United States v. Ronald Peppers

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-1029
_____________

UNITED STATES OF AMERICA

v.

RONALD PEPPERS
Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-00-cr-00105-001)
District Judge: Hon. Sylvia H. Rambo
_______________

Argued
October 12, 2017

Before: CHAGARES, JORDAN, and FUENTES, Circuit
Judges.

(Filed: August 13, 2018)
_______________
Heidi Freese
Frederick W. Ulrich [ARGUED]
Tammy L. Taylor
Office of Federal Public Defender
100 Chestnut Street - #306
Harrisburg, PA 17101
Counsel for Appellant

David J. Freed
Carlo D. Marchioli [ARGUED]
Kate L. Mershimer
Office of United States Attorney
228 Walnut Street - #220
P.O. Box 11754
Harrisburg, PA 17108
Counsel for Appellee
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Ronnie Peppers was sentenced in 2003 to fifteen years
of imprisonment for being a felon in possession of a firearm.
That was the mandatory minimum under the Armed Career
Criminal Act (“the ACCA” or “the Act”), and the District
Court imposed it because of Peppers’s previous convictions.
Peppers now challenges that sentence as unconstitutional in
light of the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), which invalidated a clause of
the ACCA – the “residual clause” – as unconstitutionally
vague. He argued in District Court in a motion under 28

2
U.S.C. § 2255 that he was impermissibly sentenced under that
invalid clause. But that § 2255 motion was not his first, and
§ 2255 itself, through subsection (h), places limits on any
effort to file a second or successive collateral attack on a
criminal judgment. The District Court denied Peppers’s
second § 2255 motion after determining that his prior
convictions remained predicate offenses for ACCA purposes
because they are covered by portions of the Act that survived
Johnson. Because we disagree with the District Court’s
conclusions, we will vacate its decision and remand the case
for further proceedings.

Five holdings lead to our remand. First, the
jurisdictional gatekeeping inquiry for second or successive
§ 2255 motions based on Johnson requires only that a
defendant prove he might have been sentenced under the
now-unconstitutional residual clause of the ACCA, not that
he was in fact sentenced under that clause. Second, a guilty
plea pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) does not preclude a defendant from collaterally
attacking his sentence in a § 2255 motion, if his sentence
would be unlawful once he proved that the ACCA no longer
applies to him in light of Johnson. Third, a defendant seeking
a sentence correction in a second or successive § 2255 motion
based on Johnson, and who has used Johnson to satisfy the
gatekeeping requirements of § 2255(h), may rely on post-
sentencing cases (i.e., the current state of the law) to support
his Johnson claim. Fourth, Peppers’s robbery convictions,
both under Pennsylvania’s robbery statute, are not
categorically violent felonies under the ACCA, and,
consequently, it was error to treat them as such. Fifth and
finally, Peppers failed to meet his burden of proving his
Johnson claim with respect to his Pennsylvania burglary

3
conviction. We will therefore vacate the District Court’s
order and remand for an analysis of whether the error that
affected Peppers’s sentence, i.e., the error of treating the
robbery convictions as predicate offenses under the ACCA,
was harmless in light of his other prior convictions.

I. FACTS AND PROCEDURAL HISTORY

A. The Initial Trial and Subsequent Guilty Plea

This case has a long history. In 2000, Peppers was
indicted for numerous federal firearms and drug offenses.
Among those charges was murder with a firearm, in violation
of 18 U.S.C. § 924(j). Peppers pled not guilty to all of the
charges, but a jury saw things differently. It convicted him on
every count, including the murder charge. He was sentenced
to life imprisonment plus five years.

Peppers filed a direct appeal, challenging, among other
things, the District Court’s denial of his request to proceed
pro se. United States v. Peppers, 302 F.3d 120, 123 (3d Cir.
2002). We concluded that the District Court erred in handling
Peppers’s request to represent himself, and thus we vacated
the judgment and commitment order and remanded the case
for a new trial.

On remand, Peppers was adamant that he did not want
to go through another trial. Instead, he chose to plead guilty
under Federal Rule of Criminal Procedure 11(c)(1)(C) (the
“(C) plea”). As part of his plea agreement with the
government, he waived indictment and pled to a one-count
information charging him as an armed career criminal in
possession of a .22 caliber revolver, in violation of 18 U.S.C.

4
§§ 922(g)(1) and 924(e)(1). The charging document stated
that Peppers had previously been convicted of a variety of
state and federal felonies in six separate proceedings: first, in
1979, when he was a juvenile, for both armed robbery and
robbery; second, in 1984 for burglary; third, in 1984 for
possession of instruments of a crime; fourth, in 1985 for
escape; fifth, in 1985 for armed robbery and criminal
conspiracy; and sixth, in 1993 for criminal conspiracy to
commit unauthorized use of an access device. Because of his
admitted status as an armed career criminal, the mandatory
minimum penalty for the crime to which Peppers pled guilty
was fifteen years’ imprisonment. The (C) plea was
conditioned upon the District Court sentencing him to that
minimum penalty.

The plea agreement also stated that the parties
understood the United States Sentencing Guidelines applied
to the offense to which Peppers was pleading guilty.
Although the agreement made plain that Peppers was being
convicted and sentenced as an armed career criminal under
the ACCA, it failed to disclose which of the six convictions
stated in the information qualified as the three predicate
“violent felonies” that made him eligible for enhanced
penalties under the ACCA. That Act provides, in relevant
part, that “a person who violates section 922(g) … and has
three previous convictions … for a violent felony …
committed on occasions different from one another, … shall
be fined … and imprisoned not less than fifteen years[.]” 18
U.S.C. § 924(e)(1). The statute defines “violent felony” as
“any crime punishable by imprisonment for a term exceeding
one year … that [A] has as an element the use, attempted use,
or threatened use of physical force against the person of
another; or [B] is burglary, arson, or extortion, involves use of

5
explosives, or [C] otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]” Id.
§ 924(e)(2)(B). The parts labeled here as [A], [B], and [C]
are commonly referred to, respectively, as the force or
elements clause, the enumerated offenses clause, and the
residual clause.

At the plea colloquy, the District Court and the parties
discussed only in broad terms whether the prior convictions
fell within the ACCA, as the following exchange shows:

[Peppers’s Counsel]: We also agree to
the applicability of the sentence enhancement
under the Armed Career Criminal Act, in that
the government has shown the existence of
three prior convictions which meet the
definitions under the Armed Career Criminal
Act. So we have agreed to that, and I have
explained that to Mr. Peppers. Is that correct?

… [Peppers and his attorney confer off
the record.] …

The Court: At least, number one, the
armed robbery and robbery and probably the
burglary and the other armed robbery and
criminal conspiracy would probably meet the
Armed Career Criminal.

[Peppers’s Counsel]: The armed robbery
and robbery would definitely meet the
requirements of the Armed Career Criminal
Act. The burglary as stated at number two

6
 would meet the requirements of the Armed
Career Criminal Act. Possession of instruments
of a crime may or may not. Escape may or may
not. But armed robbery definitely would.

The Court: We have got at least three
there.

[Peppers’s Counsel]: Correct.

(App. at 55-56.) There was no discussion concerning which
of the specific ACCA clauses were thought to make three of
Peppers’s prior convictions “violent felonies.” On August 13,
2003, the District Court accepted the (C) plea and sentenced
Peppers to fifteen years in prison.

As allowed by his plea agreement,1 Peppers filed a
direct appeal challenging the constitutionality of the felon-in-
possession statute he was convicted of violating, and we
affirmed his conviction. United States v. Peppers, 95 F.
App’x 406 (3d Cir. 2004). The Supreme Court later denied
his petition for a writ of certiorari. Peppers v. United States,
543 U.S. 894 (2004).

B. Peppers’s First § 2255 Motion

On November 3, 2005, Peppers filed his first motion
under § 2255, collaterally attacking both his conviction and
sentence. He advanced nine claims, all of which were
rejected by the District Court, and Peppers appealed. We

1
There was no waiver of appellate or collateral attack
rights, as is often found in plea agreements.

7
granted a certificate of appealability solely as to whether
Peppers’s plea counsel was ineffective for allegedly
misinforming him about the ACCA’s application and for
failing to challenge its applicability on appeal. We ultimately
determined that Peppers did not receive ineffective assistance
of counsel for either reason. It was not ineffective to concede
that Peppers was eligible for enhanced punishment under the
ACCA and to negotiate for him to receive a sentence of
fifteen years in prison, rather than having him face the
potential of a life sentence, which he would have risked if all
the original charges had been reinstated. Thus, we affirmed
the denial of Peppers’s § 2255 motion. United States v.
Peppers, 273 F. App’x 155, 156 (3d Cir. 2008).

C. Peppers’s Second § 2255 Motion

In Johnson v. United States, 135 S. Ct. 2551 (2015),
the Supreme Court invalidated the residual clause of the
ACCA as being unconstitutionally vague. Then, in Welch v.
United States, 136 S. Ct. 1257 (2016), the Court made that
ruling retroactive, so that it applies to cases on collateral
review. Peppers filed a timely second § 2255 motion seeking
resentencing based on Johnson. He also submitted the
required application for permission to file a second such
motion, under 28 U.S.C. §§ 2255(h) and 2244(b)(3). We
allowed him to proceed with his second § 2255 motion,
concluding that he had satisfied the gatekeeping requirements
of § 2255(h) – which are jurisdictional – by making “a prima
facie showing that his proposed § 2255 motion contains a
new rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court that was previously
unavailable.” (App. at 136.)

8
 Peppers claimed that his armed robbery convictions
under Pennsylvania law no longer qualify as violent felonies
after Johnson invalidated the ACCA’s residual clause. He
also claimed that his burglary conviction under Pennsylvania
law no longer qualifies as a violent felony under the ACCA.
Both of those claims required the District Court to resentence
him, he said, because the fifteen-year minimum imprisonment
sentence dictated by the ACCA no longer applied to him and
the maximum sentence for the felon-in-possession offense he
pled to is only ten years’ imprisonment.

The government moved to dismiss the second § 2255
motion for three reasons. First, it argued that the District
Court lacked jurisdiction to consider a second § 2255 motion
from Peppers “because he has not shown that the new rule of
constitutional law announced in Johnson applies in his case.”
(App. at 173, 175-76.) Essentially, the government
contended that, because the District Court never said at
sentencing that Peppers’s prior convictions fell under the
ACCA’s residual clause and Peppers submitted no evidence
showing that those convictions did not fall under another
ACCA clause, he failed to meet the jurisdictional gatekeeping
requirements of § 2255(h). Second, the government
contended that, looking to the case law that existed when
Peppers was sentenced, Peppers’s Pennsylvania armed
robbery convictions qualify as violent felonies under the
ACCA’s elements clause. Finally, the government argued
that Peppers’s Pennsylvania burglary conviction was a violent
felony under the ACCA’s enumerated offenses clause,
particularly in light of “the unobjected-to-facts in the PSR[.]”
(App. at 181.)

9
 The District Court directed the government to file a
supplemental brief addressing the impact of Peppers’s (C)
plea on his claim for resentencing based on Johnson. The
government did so and argued that the plea agreement
precluded Peppers from challenging his sentence because the
sentence was based on the agreement and the strictures of
Federal Rule of Criminal Procedure 11(c)(1)(C), not on the
ACCA’s invalid residual clause. Peppers countered that the
plea agreement should not affect his ability to seek relief
under § 2255 in light of Johnson because that agreement was
grounded in legal error about the residual clause.

The District Court ultimately denied the second § 2255
motion on the merits because it found that Peppers’s predicate
offenses were violent felonies under the ACCA, even in the
absence of the residual clause. It noted the threshold
jurisdictional issue raised by the government but did not
provide any independent analysis or discussion of it. Instead,
in a footnote, the Court adopted “the reasons set forth in
Peppers’[s] response” to explain why he satisfied the
jurisdictional requirements of § 2255(h). (App. at 4 n.1.) On
the merits, the Court concluded that the residual clause had no
effect on this case because Peppers had three predicate
offenses that qualified as violent felonies under the ACCA’s
other clauses. Specifically, it determined that Peppers’s two
previous armed robbery convictions in 1979 and 1985,
respectively, qualified under the elements clause, and that
Peppers’s burglary conviction qualified under the enumerated
offenses clause. The Court reached the latter conclusion
despite recognizing that the Pennsylvania burglary statute is
broader than generic burglary, reasoning that the evidence
showed his conviction met the elements of the generic

10
offense. Therefore, the District Court held that Peppers was
ineligible for relief under § 2255.

We granted Peppers a certificate of appealability on
the question of whether he was improperly sentenced in light
of Johnson.2 He timely appealed.

2
Specifically, we said the following:

Peppers’s application for a certification of
appealability is granted as to his claim that, in
light of Johnson v. United States, 135 S. Ct.
2551 (2015), he was not properly sentenced
under the Armed Career Criminal Act because
he does not have three or more previous
convictions for a “violent felony.” As to this
claim, we are satisfied that Peppers has made a
substantial showing of the denial of a
constitutional right. In addition to any other
issues that the parties wish to raise in their
briefs, they are directed to address (a) whether
Peppers may raise his Johnson challenge
notwithstanding the fact that he pleaded guilty;
(b) whether the record reveals if the District
Court relied on the residual clause at the time of
sentencing, and if it does not, whether this
affects Peppers’s ability to raise a Johnson
claim in a second or successive § 2255 motion;
and (c) whether Peppers may rely on decisions
that post-date his sentencing (such as Mathis v.
United States, 136 S. Ct. 2243 (2016),
Descamps v. United States, 133 S. Ct. 2276
(2013), and Johnson v. United States, 559 U.S.

11
II. DISCUSSION

A. Standard of Review and Jurisdiction

This appeal raises purely legal issues, which we review
de novo. United States v. Doe, 810 F.3d 132, 142 (3d Cir.
2015).

Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214 (1996), a defendant in federal custody may file a motion
collaterally attacking his sentence based on certain
specifically listed grounds, namely that the sentence was
imposed in violation of the Constitution or federal law, that
the court was without jurisdiction to impose the sentence, that
the sentence exceeded the maximum authorized by law, or
that the sentence “is otherwise subject to collateral attack[.]”
28 U.S.C. § 2255(a). And a defendant is allowed only one
such motion as of right. Id. § 2255(b), (h). A second or
successive motion must be certified by a court of appeals to
rely upon either “newly discovered evidence” showing
innocence or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” Id. § 2255(h).
Those are the gatekeeping requirements of § 2255(h) that

133 (2010)) to show that his prior convictions
do not qualify as violent felonies or whether he
may rely on Johnson v. United States, 135 S.
Ct. 2551 (2015), and the law as it otherwise
existed at the time of his sentencing.

(App. at 9-10 (citations omitted).)

12
limit collateral review. See In re Dorsainvil, 119 F.3d 245,
247-48 (3d Cir. 1997) (analyzing “the two prongs of § 2255’s
gatekeeping provision”). The required certification is made
pursuant to § 2244, which directs that a panel of “[t]he court
of appeals may authorize the filing of a second or successive
application only if it determines that the application …
satisfies the [gatekeeping] requirements[.]” Id.
§ 2244(b)(3)(C) (made applicable by 28 U.S.C. § 2255(h)).
But, even after we authorize a second or successive petition, §
2244 still requires the district court to “dismiss any claim
presented in a second or successive application … unless the
applicant shows that the claim satisfies the [gatekeeping]
requirements[.]” Id. § 2244(b)(4). Thus, both we and the
district court are responsible to conduct independent analyses
of whether the gatekeeping requirements have been satisfied
in any particular case. Only after a defendant’s second or
successive motion has made it past the gatekeeping
requirements of § 2255(h) may the district court consider the
merits of the claims. See In re Hoffner, 870 F.3d 301, 308
(3d Cir. 2017) (“[W]e do not address the merits at all in our
gatekeeping function.”).

Our jurisdiction to review the District Court’s rulings
is uncontested and is rooted in 28 U.S.C. § 2253(a), which
provides that the final order from a proceeding under § 2255
before a district judge “shall be subject to review, on appeal,
by the court of appeals for the circuit in which the proceeding
[was] held.” The District Court’s jurisdiction is contested.
The government argued below, and argues again on appeal,
that the District Court lacked jurisdiction over Peppers’s
second § 2255 motion because he did not satisfy the
gatekeeping requirements of 28 U.S.C. §§ 2244(b)(4) and
2255(h), given that no new rule of constitutional law applies

13
to him. Even in the absence of the government’s challenge,
we would be obligated to assess whether the District Court
had jurisdiction to consider the motion.3 See Bruce v.
Warden Lewisburg USP, 868 F.3d 170, 177 (3d Cir. 2017)
(quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (“An
appellate federal court must satisfy itself … of [the] …
jurisdiction … of the lower courts in a cause under review.”)).

The government’s jurisdictional argument, however,
falls short. In our view, § 2255(h) only requires a petitioner
to show that his sentence may be unconstitutional in light of a

3
The gatekeeping requirements of § 2255(h), which
appear in § 2244(b)(4) and are incorporated into § 2255(h),
are jurisdictional. See In re Pendleton, 732 F.3d 280, 283 (3d
Cir. 2013) (“[T]he District Court must dismiss [a] habeas
corpus petition for lack of jurisdiction if it finds that the
requirements for filing such petition have not in fact been
met.”); see also Hoffner, 870 F.3d at 308 (“[W]e do not
address the merits at all in our gatekeeping function.”);
Goldblum v. Klem, 510 F.3d 204, 219 n.9 (3d Cir. 2007)
(“The merits of the claims in a second petition may not be
considered by the district court until the application clears the
‘two gates’ erected under section 2244, that of the court of
appeals and that of the district court.”). The Department of
Justice has recently changed its position and no longer views
the gatekeeping inquiry as jurisdictional, see letter of Jan. 26,
2018, from government counsel (“Although the Government
continues to maintain that Peppers … failed to meet the
gatekeeping requirements and [was] properly denied relief,
the Department of Justice no longer views the gatekeeping
inquiry as jurisdictional.”), but that change does not comport
with our established precedent.

14
new rule of constitutional law made retroactive by the
Supreme Court. Peppers met that standard by demonstrating
that he may have been sentenced under the residual clause of
the ACCA, which was rendered unconstitutional in Johnson.

Although, as already noted, both we and the District
Court must determine whether the gatekeeping requirements
of § 2255(h) have been met, there is a difference. Our inquiry
does not go as deep because we are in search of a mere
“‘prima facie showing’ … that the petitioner has satisfied the
pre-filing requirements ‘to warrant full exploration by the
district court.’” Hoffner, 870 F.3d at 308 (quoting Goldblum,
510 F.3d at 219 & n.9). The District Court’s analysis of the
gatekeeping requirements, by contrast, must be “more
extensive,” more “thorough,” and “a fuller exploration.”
Goldblum, 510 F.3d at 220 (citation omitted). The District
Court is not bound by our preliminary examination of the
gatekeeping requirements, nor should it rest on our
determination; it must conduct an independent inquiry. Id. at
219-20.

The specific AEDPA provision that Peppers says
should permit consideration of his second § 2255 motion is
the one allowing a successive collateral attack when a “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. §§ 2244(b)(2)(A),
(b)(4). The government contends that that provision requires
a defendant to do more than merely invoke Johnson and
assert that he was possibly sentenced under the residual
clause. Rather, the government argues, he must demonstrate
that the sentencing court did in fact employ the residual
clause in imposing an enhanced sentence under the ACCA.

15
That view suggests a defendant can only pass through the
jurisdictional gate by producing evidence that his sentence
depended “solely” upon the ACCA’s residual clause.
(Answering Br. at 21.) Peppers counters that AEDPA’s
gatekeeping requirements are satisfied by showing that the
sentencing judge may have used the residual clause. (Reply
Br. at 4.) Peppers has the better position.

The statutory text, case law from our sister circuits,
and policy considerations indicate that § 2255(h) only
requires a movant to show that his sentence may be, not that it
must be, unconstitutional in light of a new rule of
constitutional law made retroactive by the Supreme Court. It
is true that Congress passed AEDPA with the purpose of
restricting a defendant’s ability to collaterally attack his
conviction or sentence, especially with a second or successive
attack. See Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.
2004) (recognizing Congress’s goal of limiting opportunities
for filing second or successive habeas petitions). But, strict
though Congress intended it to be, AEDPA surely was not
meant to conflate jurisdictional inquiries with analyses of the
merits of a defendant’s claims.

“We begin, as usual, with the statutory text,”
Maslenjak v. United States, 137 S. Ct. 1918, 1924 (2017), and
although the text here is inconclusive, it supports adopting a
flexible approach to satisfying the gatekeeping requirements.
As a reminder, the burden on someone launching a second or
successive collateral attack like Peppers’s on a conviction or
sentence is to show that the attack “relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court[.]” Id. § 2244(b)(2)(A). In In
re Hoffner, we recently held that “whether a claim ‘relies’ on

16
a qualifying new rule must be construed permissively and
flexibly on a case-by-case basis.”4 870 F.3d at 308. We
recognized that “a motion ‘relies’ on a qualifying new rule
where the rule ‘substantiates the movant’s claim.’” Id.
(citation omitted). And that “is so even if the rule does not
‘conclusively decide []’ the claim or if the petitioner needs a
‘non-frivolous extension of a qualifying rule.’” Id. (alteration
in original) (citation omitted).

While the statutory text arguably could support the
government’s contention that a movant only “relies” on a new
rule of constitutional law if he can prove his sentence in fact

4
In Hoffner, we considered “what is required for a
claim to ‘rel[y]’ on a qualifying new rule for the purposes of
Section 2255(h)(2).” 870 F.3d at 308 (alteration in original).
We made that interpretation based on what a petitioner must
show to demonstrate a prima facie case that the prerequisites
for a motion under § 2255(h) are met. Id. Section 2255(h)(2)
does not include the word “relies” at all. Rather, that
language was taken from the Supreme Court’s decision in
Tyler v. Cain, 533 U.S. 656 (2001), where the Court laid out
the three requirements for bringing a claim based on
§ 2244(b)(2)(A). See Hoffner, 870 F.3d at 308 (“Even the
Government concedes that Section 2255(h)(2) has ‘no express
requirement that the ‘new rule’ must actually pertain to the
petitioner’s claim.’” (citation omitted)). But that language
does appear in § 2244(b)(2)(A), and there is no principled
reason for treating the term differently between the two
provisions of AEDPA when both provisions are nearly
identically worded and serve the same gatekeeping function,
§ 2255(h)(2) for the court of appeals and § 2244(b)(2)(A) for
the district court.

17
is unconstitutional under that new rule, Peppers’s
interpretation is more consistent with Hoffner and a common
sense analytical approach. Because the word “relies” should
be interpreted “flexibly” on a “case-by-case basis,” the
implication is that a movant satisfies the gatekeeping
requirements under § 2244(b)(2)(A) and 2255(h)(2) when he
demonstrates that his sentence may be unconstitutional in
light of the new rule of constitutional law. Cf. Griffin v.
United States, 502 U.S. 46, 53 (1991) (“[W]here a provision
of the Constitution forbids conviction on a particular ground,
the constitutional guarantee is violated by a general verdict
that may have rested on that ground.”). To interpret the
language as the government suggests would effectively turn
the gatekeeping analysis into a merits determination, which
defeats the purpose of the jurisdictional review. See Hoffner,
870 F.3d at 308 (“[W]e do not address the merits at all in our
gatekeeping function.”). We thus conclude that a movant like
Peppers satisfies the jurisdictional requirements for a
§ 2255(h)(2) motion by showing the new rule of
constitutional law he advances may require resentencing.

That conclusion finds support in decisions from other
circuit courts. In United States v. Winston, the Fourth Circuit
held “that when an inmate’s sentence may have been
predicated on application of the now-void residual clause and
therefore, may be an unlawful sentence under the holding in
[Johnson], the inmate has shown that he ‘relies on’ a new rule
of constitutional law within the meaning of 28 U.S.C.
§ 2244(b)(2)(A).” 850 F.3d 677, 682 (4th Cir. 2017). The
Ninth Circuit recently reached a similar conclusion in United
States v. Geozos, 870 F.3d 890 (9th Cir. 2017), in which the
court said that, “when it is unclear whether a sentencing court
relied on the residual clause in finding that a defendant

18
qualified as an armed career criminal, but it may have, the
defendant’s § 2255 claim ‘relies on’ the constitutional rule
announced in [Johnson].” Id. at 896.5

5
The government would have us rely on In re Moore,
830 F.3d 1268 (11th Cir. 2016). But that case is inapposite
when one is considering the burden at the gatekeeping stage,
rather than the merits stage, of the analysis. In Moore, the
United States Court of Appeals for the Eleventh Circuit said
in dicta that a movant cannot meet his burden in a § 2255
proceeding “unless he proves that he was sentenced using the
residual clause and that the use of that clause made a
difference in the sentence.” Id. at 1273. So “[i]f the district
court cannot determine whether the residual clause was used
in sentencing and affected the final sentence—if the court
cannot tell one way or the other—the district court must deny
the § 2255 motion.” Id. But that standard describes the
burden on the movant to show “that he is entitled to relief in a
§ 2255 motion—not just a prima facie showing that he meets
the requirements of § 2255(h)(2), but a showing of actual
entitlement to relief on his Johnson claim.” Id. at 1272. In
other words, the dicta referenced requirements for a merits
ruling.
The Eleventh Circuit applies a different standard at the
gatekeeping stage. It uses a “clear/unclear test” to make “a
preliminary determination about whether a habeas petitioner
[has] made out a prima facie showing sufficient to warrant
leave to file a second or successive section 2255 motion.”
Beeman v. United States, 871 F.3d 1215, 1224 n.6 (11th Cir.
2017). That allows a movant’s § 2255 motion to be denied at
the gatekeeping stage only if it is clear that he was sentenced
under the elements clause or the enumerated offenses clause,
or if it is clear that prior convictions qualifying under the

19
 Policy considerations also favor the same
interpretation. As stated in Winston, “[n]othing in the law
requires a [court] to specify which clause … it relied upon in
imposing a sentence.” 850 F.3d at 682 (alterations in
original) (citation omitted). A defendant’s Johnson claim
should not be unfairly tethered to the discretionary decision of
his sentencing judge to specify the ACCA clause under which
each prior conviction qualifies as a violent felony. Id. The
government’s rule results in randomly unequal treatment of
§ 2255 claims.

Finally, contrary to the government’s characterization,
the rule that Peppers advocates does not deprive the
gatekeeping requirements of force. Under the rule we
announce today, simply mentioning Johnson in a § 2255
motion is not enough. The movant must still show that it is
possible he was sentenced under the now-unconstitutional
residual clause of the ACCA. There are likely to be situations
where the record is clear that a defendant was not sentenced
under the residual clause, either because the sentencing judge
said another clause applied or because the evidence provides
clear proof that the residual clause was not implicated. When
that happens, the movant cannot establish that he may have
been sentenced under the residual clause, and the court must
dismiss the § 2255 motion for lack of jurisdiction.6 So we are

“serious drug offense” provision of the ACCA are taken into
account. In re Rogers, 825 F.3d 1335, 1338 (11th Cir. 2016).
6
The government also contends that allowing Peppers
to “pass through the jurisdictional door by merely identifying
the possibility that he was sentenced based on the residual

20
not undermining AEDPA by holding that a movant satisfies
§ 2255(h)’s gatekeeping requirements with a showing that he
may have been sentenced under the now-unconstitutional
residual clause of the ACCA.

Peppers met those requirements by demonstrating that
the claims in his second § 2255 motion rely on the new rule
of constitutional law announced in Johnson and made
retroactive on collateral review in Welch. The record
indicates that Peppers was sentenced to the minimum of
fifteen years’ imprisonment under the ACCA because the
District Court and the parties believed he had at least three
prior convictions qualifying as violent felonies under that
statute. But the Court did not specify the clauses under which
those prior convictions qualified as violent felonies. Once it
was satisfied that, as defense counsel acknowledged, there
were at least three prior convictions that “would definitely
meet the requirements of the Armed Career Criminal Act[,]”
it stopped its analysis and concluded that the Act applied.
(App. at 56.) Therefore, the evidence demonstrates that
Peppers may have been sentenced under the ACCA’s residual
clause, and that, in turn, is enough to demonstrate that his
motion to correct his sentence relies on the new rule of
constitutional law announced in Johnson. The District Court

clause” has the practical effect of shifting the burden of proof
from the defendant to the government. (Answering Br. at 17.)
We disagree. Peppers, as the movant, retains the burden to
prove both that he has met the gatekeeping requirements and
that his claim under Johnson is meritorious. See United
States v. Hollis, 569 F.2d 199, 205 (3d Cir. 1977) (“[I]n
habeas cases the general rule is that the petitioner himself
bears the burden of proving that his conviction is illegal.”).

21
thus properly determined that it had jurisdiction to reach the
merits of Peppers’s § 2255(h)(2) motion.

Having concluded the District Court had jurisdiction to
hear Peppers’s claims, we must decide the effect of Peppers’s
(C) plea on his ability to raise Johnson claims collaterally
attacking his sentence.

B. Peppers’s Rule 11(c)(1)(C) Plea

Federal Rule of Criminal Procedure 11(c)(1)(C)
provides that “[a]n attorney for the government and the
defendant’s attorney, or the defendant when proceeding pro
se, may discuss and reach a plea agreement” that includes an
agreement “that a specific sentence or sentencing range is the
appropriate disposition of the case, or that a particular
provision of the Sentencing Guidelines, or policy statement,
or sentencing factor does or does not apply[.]” Generally,
“[a] plea of guilty [under that rule] and the ensuing conviction
comprehend all of the factual and legal elements necessary to
sustain a binding, final judgment of guilt and a lawful
sentence.” United States v. Broce, 488 U.S. 563, 569 (1989).
The government argues that, because “Peppers explicitly and
voluntarily exposed himself” to a fifteen-year sentence in a
(C) plea, “he cannot now seek collateral relief by arguing that
his sentence was based on the residual clause.” (Answering
Br. at 35.) Peppers counters that his (C) plea does not
preclude him from collaterally attacking his sentence because
his challenge is directed at a sentencing enhancement rather
than a conviction and “a guilty plea does not foreclose
challenges to the constitutionality of a statute as applied to a

22
particular defendant.”7 (Opening Br. at 13.) We agree with
Peppers that his (C) plea does not preclude his § 2255 motion.

As a general rule, only a limited set of grounds are
available for a defendant to challenge a conviction or
sentence based on a guilty plea. The Supreme Court has
stated that “when the judgment of conviction upon a guilty
plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary.” Broce,
488 U.S. at 569. If the plea was both counseled and
voluntary, that will generally “foreclose the collateral attack.”
Id. Nevertheless, “[t]here are exceptions where on the face of
the record the court had no power to enter the conviction or

7
Our precedent allows a defendant to directly
challenge the constitutionality of the statute of conviction
notwithstanding a guilty plea. See United States v. Whited,
311 F.3d 259, 262 (3d Cir. 2002) (stating that a defendant’s
direct challenge to the constitutionality of the statute of
conviction was not barred by her guilty plea). And the
Supreme Court recently held that “a guilty plea [does not] bar
a criminal defendant from later appealing his conviction on
the ground that the statute of conviction violates the
Constitution[.]” Class v. United States, 138 S. Ct. 798, 801-
02 (2018). The Court’s holding, however, was cabined to
direct appeal. Id. at 803, 805, 807. In any event, that holding
does not bear on our resolution of whether Peppers’s (C) plea
precludes his Johnson claim because Peppers is not
collaterally attacking the constitutionality of the statute
underlying his conviction, 18 U.S.C. § 922(g). Instead, his
Johnson claim is directed at a sentencing enhancement
applied under 18 U.S.C. § 924(e).

23
impose the sentence.” Id. While “the circumstances under
which a guilty plea may be attacked on collateral review” are
strictly limited, “it would be inconsistent with the doctrinal
underpinnings of habeas review to preclude [a] petitioner
from relying on [a new rule of constitutional law] in support
of his claim that his guilty plea was unconstitutionally
invalid.” United States v. Bousley, 523 U.S. 614, 621 (1998).

In line with those principles, we conclude that
Peppers’s guilty plea does not preclude a collateral attack
pursuant to Johnson. It would be impermissible to preclude a
§ 2255 motion to correct sentence, which meets the
gatekeeping requirements and is not procedurally barred,
based on a (C) plea that preserves a now-unlawful sentence.
Parties may not stipulate to an unlawful sentence in a plea
agreement. See, e.g., United States v. Symington, 781 F.3d
1308, 1313 (11th Cir. 2015) (stating that a district court has
no authority to impose an unlawful sentence even if stipulated
to by the parties in a plea agreement); United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“[A] district
court has no discretion to impose a sentence outside of the
statutory range established by Congress for the offense of
conviction.” (emphasis omitted)); United States v. Moyer, 282
F.3d 1311, 1318-19 (10th Cir. 2002) (concluding that the
district court erred when it sentenced the defendant pursuant
to the plea agreement when that sentence contravened the
applicable law). If, at the time of sentencing, a plea
agreement requires imposition of a sentence that either falls
below or exceeds the statutory penalty limits, the district
court is without authority to accept that plea. Therefore,
when a new rule of constitutional law made retroactive to
cases on collateral review by the Supreme Court renders
illegal a sentence that was imposed based on a Rule

24
11(c)(1)(C) plea agreement, a defendant who otherwise can
successfully challenge that sentence in a § 2255 motion
cannot be held to the unlawful term of imprisonment.

Here, assuming Peppers makes a meritorious § 2255
claim, it would be unlawful for the District Court to impose
upon him the sentence he is now serving based on his (C)
plea agreement. If Peppers wins on the merits of his Johnson
claim because he was sentenced under the residual clause and
his prior convictions do not fall within the remaining clauses
of the ACCA, then that statute cannot be constitutionally
applied to him. In the absence of the ACCA, there is no
applicable sentencing enhancement that carries with it a
minimum sentence of fifteen years’ imprisonment. See
18 U.S.C. § 924(e)(1). Instead, the maximum sentence for his
underlying conviction is ten years of imprisonment. See id.
§ 924(a)(2). Therefore, the District Court would be without
authority to impose a sentence upon Peppers with a term of
imprisonment any greater than ten years, even if the
government and Peppers stipulated to a greater term. The
plea agreement in this case does just that – it stipulates to a
term of imprisonment of fifteen years. For those reasons, the
(C) plea does not stand as an obstacle to Peppers’s collateral
attack on his sentence in light of Johnson.8

8
The government asserts that the Supreme Court’s
decision in Freeman v. United States, 564 U.S. 522 (2011),
dictates the outcome we should reach here. In Freeman, the
Court considered whether a defendant who was sentenced
pursuant to a Rule 11(c)(1)(C) plea could challenge that
sentence after a subsequent amendment to the applicable
Guidelines sentencing range. Id. at 525. Although no single
opinion garnered a majority of the Justices’ support, we have

25
 Given that conclusion, we turn to the merits of
Peppers’s second § 2255 motion. The analysis requires us to
determine whether his prior felony convictions qualify under
either the elements clause or the enumerated offenses clause
of the ACCA. To do so, however, we must first consider
whether case law that developed after his sentencing can
apply to Peppers’s Johnson claims.9

said that Justice Sotomayor’s concurring opinion controls.
See id. at 534 (Sotomayor, J., concurring); see also United
States v. Weatherspoon, 696 F.3d 416, 422 (3d Cir. 2012)
(stating that Justice Sotomayor’s opinion concurring in the
judgment is the controlling opinion in Freeman). Recently,
however, the Supreme Court resolved the sentencing issue
and held that, contrary to Justice Sotomayor’s concurrence in
Freeman, “a sentence imposed pursuant to a Type-C
agreement is ‘based on’ the defendant’s Guidelines range so
long as that range was part of the framework the district court
relied on in imposing the sentence or accepting the
agreement.” Hughes v. United States, 138 S. Ct. 1765, 1775
(2018).
We do not need to decide here whether to extend the
rule in Hughes to collateral attacks on sentences under § 2255
based on Johnson because neither Freeman nor Hughes
addressed a situation where a new rule of constitutional law
may have rendered the sentence imposed in a (C) plea
agreement unlawful. Under those circumstances, the rule in
Hughes is inapposite.
9
Specifically, the parties dispute whether, in resolving
the merits of a Johnson claim, we must apply the law as it
existed at the time of sentencing to determine whether the
defendant could have been sentenced under the elements or

26
 C. Using Post-Sentencing Case Law to Establish
the Merits of a Johnson Claim

Ordinarily, new constitutional rules of criminal
procedure, though they form the current state of the law, are
not applicable to cases that became final before the new rules
were announced. Teague v. Lane, 489 U.S. 288, 310 (1989).
Nevertheless, Peppers argues that we should use “the current
state of the law” to determine whether his prior convictions
qualify as violent felonies under either the elements clause or
the enumerated offenses clause of the ACCA. (Opening Br.
at 20.) The government counters that we may only use
“available prior conviction records and case law as it existed
at the time of sentencing.” (Answering Br. at 22.) Under the
circumstances here, we agree with Peppers.

Supreme Court cases since Peppers’s sentencing have
provided important guidance on how to interpret whether a
conviction falls within a given clause of the ACCA. Those
decisions include Mathis v. United States, 136 S. Ct. 2243
(2016), Descamps v. United States, 570 U.S. 254 (2013), and

enumerated offenses clause or, conversely, whether the
defendant is entitled to rely on post-sentencing case law. For
reasons discussed herein, see infra Subsection II.C. & n.21,
we conclude that, once a defendant has satisfied § 2255(h)’s
gatekeeping requirements by relying on Johnson, he may use
post-sentencing cases such as Mathis, Descamps, and
Johnson 2010 to support his Johnson claim.

27
Johnson v. United States, 559 U.S. 133 (2010) (“Johnson
2010”).10

In Mathis, the Supreme Court stated that, “[t]o
determine whether a past conviction [falls within the ACCA’s
enumerated offenses clause], courts compare the elements of
the crime of conviction with the elements of the ‘generic’
version of the listed offense—i.e., the offense as commonly
understood.” 136 S. Ct. at 2247. The Court made it clear that
there is no exception to that rule, even “when a defendant is
convicted under a statute that lists multiple, alternative means
of satisfying one (or more) of its elements.” Id. at 2248. The
rule remains “that the prior crime qualifies as an ACCA
predicate if, but only if, its elements are the same as, or
narrower than, those of the generic offense.” Id. at 2247.
That rule, well known as the “categorical approach,” requires
the sentencing court to look solely at the elements of the
crime of conviction and the elements of the generic offense,
without consulting any of the specific facts of the case. Id.

When the elements of the statute of conviction – as
opposed to the means of satisfying the elements – are stated
“in the alternative,” then the statute is said to be “divisible,”
and the Supreme Court allows a “modified categorical

10
To the extent the parties also dispute the
applicability of United States v. Steiner, 847 F.3d 103 (3d Cir.
2017), that is better understood as an attack on the
applicability of Mathis, which dictated our conclusion there.
See Steiner, 847 F.3d at 119 (holding that the Pennsylvania
burglary statute is not divisible after Mathis, and must be
analyzed using a categorical rather than modified categorical
approach).

28
approach.” Descamps, 570 U.S. at 257. Under that approach,
sentencing courts may “consult a limited class of documents,
such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior
conviction.” Id. After that, the sentencing court proceeds as
it would under the categorical approach. Id. In Descamps,
the Court considered whether that modified categorical
approach should be used “when a defendant was convicted
under an ‘indivisible’ statute—i.e., one not containing
alternative elements—that criminalizes a broader swath of
conduct than the relevant generic offense.” Id. at 258. The
Court answered no and held that “sentencing courts may not
apply the modified categorical approach when the crime of
which the defendant was convicted has a single, indivisible
set of elements.” Id. Indicating that the rule it announced in
Descamps was not new but rather rested upon old precedent,
the Court said its “caselaw explaining the categorical
approach and its ‘modified’ counterpart all but resolves this
case.” Id. at 260.

Finally, in Johnson 2010, the Supreme Court
interpreted what the ACCA means when it speaks of a crime
involving “physical force.” 559 U.S. at 138. The Court
concluded that “physical force” under the ACCA’s elements
clause means “violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 140
(emphasis omitted). It said that such “physical force” cannot
“be satisfied by the merest touching.” Id. at 139. The Court
then applied that interpretation to hold that Florida’s “felony
offense of battery by ‘[a]ctually and intentionally touch[ing]’
another person” does not have “as an element the use … of
physical force against the person of another,” and thus is not
categorically a “violent felony” under the ACCA. Id. at 135,

29
145 (alterations in original) (citations omitted). Thus,
Supreme Court cases like Mathis, Descamps, and Johnson
2010 are instructive on how sentencing courts can properly
apply the categorical and modified categorical approaches, as
well as how they must interpret the ACCA’s terms.

Lower federal courts are decidedly split on whether
current law, including Mathis, Descamps, and Johnson 2010,
may be used when determining which ACCA clauses a
defendant’s prior convictions may implicate. The Courts of
Appeals for the Seventh and Eleventh Circuits, as well as
many district courts, have held that only case law existing at
the time of a defendant’s sentencing may be used to decide
the merits of the defendant’s § 2255 motion based on
Johnson. See, e.g., In re Hires, 825 F.3d 1297, 1302-04 (11th
Cir. 2016) (concluding that a defendant could not rely on
Descamps to prove a Johnson claim); Holt v. United States,
843 F.3d 720, 721-24 (7th Cir. 2016) (determining that a
defendant’s § 2255(h)(2) motion could not rest on Johnson
because his claim ultimately turned on other post-sentencing
cases, such as Mathis).11 Meanwhile, a subsequent panel of

11
See also In re Thomas, 823 F.3d 1345, 1349 (11th
Cir. 2016); Moore, 830 F.3d at 1273; Kane v. United States,
No. 16-00146, 2016 WL 7404720, at *3 (W.D.N.C. Dec. 21,
2016), aff’d, 706 F. App’x 141 (4th Cir. 2017); Traxler v.
United States, No. 16-747, 2016 WL 4536329, at *5 (W.D.
Mich. Aug. 31, 2016), vacated on other grounds, 2017 WL
4124880 (6th Cir. Mar. 7, 2017); Ziglar v. United States, 201
F. Supp. 3d 1315, 1325-26 (M.D. Ala. 2016); Peek v. United
States, No. 408-221, 2016 WL 4926431, at *3 (S.D. Ga. Sept.
14, 2016); Perez v. United States, No. 16-22379, 2016 WL
6996150, at *3 (S.D. Fla. Nov. 28, 2016), aff’d, 2018 WL

30
the Eleventh Circuit, as well as many other district courts,
have concluded that courts can use case law post-dating a
defendant’s sentence when deciding the ACCA clauses into
which that defendant’s prior convictions may fall. See, e.g.,
In re Adams, 825 F.3d 1283, 1285-86 (11th Cir. 2016)
(concluding that a defendant could rely on Descamps to prove
his Johnson claim because Descamps “is not an independent
claim that is itself subject to the gatekeeping
requirements”).12

This issue, which is one of first impression for us, has
been divisive because of an underlying difference of opinion
over the effect of § 2255(h)’s gatekeeping function. As noted
earlier, when a defendant brings a second or successive
§ 2255 motion, the district court must first consider whether
the motion relies on “a new rule of constitutional law, made

1750555 (11th Cir. Apr. 12, 2018); Dimott v. United States,
No. 06-26, 2016 WL 6068114, at *3 (D. Me. Oct. 14, 2016),
aff’d, 881 F.3d 232 (1st Cir. 2018); Burgess v. United States,
No. 493-205, 2016 WL 4618814, at *2 (S.D. Ga. Sept. 6,
2016); King v. United States, No. 16-22261, 202 F. Supp. 3d
1346, 1359-60 (S.D. Fla. 2016); Leone v. United States, No.
16-22200, 203 F. Supp. 3d 1167, 1178-79 (S.D. Fla. 2016).
12
See also United States v. Christian, 668 F. App’x
820, 820-21 (9th Cir. 2016); Rogers, 825 F.3d at 1337-40; In
re Parker, 827 F.3d 1286, 1287-88 (11th Cir. 2016), vacated
on other grounds, 832 F.3d 1250 (11th Cir. 2016); United
States v. Carrion, 236 F. Supp. 3d 1280, 1284-88 (D. Nev.
2017); United States v. Avery, No. 02-113, 2017 WL 29667,
at *1 (D. Nev. Jan. 3, 2017); United States v. Ladwig, 192 F.
Supp. 3d 1153, 1159-61 (E.D. Wash. 2016).

31
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
§ 2255(h)(2); accord 28 U.S.C. § 2244(b)(2)(A). And, for
such motions, “a new rule is not ‘made retroactive to cases on
collateral review’ unless the Supreme Court holds it to be
retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001); see
also In re Olopade, 403 F.3d 159, 162 & n.3 (3d Cir. 2005)
(extending Tyler’s holding with respect to § 2244(b)(2)(A) to
the identical language in § 2255(h)(2)). A new rule is only
made retroactive by the Supreme Court if that Court has
“explicitly held, or two or more of its decisions when read
together … absolutely dictate, that a particular rule is
retroactively applicable to cases on collateral review.”
Olopade, 403 F.3d at 162.

The Supreme Court has never held that Mathis,
Descamps, or Johnson 2010 apply retroactively to cases on
collateral review, nor do any combination of Supreme Court
precedents dictate the retroactivity of those cases. See Holt,
843 F.3d at 722 (“Mathis has not been declared retroactive by
the Supreme Court[.]”); In re Jackson, 776 F.3d 292, 295-96
(5th Cir. 2015) (indicating that the Supreme Court has not
made Johnson 2010 retroactive); Groves v. United States, 755
F.3d 588, 593 (7th Cir. 2014) (stating that “the Supreme
Court has not made Descamps retroactive on collateral
review”). Because only the Supreme Court can declare which
new rules of constitutional law are retroactively applicable to
cases on collateral review in the second or successive habeas
motion context, Mathis, Descamps, and Johnson 2010 cannot
provide the foundation that satisfies the gatekeeping
requirements for a § 2255(h)(2) motion.

32
 But that does not end our inquiry into whether those
cases may be part of a defendant’s arsenal in a collateral
attack on his sentence. When a defendant’s second or
successive § 2255 motion recites a Johnson claim that
satisfies § 2255(h)’s gatekeeping requirements, the defendant
is through the gate. See Welch, 136 S. Ct. at 1264-65
(concluding that Johnson is “a substantive decision and so has
retroactive effect under Teague in cases on collateral
review”). At that point, we are no longer concerned with
AEDPA retroactivity and it makes perfect sense to allow a
defendant to rely upon post-sentencing Supreme Court case
law that explains the pre-sentencing law. Cf. Rivers v.
Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) (“A
judicial construction of a statute is an authoritative statement
of what the statute meant before as well as after the decision
of the case giving rise to that construction.”).

Mathis, Descamps, and Johnson 2010 are such cases.
An analysis of which ACCA clauses a defendant’s prior
convictions might fall under should be guided by precedent
that will “ensure we apply the correct meaning of the
ACCA’s words.” Adams, 825 F.3d at 1286. Indeed, the
Supreme Court’s decisions in Mathis, Descamps, and
Johnson 2010 instruct courts on what has always been the
proper interpretation of the ACCA’s provisions. That is
because, when the Supreme Court “construes a statute, it is
explaining its understanding of what the statute has meant
continuously since the date when it became law.” Rivers, 511
U.S. at 313 n.12. In short, those decisions interpreting the
ACCA are not new law at all, in the sense contemplated by
Teague. The rules in Mathis, Descamps, and Johnson 2010
are “authoritative statement[s] of what the [ACCA] meant
before as well as after [those] decision[s.]” Rivers, 511 U.S.

33
at 312-13; see Dawkins v. United States, 829 F.3d 549, 551
(7th Cir. 2016) (“Mathis … is a case of statutory
interpretation.”); Ezell v. United States, 778 F.3d 762, 766
(9th Cir. 2015) (“Descamps is a statutory interpretation
case[.]”); United States v. Voisine, 778 F.3d 176, 194 (1st Cir.
2015) (describing Johnson 2010 as a case involving statutory
interpretation). Furthermore, “a rule that requires judges to
take a research trip back in time and recreate the then-existing
state of the law—particularly in an area of law as muddy as
this one—creates its own problems in terms of fairness and
justiciability.” United States v. Carrion, 236 F. Supp. 3d
1280, 1287 (D. Nev. 2017); see also United States v. Ladwig,
192 F. Supp. 3d 1153, 1160 (E.D. Wash. 2016) (“Attempting
to recreate the legal landscape at the time of a defendant’s
conviction is difficult enough on its own.”).

We thus hold that, once a defendant has satisfied
§ 2255(h)’s gatekeeping requirements by relying on Johnson,
he may use post-sentencing cases such as Mathis, Descamps,
and Johnson 2010 to support his Johnson claim because they
are Supreme Court cases that ensure we correctly apply the
ACCA’s provisions.13

13
The government’s argument that allowing the use of
post-sentencing case law impermissibly bootstraps Mathis,
Descamps, and Johnson 2010 claims onto a Johnson claim
ignores that there remains, throughout the entire collateral
attack, a valid Johnson claim upon which the sentencing court
is passing judgment. The post-sentencing case law is not
being smuggled in under Johnson’s cloak because a proper
analysis in light of Johnson warrants applying the ACCA’s
terms correctly. But see Hires, 825 F.3d at 1303 (“[A

34
 Having decided all of the preliminary matters, we can
now proceed to consider whether Peppers’s prior convictions
were properly determined to be predicate offenses under the
ACCA. We begin with Peppers’s prior convictions for
robbery under Pennsylvania law.

D. Peppers’s Pennsylvania Robbery Convictions

Peppers’s prior robbery convictions14 do not qualify as
predicate offenses under the ACCA because a conviction
under Pennsylvania’s robbery statute does not categorically
constitute a “violent felony.”

Under the ACCA’s elements clause, any crime that
“has as an element the use, attempted use, or threatened use
of physical force against the person of another” qualifies as a
violent felony. 18 U.S.C. § 924(e)(2)(B)(i). The parties do
not dispute which two convictions are at issue here: Peppers’s
1979 juvenile robbery conviction and his 1985 robbery
conviction. When Peppers was convicted for those crimes,
the Pennsylvania robbery statute stated:

defendant] cannot use Johnson as a portal to challenge his
ACCA predicates … based on Descamps.”).
14
The ACCA states that the term “conviction” as used
in the definition of the term “violent felony” includes “a
finding that a person has committed an act of juvenile
delinquency involving a violent felony.” 18 U.S.C.
§ 924(e)(2)(C). Thus, we treat Peppers’s 1979 juvenile
robbery adjudication of delinquency as a “conviction” for
purposes of our ACCA analysis.

35
 (1) A person is guilty of robbery if, in the
course of committing a theft, he:

(i) inflicts serious bodily injury upon
another;

(ii) threatens another with or
intentionally puts him in fear of
immediate serious bodily injury;

(iii) commits or threatens immediately
to commit any felony of the first
or second degree;

(iv) inflicts bodily injury upon another
or threatens another with or
intentionally puts him in fear of
immediate bodily injury; or

(v) physically takes or removes
property from the person of
another by force however slight.

18 Pa. Cons. Stat. § 3701(a) (June 24, 1976 to May 16, 2010).
The grading provision provided that: “[r]obbery under
subsection (a)(1)(iv) is a felony of the second degree; robbery
under subsection (a)(1)(v) is a felony in the third degree;
otherwise, it is a felony of the first degree.” Id. § 3701(b).

The District Court concluded that Peppers’s robbery
convictions qualified as violent felonies under the ACCA’s
elements clause rather than the unconstitutional residual

36
clause. But that conclusion cannot be supported on this
record.15

As discussed earlier, supra at section II.D., when a
statute is divisible because it comprises multiple, alternative
versions of a crime, sentencing courts can resort to the
“modified categorical approach” to determine whether a
defendant’s prior convictions qualify as predicate offenses
under the ACCA. Descamps, 570 U.S. at 260-62. That
approach allows a court “to identify, from among several
alternatives, the crime of conviction so that the court can
compare it to the generic offense.” Id. at 264. To make that
determination, it is permissible to look to a narrow category
of “extra-statutory materials” known as Shepard documents.
Id. at 263; see generally Shepard v. United States, 544 U.S.
13 (2005). Those documents include the “charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard, 544 U.S. at 16. After
consulting Shepard documents and applying the modified
categorical approach to determine the specific crime of
conviction, the sentencing court then resorts to the traditional

15
The District Court drew its conclusion from the
government’s earlier use of “the phrase ‘has as an element the
use, attempted use or threatened use of physical force against
another,’” in a court filing from 2000 titled “Notice of
Intention to Seek Enhanced Sentencing,” to describe
Peppers’s prior robbery convictions. (App. at 5-6; ECF No.
46 at 2.) But what the government said in 2000 does not tell
us under which ACCA clause the District Court later
concluded Peppers’s prior Pennsylvania robbery convictions
qualify as predicate offenses.

37
“categorical approach” that requires comparing the criminal
statute to the relevant generic offense. Mathis, 136 S. Ct. at
2249.

“Given the clearly laid out alternative elements of the
Pennsylvania robbery statute, it is obviously divisible and,
therefore, a sentencing court can properly look to the kinds of
documents listed by the Supreme Court in … Shepard to
determine which subsection was the basis of [the defendant’s]
prior convictions.” United States v. Blair, 734 F.3d 218, 225
(3d Cir. 2013); see also Mathis, 136 S. Ct. at 2256 (“If
statutory alternatives carry different punishments, then …
they must be elements.”); see generally 18 Pa. Cons. Stat.
§ 3701(b) (providing the punishment grading for violating
various provisions of subsection (a)(1)). But, when there are
no Shepard documents for the sentencing court to consult, the
modified categorical approach becomes a useless tool. The
only thing differentiating the categorical and modified
categorical approaches is the consultation of Shepard
documents to determine which of multiple alternative
offenses in a single criminal statute the prisoner was
convicted under. Without Shepard documents, the
categorical and modified categorical approaches are the same,
and the sentencing court is forced to proceed under the
categorical approach. Here, that is exactly what is required.
The parties admit that no Shepard documents have been
produced by either Peppers or the government and, thus, we
do not know under which provision of the Pennsylvania
robbery statute Peppers was convicted.16 Therefore, we must
turn to the categorical approach.

16
Peppers admitted through his counsel at the time of
sentencing that his 1979 and 1985 robbery convictions were

38
both “armed robbery” convictions. (App. at 31, 56.) Yet,
even if a defendant’s admissions are encompassed within
those forms of evidence contemplated by Shepard, the fact
that Peppers’s convictions were for “armed robbery” does not
help us identify under which of the five subsections of
Pennsylvania’s robbery statute he was convicted. One would
think that an “armed” robbery, which involves the use of a
weapon, would typically be charged as a first-degree felony,
and Peppers acknowledges that “armed” robberies are
“generally charged under § 3701(a)(1)(ii),” which is a first-
degree felony under Pennsylvania’s robbery statute.
(Opening Br. at 32); see, e.g., Commonwealth v. Ruffin, 10
A.3d 336, 337 (Pa. Super. Ct. 2010) (noting that a defendant
was charged and convicted of armed robbery under 18 Pa.
Cons. Stat. § 3701(a)(1)(ii)). But Pennsylvania case law
suggests that there are several instances in which defendants
were convicted of armed robbery under other provisions,
including the third-degree felony provision, § 3701(a)(1)(v).
See, e.g., Commonwealth v. Ali, No. 525-EDA-2014, 2015
WL 7430301, at *1 & n.1, *4-5, *7 (Pa. Super. Ct. Mar. 25,
2015) (affirming a defendant’s sentence following
convictions under 18 Pa. Cons. Stat. § 3701(a)(1)(ii), (iii),
and (v) based on facts involving an armed robbery);
Commonwealth v. Runk, No. 1621-MDA-2014, 2015 WL
7260326, at *1 & nn.1-2, *3 (Pa. Super. Ct. May 28, 2015)
(same following convictions under § 3701(a)(1)(ii) and (v));
Commonwealth v. Haynes, No. 58-EDA-2013, 2014 WL
10965752, at *1, *4 & n.1, *6 (Pa. Super. Ct. Apr. 9, 2014)
(denying a defendant’s petition for post-conviction relief
following a conviction for armed robbery under, among other
things, § 3701(a)(1)(v)).

39
 As a reminder, under the categorical approach, the
“focus [is] solely on whether the elements of the crime of
conviction sufficiently match the elements of generic
burglary, while ignoring the particular facts of the case.”
Mathis, 136 S. Ct. at 2248. “How a given defendant actually
perpetrated the crime … makes no difference; even if his
conduct fits within the generic offense, the mismatch of
elements saves the defendant from an ACCA sentence.” Id.
at 2251. We are required to “presume that the conviction
‘rested upon [nothing] more than the least of th[e] acts’
criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.” Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (alterations in original)
(quoting Johnson 2010, 559 U.S. at 137).

The least culpable act covered by Pennsylvania’s
robbery statute at the time of Peppers’s convictions
criminalizes physically taking or removing “property from the
person of another by force however slight.” 18 Pa. Cons.
Stat. § 3701(a)(1)(v). Pennsylvania law interprets “force
however slight” to include “any amount of force applied to a
person while committing a theft[,]” including the mere “use
of threatening words or gestures, and operates on the mind.”
Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 1984).
“The degree of actual force is immaterial, so long as it is
sufficient to separate the victim from his property[.]” Id.
Although we held in United States v. Cornish “that any
conviction for robbery under the Pennsylvania robbery
statute, regardless of the degree, has as an element the use of
force against the person of another[,]” 103 F.3d 302, 309 (3d
Cir. 1997), the Supreme Court’s subsequent decision in
Johnson 2010 has placed significant doubt on that holding.

40
 As previously noted, the Supreme Court in Johnson
2010 held that the phrase “physical force” in the ACCA’s
elements clause “means violent force—that is, force capable
of causing physical pain or injury to another person.” 559
U.S. at 140 (emphasis omitted). It concluded that a prior
conviction under Florida’s battery law, which criminalized
“any intentional physical contact, ‘no matter how slight,’”
was not a violent felony under the ACCA’s elements clause
because the broad range of conduct encompassed by that state
law did not have “as an element the use … of physical force
against the person of another.” Id. at 135, 138, 145 (citations
omitted). It reached that conclusion because “physical force”
under the ACCA’s elements clause is not “satisfied by the
merest touching.” Id. at 139.

Here, again, the Pennsylvania robbery statute
criminalizes “physically tak[ing] or remov[ing] property from
the person of another by force however slight[.]” 18 Pa.
Cons. Stat. § 3701(a)(1)(v) (emphasis added). Because that
has been interpreted to include “any amount of force applied
to a person while committing a theft[,]” including the mere
“use of threatening words or gestures, and operates on the
mind,” and because “[t]he degree of actual force is
immaterial, so long as it is sufficient to separate the victim
from his property,” Brown, 484 A.2d at 741, Pennsylvania’s
robbery statute suffers from the same issues the Supreme
Court identified with Florida’s battery statute in Johnson
2010. Both laws proscribe the merest touching, which is
insufficient conduct to meet the “physical force” requirement
under the ACCA’s elements clause. Thus, we think it plain
that Johnson 2010 abrogated our holding in Cornish with
respect to third degree robbery under Pennsylvania law.

41
 Consequently, Pennsylvania’s robbery statute for third
degree robbery does not fall within the elements clause of the
ACCA because that state law provision is broader than the
generic force requirements under the ACCA. Since we have
no Shepherd documents to guide us and are thus left to apply
the categorical approach in assessing Peppers’s robbery
convictions, we must assume he was convicted under the
third degree robbery provisions and hence under a provision
of Pennsylvania law that is broader than the generic
requirements of the elements clause of the ACCA.17
Furthermore, a conviction under that Pennsylvania statute
does not fall within the ACCA’s enumerated offenses clause
because robbery is not enumerated. See 18 U.S.C.
§ 924(e)(B)(2)(ii) (enumerating only burglary, arson,
extortion, and crimes involving the use of explosives). The
only remaining option, then, is that Peppers was sentenced
pursuant to the unconstitutional residual clause.18

17
Importantly, our holding today does not speak to
whether convictions under any single provision of the
Pennsylvania robbery statute, other than 18 Pa. Cons. Stat.
§ 3701(v), categorically qualify as violent felonies under the
ACCA.
18
This is yet another example of a disconcerting
outcome driven not by statute or a common understanding of
concepts like “violent felony” but by the strictures of the
categorical approach. See, e.g., United States v. Chapman,
866 F.3d 129, 136-39 (3d Cir. 2017) (Jordan, J., concurring)
(noting Judge Wilkinson’s non-exhaustive list of ten cases in
which the categorical approach allowed “repeat offenders [to]
avoid sentencing enhancements for their violent crimes[,]”
and Judge Lynch’s recognition that “the categorical approach

42
 E. Peppers’s Pennsylvania Burglary Conviction

It is less clear whether Peppers’s prior burglary
conviction qualifies as a predicate offense under the ACCA.19
Looking first at the enumerated offenses clause, we are once
again, under the categorical approach, required to determine
“whether the crime of conviction is the same as, or narrower
than, the relevant generic offense.” Mathis, 136 S. Ct. at
2257. If the statute under which the defendant was previously
convicted is broader than the generic crime of burglary, and if
that statute is indivisible, then that prior conviction does not
qualify as an ACCA predicate under the enumerated offenses
clause. Id.

One of the ACCA’s enumerated offenses is burglary,
in its generic variety. 18 U.S.C. § 924(e)(2)(B)(ii); Taylor,
495 U.S. at 598. But the generic version of burglary has “the
basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime.” Id. at 599. Those elements encompass a narrower

forces judges into an alternative reality” (citing United States
v. Doctor, 842 F.3d 306, 315 (4th Cir. 2016) (Wilkinson, J.,
concurring) and United States v. Faust, 853 F.3d 39, 60 (1st
Cir. 2017) (Lynch, J., concurring))).
19
Pennsylvania law at the time of Peppers’s burglary
conviction provided that “[a] person [was] guilty of burglary
if he enter[ed] a building or occupied structure, or separately
secured or occupied portion thereof, with intent to commit a
crime therein, unless the premises [were] at the time open to
the public or the actor [was] licensed or privileged to enter.”
18 Pa. Cons. Stat. § 3502(a) (1973).

43
class of behavior than does the relevant version of the
Pennsylvania burglary statute because Pennsylvania’s statute
includes vehicles within its definition of occupied structure,
while the generic version does not. See 18 Pa. Cons. Stat.
§ 3501 (defining “occupied structure” to include “any …
vehicle … adapted for overnight accommodation of persons,
or for carrying on business therein”); Taylor, 495 U.S. at 599
(indicating that state burglary statutes criminalizing entry into
“places, such as automobiles …, other than buildings,” define
burglary more broadly than Congress’s generic definition);
see also United States v. Bennett, 100 F.3d 1105, 1109-10 (3d
Cir. 1996) (concluding that Pennsylvania’s burglary statute is
broader than the generic burglary offense). Under the
categorical approach then, there is not an equivalence that
allows us to say that burglary under Pennsylvania law
categorically qualifies as an ACCA predicate offense, at least
not under the enumerated offenses clause of the ACCA.20

20
That conclusion is not altered by resort to the
modified categorical approach because there can be no such
resort. We have foreclosed application of the modified
categorical approach when analyzing convictions under
Pennsylvania’s burglary statute. In our recent decision in
United States v. Steiner, we considered the effect of the
Supreme Court’s decision in Mathis on the proper
interpretation of that statute. 847 F.3d 103, 106 (3d Cir.
2017). We held “[t]he statute is not divisible and, after
Mathis, a categorical approach, rather than a modified
categorical approach, must be used.” Id. at 119. While the
Steiner decision dealt with the 1993 Pennsylvania burglary
statute, it is identical to the statute Peppers was convicted
under in 1983 in Pennsylvania state court. Compare 18 Pa.
Cons. Stat. § 3502(a) (1973), with id. § 3502(a) (1991). The

44
 To determine whether the unconstitutional residual
clause of the ACCA was necessarily the basis for Peppers’s
burglary conviction, we must also rule out the elements
clause as a basis. Peppers has the burden of proving the
merits of his Johnson claim, see supra note 6, which means
he bears the burden of demonstrating that his sentence
implicated the residual clause of the ACCA.21 But he has

District Court therefore erred by applying the modified
categorical approach to determine whether Peppers’s prior
Pennsylvania burglary conviction qualified as a violent felony
under the enumerated offenses clause of the ACCA. The
specific facts of Peppers’s case are irrelevant. Given the state
of our law, Peppers’s conviction under Pennsylvania’s
burglary statute cannot qualify as a predicate offense pursuant
to the ACCA’s enumerated offenses clause.
21
To prove a Johnson claim, we think it incumbent on
a § 2255 movant to demonstrate that his sentence necessarily
implicates the residual clause, which may be shown either by
evidence that the district court in fact sentenced him under the
residual clause or proof that he could not have been sentenced
under the elements or enumerated offenses clauses based on
current case law, and that that made a difference in his
sentence. Although it appears that different tests have
emerged for determining whether a movant has proven a
Johnson claim at the merits stage, see, e.g., Beeman, 871 F.3d
at 1221 (“We conclude, and hold, that, like any other § 2255
movant, a Johnson § 2255 claimant must prove his claim …
[by showing] that—more likely than not—it was use of the
residual clause that led to the sentencing court’s enhancement
of his sentence.”); Geozos, 870 F.3d at 895-97 (indicating that
a movant proves a Johnson claim by showing that it is unclear

45
neither briefed nor argued on appeal that, categorically, his
Pennsylvania burglary conviction does not qualify as a
predicate offense under the ACCA’s elements clause. That
argument was thus forfeited.22 See Barna v. Bd. of Sch. Dirs.
of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)
(“‘[F]orfeiture is the failure to make the timely assertion of a
right,’ an example of which is an inadvertent failure to raise

whether a sentencing court relied on the residual clause and
that that error was not harmless based on categorical analyses
of those prior convictions under current case law); see also
United States v. Taylor, 873 F.3d 476, 479-81 (5th Cir. 2017)
(summarizing different approaches among circuit courts for
deciding Johnson claims), the main distinguishing feature
seems to be whether a movant may rely on post-sentencing
case law to prove his Johnson claim. We have resolved here
that § 2255 movants are entitled to use current case law to
prove their claims. See supra Subsection II.C. We have also
already established that there is a meaningful difference
between the standard to be met at the jurisdictional
gatekeeping stage of the analysis of a second-or-successive §
2255 motion and at the merits stage. See discussion supra
Subsection II.A. Thus, for the merits analysis to be
meaningfully different and to keep the burden of proof on the
movant, where it belongs, it is appropriate to require the
movant to prove by a preponderance of the evidence that his
sentence depends on the ACCA’s residual clause.
22
We do not decide whether a conviction under
Pennsylvania’s burglary statute categorically qualifies as a
violent felony under the ACCA’s elements clause.

46
an argument.” (alteration in original) (quoting United States
v. Olano, 507 U.S. 725, 733 (1993))).

For that reason, although Peppers’s burglary
conviction cannot qualify as a predicate offense under the
enumerated offenses clause of the ACCA, we conclude that
Peppers has not met his burden of proving that he was
necessarily sentenced under the unconstitutional residual
clause of the ACCA because he failed to show that the
burglary conviction does not qualify under the elements
clause.23 Peppers’s burglary conviction thus stands as a
qualifying predicate offense.

III. CONCLUSION

Because we have decided that Peppers’s sentence was
imposed due to constitutional error given that he may have
been sentenced pursuant to the now-unconstitutional residual
clause of the ACCA, the District Court must resolve whether
that error was harmless. See Brecht v. Abrahamson, 507 U.S.
619, 638 (1993) (indicating that when a court finds that a
defendant’s sentence was imposed due to constitutional error,
it must then determine whether that constitutional error was
harmless). The District Court noted that “the record reflects
that Peppers also has a prior drug charge which qualifies as a

23
Peppers also argues that the District Court erred
when it relied upon his Presentence Investigation Report and
the government’s brief to determine he was not sentenced
under the ACCA’s residual clause, both of which he argues
are improper Shepard documents. We do not need to address
those concerns, however, because our analysis does not rely
on that body of disputed evidence.

47
predicate offense.” (App. at 7.) The District Court should
analyze in the first instance whether Peppers has at least two
other qualifying predicate offenses rendering any
constitutional error harmless. If the Court concludes that the
error was not harmless, it must proceed to correct Peppers’s
sentence by removing the sentencing enhancement under the
ACCA and resentencing him for the underlying crime he pled
guilty to – being a felon in possession of a firearm, which
carries a maximum term of imprisonment of ten years.

Accordingly, we will vacate the judgment of the
District Court and remand the case for further proceedings.

48