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United States v. Driscoll

United States Court of Appeals, Tenth Circuit

June 14, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CHANCE WADE DRISCOLL, Defendant-Appellant.

          Appeal 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.

          Jason 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.

          Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         This is 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[1] 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 him.

         I

         On 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.

         At the 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 adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

         (ii) is 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. 2018).

         One of 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.

         (2) Burglary is a Class III felony.

Neb. Rev. Stat. § 28-507 (1977).

         More 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 1268.

         On 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 relief.

         On 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.

         II

         "On 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) ...


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