Fourth Circuit:  ACCA Enhancement Based on Non-Identified Predicates in PSR is Reversible Error: Benton

In the Benton case, the Court determined that “the district court relied on prior convictions that were not identified as predicates in Benton’s presentence report and of which he had no notice at sentencing.”

FACTS:  Repeat Offender loses ACCA Challenge Post-Johnson

Benton was charged with several charges including a felon in possession of a weapon charge pursuant to 18 USC 922(g).  Benton was sentenced under the Armed Career Criminal Act, which provided for a mandatory minimum of 15 years imprisonment.  Benton’s PSR identified four predicate felonies:

“aggravated assault and battery (now known as assault and battery of a high and aggravated nature, or “ABHAN”), on October 12, 1987; assault and battery with intent to kill (“ABIK”), on September 5, 1989; involuntary manslaughter, on September 14, 1991; and distribution of crack cocaine, on September 13, 1991.”

Benton did not challenge his ACCA designation and he received life imprisonment. Later on his sentence was reduced to 360 months.  He also had two other sentences where he had been sentenced to 360 months.

Post-Johnson, Benton filed a second/successive 2255 motion “arguing that two of the four predicate felonies identified in his PSR – ABHAN and involuntary manslaughter – no longer qualify as “violent felonies” under the ACCA, leaving him without the requisite three predicates for an ACCA enhancement.”

The district court determined that two cases were qualifying predicates.  But then the court went and looked at the criminal history section of the PSR and determined that the distribution of crack cocaine was actually four separate convictions stemming from a separate arrest.  The court used a test to determine that there were four “separate and distinct criminal episodes.” As a result, the court determined that Benton still had the requisite priors for an ACCA enhancement and denied relief.  Critically, none of that evaluation was done at Benton’s original sentencing, only at the 2255 stage and Benton had no notice that it was going to go down like this.  Benton appealed.

HOLDING:  The District Court was Incorrect

Reasoning:  The court relied on United States v. Hodge, 902 F.3d 420 (4th Cir. 2018) which said 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 can be sustained by the original predicates.”  In that case the court stated that “[d]efendants have a right to “adequate notice” of the predicates the government intends to rely on to support an enhancement and the opportunity to contest them at sentencing….And that notice and opportunity are absent…“[w]here the PSR specifically designates certain convictions as ACCA predicates and declines to designate others.”...Under those circumstances, a defendant has been “notifie[d]” that he need not challenge additional convictions, even those that otherwise appear in his PSR...Indeed, it might be unwise to do so, “flagging potential predicates” that the government had not contemplated.”

In addition, this may lead to a shifting of the burden of proof:

“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 contemplated convictions do not qualify under the ACCA… That shift further disadvantages a defendant forced to contest a predicate for the first time in collateral proceedings, “unfairly depriving [him] of an adequate opportunity to respond.” 

The court held that reasoning held true here and that Benton had the right to fight these enhancements at the time of sentencing.

Further, the court held that they should use their discretion to review this sentence even in the face of the “concurrent sentencing doctrine (Benton had been sentenced to 360 months on two other counts as well).”  That 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.”

Here, the court determined that if the court was to leave his 922(g) sentence unreviewed, he could be denied any effective benefit from a sentence reduction on Counts One and Three.

The Fourth Circuit Reversed the District Court’s order denying Benton’s 2255, vacated his sentence and remanded for resentencing.