                                                                                     FILED
                                                                         United States Court of Appeals
                                           PUBLISH                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                          September 13, 2018
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
                                     TENTH CIRCUIT




    UNITED STATES OF AMERICA
          Plaintiff - Appellee,
    v.
    AARON LEWIS, JR.,                                            No. 17-7033


          Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of Oklahoma
             (D.C. Nos. 6:16-CV-00169-JHP and 6:10-CR-00065-JHP-1)


Submitted on the briefs: Aaron Lewis, Jr., pro se.


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


McKAY, Circuit Judge.


         Petitioner Aaron Lewis, Jr., a federal prisoner acting pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2255 petition.1



1
  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.
       In 2010, Petitioner pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act provides for an

enhanced penalty for persons convicted of an offense under 18 U.S.C. § 922(g) who have

three distinct prior convictions for either a violent felony or a serious drug offense. See

18 U.S.C. § 924(e)(1). The court found Petitioner to be an armed career criminal based

on two prior drug convictions and one burglary conviction and sentenced him to 188

months of imprisonment. He did not appeal his conviction.

       At the time of sentencing, the ACCA defined “violent felony” via three possible

clauses:

       any crime punishable by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such term if committed by an adult,
that—
       (i)    has as an element the use, attempted use, or threatened use of physical force
              against the person of another [use of force or elements clause]; or
       (ii)   is burglary, arson, or extortion, involves use of explosives [enumerated
              clause], or otherwise involves conduct that presents a serious potential risk
              of physical injury to another . . . [residual clause].

18 U.S.C. § 924(e)(2)(B). In his habeas petition, filed in 2016, Petitioner seeks

sentencing relief based on Johnson v. United States, 135 S. Ct. 2551 (2015), which

invalidated the residual clause of 18 U.S.C. § 924(e)(2)(B). The gravamen of his

argument is that he is entitled to Johnson relief because the necessary third prior

conviction for burglary under Kansas statute 21-3715 only qualified as a violent felony

under the now-void residual clause. Petitioner also contends that the district court erred

in holding that Mathis v. United States, 136 S. Ct. 2243 (2016), is not retroactively

applicable on collateral review.

                                              2
       In a § 2255 appeal, we “review the district court’s findings of fact for clear error

and its conclusions of law de novo.” United States v. Barrett, 797 F.3d 1207, 1213 (10th

Cir. 2015) (quotation marks omitted). The habeas statute “allows a § 2255 motion to be

filed within one year of ‘the date on which the right asserted was initially recognized by

the Supreme Court.’” United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017)

(quoting 28 U.S.C. § 2255(f)(3) (emphasis omitted)). Johnson’s holding that the §

924(e)(2)(B) residual clause is constitutionally invalid was made retroactive for all cases

on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016). “[I]n

order to be timely under § 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly

recognized right, regardless of whether or not the facts of the record ultimately support

the movant’s claim.” Snyder, 871 F.3d at 1126. Here, Petitioner invoked the newly

recognized right in Johnson by arguing that the district court necessarily relied on the

now-invalid residual clause in § 924(e)(2)(B) to determine his sentence. Because

Petitioner filed his motion to vacate within a year of Johnson, his motion is timely under

§ 2255.

       Petitioner has also adequately shown both cause and prejudice. His “Johnson

claim was not reasonably available” during the time when he could have filed a direct

appeal, and this “is sufficient to establish cause.” Snyder, 871 F.3d at 1127-28; see also

United States v. Driscoll, 892 F.3d 1127, 1131 (10th Cir. 2018). Moreover, if Petitioner

is correct regarding his Johnson claim, he would no longer have the requisite number of

predicate convictions for the ACCA sentencing enhancement. Given that a “sentence

that is not authorized by law is certainly an ‘actual and substantial disadvantage’ of

                                              3
‘constitutional dimensions,’” Snyder, 871 F.3d at 1128 (quoting United States v. Frady,

456 U.S. 152, 170 (1982)), Petitioner has demonstrated actual prejudice resulting from

the alleged Johnson error, Driscoll, 892 F.3d at 1131-32. Thus, Petitioner’s claim

overcomes any procedural default. See Snyder, 871 F.3d at 1127-28; Driscoll, 892 F.3d

at 1132.

       Notwithstanding this preliminary analysis, we will only issue a COA “if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make this showing, an applicant must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quotation marks omitted). In § 2255 motions where an unconstitutional reliance

on the § 924(e)(2)(B) residual clause is asserted, the burden is on the defendant to “prove

that the sentencing court, more likely than not, relied on the residual clause to enhance

his sentence under the ACCA.” Driscoll, 892 F.3d at 1135 ; see also United States v.

Washington, 890 F.3d 891, 896 (10th Cir. 2018) (“[W]e hold the burden is on the

defendant to show by a preponderance of the evidence—i.e., that it is more likely than

not—his claim relies on Johnson.”).

       Petitioner’s only argument is that his 1991 conviction for Kansas burglary no

longer qualifies a valid ACCA predicate, post-Johnson. The sentencing court did not

articulate which of the three § 924(e)(2) clauses it relied upon to conclude that

Petitioner’s burglary conviction constituted a “violent felony” under the ACCA. In the

                                              4
absence of a clear pronouncement, we must review the sentencing record and the

“relevant background legal environment at the time of sentencing” in 2011 to determine

whether the sentencing court’s analysis likely relied on the residual clause. Snyder, 871

F.3d at 1129 (citation omitted).

       When Petitioner was convicted of violating the Kansas burglary statute in 1991,

this statute provided:

       Burglary is knowingly and without authority entering into or remaining
       within any: (1) Building, mobile home, tent or other structure, with intent to
       commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft,
       railroad car or other means of conveyance of persons or property, with
       intent to commit a felony or theft therein. Burglary as described in
       subsection (1) is a class D felony. Burglary as described in subsection (2)
       is a class E felony.

Kan. Stat. Ann. § 21-3715 (1990). Under the enumerated clause of 18 U.S.C. §

924(e)(2)(B)(ii), generic burglary is a predicate crime of violence. “[A] person has been

convicted of burglary for purposes of a § 924(e) enhancement if he 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.” Taylor v. United States, 495 U.S. 575, 599 (1990).

       Both subsections of this statute appear to go beyond the generic burglary

definition by including tents or other places besides buildings. See United States v.

Scoville, 561 F.3d 1174, 1178 (10th Cir. 2009) (holding that an Ohio trespassing statute

went beyond generic burglary because it included “watercraft and tents”). Under the

“relevant background legal environment” at the time of sentencing, it “would have been

permissible for the district court to examine the underlying charging documents and/or

                                             5
jury instructions to determine if [Petitioner] was charged only with burglary of

buildings.” Snyder, 871 F.3d at 1130; see also, e.g., Taylor, 495 U.S. at 602; Shepherd v.

United States, 544 U.S. 13, 16 (2005) (“[A] later court determining the character of an

admitted burglary is generally limited to examining the statutory definition, charging

document, written plea agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.”); Scoville, 561 F.3d at 1178

(applying modified categorical approach to state statute that included unlawful entry into

tents, vehicles, and buildings in order to determine whether defendant was charged with

entering a building). The charging documents in this case readily answer this question.

According to the information, Petitioner “unlawfully, feloniously, willfully, knowingly

and without authority enter[ed] into and remain[ed] within a building . . . with the intent

to commit a theft therein, contrary to K.S.A. 21-3715, (Burglary), a class D felony.” (R.

Vol. I at 41.) Thus, based on the charging documents, “there would have been little

dispute at the time of . . . sentencing that” Petitioner’s burglary conviction fell within the

scope of the ACCA’s enumerated offenses clause. Snyder, 971 F.3d at 1129. Petitioner

has not met his burden in showing that the sentencing court more likely than not relied on

the residual clause in classifying his Kansas burglary as a predicate crime of violence

and, thus, has not established a Johnson error.

       However, after reviewing the district court’s order and the relevant case law, we

acknowledge that reasonable jurists could debate whether the district court erred in

declining to retroactively apply Mathis v. United States, 136 S. Ct. 2243 (2016), on

collateral review. Slack, 529 U.S. at 484; see United States v. Taylor, 672 F. App’x 860,

                                               6
864-65 (10th Cir. 2016) (“Because Mathis did not announce a new rule, [Petitioner]

cannot rely on it in a § 2255 petition filed nearly fifteen years after the judgment in his

criminal case became final.”); Sandlain v. English, 714 F. App’x 827, 831 (10th Cir.

2017) (“Mathis has not been made retroactive to cases on collateral review by the

Supreme Court.”); United States v. Couchman, 720 F. App’x 501, 507 n. 4 (10th Cir.

2018) (“Couchman relies on Mathis . . . but [it was] decided after his sentencing hearing.

The ‘relevant background legal environment’ does not include such ‘post-sentencing

decisions.’”); but see, e.g., United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018)

(applying Mathis retroactively on collateral review of a 2014 ACCA sentence); United

States v. Hamilton, 889 F.3d 688 (10th Cir. 2018) (applying Mathis retroactively on

collateral review of a 2005 ACCA sentence); United States v. Pacheco, 730 F. App’x 604

(10th Cir. 2018) (applying Mathis retroactively on collateral review of a 2005 ACCA

sentence); United States v. Bouziden, 725 F. App’x 653 (10th Cir. 2018) (applying

Mathis retroactively on collateral review of a 2008 ACCA sentence). We grant a COA

on this ground.

       The applicability of Mathis and other post-sentencing law depends on the stage of

Johnson review that the court is undertaking. As we previously stated in United States v.

Wilfong, 2018 WL 1617654 (10th Cir. 2018):

             [T]he two parts of our Johnson analysis present different inquiries.
       The first question asks, as a matter of historical fact, whether the
       sentencing court relied on the residual clause in imposing the ACCA
       sentence. . Our sole objective at that first stage of the analysis is to
       determine what the sentencing court did—even if that decision would be
       erroneous under current law. The answer to this question determines
       whether the movant is entitled to seek relief under Johnson at all. In

                                              7
      contrast, the second part of our analysis tasks us with deciding whether an
      identified error is harmless as a matter of law. That is, we must decide
      whether the sentencing court’s reliance on the now-invalidated residual
      clause prejudiced the movant. Our determination is not what the sentencing
      court did; it is whether the classification of the movant as an armed career
      criminal is correct. The government bears the burden of proof on this issue.
      . . . . [W]e do not defer to the sentencing court’s classification of offenses
      as violent felonies on harmless error review [because] unlike the sentencing
      court’s historical basis for its imposition of an ACCA statute, our analysis
      of the correctness of the ACCA sentence occurs under current law.

Wilfong, 2018 WL 1617654, at *5 (emphases in original) (internal citations omitted); see

also Driscoll, 892 F.3d at 1132, 1136. At the first stage, we are concerned with looking

at the law at the time of the movant’s sentencing to determine whether a Johnson error

actually occurred. If a Johnson error is established, we then turn to harmless error

analysis. We apply current law at this second stage because Johnson harmless error

review goes to the question of remedies and resentencing: is the movant entitled to a

reduced sentence because his ACCA enhancement was based on the now-invalid residual

clause? Or would 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 re-sentence him to the same length of imprisonment? See United

States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996) (“As this court has held, when a

defendant’s sentence is vacated on appeal and remanded for new sentencing, the lower

court must begin anew with de novo proceedings.”); United States v. Ziegler, 39 F.3d

1058, 1064 (10th Cir. 1994) (When we “remand[] for resentencing, the district court will

be governed by the guidelines in effect at the time of resentence . . . unless such an

application would violate the ex post facto clause of Article I, section 9, of the


                                            8
Constitution.”); United States v. Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir.

2005) (an error is harmless where we can determine from the record that the result would

be the same if resentencing occurred: “A remand would needlessly burden the district

court and counsel with another sentencing proceeding, which we know would produce

the same result.”). Our application of current law during the harmless error analysis

answers those implied questions. If a movant would still receive an ACCA enhancement

at resentencing, the sentencing court’s original reliance on the now-invalid residual

clause was harmless.

       We grant COA now because we recognize that our cases have not always

explicitly signaled which stage of Johnson review we are undertaking when applying

Mathis upon collateral review. Where a sentencing court does not indicate whether or

not it relied on the now-unconstitutional residual clause, our collateral review must

“loo[k] to the relevant background legal environment at the time of sentencing” to make

an initial determination of whether the movant has established a Johnson error. Snyder,

871 F.3d at 1129. As Snyder makes clear: “[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.”     Id. (emphasis added).      Mathis and other current, post-

sentence cases are only applicable at the harmless error stage of review, once the movant

has established the existence of a Johnson error. To the extent that any of our recent case

law applying Mathis can be read as doing so during the initial, historical analysis of

whether a Johnson error occurred,, it is not controlling, as this circuit follows the earlier,

                                              9
settled precedent. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1334 n.1

(10th Cir. 2014).

       Having granted the COA, we nevertheless deny Petitioner’s appeal on the merits.

Though Petitioner asserted a timely Johnson claim, he has not successfully established a

Johnson error, meaning that our analysis never progresses beyond the initial, historical

evaluation of the sentencing court’s decision. Petitioner was sentenced in 2010. Mathis

was decided in 2016. Because Mathis is a “post-sentencing decision” that was not part of

the “controlling law . . . at the time of sentencing,” we do not apply it on collateral review

at this stage of the analysis.

       We therefore GRANT Petitioner’s request for a certificate of appealability, and

AFFIRM the district court’s decision on the merits.




                                             10
