk of Court

                            FOR THE TENTH CIRCUIT
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 17-5125

 AARON EUGENE COPELAND,

       Defendant - Appellant.
                      _________________________________

                   Appeal from the United States District Court
                        for the Northern District of Oklahoma
           (D.C. Nos. 4:16-CV-00490-CVE-PJC & 4:08-CR-00137-CVE-1)
                       _________________________________

Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal
Public Defender, Office of the Federal Public Defender, with him on the briefs), Tulsa,
Oklahoma, for Defendant - Appellant.

Leena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney,
Northern District of Oklahoma, with her on the brief), Tulsa, Oklahoma for Plaintiff -
Appellee.
                        _________________________________

Before MATHESON, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

MATHESON, Circuit Judge.
                   _________________________________

      In 2008, Aaron Eugene Copeland pled guilty to being a felon in possession of

a firearm. The district court imposed an enhanced sentence of 15 years in prison

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his
two prior drug offenses and one prior burglary. Mr. Copeland did not appeal. After

he brought several unsuccessful motions for habeas relief under 28 U.S.C. § 2255, we

authorized Mr. Copeland to bring a successive § 2255 motion to assert that his

sentence is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015), which

held that the ACCA’s definition of violent felony in its residual clause is

unconstitutionally vague.

      Mr. Copeland’s § 2255 motion claimed the sentencing court relied on the

unconstitutional residual clause to find that his prior burglary was a violent felony

and therefore the court should not have enhanced his sentence. The district court

denied the motion, finding that it did not sentence Mr. Copeland under the residual

clause and that his motion accordingly could not rely on Johnson. Exercising

jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), we reverse.

                                  I. BACKGROUND

      To help understand the facts and issues that Mr. Copeland’s § 2255 motion

presents, we sketch the legal landscape surrounding this case, including discussion of

the ACCA’s definitions of “violent felony,” the Supreme Court’s decision in

Johnson, and the requirements for bringing second and successive § 2255 motions.

We then describe the district court proceedings in 2008 leading to Mr. Copeland’s

sentence, followed by the § 2255 proceedings in 2017 leading to this appeal. We

present additional legal background later in the opinion.




                                               2
                                  A. Legal Landscape

   The ACCA

       It is a federal crime “for any person . . . who has been convicted in any court

of[] a crime punishable by imprisonment for a term exceeding one year . . . to . . .

possess . . . any firearm or ammunition.” 18 U.S.C. § 922(g). A violation of this

felon-in-possession statute usually carries a maximum penalty of 10 years in prison.

18 U.S.C. § 924(a)(2). But under the ACCA, a person who “has three previous

convictions . . . for a violent felony or serious drug offense, or both” is subject to a

minimum sentence of 15 years. 18 U.S.C. § 924(e).

       This appeal concerns the meaning of “violent felony.” The ACCA defines a

“violent felony” as “any crime punishable by imprisonment for a term exceeding one

year” that also:

       (1) “has as an element the use, attempted use, or threatened use of physical
           force against the person of another,” id. § 924(e)(2)(B)(i)—the elements
           clause;

       (2) “is burglary, arson, or extortion, [or] involves the use of explosives,” id.
           § 924(e)(2)(B)(ii)—the enumerated clause; or

       (3) “otherwise involves conduct that presents a serious potential risk of
           physical injury to another,” id. § 924(e)(2)(B)(ii)—the residual clause.

Only the enumerated and residual clauses are pertinent to this appeal. Note that

“burglary” is listed as one of the offenses in the enumerated clause.

   Johnson v. United States

       In 2015, the Supreme Court held in Johnson that the ACCA’s residual clause

is “unconstitutionally vague,” 135 S. Ct. at 2557, leaving only the elements and

                                                3
enumerated clauses to define a violent felony. In 2016, the Court held in Welch v.

United States, 136 S. Ct. 1257 (2016), that Johnson “announced a substantive rule

that has retroactive effect in cases on collateral review.” Id. at 1268.

   Section 2255 and Second or Successive Motions

      A federal prisoner “claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution” may move the district court

that sentenced him “to vacate, set aside[,] or correct the sentence.” 28 U.S.C.

§ 2255(a). “Before a federal prisoner may file a second or successive motion under

§ 2255, the prisoner must first obtain an order from the appropriate court of appeals

authorizing the district court to consider the motion.” In re Cline, 531 F.3d 1249,

1250 (10th Cir. 2008) (per curiam); see 28 U.S.C. §§ 2244(b)(3), 2255(h).

      A circuit court may authorize a second or successive § 2255 motion in two

circumstances. This appeal turns on one of them—whether the motion “contain[s]

. . . a new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).1 “A

motion ‘contains’ a new rule of constitutional law, as required by § 2255(h), if the

claim for which authorization is sought ‘relies on’ the new rule.” United States v.

Murphy, 887 F.3d 1064, 1067 (10th Cir. 2018).




      1
        The other circumstance is when “newly discovered evidence that, if proven
and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense.” 28 U.S.C. § 2255(h)(1).
                                               4
      A movant attempting to file a second or successive § 2255 motion must pass

two gates. The first is obtaining authorization from the circuit court to file the

motion, which requires only “a prima facie showing to the court of appeals that the

motion satisfies the requirements of § 2255(h), defined as a sufficient showing of

possible merit to warrant a fuller exploration by the district court.” Id. at 1068

(quotations omitted). The second requires “a determination by the district court that

the petition does, in fact, satisfy those requirements.” Id. This appeal concerns the

second gate.

                      B. Mr. Copeland’s Guilty Plea and Sentencing

      In 2008, Mr. Copeland pled guilty to being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The following describes the

proceedings leading to his plea and sentence.

   Change of Plea Hearing

      At Mr. Copeland’s change of plea hearing, the district court and the parties

discussed whether Mr. Copeland had at least three prior offenses that qualified him

for an ACCA-enhanced sentence. The parties agreed that Mr. Copeland had two

predicate serious drug offenses. See ROA, Vol. II at 13-15.

      The discussion turned to whether Mr. Copeland’s 1981 conviction in

California for second-degree burglary was a § 924(e) violent felony. Mr. Copeland’s

counsel said:

                I’ve pulled the statutes there in California, and I was not able
                to get the actual judgment and sentence. You have to do that
                in writing, and it takes a lot of—a long time, more than I had.
                                                   5
                But out of an abundance of caution, I certainly counseled Mr.
                Copeland as to my concerns, and I hope I’m wrong.

Id. at 14. The district court then explained to Mr. Copeland,

                [W]hat we’re talking about is whether . . . second-degree
                burglary . . . meets the definition of a violent felony under the
                Armed Career Criminal Act. We won’t know until the
                probation officer and your attorney get all the records from
                California, compare your conviction to the statute, compare it
                to the [U.S. Sentencing Guidelines (“Guidelines”)] to
                determine whether you fall under the act or not.

Id. at 15.2

       The court asked the probation officer whether he had “any better information than

[the court or the parties] on whether or not [the § 924(e) enhancement] applie[d].” Id. at

16. The probation officer responded that he did not, but he added that, according to an

application note in U.S.S.G. § 4B1.4, “the definition of a crime of violence under the

[G]uidelines is different than the one in the statute. And the one in the [G]uidelines

limits burglaries to residential, but the one in the statute does not limit it.” Id. at 16. The

court asked, “So when we’re doing Armed Career Criminal Act, we’re going under the

statutory definition?” The probation officer affirmed the court’s understanding. Id.3

       The district court advised Mr. Copeland again that the “burglary charge” was a

“sentencing factor[] that c[ould] enhance [his] sentence.” Id. at 28. Then Mr. Copeland



       2
           It is not clear why the court referred initially to the Guidelines.
       3
        As explained below, in 2008, the enumerated clause in the Guidelines
differed from the one in § 924(e)(2)(B)(ii), but the residual clause in the Guidelines
was identical to the one in § 924(e)(2)(B)(ii). See infra note 10. This suggests that
the court’s colloquy with the probation officer concerned the enumerated clause.
                                                   6
pled guilty, and the district court accepted his plea. Id. at 36-37. The court concluded the

proceedings by advising Mr. Copeland that the probation officer would prepare a

Presentence Investigation Report (“PSR”), “[a]nd if there are any issues, particularly with

regard to the Armed Career Criminal Act, we’ll have a sentencing hearing if that’s an

issue.” Id. at 37-38.

   Presentence Investigation Report

       The PSR reported that Mr. Copeland had been convicted in 1981 of “Burglary

Second Degree” in Oakland Superior Court and sentenced to one year in jail and

three years on probation. ROA, Vol. III at 7. It said Mr. Copeland and two other

men “used a water meter cover to break a window and enter” a California shoe store.

Id. “The trio stole 104 pairs of shoes, valued at a total of $2,600. They were

apprehended due to a witness observing them run out of the store carrying large

plastic bags and notifying police.” Id. The PSR did not reveal the source of this

information. See id.

       The PSR advised that Mr. Copeland was “an armed career criminal under the

provisions of 18 U.S.C. § 924(e), due to his convictions for Burglary Second Degree”

and the two serious drug offenses. Id. at 6. It did not cite to which part of

§ 924(e)(2)(B)(ii)—the enumerated clause or the now-unconstitutional residual

clause—it relied on to categorize Mr. Copeland’s California second-degree burglary

conviction as a violent felony. See id.




                                                7
   Sentencing Hearing

      At the sentencing hearing, Mr. Copeland, through counsel, stated he had no

objection to the PSR. ROA, Vol. II at 43-44. The district court accepted the PSR’s

findings of fact. Id. at 44. It then sentenced Mr. Copeland to 180 months in prison—

the statutory minimum under § 924(e)—and five years of supervised release. Id. at

50. The court did not address its basis for treating California second-degree burglary

as a violent felony.

                       C. Post-Conviction § 2255 Proceedings

      Mr. Copeland did not appeal4 but filed several unsuccessful motions to

challenge his sentence under 28 U.S.C. § 2255.5 After Welch held that Johnson

applies retroactively on collateral review, we granted Mr. Copeland’s request to file a

successive § 2255 motion to challenge his sentence on the ground that it was based

on the ACCA’s unconstitutional residual clause, in violation of Johnson. In re

Copeland, No. 16-5075 (10th Cir. July 22, 2016). With this authorization, Mr.


      4
        Mr. Copeland’s failure to file a direct appeal raising a residual clause
vagueness claim does not foreclose his § 2255 motion. The Government has not
objected on this ground. And even assuming the procedural-default rule applies, a
“Johnson claim was not reasonably available during the time when [Mr. Copeland]
could have filed a direct appeal, and this is sufficient to establish cause. Moreover, if
[Mr. Copeland] is correct regarding his Johnson claim . . . . [he] has demonstrated
actual prejudice.” United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018)
(quotations omitted).
      5
        See In re Copeland, No. 15-5097 (10th Cir. Nov. 5, 2015); In re Copeland,
No. 14-5035 (10th Cir. April 17, 2014); United States v. Copeland, 539 F. App’x
918, 919 (10th Cir. 2013); United States v. Copeland, 509 F. App’x 760, 761 (10th
Cir. 2013); United States v. Copeland, No. 13-CV-0479-CVE-FHM, 2013 WL
4022062, at *1 (N.D. Okla. Aug. 6, 2013).
                                               8
Copeland moved the district court under § 2255 to vacate, set aside, or correct his

sentence. ROA, Vol. I at 32.

      The district court denied his motion. United States v. Copeland, No. 08-CR-

0137-CVE, 2017 WL 4819108, at *4 (N.D. Okla. Oct. 25, 2017). It found “there is

no possibility that [Mr. Copeland’s] burglary conviction was treated as a violent

felony under the residual clause.” Id. at *3. The court pointed to the discussion at

the change of plea hearing: “The [c]ourt advised [Mr. Copeland] that it would not

know if he qualified for sentencing under the ACCA until the probation office and

his attorney gathered the necessary records to determine if his conviction qualified as

a generic burglary.”6 Id. (emphasis added). The court concluded: “[T]he evidence is

clear that [Mr. Copeland’s] conviction for second[-]degree burglary was treated as a

violent felony under the enumerated offense clause of the ACCA.” Id.

      Because the court found in 2017 that it sentenced Mr. Copeland in 2008 under

the enumerated clause, it concluded that “Johnson has no application in this case”

and that any other arguments Mr. Copeland urged were beyond the scope of our

authorization of his successive § 2255 motion. Id. at *4.

      The district court entered judgment against Mr. Copeland, and Mr. Copeland

timely appealed. See Fed. R. App. P. 4(a)(1)(B)(i). We granted a certificate of

appealability.




      6
         As we explain below, the transcript of the change of plea hearing shows that
the district court did not use the words “enumerated” or “generic.”
                                              9
                                   II. DISCUSSION

       We begin with our standard of review and the burden of proof. We then

explain how courts determine whether there is sufficient evidence of Johnson error to

grant relief on a § 2255 motion. We conclude that Mr. Copeland has met his burden

to show his sentence was based on the residual clause.

                     A. Standard of Review and Movant’s Burden

   Standard of Review – Johnson Error

       The parties disagree about the standard of review. Mr. Copeland argues it is de

novo. Aplt. Reply Br. at 2. The Government contends we review the district court’s

findings for clear error and its conclusions of law de novo. Aplee. Br. at 7. Our cases, in

particular those addressing a district court’s denial of a § 2255 movant’s Johnson-error

claim, support Mr. Copeland’s position.

       In recent cases, this court said, “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.” United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018); United

States v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (same quotation); see also United

States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (similar quotation). This quotation

came from United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015), which in turn

quoted from United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). But Barrett

and Rushin, neither of which concerned Johnson-related claims, both said more—that

“where, as here, the district court does not hold an evidentiary hearing, but rather denies

the motion as a matter of law upon an uncontested trial record, our review is strictly de
                                                 10
novo.” Barrett, 797 F.3d at 1213 (quotations and brackets omitted); Rushin, 642 F.3d at

1302.

        This court also recently said in United States v. Murphy, 887 F.3d 1064, 1068

(10th Cir. 2018), “We review the dismissal of a § 2255 motion de novo.” We cited

Snyder for this statement. Id. Shortly thereafter, in an appeal from a district court ruling

that the movant had failed to show he had a Johnson claim to satisfy § 2255(h)(2), the

panel, citing Murphy, again said, “We review the district court’s determination de novo.”

United States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018) (emphasis omitted).

        We think the proper reading of these cases is that our review of a district court’s

denial of a § 2255 Johnson claim is de novo unless the court conducted an evidentiary

hearing from which it made findings. Unless the district court had the benefit of

observing live testimony in an evidentiary hearing, this court can review the sentencing

record and the relevant background law on equal footing with the district court.7

        The de novo standard is consistent with our other recent § 2255 cases raising

Johnson-related claims. This court recently reaffirmed that we conduct a de novo review

of a denial of a § 2255 motion when the district court did not hold an evidentiary hearing.

United States v. Pullen, 913 F.3d 1270, 1275 (10th Cir. 2019) (quoting Barrett); United

States v. Pam, 867 F.3d 1191, 1197 (10th Cir. 2017) (quoting Rushin).


        7
         To support its preferred standard of review, the Government quotes United
States v. Viera, 674 F.3d 1214 (10th Cir. 2012): this court “review[s] the district
court’s findings for clear error and its conclusions of law de novo.” Id. at 1217; see
Aplee. Br. at 7. But Viera quotes Rushin for this proposition, and, as noted above,
Rushin goes on to say that review is de novo when the district court has not held an
evidentiary hearing. 642 F.3d at 1302.
                                                 11
   Standard of Review – Sentencing Record and Background Law

       The Driscoll panel also addressed the standard of review for the two steps leading

to the ultimate determination of whether a sentencing court relied on the residual clause:

“[W]e review the [district court’s] factual determinations about the sentencing record for

clear error and the legal conclusions about the relevant background legal environment de

novo.” 892 F.3d at 1132-33. As applied to our consideration of the district court’s

analysis of the sentencing record, this statement is in tension with the rule that de novo

review applies when there was no district court evidentiary hearing. But, as the

discussion below shows, any such tension does not affect our disposition in this case.

   Burden of Proof

       The § 2255 movant bears the burden of proving by a preponderance of the

evidence that “it was use of the residual clause that led to the sentencing court’s

enhancement of his sentence.” Driscoll, 892 F.3d at 1135 (quotations omitted); see

also Washington, 890 F.3d at 895-96.

                                  B. Legal Background

       To determine whether the sentencing court relied on the residual clause, we

examine (1) “the sentencing record to confirm that ‘there is no mention whatsoever of the

residual clause in the PSR or any of the other sentencing court pleadings or transcripts,’”

and (2) “the ‘relevant background legal environment’ at the time of sentencing to

determine whether the district court would have needed to rely on the residual clause.’”

Driscoll, 892 F.3d at 1132 (quoting Snyder, 871 F.3d at 1130) (brackets omitted). It may

not be necessary to consult background law if the sentencing record “unambiguously”
                                                12
shows the court relied on a clause other than the residual clause because background law

“is only useful insofar as it helps to show the most likely reasoning of the district court.”

Id. at 1132 n.2.

   Sentencing Record

       In previous cases, we have examined the sentencing record for (1) references

to the residual clause or another ACCA clause, see, e.g., Driscoll, 892 F.3d at 1133,

and (2) information about a movant’s prior convictions, Lewis, 904 F.3d at 871;

Washington, 890 F.3d at 896.

       First, express “mention” of either the residual, elements, or enumerated clause8

by the sentencing judge at sentencing, in a court order, in a PSR adopted by the

sentencing judge, or in a party’s motion may be relevant and even sufficient to show

whether the sentencing court relied on the residual clause. See Driscoll, 892 F.3d

1133 n.2.

       Second, facts about the movant’s previous convictions contained in the PSR,

sentencing hearing, or other parts of the district court docket, when viewed in light of

background law, can often enable a court to determine “whether the district court

relied on the residual clause in sentencing.” Washington, 890 F.3d at 896; see also

Lewis, 904 F.3d at 871-72.




       8
        We have used the word “mention,” or a variant thereof to describe review of
the record to assess Johnson error. See Driscoll, 892 F.3d at 1133; Murphy, 887 F.3d
at 1068; Snyder, 871 F.3d at 1128.
                                                 13
      Nothing in our previous opinions excludes our review of any relevant evidence

in the sentencing record regarding whether the sentencing court relied on the residual

clause. For example, the court, the parties, or other participants in sentencing, such

as a probation officer, may have made statements consistent with use of a particular

clause. Until now, we have addressed this type of record evidence only in an

unpublished case, where we considered the sentencing judge’s comments in

concluding that the court relied on the enumerated clause to sentence the movant.

See United States v. Couchman, 720 F. App’x 501, 504-06 (10th Cir. 2018)

(unpublished).

   Background Legal Environment

      “[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. It includes case law (1) holding that particular

offenses qualify as violent felonies under specific ACCA clauses and (2) instructing

how to determine whether an offense qualifies. See id. at 1129-30.

      The Driscoll decision explained that we examine the relevant background legal

environment at the time of sentencing “to determine whether the district court would

have needed to rely on the residual clause.” 892 F.3d at 1132. If the court’s “only

option was the residual clause” under the background law because it could not have

relied on the enumerated or elements clause, “we conclude that the sentencing court

must have relied on the residual clause.” Id. at 1135. When background law

                                              14
foreclosing the enumerated or elements clause is coupled with a silent or ambiguous

record, the movant “has adequately shown it is more likely than not that the

sentencing court relied on the residual clause to enhance his sentence.” Id.

       Accordingly, “[i]n Johnson cases . . . a court can often determine whether the

district court relied on the residual clause in sentencing by looking to the relevant

background legal environment that existed at the time of the [movant’s] sentencing

and the PSR and other relevant materials before the district court.” Washington, 890

F.3d at 896 (quotations and brackets omitted). The movant may meet his burden to

show the court relied on the residual clause by establishing that the background law

did not permit reliance on the other clauses. See Driscoll, 892 F.3d at 1135; see also

Beeman v. United States, 871 F.3d 1215, 1224 n.5 (11th Cir. 2017), cert. denied, No. 18-

6385, 2019 WL 659904 (U.S. Feb. 19, 2019) (“Certainly, if the law was clear at the time

of sentencing that only the residual clause would authorize a finding that the prior

conviction was a violent felony, that circumstance would strongly point to a sentencing

per the residual clause.”).

                                       C. Analysis

       The sentencing record does not explicitly mention which ACCA violent felony

clause the district court relied on to enhance Mr. Copeland’s sentence, though the change

of plea hearing contains statements pointing more to reliance on the enumerated clause

than the residual clause. The relevant background legal environment in 2008, however,

prevented reliance on the enumerated clause and allowed reliance on the residual clause.

Under these circumstances, we think our cases, especially Driscoll, require us to

                                                15
conclude that the sentencing court must have relied on the residual clause. The district

court therefore erred in denying Mr. Copeland’s § 2255 motion, and because the error

was harmful, we reverse.

   Sentencing Record

       We recounted evidence from the sentencing record in the background section

above. As in Snyder, Washington, and Driscoll, the record does not include any

reference, explicit or implicit, to the residual clause, and Mr. Copeland does not contend

otherwise. It also does not include any explicit reference to the enumerated clause or

terms associated with the clause, such as “generic burglary.” But it is not silent, either.

The discussions at the change of plea hearing and the PSR’s description of the burglary

offense at least suggest the court relied on the enumerated clause. And the district

judge’s statement and finding in 2017 that she did so are consistent with that suggestion.

Nonetheless, the sentencing record is not clear.

       a. Change of plea hearing

       Although the sentencing record contains no direct statement of which ACCA

clause the court relied on to find Mr. Copeland’s offense to be a violent felony, two

exchanges at the change of plea hearing support an inference that the district court

sentenced Mr. Copeland under the enumerated clause.

       First, Mr. Copeland’s counsel stated, “I’ve pulled the statutes there in

California, and I was not able to get the actual judgment and sentence. You have to

do that in writing . . . .” ROA, Vol. II at 14. A few moments later, the district court

said to Mr. Copeland, “We won’t know [whether California second-degree burglary

                                                 16
is a violent felony] until the probation officer and your attorney get all the records

from California, compare your conviction to the statute, compare it to the sentencing

guidelines to determine whether you fall under the act or not.” Id. at 15.

      The records mentioned in the court’s statement were likely intended to

determine whether Mr. Copeland’s burglary conviction was an offense under the

enumerated clause rather than the residual clause. This is so because the law in 2008,

as we explain below, (1) was certain that records could be used for an enumerated

clause determination, and (2) was less certain whether the court could use records of

a prior burglary conviction to determine that a prior offense was a violent felony

under the residual clause, United States v. Maldonado, 696 F.3d 1095, 1099 (10th

Cir. 2012) (stating the issue was undecided in the Tenth Circuit before 2012).9

      Second, the district court asked whether the probation officer had “any better

information . . . on whether or not [the § 924(e) enhancement] applie[d].” ROA, Vol.

II at 16. The probation officer pointed to the differences between the enumerated

clauses in § 4B1.2(a) of the Guidelines and in the ACCA, noting that the ACCA

clause was not confined to residential burglaries and the Guidelines clause was. The

court responded, “So when we’re doing the Armed Career Criminal Act, we’re going

under the statutory definition?” Id. at 16. This exchange suggests the district court

shared the probation officer’s understanding that the definition of generic burglary


      9
         Although cases like Snyder and Driscoll appear to suggest that we should
examine the sentencing record and the relevant background law as separate sequential
steps, in some instances, as in the discussion above, we must refer to background law to
explain the relevance of certain sentencing record facts.
                                               17
under the enumerated clause mattered to Mr. Copeland’s sentencing. Only the

enumerated clause differed between the statute and the Guidelines—there would have

been no need to consider the difference to apply the residual clause.10

      b. Sentencing hearing

      At sentencing, Mr. Copeland did not object to the PSR, which described his

prior burglary offense as breaking and entering a structure with intent to steal—the

elements of generic burglary. Neither the court nor the parties commented on the

application of the ACCA, and the court “accept[ed] the [PSR] as its findings of fact.”

ROA, Vol. II at 44. The record does not show that the parties’ or the court’s

understanding of the basis for an ACCA sentence changed in the three months

between the change of plea hearing and the sentencing hearing. As discussed above,

at the change of plea hearing the court suggested that the enumerated clause would be

the basis for enhancing the sentence for the prior burglary. The PSR’s description of

the burglary conviction confirmed that basis, and Mr. Copeland did not object to the

PSR. No one mentioned the residual clause. Accordingly, the record indicates the

court relied on the enumerated clause in sentencing Mr. Copeland under the ACCA.




      10
         In 2008, the Guidelines defined “crime of violence” to mean an offense
“punishable by imprisonment for a term exceeding one year,” U.S.S.G. § 4B1.2(a)
(2008), that meets one of three criteria: (1) “has as an element the use attempted use
or threatened use of physical force against the person of another,” id. § 4B1.2(a)(1);
(2) “is burglary of a dwelling, arson or extortion, [or] involves use of explosives,” id.
§ 4B1.2(a)(2); (3) “otherwise involves conduct that presents a serious potential risk
of physical injury to another,” id.
                                              18
But, as we discuss next, the sentencing record is not as clear as the district court

concluded.

      c. Ambiguous sentencing record

      The district judge who denied Mr. Copeland’s § 2255 motion in 2017 was the

same judge who sentenced him in 2008. Because the district court did not specify

whether its denial of Mr. Copeland’s § 2255 motion was based at all on the judge’s

memory of the 2008 sentencing, we limit our review of the sentencing record to the

transcripts of the change of plea sentencing hearings and to the PSR.11 As explained

below, we read that record as less conclusive about the basis for the ACCA

sentencing enhancement than the district court’s reading.

      When it denied Mr. Copeland’s § 2255 motion in 2017, the district court found

that the sentencing record in 2008 unambiguously showed that it relied on the

enumerated clause and not the residual clause to determine that Mr. Copeland’s

burglary conviction was an ACCA violent felony. The court said, “[T]here is no

possibility that [Mr. Copeland’s] burglary conviction was treated as a violent felony

under the residual clause.” Copeland, 2017 WL 4819108, at *3. It also said, “[T]he

evidence is clear that [Mr. Copeland’s] conviction for second[-]degree burglary was

treated as a violent felony under the enumerated offense clause of the ACCA.” Id.



      11
         But see United States v. Scully, 798 F.2d 411, 412 (10th Cir. 1986)
(“Appellate courts have approved a district judge’s reliance on . . . memory to rule on
the merits of a § 2255 motion where [the judge] supplements the record with personal
knowledge in situations where the record does not reflect one way or another whether
a defendant’s allegations have any validity.”).
                                               19
      The record, however, is not so clear. The district court said in 2017 that “[t]he

[c]ourt advised [Mr. Copeland in 2008] that it would not know if he qualified for

sentencing under the ACCA until the probation office and his attorney gathered the

necessary records to determine if his conviction qualified as a generic burglary.”

Copeland, 2017 WL 4819108, at *3 (emphasis added). But while the transcript of

the change of plea hearing does not rule out that the district court had generic

burglary in mind, the transcript does not contain a specific reference to “generic

burglary” or to the enumerated clause.

      Based on our review, the district court could have plausibly found from the

sentencing record that it had relied on the enumerated clause rather than the residual

clause. But we take issue with the district court’s conclusion that the sentencing

record unambiguously supports this finding. The sentencing record, without any

reference to the residual clause and only inferential references to the enumerated

clause, is ambiguous.

      The district court in 2017 did not address the relevant background legal

environment at the time of sentencing. But because the sentencing record is

ambiguous, we turn next to examine the relevant background law to inform our

analysis of whether the district court relied on the residual clause when it enhanced

Mr. Copeland’s sentence. See Driscoll, 892 F.3d at 1132 n.2 (explaining that “when




                                              20
. . . we are presented with an ambiguous sentencing record,” we examine the relevant

background law “to show the most likely reasoning of the sentencing court”).12

   Background legal environment

       As the following discussion shows, the relevant background law at the time of

Mr. Copeland’s sentencing in 2008 supports a finding that the district court could

only have relied on the residual clause to determine that his California burglary

conviction was a violent felony under the ACCA.

       Taylor v. United States, 495 U.S. 575 (1990), was the primary source of relevant

background law in 2008. Taylor used California burglary as an example of a crime that

is broader than generic burglary and that could not generally qualify as an enumerated

clause predicate offense. Id. at 591, 599. But Taylor also said that a burglary conviction

could qualify when the charging documents showed that the prior offense fell within the

definition of generic burglary. Id. at 602. As we show below, however, additional

background law about use of PSRs that contain information about a prior offense

combined with the record in this case would have prevented the sentencing court’s

reliance on the enumerated clause.


       12
          In our previous discussion of the standard of review, we noted that this court
in Driscoll said that “we review the factual determinations about the sentencing
record for clear error and the legal conclusions about the relevant background legal
environment de novo.” 892 F.3d at 1132-33. We also noted our cases generally call
for de novo review when, as here, the district court did not conduct an evidentiary
hearing. This apparent tension does not affect our analysis of the sentencing record.
Under either clear error or de novo review, the district court may not have erred in
concluding that the sentencing record showed it had relied on the enumerated clause,
but it did err in concluding that the record showed it had unambiguously relied on the
enumerated clause.
                                               21
      a. California burglary and generic burglary

      In Taylor, the Supreme Court held that a prior burglary conviction qualified as

an ACCA predicate when the underlying statute required proof of all elements of

generic burglary—“an unlawful or unprivileged entry into, or remaining in, a

building or other structure, with intent to commit a crime.” Id. at 598. If the statute

swept more broadly than generic burglary, the prior conviction was not categorically

an ACCA predicate under the enumerated clause. Id. at 599. Two features of the

California burglary statute placed it outside the generic burglary definition.13 First, it

did not require unlawful entry: “California defines ‘burglary’ so broadly as to

include shoplifting . . . .” Taylor, 495 U.S. at 591. Second, it criminalized entry into

places other than buildings. Id. at 599. Accordingly, a conviction for California

burglary—in either the first or second degree—could not categorically be an ACCA

predicate under the enumerated clause. Id. at 591; see United States v. Strahl, 958



      13
         When Mr. Copeland was convicted of California second-degree burglary,
California Penal Code § 459 defined burglary as follows:
              Every person who enters any house, room, apartment,
              tenement, shop, warehouse, store, mill, barn, stable, outhouse,
              or other building, tent, vessel, railroad car, trailer coach, . . .
              inhabited camper, . . . vehicle . . . , aircraft . . . , mine or any
              underground portion thereof, with intent to commit grand or
              petit larceny or any felony is guilty of burglary. As used in
              this chapter, “inhabited” means currently being use for
              dwelling purposes, whether occupied or not.
Cal. Penal Code § 459 (1981) (emphasis added). Burglary of inhabited dwelling
houses and various other inhabited places was burglary in the first degree. Id.
§ 460(1). “All other kinds of burglary [were] of the second degree.” Id. § 460(2).
The statute has been amended several times, and the current version includes
additional locations that may be burglarized. See Cal. Penal Code § 459.
                                               22
F.2d 980, 983 (10th Cir. 1992), overruling on other grounds recognized by United

States v. Trent, 767 F.3d 1046, 1058 n.2 (10th Cir. 2014).

      b. California burglary convictions on charges limited to elements of generic
         burglary

      In Taylor, the Supreme Court said that a sentencing court could “go beyond

the mere fact of conviction in a narrow range of cases where a jury was actually

required to find all the elements of generic burglary” to determine whether a prior

burglary offense qualified as an ACCA predicate under the enumerated clause. Id. at

602. Because the sentencing court’s task was to determine the elements of the

burglary conviction and not “the facts underlying [it],” id. at 600, it could consult

only limited sources. These sources included the indictment or information and jury

instructions. Id. at 602. In Shepard v. United States, 544 U.S. 13 (2005), the

Supreme Court held this determination could be made about convictions following

guilty pleas, and it expanded the list of permissible documents to include a “written

plea agreement, transcript of [the] plea colloquy, and any explicit factual findings by

the trial judge to which the defendant assented.” Id. at 26; see also United States v.

Barney, 955 F.2d 635, 639 (10th Cir. 1992). We refer to these materials as Shepard

documents.14




      14
          We did not use the phrase “Shepard documents” until 2012. See United
States v. Cartwright, 678 F.3d 907, 918 n.4 (2012). But this shorthand phrase is
consistent with the background legal environment when Mr. Copeland was sentenced.
                                              23
       c. Use of a PSR to show elements of generic burglary

       Although a sentencing court in 2008 could use Shepard documents to find that a

conviction for California burglary fit within the definition of generic burglary, was it

permissible to rely instead on a PSR’s description of the burglary offense? The sparse

case law at the time permitted a court to do so only when the PSR itself relied on Shepard

documents.

       In United States v. Perez-Vargas, 414 F.3d 1282, 1283 (10th Cir. 2005),15 decided

four months after Shepard, the defendant challenged his sentence on direct appeal,

arguing the district court erred when it enhanced his Guidelines offense level based on

finding that his Colorado assault conviction was a crime of violence. Id. at 1283. This

court reversed, holding that the sentencing court’s reliance on the PSR’s description of

the assault offense was insufficient. Id. at 1285-87. The description must be “supported

by proof allowable under Taylor and Shepard.” Id. at 1285. The appellate record lacked

“the ‘court documents’ relied on by the PSR. We thus [could not] evaluate whether the

records would be acceptable under the strictures of Supreme Court precedent.” Id.

       Perez-Vargas provided, therefore, that when Mr. Copeland was sentenced, a court

could rely on a PSR’s description of a prior crime to find it was an enumerated-clause

offense, but only when the PSR was backed by “proof allowable under Taylor and

Shepard.” See id.




       15
         Perez-Vargas has been overruled on other grounds. United States v.
Bettcher, 911 F.3d 1040, 1041 n.1 (10th Cir. 2018).
                                                24
      The Government states that we can find relevant background law about reliance on

PSRs in a passage from our 2018 decision in United States v. Washington: “[T]his court

. . . upheld a district court’s reliance on a PSR in enhancing a sentence under the ACCA

where the PSR was based in part on court records and the defendant did not object to the

PSR.” 890 F.3d at 897 n.6. The court cited United States v. Harris, 447 F.3d 1300,

1305-06 (10th Cir. 2006), for this statement. Harris, however, was not directly on point

to Mr. Copeland’s sentencing because it upheld a district court’s reliance on a PSR to

determine whether prior ACCA predicate crimes were committed on different occasions,

not whether they were violent felonies. Id. at 1305-06.16

      Perez-Vargas appears to supply the most pertinent background legal authority

on when a court in the Tenth Circuit in 2008 could rely on a PSR to make an ACCA

enumeration-clause determination. But even under Washington’s take on Harris, a

court would have needed more than a defendant’s failure to object to a PSR’s

description of a prior offense. There must be some proof that the PSR relied on court

records before its description could serve as the basis for an enumerated-clause

offense finding.17


      16
         Determining whether a conviction is a crime of violence or a violent felony
requires “a formal categorical approach, looking only to the statutory definitions of
the prior offenses, and not to the particular facts underlying those convictions,”
Perez-Vargas, 414 F.3d at 1284, while determining whether prior convictions were
committed on different occasions is a finding of fact similar to other factual
determinations judges make in sentencing, United States v. Michel, 446 F.3d 1122,
1132-33 (10th Cir. 2006).
      17
         Mr. Copeland urges us to consider Descamps v. United States, 570 U.S. 254
(2013), as part of the background legal environment, arguing it removed the modified
                                               25
       d. California burglary and the residual clause

       In 2008, background law regarding California burglary and the residual clause

was undeveloped in the Tenth Circuit. In our 2012 Maldonado decision, we said that

“[t]his circuit has not yet determined whether California’s first[-]degree burglary

offense is a violent felony.” 696 F.3d at 1098.18 Although “[n]either the Supreme

Court nor the Tenth Circuit ha[d] addressed whether [first-degree California

burglary] is a violent felony under the residual clause” of the ACCA, Maldonado,

696 F.3d at 1099, we had held that second-degree California burglary was not a crime

of violence under the residual clause of U.S.S.G. § 4B1.2(1)(ii), United States v.

Smith, 10 F.3d 724, 733 (10th Cir. 1993) (per curiam),19 which, as noted above, was

worded identically to the ACCA residual clause. Mr. Copeland has not cited, and we

have not found, case law from the Supreme Court, the Tenth Circuit, or other circuits


categorical approach from consideration of his prior burglary offense. We decline to
do so because we must consider only the relevant background law in 2008 when Mr.
Copeland was sentenced. See Snyder, 871 F.3d at 1129.
       18
         We held that California first-degree burglary was a violent felony under the
ACCA residual clause, a holding that would not be allowed after the Supreme
Court’s decision in Johnson that the ACCA residual clause is unconstitutionally
vague.
       19
         In Smith we acknowledged “[t]his view”—that second-degree burglary is not
a crime of violence—“is diametrically opposed to the position taken by Congress” in
the ACCA. 10 F.3d at 732. Smith interpreted Congress as “stat[ing] that every
burglary inherently presents a serious potential risk of physical injury to another.”
Id.
       This view later found support in Leocal v. Ashcroft, 543 U.S. 1 (2004): “A
burglary would be covered under [the definition of crime of violence in 18 U.S.C.]
§ 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar
will use force against a victim in completing the crime.” Id. at 10.
                                               26
as of 2008 holding that a second-degree California burglary conviction could be an

ACCA residual clause offense.20

      Nonetheless, the Supreme Court’s 1990 decision in Taylor kept the door open to

finding second-degree California burglary to be a residual clause offense:

             Our present concern is only to determine what offenses
             should count as “burglaries” for enhancement purposes. The
             Government remains free to argue that any offense—
             including offenses similar to generic burglary—should count
             towards enhancement as one that “otherwise involves conduct
             that presents a serious potential risk of physical injury to
             another” under § 924(e)(2)(B)(ii).

495 U.S. at 600 n.9.

   The Sentencing Record and the Background Law

      The sentencing record and the relevant background law stand in tension. The

residual clause was not mentioned in the sentencing record. The enumerated clause and

“generic burglary” were not explicitly mentioned, either. But the discussions at the

change of plea hearing about obtaining the burglary conviction records and about the

difference between the enumerated clauses in the ACCA and the Guidelines suggested

the court was contemplating an enumerated-clause sentence. The description of the

burglary offense in the PSR was consistent with generic burglary.

      In 2017, when the district court denied the § 2255 motion, the judge read the 2008

transcript as evincing reliance on the enumerated clause. As discussed above, the


      20
          Mr. Copeland did cite, however, James v. United States, 550 U.S. 192
(2007) (applying ACCA residual clause to Florida attempted burglary); and United
States v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993) (applying residual clause in 18
U.S.C. § 16(b) to Texas burglary).
                                               27
sentencing record does not “reveal[] the sentencing court unambiguously relied on a

clause other than the residual clause to enhance [Mr. Copeland’s] sentence under the

ACCA.” Driscoll, 892 F.3d at 1132 n.2 (emphasis added). The court made no “clear

pronouncement.” Lewis, 904 F.3d at 871. Nonetheless, the record still points to the

enumerated clause as the basis for enhancement.

       By contrast, the relevant background law in 2008 permitted the court to rely on the

enumerated clause only if Shepard documents or a PSR referring to them showed that the

prior offense was generic burglary. But there were no Shepard documents in the record.

Although the law regarding the use of Shepard documents was in its infancy, the few

relevant Tenth Circuit cases as of 2008 provided that the PSR at least needed to state it

relied on Shepard documents for its description of the offense to serve as the basis for a

generic burglary finding. See Perez-Vargas, 414 F.3d at 1285.

       The relevant background law in 2008 lacked a decision holding that second-

degree California burglary qualified as a violent felony under the ACCA residual

clause. See Washington, 890 F.3d at 897 (stating the movant “cites no authority

indicating . . . second-degree burglary also qualified under the ACCA’s residual

clause”). But Taylor kept the door open to that possibility.

       The Driscoll opinion’s analysis of Mr. Driscoll’s Nebraska burglary conviction is

instructive. Although the sentencing court had the “information”—the charging

document—underlying the conviction, that document did not show that Mr. Driscoll had

“burglarized a ‘building or structure’ within the generic definition of burglary.” 892 F.3d

at 1134. The sentencing court could not have known whether he was prosecuted for

                                                28
burglarizing a building and therefore “could not have relied on the enumerated offenses

clause because that would have violated Taylor.” Id. at 1135. Because the sentencing

record was ambiguous “as to whether the sentencing court relied on the residual clause to

enhance [Mr.] Driscoll’s sentence,” we concluded, based on the legal environment, that

“the sentencing court must have relied on the residual clause, as any reliance on the

enumerated offenses clause would have violated Taylor.” Id.

       As in Driscoll, the sentencing record here did not expressly mention the

enumerated or the residual clauses. The court never used the words “enumerated clause”

or “generic burglary.” At the change of plea hearing, the court’s colloquies with the

lawyers and the probation officer indicated potential reliance on the enumerated clause—

far from conclusive or unambiguous evidence. The hearing occurred three months before

sentencing. In the intervening period, the court could have picked a different basis for its

sentence based on research, information (or lack of information) about Mr. Copeland’s

prior conviction, or further reflection.

       Although Mr. Copeland’s sentencing record points more to the enumerated

clause than the record did in Driscoll, Driscoll’s conclusion that the sentencing court

“must have relied on the residual clause” due to the relevant background law, 892

F.3d at 1135, determines the outcome here. Notwithstanding clues from the change

of plea hearing that the court was contemplating the enumerated clause, the

applicable law allowed an ACCA sentencing enhancement for the burglary

conviction only under the residual clause. The background law points more strongly

toward the court’s use of the residual clause than the sentencing record points toward

                                                29
its use of the enumerated clause.21 It shows the sentencing court, with no Shepard

documents to find “generic burglary,” could not have relied on the enumerated clause

but could have relied on the residual clause. As a result, Mr. Copeland “has

adequately shown it is more likely than not that the sentencing court relied on the

residual clause to enhance his sentence.” Id.22

       This conclusion has two consequences. First, it means Mr. Copeland has satisfied

the requirements of 28 U.S.C. § 2255(h)(2) for a second or successive § 2255 motion by

showing that his claim relies on the “new rule of constitutional law” recognized in



       21
            The combination of the sentencing record and the relevant background law in
this case stops short of a circumstance where (1) a sentencing court unambiguously stated
that it relied on the ACCA enumerated or elements clause to enhance the sentence, and
(2) the relevant background law at the time of sentencing precluded reliance on the
enumerated or elements clause but allowed reliance on the residual clause.
         We said in Driscoll that we “might” not need to consider the background law
when the sentencing court has unambiguously relied on a clause other than the residual
clause. Driscoll, 892 F.3d at 1132 n.2. But we have not explained when and how we
should consider the background law in that circumstance and when we should not.
         If we do not consider the background law in this scenario, the movant has failed to
show a Johnson error, even though, under the law at the time of sentencing, the only
legally permissible way to enhance the sentence would have been to rely on the residual
clause. If we do consider the background law, would we say that the court could not
have relied on the enumerated clause, even though the court said it did, and that the
prisoner has shown a Johnson error?
         Because this scenario does not describe our case, we do not attempt to resolve it.
We mention it here, however, because we recognized the difficulty of this question while
analyzing our case.
       22
         We recently explained: “If, on the other hand, the sentencing court would
have been unable to rely on the enumerated-offenses clause or the elements clause at
the time of sentencing because doing so would have violated then-controlling law, we
may instead deduce that the sentencing court must have relied on the residual
clause.” United States v. Neely, No. 17-8087, 2019 WL 761556, at *2 (10th Cir. Feb.
20, 2019) (unpublished) (quotations omitted).
                                                30
Johnson that Welch “made retroactive to cases on collateral review.”23 Second, it means

that the district court committed a Johnson error in 2008 when it based Mr. Copeland’s

sentence on the now-unconstitutional residual clause. We turn next to whether that error

was harmless.

   Harmless Error Analysis

      Even when a sentencing court erred by relying on the ACCA’s residual clause

to enhance a sentence, we will grant habeas relief only if the error “‘had substantial

and injurious effect or influence in determining’ his sentence.” Driscoll, 892 F.3d at

1135 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). More precisely,

“[W]ould a sentencing judge, applying current law, determine that the movant’s

conviction(s) still qualifies as a crime of violence under one or both of the still-valid

ACCA clauses and resentence him to the same length of imprisonment?” Lewis, 904

F.3d at 873. If the answer is yes, we consider the error harmless. Id. “The

government bears the burden of proof on this issue.” Id. at 872 (quoting United

States v. Wilfong, 733 F. App’x 920, 927 (10th Cir. 2018) (unpublished)).

      Applying “current law” to the harmless error analysis, id. at 873, we turn to

Descamps v. United States, 570 U.S. 254 (2013). In Descamps, the Supreme Court

said the California burglary statute does not list alternative elements, id. at 264, and

therefore “a conviction under that statute is never for generic burglary,” id. at 277.


      23
         This is contrary to the district court’s conclusion that Mr. Copeland “has not
asserted a claim for relief under Johnson,” Copeland, 2017 WL 4819108, at *4,
which we take to be the court’s determination that Mr. Copeland could not pass the
second gate for a second or successive § 2255 motion.
                                               31
Accordingly, a conviction under the California burglary statute is not an ACCA

predicate. It fails under the elements clause because it lacks “as an element the use,

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

compare 18 U.S.C. § 924(e), with Cal. Penal Code § 459; fails under the enumerated

clause after Descamps, see 570 U.S. at 264; and cannot qualify under the residual

clause because that clause is “unconstitutionally vague,” Johnson, 135 S. Ct. at 2557.

      Mr. Copeland had only two ACCA predicate offenses in 2008—his two drug

convictions. He lacks the required third ACCA predicate for an enhanced sentence

because his California second-degree burglary does not qualify. He thus may not be

sentenced, today, under the ACCA. The error in his 2008 sentence is therefore

harmful.

                                 III. CONCLUSION

      Because Mr. Copeland has shown the district court relied on the residual

clause when it sentenced him in 2008 and that his successive § 2255 motion relies on

Johnson, he has passed the second gate of § 2255(h)(2) review. He further has

shown that he should prevail on the merits.

      We therefore reverse the district court’s dismissal of Mr. Copeland’s § 2255

motion and remand with instructions to grant the motion to vacate, set aside the

sentence, and resentence Mr. Copeland consistent with this opinion. In view of the

potential consequence of this decision to Mr. Copeland’s custodial status, the

mandate shall issue forthwith to enable the district court to conduct further



                                              32
proceedings on a prompt basis. Should the Government wish to petition for panel or

en banc rehearing, we will consider a motion to recall the mandate.




                                            33
