                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3734
                        ___________________________

                                    Darren Holter

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

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

                           Submitted: October 18, 2018
                             Filed: March 22, 2019
                                 [Unpublished]
                                 ____________

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

PER CURIAM.

       Darren Joseph Holter appeals the district court’s denial of his successive 28
U.S.C. § 2255 petition. He pled guilty in 2005 to being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court
sentenced him as an armed career criminal under 18 U.S.C. § 924(e) because he had
at least three qualifying prior convictions. In Johnson v. United States, 135 S. Ct.
2551, 2557 (2015), the Supreme Court invalidated the ACCA’s residual clause. The
Court later held Johnson’s new rule retroactive on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1264–65 (2016).

      After Johnson, Holter claimed he no longer was an armed career criminal. He
concedes that his prior conviction for a controlled substance offence is a predicate
felony under the ACCA. He argues that his other convictions—possession of a
short-barreled shotgun and three North Dakota burglaries—were predicates only
under the invalidated residual clause. The district court denied Holter’s motion,
finding that two of his burglary convictions were ACCA predicates.

       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. “Whether the residual
clause provided the basis for an ACCA enhancement is a factual question for the
district court.” Id. “To determine whether there was a Johnson error, a court first
makes factual findings about the sentencing record.” Garcia-Hernandez v. United
States, 915 F.3d 558, 560 (8th Cir. 2019). “If the record is inconclusive, the court
then evaluates the legal environment at the time of sentencing.” Id. Here, as required
by Walker, the district court did not make factual findings whether Holter was
sentenced under the residual clause (and a finding on this issue would not be clearly
erroneous).

       This court vacates the order denying Holter’s 2255 motion and remands for the
district court to determine whether he has shown he was more likely than not
sentenced as an armed career criminal under the residual clause. Walker, 900 F.3d
at 1015. See Jackson v. United States, 745 F. App’x 658, 660 (8th Cir. 2018) (after
Walker, remanding for district court to determine whether the residual clause led the
sentencing court to apply the ACCA enhancement). If the court finds that Holter

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makes this showing, it should determine whether the error was harmless. See
Golinveaux v. United States, 915 F.3d 564, 570 (8th Cir. 2019) (affirming denial of
2255 in part because resentencing would not change ACCA enhancement, “so any
Johnson error was harmless.”). If the court finds that Holter does not carry his
burden, the motion should be denied.

                                   *******

      The judgment is vacated, and the case remanded for proceedings consistent
with this opinion.
                     ______________________________




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