                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 16a0233p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


 In re: JERRY LEE SARGENT,                                 ┐
                                               Movant.     │
                                                       >       No. 16-5632
                                                      │
                                                      ┘
                       On Motion to Authorize the Filing of a Second or
                       Successive Application for Habeas Corpus Relief.
            Nos. 3:09-cr-00007-1; 3:14-cv-07360—Danny C. Reeves, District Judge.

                              Decided and Filed: September 14, 2016

                   Before: KEITH, ROGERS, and SUTTON, Circuit Judges.

                                        _________________

                                            COUNSEL

ON RESPONSE: Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE,
Lexington, Kentucky, for Respondent. ON MOTION: Jerry Lee Sargent, Tucson, Arizona, pro
se.
                                        _________________

                                             OPINION
                                        _________________

       DAMON J. KEITH, Circuit Judge. Jerry Lee Sargent, a pro se federal prisoner, moves
this court for an order authorizing the district court to consider a second or successive motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See 28 U.S.C. §§ 2244(b),
2255(h). He also moves for the appointment of counsel. For the following reasons, we GRANT
Sargent’s motion for authorization to file a second or successive § 2255 petition, and DENY his
motion to appoint counsel.




                                                  1
No. 16-5632                                In re: Sargent                                Page 2


                                        I. BACKGROUND

         Sargent pleaded guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). He received an enhanced sentence under the Armed Career Criminal Act
(“ACCA” or “the Act”) based on the following prior convictions: (1) arson; (2) first-degree
wanton endangerment; (3) trafficking more than five pounds of marijuana; and (4) first-degree
rape. The district court imposed a term of imprisonment of 327 months. Sargent argued on
appeal that the district court erred by enhancing his sentence under the ACCA. This court
affirmed the district court’s judgment. United States v. Sargent, No. 10-5182 (6th Cir. Jan. 9,
2012).

         Sargent filed his first § 2255 motion in 2014, claiming that it was error for the district
court, rather than a jury, to enhance his sentence on the basis of his prior convictions, based on
Alleyne v. United States, 133 S. Ct. 2151 (2013). The district court denied the motion, and this
court denied a certificate of appealability.

         In his current motion, Sargent asserts that he is entitled to relief from his enhanced
sentence based on Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court
invalidated the so-called “residual clause” of the ACCA as unconstitutionally vague. Sargent
claims that the district court ruled that his prior conviction for wanton endangerment fell within
the residual clause. He also argues that his prior conviction for arson has been reversed and
cannot qualify as a predicate offense. He therefore asserts that he cannot be sentenced under the
ACCA because he no longer has three qualifying predicate offenses.

                                         II. DISCUSSION

         We may authorize the filing of a second or successive § 2255 motion when the applicant
makes a prima facie showing that his proposed claim relies on “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). Pertinent to Sargent’s motion, the Supreme Court has
declared, in the context of the ACCA, that the rule announced in Johnson has retroactive effect
to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016). This means
that petitioners, like Sargent, who were sentenced pre-Johnson can apply Johnson’s holding to
No. 16-5632                                     In re: Sargent                                        Page 3


attack the constitutionality of their ACCA-enhanced sentences in a habeas petition. See In re
Watkins, 810 F.3d 375, 382 (6th Cir. 2015).

        A defendant is considered an Armed Career Offender under the ACCA if he or she
violates 18 U.S.C. § 922(g) and has at least three qualifying convictions for a “violent felony” or
a serious drug offense. See United States v. Kemmerling, 612 F. App’x 373, 375 (6th Cir. 2015).
The ACCA defines the term “violent felony” as follows:

        Any crime punishable by imprisonment for a term exceeding one year, . . . that
        (i)    [(Force Clause)] has as an element the use, attempted use, or threatened
               use of physical force against the person of another; or
        (ii)   [(Enumerated-Felony Clause)] is burglary, arson, or extortion, involves
               the use of explosives, or
               [(Residual Clause)] otherwise involves conduct that presents a serious
               potential risk of physical injury to another[.]

See 18 U.S.C. § 924(e)(2)(B); United States v. Elliott, 757 F.3d 492, 494 (6th Cir. 2014).

        The Supreme Court of the United States held in Johnson v. United States, 135 S. Ct. 2551
(2015), that the residual clause is unconstitutionally vague. The record demonstrates that the
district court relied on four prior convictions to qualify Sargent for a sentencing enhancement
under the ACCA: (1) arson; (2) first-degree wanton endangerment; (3) trafficking in more than
five pounds of marijuana; and (4) first-degree rape.

        Sargent’s prior convictions for arson and marijuana trafficking do not fall under the
“residual clause.” Arson is an enumerated offense. Sargent’s marijuana trafficking conviction
qualifies as a serious drug offense. Johnson invalidated only the residual clause of the ACCA’s
definition of a violent felony; it did not invalidate the enumerated felony clause or any portion of
the definition of a “serious drug offense.” See generally Johnson, 135 S. Ct. 2551. Therefore,
neither of these two convictions was affected by Johnson.1

        The present record is unclear, though, as to whether either of Sargent’s remaining
offenses—first-degree wanton endangerment or first-degree rape—constitutes a third qualifying
conviction. With respect to the wanton endangerment conviction, before the Supreme Court’s
        1
          Moreover, Sargent has failed to provide any evidence supporting his assertion that his arson conviction
has been reversed.
No. 16-5632                               In re: Sargent                                  Page 4


opinion in Johnson, this court held that Kentucky’s wanton endangerment statute can be
classified as a violent felony under the ACCA’s residual clause. See United States v. Clark, 458
F. App’x 512, 515−16 (6th Cir. 2012). Accordingly, Sargent has made a prima facie showing
that his prior wanton endangerment conviction may no longer qualify as a crime of violence
under the ACCA.

          With respect to Sargent’s prior conviction for first-degree rape, under Kentucky law,
first-degree rape consists of either: (a) “sexual intercourse with another person by forcible
compulsion”; or (b) “sexual intercourse with another person who is incapable of consent because
he . . . [i]s physically helpless; or [i]s less than twelve years old.”        See Ky. Rev. Stat.
§ 510.040(1)(a), (b). Accordingly, part (a) has as an element “forcible compulsion” and would
thus likely qualify as a violent felony under the use-of force clause.             See 18 U.S.C.
§ 924(e)(2)(B)(i). But part (b) may be violated without the use of force. See Martin v. Kassulke,
970 F.2d 1539, 1546 (6th Cir. 1992) (noting that part (a) of the provision deals with forcible
compulsion, while part (b) of the provision relates to “physical helplessness,” and “thus [part (b)]
may be violated by the [offender] without any need for the use of forcible compulsion”). When,
as here, a statute “could be violated in a way that would constitute a [violent felony] and in a way
that would not,” the statute may be “divisible.” See United States v. Denson, 728 F.3d 603, 608
(6th Cir. 2013) (citation omitted); see also Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)
(noting that a statute is not divisible if it merely “enumerates various factual means of
committing a single element”).      A divisible statute is one that effectively creates multiple
different crimes. See Denson, 728 F.3d at 612.

          When a statute is divisible, courts must employ what is known as the “modified
categorical approach” in order to determine whether the prior conviction qualifies under the
ACCA. See Denson, 728 F.3d at 608; see also Elliott, 757 F.3d at 494. Under the modified
categorical approach, the court may “consult a limited class of documents . . . to determine which
alternative [element] formed the basis of the defendant’s prior conviction.” Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013); see also Shepard v. United States, 544 U.S. 13, 16-17
(2005).     These documents are commonly referred to as Shepard documents. See Denson,
728 F.3d at 608. None of these relevant documents are present in the current record before us,
No. 16-5632                                     In re: Sargent                                         Page 5


however.2 Accordingly, we are unable to determine the nature of Sargent’s first-degree rape
conviction. Because the Kentucky rape statute pursuant to which Sargent was convicted is likely
divisible, and because there are no relevant Shepard documents in the record, Sargent has made a
prima facie showing that his first-degree rape conviction may no longer qualify as a predicate
offense for ACCA enhancement. In re McDonald, 514 F.3d 539, 544 (6th Cir. 2008) (noting
that the prima facie showing “is not a difficult standard to meet”).

        In sum, Sargent has made a prima facie showing that two of his four convictions may no
longer serve as predicate offenses under the ACCA.

                                            III. CONCLUSION

        Because Sargent has made a prima facie showing that he is entitled to relief under
Johnson, his motion is GRANTED.                 We AUTHORIZE the district court to consider his
proposed application, and TRANSFER the case to the United States District Court for the
Eastern District of Kentucky for further proceedings. Sargent’s motion for the appointment of
counsel is DENIED without prejudice to his making such a motion in the district court.




        2
           While the presentence report (PSR) is in the record, we have repeatedly held that the PSR is not a
permissible Shepard document. See, e.g., United States v. Gardner, 649 F.3d 437, 445 (6th Cir. 2011) (holding that
neither state nor federal PSRs are permissible Shepard documents); cf. United States v. Wynn, 579 F.3d 567, 576
(6th Cir. 2009) (holding that courts shall not consider factual statements in the PSR to determine whether a prior
conviction constitutes a “crime of violence”).
