Fourth Circuit: Convictions Identified in PSR but Not Relied Upon as Predicates for ACCA Enhancement at Sentencing Cannot Be Substituted for Subsequently Disqualified Original Predicate Convictions on Collateral Review
by Douglas Ankney
The U.S. Court of Appeals for the Fourth Circuit held that an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”) cannot be preserved on collateral review by treating as four separate qualifying predicate offenses stemming from a drug arrest that was identified as a single predicate offense in the presentence report (“PSR”) at Robert Benton, Jr.’s original sentencing proceeding.
Benton was convicted of six counts: Counts 1 through 3 were cocaine related; Count 5 was attempting to kill a witness to prevent testimony; Count 6 was using a firearm in relation to a crime of violence; and Count 4 (the subject of this opinion) was possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).
On each of Counts 1, 3, and 4, Benton was sentenced to concurrent terms of 360 months in prison. On Counts 2 and 5, he was sentenced to terms of 240 months’ imprisonment to be run concurrent with the 360 months. On Count 6, he was sentenced to a consecutive term of 60 months for a total sentence of 420 months’ imprisonment.
Ordinarily, the maximum term of imprisonment for a § 922(g) violation is ten years. But the ACCA enhancement allows a sentence of 15 years to life upon conviction of a § 922(g) violation. The enhancement may be imposed on defendants who have at least three prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1).
At his sentencing, Benton’s PSR identified four predicate felonies: (1) aggravated assault and battery (now known as assault and battery of a high and aggravated nature or “ABHAN”) from October 1987; (2) assault and battery with intent to kill (“ABIK”) from September 1989; (3) involuntary manslaughter from September 1991; and (4) distribution of crack cocaine from September 1991.
In 2016, Benton filed a 28 U.S.C. § 2255 motion, arguing that pursuant to Johnson v. United States, 576 U.S. 591, (2015), his ABHAN and involuntary manslaughter convictions were no longer qualifying “violent felonies” under the ACCA. Consequently, he no longer qualified for an enhanced sentence because he didn’t have three qualifying predicate offenses.
The U.S. District Court for the District of South Carolina agreed that the two predicates Benton identified no longer qualify as “violent felonies” under the ACCA. But the District Court concluded that the ABIK and distribution of crack cocaine offenses remained qualifying predicates under Johnson.
Importantly, the District Court determined that the September 1991 crack distribution arrest actually involved four convictions related to crack cocaine. Applying the five-factor test of United States v. Linney, 819 F.3d 747 (4th Cir. 2016) (setting forth test for determining whether predicate offenses were committed on occasions different from one another), the court relied on the criminal history section of Benton’s PSR, which contained additional details about the September 1991 arrest, viz., that the four convictions stemming from the arrest were for offenses that occurred on different days over the course of several months. The District Court denied Benton’s § 2255 motion, finding that his ABIK conviction and the now “four” crack cocaine convictions satisfied the necessary three predicate offenses of the ACCA. Benton appealed.
The Fourth Circuit observed that in United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), it held that the Government cannot rely, on collateral review, on ACCA predicates that were not identified at sentencing in order to preserve an enhancement that no longer could be sustained by the original predicates. The Hodge Court held that “the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence at the time of sentencing.” The Court stated that Hodge controls the outcome of this case.
Like Benton, Hodge had filed a § 2255 motion to vacate his ACCA sentence following the Supreme Court’s Johnson decision. Hodge’s original PSR identified three ACCA predicates. On collateral review, one of those predicates was disqualified, and the Government for the first time pointed to an additional conviction that had been noted in the criminal history section of Hodge’s PSR to support the enhancement. The Hodge Court held that this substitution is impermissible because defendants have a right to “adequate notice” of the predicates the Government intends to rely on to support an enhancement and a right to an opportunity to contest them at sentencing. Id. According to the Hodge Court, that notice and opportunity are absent “where the PSR specifically designates certain convictions as ACCA predicates and declines to designate others” because that signals to the defendant that he doesn’t need to challenge certain convictions even though they appear in his PSR.
Furthermore, the Hodge Court explained that at sentencing the Government bears the burden of proving that the defendant has three prior ACCA-qualifying convictions committed on different occasions, but in collateral proceedings, the burden shifts to the defendant, who must prove that the contemplated convictions do not qualify under the ACCA. United States v. Pettiford, 612 F.3d 270 (4th Cir. 2010). That shift disadvantages a defendant forced to contest a predicate for the first time in collateral proceedings, “unfairly depriving him of an adequate opportunity to respond.” Hodge.
Turning back to the present case, the Court stated that “Hodge and its reasoning apply straightforwardly here.” Like in Hodge, the Government argues that additional convictions that were contained in Benton’s PSR, but not relied upon as qualifying ACCA predicates at sentencing, can be substituted for those predicates that have been subsequently disqualified. And based on the same rationale that that argument failed in Hodge, it similarly fails in this case, the Court ruled.
Furthermore, the Court rejected the Government’s invitation to overturn Hodge as wrongly decided. Instead, the Court reaffirmed that “Hodge is binding precedent … and its application compels the conclusion that there has been a Hodge error in this case.”
The Court also rejected the Government’s argument that vacating Benton’s 360-month § 922(g) sentence would have no overall effect on his sentence because the § 922(g) sentence was run concurrent with his remaining sentences. The Court acknowledged that the concurrent sentence doctrine “authorizes a court to leave the validity of one concurrent sentence unreviewed when another is valid and carries the same or greater duration of punishment so long as there is no substantial possibility that the unreviewed sentence will adversely affect the defendant.” United States v. Charles, 932 F.3d 153 (4th Cir. 2019). However, there’s an important exception to the doctrine where the defendant may be subjected to adverse collateral consequences if the sentence were left unreviewed. Id. In such cases, courts may not decline to review a sentence, the Court stated.
The Charles Court applied the exception to the concurrent sentence doctrine because the defendant was eligible for a possible sentence reduction under the First Step Act (“FSA”), so leaving the challenged sentence unreviewed would impose adverse collateral consequences on the defendant by depriving him of the benefit of a sentence reduction under the FSA. For the same reasons, the Court determined that the exception applies to Benton because if his § 922(g) sentence were left unreviewed, it could affect his ability to benefit from FSA sentence reduction on Count 1 and Count 3.
Accordingly, the Court reversed the District Court’s order denying Benton’s § 2255 motion, vacated his § 922(g) sentence, and remanded for resentencing. See: United States v. Benton, 24 F.4th 309 (4th Cir. 2022).
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