United States of America v. David P. Geozos

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID P. GEOZOS,
Defendant-Appellant.
No. 17-35018
D.C. Nos.
3:15-cv-00227-RRB
3:06-cr-00082-RRB-1
OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Senior District Judge, Presiding
Argued and Submitted August 15, 2017
Anchorage, Alaska
Filed August 29, 2017
Before: Susan P. Graber, Richard R. Clifton,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Graber

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UNITED STATES V. GEOZOS 2
SUMMARY*
28 U.S.C. § 2255
The panel reversed the district court’s order denying
David P. Geozos’s 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence, imposed in 2007, at which time
the district court determined that Geozos was an armed career
criminal under the Armed Career Criminal Act of 1984
(ACCA) and applied the ACCA’s 15-year mandatory
minimum.
Before United States v. Johnson, 135 S. Ct. 2551 (2015)
(holding that an increased sentence under the ACCA’s
residual clause violates due process), and Welch v. United
States, 136 S. Ct. 1257 (2016) (holding that Johnson’s rule of
constitutional law applies retroactively to cases on collateral
review), Geozos brought an unsuccessful § 2255 motion. He
brought a second § 2255 motion, authorized by this court,
following the Supreme Court’s decision in Johnson.
The panel held that, when, as here, it is unclear whether
a sentencing court relied on the residual clause in finding that
a defendant qualified as an armed career criminal, but it may
have, the defendant’s § 2255 motion “relies on” the new
constitutional rule announced in Johnson, and is not subject
to the bar on second or successive § 2255 motions.
In determining whether the Johnson error is harmless –
i.e., whether there are three convictions that support an
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. GEOZOS 3
ACCA enhancement under one of the ACCA clauses that
survived Johnson – the panel looked to the substantive law
concerning the ACCA’s force clause as it currently stands,
not the law as it was at the time of sentencing. Applying the
categorical approach, the panel held that none of Geozos’s
three Florida convictions – robbery, armed robbery, use of a
firearm in the commission of a felony – is categorically a
“violent felony” under the ACCA’s force clause, so the
Johnson error at Geozos’s sentencing was not harmless.
The panel remanded with instructions to vacate Geozos’s
sentence, and to direct that Geozos, who has been in prison
longer than the statutory maximum for a non-ACCA
conviction, be released from custody immediately.
COUNSEL
Daniel F. Poulson (argued), Legal Writing and Research
Specialist; Richard Curtner, Federal Defender; Office of the
Federal Public Defender, Anchorage, Alaska; for Defendant-
Appellant.
William A. Taylor (argued), Assistant United States
Attorney; Bryan D. Schroder, Acting United States Attorney;
Office of the United States Attorney, Anchorage, Alaska; for
Plaintiff-Appellee.

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UNITED STATES V. GEOZOS 4
OPINION
GRABER, Circuit Judge:
Defendant David P. Geozos appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. When Defendant was sentenced in
2007, the district court determined that he was an armed
career criminal under the Armed Career Criminal Act of 1984
(“ACCA”), 18 U.S.C. 924(e), and sentenced him to 15 years
in prison—the mandatory minimum sentence under ACCA.
The court found that Defendant had five convictions that
qualified as “violent felonies” under ACCA, but the court did
not specify whether it found each of those convictions to
qualify under the “residual clause” of the statute, the “force
clause,” or both.1
1 ACCA defines a “violent felony” as follows:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such
term if committed by an adult, that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). The first part of this definition
(§ 924(e)(2)(B)(i)) is called the “force clause.” United States v.
Strickland, 860 F.3d 1224, 1226 (9th Cir. 2017). The second part

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UNITED STATES V. GEOZOS 5
In Johnson v. United States (Johnson II), 135 S. Ct. 2551,
2563 (2015), the Supreme Court held that “imposing an
increased sentence under the residual clause of [ACCA]
violates the Constitution’s guarantee of due process.” The
Court made that rule of constitutional law retroactively
applicable to cases on collateral review in Welch v. United
States, 136 S. Ct. 1257, 1268 (2016). Before Johnson II and
Welch were decided, Defendant unsuccessfully moved to
vacate, set aside, or correct his sentence under § 2255.
Defendant now brings a second § 2255 motion. He argues
that his new motion relies on the rule announced in Johnson
II and that, therefore, he may bring his motion under one of
the narrow exceptions to the bar on second or successive
§ 2255 motions. He also argues that any reliance by the
sentencing court on the now-invalidated residual clause of
ACCA is not harmless, because at least three of his
convictions do not qualify as “violent felonies” under any of
the remaining valid ACCA clauses. We agree with
Defendant on both points, and we therefore reverse.
FACTUAL AND PROCEDURAL HISTORY
In October 2006, Defendant was indicted on one count of
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1) and one count of felony possession of
cocaine. In January 2007, Defendant pleaded guilty to both
counts, and the Government agreed that it would dismiss the
drug charge at sentencing.
(§ 924(e)(2)(B)(ii)) has two clauses: the “enumerated felonies clause,”
which lists certain generic crimes that qualify as violent felonies; and the
“residual clause,” which provides that any felony that “involves conduct
that presents a serious potential risk of physical injury to another” is a
violent felony. Id.

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UNITED STATES V. GEOZOS 6
The Presentence Investigation Report (“PSR”), prepared
in advance of Defendant’s sentencing hearing, stated that
Defendant was “subject to an enhanced sentence” for the
firearms charge under ACCA because of his criminal history.
ACCA provides that “a person who violates [§] 922(g) . . .
and has three previous convictions by any court . . . for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another, . . . shall be fined
under this title and imprisoned not less than fifteen years.”
18 U.S.C. § 924(e)(1). The PSR did not specify which of
Defendant’s prior convictions qualified as “violent felonies”
or “serious drug offenses” for ACCA purposes. There were
six convictions listed in the PSR that could conceivably have
qualified: (1) a 2001 conviction for assault in the third degree
in Alaska, (2) a 1992 conviction for possession of cocaine in
Florida, (3) a 1992 conviction for burglary in Florida, (4) a
1981 conviction for armed robbery in Florida, (5) a 1981
conviction for robbery and for using a firearm in the
commission of a felony in Florida,2 and (6) another 1981
conviction for armed robbery in Florida.
The sentencing court found that Defendant qualified as an
armed career criminal, but it did not specify which of the
prior convictions served as the three predicate convictions.
It is clear from the record that the court did not rely on the
2 Technically, these were two separate convictions, but only one may
be counted for ACCA purposes because the convictions were for crimes
that were “part of one criminal episode.” United States v. McElyea,
158 F.3d 1016, 1021 (9th Cir. 1998). For simplicity’s sake, we will refer
to the two armed robbery convictions, the robbery conviction, and the
conviction for using a firearm in the commission of a felony as the
“Florida robbery convictions.”

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UNITED STATES V. GEOZOS 7
conviction for possession of cocaine,3 and it appears that the
court found that all five of the other convictions qualified as
convictions for “violent felonies.” But the court did not say
whether it found any or all of those convictions to qualify as
a conviction for a violent felony under the residual clause of
ACCA. On direct appeal, we affirmed Defendant’s sentence,
holding that the three Florida robbery convictions and the
Alaska assault conviction qualified as convictions for violent
felonies under ACCA and declining to decide whether the
Florida burglary conviction qualified. United States v.
Geozos, 286 F. App’x 517, 518 n.1 (9th Cir. 2008)
(unpublished).
In late 2009, Defendant filed a motion to vacate his
sentence under § 2255, claiming that his lawyers had
provided ineffective assistance at sentencing. United States
v. Geozos, No. 3:06-cr-082-RRB-JDR, 2010 WL 4942571, at
*1 (D. Alaska Nov. 24, 2010). The district court denied
Defendant’s motion in early 2011.
In the meantime, the Supreme Court decided Johnson v.
United States (Johnson I), 559 U.S. 133 (2010), a case
involving the interpretation of the “force clause” of ACCA.
In Johnson I, the Supreme Court held that “the phrase
‘physical force’” in the force clause “means violent
force—that is, force capable of causing physical pain or
injury to another person.” Id. at 140.
Five years later, the Supreme Court invalidated the
residual clause of ACCA in Johnson II, 135 S. Ct. at 2563.
Less than one year after that, in Welch, 136 S. Ct. at 1268, the
3 The Government concedes expressly that the conviction for
possession was not a conviction for a “serious drug offense.”

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UNITED STATES V. GEOZOS 8
Court held that the rule of Johnson II applies retroactively to
cases on collateral review.
Following the Court’s decision in Johnson II, Defendant
sought leave of this court to file a second § 2255 motion in
district court. After Welch was decided, we granted
Defendant leave, and he filed his motion. The district court
denied the motion. We granted a certificate of appealability,
and he now brings this timely appeal.
STANDARD OF REVIEW
We review de novo a district court’s decision to deny a
§ 2255 motion. United States v. Reves, 774 F.3d 562, 564
(9th Cir. 2014).
DISCUSSION
This case presents a question that has cropped up
somewhat frequently4 in the wake of Johnson II and Welch:
When a defendant was sentenced as an armed career criminal,
but the sentencing court did not specify under which clause(s)
it found the predicate “violent felony” convictions to qualify,
how can the defendant show that a new claim “relies on”
Johnson II, a decision that invalidated only the residual
clause? We address that question first. Because we hold that
Defendant’s claim “relies on” Johnson II, we then address the
4 The question has cropped up somewhat frequently because
“[n]othing in the law requires a [court] to specify which clause of [the
statute]—residual or elements clause—it relied upon in imposing a
sentence.” In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016). Thus, at
many pre-Johnson II sentencings, the court did not specify under which
clause it found the ACCA predicate offenses to qualify.

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UNITED STATES V. GEOZOS 9
merits of the claim and consider whether the Johnson II error
at Defendant’s sentencing was harmless.
A. What It Means for a Claim to “Rely On” Johnson II
The threshold question is whether Defendant’s claim
relies on the rule announced in Johnson II such that he may
bring that claim in a second or successive § 2255 motion. See
United States v. Buenrostro, 638 F.3d 720, 721 (9th Cir.
2011) (per curiam) (“[T]he Anti-Terrorism and Effective
Death Penalty Act of 1996 precludes [a movant] from filing
a ‘second or successive’ § 2255 motion unless he can show
either that he relies on a new rule of constitutional law,
§ 2255(h)(2), or ‘that no reasonable factfinder would have
found [him] guilty of the offense,’ § 2255(h)(1).” (alteration
in original)).5 We hold that his claim does rely on Johnson II.
The relevant exception to the bar on second or successive
§ 2255 motions requires a movant to show that the claim
5 Though we authorized Defendant to file a second or successive
motion, that authorization required only a prima facie demonstration that
Defendant’s claim “relies on” Johnson II, see 28 U.S.C. § 2244(b)(3)(C);
our authorization did not compel the district court to find that Defendant’s
claim actually relies on Johnson II, nor does it bind us now. See Bible v.
Schriro, 651 F.3d 1060, 1064 n.1 (9th Cir. 2011) (per curiam) (“A prima
facie showing is a sufficient showing of possible merit to warrant a fuller
exploration by the district court, and we will grant an application for [a
second or successive] petition if it appears reasonably likely that the
application satisfies the stringent requirements for the filing of a second
or successive petition.” (internal quotation marks omitted)); see also
United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000) (per
curiam) (“[A] district court must conduct a thorough review of all
allegations and evidence presented by the prisoner to determine whether
the motion meets the statutory requirements for the filing of a second or
successive motion.”).

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UNITED STATES V. GEOZOS 10
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. § 2255(h)(2) (emphasis
added). A claim necessarily “relies on” a rule of
constitutional law if the claim is that the movant was
sentenced in violation of that constitutional rule. So, to show
that 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,” it is sufficient for a
§ 2255 movant to show that (1) he or she was sentenced in
violation of the Constitution and that (2) the particular
constitutional rule that was violated is “new,” was
“previously unavailable,” and was “made retroactive to cases
on collateral review by the Supreme Court.” Here, there is no
doubt that the rule in Johnson II meets the latter
requirements; the only question is whether Defendant also
can show that he was sentenced in violation of the
Constitution.
To answer that question, we begin by noting that a court’s
determination that a defendant qualifies for an ACCA
enhancement is a finding. Shepard v. United States, 544 U.S.
13, 25 (2005). As with any finding that is necessary for a
conviction—or a sentencing enhancement—it is made (or not
made) based on the evidence introduced to the relevant
factfinder, and it is generally improper to supplement that
evidence on appeal. See Reina-Rodriguez v. United States,
655 F.3d 1182, 1193 (9th Cir. 2011) (“[I]t is not within our
province to sentence the defendant based on considerations
outside the sentencing decision. Appellate courts are not
sentencing courts.”); see also United States v. Petite,
703 F.3d 1290, 1292 n.2 (11th Cir. 2013) (“The government
cannot offer for the first time on appeal a new predicate
conviction in support of an enhanced ACCA sentence.”),

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UNITED STATES V. GEOZOS 11
abrogated on other grounds by Johnson II. And, as with any
other finding, a finding that a defendant qualifies for an
ACCA enhancement may be deemed to rest on a valid or an
invalid legal theory.
Had the sentencing court stated that the past convictions
at issue were convictions for “violent felonies” only under the
residual clause, it would have been, in effect, specifying the
legal theory on which its ACCA determination rested. We
would know that Defendant’s sentence was imposed under an
invalid—indeed, unconstitutional—legal theory, and that
Defendant was, therefore, sentenced in violation of the
Constitution. As the Government concedes, a defendant who
shows that a sentencing court relied solely on the residual
clause in imposing an ACCA enhancement has a claim that
“relies on” Johnson II.
Conversely, had the sentencing court specified that a past
conviction qualified as a “violent felony” only under the force
clause, we would know that the sentence rested on a
constitutionally valid legal theory. In that situation, the
statute would preclude the filing of a second or successive
petition. 28 U.S.C. § 2255(h)(2).
But when it is unclear from the record whether the
sentencing court relied on the residual clause, it necessarily
is unclear whether the court relied on a constitutionally valid
or a constitutionally invalid legal theory. Defendant argues
that this situation is analogous to that of a defendant who has
been convicted, in a general verdict, by a jury that was
instructed on two theories of liability, one of which turns out
to have been unconstitutional. The rule in such a situation is
clear: “[W]here a provision of the Constitution forbids
conviction on a particular ground, the constitutional guarantee

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UNITED STATES V. GEOZOS 12
is violated by a general verdict that may have rested on that
ground.” Griffin v. United States, 502 U.S. 46, 53 (1991)
(emphasis added). The case usually cited as the origin of that
rule is Stromberg v. California, 283 U.S. 359 (1931), and the
rule is sometimes referred to as the “Stromberg principle.”
United States v. Washington, 861 F.2d 350, 352 (2d Cir.
1988).
We are persuaded that a rule analogous to the Stromberg
principle should apply in the sentencing context. It is true
that the fact of a prior conviction need not be proved to a jury
beyond a reasonable doubt in order for a defendant to be
exposed to an enhanced sentence because of that conviction.
Apprendi v. New Jersey, 530 U.S. 466, 488–90 (2000). But
it does not follow that, when a judge makes a finding that a
defendant qualifies for an enhanced sentence, and that finding
may rest on an unconstitutional ground, the finding should be
treated any differently than a finding made by a jury for the
purpose of conviction. Indeed, treating those findings
differently because one involves sentencing and the other
involves conviction would be contrary to the principle that
any “fact increasing either end of [a sentencing] range
produces a new penalty and constitutes an ingredient of the
offense.” Alleyne v. United States, 133 S. Ct. 2151, 2160
(2013). We therefore hold that, when it is unclear whether a
sentencing court relied on the residual clause in finding that
a defendant qualified as an armed career criminal, but it may
have, the defendant’s § 2255 claim “relies on” the
constitutional rule announced in Johnson II.6
6 The Fourth Circuit recently came to a similar conclusion, holding
that, “when [a defendant’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 II, the [defendant] has

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UNITED STATES V. GEOZOS 13
We recognize that there are differences between a jury’s
finding and the type of finding that a court makes when it
rules that a defendant qualifies as an armed career criminal.
The latter finding rests largely on legal conclusions—state
offense X is categorically a “violent felony,” state offense Y
is not, etc. For that reason, it may be possible to determine
that a sentencing court did not rely on the residual
clause—even when the sentencing record alone is
unclear—by looking to the relevant background legal
environment at the time of sentencing. If, for instance,
binding circuit precedent at the time of sentencing was that
crime Z qualified as a violent felony under the force clause,
then a court’s failure to invoke the force clause expressly at
sentencing, when there were three predicate convictions for
crime Z, would not render unclear the ground on which the
court’s ACCA determination rested. “Even under the
traditional Stromberg analysis, a verdict need not be set aside
where it is possible to conclusively determine the jury relied
on a valid ground . . . .” United States v. Holly, 488 F.3d
1298, 1306 n.5 (10th Cir. 2007). By analogy, a claim does
not “rely on” Johnson II if it is possible to conclude, using
both the record before the sentencing court and the relevant
background legal environment at the time of sentencing, that
the sentencing court’s ACCA determination did not rest on
the residual clause.
Here, however, we cannot draw such a conclusion. At the
time Defendant was sentenced in 2007, neither this court nor
the Supreme Court had held that either Florida robbery or
armed robbery qualified as a “violent felony.” (We focus
only on the Florida robbery convictions because, if none of
shown that he ‘relies on’ a new rule of constitutional law.” United States
v. Winston, 850 F.3d 677, 682 (4th Cir. 2017).

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UNITED STATES V. GEOZOS 14
those convictions was a conviction for a “violent felony,”
then Defendant would not have at least three such convictions
and would not qualify for an ACCA enhancement.) We had
held (or suggested in dicta) that other states’ robbery statutes
described “violent felonies” both under the force clause,
United States v. Melton, 344 F.3d 1021, 1026 (9th Cir. 2003),
and under the residual clause, United States v. McDougherty,
920 F.2d 569, 574 n.5 (9th Cir. 1990). The Eleventh Circuit
had decided that Florida robbery qualified under the residual
clause, United States v. Wilkerson, 286 F.3d 1324, 1325 (11th
Cir. 2002) (per curiam), and that Florida armed robbery
qualified under the force clause, United States v. Dowd,
451 F.3d 1244, 1255 (11th Cir. 2006). Other courts had held
that various states’ robbery statutes described “violent
felonies” under one or both clauses. See, e.g., United States
v. Tirrell, 120 F.3d 670, 680–81 (7th Cir. 1997) (holding that
Michigan unarmed robbery qualified under both clauses).
Given that background legal environment and the sentencing
record, it is unclear whether the district court relied on the
residual clause in determining that the Florida robbery
convictions qualified as violent felonies. Accordingly,
Defendant’s claim “relies on” Johnson II.
B. Merits
The next question is whether the Johnson II error is
harmless—in other words, are there three convictions that
support an ACCA enhancement under one of the clauses of
ACCA that survived Johnson II? If so, then the Johnson II
error did not prejudice Defendant, and he is not entitled to
relief. United States v. Montalvo, 331 F.3d 1052, 1057–58
(9th Cir. 2003) (per curiam). We need only consider the
Florida robbery convictions because, as noted, if those
convictions do not count as predicate convictions under

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UNITED STATES V. GEOZOS 15
ACCA, then the sentencing court’s Johnson II error was not
harmless.
1. Use of Current Law in Assessing Harmlessness
To decide whether Defendant’s Florida robbery
convictions qualify him as an armed career criminal, we look
to the substantive law concerning the force clause as it
currently stands, not the law as it was at the time of
sentencing. Critically, this means that we must consider the
Supreme Court’s interpretation of the force clause in
Johnson I. We do so for two reasons.
First, in general, judicial interpretations of substantive
statutes receive retroactive effect. See, e.g., Harper v. Va.
Dep’t of Taxation, 509 U.S. 86, 97 (1993) (“When this Court
applies a rule of federal law to the parties before it, that rule
is the controlling interpretation of federal law and must be
given full retroactive effect in all cases still open on direct
review and as to all events, regardless of whether such events
predate or postdate our announcement of the rule.”); see also
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.”). Although the Supreme Court has sometimes
been careful to limit that principle to cases on direct review,
it has also applied the principle in collateral challenges. See,
e.g., Bousley v. United States, 523 U.S. 614, 618–21 (1998)
(applying a judicial construction of a statute that post-dated
the habeas petitioner’s conviction to determine whether the
petitioner had been “misinformed . . . as to the elements of
[the] offense” before pleading guilty); see also Schriro v.
Summerlin, 542 U.S. 348, 351–52 (2004) (noting that “[n]ew

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UNITED STATES V. GEOZOS 16
substantive rules generally apply retroactively,” even “to
convictions that are already final”).
Second, if this were Defendant’s first § 2255 motion,
there is no doubt that we would consider the current law to
assess harmlessness. In Reina-Rodriguez, we held that “a
non-constitutional, substantive [judicial] decision concerning
the reach of” ACCA that post-dated the time when the
movant’s conviction became final applied in an initial § 2255
proceeding. 655 F.3d at 1187–90. In reaching that
conclusion, we rejected the Government’s argument that the
relevant decision could not apply “retroactively.” “New
substantive rules generally apply retroactively,” including
“decisions that narrow the scope of a criminal statute by
interpreting its terms.” Id. at 1188–89 (quoting Summerlin,
542 U.S. at 351). The reason to apply substantive rules
retroactively to cases on collateral review is that “decisions
that narrow the scope of a criminal statute by interpreting its
terms” necessarily raise the risk that people who have been
convicted of violating that statute—or whose punishment has
been enhanced for violating that statute—“stand[] convicted
of an act that the law does not make criminal or face[] a
punishment that the law cannot impose upon [them].”
Summerlin, 542 U.S. at 352 (internal quotation marks
omitted).
That reason applies with equal force to a second or
successive petition or motion. The habeas petitioner filing a
second or successive petition or motion who claims to have
been convicted of a crime that was not a crime is at no less
risk of being erroneously imprisoned than a habeas petitioner
filing a first petition or motion. Accordingly, once the bar to
considering a second or successive petition or motion has
been overcome, the analysis of the merits is the same as if the

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UNITED STATES V. GEOZOS 17
petitioner were bringing a first petition or motion. Indeed,
the Tenth Circuit has noted that, “if a court hears a second-or-
successive § 2254 petition on its merits, the standards are no
different than hearing a first § 2254 petition on its merits.”
Case v. Hatch, 731 F.3d 1015, 1038 n.12 (10th Cir. 2013).
2. Categorical Approach
We must determine whether robbery, armed robbery, and
use of a firearm in the commission of a felony in violation of
Florida law qualify as “violent felonies” under the force
clause of ACCA. To do so, we employ the categorical
approach.7 E.g., United States v. Parnell, 818 F.3d 974, 978
(9th Cir. 2016). We ask whether each statute “has as an
element the use, attempted use, or threatened use of physical
force against the person of another,” 18 U.S.C.
§ 924(e)(2)(B)(i)—that is, whether the conduct proscribed by
the statute necessarily involves “the use, attempted use, or
threatened use of physical force against the person of
another.” In answering that question, “we look at both the
text of the state statute and the state courts’ interpretations of
the statute’s terms.” United States v. Strickland, 860 F.3d
1224, 1226 (9th Cir. 2017) (internal quotation marks
omitted). “State cases that examine the outer contours of the
conduct criminalized by the state statute are particularly
important because ‘we must presume that the conviction
rested upon nothing more than the least of the acts
7 The Government does not argue that any of Defendant’s Florida
robbery convictions might qualify as a violent felony under the modified
categorical approach. See Mathis v. United States, 136 S. Ct. 2243, 2249
(2016) (describing the modified categorical approach); Mays v. Clark,
807 F.3d 968, 980 (9th Cir. 2015) (stating that, “[o]n collateral review,
relief is appropriate if the prosecution cannot demonstrate harmlessness”
(internal quotation marks omitted)).

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UNITED STATES V. GEOZOS 18
criminalized.’” Id. at 1226–27 (brackets omitted) (quoting
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)).
“[I]n the context of a statutory definition of ‘violent
felony,’ the phrase ‘physical force’ means violent force—that
is, force capable of causing physical pain or injury to another
person.” Johnson I, 559 U.S. at 140. “Even by itself, the
word ‘violent’ in § 924(e)(2)(B) connotes a substantial degree
of force. When the adjective ‘violent’ is attached to the noun
‘felony,’ its connotation of strong physical force is even
clearer.” Id. (citations omitted).
In January 1981, Defendant was convicted of armed
robbery in violation of section 812.13(2)(a) of the Florida
Statutes. In June of that same year, he was convicted of
robbery in violation of section 812.13 of the Florida Statutes
and of using a firearm in the commission of a felony in
violation of section 790.07(2). And, in September 1981,
Defendant was again convicted of armed robbery in violation
of section 812.13(2)(a).
At the time of his convictions, section 812.13 defined
robbery as “the taking of money or other property which may
be the subject of larceny from the person or custody of
another, by force, violence, assault, or putting in fear.”
Brown v. State, 397 So. 2d 1153, 1154 (Fla. Dist. Ct. App.
1981) (emphasis omitted) (quoting Fla. Stat. § 812.13(1)
(1979)). To convict a person under section 812.13(2)(a) at
that time, the state was required to prove that, “in the course
of committing the robbery,” the person “carried a firearm or
other deadly weapon.” Fla. Stat. § 812.13(2)(a) (1981). And
to convict a person under section 790.07(2), the state was
required to prove that the person, “while committing or
attempting to commit any felony or while under indictment[,]

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UNITED STATES V. GEOZOS 19
display[ed], use[d], threaten[ed], or attempt[ed] to use any
firearm or carrie[d] a concealed firearm.” Id. § 790.07(2)
(1981).8
As an initial matter, the “armed” nature of each of
Defendant’s convictions does not make the conviction one for
a violent felony. A person could be convicted of violating
section 812.13(2)(a) for merely carrying a firearm or other
deadly weapon during the course of a robbery. Accordingly,
it would have been possible for someone to be convicted of
violating the statute for carrying a firearm during a robbery
even if that firearm was not displayed and the victim of the
8 We refer to the statutes as they existed at the times of conviction
because it is the “version of state law that the defendant was actually
convicted of violating” that is relevant to the categorical analysis. McNeill
v. United States, 563 U.S. 816, 821–22 (2011). The parties disagree as to
whether post-conviction judicial interpretations of state statutes should be
consulted when determining the content of state law at the time of
conviction. McNeill does not necessarily answer that question. See
United States v. Faust, No. 14-2292, 2017 WL 3045957, at * 2 (1st Cir.
July 19, 2017) (order) (Lynch, J., dissenting from denial of panel reh’g)
(“It is far from clear whether McNeill should govern the analysis in a case
. . . in which the text of the . . . statute remains unchanged and only
judicial interpretations of that statute have developed over time.”); see
also United States v. Seabrooks, 839 F.3d 1326, 1351 (11th Cir. 2016)
(Martin, J., concurring in the judgment) (arguing that post-conviction
judicial decisions clarifying or refining the scope of a statute should not
be considered when conducting the categorical analysis), cert. denied,
137 S. Ct. 2265 (2017). We need not resolve that uncertainty. Although
it is true that the Florida Supreme Court arguably narrowed the scope of
the conduct proscribed by the Florida robbery statute in Robinson v. State,
692 So. 2d 883 (Fla. 1997), see Seabrooks, 839 F.3d at 1343–44, the
statute as construed post-Robinson is still too broad to qualify as a “violent
felony” under the force clause. Accordingly, we look to Robinson and
decisions following Robinson in our analysis, because doing so does not
change the result.

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UNITED STATES V. GEOZOS 20
robbery was unaware of its presence. State v. Baker, 452 So.
2d 927, 929 (Fla. 1984). Similarly, Defendant could have
been convicted of violating section 790.07(2) for simply
carrying a concealed firearm while committing a robbery.
The mere presence of a firearm or other deadly weapon that
is never revealed to a robbery victim does not constitute the
“use, attempted use, or threatened use of physical force”
against the victim. See Parnell, 818 F.3d at 980–81 (“The
mere fact an individual is armed, however, does not mean he
or she has used the weapon, or threatened to use it, in any
way.”).
The crucial question, therefore, is whether robbery as
defined in section 812.13(1) “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” The text of the statute itself, together
with the relevant Florida caselaw, shows that the answer is
“no.”
Section 812.13(1) uses the terms “force” and “violence”
separately, which suggests that not all “force” that is covered
by the statute is “violent force.” But only violent force—that
is, “strong physical force,” Johnson I, 559 U.S. at 140
(emphasis added)—qualifies under the force clause of ACCA.
Before even turning to the caselaw, then, there is reason to
doubt whether a conviction for violating section 812.13
qualifies as a conviction for a “violent felony.”
The Florida caselaw makes it clear that one can violate
section 812.13 without using violent force. “[I]n order for the
snatching of property from another to amount to robbery, the
perpetrator must employ more than the force necessary to
remove the property from the person. Rather, there must be
resistance by the victim that is overcome by the physical

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UNITED STATES V. GEOZOS 21
force of the offender.” Robinson v. State, 692 So. 2d 883,
886 (Fla. 1997). Crucially, the amount of resistance can be
minimal. See Mims v. State, 342 So. 2d 116, 117 (Fla. Dist.
Ct. App. 1977) (per curiam) (“Although purse snatching is
not robbery if no more force or violence is used than
necessary to physically remove the property from a person
who does not resist, if the victim does resist in any degree
and this resistance is overcome by the physical force of the
perpetrator, the crime of robbery is complete.” (emphasis
added)).9 Under Florida law, then, a person who engages in
a non-violent tug-of-war with a victim over the victim’s purse
has committed robbery. See Benitez-Saldana v. State, 67 So.
3d 320, 323 (Fla. Dist. Ct. App. 2011) (“[A] conviction for
robbery may be based on a defendant’s act of engaging in a
tug-of-war over the victim’s purse.”). According to our
precedent, such an act does not involve the use of violent
force within the meaning of ACCA. See Strickland, 860 F.3d
at 1227 (citing an Oregon case in which “the victim and the
thief had a tug-of-war over [a] purse” as an example of a case
involving something less than violent force within the
meaning of Johnson I).
The Florida robbery statute is not as broad as the robbery
statute that we considered in Parnell, which proscribed the
taking of property from a victim when the victim did not
resist at all, provided that the victim was aware of the force.
See 818 F.3d at 979 (“The offense need not involve resistance
by the victim.”). But, like the statute at issue in Parnell, the
Florida robbery statute proscribes the taking of property even
when the force used to take that property is minimal. See id.
at 979–80 (“Because the degree of force is immaterial, any
force, however slight, will satisfy [the statute] so long as the
9 Mims was cited with approval in Robinson, 692 So. 2d at 886.

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UNITED STATES V. GEOZOS 22
victim is aware of it. Such force is insufficient under
Johnson[ I].” (citations and internal quotation marks
omitted)). In short, the Florida statute requires that the victim
resist the force and the statute at issue in Parnell required that
the victim be aware of the force, but neither statute requires
that the force used be violent force.
We hold that neither robbery, armed robbery, nor use of
a firearm in the commission of a felony under Florida law is
categorically a “violent felony.” We recognize that this
holding puts us at odds with the Eleventh Circuit, which has
held, post-Johnson I, that both Florida robbery and
(necessarily) armed robbery are “violent felonies” under the
force clause. See United States v. Lockley, 632 F.3d 1238,
1245 (11th Cir. 2011) (robbery); see also United States v.
Fritts, 841 F.3d 937, 942 (11th Cir. 2016) (“[W]e hold here
that under Lockley . . . a Florida armed robbery conviction
under § 812.13(a) [sic] categorically qualifies as a violent
felony under the ACCA’s elements clause.”), cert. denied,
137 S. Ct. 2264 (2017). But we are bound by our own
precedent—including Parnell and Strickland—which may
differ from the Eleventh Circuit’s interpretation. Moreover,
we think that the Eleventh Circuit, in focusing on the fact that
Florida robbery requires a use of force sufficient to overcome
the resistance of the victim, has overlooked the fact that, if
the resistance itself is minimal, then the force used to
overcome that resistance is not necessarily violent force. See
Montsdoca v. State, 93 So. 157, 159 (Fla. 1922) (“The degree
of force used is immaterial. All the force that is required to
make the offense a robbery is such force as is actually
sufficient to overcome the victim’s resistance.”).
In summary, none of the Florida robbery convictions
qualifies as a “violent felony” under the force clause, so the

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UNITED STATES V. GEOZOS 23
Johnson II error at Defendant’s sentencing was not harmless.
Accordingly, Defendant is entitled to relief.
We reverse the district court’s order denying Defendant’s
§ 2255 motion and remand with instructions to vacate
Defendant’s sentence. Because Defendant has already been
in prison longer than the statutory maximum sentence for a
non-ACCA-enhanced conviction under 18 U.S.C.
§ 922(g)(1), see id. § 924(a)(2), the district court shall direct
that Defendant be released from custody immediately. The
mandate shall issue forthwith.
REVERSED.

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