20-1502 Savoca v. United States 1 IN THE

2 United States Court of Appeals 3 For the Second Circuit 4

5 AUGUST TERM, 2020 6 7 SUBMITTED: APRIL 8, 2021 8 DECIDED: DECEMBER 29, 2021 9 10 No. 20-1502-PR 11

12 LAWRENCE SAVOCA, 13 Plaintiff - Appellant, 14 15 v. 16 17 UNITED STATES OF AMERICA, 18 Defendant - Appellee. 19 20 ________ 21 22 On Appeal from the United States District Court 23 for the Southern District of New York 24 25 26 ________ 27 28 Before: CALABRESI, RAGGI, AND MENASHI, Circuit Judges. 29 ________

30 Lawrence Savoca, who stands convicted of conspiratorial and attempted

31 Hobbs Act robbery, see

(a); discharging a firearm during a crime 20-1502-pr Savoca v. United States

1 of violence, see

§ 924(c); and being a felon in possession of a firearm, see id. §

2 922(g)(1), appeals from a judgment of the District Court for the Southern District

3 of New York (Vincent L. Briccetti, Judge), dismissing a second or successive

4 petition for a writ of habeas corpus, filed pursuant to

. He argues

5 that (1) his fifteen-year sentence as a career offender under the Armed Career

6 Criminal Act, see

(e), is invalid in light of the Supreme Court’s

7 decision in Johnson v. United States,

(2015); and (2) his consecutive

8 ten-year sentence is invalid because attempted Hobbs Act robbery is not a crime

9 of violence, see

(c).

10 Affirmed by opinion filed this date.

11

12 BARRY D. LEIWANT, Assistant Federal Public Defender (Edward Scott 13 Zas, Assistant Federal Public Defender, on the brief), Federal Defenders 14 of New York, Inc., New York, NY, for Plaintiff - Appellant.

15 CELIA V. COHEN, Assistant United States Attorney (Karl N. Metzner and 16 Won S. Shin, Assistant United States Attorneys, on the brief), for Audrey 17 Strauss, Acting United States Attorney for the Southern District of 18 New York, New York, NY, for Defendant - Appellee. 19

20

2 20-1502-pr Savoca v. United States

1 CALABRESI, Circuit Judge:

2 Lawrence Savoca, an inmate incarcerated for a 2004 conviction for

3 conspiratorial and attempted Hobbs Act robbery, see

(a);

4 discharging a firearm during a crime of violence, see

§ 924(c); and being a felon

5 in possession of a firearm, see id. § 922(g)(1), contends that his fifteen-year sentence

6 for the last crime was based on a provision of the Armed Career Criminal Act, see

7

(e), that the Supreme Court later found unconstitutional. See Johnson

8 v. United States,

(2015). He therefore claims he should be able to

9 challenge his punishment through a “successive motion” for habeas corpus. See 28

(h). The district court disagreed. After a careful review of Mr.

11 Savoca’s case, it concluded that the sentencing court had grounded the challenged

12 punishment on a different statutory provision, which remains constitutionally

13 sound. Mr. Savoca therefore can, at most, challenge statutory errors. This, the

14 district court found, barred Mr. Savoca’s successive habeas petition.

15 We cannot say the district court’s determination as to the grounds that the

16 original sentencing court relied on — essentially, a determination of historical fact

17 — was reversible error. As for Mr. Savoca’s other claim for relief, which questions

18 whether attempted Hobbs Act robbery is a crime of violence under

20-1502-pr Savoca v. United States

1 924(c), it is both barred procedurally and fails on the merits in light of our recent

2 decision in United States v. McCoy,

(2d Cir. 2021). We, therefore,

3 affirm the district court’s dismissal of Mr. Savoca’s petition.

4 BACKGROUND

5 In 2004, Lawrence Savoca was convicted after trial for various crimes based

6 on his role in the June 2001 armed robbery of a tavern owner. At issue on appeal

7 are Mr. Savoca’s habeas challenges to the sentences imposed for two counts of

8 conviction, specifically, the fifteen-year term imposed under the Armed Career

9 Criminal Act (ACCA) for being a felon in possession of a firearm,

922(g)(1), and the consecutive ten-year term for discharging a firearm while

11 committing a “crime of violence” (namely, attempted Hobbs Act robbery),

§

12 924(c)(1)(A)(iii). 1

13 In February of 2005, the trial court (Stephen C. Robinson, Judge) sentenced

14 Mr. Savoca. While Mr. Savoca’s counsel made several objections to the Presentence

15 Investigation Report (PSR), none are relevant to this appeal. The PSR listed Mr.

1Mr. Savoca does not challenge those parts of his sentence stemming from his other convictions — for conspiracy to commit Hobbs Act robbery and for attempted Hobbs Act robbery. See

, 1951(a).

4 20-1502-pr Savoca v. United States

1 Savoca’s prior convictions. Among these were three New York State burglary

2 convictions from 1991. In each case, according to descriptions drawn from police

3 reports and from state PSRs, Mr. Savoca entered a residence and stole jewelry or

4 cash. For each of these three convictions, he received concurrent sentences of eight

5 years to life. 2

6 After considering the PSR, the government’s sentencing briefs and oral

7 argument, and other materials, the trial court imposed a total thirty-year sentence.

8 This term included ten years for discharging a weapon during a crime of violence

9 (specifically, attempted Hobbs Act robbery). It also included fifteen years for being

10 a felon in possession of a firearm, a period set by the court’s determination that

11 Mr. Savoca fell within the so-called “career criminal” provision of the ACCA. See

12

(e)(1).

13 On direct appeal, this Court affirmed both Mr. Savoca’s conviction and

14 sentence. United States v. Savoca,

(2d Cir. 2005). He then filed his

15 first motion for habeas corpus relief pursuant to

(“Section 2255”),

16 which the district court dismissed. Savoca v. United States, Nos. 07-CV-2524 &

2Mr. Savoca served these sentences from August 1991 to June 2001, at which time he was released on parole.

5 20-1502-pr Savoca v. United States

1 10-CV-5750,

(S.D.N.Y. Aug. 8, 2013). Neither that initial appeal

2 nor Mr. Savoca’s first habeas petition raised the issues presented here.

3 In 2015, the Supreme Court held that part of the ACCA’s career-criminal

4 provision — its “residual clause” for defining “violent felonies” — was

5 unconstitutionally vague. Johnson,

. 3 At that point, Mr. Savoca filed

6 a second habeas petition pursuant to Section 2255, claiming his sentence had been

7 partly based on the “residual clause” that Johnson eliminated, and so must be

8 vacated and corrected. He also challenged his sentence for discharging a firearm

9 in a “crime of violence,” arguing the predicate crime of attempted Hobbs Act

10 robbery was not such an offense.

11 In July 2018, upon a timely request, we granted Mr. Savoca leave to file this

12 successive Section 2255 motion, finding he had made the statutorily required

13 “prima facie showing” that his claim implicated a law the Supreme Court had

14 found unconstitutional (the ACCA’s residual clause). Mot. Order at 1, Savoca v.

15 United States, No. 18-1328 (2d Cir. July 5, 2018), ECF No. 28 (quoting Blow v. United

16 States,

(2d Cir. 2016)). We then transferred Mr. Savoca’s petition

3The Supreme Court later accorded this rule retroactive force for purposes of collateral review. Welch v. United States,

(2016).

6 20-1502-pr Savoca v. United States

1 to the district court,

to consider, on the merits, if that petition indeed relied on

2 a new rule of constitutional law (such that Mr. Savoca could present a successive

3 Section 2255 motion).

4 Ultimately, the district court dismissed Mr. Savoca’s motion. Reviewing the

5 sentencing record, it found that the original sentencing court’s career-criminal

6 determination had been based not on the ACCA’s now-unconstitutional residual

7 clause, but on a different ACCA provision (one not at issue in Johnson). The district

8 court also rejected Mr. Savoca’s contention that attempted Hobbs Act robbery was

9 not a “crime of violence,” finding this argument both procedurally barred and

10 substantively incorrect. It did, however, grant Mr. Savoca a certificate of

11 appealability under

(c), by which he brings the instant appeal.

12 DISCUSSION

13 On appeal, Mr. Savoca argues that the district court erroneously rejected his

14 claim that attempted Hobbs Act robbery is not a “crime of violence” for purposes

15 of

(c). He also argues that the district court reversibly erred when it

16 found his sentence had not been grounded in the residual clause that Johnson held

17 was unconstitutional (and, by extension, that the court erred in holding that he

18 could not overcome the gatekeeping requirement of a successive habeas petition).

7 20-1502-pr Savoca v. United States

1 We review each claim in turn.

2 I. Discharge of a Weapon During a “Crime of Violence”

3 Ten years of Mr. Savoca’s sentence were imposed for a violation of 18 U.S.C.

4 § 924(c) — discharging a firearm during a “crime of violence.” The predicate

5 “crime of violence” was attempted Hobbs Act robbery. Mr. Savoca contends that

6 attempted Hobbs Act robbery is not, for purposes of Section 924(c), such a crime,

7 making this part of his sentence improper. The district court rejected this

8 argument, finding that Mr. Savoca’s claim does not satisfy the procedural

9 gatekeeping requirements of the Antiterrorism and Effective Death Penalty Act of

10 1996 (AEDPA), and that even if it did, it would fail on the merits.

11 After briefing was completed in this appeal, our Court issued United States

12 v. McCoy,

. There, we held that “Hobbs Act attempted robbery

13 qualifies as a crime of violence under § 924(c).” Id. at 57. Thus, not only does

14 AEDPA procedurally bar Mr. Savoca from raising this argument, but McCoy also

15 forecloses it on the merits. Accordingly, we affirm the district court’s decision to

16 deny habeas relief on this claim.

17

8 20-1502-pr Savoca v. United States

1 II. ACCA “Career Criminal” Status

2 Mr. Savoca also challenges the portion of his punishment stemming from

3 the original sentencing court’s finding that he fell within the ACCA’s “career

4 criminal” provision. He argues that the sentencing court relied on the ACCA’s

5 residual clause, a provision the Supreme Court later held was unconstitutional, in

6 making this determination. And this, he claims, permits him to challenge his

7 sentence collaterally through a second or successive habeas corpus petition. The

8 district court disagreed; it found that Mr. Savoca’s sentence was grounded in a

9 different ACCA provision, one the Court had not found unconstitutional. It

10 therefore dismissed his petition.

11 The district court’s conclusion was not reversible error. To show why, we

12 first outline the statutory framework of (1) second or successive habeas petitions

13 under AEDPA, and (2) the ACCA’s definitional provisions for career-criminal

14 status. We then explain why, in assessing a district court’s determinations of which

15 ACCA clause a particular sentencing court relied on when deeming a particular

16 defendant a career criminal, we generally employ the deferential “clear error”

17 standard of review. Finally, applying this standard, we conclude that the district

18 court did not reversibly err in dismissing Mr. Savoca’s petition.

9 20-1502-pr Savoca v. United States

1 A. Statutory Framework

2 1. AEDPA and Second or Successive Habeas Petitions

3 Under AEDPA, inmates who have already filed one habeas petition (as has

4 Mr. Savoca) face “stringent” limits in bringing a “second or successive application

5 for a writ of habeas corpus.” Adams v. United States,

(2d Cir. 1998).

6 One path through these limits, and the one Mr. Savoca asserts, is to “show[] that

7 [one’s] claim relies on a new rule of constitutional law, made retroactive to cases on

8 collateral review by the Supreme Court, that was previously unavailable.” 28

(b)(2)(A) (emphasis added); accord

§ 2255(h)(2).

10 To make this showing, inmates must clear two hurdles. First, and usually

11 on a transfer from a district court, an inmate must obtain an order from a court of

12 appeals authorizing the district court to consider the application. See id.

13 §§ 2244(b)(3), 2255(h). By statute, this review is limited; the court of appeals must

14 complete it within 30 days of the time the motion is filed, and in doing so asks only

15 if an applicant made a “prima facie showing that the application satisfies the

16 requirements” of Section 2244. Id. § 2244(b)(3)(C)–(D); see also Bell v. United States,

17

(2d Cir. 2002) (“A prima facie showing is not a particularly high

18 standard. An application need only show sufficient likelihood of satisfying the

10 20-1502-pr Savoca v. United States

1 strict standards of § 2255 to warrant a fuller exploration by the district court.”

2 (internal quotation marks and citation omitted)).

3 If the court of appeals grants this preliminary authorization, the petition

4 returns to the district court, which must then independently consider if the motion

5 in fact relies on a “new rule of constitutional law,”

(b)(3), or can

6 otherwise satisfy AEDPA’s strictures,

§ 2244(b)(4). Unlike the earlier, prima

7 facie assessment by the court of appeals, the district court must engage in a

8 searching inquiry, pursuant to which it “shall dismiss any claim presented in a

9 second or successive application . . . unless the applicant shows that the claim

10 satisfies [AEDPA’s] requirements.” Id. (emphases added).

11 2. ACCA Career Criminal Definitional Provisions

12 The other main statute at issue is the ACCA and its definitional provisions

13 for so-called career criminals, a class of offenders subject to harsher sentences. Both

14 at the time of Mr. Savoca’s sentencing and today, career criminals include, among

15 others, those convicted of at least three “violent felon[ies].”

(e)(1).

16 The ACCA sets out three discrete circumstances under which a conviction

17 constitutes a “violent felony.” These are known as (1) the “elements/force” clause;

18 (2) the “enumerated” clause; and (3) the “residual” clause. For purposes of ACCA

11 20-1502-pr Savoca v. United States

1 career-criminal status, a “violent felony” is defined as “any crime punishable by

2 imprisonment for a term exceeding one year” that:

3 (i) has as an element the use, attempted use, or threatened use of 4 physical force against the person of another [elements/force clause]; or 5 6 (ii) is burglary, arson, or extortion, involves use of explosives 7 [enumerated clause], or 8 9 otherwise involves conduct that presents a serious potential risk of 10 physical injury to another[.] [residual clause] 11 12

(e)(2)(B)(i)–(ii).

13 Notably, at the time Mr. Savoca was initially sentenced, the then-applicable

14 federal Sentencing Guidelines paralleled this tripartite structure. Specifically, the

15 Guidelines defined a “career offender,” for sentencing purposes, as one who had

16 committed at least three “crime[s] of violence.” U.S.S.G. § 4B1.1(a) (U.S. Sentencing

17 Comm’n Nov. 2004). 4 In turn, such a crime was defined as one that:

18 (1) has as an element the use, attempted use, or threatened use of 19 physical force against the person of another [elements/force clause], or 20

4With exceptions not relevant here, courts sentencing defendants must consider the Guidelines in effect on the date of sentencing.

(a)(4)(A)(ii); United States v. Jones,

, 15 n.3 (2d Cir. 2017). Thus, all references to the federal Sentencing Guidelines are to the November 1, 2004 version, in effect at the time of Mr. Savoca’s sentencing in February 2005.

12 20-1502-pr Savoca v. United States

1 (2) is burglary of a dwelling, arson, or extortion, involves use of 2 explosives [enumerated clause], or 3 4 otherwise involves conduct that presents a serious potential risk of 5 physical injury to another. [residual clause] 6 7

§ 4B1.2(a)(1)–(2).

8 In 2015, the Supreme Court held that the ACCA’s residual clause was

9 unconstitutionally vague in Johnson v. United States,

. The Court then

10 made this rule retroactive on collateral review, such that second or successive

11 Johnson-based habeas challenges could satisfy AEDPA. See Welch,

.

12 The ACCA’s other two violent felony clauses (elements/force and enumerated),

13 however, remain in effect. Johnson,

.

14 Mr. Savoca now argues that the original sentencing court found his

15 “felonies” to have been “violent” based on the ACCA’s residual clause, the clause

16 Johnson subsequently held unconstitutional. He therefore asserts that AEDPA

17 permits him to bring a successive habeas petition to challenge his sentence.

18 Conversely, the government argues, and the district court agreed, that Mr. Savoca

19 was, in fact, originally sentenced under the ACCA’s enumerated clause, which was

13 20-1502-pr Savoca v. United States

1 not held unconstitutional by Johnson, and hence that AEDPA bars his successive

2 petition. 5

3 It is to this dispute that we turn.

4 B. Standard of Review

5 The parties disagree as to the standard under which we should review the

6 district court’s finding that Mr. Savoca had, in fact, been sentenced under the

7 enumerated, as opposed to the residual, clause. Mr. Savoca suggests that we

8 should review the district court’s determinations de novo, including that court’s

9 assessment of sentence-record materials like the sentencing hearing transcript and

10 the PSR.

11 The government counters that we should treat the district court’s

12 assessment of the sentencing court’s reasoning as, essentially, a question of fact,

13 reviewed under the deferential standard of “clear error.” On this standard, we will

14 only reverse a district court’s findings if “on the entire evidence [we are] left with

15 the definite and firm conviction that a mistake has been committed.” Ark. Tchr.

5Neither party claims Mr. Savoca’s sentence relied on the ACCA’s elements/force clause.

14 20-1502-pr Savoca v. United States

1 Ret. Sys. v. Goldman Sachs Grp., Inc.,

(2d Cir. 2021) (internal

2 quotation marks omitted).

3 We agree with the government. It is well-established that while we

4 “review[] de novo the legal conclusions underlying a district court’s denial of a

5 motion for relief under

,” we “defer . . . to a district court’s findings

6 of fact unless they are clearly erroneous.” Massey v. United States,

,

7 251 n.7 (2d Cir. 2018) (internal quotation marks omitted, ellipses in original); see

8 also Rivera v. United States,

(2d Cir. 2013) (same); Ponnapula v.

9 Spitzer,

(2d Cir. 2002) (similar). And the question of whether a

10 particular sentencing record reflects a particular court’s reliance on a particular

11 ACCA clause is, at base, a question of historical fact. Cf. Walker v. United States, 900

(8th Cir. 2018) (“Whether the residual clause provided the basis for

13 an ACCA enhancement is a factual question for the district court.”); United States

14 v. Driscoll,

, 1132–33 (10th Cir. 2018) (when considering if sentencing

15 court relied on the ACCA’s residual clause, “factual determinations about the

16 sentencing record [are reviewed] for clear error and the legal conclusions about

17 the relevant background legal environment [are reviewed] de novo”).

15 20-1502-pr Savoca v. United States

1 The aptness of clear error review is reflected by the sorts of factors and

2 sources a district court needs to consider — factors the district court rightly

3 considered in this case — when determining which ACCA clause an original

4 sentencing court had, in fact, relied on. In conducting this inquiry, a district court

5 must look to a wide range of materials, including the parties’ oral and written

6 sentencing arguments, sentencing hearing transcripts, PSRs, and similar parts of

7 the sentencing record.

8 Of course, this precise list of materials need not be robotically reviewed by

9 the district court in every case (and, indeed, may not be present in all cases). But,

10 in any event, such review is manifestly a fact-specific undertaking and thus

11 constitutes an inquiry for which we are rightly deferential to the district court’s

12 findings.

13 Moreover, deferential, clear error review at this stage coheres with AEDPA’s

14 statutory structure. In AEDPA, Congress set up a division of labor for reviewing

15 successive habeas petitions. With respect to second or successive habeas petitions,

16 courts of appeals are tasked with making initial, prima facie assessments as to

17 whether a petition might overcome AEDPA’s stringencies. 28 U.S.C.

18 § 2244(b)(3)(C). But after this review, the law shifts responsibility to the district

16 20-1502-pr Savoca v. United States

1 courts, which are tasked with assessing, on the merits, each petition’s substantive

2 compliance with AEDPA. Id. § 2244(b)(4). This review necessarily entails a detailed

3 focus on the factual circumstances underlying the sentencing court’s decision.

4 Accordingly, if, as Mr. Savoca proposes, courts of appeals reviewed the district

5 courts’ factual determinations informing their merits determinations de novo,

6 then courts of appeals would act as both prima facie gatekeepers and full merits

7 adjudicators, and would do so at highly separate times. It seems unlikely that

8 Congress intended that result.

9 Mr. Savoca’s responses are unavailing. He argues that because the original

10 sentencing judge in his case was a different person than the habeas district court

11 judge, less deference is required. Some courts, admittedly, treat identity between

12 sentencing judge and habeas judge as a factor justifying deference. See, e.g., Dimott

13 v. United States,

(1st Cir. 2018) (according “due weight” to district

14 court’s determination of ACCA clause because “habeas judge was describing his

15 own decisions at sentencing”). But Mr. Savoca offers no authority from this Court,

16 and we could find none, to suggest such identity is a prerequisite for the

17 deferential clear error standard. To the contrary, our Court has endorsed clear

18 error review of district court fact-finding on a habeas petition even where the

17 20-1502-pr Savoca v. United States

1 underlying sentence was imposed not just by a different court, but by a wholly

2 different court system. Cf. Jenkins v. Greene,

(2d Cir. 2010) (in

3 habeas context, court of appeals reviews district court’s “factual finding[s]” as to

4 circumstances of original state court sentencing “for clear error”).

5 Mr. Savoca’s reference to Kaminski v. United States is likewise unpersuasive.

6

(2d Cir. 2003). There, we stated, in a single sentence, that “[w]e review

7 de novo a district court’s denial of a

petition.”

. But

8 Kaminski turned on the pure legal question of whether restitution orders imposed

9 “custody” for habeas purposes. See

. As such, it presented no reason to

10 consider the standard for reviewing district court factual findings and is

11 inapposite. By contrast, when presented with such factual findings, as our more

12 recent habeas cases show, we consistently review district court conclusions for

13 clear error. See, e.g., Massey,

n.7; Rivera,

.

14 Mr. Savoca further argues that de novo review is appropriate because the

15 instant dispute is predominantly legal, not factual. This is so, he claims, because

16 the outcome turns not on the specific words the sentencing record contains, as to

17 which there is no “factual dispute,” but on the “legal significance” of those words.

18 Appellant’s Br. 19–20. But the only Second Circuit case Mr. Savoca cites for this

18 20-1502-pr Savoca v. United States

1 proposition, United States v. Haak, involved a dramatically different situation: a

2 suppression motion where an arrestee’s non-custodial interview had been fully

3 videotaped, and where there were “no disputes of fact as to the actions taken,

4 words spoken, or demeanor displayed” — in other words, where the only dispute

5 concerned the “legal significance of certain words spoken.”

(2d

6 Cir. 2018). Here, by contrast, the parties essentially agree on the legal rules: if Mr.

7 Savoca were sentenced under the residual clause, he may collaterally challenge his

8 sentence; if he were sentenced under the enumerated clause, he may not. Instead,

9 the parties’ disagreement, unlike that in Haak, is a factual one: whether, as a matter

10 of historical fact, the sentencing court relied on the ACCA’s residual clause, or on

11 its enumerated clause. 6

12

6Mr. Savoca argues that the district court erred in failing to grant a hearing before deciding these facts. Hearings, to be sure, are often desirable in aid of such district court fact-finding. But our Court has never made them a requirement for clear error deference, and we decline to do so now. See, e.g., Scanio v. United States,

, 859–60 (2d Cir. 1994) (applying clear error standard, without imposing any district court hearing requirement, to review of a district court’s Section 2255 factual determinations); but see United States v. Copeland,

(10th Cir. 2019) (“[O]ur review of a district court’s denial of a § 2255 Johnson claim is de novo unless the court conducted an evidentiary hearing from which it made findings.”).

19 20-1502-pr Savoca v. United States

1 C. Application

2 Applying this deferential standard, we cannot say the district court clearly

3 erred in finding that the original sentencing court’s ACCA career-criminal

4 determination was grounded in the enumerated clause, as opposed to the

5 (now-unconstitutional) residual clause.

6 1. The Sentencing Record

7 Under the ACCA’s enumerated clause, one type of “violent felony” is

8 “burglary.”

(e)(2)(B)(ii). The district court found that the original

9 sentencing court had based Mr. Savoca’s ACCA punishment on this provision,

10 stating that the “only fair reading of the record as a whole is that the government”

11 — and the sentencing court — “w[ere] relying on the [ACCA’s] enumerated

12 offenses clause, not the residual or force clauses.” App’x at 229. We cannot say this

13 finding was clear error. 7

7As Mr. Savoca notes, there is currently a circuit split as to a petitioner’s burden of proof where the sentencing record is “unclear” as to which ACCA clause an original sentencing court relied on. Some circuits, like the Fourth and Ninth, have adopted a “may have relied” approach, under which, if the record shows a sentencing court “may have” relied on the residual clause, inmates can bring a successive habeas petition on Johnson grounds. See, e.g., United States v. Winston,

(4th Cir. 2017), abrogated on other grounds by Stokeling v. United States,

(2019); United States

20 20-1502-pr Savoca v. United States

1 As the district court observed, the government, in its written and oral

2 original-sentencing arguments, consistently focused on the “burglary” nature of

3 Mr. Savoca’s crimes. At the sentencing hearing, for instance, prosecutors stated, in

4 discussing the application of the Guidelines, that “if you’ve been convicted of three

5 prior violent felonies — and a residential burglary is one — in the past and then

6 you’re convicted of [Section] 922(g), you are an armed career criminal.” App’x at

7 87 (emphasis added). Likewise, in its sentencing memorandum, the government

8 specifically emphasized that Mr. Savoca had committed, and been convicted of,

9 “three residential burglaries,” further underscoring this point. App’x at 130

10 (emphasis in original).

11 The government’s repeated mentions of “burglary” were, of course,

12 references to the ACCA’s enumerated clause. But they also strongly evoked the

13 parallel enumerated clause of the federal Sentencing Guidelines. Specifically, the

v. Geozos,

(9th Cir. 2017), overruled on other grounds by Stokeling,

. Others adopt a more stringent standard, requiring petitioners to show that it is “more likely than not” that a sentencing court relied on the ACCA’s residual clause before granting relief. See, e.g., United States v. Clay,

, 558–59 (5th Cir. 2019), as revised (Apr. 25, 2019); Dimott,

. But, because the district court did not find the record in the instant case to be unclear, and because that determination was not clearly erroneous, we have no reason to weigh in on this dispute.

21 20-1502-pr Savoca v. United States

1 Guidelines’ enumerated clause for “career offender” status included, at the time

2 of Mr. Savoca’s sentencing, “burglary of a dwelling.” U.S.S.G. § 4B1.2(a)(2)

3 (emphasis added). That the government’s sentencing arguments focused so

4 squarely on the residential nature of Mr. Savoca’s burglary offenses therefore

5 indicates that it sought (and that the sentencing court subsequently applied) an

6 enhancement flowing from the enumerated clause of the relevant Guideline, a

7 provision mirroring the ACCA’s own enumerated clause.

8 By contrast, in its review of the original sentencing record, the habeas

9 district court did not (nor could we) find any reference at all to the ACCA’s

10 residual clause. Nor did the district court (nor could we) find any suggestion that

11 the sentencing court engaged in the sort of analysis that would have been expected

12 if the residual clause were being applied. This might, for example, have entailed

13 assessing the degree to which Mr. Savoca’s conduct “present[ed] a serious

14 potential risk of physical injury.”

(e)(2)(B)(ii).

15 Against this, Mr. Savoca points us to a footnote in the government’s

16 sentencing memorandum, which stated:

17 Because of its potential for violence, because it robs the victim of a sense 18 of security in the place where he or she should be most secure, and 19 because it violates the most personal space of a victim, the crime of

22 20-1502-pr Savoca v. United States

1 residential burglary is categorized as a violent felony at both state and 2 federal law. 3 4 App’x at 130 n.6 (emphasis added).

5 This reference to “potential for violence,” Mr. Savoca suggests, invokes the

6 residual clause’s mention of “serious potential risk.” Appellant’s Br. 40–41. But as

7 the district court found, “construed in context, the footnote’s reference to

8 burglary’s ‘potential for violence’ is a reference to just one of several factors that

9 make burglary such a serious offense.” App’x at 229. Indeed, if anything, the

10 footnote supports the government’s position on Mr. Savoca’s habeas petition, for it

11 closely tracks language that the ACCA’s sponsors used to justify adding

12 “burglary” to the enumerated clause. See Taylor v. United States,

, 581

13 (1990) (recounting Senate sponsor’s statement that “burglary” was added to

14 enumerated clause “because [burglary] involves invasion of victim’s homes or

15 workplaces, violation of their privacy, and loss of their most personal and valued

16 possessions” (internal quotation marks and alteration omitted)).

17 To be sure, as Mr. Savoca notes, neither the original sentencing court nor the

18 government at sentencing explicitly discussed the enumerated clause. But the

19 district court was aware of this fact, took it into consideration, and found it did not

23 20-1502-pr Savoca v. United States

1 outweigh the other factors that it considered. In such a fact-specific balancing

2 situation, we again discern no clear error.

3 2. Background Legal Conditions

4 Apart from the sentencing record, Mr. Savoca argues that background legal

5 conditions at the time of sentencing in February 2005 would have made it legal

6 error to apply the enumerated clause to his case, while making it relatively simple

7 to apply the residual clause. This, he says, means the original sentencing court

8 most likely relied on the latter.

9 Background legal conditions are, in addition to the sentencing record

10 discussed above, a factor that district courts may appropriately consider when

11 determining the ACCA grounds on which an original sentencing court relied. See,

12 e.g., Geozos,

. But the role of such conditions is limited, for, as we

13 have outlined, the district court’s principal inquiry is discerning on which ACCA

14 clause, as a matter of historical fact, a particular sentencing court relied. To

15 illustrate, if review of a sentencing record clearly showed that a sentencing court

16 sought to impose punishment under the enumerated clause (e.g., by a statement

17 to that effect), then the fact that application of that clause would have been legally

18 erroneous (say, by misreading the statutory definition of “burglary” or “arson”)

24 20-1502-pr Savoca v. United States

1 would not, without more, allow for Section 2255 review, as the underlying error

2 would have been of statutory, not constitutional, dimension. See, e.g., Massey, 895

3 F.3d at 252 (Section 2255 review unavailable for successive habeas petition

4 claiming sentencing court committed statutory error in application of ACCA’s

5 elements/force clause).

6 Where, however, the sentencing record is unclear as to the clause on which

7 an original sentencing court had, in fact, relied, habeas district courts should

8 consider the likelihood that applying a given clause would have been legal error

9 at the time of sentencing, and should not assume sentencing courts would have

10 chosen a legally erroneous clause over a legally permissible one. Cf. United States

11 v. Snyder,

, 1128–30 (10th Cir. 2017). This conclusion follows from the

12 familiar principle that, absent countervailing evidence, reviewing courts should

13 assume that sentencing courts “knew and applied the law correctly.” United States

14 v. Broxmeyer,

(2d Cir. 2012) (citation omitted).

15 But that is not this case. Here, the district court found, based on the

16 sentencing record, that the original sentencing court, as a matter of historical fact,

17 clearly relied on the enumerated clause in determining Mr. Savoca’s ACCA career

25 20-1502-pr Savoca v. United States

1 criminal status, obviating the need to resort to background legal conditions to

2 resolve an ambiguity. 8

3

8 Incidentally, even if we were to look to contemporaneous background legal conditions, Mr. Savoca has failed to show that, in his case, such conditions would have barred, or even hampered, the original sentencing court’s use of the enumerated clause. Instead, as the district court found, nothing in the legal background in February 2005 precluded, or even greatly complicated, the classification of Mr. Savoca’s 1991 felony burglaries as “violent felonies” under ACCA’s enumerated clause. In particular, the three 1991 felony burglary convictions at issue in the instant case were obtained by guilty pleas. While the Supreme Court in Taylor v. United States,

, addressed the ACCA treatment of “nongeneric-burglary” convictions obtained at trial, it left open the issue of how such convictions should be analyzed following a guilty plea, as well as whether such convictions could fit within the enumerated clause. Thus, as of the date of Mr. Savoca’s sentencing, February 2005, the original sentencing court would not have committed legal error by using the information in Mr. Savoca’s PSR — itself composed of unobjected-to facts relayed from police reports and earlier, state PSRs — to determine that each such burglary had in fact been a “violent felony” for purposes of the ACCA’s enumerated clause. Indeed, it was only after Mr. Savoca’s sentencing that the contours of this issue came to be defined. See Shepard v. United States,

(2005) (March 2005 decision, issued one month after Mr. Savoca’s sentencing, setting out limits on materials that courts could consider when assessing if convictions obtained by guilty pleas were violent felonies for ACCA purposes); United States v. Rosa,

, 151–52 (2d Cir. 2007) (“Shepard addressed a question [previously] left open by Taylor: What may a district court consider to determine whether the offense of conviction following a guilty plea, rather than trial, qualifies as [an ACCA] ‘violent felony’?” (emphasis added));

(recognizing then-open question as to whether, if a defendant failed to object to a PSR’s findings (as happened here), “a sentencing court may look to [that] PSR . . . to determine [if] the underlying facts of a previous conviction” constituted an ACCA “violent felony”).

26 20-1502-pr Savoca v. United States

1 CONCLUSION

2 We cannot say, given the circumstances of this case, that the district court

3 clearly erred in determining that the original sentencing court had based Mr.

4 Savoca’s punishment on the ACCA’s enumerated clause, rather than the residual

5 clause that Johnson held was unconstitutional. Therefore, AEDPA bars Mr. Savoca

6 from filing a second, successive habeas petition.

(b)(2), 2255(h).

7 Accordingly, the district court’s dismissal of Mr. Savoca’s petition under 28 U.S.C.

8 § 2255 is AFFIRMED.

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