United States v Driscoll

Driscoll appealed denial of his motion to vacate his sentence. The panel reversed and remanded with instructions. It held the challenge was timely as it was mode within one year of the Johnson decision, that decision was not foreseeable at the time of sentencing and the enhanced sentence here would be illegal if the challenge is correct. It held that under the background legal landscape at the time of sentencing it is unclear whether the sentencing court relied upon the residual clause or the enumerated offenses clause, that defendants bear the burden of proof by preponderance of the evidence that the residual clause was relied upon and held Driscoll met that burden here as the underlying burglary would not have satisfied the generic burglary enumerated offense and thus the district court must have relied upon the residual clause and held the Nebraska conviction could not be used to enhance the sentence as it is broader than generic burglary, there were fewer than the required three convictions needed to trigger the enhanced sentence and thus resentencing is required here.