No. 17-1029 _____________

UNITED STATES OF AMERICA

v.

RONALD PEPPERS Appellant

On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. No. 1-00-cr-00105-001) District Judge: Hon. Sylvia H. Rambo _______________

Argued October 12, 2017 Before: CHAGARES, JORDAN, and FUENTES, Circuit Judges.

(Filed: August 13, 2018) _______________ Heidi Freese Frederick W. Ulrich [ARGUED] Tammy L. Taylor Office of Federal Public Defender 100 Chestnut Street - #306 Harrisburg, PA 17101 Counsel for Appellant David J. Freed Carlo D. Marchioli [ARGUED] Kate L. Mershimer Office of United States Attorney 228 Walnut Street - #220 P.O. Box 11754 Harrisburg, PA 17108 Counsel for Appellee _______________

OPINION OF THE COURT _______________ JORDAN, Circuit Judge.

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm. That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions. Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135S. Ct.2551(2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague. He argued in District Court in a motion under 28

2 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause. But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson. Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand. First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on post- sentencing cases (i.e., the current state of the law) to support his Johnson claim. Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary

3 conviction. We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions. I. FACTS AND PROCEDURAL HISTORY

A. The Initial Trial and Subsequent Guilty Plea

This case h