                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2349
                         ___________________________

                                Travis Ryan Raymond

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: June 12, 2019
                               Filed: August 13, 2019
                                   ____________

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

       Travis Ryan Raymond received a mandatory minimum sentence under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Two years later, he filed
a pro se petition under 28 U.S.C. § 2255 challenging the sentence. The district court
concluded that Raymond did not qualify for the ACCA mandatory minimum but that
it nonetheless was unable to grant relief because Raymond could not show a complete
miscarriage of justice. Raymond appeals not from that order, but from an order
denying his later, counseled motion for relief under Federal Rule of Civil Procedure
60(b)(6). Because the district court was not precluded from granting Raymond relief,
we vacate the district court’s decision and remand the case for further proceedings.

                                           I

       In 2014, Raymond pleaded guilty to possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The drug count
carried a 20-year maximum term of imprisonment. The firearm count normally
carried a 10-year maximum, but the district court found that five of Raymond’s prior
Minnesota convictions qualified as violent felonies under the ACCA, which increased
the minimum term of imprisonment on the firearm count to 15 years. Raymond
objected to the ACCA enhancement. The district court overruled the objection but
encouraged Raymond to appeal the enhancement, noting that the Supreme Court
would soon “be taking up this issue” in Johnson v. United States. It then sentenced
Raymond to concurrent 15-year terms of imprisonment on both counts, which it
explained was the mandatory minimum sentence allowed under the ACCA and thus
the sentence “that no judge can go under.” It also imposed a five-year term of
supervised release.

        Raymond appealed, challenging the ACCA enhancement. In February 2015,
this court affirmed the sentence, explaining that “convictions under the Minnesota
statutes that Raymond violated are violent felonies under § 924(e).” United States v.
Raymond (Raymond I), 778 F.3d 716, 717 (8th Cir. 2015) (per curiam). Four months
later, the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct.
2551 (2015), holding the residual clause of the ACCA void for vagueness under the
Fifth Amendment.




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       In June 2016, Raymond filed a timely pro se petition to vacate his sentence
under 28 U.S.C. § 2255, arguing that in light of Johnson, the ACCA enhancement no
longer applied to him. The district court agreed with Raymond and the government
that three of his prior Minnesota convictions—for third degree burglary, terroristic
threats, and fleeing a police officer—do not qualify as violent felonies after Johnson,
and therefore the ACCA enhancement does not apply to him and he “is not subject to
the statutory mandatory minimum sentence of fifteen years.” United States v.
Raymond (Raymond II), Crim. No. 14-26, 2017 WL 2483788, at *2 (D. Minn. June
8, 2017). But it concluded that nevertheless, Raymond was not entitled to relief
because his 15-year sentence still fell within the sentencing range recommended by
the United States Sentencing Guidelines on the drug count, so the denial of relief
would not result in “a complete miscarriage of justice.” Id. at *1, 3 (quoting United
States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). Raymond subsequently filed a
pro se motion for reconsideration, which the district court denied.

       Then, in February 2018, the district court appointed the federal defender to
represent Raymond at the federal defender’s request. Raymond, through counsel,
filed a motion under Rule 60(b)(6) seeking reconsideration of his petition.1 The
district court denied the motion, explaining once again that because “the same
sentence could be reimposed” at resentencing, Raymond had “failed to show there
would be a complete miscarriage of justice if he is not granted relief.” United States
v. Raymond (Raymond III), Crim. No. 14-26, 2018 WL 1902724, at *5 (D. Minn.
Apr. 20, 2018) (citing Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011)
(en banc)). But it granted Raymond a certificate of appealability on the issue.
Raymond filed a notice of appeal on June 14, 2018.



      1
        The district court determined that Raymond’s filing was a Rule 60(b) motion
in both form and substance and therefore not subject to § 2255’s limitations on second
or successive habeas petitions. The government does not contest this determination.


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                                            II

       Because Raymond’s notice of appeal was filed more than 60 days after the
district court issued its initial order denying his § 2255 petition, our review is limited
to the district court’s denial of the Rule 60(b)(6) motion; we lack jurisdiction to
review the original decision denying § 2255 relief. See Rule 11(b) of the Rules
Governing Section 2255 Proceedings; Fed. R. App. P. 4(a)(4)(A). As a practical
matter, the timing of Raymond’s appeal affects our standard of review. Rather than
reviewing the merits of the § 2255 decision de novo, we must review the district
court’s denial of the Rule 60(b)(6) motion for an abuse of discretion. Davis v. Kelley,
855 F.3d 833, 835 (8th Cir. 2017) (per curiam). “An error of law is necessarily an
abuse of discretion.” City of Duluth v. Fond du Lac Band of Superior Chippewa, 702
F.3d 1147, 1152 (8th Cir. 2013).

       Rule 60(b)(6) allows for relief only in “extraordinary circumstances.” Buck v.
Davis, 137 S. Ct. 759, 777–78 (2017) (quoting Gonzalez v. Crosby, 545 U.S. 524,
535 (2005)). “In determining whether extraordinary circumstances are present, a court
may consider a wide range of factors. These may include, in an appropriate case, ‘the
risk of injustice to the parties’ and ‘the risk of undermining the public’s confidence
in the judicial process.’” Id. at 778 (quoting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863–64 (1988)). “‘[A] good claim or defense’ is a precondition
of Rule 60(b)(6) relief.” Id. at 780 (quoting 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2857 (3d ed. 2012)). Therefore, we begin our review with
the merits of Raymond’s § 2255 petition—the only factor that the district court
considered.




                                           -4-
                                          A

       Section 2255 offers potential remedies in several circumstances, including cases
shown to contain jurisdictional errors, constitutional errors, and errors of law. See
§ 2255(b). The first two types of errors are readily cognizable under § 2255. See
Cravens v. United States, 894 F.3d 891, 893 (8th Cir. 2018). But when it comes to
errors of law, “the permissible scope of a § 2255 [petition] is severely limited.” Id.
(quoting Sun Bear, 644 F.3d at 704). An error of law may be remedied under § 2255
only when it “constitute[s] ‘a fundamental defect which inherently results in a
complete miscarriage of justice.’” United States v. Addonizio, 442 U.S. 178, 185
(1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

       Here, the district court believed that Sun Bear controlled the outcome of
Raymond’s § 2255 petition and that under Sun Bear, “if the same sentence could have
been imposed, then a defendant is not entitled to habeas relief.” Raymond III, 2018
WL 1902724, at *4. But Sun Bear concerned an improper application of the
Guidelines. See Sun Bear, 644 F.3d at 704–05. In contrast, the district court here
determined that the sentence imposed on Raymond’s firearm count was based on the
ACCA’s unconstitutionally vague residual clause, see Raymond III, 2018 WL
1902724, at *2, which we have since explained means that the sentence was “imposed
in violation of the Constitution,” Cravens, 894 F.3d at 893. The district court’s
application of the incorrect standard, although understandable pre-Cravens, is a legal
error that amounts to an abuse of discretion.

      Because the error in Raymond’s sentencing is a constitutional one, Raymond
would be “entitled to relief unless the error was harmless,” that is, unless “the
[enhancement] did not have substantial and injurious effect or influence on the
outcome of the proceeding and caused no actual prejudice to the defendant.” Id.
(cleaned up). The mere fact that the district court could have imposed the same term
of imprisonment without the ACCA enhancement does not render the error harmless.

                                         -5-
Id. at 893–94. And here, the district court, at a minimum, could not have imposed the
same term of supervised release without the ACCA enhancement, as the maximum
term on each count would be three years.2 See 21 U.S.C. § 841(b)(1)(C) and 18
U.S.C. §§ 924(a)(2) and 3583(b)(2). Thus, the sentencing error identified by the
district court would prejudice Raymond, entitling him to relief under § 2255 and
potentially entitling him to relief under Rule 60(b)(6).

                                          B

        In the usual case, we would next turn our attention to the district court’s
consideration of other Rule 60(b)(6) factors. But here, the district court’s denial of
relief under Rule 60(b)(6) rested solely on the merits of Raymond’s underlying § 2255
petition, and our analysis of the merits question rests on the proposition that the
district court correctly concluded that Raymond no longer qualifies for an ACCA
enhancement. That proposition has been called into question by the government,
citing the Supreme Court’s opinion in Quarles v. United States, 139 S. Ct. 1872
(2019), which was issued shortly before we held oral argument on Raymond’s appeal.
Quarles held that the broader definition of “remaining in” burglary qualifies as a
violent felony under the ACCA. See id. at 1877. The government argues that Quarles
abrogated our previous case law on Minnesota’s third degree burglary statute, United
States v. McArthur, 850 F.3d 925 (8th Cir. 2017), such that Raymond’s third degree
burglary conviction once again qualifies as a violent felony. Raymond concedes that
Quarles changes the legal landscape, but he argues that nonetheless, Minnesota’s third

      2
        The government suggests that the district court erred in imposing a concurrent
five-year term of supervised release on the drug count and that Raymond forfeited his
right to correct that error by not raising the issue on direct appeal. But the district
court simply imposed a single five-year term of supervised release without specifying
specific lengths for each count, presumably because terms of supervised release are
statutorily required to run concurrently. See 18 U.S.C. § 3624(e). So there was no
error for Raymond to challenge on direct appeal, and Raymond did not forfeit his right
to a term of supervised release authorized by statute.

                                         -6-
degree burglary statute remains outside the ACCA’s definition of violent felony. See
Van Cannon v. United States, 890 F.3d 656, 664 (7th Cir. 2018) (holding that
Minnesota second degree burglary does not qualify as a violent felony because, among
other things, “the Minnesota statute doesn’t require proof of intent to commit a crime
at all”).

       Under the circumstances, we believe it best to vacate the denial of Rule 60(b)(6)
relief and remand to the district court to reconsider the merits of Raymond’s ACCA
challenge in light of Quarles and, if necessary, to consider other factors affecting the
Rule 60(b)(6) analysis.
                        ______________________________




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