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 Pe nnsylvania (M.D. Pa . No. 1

- 00

- cr

- 00 105

- 001 ) District Judge: Hon. Sylvia H. Rambo

_______________

Ar g u ed October 12, 2017

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

(Filed: August 13, 2018 )

_______________2 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 1 1754 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.

T hat was t he 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 Cour t’s decision in Johnson v. United
States , 135 S. Ct. 2 5 51 (2015) , which invalidated a clause of
the ACCA

– the “residual clause”

– as unconstitutionally

vague. He argue d in District Court in a motion under 283 U.S.C. § 2255 that he was impermissibly senten ced 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

s e cond § 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 § 22 55 motions based on Johnson require s only that a defendant prove he might have been se ntenced 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) d oes not preclude a defendant from collaterally

attac k ing 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 correct ion in a second or successive § 2255 motion
based on Johnson

, a nd who has used Johnson to satisf y the gatekeeping requirements of § 2255(h) , may rely on post

sentencing case s ( i.e. , the current state of the law) to support his Johnson claim

. Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery sta tute, 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 burglary4 conviction

. W e 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. F ACT S AND P ROCEDURAL H ISTORY

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

, i n 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 represen t 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 Pr ocedure 11(c)(1)(C) ( the “(C) plea”) . As part of his plea agreement with the
government

, he waived indictment and ple d 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.5 § § 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 possessio n 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, t he mandatory minimum pe nalty for the crime to which Peppers ple d guilty was fifteen years’ imprisonment. The (C) plea was conditioned upon the District Court sentencing him to that minimum pena lty.

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 rele vant 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). Th e statute defines “violent felony” as “any crime punishabl e 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 of6 explosives, or [C] otherwise involves conduct that presents a serious potential risk of physical injury to another[.]” Id. § 924(e)(2)(B). The parts label ed 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 C riminal 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 two7 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.) T here was no discussion concerning which
of the specific ACCA clauses were thought to ma ke three of Peppers’s prior convictions “ violent felonies

. ” On August 13, 2003, the District Court accepted the (C) plea and sentenced Peppers to fi fteen 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. W e

1 There was no waiver of appellate or collateral attack rights, as is often found in plea agreements.8 granted a certificate of appealability solely as to whether Peppers’s plea counsel was ineffective for alleged ly 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 P eppers 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 b een reinstated

. Thus , we aff irmed 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. 2 5 51 (2015), the Supreme Court invalidated t he 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 moti on seeking resentencing based on Johnson . He also submitted the required application for permission to fi le 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 s atisfied the gatekeeping requirements of § 2255(h)

– which are jurisdictional

– by making “a prima
fa cie showing that his proposed § 2255 motion contains a
new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court t hat was previously unavailable.” (App. at 136.)9 Peppers claimed that his armed robbery conviction s under Penn sylvania law no longer qualif y as violent felon ies
after Johnson invalida ted the ACCA’s residual clause

. He
also claimed that his burglary convi ction under Pennsylvania law no longer qualifie s as a violent felony under the ACCA.

B oth of those claims require d the District Court to resentence him, he said, because the fifteen

- year minimum imprisonment sentence dictated by the ACCA no longer applie d to him and
the maximum sentence for the felon

- in

- possession offense he pled to is only ten years’ imprisonment.

The g overnment moved to dismiss the second § 2255
motion for three reasons . First, it argued that the District
C ourt 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 g overnment contended that

, because the District Court neve r said at sentencing that Peppers’s prior convictions fell under the
ACCA’s residual clause and Peppers submitted no evidence showing that t hose convictions did not fall under another
ACCA clause , he failed to meet the jurisdictional gatekeeping requirement s 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 qualif y as violent felonies under the
ACCA’s elements clause. Finally, the g overnment argued that Peppers’s Pennsylvania burglary convict ion was a violent felony under the ACCA’s enumerated offenses clause, particularly in light of “the unobjected

- to

- facts in the PSR[.]” (App. at 18 1.)10 The District Court directed the g overnment to file a supplemental brief addressing the impact of Peppers’s (C) plea on his claim for resentencing based on Johnson . The

g overnment 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 g overnment 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 expl ain why he sa tisfied 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 und er the ACCA’s
other clauses. Specifically, i t 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 e numerated
offen se s clause

. The Court reached the latter conclusion despite recognizing that the Pennsylvania burglary statute is broader than generic burg lary, reasoning that the evidence
showed h is conviction met the elements of the generic11 offense. Therefore, the Dis trict Court held that Peppers was ineligible for relief under § 2255.

We granted Peppers a certificate of appeala bility on the question of whether he was improperly sentenced in light
of Johnson

. 2 H e timely appealed.

2 S pecifically, 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.12 II. D ISCUSSION

A. Standard of Review an d Jurisdiction

This appeal raise s 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 ground s, namely that the sentence was imposed in violation of the Constitution or federal law, that the court was without jurisdicti on 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 moti on 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 p reviously 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. 255 1 (2015), and the law as it otherwise existed at the time of his sentencing.

(App. at 9

- 10 (citations omitted).)13 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”). Th e requi red certification is made pursuant to § 2244 , which di rects 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 subje ct 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 g overnment argued below, and argues again on appeal, that the District Court lacked jurisdiction ove r 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 applies14 to him. Even in the absence of the government’s challenge,
we would be ob ligated 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 itse lf ... 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 require s a petitioner to show that his sentence may be unconstitutional in light o f 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 , 8 7 0 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.” ). T he 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 tha t change does not comport with our established precedent.15 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 alrea dy 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

, 8 7 0 F.3d at 308 ( quoting Goldblum

, 510 F.3d at 219 & n.9). T he D istrict 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 condu ct an independent inquiry. Id. at 219

- 20.

The specific AEDPA prov ision 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 g overnment 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. R ather , the g overnment argues

, he must demonstrate that the sentencing court did in fact employ the residual clause in imposing an enhanced sentence under the ACCA.16 That view suggests a defendant can only pass through the jurisdictional gate by producing evide nce 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

sent encing 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 h is sentence may be , not that it must be, unconstitutio nal in light of a new rule of
constitutional law made ret roactive by the Supreme Court. It
is true that Congress passed AEDPA with the purpose of restricting a defendant ’ s ability to collaterally attack his
convic tion 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 Congres s 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

a lthough 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 s how 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 , w e recently held that “whether a claim ‘relies’ on17 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 ru le 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

g overnment’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 inter pretation 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 i nclude the word “relies” at all. R ather , that language was taken from the Supr eme 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 AED PA 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.18 is unconstitutional under that new rule, Peppers ’s interpretation is more consistent with Hoffner and a common sense analytical approach . Because the word “re lies” 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 ne w 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 t hat 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 th e 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 concl usion 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 sent ence 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 defendant19 qualified as an armed career criminal, but it may have, the
defen dant’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. 20 16). 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 C ircuit 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 succes sive 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 the20 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 up on 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 t he discretionary decision of
his sentencing judge to specify the ACCA clause under which
each prior conviction qualifies as a violent felony. Id. T he

g overnment’s rule results in randomly unequal treatment of § 2255 claims.

Finally, contrary to the g overnment’s characterization

, the rule that Peppers advocates does not deprive the gatekeeping requirem ents of force

. Under the rule we announce today, s imply 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. T here 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, th e movant cannot establish that he may have
been sentenced under the residual claus e, 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 g overnment also contends that allowing Peppers to “pass through the jurisdictional door by merely identifying the possibility that he was sentenced based on the residual21 not undermining AEDPA by hold ing that a movant satisfies § 2255 (h) ’s gatekeeping requirements with a showing that he

may have been sentenced under the now

- unconstitutional
residu al clause of the ACCA.

Peppers met th os e requirements by demonstrating that
the claims in his second § 2255 motion rely on the new rule
of cons titutional 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’ imprisonm ent 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 m ay 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 g overnment. (Answering Br. at 17.)
We di sagree. 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 r ule is that the petitioner himself bears the burden of proving that his conviction is illegal.”).22 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

at tacking 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 agree ment” 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[.]” Ge nerally, “[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).

T he g overnment 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 constitutional ity of a statute as applied to a23 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 conv iction or sentence based on a guilty plea. Th e 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 “ f oreclose the collateral attack. ”
Id. Nevertheless, “[t] here are exceptions where on the face of
the record the court ha d 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 cri minal 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).24 impose the sentence.” Id. W hile “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 constit utional 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

P eppers’s guilty plea does not preclude a collateral attack
pursuant to Johnson

. I t would be impermissible to preclude a § 2255 motion to correct sentence, which meet s the gatekeeping requirements and is not procedurally barred,
based on a (C) plea that pr eserve s a now

- unlawful sentence

. P arties 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 sent ence 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,

w hen 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 Rule25 11(c)(1)(C) plea agreement

, a defendant who otherwise can successfully challenge that sentence in a § 2255 motion

can not be held to th e 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 mer its 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 abse nce of the ACCA , there is n o 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). Theref

ore, the D istrict C ourt would be without authority to impose a sentence upon Peppers with a term of imprisonment any greater than ten years, even if the

g overnment and Peppers stipulated to a greater term. T he 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 have26 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 qualif y under
either the elements clause or the enumerated offenses clause
of the ACCA. T o do so, however, we must first consider
whether case law that developed aft er 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); s ee also United States v. Weatherspoon , 696 F.3d 416, 422 (3d Cir. 2012) (stating that Justice Sot omayor’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 d o 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
address ed a situation where a new rule of constitutional law may have rendered the sentence i mposed 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 t o determine whether the
defendant could have been sentenced under the elements or27 C. Using Post

- Sentencing Case Law to Establish the Merits of a Johnson Claim

Ordinarily

, new constitutio na l rules of criminal procedure, though they form the current state of the law

, are

not applicab le 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 violen t felo nies under either the elements clause or
the enumerated offenses clause of the ACCA . (Opening Br. at 20.) The g overnment 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, w e agree with Peppers

.

Supreme Court cases si nce Peppers’s sentencing ha ve provided important guidance on how to interpret whether a
conviction falls within a given clause of the ACCA. Those
decisions include Ma this 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 I I.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

.28 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 claus e ], 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
und erstood.” 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

pre dicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.” Id. at 2247.

T hat rule

, well known as the “categorical approach

, ” requires the sentencing court to look solely at the elements of the
crime of convicti on 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 stat ute is said to be “divisible,” and the Supreme Court allows a “modified categorical

10 To the extent the parties also d ispute 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 burg lary statute is not divisible after Mathis , and must be analyzed using a categorical rather than modified categorical approach).29 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 dete rmine 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 sh ould 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 “se ntencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a sing le, indivisible
set of elements. ” Id. Indicating that the rule it announce d in Descamps was not new but rather rested upon old p recedent, 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
involv ing “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 135,30 145 (alterations in original) (citations omitted). Thus, Supreme Court case s 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 f ederal 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 Circuit s , as well as many district courts, have held that only case law e xisting at
the time of a defendant ’s sentencing may be used to decide
the merits of t he 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 Meanwhi le, 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, 20 16 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. Un ited 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 WL31 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. Se e, 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 issu e, 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, w hen 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

175055 5 (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 Stat es , 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 al so United States v. Christian , 668 F. App’x 820, 820

- 21 (9th Cir. 2016); Rogers , 825 F.3d at 13 37

- 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).32 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) (extendin g 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 dict ate, 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 combin ation 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 Co urt 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.33 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 gat ekeeping 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 con cerned 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 constru ction 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 defend ant’ 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 cour ts 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.34 at 312

- 13; s ee 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 rec reate 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 U nited States v. Ladwig

, 192 F. Supp. 3d 1153, 116 0 (E.D. Wash. 2016) (“Attempting to recreate the legal landscape at the time of a defendant’s conviction is difficult enough on its own.”).

W e thus hold that, once a defendant has satisfied § 2255 (h)’s gatekeeping requirem ents 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 (“[A35 Having decided all of the prel iminary 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 conviction s for robbery under Pennsylvania law.

D. Peppers’s Pennsylvania Rob bery Conviction s

Peppers’s prior robbery convictions 14 do not quali fy 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, an y 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: Pep pers’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” include s “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.36 (1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts se rious 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 up on 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, 201 0). 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 Di strict Court concluded that Pepper s ’s robbery convictions qualified as violent felonies under the ACCA’s
elements clause rather than the unconstitutional residual37 clause. But that conclusion cannot be supported on this
record. 15

As discussed earlier, supr a at section II.D., w hen 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 of fenses
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 2 64 . To make that determination, i t 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, trans cript 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

co nviction , the sentencing court then resorts to the traditional

15 The District Court drew its conclusion from the

g overnment’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 fro m 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
concl uded Peppers’s prior Pennsylvania robbery convictions qualify as predicate offenses.38 “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 Pennsy lvania 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 gra ding 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 modifi ed 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 appro aches are the same

, and the sentencing court is forced to proceed under the categorical approach. Here, that is exactly what is required

. T he 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 were39 both “armed robbery” convictio ns. (App. at 31, 56.) Yet,

e ven 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 s tatute 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), ” whic h 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
conviction s under 18 Pa. C ons

. S tat . § 3701(a)(1)(ii), (iii), and (v) based on facts involving an armed robbery );
Commonwea lth 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 § 37 01(a)(1)(ii) and (v)); Commonwealth v. Haynes , No. 58

- EDA

- 2013, 2014 WL 10965752, at *1, *4 & n.1, *6 (Pa. Super. Ct. Ap r. 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))

.40 As a reminder , u nder 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 th ose 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. C ons

. S tat . § 3701(a)(1)(v). Pennsylvania law interprets “force however slight” to include “any amount of force applie d 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 anothe r[,]” 103 F.3d 302, 309 (3d Cir. 1997), the Supreme Court’s subsequent decision in
Johnson 2010 has placed significant doubt on that holding.41 As previously noted, the Supreme Court in Johnson
2010 held that the phrase “physical force” in th e ACCA’s
elemen ts 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 physica l 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 1 35, 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[,]” includi ng 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 sta tute 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.42 Consequently, Pennsylvania’s robbery statute for third degree robbery does not fall within the elements clause of th e 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 categorica l 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 o f 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 lik e “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 app roach allowed “repeat offenders [to] avoid sentencing enhancements for their violent crimes[,]” and Judge Lynch’s recognition that “the categorical approach43 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 e numerated offenses clause, we are once again , u nder 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 t he 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 enumerat ed 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 int ent 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).44 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,
wh ile 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, 11 0 9

- 10 (3d Cir. 1996) (concluding that P ennsylvania’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 offense s 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 bur glary 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 i n 1983 in Pennsylvania state court. Compare 18 Pa. Cons. Stat. § 3502(a) (1973)

, with id. § 3502(a) (1991)

. The45 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 element s clause as a basis

. Peppe rs has the burden of proving the
merits of his Johnson claim, see supra n ote 6

, which means
he bears the burden of demonstr ating 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 convic tion 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 di strict 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. A lthough it appears t hat different tests have emerged for determining whether a movant has proven a
Johnson claim at the merits stage, s ee, 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 clai m ... [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 unclear46 neither briefed n or argued on appeal that, categoric ally, his Pennsylvania burglary conviction does not quali fy as a predicate offense under the ACCA’s elements clause. That
argument was thus forfeited. 22 S ee Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist. , 877 F.3d 136, 147 ( 3d Cir. 2017) (“‘[F]or feiture is the failure to make th e timely assertion of a right,’ an example of which is an inadvertent failure to raise

whethe r a sentencing court relied on the resid ual 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 di fferent 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 u se 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.4 7 an argument.” (alteration in original) (quoting United States
v. Olano , 507 U.S. 725, 733 (1993)))

.

For that reason, a lthough Peppers’s burglary conviction cannot qualify as a predicate offense under the

enumer ated offenses clause of the ACC A, 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. C ONCLUSION

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

- uncons titutional 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 cha rge which qualifies as a

23 Peppers also argues that the District Court erred when it relied upon his Presentenc e Investigation Repor t and
the g overnment’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.48 predicate offense.” (App. at 7.) T he 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 th at 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 m aximum term of imprisonment of ten years.

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