PRECEDENTIAL
     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   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, 

(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




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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 har