                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3099
                        ___________________________

                               Pamela Golinveaux

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                            United States of America

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Waterloo
                                 ____________

                          Submitted: October 16, 2018
                            Filed: February 11, 2019
                                 ____________

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

BENTON, Circuit Judge.

       Pamela Jo Golinveaux was sentenced as an armed career criminal. She moved
to vacate her sentence under 28 U.S.C. § 2255, invoking Johnson v. United States,
135 S. Ct. 2551 (2015). The district court1 denied her motion. She appeals. Having
jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court affirms.

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       In 2008, Pamela Golinveaux pleaded guilty to being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The plea
agreement stipulated she is an Armed Career Criminal under§ 924(e)(1) because she
had at least three prior qualifying felony convictions. The Presentence Investigation
Report (PSR), adopted by the district court, identified six qualifying convictions for
violent felonies, but did not specify whether ACCA’s residual clause or another
ACCA provision (such as the force clause) supported the enhancement.

       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 April 2016, less than a year after Johnson,
Golinveaux filed her first 2255 motion to vacate her sentence, claiming she no longer
qualified as an armed career criminal due to Johnson. The Government conceded that
two of the six prior offenses no longer qualify as violent felonies under ACCA. The
district court denied relief.

       A federal prisoner may collaterally attack a sentence “upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The movant bears the burden to prove each ground
entitling relief. E.g., Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969) (per
curiam).

                                           I.

      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


                                          -2-
“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
court “may have” relied on the residual clause. Id. 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).

      At the merits stage of an initial 2255 motion, Golinveaux 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 she was sentenced
based on the residual clause, then her “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 Golinveaux 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.

       “Whether the residual clause provided the basis for an ACCA enhancement is
a factual question for the district court.” Walker, 900 F.3d at 1015, citing Beeman,
871 F.3d at 1224 n.5 (stating that the basis for an enhancement is “a historical fact”).
The district court should first review the sentencing record. For example, “comments
or findings by the sentencing judge,” unobjected-to statements in the PSR, or
“concessions by the prosecutor” may show which ACCA clause was the basis of an
enhancement. Beeman, 871 F.3d at 1224 n.4. Reviewing these possible sources, the
district court here made detailed findings of historical facts. The district


                                          -3-
court—without the benefit of the Walker opinion—did not find a precise historical
fact about which clause was the basis of the enhancement. The court’s detailed
findings show that the record is inconclusive. At oral argument, Golinveaux’s
counsel agreed that the record does not state which ACCA clause was the basis of her
sentencing enhancement.

                                         II.

        When the record is inconclusive, the second step is to determine the relevant
legal environment at the time of sentencing. Driscoll, 892 F.3d at 1133. “[T]he
district court may consider ‘the relevant background legal environment at the time of
. . . sentencing’ to ascertain whether the movant was sentenced under the residual
clause.” Walker, 900 F.3d at 1015, quoting Washington, 890 F.3d at 896, and citing
United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017) (explaining that the
“relevant background legal environment is 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”). See also
United States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017) (legal environment at time
of sentencing established that the ACCA enhancement was necessarily based on the
residual clause). Walker does not “require remand in cases which turn solely upon
the background legal environment.” Dembry v. United States, 2019 WL 436580, at
*2No. 17-2849 (8th Cir. Feb. 5, 2019) (explaining that this court remanded Walker
to the district court to review the sentencing record). Here, the district court
sufficiently developed the record, which is inconclusive. This court now considers
the second step.

      Determining the legal environment requires a “legal conclusion” about the
controlling law at the time of sentencing. Driscoll, 892 F.3d at 1133 n.3, quoting
Snyder, 871 F.3d at 1128–29. This court reviews these legal conclusions de novo.
Dembry, 2019 WL 436580, at *2. See generally U.S. Bank N.A. v. Village at
Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (“[T]he standard of review for a mixed


                                         -4-
question all depends—on whether answering it entails primarily legal or factual
work.”). “Walker does not require that the district court examine the background
legal environment in the first instance.” Dembry, 2019 WL 436580, at *2. As in the
First, Fifth, Tenth, and Eleventh circuit cases that Walker favorably and repeatedly
cites, this court may determine the legal environment at the time of sentencing.2 See
Walker, 900 F.3d at 1015, citing Dimott, 881 F.3d at 242; Taylor, 873 F.3d at 482;
Washington, 890 F.3d at 899; Beeman, 871 F.3d at 1224. In those circuits, courts
of appeals reviewing the basis of an ACCA enhancement determine the legal
environment at the time of sentencing. See cases listed in the appendix to this
opinion.

       Based on the legal environment at the time of Golinveaux’s sentencing, she
cannot carry her 2255 burden. Golinveaux concedes two of her prior convictions
qualify as ACCA predicates. A third, her Iowa robbery conviction under Iowa Code
§ 711.1(1), also qualified. Section 711.1(1) has two elements: “(1) intent to commit
a theft, and (2) an assault in carrying out the intent to commit a theft.” State v.
Wilson, 523 N.W.2d 440, 441 (Iowa 1994). The Iowa Supreme Court “follow[s] the
definition of assault in Iowa Code section 708.1 when applying the assault alternative
of robbery under Iowa Code section 711.1(1).” State v. Heard, 636 N.W.2d 227, 230
(Iowa 2001). At the time of Golinveaux’s sentencing, a person committed an assault
under Iowa Code § 708.1(1) by committing an act intended to cause pain, injury, or
offensive or insulting physical contact; § 708.1(2) by placing one in fear of such
contact; or § 708.1(3) by displaying in a threatening manner any dangerous weapon
toward another. Iowa Code § 708.1 (2002). Consulting unobjected-to statements in
the PSR, the district court found Golinveaux committed assault under either §




      2
       The concurring opinion quotes from the petition for rehearing (and response)
in the Walker case, apparently drawing inferences from the parties’ views. To the
contrary, because summary denial of rehearing is not a decision on the merits, the
only inference from a summary denial of rehearing is that the decision stands. See
United States v. Replogle, 678 F.3d 940, 942 (8th Cir. 2012).
                                         -5-
708.1(1) or § 708.1(3). Cf. United States v. Garcia-Longoria, 819 F.3d 1063, 1067
(8th Cir. 2016).

        The legal environment at the time of Golinveaux’s sentencing establishes that
assault under either § 708.1(1) or § 708.1(3) qualified as an ACCA predicate under
the force clause. See United States v. Smith, 171 F.3d 617, 621 (8th Cir. 1999)
(offense charged under Iowa Code § 708.1(1) has an element of physical force within
the meaning of similar force provision in 18 U.S.C. § 921(a)(33)(A)(ii)); United
States v. McDile, 914 F.2d 1059, 1061–62 (8th Cir. 1990) (violation of Missouri
statute similar to § 708.1(3) is a violent felony under ACCA force clause because it
“involv[es] the use, attempted use, or threatened use of physical force against the
person of another”). Cf. Snyder, 871 F.3d at 1129–30 (Wyoming burglary qualifies
as predicate under ACCA enumerated offenses clause because pre-sentencing case
found similar Missouri burglary qualifies as predicate under ACCA enumerated
offenses clause). “[G]iven the relevant background legal environment that existed at
the time of [Golinveaux’s] sentencing, there would have been no need for reliance on
the residual clause.” Id. at 1130. See Walker, 900 F.3d at 1015, quoting
Washington, 890 F.3d at 898–99 (“[I]t is not enough for [a movant] to show that . .
. ‘the residual clause offered the path of least analytical resistance.’”).


      “In short, neither the relevant background legal environment nor the materials
before the district court reveal that the court more likely than not used the residual
clause . . . in sentencing.” Washington, 890 F.3d at 900–01. Golinveaux is unable
“to 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. A
remand is unnecessary because a contrary conclusion would be erroneous.

                                         III.

      A remand is also unnecessary because any error in relying on the residual
clause would be harmless. See Cravens, 894 F.3d at 893 (Johnson error entitles

                                         -6-
movant to relief under 2255 “unless the error was harmless.”), applying Brecht, 507
U.S. at 637. 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).

        Even if Golinveaux could show that her original sentence was based on the
residual clause, her sentence would be unaffected. She concedes two of her prior
convictions qualify as ACCA predicates. As discussed, a third—her Iowa robbery
conviction under Iowa Code § 711.1(1)—qualified under the law at the time of
sentencing. Golinveaux argues that it does not qualify under current law because the
three subsections of the robbery statute are alternative means of satisfying a single
element, and that the first two subsections encompass conduct that falls short of
“violent force” as defined in Johnson v. United States, 559 U.S. 133, 139–40 (2010).
See Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (“[A] state crime cannot
qualify as an ACCA predicate if its elements are broader than those of a listed generic
offense.). However, the subsections of § 711.1 are alternative elements that define
different crimes, rather than “various factual ways of committing some component
of the offense.” Id. at 2249. See Wilson, 523 N.W.2d at 441 (“essential elements”
of robbery are “(1) intent to commit a theft, and (2) an assault in carrying out the
intent to commit a theft”). The assault subsection of § 711.1 is an alternative element
in its own right. The trial information in Golinveaux’s case is consistent with this
understanding. By alleging that Golinveaux, “having the intent to commit a theft[,]
committed an assault upon employees . . . in violation of § 711.1(1),” the charging
document referenced only one alternative to the exclusion of the others. See Mathis,
136 S. Ct. at 2257.

      Golinveaux’s Iowa robbery conviction qualifies as an ACCA predicate under
current law. See Wilson, 523 N.W.2d at 441 (the assault alternative of robbery under
§ 711.1(1) applies definition of assault in § 708.1); United States v. Gaines, 895 F.3d


                                         -7-
1028, 1033 (8th Cir. 2018) (§ 708.1(1) assault qualifies as a crime of violence under
sentencing guidelines); United States v. Maid, 772 F.3d 1118, 1121 (8th Cir. 2014)
(§ 708.1(3) assault qualifies as a crime of violence under sentencing guidelines);
Boaz v. United States, 884 F.3d 808, 810 n.3 (8th Cir. 2018) (this court views the
force clauses in the ACCA and sentencing guidelines interchangeably). Resentencing
would not change Golinveaux’s ACCA enhancement, so any Johnson error was
harmless. See Fletcher v. United States, 858 F.3d 501, 506 (8th Cir. 2017).

                                    *******

      The judgment is affirmed.


COLLOTON, Circuit Judge, concurring in the judgment.

       As a matter of first principles, I would agree with the court’s ultimate
conclusion in Part II. A movant seeking to vacate her sentence under Johnson v.
United States, 135 S. Ct. 2551 (2015), should bear the burden to establish that her
sentence, more likely than not, was based on the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii). When the record of the sentencing hearing is silent or
inconclusive, however, the post-conviction court must determine the issue according
to the background legal environment in which the sentencing occurred. The process
of determining the legal environment at the time of sentencing, and the legal
significance of that environment, presents questions of law, not fact. And here, it was
settled under Eighth Circuit law at the time of Golinveaux’s sentencing that her
conviction for second degree robbery in Iowa qualified as a violent felony under the
“force clause” of 18 U.S.C. § 924(e)(2)(B)(i). So the sentence, as a matter of law,
was not based on the residual clause of § 924(e)(2)(B)(ii).

       But Walker v. United States, 900 F.3d 1012 (8th Cir. 2018), seems to preclude
this approach, because it declared that “[w]hether the residual clause provided the
basis for an ACCA enhancement is a factual question for the district court.” Id. at

                                         -8-
1015 (emphasis added). Consistent with treating the matter as a question of fact,
Walker said that “the district court may consider the relevant background legal
environment at the time of . . . sentencing,” if the record or an evidentiary hearing is
inconclusive about the basis for the sentence. Id. (emphasis added) (internal
quotation omitted). Walker cited a footnote in Beeman v. United States, 871 F.3d
1215 (11th Cir. 2017), to declare that “the basis for an enhancement is ‘a historical
fact.’” The Beeman footnote, in turn, discussed how the background legal
environment cast light on what it described as a “question of historical fact.” Id. at
1224 n.5.

       Although the sentencing record in Walker was “sparse,” 900 F.3d at 1015, and
did not reveal whether the sentencing court relied on the residual clause, see United
States v. Walker, No. 4:02-cr-00161, R. Doc. 161, 162, this court remanded the post-
conviction case to the district court, saying that “it is the function of the District Court
rather than the Court of Appeals to determine the facts.” 900 F.3d at 1015 (quoting
Murray v. United States, 487 U.S. 533, 543 (1988)). There would have been no need
to remand for factual findings if the meaning and significance of the background legal
environment were questions of law.

       The appellant in Walker objected to treating the background legal environment
as a factual issue, Walker, No. 16-4284, Pet. for Reh’g at 5-9, and the government
acknowledged that Walker went “a step beyond” decisions of other circuits that
would not have called for a remand, id., Resp. to Pet. at 11, but the court denied the
appellant’s petition for rehearing on that point, and we are thus bound by Walker as
written. Other circuits allow the court of appeals to determine what was the
background legal environment at the time of sentencing, ante, at 5, but Walker did not
cite those decisions for the proposition that the substance and significance of the legal
environment is an issue of law. So while the court’s ultimate conclusion in Part II




                                            -9-
would be correct in a case of first impression—the background legal environment
raises questions of law, not fact—the reasoning is problematic in light of Walker.3

      There is a different reason, however, to affirm the denial of Golinveaux’s
motion. The majority opinion ultimately agrees. Even assuming that Golinveaux
could show that her original sentence was based on the residual clause, there is no
need for resentencing if the district court would be required to impose the same
sentence under current law. Any error in relying on the residual clause would be
harmless. See Fletcher v. United States, 858 F.3d 501, 506-08 (8th Cir. 2017).

       Golinveaux is subject to enhanced punishment as an armed career criminal if
she sustained three prior convictions for a violent felony or a controlled substance
offense. She concedes that two prior convictions qualify as predicates. Golinveaux
contends, however, that a third conviction—for second degree robbery under Iowa
Code § 711.1 (1995)—does not count as a violent felony under current law. She
asserts that the three subsections of the robbery statute are alternative means of
satisfying a single element, see Mathis v. United States, 136 S. Ct. 2243, 2249 (2016),
and that the first two subsections encompass conduct that falls short of “violent force”
as defined in Johnson v. United States, 559 U.S. 133, 139-40 (2010).

       The subsections of § 711.1, however, are best understood as setting forth
alternative elements that define different crimes, rather than “various factual ways of
committing some component of the offense.” Mathis, 136 S. Ct. at 2249. State v.
Wilson, 523 N.W.2d 440 (Iowa 1994), explained that the “essential elements” of

      3
       As this decision was on the verge of filing, another panel of the court declared
in dicta that Walker does not require a remand for a district court to address the
background legal environment that prevailed at the time of sentencing, and that
assessment of the background legal environment depends on legal conclusions.
Dembry v. United States, No. 17-2849, slip op. at 4 (8th Cir. Feb. 5, 2019). Because
this case, like Dembry, can be resolved on an alternative ground, id. at 4-5, it is
unnecessary to address Dembry’s treatment of Walker.
                                         -10-
robbery were “(1) intent to commit a theft, and (2) an assault in carrying out the intent
to commit a theft,” id. at 441, thereby showing that the assault subsection of § 711.1
is an alternative element in its own right. The trial information in Golinveaux’s case
is consistent with this understanding. By alleging that Golinveaux, “having the intent
to commit a theft[,] committed an assault upon employees . . . in violation of
§ 711.1(1),” the charging document referenced only one alternative to the exclusion
of the others. See Mathis, 136 S. Ct. at 2257.

       The judicial record shows that Golinveaux was convicted under § 711.1(1), the
assault alternative under the Iowa robbery statute. Golinveaux does not dispute that
the underlying assault statute, Iowa Code § 708.1 (1995), is divisible under current
law, see United States v. Smith, 171 F.3d 617, 620-21 (8th Cir. 1999), and she does
not claim any error by the district court in relying on unobjected-to statements in the
presentence report to determine that she violated either § 708.1(1) or § 708.1(3). Cf.
United States v. Garcia-Longoria, 819 F.3d 1063, 1067 (8th Cir. 2016). Nor does she
dispute the district court’s conclusion that a robbery committed by either type of
assault is a violent felony under current law because it has as an element the use,
attempted use, or threatened use of force against another person. See Smith, 171 F.3d
at 621; United States v. Boots, 816 F.3d 971, 974 (8th Cir. 2016) (per curiam).

       Therefore, Golinveaux’s prior conviction for second degree robbery in Iowa
counts as a violent felony under current law. She has three qualifying predicate
convictions under current law, and any error in using the residual clause to classify
her as an armed career criminal at the original sentencing is harmless. I therefore
concur in the judgment to affirm the district court.




                                          -11-
Appendix

United States v. Lewis, 904 F.3d 867, 871–72 (10th Cir. 2018) (determining relevant
background legal environment at time of sentencing).

United States v. Wiese, 896 F.3d 720, 725 (5th Cir. 2018) (examining precedent at
time of sentencing).

United States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir. 2018) (reviewing de novo
district court’s analysis of legal environment at time of sentencing).

United States v. Washington, 890 F.3d 891, 899 (10th Cir. 2018) (determining
relevant background legal environment at time of sentencing).

Dimott v. United States, 881 F.3d 232, 241–42 (1st Cir. 2018) (examining precedent
at time of sentencing).

United States v. Murphy, 887 F.3d 1064, 1068–69 (10th Cir. 2018) (determining
relevant background legal environment at time of sentencing).

United States v. Taylor, 873 F.3d 476, 482 (5th Cir. 2017) (determining legal
precedent at time of sentencing).

United States v. Beeman, 871 F.3d 1215, 1224 (11th Cir. 2017) (noting lack of
precedent at time of sentencing holding petitioner’s convictions qualified under only
the residual clause).

United States v. Snyder, 871 F.3d 1122, 1130 (10th Cir. 2017) (determining relevant
background legal environment at time of sentencing).

Ziglar v. United States, 2018 WL 6505435, at *3 (11th Cir. Dec. 11, 2018)
(unpublished per curiam) (reviewing “legal arguments” about state of the law at time
of sentencing).

Smith v. United States, 2018 WL 4355909, at *3 (11th Cir. Sept. 12, 2018)
(unpublished per curiam) (noting lack of precedent at time of sentencing holding
petitioner’s convictions qualified under only the residual clause).


                                        -12-
Bivins v. United States, 747 Fed. Appx. 765, 770 (11th Cir. 2018) (per curiam)
(noting lack of precedent at time of sentencing holding petitioner’s convictions
qualified under only the residual clause).

United States v. Hernandez, 743 Fed. Appx. 156, 159–61 (10th Cir. 2018)
(determining relevant background legal environment at time of sentencing).

Harper v. United States, 742 Fed. Appx. 445, 448–49 (11th Cir. 2018) (per curiam)
(noting lack of precedent at time of sentencing holding petitioner’s convictions
qualified under only the residual clause).

United States v. Galbreath, 742 Fed. Appx. 348, 351–54 (10th Cir. 2018)
(determining relevant background legal environment at time of sentencing).

United States v. Byers, 739 Fed. Appx. 925, 927–29 (10th Cir. 2018) (determining
relevant background legal environment at time of sentencing).

United States v. Rhodes, 721 Fed. Appx. 780, 782 (10th Cir. 2018) (determining
relevant background legal environment at time of sentencing).

United States v. Couchman, 720 Fed. Appx. 501, 506–07 (10th Cir. 2018)
(determining relevant background legal environment at time of sentencing).

United States v. Robinson, 720 Fed. Appx. 946, 951–52 (10th Cir. 2018)
(considering the record in light of background legal environment).

United States v. Hopson, 718 Fed. Appx. 699, 703 (10th Cir. 2017) (determining
relevant background legal environment at time of sentencing).

United States v. Buck, 717 Fed. Appx. 773, 776–77 (10th Cir. 2017) (determining
relevant background legal environment at time of sentencing).

United States v. Westover, 713 Fed. Appx. 734, 737–39 (10th Cir. 2017)
(determining relevant background legal environment at time of sentencing).
                      ______________________________




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