Submitted: October 19, 2018
from United States District Court for the Southern District
of Iowa - Des Moines
WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
WOLLMAN, CIRCUIT JUDGE.
district court denied William Anthony Lofton's 28 U.S.C.
§ 2255 petition, which alleges that he no longer
qualifies as an armed career criminal. In light of
Johnson v. United States, 135 S.Ct. 2551 (2015), we
reverse and hold that Lofton no longer has three prior felony
convictions that qualify as predicate offenses under the
Armed Career Criminal Act (ACCA).
convicted Lofton of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) in July 2007. The
presentence report recommended an enhancement under the ACCA,
which mandates a 15-year minimum sentence for defendants with
three prior violent felony or serious drug offense
convictions. See 18 U.S.C. § 924(e)(1). The
report listed five such convictions: unlawful delivery of
cannabis, theft, two aggravated battery convictions, and
aggravated criminal sexual abuse. The sentencing court
applied the ACCA enhancement and sentenced Lofton to 327
months' imprisonment and 3 years of supervised release.
Lofton filed a direct appeal challenging only his conviction,
and we affirmed. United States v. Lofton, 557 F.3d
594 (8th Cir. 2009).
Supreme Court in Johnson invalidated the ACCA's
residual clause and made its rule retroactive on collateral
review in Welch v. United Sates, 136 S.Ct. 1257,
1264-65 (2016). Shortly thereafter, Lofton filed this 28
U.S.C. § 2255 petition, claiming that four of his
convictions were no longer violent felony convictions under
the ACCA and that he was entitled to resentencing. His
petition did not address his drug conviction.
district court denied Lofton's petition, determining that
his two aggravated battery convictions remained predicate
offenses because they required the use of physical force
pursuant to the ACCA's force clause. The court also
determined that Lofton's drug conviction constituted an
ACCA predicate offense. Having determined that the aggravated
battery and drug convictions were qualifying felonies, the
district court did not address whether Lofton's criminal
sexual abuse conviction met the ACCA requirements.
Lofton's appeal was pending, we adopted a new standard,
which requires successive § 2255 claimants to "show
by a preponderance of the evidence that the residual clause
led the sentencing court to apply the ACCA enhancement."
Walker v. United States, 900 F.3d 1012,
1015 (8th Cir. 2018). We thereafter applied this standard at
the merits stage of an initial § 2255 petition. See
Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir.
2019); see also Garcia-Hernandez v. United States,
915 F.3d 558, 560 (8th Cir. 2019)
("Walker's principles govern here, at the
merits stage of an initial 2255 motion."). Whether a
claimant meets this burden is usually a factual question for
the district court, which reviews the record to determine
whether the sentencing court specified which ACCA clause it
used. Walker, 900 F.3d at 1015. If the district
court determines that the record is inconclusive, or if the
parties concede that the record does not show that he was
sentenced on the basis of the residual clause, we may
consider the relevant background legal environment in the
first instance to determine if the sentencing court likely
relied upon the residual clause. Golinveaux, 915
F.3d at 568. If the sentencing court likely relied upon the
residual clause, but the conviction qualifies as a violent
felony under current law, resentencing is not required
because any error by the sentencing court would be harmless.
Id. at 570; see also Dembry v. United
States, 914 F.3d 1185, 1187-88 (8th Cir. 2019). We
review de novo whether a defendant's prior
conviction qualifies as a violent felony under the ACCA.
Fletcher v. United States, 858 F.3d 501, 504 (8th
undisputed that Lofton's theft offense does not qualify
as a violent felony after Johnson. Lofton argues
that his aggravated battery convictions and his criminal
sexual abuse conviction likewise do not qualify. Because the
convictions do not fall under the ACCA's enumerated
offenses clause, see 18 U.S.C. §
924(e)(2)(B)(ii), they must qualify under the ACCA's
force clause by having "as an element the use, attempted
use, or threatened use of physical force against the person
of another." Id. § 924(e)(2)(B)(i).
Physical force is "violent force-that is, force
capable of causing physical pain or injury to another
person." Curtis Johnson v. United States, 559
U.S. 133, 140 (2010).
first consider whether criminal sexual abuse constitutes a
violent felony. Because the parties concede that the record
is inconclusive about whether Lofton was sentenced on the
basis of the residual clause, we review the controlling law
at the time of sentencing. Dembry, 914 F.3d at 1187.
The relevant background legal environment may establish that
the sentencing court necessarily relied on the residual
clause, but "[i]f it is just as likely that [it] relied
on the [force] . . . clause, solely or as an alternative
basis for the enhancement, then the movant has failed to show
that his enhancement was due to use of the residual
clause." Walker, 900 F.3d at 1015 (first
alteration in original) (quoting Beeman v. United
States, 871 F.3d 1215, 1222 (11th Cir. 2017)). Nor is it
enough for Lofton to show that "the residual clause
offered the path of least analytical resistance."
Id. (quoting United States v. Washington,
890 F.3d 891, 899 (10th Cir. 2018)).
Lofton was sentenced in 2008, the relevant background legal
environment shows that the court more likely than not used
the residual clause to classify his criminal sexual abuse
conviction as a violent felony. The now-invalidated residual
clause defined a violent felony as one that "otherwise
involves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. §
924(e)(2)(B)(ii). Lofton pleaded guilty to aggravated
criminal sexual abuse, wherein an adult over the age of 17
"commits an act of sexual conduct with a victim who was
under 13 years of age." 720 Ill. Comp. Stat.
5/12-16(c)(1)(i) (1998) (current version at 720 Ill. Comp.
Stat. 5/11-1.60(c)(1)(i) (2011)). Sexual conduct is "any
intentional or knowing touching or fondling by the victim or
the accused, either directly or through clothing, of . . .
any part of the body of a child under 13 years of age . . .
for the purpose of sexual gratification or arousal of the
victim or the accused." Id. 5/12-12(e) (2000)
(repealed 2011). Our pre-2008 case law identified statutes
proscribing sexual contact with children as ACCA predicates
under the residual clause. See, e.g., United
States v. Anderson, 438 F.3d 823, 825 (8th Cir. 2006)
(Minnesota statute prohibiting sexual contact with a child
under the age of 13); United States v. Mincks, 409
F.3d 898, 900 (8th Cir. 2005) (Missouri statutory sexual
offenses); see also United States v. Dawn, 685 F.3d
790, 796-97 (8th Cir. 2012) (gathering cases). In light of
the background legal environment at the time of sentencing,
Lofton has shown "by a preponderance of the evidence
that the residual clause led the sentencing court to apply
the ACCA enhancement." Walker, 900 F.3d at
classification is not harmless error because a conviction
thereunder does not constitute a violent felony under current
law. See Golinveaux, 915 F.3d at 570 (upholding
sentence for harmless error because conviction qualified as
ACCA predicate under current law). Because a defendant can
violate this statute by having a child touch him for sexual
gratification, an act that does not necessarily require
"the use, attempted use, or threatened use of physical
force against the person of another," the statute on its
face cannot qualify as an ACCA predicate. 18 U.S.C. §
924(e)(2)(B)(i); see United States v. Madrid, 805
F.3d 1204, 1208 (10th Cir. 2015) ("The crime has three
components: a mens rea element, a physical act ...