                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3027
                        ___________________________

                        Gabriel Lazaro Garcia-Hernandez

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                            United States of America

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                   for the District of North Dakota - Bismarck
                                  ____________

                          Submitted: October 18, 2018
                            Filed: February 11, 2019
                                 ____________

Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
                         ____________

BENTON, Circuit Judge.

       Gabriel Lazaro Garcia-Hernandez was sentenced as an armed career criminal.
He moved to vacate his sentence under 28 U.S.C. § 2255, invoking Johnson v. United
States, 135 S. Ct. 2551 (2015). The district court denied his motion. He appeals.
Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.
       In 2014, a jury convicted Garcia-Hernandez, a convicted felon, of possessing
at least one firearm or ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),
and 924(e), and a firearm with an obliterated serial number, in violation of 18 U.S.C.
§§ 922(k) and 924(a)(1)(B). At sentencing in February 2015, the district court found
that he had five predicate convictions under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e). The district court did not specify whether the ACCA’s residual
clause or another ACCA provision (such as the force clause) supported the
enhancement. The convictions were affirmed on direct appeal. United States v.
Garcia-Hernandez, 803 F.3d 994 (8th Cir. 2015).

       The Supreme Court in Johnson invalidated the ACCA’s residual clause, later
holding Johnson’s new rule retroactive on collateral review. Welch v. United States,
136 S. Ct. 1257, 1264–65 (2016). In May 2016, less than a year after Johnson,
Garcia-Hernandez filed his first 2255 motion to vacate his sentence, claiming he no
longer qualified as an armed career criminal due to Johnson. The district court,
following United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017), did not require
Garcia-Hernandez to show he was sentenced under the residual clause. The court
denied relief, finding four of his prior convictions qualify as violent felonies under
the force clause, with one also qualifying as a serious drug offense. The district court
granted a certificate of appealability about whether he qualifies as an armed career
criminal in light of Johnson.

      While this appeal was pending, this court decided Walker v. United States, 900
F.3d 1012 (8th Cir. 2018). A 2255 movant bringing a Johnson claim must “show by
a preponderance of the evidence that the residual clause led the sentencing court to
apply the ACCA enhancement.” Walker, 900 F.3d at 1015 (agreeing with the First,
Tenth, and Eleventh circuits). A “more likely than not” burden reflects the
“importance of the finality of convictions, one of Congress’s motivations in passing
the Antiterrorism and Effective Death Penalty Act.” Id. at 1014. This court rejected
the Fourth and Ninth circuits’ approaches that require showing only that a sentencing

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court “may have” relied on the residual clause. Id., rejecting United States v. Geozos,
870 F.3d 890, 896 (9th Cir. 2017), and Winston, 850 F.3d at 682. See also United
States v. Peppers, 899 F.3d 211, 226, 235 n.21 (3d Cir. 2018) (applying the Fourth
and Ninth circuits’ “may have” standard at the gatekeeping stage, but adopting
“preponderance” at the merits stage). Though Walker addressed a successive 2255
motion, two of the three cases it followed involved initial 2255 motions. Compare
Dimott v. United States, 881 F.3d 232, 235 (1st Cir. 2018) (initial), and United States
v. Beeman, 871 F.3d 1215, 1220 (11th Cir. 2017) (initial), with United States v.
Washington, 890 F.3d 891, 893 (10th Cir. 2018) (successive). See also United States
v. Driscoll, 892 F.3d 1127, 1135 & n.5 (10th Cir. 2018) (initial motion subject to
“more likely than not” standard).

      Walker’s principles govern here, at the merits stage of an initial 2255 motion.
Garcia-Hernandez must “show by a preponderance of the evidence that the residual
clause led the sentencing court to apply the ACCA enhancement.” Walker, 900 F.3d
at 1015. If he was sentenced based on the residual clause, then “his sentence was
both in excess of the statutory maximum and imposed in violation of the
Constitution.” Cravens v. United States, 894 F.3d 891, 893 (8th Cir. 2018). A
Johnson error entitles Garcia-Hernandez to relief under 2255 “unless the error was
harmless.” Id., applying Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), to
Johnson error in 2255 proceeding.

      To determine whether there was a Johnson error, a court first makes factual
findings about the sentencing record. Walker, 900 F.3d at 1015. If the record is
inconclusive, the court then evaluates the legal environment at the time of
sentencing.1 Id. A district court’s “factual findings about the sentencing record” are


      1
       Garcia-Hernandez believes that Cravens says a movant may prove a Johnson
error by using any post-sentencing decision. In Cravens, however, the Government
conceded there was a Johnson error. Cravens, 894 F.3d at 893. Cravens did not
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reviewed for clear error, and “its assessment of the background legal environment
[depends] upon legal conclusions . . . reviewed de novo.” Dembry v. United States,
2019 WL 436580, at *2 (8th Cir. Feb. 5, 2019) (emphasis in original). Without the
benefit of Walker, the district court here did not find whether the record was
inconclusive (and a finding on that issue would not be clearly erroneous). A remand
would normally be required.

      Nonetheless, on collateral review, an error is harmless unless it results in
“actual prejudice,” that is, a “substantial and injurious effect or influence in
determining” a movant’s sentence. Brecht, 507 U.S. at 637, citing United States v.
Lane, 474 U.S. 438, 439 (1986)). Cf. Davis v. Ayala, 135 S. Ct. 2187, 2193 (2015)
(on collateral review, finding error was harmless after “[a]ssuming without deciding
that a federal constitutional error occurred”). The harmless-error inquiry is not
limited to the legal environment at the time of sentencing. See Dembry, 2019 WL
436580, at *2–3; United States v. Lewis, 904 F.3d 867, 873 (10th Cir. 2018)
(“[C]urrent, post-sentence cases are only applicable at the harmless error stage of
review, once the movant has established the existence of a Johnson error.”).

      Garcia-Hernandez has at least three qualifying convictions under current law.
Resentencing would not change his ACCA enhancement, so any Johnson error was
harmless. See Dembry, 2019 WL 436580, at *2–3; Fletcher v. United States, 858



squarely address how a movant proves that error. While this court cited post-
sentencing cases to support the Government’s concession, Cravens did not analyze
or discuss the Johnson issue that Walker resolved. See id. Walker’s historical test
controls how a movant proves a Johnson error. See Passmore v. Astrue, 533 F.3d
658, 660–61 (8th Cir. 2008) (“[W]hen an issue is not squarely addressed in prior case
law, we are not bound by precedent through stare decisis.”), citing Brecht, 507 U.S.
at 630–31, and Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely
lurk in the record, neither brought to the attention of the court nor ruled upon, are not
to be considered as having been so decided as to constitute precedents.”).
                                          -4-
F.3d 501, 506–08 (8th Cir. 2017). See generally Welch, 136 S. Ct. at 1268 (noting
that the Court of Appeals on remand might “determine . . . that the District Court was
correct to deny [petitioner’s] motion to amend his sentence” on the ground that his
“robbery conviction qualifies as a violent felony under the [force] clause,” which
makes him eligible for the same ACCA enhancement “regardless of Johnson”).

       Garcia-Hernandez agrees that his prior controlled substance conviction is a
serious drug offense. His Florida and New Jersey armed robbery convictions are
violent felonies under the force clause. He argues that both states’ robbery statutes
require only force necessary to overcome a victim’s resistance, and that this is not
“violent force” under Johnson v. United States, 559 U.S. 133 (2010). His argument
is foreclosed by Stokeling v. United States, 139 S. Ct. 544 (2019), addressing a lesser
offense of the Florida statute at issue here. “[T]he force necessary to overcome a
victim’s physical resistance is inherently ‘violent’ in the sense contemplated by
Johnson, and ‘suggest[s] a degree of power that would not be satisfied by the merest
touching.’” Stokeling, 139 S. Ct. at 553 (second alteration in original), quoting
Johnson, 559 U.S. at 139. Both parties agree that he was convicted of armed robbery
in 2003 under Fla. Stat. § 812.13(2)(b). This provision enhances a robbery defined
in § 812.13(1). Because an armed robbery conviction requires at least as much force
as simple robbery under § 812.13(1), it qualifies as a violent felony. See id. (holding
robbery under Fla. Stat. § 812.13(1) qualifies under the force clause). His New Jersey
armed robbery conviction likewise qualifies. He was convicted in 1991 under
N.J.S.A. § 2C:15-1. Robbery under § 2C:15-1(a)(1), the only provision he
challenges, “requires more force than that necessary merely to snatch [an]
object”—there must be “some degree of force to wrest the object from the victim.”
State v. Sein, 590 A.2d 665, 668–70 (N.J. 1991) (holding New Jersey’s robbery
statute adopts the “majority rule” that “there is insufficient force to constitute robbery
when the thief snatches property from the owner’s grasp so suddenly that the owner
cannot offer any resistance to the taking”). See United States v. West, 314 F. Supp.
3d 223, 236 (D.D.C. 2018) (collecting post-Sein cases). This degree of force satisfies

                                           -5-
the force clause, so his conviction qualifies. See Stokeling, 139 S. Ct. at 554–55;
United States v. Sykes, 2019 WL 361013, at *4 (8th Cir. Jan. 30, 2019) (holding
similar Illinois robbery statute “fits the common-law mold” requiring the use of
“violent force” under Stokeling); United States v. Swopes, 886 F.3d 668, 671 (8th Cir.
2018) (en banc) (holding Missouri second-degree robbery, which requires “the use
of force capable of preventing or overcoming resistance,” is a violent felony under
the force clause).

        Garcia-Hernandez has at least three qualifying convictions under current law,
so any Johnson error did not result in actual prejudice. He is not entitled to 2255
relief.

                                    *******

      The judgment is affirmed.
                     ______________________________




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