                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2325
                         ___________________________

                              Norman Dale Unverzagt,

                       lllllllllllllllllllllPetitioner - Appellant,

                                           v.

                             United States of America,

                       lllllllllllllllllllllRespondent - Appellee.
                                       ____________

                     Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                             Submitted: April 18, 2019
                              Filed: August 29, 2019
                                  ____________

Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
                        ____________

COLLOTON, Circuit Judge.

       Norman Unverzagt was sentenced to fifteen years’ imprisonment in 2005 as an
armed career criminal under 18 U.S.C. § 924(e). This appeal arises from an order of
the district court1 denying his second motion to correct his sentence under 28 U.S.C.

      1
       The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
§ 2255. Unverzagt argues that the retroactive decision in Johnson v. United States,
135 S. Ct. 2551 (2015), demonstrates that his sentence is unlawful. We conclude that
Johnson does not justify relief and therefore affirm the district court’s order.

       Unverzagt was convicted of unlawful possession of a firearm as a previously
convicted felon. See 18 U.S.C. § 922(g)(1). The statutory maximum penalty for that
offense ordinarily is ten years, id. § 924(a)(2), but under the Armed Career Criminal
Act (ACCA), Unverzagt was subject to a statutory minimum sentence of fifteen years’
imprisonment if he had previously sustained three convictions for a violent felony.
Id. § 924(e)(1). The district court applied the ACCA enhancement based on three
prior convictions in Missouri: two for second-degree burglary and one for first-
degree assault. On appeal, this court rejected Unverzagt’s contention that the
burglary convictions did not qualify as violent felonies and affirmed the judgment.
United States v. Unverzagt, 166 F. App’x 886, 887 (8th Cir. 2006). Unverzagt
unsuccessfully sought post-conviction relief in 2007 on other grounds.

       The definition of “violent felony” in 18 U.S.C. § 924(e)(2)(B) includes three
different clauses, typically described as the force clause, the enumerated offenses
clause, and the residual clause. Johnson ruled in 2015 that the residual clause is
unconstitutionally vague, and Welch v. United States, 136 S. Ct. 1257 (2016), held
that the new rule of Johnson applies retroactively to cases on collateral review. Id.
at 1265. In 2016, this court granted Unverzagt leave to file a successive motion to
correct his sentence under 28 U.S.C. § 2255. The district court concluded that
Unverzagt’s three prior convictions still constituted violent felonies under current law
and denied the motion on that basis.

      Unverzagt disputes the district court’s conclusion, but before considering
whether the prior convictions would qualify as violent felonies under current law, we
address whether Unverzagt is entitled to proceed with a second or successive motion
under § 2255. To determine that issue, we consider whether the motion “contain[s]

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. . . 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); see
Kamil Johnson v. United States, 720 F.3d 720, 720-21 (8th Cir. 2013) (per curiam).
A motion “contains” a new rule if it “relies on” the new rule, and a claim “relies on”
a new rule only when the rule is “sufficient to justify a grant of relief.” Donnell v.
United States, 826 F.3d 1014, 1016-17 (8th Cir. 2016).

       Johnson’s new rule declared the residual clause unconstitutional, so a
successive movant who invokes Johnson as the basis for relief must establish by a
preponderance of the evidence that the residual clause “led the sentencing court to
apply the ACCA enhancement.” Walker v. United States, 900 F.3d 1012, 1015 (8th
Cir. 2018). This inquiry requires the court to consider the law in effect at the time of
the original sentencing and, in some cases, to examine the district court’s rationale
for applying the ACCA enhancement.

       In Walker, this court said that “[w]hether the residual clause provided the basis
for an ACCA enhancement is a factual question for the district court,” and remanded
the case for the district court to determine in the first instance whether the prisoner’s
successive motion relied on Johnson’s new rule. Id. Unverzagt notes that before
Walker was decided, the government asserted that the issue presented in this case was
“identical” to the issue pending in Walker. It follows from the remand in Walker, he
contends, that this case, too, should be remanded for a determination by the district
court.

      There is a factual distinction between Unverzagt’s case and Walker that could
warrant differential treatment. In Walker, there was only a “sparse sentencing
record,” id., but this court thought it “might shed some light on the basis for Walker’s
original ACCA sentence.” Dembry v. United States, 914 F.3d 1185, 1187 (8th Cir.
2019). In this case, Unverzagt concedes that “the record is silent” on whether the
ACCA enhancement was based on the residual clause. If his concession refers to the

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sentencing record (as opposed to the post-conviction record), then there would be no
point in remanding for factual findings. Where the sentencing record is inconclusive,
this court may consider in the first instance “the relevant background legal
environment at the time of . . . sentencing to ascertain whether the movant was
sentenced under the residual clause.” Walker, 900 F.3d at 1015 (internal quotation
marks omitted); see Golinveaux v. United States, 915 F.3d 564, 568 (8th Cir. 2019);
Dembry, 914 F.3d at 1187.

      A more significant reason for eschewing a remand here is a legal one. If settled
law at the time of the movant’s sentencing or appeal required application of the
ACCA enhancement on grounds other than the residual clause, then the movant
cannot show that his sentence was based on the residual clause. In that situation, it
does not matter what the district court might have articulated at the sentencing
hearing, because the law—independent of the residual clause or the judge’s subjective
thoughts—compelled the court to apply the ACCA enhancement.

       That is the situation here. There is no dispute that Unverzagt’s prior conviction
for first-degree assault qualified as a violent felony under the force clause. In
resolving Unverzagt’s direct appeal, this court concluded that his two prior
convictions for second-degree burglary counted under the enumerated offenses clause
as “burglary.” The opinion explained that Unverzagt’s challenge to counting the
burglary convictions was “foreclosed by” the holding of Taylor v. United States, 495
U.S. 575, 599 (1990), on the meaning of “generic burglary.” Unverzagt, 166 F.
App’x at 887. This court’s ruling thus establishes as a matter of law that Unverzagt
was not sentenced based on the residual clause.

       For these reasons, Unverzagt has not satisfied the requirements for proceeding
with a successive motion under 28 U.S.C. § 2255(h)(2). The order of the district
court is affirmed.



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GRUENDER, Circuit Judge, concurring in the judgment.

       While I concur in the judgment, I would first conclude that the sentencing
record is silent before considering the background legal environment. See
Golinveaux v. United States, 915 F.3d 564, 568 (8th Cir. 2019) (explaining that the
relevant inquiry considers first the sentencing record and that the “second step is to
determine the relevant legal environment”). Here, I take Unverzagt’s statement that
“the record is silent” to mean that the sentencing record is silent. It seems clear that
he is not referring to the post-conviction record by making such a concession because
the sentencing record is what is relevant to our analysis.

       After concluding that the record is silent, I would then affirm the district court
because, as the court’s analysis shows, the background legal environment makes clear
that Unverzagt has not shown that it is “more likely than not” that he was sentenced
under the residual clause. See Walker v. United States, 900 F.3d 1012, 1014-15 (8th
Cir. 2018) (“Where the record or an evidentiary hearing is inconclusive, the district
court may consider ‘the relevant background legal environment at the time of . . .
sentencing’ to ascertain whether the movant was sentenced under the residual
clause.”).
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