United States v. Cooper.
No. 23-4052. 11/18/2025. D.Utah. Judge Ebel. Sentencing—Life Imprisonment—Categories of Serious Violent Felonies—18 USC § 3559(c)(2)(F)(ii) Residual Clause—Collateral Relief.
November 18, 2025
Cooper was convicted of armed bank robbery in 2003. Before his sentencing, the government noticed five of Cooper’s prior convictions that it contended qualified as “serious violent felonies”: a 1981 California robbery conviction, two 1982 Oregon burglary convictions, two 1988 federal bank robbery convictions occurring in Washington (counted together as one prior conviction), and a 1990 Oregon robbery conviction. Cooper was sentenced to life under 18 USC § 3559(c), the three strikes provision. But when sentencing Cooper, the district court did not identify which of his five prior convictions it relied on or which of § 3559(c)(2)(F)’s three categories of serious violent felonies his prior convictions triggered. Cooper’s conviction and life sentence were upheld on direct appeal, and Cooper unsuccessfully sought collateral relief under 28 USC § 2255. In 2020, the Tenth Circuit authorized Cooper to file a second or successive § 2255 motion, which Cooper filed, alleging that § 3559(c)(2)(F)(ii)’s residual clause is unconstitutionally vague and that the district court relied on that unconstitutional residual clause to impose his life sentence. The district court denied relief but granted Cooper a certificate of appealability.
On appeal, Cooper argued that his current § 2255 motion is based on a new rule of constitutional law because, though the US Supreme Court has never addressed the constitutionality of § 3559(c)(2)(F)(ii)’s residual clause, the Court has held that similarly worded residual clauses in other federal statutes are unconstitutionally vague. Under 28 USC § 2255(h)(2), Cooper’s second or successive § 2255 collateral attack must be based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Section 3559(c) mandates a life sentence if the defendant is convicted of a serious violent felony and has two or more prior federal or state convictions for serious violent felonies, and it is undisputed that Cooper’s underlying 2003 armed bank robbery conviction qualifies as a serious violent felony. As the movant, Cooper has the burden of proving by a preponderance of the evidence that the use of the residual clause led to the sentencing court’s enhancement of his sentence. Cooper could not meet this burden by relying on the sentencing record, so the Tenth Circuit looked to the legal background at the time of Cooper’s 2003 sentencing to determine whether the sentencing court would have had to rely on the residual clause, rather than the enumerated or elements clause, to impose a life sentence. In addition to the 2003 conviction, the parties agreed that Cooper’s 1988 Washington federal bank robbery convictions qualified as a serious violent felony. And the Tenth Circuit determined that the sentencing court could have permissibly applied the circumstance-specific approach and concluded that Cooper’s 1981 California robbery conviction qualified as a strike under the enumerated clause of § 3559(c)(2)(F)(i). Therefore, the sentencing court would not have had to rely on the residual clause to impose a life sentence. Accordingly, the Tenth Circuit did not have to decide whether other Supreme Court cases would permit Cooper to challenge § 3559(c)(2)(F)(ii)’s residual clause under § 2255(h)(2).
Cooper also argued that the sentencing court would have used the categorical approach to determine whether his 1981 California robbery conviction qualified as a strike under the enumerated clause and would have concluded it did not qualify, so the sentencing court must have applied the residual clause to rely on Cooper’s 1982 Oregon burglaries instead. This argument is based on United States v. Romero, 122 F.3d 1334, 1342–43 (10th Cir. 1997), which addressed whether to apply the categorical approach to the elements and residual clauses of § 3559(c). Romero addresses only the elements and residual clauses; it says nothing about the enumerated clause and does not discuss the categorical approach.
The denial of Cooper’s second or successive § 2255 motion was affirmed.