When Silence Speaks Against the Movant:
United States v. Cooper and Johnson‑Based Challenges to § 3559(c) Three‑Strikes Sentences

I. Introduction

In United States v. Cooper, No. 23‑4052 (10th Cir. Nov. 18, 2025), the Tenth Circuit confronted a Johnson‑style collateral attack on a federal “three‑strikes” life sentence imposed under 18 U.S.C. § 3559(c). Todd Harold Cooper, already unsuccessful on direct appeal and in his first § 2255 motion, returned to court after the Supreme Court’s invalidation of several federal “residual clauses” on vagueness grounds (most notably in Johnson v. United States, 576 U.S. 591 (2015)).

Cooper argued that the “residual clause” in § 3559(c)(2)(F)(ii) — the provision that defines “serious violent felony” for three‑strikes purposes — is likewise unconstitutionally vague, and that the sentencing judge necessarily relied on that clause to impose his mandatory life sentence. The difficulty was that the sentencing record from 2003 was silent as to which prior convictions counted as “strikes” and under which part of § 3559(c): the enumerated clause, the elements (force) clause, or the residual clause.

The Tenth Circuit did not decide whether § 3559(c)’s residual clause is itself unconstitutional. Instead, the court resolved the case on a threshold problem of proof: could Cooper, on collateral review, show that the sentencing judge actually relied on the now‑suspect residual clause? The panel held that he could not, and on that basis affirmed the denial of Cooper’s second or successive § 2255 motion.

The opinion is important for at least three reasons:

It applies and extends the Tenth Circuit’s “background legal environment” methodology — developed in the wake of Johnson for ACCA and similar statutes — to three‑strikes sentences under § 3559(c).
It clarifies how, as of 2003, a sentencing court in this Circuit could reasonably have understood the methodology for determining whether a prior conviction qualified as “robbery” under § 3559(c)(2)(F)(i)’s enumerated clause, specifically endorsing the permissibility of a circumstance‑specific approach at that time.
It underscores the heavy evidentiary burden on § 2255 movants in second‑or‑successive Johnson‑based challenges where the original sentencing record is silent and the governing law at the time was unsettled.

The central doctrinal move in Cooper is this: because, in 2003, a sentencing court in the Tenth Circuit could permissibly have used a circumstance‑specific approach to treat Cooper’s 1981 California robbery conviction as an enumerated robbery under § 3559(c)(2)(F)(i), Cooper could not show it was more likely than not that the court instead relied on the residual clause and the Oregon burglaries to reach three strikes. That failure of proof defeats his Johnson‑based § 2255 claim.

II. Summary of the Opinion

A. Procedural Posture and Jurisdiction

Cooper appealed from the District of Utah’s denial of his second or successive motion under 28 U.S.C. § 2255 to vacate his three‑strikes life sentence. The Tenth Circuit exercised jurisdiction under 28 U.S.C. §§ 1291, 2253, and 2255(d). Because the district court had denied relief without an evidentiary hearing, the court of appeals reviewed the denial of § 2255 relief de novo. See United States v. Copeland, 921 F.3d 1233, 1242 (10th Cir. 2019).

B. Factual and Sentencing Background

In 2003, a federal jury in the District of Utah convicted Todd Cooper of armed bank robbery in violation of 18 U.S.C. § 2113. The government sought a mandatory life sentence under 18 U.S.C. § 3559(c), the federal “three‑strikes” statute.

Section 3559(c) mandates a life sentence if:

the defendant is convicted in a court of the United States of a serious violent felony, and
the defendant has two or more prior federal or state convictions for serious violent felonies.

The statute defines “serious violent felony” in § 3559(c)(2)(F), which has three distinct parts:

Enumerated clause, § 3559(c)(2)(F)(i): lists specific offenses such as robbery (as described in 18 U.S.C. §§ 2111, 2113, or 2118) and others.
Elements (force) clause, § 3559(c)(2)(F)(ii): covers any offense punishable by at least 10 years’ imprisonment that has as an element the use, attempted use, or threatened use of physical force against the person of another.
Residual clause, also in § 3559(c)(2)(F)(ii): includes any offense punishable by at least 10 years 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.

No one disputed that Cooper’s 2003 armed bank robbery was itself a “serious violent felony” and thus his first strike. Before sentencing, the government filed a notice of five prior convictions it asserted were also “serious violent felonies”:

1981 California robbery (Cal. Penal Code § 211);
1982 Oregon burglary conviction #1;
1982 Oregon burglary conviction #2;
two 1988 federal bank robbery convictions from Washington (counted as a single prior conviction);
1990 Oregon robbery conviction.

The sentencing court concluded that Cooper had three strikes and imposed a mandatory life sentence under § 3559(c). However, the sentencing record did not specify:

which prior convictions the court actually treated as strikes, or
under which prong (enumerated, elements, or residual) those convictions qualified.

On direct appeal, the Tenth Circuit affirmed Cooper’s conviction and life sentence. United States v. Cooper, 375 F.3d 1041 (10th Cir. 2004), cert. denied, 543 U.S. 1011 (2004). Cooper’s first § 2255 motion was later denied. See United States v. Cooper, 212 F. App’x 743 (10th Cir. 2007) (unpublished), cert. denied, 552 U.S. 930 (2007).

C. The New § 2255 Motion and the Johnson Line of Cases

In 2020, the Tenth Circuit authorized Cooper to file a second or successive § 2255 motion under § 2255(h)(2). Cooper’s new theory was that:

§ 3559(c)(2)(F)(ii)’s residual clause is unconstitutionally vague, in light of the Supreme Court’s decisions striking down similarly worded residual clauses in other statutes, and
the sentencing court necessarily relied on that residual clause to treat one or more of his prior convictions as “serious violent felonies,” so his life sentence could not stand.

Cooper relied on:

Johnson v. United States, 576 U.S. 591 (2015), holding the residual clause of ACCA, 18 U.S.C. § 924(e)(2)(B), unconstitutionally vague;
Sessions v. Dimaya, 584 U.S. 148 (2018), invalidating the residual clause in 18 U.S.C. § 16(b);
United States v. Davis, 588 U.S. 445 (2019), invalidating the residual clause in 18 U.S.C. § 924(c)(3)(B).

The district court denied relief but issued a Certificate of Appealability. The appeal was fully briefed and argued, with appointed counsel and pro se submissions from Cooper.

D. The Central Holding

The Tenth Circuit assumed, without deciding, that Cooper could rely on the Supreme Court’s residual‑clause vagueness decisions to challenge § 3559(c)(2)(F)(ii)’s residual clause under § 2255(h)(2). The court found it unnecessary to decide that constitutional question because Cooper failed on a logically prior issue: he could not show that the sentencing judge actually relied on the residual clause in imposing the three‑strikes enhancement.

Drawing on its precedents in Washington, Driscoll, Copeland, and Lewis, the court reiterated that:

“The § 2255 movant bears the burden of proving by a preponderance of the evidence that ‘it was use of the residual clause that led to the sentencing court’s enhancement of his sentence.’”

— Cooper, slip op. at 5–6 (quoting United States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir. 2018), and United States v. Copeland, 921 F.3d 1233, 1242 (10th Cir. 2019))

Because the sentencing record was silent, the panel looked to the “relevant background legal environment” in 2003 to determine whether the district court would have needed to rely on the residual clause. If, under then‑controlling law, the judge could have reached three strikes without resort to the residual clause, then Cooper could not meet his burden.

The court then:

Eliminated the 1990 Oregon robbery as a strike (it preceded one of the other qualifying convictions, violating § 3559(c)(1)(B)’s sequencing requirement);
Accepted that the two 1982 Oregon burglaries could only have counted under the residual clause; and
Focused on the 1981 California robbery under Cal. Penal Code § 211 as the pivotal prior conviction.

The panel reasoned:

If the sentencing court, in 2003, could permissibly apply a circumstance‑specific approach to the California robbery, then, given Cooper’s actual conduct (breaking into a home, tying the resident, threatening with a hunting knife, expressing a desire to kill), that conviction would have qualified as an enumerated “robbery” under § 3559(c)(2)(F)(i).
In that scenario, Cooper’s two strikes would be: the 2003 federal armed bank robbery and the 1988 federal bank robberies (which all parties agree were serious violent felonies), plus the 1981 California robbery as the third strike under the enumerated clause — without any need to count the 1982 Oregon burglaries via the residual clause.

The Tenth Circuit held that, in 2003, the law in this Circuit did permit a circumstance‑specific approach to § 3559(c)’s “robbery” clause, based primarily on:

United States v. Mackovich, 209 F.3d 1227 (10th Cir. 2000), which took a circumstance‑specific approach to § 3559(c)(3)(A)’s nonqualifying‑offense provision; and
United States v. Martinez‑Candejas, 347 F.3d 853 (10th Cir. 2003), which described Mackovich as holding that “the Taylor categorical approach is inapplicable” to determining three‑strikes “strikes.”

Although the Tenth Circuit later, in United States v. Leaverton, 895 F.3d 1251 (10th Cir. 2018), expressly held that the categorical approach applies under § 3559(c), that was a post‑sentencing clarification and did not control the “snapshot” of the law in 2003.

Because the 2003 sentencing court could have reasonably used the circumstance‑specific approach to treat the 1981 California robbery as an enumerated robbery strike, Cooper failed to prove it was more likely than not that his life sentence depended on the residual clause. Hence, his Johnson‑based § 2255 claim failed, and the denial of relief was affirmed.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. Supreme Court Residual‑Clause Cases

Johnson v. United States, 576 U.S. 591 (2015)

Johnson held that the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. ACCA enhanced penalties for certain federal firearm offenders based on prior “violent felonies,” which included, under the residual clause, offenses that otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.

The Supreme Court found that this formulation required courts to speculate about the “ordinary case” of a crime and then assess the risk posed by that hypothetical offense, a methodology that was too indeterminate to satisfy due process. Johnson announced a new substantive rule.
Welch v. United States, 578 U.S. 120 (2016)

Welch held that Johnson’s rule was substantive and retroactive on collateral review. This allowed prisoners whose sentences had been enhanced under ACCA’s residual clause to seek § 2255 relief.
Sessions v. Dimaya, 584 U.S. 148 (2018)

Dimaya extended Johnson’s reasoning to the residual clause in 18 U.S.C. § 16(b), used in immigration law to define “crime of violence” for removal purposes. That clause also required a categorical assessment of whether an offense “by its nature” involved a substantial risk of physical force being used.
United States v. Davis, 588 U.S. 445 (2019)

Davis applied Johnson and Dimaya to invalidate 18 U.S.C. § 924(c)(3)(B)’s residual clause, which defined “crime of violence” for firearm offenses as a felony that “by its nature” involved a substantial risk of force being used. The Tenth Circuit has held that Davis applies retroactively. See In re Mullins, 942 F.3d 975, 978 (10th Cir. 2019).

Collectively, these decisions form the backdrop for challenges to any statutory residual clause that uses similar “by its nature” and “risk of force” language, as § 3559(c)(2)(F)(ii) does.

2. Tenth Circuit Cases on Johnson‑Based Collateral Attacks

United States v. Washington, 890 F.3d 891 (10th Cir. 2018)

Washington articulated a critical threshold inquiry in Johnson‑based § 2255 cases: The only question is whether Defendant’s claim relies on Johnson—that is, whether the district court enhanced Defendant’s sentence by relying on the … residual clause to do so.

It made clear that not every sentencing enhancement involving “violent” or “serious” felonies implicates Johnson; only those that actually depend on the unconstitutional residual clause.
United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017)

Snyder introduced the concept of the “background legal environment” as a tool to determine what a sentencing court likely did when the original record is silent. It described that environment as a snapshot of what the controlling law was at the time of sentencing and emphasized that courts should not rely on post‑sentencing clarifications to reconstruct what the sentencing court must have done.
United States v. Driscoll, 892 F.3d 1127 (10th Cir. 2018)

Driscoll expressly held that a § 2255 movant must show, by a preponderance of the evidence, that it was use of the residual clause that led to the sentence enhancement. If, given the legal landscape at the time, there was no need for the sentencing court to use the residual clause, the movant cannot meet this burden.
United States v. Lewis, 904 F.3d 867 (10th Cir. 2018)

Lewis emphasized that this is a question of historical fact: the movant must demonstrate it is “more likely than not” that the sentencing court relied on the residual clause. Mere possibility is insufficient.
United States v. Copeland, 921 F.3d 1233 (10th Cir. 2019)

Copeland synthesized this line of cases, reiterating that the movant bears the burden of proof and that courts may look to both the sentencing record and the background legal environment to determine whether reliance on the residual clause was necessary or likely.
United States v. Hernandez, 743 F. App’x 156 (10th Cir. 2018) (unpublished) and United States v. Barela, 768 F. App’x 821 (10th Cir. 2019) (unpublished)

These unpublished decisions apply the same framework, holding that if the controlling law at the time of sentencing permitted reliance on the elements or enumerated‑offense clauses, then the movant cannot show the sentencing court was compelled to use the residual clause.

3. Tenth Circuit Cases on § 3559(c) and the Categorical vs. Circumstance‑Specific Approaches

United States v. King, 979 F.2d 801 (10th Cir. 1992)

Applying Taylor v. United States, 495 U.S. 575 (1990), King used the categorical approach to evaluate prior convictions for sentencing enhancements, looking to the elements of the statute of conviction rather than the specific facts.
United States v. Romero, 122 F.3d 1334 (10th Cir. 1997)

Romero addressed whether particular offenses constitute “serious violent felonies” under § 3559(c), focusing primarily on the elements and residual clauses. The opinion described a two‑step process: first, examine whether the offense’s statutory elements satisfy the elements clause or the residual clause; second, if so, allow the defendant to attempt to prove the nonqualifying‑offense exception.

Cooper argued that Romero implicitly mandated a categorical approach for all three clauses of § 3559(c). The Cooper panel rejected this reading, emphasizing that Romero addressed only the elements and residual clauses, not the enumerated clause.
United States v. Gottlieb, 140 F.3d 865 (10th Cir. 1998) and United States v. Oberle, 136 F.3d 1414 (10th Cir. 1998)

These cases, cited in Mackovich, characterized robbery as generally a “serious violent felony” under § 3559(c), reflecting a broad understanding of robbery as prototypical violent conduct within the three‑strikes scheme.
United States v. Mackovich, 209 F.3d 1227 (10th Cir. 2000)

Mackovich interpreted § 3559(c)(3)(A)’s “nonqualifying offense” provision, which allows a defendant to avoid a three‑strikes enhancement for a robbery if he proves, by clear and convincing evidence, that:
- No firearm or dangerous weapon was used or threatened; and
- No death or serious bodily injury resulted.
The Tenth Circuit held that the plain language of this nonqualifying clause “unmistakably requires courts to look at the specific facts underlying the prior offense,” thereby adopting a circumstance‑specific approach for that provision. Mackovich described robbery as generally a “serious violent felony,” reinforcing the sense that fact‑specific inquiry was appropriate when determining whether a particular robbery could be disqualified.
United States v. Martinez‑Candejas, 347 F.3d 853 (10th Cir. 2003)

In a different statutory context, the Tenth Circuit described Mackovich as holding 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.” 347 F.3d at 859.

Although decided after Cooper’s sentencing, this characterization is highly probative of how courts in this Circuit understood Mackovich at the time: namely, as authorizing a broad circumstance‑specific inquiry for § 3559(c) “strikes,” not limited to the nonqualifying exception.
United States v. Leaverton, 895 F.3d 1251 (10th Cir. 2018)

Leaverton is the Tenth Circuit’s first explicit holding that the categorical approach applies under § 3559(c). The court wrote:

“Both parties state the categorical approach applies under § 3559(c), although our court has not expressly considered the question. We agree.”

In a footnote, Leaverton cabined Mackovich to the separate issue of the nonqualifying clause. But this clarification came fifteen years after Cooper’s 2003 sentencing and thus cannot retroactively alter the “background legal environment” relevant to Cooper’s case.

4. Other Cited Authorities

United States v. Minjarez, 374 F. Supp. 3d 977 (E.D. Cal. 2019)

The district court cited Minjarez for the proposition that California Penal Code § 211 is not a categorical match to federal robbery statutes (§§ 2111, 2113, 2118) when the categorical approach is used, because CPC § 211 can be violated by threats to property alone — not necessarily by threats of bodily harm to a person.

This supported Cooper’s argument that, if the categorical approach had governed in 2003, his California robbery would not have qualified as an enumerated robbery strike.

B. The Court’s Legal Reasoning

1. The Gatekeeping Requirement of § 2255(h)(2)

For a second or successive § 2255 motion to be considered, it 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.”

— 28 U.S.C. § 2255(h)(2)

Cooper argued that:

Johnson and subsequent Supreme Court cases announced a new constitutional rule that invalidates residual clauses like § 3559(c)(2)(F)(ii)’s, and
This rule was made retroactive (via Welch and the Tenth Circuit’s own In re Mullins) and was previously unavailable at his 2003 sentencing and in his first § 2255 motion.

The panel sidestepped the more difficult question — whether § 3559(c)’s residual clause is indeed unconstitutional under Johnson and its progeny — by assuming arguendo that Cooper had passed the § 2255(h)(2) threshold. The decision rests instead on the independent requirement that the movant show his own sentence actually rested on the now‑challenged residual clause.

2. Burden of Proof: “More Likely Than Not” Reliance on the Residual Clause

The panel reaffirmed:

The movant bears the burden of proof.
The standard is preponderance of the evidence – i.e., “more likely than not.”
The question is historical: as a matter of fact, did the sentencing court rely on the residual clause to count a prior conviction as a qualifying predicate?

The court quoted Lewis and Driscoll:

Cooper must establish that it is more likely than not that, “as a matter of historical fact, … the sentencing court relied on the residual clause” when applying the three strikes law to Cooper.

— Cooper, slip op. at 6 (quoting Lewis, 904 F.3d at 872)

The sentencing record, however, was entirely silent on:

Which of the five noticed prior convictions the judge counted as strikes;
Which statutory clauses (enumerated, elements, residual) the judge used for each prior conviction.

This silence precluded Cooper from proving reliance on the residual clause from the record alone. The court therefore turned to the alternative method recognized in Copeland and Driscoll: examining the “background legal environment” at the time of sentencing.

3. The “Background Legal Environment” Approach

Following Snyder, the “background legal environment” is:

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 pre‑sentencing decisions.

— Cooper, slip op. at 7 (quoting Snyder, 871 F.3d at 1129)

The key inquiry is whether, given that snapshot:

the sentencing court would have needed to rely on the residual clause to find enough “serious violent felonies” for a three‑strikes sentence; or
instead, could have reached the same outcome under the enumerated or elements clauses.

If binding precedent at the time forbade the use of the enumerated or elements clauses for certain prior convictions, then a reviewing court can infer that the sentencing court must have used the residual clause. Conversely, if the law allowed the sentencing court to use enumerated or elements clauses, then the movant cannot exclude the possibility that the sentence rested on those permissible bases.

4. Application to Cooper’s Prior Convictions

The court’s strike analysis proceeded as follows:

2003 federal armed bank robbery – indisputably a “serious violent felony” and Cooper’s triggering offense (first strike).
1988 federal bank robberies (Washington) – the parties agreed these constitute a qualifying serious violent felony (second strike).
1990 Oregon robbery – excluded by sequencing. Section 3559(c)(1)(B) requires that each qualifying offense be committed after the prior qualifying conviction. Because Cooper committed the 1990 robbery before the 1988 federal bank robberies, it could not count. The panel therefore set it aside.
Two 1982 Oregon burglaries – everyone agreed these could only qualify under the residual clause. They could not serve as enumerated robberies or as offenses satisfying the elements clause.
1981 California robbery (CPC § 211) – this became the pivotal prior conviction for the third strike.

Crucially, the government did not argue that the California robbery could qualify under the elements clause. That left only the enumerated clause — “robbery (as described in section 2111, 2113, or 2118)” — as a potential non‑residual basis. Thus, the dispositive question became: under the law as it stood in 2003, could the sentencing court properly have treated the CPC § 211 conviction as an enumerated robbery under § 3559(c)(2)(F)(i)?

5. Categorical vs. Circumstance‑Specific Analysis for the California Robbery

The answer turned on whether the sentencing court would have used the:

Categorical approach: looking only to the statutory definition of CPC § 211 and asking whether it matches the generic or federal definition of robbery in §§ 2111, 2113, or 2118; or
Circumstance‑specific approach: examining the actual facts of Cooper’s 1981 offense to determine whether it was, in substance, equivalent to federal robbery as described in § 3559(c)(2)(F)(i), and whether the nonqualifying exception in § 3559(c)(3)(A) applied.

Everyone agreed on two critical points:

Under the categorical approach, CPC § 211 is not a categorical match to federal robbery, because California’s statute extends to robberies involving threats against property alone (see Cal. Penal Code § 212), whereas federal robbery statutes require at least fear of bodily harm. See Minjarez, 374 F. Supp. 3d at 989.
Under a circumstance‑specific approach, Cooper’s actual conduct — breaking into a home, tying up the resident, threatening with a hunting knife, and expressing a desire to kill — plainly satisfied the federal robbery concept and involved a dangerous weapon, thereby foreclosing the nonqualifying exception (§ 3559(c)(3)(A)).

Thus:

If the categorical approach governed in 2003, the California robbery would not have counted as an enumerated strike; and the sentencing court would have needed the residual clause (and thus the Oregon burglaries) to reach three strikes.
If a circumstance‑specific approach was permissible in 2003, then the sentencing court could have treated the California robbery as an enumerated robbery based on its specific facts, avoiding any need for the residual clause.

6. Was the Circumstance‑Specific Approach Permissible in 2003?

The panel acknowledged that the law was “somewhat unsettled” at the time of Cooper’s sentencing. It then concluded that the sentencing court could reasonably have adopted the circumstance‑specific method based on:

Mackovich, which applied a fact‑specific approach to the nonqualifying clause of § 3559(c)(3)(A) and used language suggesting robbery was “generally” a serious violent felony.
Martinez‑Candejas, which read Mackovich broadly as indicating that the Taylor categorical approach is “inapplicable” to determinations of strikes under the three‑strikes statute.

Although Leaverton later limited Mackovich to the nonqualifying clause and established the categorical approach for § 3559(c) generally, that decision came in 2018, fifteen years after Cooper’s 2003 sentencing. As Snyder warns, post‑sentencing interpretations cannot retrospectively define the “background legal environment” that the sentencing court faced.

In other words, in 2003:

There was no binding Tenth Circuit precedent requiring the categorical approach for the enumerated clause.
There was Tenth Circuit authority that could reasonably be interpreted as authorizing a circumstance‑specific approach to whether an offense was a “strike.”

Given that legal environment, it was entirely permissible for the sentencing judge to look at the actual facts of the 1981 robbery and to conclude it was a qualifying enumerated robbery under § 3559(c)(2)(F)(i).

7. Consequence: Cooper Cannot Show Residual‑Clause Reliance

Once the court concluded that the sentencing judge could have used the circumstance‑specific approach to count the California robbery as an enumerated strike, Cooper’s Johnson‑based challenge collapsed. The panel reasoned that Cooper had not shown it was more likely than not that the sentencing court:

applied the categorical approach (which would have disqualified the California robbery), and
then turned to the residual clause to rely on the 1982 Oregon burglaries for the third strike.

Instead, it remained entirely plausible — and consistent with the legal norms of 2003 — that the sentencing court:

counted the 1988 federal bank robberies as one prior strike,
counted the 1981 California robbery as another strike under the enumerated robbery clause using a circumstance‑specific analysis, and
never needed to invoke the residual clause at all.

Because Cooper could not exclude this lawful path to three strikes, he could not demonstrate that his life sentence rested on a now‑unconstitutional residual clause. Therefore, he failed to show his sentence was invalidated by any new rule of constitutional law, and § 2255 relief was properly denied.

8. Rejection of Cooper’s Reliance on Romero

Cooper argued that United States v. Romero compelled the sentencing court to use a categorical approach in 2003. He pointed to language in Romero suggesting a two‑step process for determining whether an offense is a “serious violent felony” under the elements and residual clauses of § 3559(c).

The Tenth Circuit disagreed. It emphasized:

Romero only discussed the elements and residual clauses, not the enumerated clause.
Romero did not explicitly adopt the categorical approach; it merely described the statutory language.

Thus, Romero did not provide binding precedent that would have required the sentencing court to employ the categorical approach to Cooper’s California robbery. As a result, Cooper could not rely on Romero to demonstrate that the enumerated clause was off the table in 2003.

C. Impact and Implications

1. On Johnson‑Based Challenges to § 3559(c) Sentences

The decision is a significant obstacle for prisoners in the Tenth Circuit seeking to collaterally attack older § 3559(c) three‑strikes life sentences on Johnson‑style grounds.

Key implications:

Heavy burden of proof: Movants must show it is more likely than not that the sentencing court in fact relied on § 3559(c)’s residual clause. It is not enough to show that some prior convictions counted then would no longer qualify today under current categorical‑approach precedents.
Sentencing silence favors the government: Where the sentencing record is silent, courts will rely heavily on the background legal environment. If that environment permitted reliance on the enumerated or elements clauses, the movant will rarely be able to prove actual reliance on the residual clause.
Temporal focus: Courts will evaluate the law as it existed at the time of sentencing — not as later clarified or corrected. Defendants cannot retroactively import Leaverton’s categorical‑approach holding into pre‑2018 sentencings to argue that judges must have used the residual clause.

2. On the Categorical vs. Circumstance‑Specific Debate under § 3559(c)

Although Leaverton now firmly establishes the categorical approach for § 3559(c) going forward, Cooper highlights that:

For past sentences, particularly those imposed before 2018, the Tenth Circuit may treat circumstance‑specific reasoning as not only plausible but permissible under the law as it then stood.
Post‑sentencing doctrinal refinements (like Leaverton) cannot be used to recast earlier sentencing decisions as necessarily residual‑clause‑dependent.

This has a distinct limiting effect on retroactive litigation: even if a prior conviction is not a categorical match to a listed offense (e.g., CPC § 211 as “robbery”), the sentencing judge might still have validly treated it as an enumerated robbery at the time using a fact‑specific approach.

3. On California Robbery and Federal Robbery Statutes

The panel agreed, by referencing Minjarez, that California Penal Code § 211 is overbroad as compared with federal robbery statutes when analyzed under the categorical approach: California robbery can be committed based on fear of property damage alone, whereas federal robbery statutes require fear of bodily harm.

This suggests that:

Under current law (Leaverton and modern categorical‑approach doctrine), CPC § 211 is not an automatic enumerated robbery under § 3559(c)(2)(F)(i).
However, for historical sentences, that mismatch does not necessarily translate into a successful collateral attack, because the sentencing court might validly have used a circumstance‑specific approach before the categorical‑approach rule was cemented.

4. On the Constitutionality of § 3559(c)’s Residual Clause

Cooper leaves unresolved an important substantive question: whether § 3559(c)(2)(F)(ii)’s residual clause is itself void for vagueness under Johnson, Dimaya, and Davis.

The panel explicitly stated that it did not need to decide that issue because Cooper failed at the antecedent step of proving reliance on the residual clause. Future litigants raising direct or first‑time collateral attacks may still ask whether § 3559(c)’s residual clause should be invalidated in the same way as the ACCA, § 16(b), and § 924(c) residual clauses.

5. Broader Habeas and Collateral Review Practice

More broadly, Cooper reinforces a trend in federal habeas practice:

New constitutional rules (like Johnson) are not self‑executing; they must be shown to have actually affected the movant’s sentence.
Silence in the sentencing record will typically be resolved by reconstructing what the sentencing court could have done under then‑existing law, not by speculating that it followed what is now understood to be the best reading of the statute.
Uncertainty at the time of sentencing often inures to the government’s benefit on collateral review, because it leaves room for the lawful, non‑residual route to the same sentencing outcome.

IV. Simplifying Complex Concepts

1. “Residual Clause” and Vagueness

A residual clause is a catch‑all provision that tries to define a category of crimes (such as “violent felonies” or “crimes of violence”) using general language about the risk that force will be used. These clauses typically follow lists of specific offenses (like robbery, arson, burglary) and say something like: “or any other offense that, by its nature, involves a substantial risk that physical force may be used.”

The Supreme Court has held that some of these clauses are unconstitutionally vague because:

They require judges to imagine an “ordinary case” of the crime, rather than looking at what actually happened; and
They then require a highly speculative assessment of the risk of force in that hypothetical scenario.

Due process forbids criminal laws that are so vague that they fail to give ordinary people fair notice of what conduct is prohibited or that encourage arbitrary enforcement.

2. Categorical vs. Circumstance‑Specific Approach

Categorical approach

Under this approach, a court looks only at the elements of the statute of conviction — what the law requires to convict someone — and compares them to a generic definition or to the federal offense referenced. The court does not examine the underlying facts of the defendant’s actual conduct.

If the statute of conviction covers a broader range of conduct than the generic or reference offense (for example, includes threats to property when the federal reference requires threats to persons), it is not a categorical match, and convictions under that statute do not qualify.
Circumstance‑specific approach

Here, the court looks at the actual circumstances of the defendant’s prior crime — often by examining charging documents, plea colloquies, verdict forms, or other reliable judicial records — to determine whether the particular offense fits within the federal definition, even if the statute of conviction is broader in the abstract.

The choice between these methodologies can be outcome‑determinative. In Cooper, the categorical approach would have excluded the California robbery as an enumerated strike; the circumstance‑specific approach would include it.

3. “Background Legal Environment”

The background legal environment is essentially what the law looked like at the time the defendant was sentenced. Courts reconstruct this by examining cases, statutes, and rules in place at that time, ignoring later decisions that changed or clarified the law.

This is important because:

On collateral review, we want to understand what the sentencing judge reasonably believed the law allowed or required, not what we now know with the benefit of hindsight.
If, at the time, law permitted a certain approach (like the circumstance‑specific approach in Cooper), we cannot later assume the judge followed a different approach that would have compelled use of an unconstitutional clause.

4. Burden of Proof: Preponderance of the Evidence

The preponderance of the evidence standard means that a fact is more likely true than not — greater than 50% likelihood. In the § 2255 context:

The movant must show that it is more likely than not that the sentencing court relied on the residual clause.
If competing explanations for the sentence are equally plausible (e.g., reliance on the enumerated clause vs. reliance on the residual clause), the movant loses.

V. Conclusion

United States v. Cooper is not so much a headline‑grabbing constitutional ruling as a careful, methodologically significant decision about how Johnson‑based collateral attacks operate in practice — particularly for historical three‑strikes sentences under § 3559(c).

The opinion:

Affirms that § 2255 movants bear the burden of proving, by a preponderance of the evidence, that their sentence enhancements depended specifically on an unconstitutional residual clause.
Applies the “background legal environment” concept to § 3559(c), emphasizing that courts must view the sentencing decision through the legal lens available at the time of sentencing, not through later doctrinal developments.
Concludes that, in 2003, the Tenth Circuit’s case law — particularly Mackovich as read in Martinez‑Candejas — reasonably permitted sentencing courts to employ a circumstance‑specific approach to determine whether a prior conviction was an enumerated robbery under § 3559(c)(2)(F)(i).
Holds that because the sentencing judge in Cooper’s case could have relied on that permissible, non‑residual route (the California robbery as enumerated robbery), Cooper could not meet his burden of proving actual reliance on the residual clause.

In the broader legal landscape, Cooper underscores:

The significant practical limits on Johnson‑based habeas relief, especially in second‑or‑successive § 2255 motions.
The importance of sentencing records: when they are silent, defendants must overcome the presumption that judges used any lawful avenue available at the time to reach the same sentencing outcome.
The continuing relevance of historical doctrinal uncertainty: ambiguity in the law at the time of sentencing often cuts against the movant on collateral attack, because it widens the range of lawful explanations for the sentence.

While the constitutionality of § 3559(c)’s residual clause remains an open question after Cooper, the decision decisively narrows the circumstances in which Tenth Circuit prisoners serving three‑strikes life sentences can obtain Johnson‑based relief. For practitioners, it is a reminder that success on collateral review requires not only identifying a new constitutional rule but also bridging the factual and doctrinal gap between that rule and the actual historical basis for the client’s sentence.

When Silence Speaks Against the Movant: United States v. Cooper and Johnson‑Based Challenges to § 3559(c) Three‑Strikes Sentences