United States Court of Appeals For the Seventh Circuit ____________________ No. 19-3008 CLAYTON LEE WAAGNER, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. ____________________

Appeal from the United States District Court for the Central District of Illinois. No. 2:16-cv-02156 — Sue E. Myerscough, Judge. ____________________

ARGUED MAY 20, 2020 — DECIDED AUGUST 20, 2020 ____________________

Before SYKES, Chief Judge, and RIPPLE and KANNE, Circuit Judges. RIPPLE, Circuit Judge. Clayton Waagner filed a second col- lateral attack on his sentence under 28 U.S.C. § 2255. He now claims that his classification as an armed career criminal un- der the Armed Career Criminal Act (“ACCA”) is improper in light of the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015). Specifically, he challenges the classifications of his Ohio aggravated burglary convictions 2 No. 19-3008 and Ohio attempted robbery conviction as violent felonies under the ACCA. The district court denied his motion. It concluded that, although his prior convictions for Ohio ag- gravated burglary no longer constitute predicate offenses for ACCA purposes under the invalidated residual clause, they still qualify as predicate offenses under the enumerated of- fenses clause of that statute. We now affirm the judgment of the district court. We agree with Mr. Waagner that the advent of Johnson permits him to bring a second motion under § 2255, because prior to Johnson, any such challenge would have been futile. None- theless, because Ohio aggravated burglary and Ohio at- tempted robbery are violent felonies as that term is defined in the ACCA, the sentencing court properly adjudicated Mr. Waagner as an armed career criminal. I BACKGROUND A. After a jury trial in 2000, the United States District Court for the Central District of Illinois convicted Mr. Waagner of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and of possessing a stolen vehicle that had crossed a state line, in violation of 18 U.S.C. § 2313(a). At sentencing, the district court adopted the finding of the presentence investigation report (“PSR”) that Mr. Waagner was an armed career criminal under the ACCA. The ACCA mandates increased sentences for defendants who have amassed qualifying prior convictions, termed “predicate of- fenses.” One such predicate offense is a “violent felony,” de- fined as: No. 19-3008 3

(B) any crime punishable by imprisonment for a term exceeding one year … 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) (emphasis added). The Supreme Court of the United States now has held that the last clause of this provision—italicized above and known in common parlance as the “residual clause”—is unconstitutionally vague. See Johnson, 576 U.S. 591. Consequently, under cur- rent law an offense is a violent felony within the meaning of § 924(e)(2)(B) only if it qualifies under the “elements” clause or the “enumerated offenses” clause. The PSR, submitted in preparation for Mr. Waagner’s sentencing, recited that he had at least three prior convic- tions that qualified as predicate offenses: two 1978 convic- tions for Ohio aggravated burgl