Submitted: January 12, 2018
from United States District Court for the Western District of
Missouri - Springfield
COLLOTON, BENTON, and ERICKSON, Circuit Judges.
COLLOTON, Circuit Judge.
Keith Cravens sought post-conviction relief on the ground
that his 216-month prison sentence under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1),
was imposed in violation of the Constitution and in excess of
the maximum authorized by law. The district court denied
relief, but subsequent decisions have established that
Cravens did not have three prior convictions that qualified
him for enhanced punishment under the statute. We therefore
reverse and remand for the district court to grant relief and
pleaded guilty in 2010 to a two-count indictment. Count Two
charged unlawful possession of a firearm by a previously
convicted felon, and alleged that enhanced punishment was
warranted under the ACCA for a minimum term of 15 years and a
maximum of life imprisonment. See 18 U.S.C.
§§ 922(g)(1), 924(e)(1). The other count charged
unlawful possession of a firearm as both a drug user and a
felon, in violation of 18 U.S.C. § 922(g)(1) and (3),
but did not allege enhanced punishment, so the statutory
maximum term was 10 years' imprisonment. See id.
defendant is subject to an enhanced sentence under the ACCA
if he has three or more previous convictions for a violent
felony or a serious drug offense. Id. §
924(e)(1). At Cravens's sentencing, the district court
adopted the presentence report and thereby found that Cravens
qualified for the enhancement based on three prior
convictions: (1) Illinois burglary in 1998, (2) Missouri
assault on a law enforcement officer in 2004, and (3)
Missouri burglary in 2008. The court sentenced Cravens to 216
months' imprisonment and five years of supervised release
under the ACCA, and to a concurrent term of 120 months'
imprisonment and three years of supervised release on the
other count of conviction.
the Supreme Court held in Johnson v. United States,
135 S.Ct. 2551 (2015), that the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii) is unconstitutionally vague, Cravens
moved to vacate his sentence. 28 U.S.C. § 2255 provides
that the court should grant appropriate relief if "the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or . . . there has been such a denial
or infringement of the constitutional rights of the prisoner
as to render the judgment vulnerable to collateral
attack." Id. § 2255(b). Cravens argued
that his convictions for Missouri second-degree burglary and
Illinois burglary were not violent felonies under the ACCA in
light of Johnson. He urged that because he did not
have three previous convictions for a violent felony, the
district court sentenced him unconstitutionally and in excess
of the statutory maximum.
district court denied relief, concluding that Cravens still
had at least three qualifying convictions under the ACCA. We
have since held, however, that neither Illinois burglary nor
Missouri second-degree burglary are violent felonies under
the ACCA. See United States v. Byas, 871 F.3d 841,
844 (8th Cir. 2017) (per curiam); United States v.
Naylor, 887 F.3d 397, 406-07 (8th Cir. 2018) (en banc).
We thus conclude-and the government concedes-that Cravens
does not have three qualifying prior convictions and was
improperly sentenced as an armed career criminal.
Cravens's 216-month sentence on Count Two exceeds the
120-month statutory maximum that should have applied under
government argues, however, that Cravens is not entitled to
resentencing, because the district court could have
imposed the same 216-month sentence by ordering Cravens's
sentences on the two counts of conviction to be served
consecutively rather than concurrently. In Sun Bear v.
United States, 644 F.3d 700 (8th Cir. 2011) (en banc),
we relied on a related rationale in denying relief to a
movant who argued that he was improperly sentenced as a
career offender under the sentencing guidelines, USSG §
4B1.2. Sun Bear, 644 F.3d at 704-06. We reasoned
that the movant did not have a cognizable claim under §
2255 where "the same 360-month sentence could be
reimposed" if the court granted the requested relief.
Id. at 705. We emphasized, however, that the alleged
error under the sentencing guidelines was neither
constitutional nor jurisdictional in nature, that "the
permissible scope of a § 2255 collateral attack on a
final conviction or sentence is severely limited"
outside the context of jurisdictional and constitutional
errors, id. at 704, and that the movant's
sentence was well within the statutory maximum term
authorized for his offense of conviction. Id. at
the movant in Sun Bear, Cravens has established that
his sentence was both in excess of the statutory maximum
and imposed in violation of the Constitution because
it was based on the ACCA's unconstitutionally vague
residual clause. Cravens's claim of constitutional error
is cognizable under § 2255, and he is entitled to relief
unless the error was harmless.
constitutional error is harmless in a post-conviction
proceeding if the error did not have "substantial and
injurious effect or influence" on the outcome of the
proceeding and caused no "actual prejudice" to the
defendant. Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (internal quotation marks omitted); see United
States v. Clay, 720 F.3d 1021, 1026 (8th Cir. 2013)
(applying Brecht in a § 2255 proceeding). When
the record is evenly balanced as to whether a constitutional
error had substantial and injurious effect or influence on
the outcome, the error is not harmless. O'Neal v.
McAninch, 513 U.S. 432, 435 (1995).
it is true that the district court could have elected to
impose a 216-month sentence in the original proceeding by
running the two sentences consecutively, we cannot say with
fair assurance that the court would have done so. Without the
ACCA enhancement, the advisory sentencing guidelines would
have recommended a sentencing range of 168 to 210 months'
imprisonment, so the court would have been required to depart
or vary upward to reach a term of 216 months. The district
court never said that it would have imposed the same sentence
without the enhancement, and it seemed to signal the contrary
in the post-conviction proceeding. In its order denying
relief under § 2255, the court said that "[w]ithout
the Illinois burglary conviction as a third ACCA predicate,
then, Cravens was improperly sentenced and merits
relief." Aside from the term of imprisonment,
moreover, it is clear that the ACCA enhancement affected the
length of the five-year term of supervised release. Without
§ 924(e), the maximum term on each count would have been
three years, see 18U.S.C. §§ 924(a)(2),
3559(a)(3), 3583(b)(2), and the two terms would have run
concurrently. Id. § 3624(e). On this record,
therefore, we are persuaded that the constitutional error had
a substantial effect or influence on the sentence
foregoing reasons, we reverse and remand with directions to
resentence Cravens without the enhancement under 18 U.S.C.
§ 924(e). We express no view, however, on what sentence
the district court should impose. We hold only that the
record before us fails to ...