from the United States District Court for the District of
Wyoming (D.C. Nos. 1:16-CV-00082-SWS and 2:04-CR-00137-WFD-1)
Meredith B. Esser, Assistant Federal Public Defender
(Virginia L. Grady, Federal Public Defender, and Grant R.
Smith, Assistant Federal Public Defender, on the briefs),
Office of the Federal Public Defender for the District of
Colorado, Denver, Colorado, appearing for Appellant.
M. Conder, Assistant United States Attorney (Christopher A.
Crofts, United States Attorney, with him on the brief),
Office of the United States Attorney for the District of
Wyoming, Lander, Wyoming, appearing for Appellee.
TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit
BRISCOE, CIRCUIT JUDGE.
a 28 U.S.C. § 2255 challenge, under Johnson v.
United States, 135 S.Ct. 2551 (2015), to an Armed Career
Criminal Act (ACCA) sentencing enhancement. In 2004, Chance
Wade Driscoll ("Driscoll") pleaded guilty to being
a felon in possession of a firearm. At Driscoll's
sentencing in January 2005, the sentencing
court accepted the Presentence Investigation
Report's ("PSR") determination that Driscoll
was an armed career criminal based upon one previous drug
conviction and two previous burglary convictions. The
sentencing court did not state whether the two burglary
convictions counted as violent felonies under the ACCA's
enumerated offenses clause or the residual clause. Over ten
years later, Driscoll filed this § 2255 motion, arguing
it was possible the sentencing court relied on the
now-unconstitutional residual clause of the ACCA to enhance
his sentence. The district court denied his § 2255
motion as untimely. Exercising jurisdiction pursuant to 28
U.S.C. §§ 1291, 2255(d), we REVERSE and REMAND with
instructions to VACATE Driscoll's sentence and resentence
September 20, 2004, Driscoll pleaded guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and using or carrying a firearm during and in
relation to a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1)(A)(i). In Driscoll's PSR, the
probation office determined Driscoll qualified as an armed
career criminal under 18 U.S.C. § 924(e)(2)(B) due to
his prior convictions under: (1) Nebraska's burglary
statute; (2) Wyoming's burglary statute; and (3)
Wyoming's marijuana possession statute. Driscoll did not
object to the PSR. On January 3, 2005, the sentencing court
sentenced Driscoll to 120 months for the § 922(g)(1)
conviction and 60 months for the § 924(c)(1)(A)(i)
conviction, to be served consecutively. The sentencing court
observed that neither party objected to the guideline
calculation contained in the PSR.
time of Driscoll's sentencing, a defendant qualified as
an armed career criminal under the ACCA if he or she had
"three previous convictions by any court . . . for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another." 18 U.S.C.
§ 924(e)(1) (2004). Congress provided the following
definition of "violent felony":
(B) [T]he term "violent felony" means 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
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another[.]
Id. § 924(e)(2)(B) (2004). That is, a prior
conviction could serve as a predicate violent felony if it
fit under (1) the elements clause ("has an element the
use, attempted use, or threatened use of physical force
against the person of another"); (2) the enumerated
offenses clause ("is burglary, arson, or extortion,
involves use of explosives"); or (3) the residual clause
("or otherwise involves conduct that presents a serious
potential risk of physical injury to another"). See
United States v. Hamilton, 889 F.3d 688, 691 (10th Cir.
Driscoll's three predicate offenses was a prior
conviction for violating the Nebraska burglary statute. At
the time of Driscoll's Nebraska burglary conviction in
1988, that statute stated:
(1) A person commits burglary if such person willfully,
maliciously, and forcibly breaks and enters any real estate
or any improvements erected thereon with intent to commit any
felony or with intent to steal property of any value.
Burglary is a Class III felony.
Neb. Rev. Stat. § 28-507 (1977).
than ten years after Driscoll's sentencing, on June 26,
2015, the Supreme Court issued Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Court held that one definition of "violent felony"
in the ACCA-"or otherwise involves conduct that presents
a serious potential risk of physical injury to another"
(otherwise known as the "residual clause")-is
unconstitutionally vague. Id. at 2563. On April 18,
2016, the Court issued Welch v. United States, 136
S.Ct. 1257 (2016), which made Johnson retroactively
applicable to cases on collateral review. Id. at
April 20, 2016 (less than one year after Johnson),
Driscoll filed his first § 2255 motion to vacate his
sentence. He claimed the sentencing court enhanced his
sentence under the residual clause and that, pursuant to
Johnson and Welch, he was entitled to
October 10, 2016, the district court dismissed Driscoll's
§ 2255 motion. The district court held that,
"[b]ecause Driscoll cannot show that his sentence was
enhanced under the residual clause, Johnson is
inapplicable and his § 2255 motion is therefore
time-barred." ROA, Vol. I, at 105. Following its order,
the district court granted Driscoll a certificate of
appealability. On October 11, 2016, Driscoll timely appealed.
appeal from the denial of a § 2255 motion, ordinarily
'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) ...