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)

_______________
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 11754

Harrisburg, PA 17108

 Counsel for Appellee

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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 
3

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 postsentencing 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 
4

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. 
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 

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 
6

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 
7

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-inpossession 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.
8

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.)
9

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.)
10

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 
11

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. 
12

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).)
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”). 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 
14

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.
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 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. 
16

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 
17

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.
18

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 
19

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 
20

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 
21

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.”).
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 

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 
23

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).
24

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 
25

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 
26

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 
27

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.
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 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).
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 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, 
30

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 
31

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).
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) 

(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.
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 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. 
34

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 
35

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.
36

(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 
37

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.
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 

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 
39

 

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 firstdegree 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)).
40

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.
41

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.
42

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 
43

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).
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, 

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 
45

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 
46

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.
47

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.
48

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.