Cooper v. USA

Filing 97

MEMORANDUM DECISION AND ORDER denying 1 , 46 -1, 46 -2 Petitioner's Motions to Vacate, Set Aside, or Correct a Sentence Under 28 U.S.C. § 2255. Signed by Judge Jill N. Parrish on 3/29/23. (dle)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TODD HAROLD COOPER,
Plaintiff,
v.
UNITED STATES OF AMERICA,

MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTIONS TO VACATE, SET ASIDE,
OR CORRECT A SENTENCE UNDER
28 U.S.C. § 2255

Defendant.
Case No. 1:16-cv-00088-JNP
District Judge Jill N. Parrish

Before the court are Petitioner Todd Harold Cooper’s (“Cooper”) Motion to Correct
Sentence under 28 U.S.C. § 2255 [ECF No. 1], Supplemental Motion to Vacate and Set Aside a
Sentence under 28 U.S.C. § 2255(h)(1) [ECF No. 46-1], and Supplemental Motion to Vacate and
Set Aside a Sentence Under 28 U.S.C. § 2255(h)(2) [ECF No. 46-2]. 1 In essence, Cooper argues
that his mandatory life sentence under the federal three-strikes law violates the Constitution. For
the reasons set forth below, the court DENIES Cooper’s § 2255 motions.

1

Cooper has filed several iterations of his motions in this case. Per the court’s order at ECF No. 48,
the court treats ECF Nos. 1, 46-1, and 46-2 as the operative motions. ECF No. 1 is the initial
motion filed by Cooper’s then-counsel. ECF Nos. 46-1 and 46-2 are the 2255(h)(1) and 2255(h)(2)
motions, respectively, composed by Cooper. Cooper also submitted several iterations of his reply
brief. The court treats ECF No. 81 as the operative iteration.

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BACKGROUND
I.

FEDERAL THREE-STRIKES LAW
Cooper grounds his motions in his assertion that the sentencing judge erroneously

sentenced him to a mandatory life sentence under the federal three-strikes law. The federal threestrikes law, codified at 18 U.S.C. § 3559(c), “is a recidivist statute” that “enhances the sentence of
a defendant who is convicted of a serious violent felony when the defendant previously was
convicted of at least two other serious violent felonies.” United States v. Kaluna, 192 F.3d 1188,
1195 (9th Cir. 1999). Specifically, the enhanced penalty provision provides:
(1) Mandatory life imprisonment.—Notwithstanding any other provision of law, a
person who is convicted in a court of the United States of a serious violent felony
shall be sentenced to life imprisonment if—
(A) the person has been convicted (and those convictions have become
final) on separate prior occasions in a court of the United States or of a
State of—
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious
drug offenses; and
(B) each serious violent felony and serious drug offense used as a basis for
sentencing under this subsection, other than the first, was committed after
the defendant’s conviction of the preceding serious violent felony or
serious drug offense.
18 U.S.C. § 3559(c).
The law sets forth three categories of offenses that count as a “serious violent felony,” and
thus, a strike. First, the “enumerated clause” lists a series of enumerated offenses that qualify as
serious violent felonies. See 18 U.S.C. § 3559(c)(2)(F)(i). The list of enumerated serious violent
felonies includes any “Federal or State offense, by whatever designation and wherever committed,
consisting of . . . robbery (as described in section 2111, 2113, or 2118).” See id. Sections 2111,
2113, and 2118 each describe robbery as the taking or attempting to take something of value from
the person or presence of another, by force and violence or by intimidation. 18 U.S.C. §§ 2111

2

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(robbery within federal territorial jurisdiction), 2113 (bank robbery), 2118 (robbery involving
controlled substances). Second, the “elements clause” designates as a serious violent felony “any
other offense punishable by a maximum term of imprisonment of 10 years or more that has as an
element the use, attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 3559(c)(2)(F)(ii). Third, the “residual clause” identifies as a serious violent felony
“any offense punishable by a maximum term of imprisonment of 10 years or more . . . that, by its
nature, involves a substantial risk that physical force against the person of another may be used in
the course of committing the offense.” Id. Accordingly, a sentencing judge could find that a
particular offense qualifies as a serious violent felony under the enumerated clause, the elements
clause, or the residual clause.
However, the Supreme Court’s decisions in Johnson v. United States, 576 U.S. 591 (2015),
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019)
called the constitutionally of the residual clause into question. In each of those cases, the Supreme
Court held statutory language that is similar to the language in § 3559’s residual clause void for
vagueness. See Johnson, 576 U.S. at 597-602 (holding the residual clause of the Armed Career
Criminal Act unconstitutionally vague); Dimaya, 138 S. Ct. at 1223 (holding the residual clause
of the definition of “crime of violence” in 18 U.S.C. § 16(b) unconstitutionally vague); Davis, 138
S. Ct. at 2336 (holding the residual clause at 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague).
Given the substantial similarities between the residual clauses already held unconstitutional by the
Supreme Court and the § 3559 residual clause, courts across the country have found § 3559’s
residual clause unconstitutionally vague. See United States v. Bell, No. 22-5111, 2023 WL
2583384, at *4 (10th Cir. Mar. 21, 2023) (“We can rely, though, on Johnson and Davis to support
a conclusion on direct appeal that the residual clause of similarly worded statutes are

3

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unconstitutionally vague . . . .”); Langford v. United States, No. 4:16-cv-00132-RGE, 2019 WL
12025155, at *3 (S.D. Iowa Sept. 30, 2019) (comparing the residual clause language in Johnson,
Dimaya, and Davis to the § 3559 residual clause and holding that “this Court finds the nearly
identical language contained in § 3559 is also unconstitutionally vague”); United States v.
Minjarez, 374 F. Supp. 3d 977, 992-93 (E.D. Cal. 2019) (holding the § 3559 residual clause
unconstitutional because it “possesses the exact same two features that rendered the residual
clauses in [Johnson and Dimaya] void for vagueness” (citation omitted)); United States v.
Goodridge, 392 F. Supp. 3d 159, 173 (D. Mass. 2019) (holding the § 3559 residual clause
“unconstitutionally vague in accordance with Johnson and Dimaya”). Indeed, the government
concedes that “the portion of the definition beginning with ‘or that, by its nature’ [i.e., the residual
clause] is no longer valid.” ECF No. 53, at 12.
To summarize, the government can seek a mandatory life sentence under the federal threestrikes law if an offender is convicted of an offense qualifying as a strike and the offender already
has two previous outstanding strikes. An offense counts as a strike for purposes of the federal
three-strikes law only if it qualifies as a serious violent felony under the enumerated clause or the
elements clause. To the extent that a sentencing judge adjudicated an offense as a serious violent
felony—or strike—under the residual clause, the sentence suffers from a constitutional defect.
Finally, prior to a trial or plea where the government seeks an enhanced sentence under the
federal three-strikes law, the government must serve a copy of the prior convictions upon which
the government bases the sentencing enhancement on the court and counsel for the defendant. See
21 U.S.C. § 851(a)(1) (incorporated by 18 U.S.C. § 3559(c)(4)). This document is called an
information or a notice of sentencing enhancement (“Notice”). “Clerical mistakes in the
information may be amended at any time prior to the pronouncement of sentence.” Id.

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II.

FIRST TWO STRIKES
The government sought an enhanced sentence under the federal three-strikes law in the

underlying case (Case No. 1:00-cr-00051) because of the prior strikes on Cooper’s record. Before
the trial, the government filed a Notice, indicating that it intended to seek a mandatory life sentence
for Cooper under 18 U.S.C. § 3559. The Notice listed the following offenses as potential qualifying
strikes:
1. 1981: Robbery (80520), State of California, County of Santa Cruz [“offense
(1)”];
Burglary of a Dwelling (2nd degree felony) in Third Judicial District Court, Salt
Lake County, Utah (Case # 24605). Judgment & Commitment filed on or about
June 18, 1973 2
2. 1982: Burglary in the first degree (82-0066 – State of Oregon, County of
Washington) [“offense (2)”]
3. 1982: Burglary in the first degree (82-0169 – State of Oregon, County of
Washington) [“offense (3)”]
4. 1988: Armed bank robbery (CR88-99T [116] – Western District of
Washington);
Armed bank robbery (CR88-306 – United States District Court, District of
Oregon, Rule 20 transfer to Western District of Washington and sentenced with
CR88-99T) [collectively, “offense (4)]
5. 1990: Robbery (C890126CR – State of Oregon, Washington County) [“offense
(5)”]
ECF No. 46-1, at 28. While the government’s Notice did not specifically clarify which of the above
convictions constituted Cooper’s first two strikes, the government clearly stated that either the
conviction for armed bank robbery in the District of Utah or the conviction for use of a firearm
during a crime of violence in the District of Utah could serve as a third strike. In response to

2

As discussed further below, the government listed two separate offenses under number one. The
government indicated in its response to Cooper’s objection to sentencing enhancement that the
Utah burglary was included in error and requested that it be stricken prior to Cooper’s sentencing.
ECF No. 274, at 5 n.1. Cooper concurs that this court should not consider the Utah burglary for
purposes of evaluating his liability under the federal-three strikes law. Indeed, Cooper points out
several times that he has no criminal case record at the Utah Third District Court. See, e.g., ECF
No. 46-1, at 29. Therefore “offense (1)” includes only the California robbery.
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Cooper’s present motion, the government identifies offenses (1), (4), and the underlying District
of Utah bank robbery conviction as the relevant three strikes. To that end, the court provides
additional background on offenses (1) and (4), then describes the events leading to the third
strike—the strike that gave rise to Cooper’s mandatory life sentence.
Offense (1) is a California robbery conviction that stems from an incident in Santa Cruz,
California in October 1981. Cooper and a co-defendant broke into a home. The resident returned
during the course of the crime. Cooper and his partner tied the resident up and Cooper threatened
the resident with a hunting knife. While Cooper expressed a desire to kill the resident, his partner
talked him out of it. The pair left with $6,500 from the home. Cooper was convicted under
California Penal Code § 211 and received a three-year prison term. A California court later denied
probation. As one of the grounds for the probation denial, the court cited California Rule of Court
414(c)(3), which states that one of the “[c]riteria affecting the decision to grant or deny probation
[is] [w]hether the defendant was armed with or used a weapon.” ECF No. 53-3, at 3.
Offense (4) encompasses several robberies prosecuted in federal court. On September 28,
1988, Cooper robbed a bank in Portland, Oregon. He immediately proceeded to attempt to rob a
bank in Vancouver, Washington, then successfully robbed a different bank also located in
Vancouver, Washington. Although Cooper’s activities spanned state lines, the case was
consolidated into the Western District of Washington, which presided over the case as to both
counts of bank robbery. Cooper’s conduct led to two federal convictions for bank robbery,
resulting in a 125-month prison sentence. As discussed below, the two convictions count as a single
strike for purposes of the federal three-strikes law.

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III.

THIRD STRIKE AND COLLATERAL ATTACKS
Cooper’s third strike resulted from a bank robbery that occurred in Utah. On July 17, 2000,

Cooper robbed a bank at gunpoint. During the course of the robbery, he threatened to shoot bank
employees and customers. Police subsequently apprehended Cooper and the government brought
charges against him. Cooper proceeded to trial. On October 28, 2002 a jury in the District of Utah
convicted Cooper of one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d)
and one count of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).
The case then entered the sentencing phase. Cooper objected to an enhanced sentence under
the federal three-strikes law on the grounds that the government had not established that Cooper
was the person convicted of the predicate offenses. Specifically, Cooper contended that by
neglecting to produce prison packets containing fingerprints or DNA from the alleged prior
convictions, the government had failed to meet its burden. See Case No. 1:00-cr-00051, ECF No.
271, at 1-2. However, at the sentencing hearing the sentencing judge overruled this objection on
the grounds that Cooper had stated that there were “no material errors” in the presentence report
(“PSR”), and “no corrections or additions which the defendant wishes to make to the Pre-Sentence
Investigation prior to the Time of Sentencing.” ECF No. 271, at 1. The judge further considered
the fact that Cooper’s counsel admitted that he had no evidence to suggest that the convictions
were anything other than Cooper’s. ECF No. 53-2, at 9-10.
On January 21, 2003, the Court sentenced Cooper to life in prison on the bank robbery
charge and eighty-four months in prison on the firearm charge, to run consecutively. The court
subsequently entered judgment against Cooper.
Cooper appealed the conviction to the Tenth Circuit. Cooper argued that the jury had
insufficient evidence to convict him, that the court had erroneously instructed the jury that he could

7

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be found guilty of aiding and abetting, that he was improperly denied access to a law library, and
that the court erred by sentencing him under the federal three-strikes law. On July 19, 2004, the
Tenth Circuit affirmed his conviction. Several months later, the Supreme Court denied Cooper’s
petition for a writ of certiorari.
Subsequently, Cooper pursued several collateral attacks on his Utah bank robbery
conviction. Cooper’s first collateral attack began on November 18, 2005. Cooper filed a motion to
vacate his sentence under 28 U.S.C. § 2255 arguing that he had received ineffective assistance of
counsel and that his sentence violated the statutory maximum, was incorrect under the guidelines,
and violated his Fifth and Sixth Amendment rights. The court denied Cooper’s motion. See Cooper
v. United States, 1:05-cv-142 (D. Utah Mar. 28, 2006) (unpublished order at ECF No. 11).
Cooper appealed the court’s denial, but the Tenth Circuit declined to issue a certificate of
appealability on the grounds that the district court’s resolution of Cooper’s § 2255 motion was not
subject to debate. See United States v. Cooper, No. 06-4094 (D. Utah Jan. 11, 2007) (unpublished
order).
Cooper’s second collateral attack began on June 27, 2016. Through counsel, Cooper
requested that the Tenth Circuit authorize a successive § 2255 motion based upon the recently
decided Supreme Court case, Johnson v. United States, 576 U.S. 591 (2015).
The Tenth Circuit acquiesced, 3 and Cooper filed a motion through counsel arguing that the
state robbery and burglary offenses were not serious violent felonies in light of Johnson, thus

3

The court notes that the Tenth Circuit’s permission to file the present successive § 2255 motion
does not bear on whether the Tenth Circuit approves of the motion. To obtain authorization from
the Tenth Circuit, Cooper had only to make a prima facie showing that his second or successive
§ 2255 motion meets the gatekeeping requirements of § 2255(h). See 28 U.S.C. § 2244(b)(3)(C);
see also United States v. Murphy, 887 F.3d 1064, 1067 (10th Cir. 2018). As the Tenth Circuit
stated in this case, “[i]n assessing this showing, we do not consider the merits of the second or
successive motion.” See ECF No. 81, at 49 (citing In re Barrett, 840 F.3d 1223, 1227 (10th Cir.
8

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precluding application of the federal three-strikes law to his case. See ECF No. 1. Soon thereafter,
Cooper’s counsel withdrew at his request. Cooper filed several motions for extensions of time
while he searched for counsel. Ultimately, Cooper filed two supplemental § 2255 motions pro se.
See ECF Nos. 46-1, 46-2. The government responded to all of Cooper’s § 2255 motions in a single
filing. See ECF No. 53. Cooper filed two replies. See ECF Nos. 59, 81. Because Cooper filed his
initial reply while on lockdown for COVID-19 and requested leave to amend his reply upon the
termination of his lockdown, the court treats Cooper’s final reply brief (ECF No. 81) as the
operative reply.
LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner may “move the court which imposed the sentence to
vacate, set aside, or correct the sentence” where “the court finds that the judgment was rendered
without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to
collateral attack, or that there has been such a denial or infringement of the constitutional rights of
the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(a)-(b). In
essence, the court looks for “a fundamental defect which inherently results in a complete
miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185 (1979) (citation omitted). In
reviewing a § 2255 motion, the court presumes that the prior proceedings were lawful. See Klein
v. United States, 880 F.2d 250, 253 (10th Cir. 1989). The movant bears the burden of
demonstrating the deprivation of a constitutional right. See United States v. Kennedy, 225 F.3d
1187, 1196 n.6 (10th Cir. 2000).

2016). This court, in contrast, is tasked with considering the merits of Cooper’s § 2255 motion.
Therefore, to the extent Cooper suggests that he has “proven” something to the Tenth Circuit, what
he has “proven” does not affect the merits of his § 2255 petition. ECF No. 81, at 17.
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A court must conduct a hearing on a § 2255 motion “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
“The purpose of an evidentiary hearing is to resolve conflicting evidence.” Anderson v. Att’y Gen.
of Kan., 425 F.3d 853, 860 (10th Cir. 2005). But when the evidence allows the court to resolve the
§ 2255 motion on the existing record, no evidentiary hearing is required. United States v. Lopez,
100 F.3d 113, 121 (10th Cir. 1996). If the claims relate to occurrences in the courtroom or record
evidence, then the court need not conduct a hearing. Machibroda v. United States, 368 U.S. 487,
494-95 (1962). 4
ANALYSIS
Across three motions, Cooper advances two essential arguments for why the court should
re-sentence him without applying the federal-three strikes sentence enhancement. First, he argues
that Johnson v. United States, 576 U.S. 591 (2015), renders § 3559’s residual clause
unconstitutional. Thus, Cooper argues, to the extent the sentencing court relied on the residual
clause in concluding that a particular offense was a strike, the court must overturn the sentence.
Second, he argues that the government committed a series of reversible errors in the Notice,
including (1) inaccurately stating the timing of various convictions or changing the dates of
convictions to mask timing issues, (2) inaccurately representing consolidated offenses as multiple
strikes, (3) including a false conviction for a burglary in Utah in which Cooper did not participate,
and (4) misrepresenting offense number (4) as an armed robbery when in fact the charging
documents do not support such a representation. The government responds to Cooper’s arguments

4

Because Cooper’s claims relate to courtroom occurrences and record evidence, the court need
not hold an evidentiary hearing.
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and adds its own contention that Cooper does not comply with the foundational gatekeeping
requirements put in place by 28 U.S.C. § 2255. 5
The court proceeds by clarifying which of Cooper’s offenses can count as strikes for
purposes of the federal three-strikes law. The court then discusses whether offense (1), the
California robbery, qualifies as a strike in light of recent Supreme Court decisions. Finally, the
court reviews the Notice errors highlighted by Cooper. For the following reasons, the court
DENIES Cooper’s motion.
I.

RELEVANT OFFENSES
As an initial matter, the court begins by clarifying which offenses are at issue here. Cooper

argues, and the government concurs, that the two bank robbery convictions—offense (4) and the
underlying Utah bank robbery conviction—each constitute a strike for purposes of the federal
three-strikes law. See 18 U.S.C. § 3559(c)(2)(F)(i). The government prosecuted both offenses
under 18 U.S.C. § 2113, which is an exemplar statute included in the enumerated offense list under
18 U.S.C. § 3559(c)(2)(F)(i). And both parties acknowledge that offense (4) accounts for only a
single strike, despite the fact that the Notice lists two separate bank robbery convictions. See 18
U.S.C. § 3559(c)(1)(B) (noting that each strike must be “committed after the defendant’s
conviction of the preceding [strike]”). Accordingly, both parties agree that Cooper has two strikes
as a result of the convictions arising from offense (4) and the underlying Utah bank robbery. The
only question for the court, then, is whether any of the other offenses listed by the government in
the Notice qualify as a strike. Any additional strike would bring Cooper’s total number of strikes
to three, which would support the sentencing judge’s decision to impose a mandatory life sentence.

5

Because Cooper obtained prior authorization from the Tenth Circuit, the court assesses the merits
of Cooper’s § 2255 claim.
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The government does not contest Cooper’s contention that offenses (2), (3), and (5) do not
qualify as strikes. First, offenses (2) and (3), which both pertain to burglaries in Oregon, are not
serious violent felonies under any valid provision 6 of the three strikes law. Burglary is not an
enumerated offense. And the government “does not argue that the Oregon burglary convictions
[offenses (2) and (3)] qualified under the [elements] clause at the time Cooper was sentenced.”
ECF No. 53, at 13 n.3. Thus, the government concedes that offenses (2) and (3) do not qualify as
strikes.
Moreover, the government concedes that the timing of offense (5) precludes its use as a
predicate serious violent felony. In order to qualify as a strike for purposes of the federal threestrikes law, an offense must have been “committed after the defendant’s conviction of the
preceding serious violent felony or serious drug offense.” 18 U.S.C. § 3559(c)(1)(B). A federal
court in Washington entered judgment against Cooper on February 16, 1989 for offense (4) based
on his guilty plea. ECF No. 53-1, at 15-16. The government asserts that offense (4) counts as a
strike. But Cooper committed offense (5) on September 17, 1988, well before his conviction for
offense (4). As the government acknowledges, “[b]ecause of the timing requirement in
§ 3559(c)(1)(B), the use of a federal bank robbery as a strike means the Oregon robbery cannot be
counted as a strike.” ECF No. 53, at 13 n.3.
And finally, the government agrees with Cooper that the Utah burglary mentioned under
offense (1) is not relevant for purposes of application of the three-strikes law. Cooper spends
several pages introducing “new evidence” that a clerk from Utah’s Third Judicial District certified
that the court had no record of a burglary conviction against Cooper. But the government moved

6

As discussed above, the residual clause is unconstitutional so the court considers only the
applicability of the enumerated clause and the elements clause.
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to strike that offense from the Notice prior to the sentencing hearing. Case No. 00-cr-00051-TC,
ECF No. 274, at 5 n.1 (“The Information contains a clerical error on page 2. Item No. 1 lists the
defendant’s 1981 Robbery . . . A reference to a burglary (unrelated to this case) was inadvertently
included in this paragraph. The United States requests that this reference to the burglary be
stricken.”). Thus, the sentencing judge did not take that offense into account when conducting
sentencing.
In sum, the government predicates its arguments solely on the grounds that offense (1),
offense (4), and the underlying Utah bank robbery conviction support application of the federal
three-strikes law. By limiting its arguments to these offenses, the government moots Cooper’s
arguments related to offenses (2), (3), and (5), as well as the Utah burglary conviction mistakenly
listed under offense (1).
II.

CALIFORNIA ROBBERY AND THE RESIDUAL CLAUSE
The government argues that offense (1), Cooper’s California robbery conviction, qualifies

as a strike because it constitutes an enumerated offense. Cooper responds that offense (1) does not
qualify as a strike under 18 U.S.C. § 2255 for two reasons. First, Cooper contends that offense (1)
does not count as a strike because a California robbery conviction does not qualify as an
enumerated offense. Specifically, Cooper relies on the categorical approach to argue that the
statute under which he was sentenced in California is not a categorical match for the federal
robbery statutes cited in 18 U.S.C. § 3559(c)(2)(F)(i). Second, he argues that to the extent the judge
considered offense (1) as a strike under the residual clause, the sentence is unconstitutional under
Johnson v. United States.
As discussed above, both Cooper and the government agree that the residual clause is
unconstitutional. Thus, to the extent the sentencing judge relied on the residual clause to find that

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offense (1) qualified as a strike, the sentence would result from application of an unconstitutional
provision. But if, as the government asserts, the sentencing judge used the enumerated clause to
find that offense (1) qualified as a strike, then the sentence is not constitutionally defective.
Therefore, the operative question for the court is whether the sentencing judge relied on the
residual clause or the enumerated offenses clause in sentencing Cooper. 7
When a court faces the question of which clause a sentencing judge used to determine that
a particular offense qualified as a strike within the meaning of the federal three-strikes law, the
Tenth Circuit instructs this court to engage in a two-step process to determine, “as a matter of
historical fact, whether the sentencing court relied on the residual clause in imposing the
[mandatory] sentence.” United States v. Lewis, 904 F.3d 867, 872 (10th Cir. 2018) (citation
omitted). In the first step, the court looks at the sentencing record for evidence of the clause the
sentencing judge relied upon in sentencing the movant. See United States v. Driscoll, 892 F.3d
1127, 1132 (10th Cir. 2018). If the sentencing record clarifies which clause the sentencing judge
used, the court need not continue to the second step. But where the sentencing record is ambiguous,
the court “examine[s] the ‘relevant background legal environment’ at the time of sentencing to
determine whether the district court would have needed to rely on the residual clause.’” Id. Cooper
bears the burden of demonstrating by a preponderance of the evidence that the sentencing court
“relied on the residual clause to enhance his sentence.” Driscoll, 892 F.3d at 1135 & n.5.
A.

Sentencing Record

“To determine whether the sentencing court relied on the residual clause, we examine [first]
‘the sentencing record to confirm that there is no mention whatsoever of the residual clause in the

7

The elements clause does not apply here. As discussed in more detail below, because Cooper’s
California robbery conviction was not punishable by a maximum term of imprisonment of ten
years or longer, it did not qualify under the elements clause.
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PSR or any of the other sentencing court pleadings or transcripts.’” United States v. Copeland, 921
F.3d 1233, 1242 (10th Cir. 2019) (quoting Driscoll, 892 F.3d at 1132). In examining the sentencing
record, the court looks for “(1) references to the residual clause or another . . . clause, and (2)
information about a movant’s prior convictions.” Id. at 1243 (citations omitted). “[E]xpress
‘mention’ of either the residual, elements, or enumerated clause by the sentencing judge at
sentencing, in a court order, in a PSR adopted by the sentencing judge, or in a party’s motion may
be relevant and even sufficient to show whether the sentencing court relied on the residual clause.”
Id. (citation omitted).
Here, the sentencing transcript contains no reference to either the residual, elements, or
enumerated clause. Prior to the sentencing hearing, Cooper objected to the PSR on the grounds
that the government had not borne its burden of demonstrating, via fingerprints or DNA, that
Cooper was the person named in the documents. Accordingly, the sentencing hearing focused
largely on the government’s burden and whether Cooper was the individual named in the prior
convictions listed in the PSR.
In fact, the sentencing judge never specifically indicated which offenses he relied on as
strikes for Cooper. During his colloquy with Cooper’s counsel, the sentencing judge referenced
certain paragraphs of the PSR that correspond to descriptions of offenses (4) and (5), as well as an
offense not listed in the Notice. See ECF No. 53-2, at 19 (“Specifically relevant to this particular
situation are the paragraphs, I think it’s Paragraph 35 and 36, 37 and 38, perhaps others as
well . . . .”). And as Cooper accurately points out, there was “not one word about the 2nd degree
robbery [i.e., offense (1)] in the entire sentencing transcripts.” ECF No. 81, at 17. But the
sentencing judge’s failure to specifically mention offense (1) does not preclude a finding by this
court that the sentencing judge considered it as a strike. This is particularly true in light of the fact

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that the government clearly listed offense (1) in the Notice that it provided to the court in advance
of sentencing. And the sentencing transcript indicates that the judge did not intend to definitively
indicate which prior offenses he relied upon when he listed the relevant paragraph numbers—as
evidenced by his inclusion of a paragraph that corresponded to an offense not listed in the Notice.
Rather, the court reads the sentencing judge’s comment as a spur-of-the-moment reference to
potentially relevant paragraphs of the PSR. Indeed, the sentencing judge himself notes that, in
addition to the paragraphs mentioned, there were “perhaps others as well” that corresponded to
other relevant offenses. ECF No. 53-2, at 19. In sum, the record of the sentencing hearing is
ambiguous as to which offenses the sentencing judge considered as strikes. And, most importantly,
it makes no explicit or implicit reference to which specific clause the sentencing judge used to
determine that the relevant offenses were strikes.
Cooper’s PSR is similarly unhelpful. The PSR contains a few references to the federal
three-strikes law. It states that “[t]he maximum term of imprisonment for this offense, a Class A
Felony, is Life, pursuant to 18 U.S.C. § 3559(c).” PSR ¶ 54. And it references the government’s
notice to the defendant that he is subject to a three-strikes sentence enhancement. Id. ¶ 4. But,
again, it contains no mention of the offenses on which the sentencing judge relied, nor does it shed
any light upon which clause the judge used to determine that the relevant offenses constituted
strikes. Finally, the briefing provided to the sentencing judge in advance of the sentencing hearing,
which primarily focuses on Cooper’s objections related to the lack of DNA or fingerprint evidence
tying him to the offenses listed in the Notice, is similarly devoid of information about which
offenses or clause the court used to sentence Cooper to mandatory life imprisonment.
The ambiguity in the sentencing record “favors neither [the petitioner] nor the government.”
Driscoll, 892 F.3d at 1135. Instead, “[w]hen . . . we are presented with an ambiguous sentencing

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record,” the court looks to the relevant background legal environment when the sentencing judge
imposed the mandatory life sentence “to show the most likely reasoning of the sentencing court.”
See Copeland, 921 F.3d at 1246 (citation omitted).
B.

Background Legal Environment

“[W]e examine the relevant background legal environment at the time of sentencing ‘to
determine whether the district court would have needed to rely on the residual clause.’” Copeland,
921 F.3d at 1243-44 (quoting Driscoll, 892 F.3d at 1132). “[T]he relevant background legal
environment is, so to speak, a ‘snapshot’ of what the controlling law was at the time of sentencing
and does not take into account post-sentencing decisions that may have clarified or corrected presentencing decisions.” United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017). “If the
court’s only option was the residual clause under the background law because it could not have
relied on the enumerated or elements clause, we conclude that the sentencing court must have
relied on the residual clause.” Copeland, 921 F.3d at 1243 (citation omitted). “[F]acts about the
movant’s previous convictions contained in the PSR, sentencing hearing, or other parts of the
district court docket, when viewed in light of background law, can often enable a court to determine
whether the district court relied on the residual clause in sentencing.” Id.
Here, the following factors indicate that the sentencing judge relied on the enumerated
clause, not the residual clause, in determining that offense (1) qualified as a strike. First, at the
time of the sentencing hearing, courts generally considered robbery a serious violent felony for
purposes of the enumerated clause. Second, Cooper’s California robbery did not qualify for any
exception to that rule in light of the facts of his case, which a 2003 court would have considered.
Third, a plain reading of the residual clause would have precluded its use by the sentencing judge.
The court addresses each factor in turn.

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Considering the legal environment as it existed in 2003, Cooper’s California robbery
qualified as a strike under the enumerated clause. Cooper accurately notes that there are “no
specific on-point cases . . . that have found that CPC § 211 qualifies, or does not qualify, under
§ 3559(c)’s enumerated offenses clause.” ECF No. 81, at 18. But the law does not require a case
directly on point. Rather, the court looks to the landscape of caselaw at the time of Cooper’s
sentencing hearing. And caselaw clearly establishes that, at the time of Cooper’s sentencing, the
Tenth Circuit generally considered robbery a serious violent felony for purposes of the three strikes
sentencing enhancement. See United States v. Gottlieb, 140 F.3d 865, 866 (10th Cir. 1998)
(“Robbery is generally considered a ‘serious violent felony’ for purposes of the Three Strikes
statute.”); United States v. Mackovich, 209 F.3d 1227, 1238 (10th Cir. 2000) (same); United States
v. Fortune, 216 F.3d 1088, at *7 (10th Cir. 2000) (unpublished table decision) (same).
However, caselaw at the time of Cooper’s sentencing also acknowledged an exception to
the general rule. Specifically, the nonqualifying felony clause of § 3559 states that “§ 3559 treats
robbery as a non-qualifying felony if the defendant establishes by clear and convincing evidence
that – (i) no firearm or other dangerous weapon was used in the offense and no threat of use of a
firearm or other dangerous weapon was involved in the offense; and (ii) the offense did not result
in death or serious bodily injury . . . to any person.” United States v. Smith, 208 F.3d 1187, 118889 (10th Cir. 2000). But that exception does not apply here.
In order to determine whether an enumerated offense qualified for an exception under
§ 3559(c)(3)(A), the 2003 sentencing court would have examined the facts underlying the
conviction. Cooper’s PSR describes the California robbery as follows:
When they arrived in Santa Cruz, they broke into the home of a 62-year-old victim.
When the victim arrived home, they made him lie down and they tied him up with
a cord from an iron. The defendant, who was holding a hunting knife, made the
statement “Let’s kill him.” The codefendant apparently talked the defendant out of
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murdering the victim and, during the Court proceedings, the victim testified that, in
his opinion, the codefendant saved his life.
PSR ¶ 27. Based on this account, which Cooper did not contest at the time of sentencing, 8 Cooper
undoubtedly threatened to use a dangerous weapon (a hunting knife) during his commission of the
robbery. Such “threat of use of a firearm or dangerous weapon” would have prevented the
sentencing judge from treating the offense as a non-qualifying felony. See 18 U.S.C.
§ 3559(c)(3)(A).
Nevertheless, Cooper contends that the court cannot look to the specific facts of the
California robbery but must instead use the categorical approach to compare California Penal Code
§ 211 to the enumerated federal robbery statutes. Accordingly, Cooper spends several pages
demonstrating that California Penal Code § 211 does not qualify as an enumerated offense under
the categorical approach. But, as the government points out, the Tenth Circuit did not expressly
adopt the categorical approach to the federal three-strikes context until 2018. See ECF No. 53, at
19 n. 4 (citing United States v. Leaverton, 895 F.3d 1251, 1253 (10th Cir. 2019)). And caselaw
from the time of Cooper’s conviction indicates that the sentencing judge would not have applied
the categorical approach to determine whether Cooper’s offense qualified for an exception to the
enumerated offense clause. In 2000, the Tenth Circuit stated that that “Taylor’s categorical
approach is inapplicable to the ‘nonqualification’ inquiry under § 3559(c)(3)(A).” Mackovich, 209
F.3d at 1240. The Tenth Circuit affirmed this position several months after the court sentenced
Cooper, reiterating that “the Taylor categorical approach is inapplicable to a district court’s
determination of whether an offense qualifies as a ‘strike’ under the federal ‘three-strikes’ law.”

8

See PSR Addendum, at 1 (“As of January 13, 2003, defense counsel Edwin Wall had not advised
the probation officer that he had any objections to the presentence report); ECF No. 53-2, at 12
(“[Defendant] submits to the Court there are no corrections or additions which the defendant
wishes to make to the presentence investigation.”).
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United States v. Martinez-Candejas, 347 F.3d 853, 859 (10th Cir. 2003). The language of the
statute, the Tenth Circuit reasoned, “unmistakably requires the courts to look to the specific facts
underlying the prior offense.” Id. Accordingly, a sentencing judge in 2003 would have looked to
the specific facts of Cooper’s offense to determine whether the nonqualification clause applied to
his offense. As discussed above, the specific facts of his offense clearly demonstrate that Cooper
cannot avail himself of the nonqualification clause to avoid a finding that offense (1) falls under
the enumerated clause.
And finally, even a cursory examination of the residual clause by the sentencing judge
would have eliminated use of the residual clause from consideration. The residual clause covers
“any offense punishable by a maximum term of imprisonment of 10 years or more . . . that, by its
nature, involves a substantial risk that physical force against the person of another may be used in
the course of committing the offense.” 18 U.S.C. § 3559(c)(2)(F)(ii). Thus, the residual clause
plainly requires that the sentencing judge find the relevant offense punishable by at least ten years.
But California Penal Code § 213 provided that first-degree robbery is punishable either by “three,
six, or nine years” or “three, four, or six years” depending on the circumstances, and second-degree
robbery is punishable by “two, three or five years.” 9 Thus, in 2003 (as now) the longest sentence
for any degree of robbery under California Penal Code § 211 was nine years. Accordingly, the
sentencing judge could not have used the residual clause with regard to offense (1) because the
California robbery conviction did not meet the threshold requirement that the offense be
punishable by a maximum term of ten years or more.

9

Cooper refers to his conviction as second-degree robbery. But, as the government notes, the
record contains no evidence indicating the degree of Cooper’s robbery conviction. Given that the
maximum term of imprisonment for either first- or second-degree robbery falls under ten years,
the court need not further investigate the distinction.
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In sum, a review of the relevant background legal environment at the time of Cooper’s
sentencing supports a finding that the sentencing judge relied on the enumerated clause—not the
residual clause—to determine that offense (1), the California robbery, qualified as a serious violent
felony. Because this court finds that the sentencing judge relied on the enumerated clause, not the
residual clause, Cooper has failed to sustain his burden of establishing a deprivation of his
constitutional rights. And because the court determines that, as a matter of historical fact, the
sentencing court did not rely on the residual clause, it need not reach Cooper’s harmless error
arguments.
III.

NOTICE ERRORS
Finally, Cooper includes a number of arguments objecting to various alleged errors in the

Notice. For instance, he objects to the order in which several of the offenses are listed, the dates
associated with several offenses, and the indication that offense (4) is an armed robbery. These
alleged errors do not alter the court’s conclusion. 10
First, Cooper did not object to any of these issues at the time of sentencing, despite having
ample opportunity. Indeed, his only objection was that the government had not sufficiently
established that he was the person named in the convictions.
Second, most of Cooper’s objections to the Notice have no grounding in law. Cooper
highlights ten errors. ECF No. 46-1, at 15-16. Several of the errors complain that the government
listed the offenses in the wrong order. But there is no legal authority requiring the government to
list the predicate offenses in any particular order in the Notice. Other objections assert that the

10

The court sympathizes with Cooper’s complaint that the government inappropriately included
several of the offenses in the § 3559 Notice. These offenses, which the government now concedes
do not qualify as strikes, made Cooper’s potential strikes appear numerous. Nevertheless,
erroneously including superfluous offenses in the Notice, when the Notice already includes
sufficient strikes under the federal three-strikes law, is not grounds for revisiting Cooper’s sentence.
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government listed the incorrect date for some offenses. But the government included the
conviction records as an attachment to the Notice, meaning it clearly put Cooper on notice of which
offenses it intended to use despite clerical errors in the dates listed. See United States v. Hood, 615
F.3d 1293, 1304 (10th Cir. 2010) (“Because [the movant] had sufficient notice of the prior
conviction upon which the government sought enhancement as well as an opportunity to be heard,
the Enhancement Information’s incorrect identification of the court and place of conviction would
be at most harmless error.”). Similarly, Cooper’s complaint that offense (4) was listed as an armed
bank robbery, when in fact it was unarmed, was apparent from the conviction records attached.
Third, Cooper objects to use of the Utah burglary listed under offense (1). But as discussed
above, the government had already moved to strike this offense from the list by the time the
sentencing hearing occurred.
And finally, the government concedes that the errors Cooper identifies as “error #9” and
“error #10” are correct but argues that they have no relevance to this petition. The court agrees.
Error #9 accuses the government of giving the court the false impression that the two bank
robberies listed under offense (4) may count as two individual predicate offenses. But as discussed
above, the government does not attempt to count the two offenses listed in offense (4) as separate
strikes here. Error #10 points out that Cooper committed offense (5) prior to his conviction for
offense (4). But again, the government does not attempt to rely on offense (5) as a strike. Indeed,
it acknowledges that offense (5) cannot qualify as a strike because Cooper committed it before the
conviction for offense (4). In sum, Cooper’s identified errors do not alter the court’s conclusion
that offense (1), offense (4), and the underlying Utah bank robbery conviction add up to three valid
strikes against Cooper.

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CONCLUSION
The court DENIES Cooper’s Motions to Vacate, Correct, or Set Aside his sentence under
28 U.S.C. § 2255.
DATED March 29, 2023.

BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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