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Sentencing decisions limit ACCA collateral review

Where the government chooses at sentencing to specify which of the convictions listed in the presentence report support an enhancement under the Armed Career Criminal Act, or ACCA, it cannot rely on collateral review on ACCA predicates that were not identified at sentencing to preserve an enhancement that can no longer be sustained.


Robert Benton Jr. was convicted of multiple offenses. For one of those offenses, possession of a firearm by a convicted felon, Benton was sentenced to 30 years’ imprisonment under the ACCA, which applies when a defendant has three or more prior convictions for a “violent felony” or “serious drug offense.” Benton filed a 28 U.S.C. § 2255 motion seeking to vacate his sentence, arguing that in light of intervening Supreme Court decisions narrowing the definition of “violent felony,” he no longer has three qualifying predicate convictions. The district court denied relief.


In United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), this court 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 can be sustained by the original predicates. Benton argues that under Hodge, it was improper in these collateral proceedings to treat as four separate predicates the Sept. 13, 1991, drug arrest listed as a single predicate in his pre-sentence report, or PSR. The court agrees.

Benton’s PSR specifically designated four ACCA predicates, listing the Sept. 13, 1991, drug arrest as a single predicate conviction. It is true, as the government argues, that the additional convictions it seeks to rely on now can be found in the criminal history section of Benton’s PSR. But that was true in Hodge, as well, and the very point of this court’s decision in that case: When the government “chooses to specify which of the convictions listed in the PSR it is using to support an ACCA enhancement,” it narrows the range of “potential ACCA predicates from all convictions listed in the PSR to those convictions specifically identified as such.”

Just as in Hodge, the “apparently intentional exclusion of some convictions” left Benton without notice that the government later might use those same convictions to support an ACCA enhancement. And lacking such notice, Benton had no reason at sentencing to argue – and perhaps good reason not to argue – that the overlooked convictions might qualify as four separate predicate offenses.

The government also suggests that enforcing Benton’s right to notice in this case would be an empty formality. The court disagrees. The number of predicate offenses arising from an arrest is an important component of adequate notice. A single arrest that leads to multiple convictions is likely to implicate the ACCA’s requirement that predicate offenses be “committed on occasions different from one another” – a requirement that often entails a factually and legally complex analysis. Indeed, the district court here found that the four convictions listed in the PSR’s criminal history section constituted separate offenses only after a thorough examination of documents and application of this court’s multi-factored test.

Under Hodge, that crucial inquiry should have taken place at sentencing, not on collateral review: Benton is entitled to an opportunity to argue against ACCA predicates “at the time of sentencing,” when the government bears the burden of showing that a single arrest is for separate and distinct criminal offenses. The government, in short, has offered no meaningful ground for distinguishing Hodge from this case.

The government nevertheless contends that under the concurrent sentence doctrine, this court need not review Benton’s § 922(g) sentence. Along with his 360-month sentence under § 922(g), Benton is serving two other concurrent 360-month sentences, for his convictions on Counts One and Three. As a result, the government reasons, a reduction in Benton’s § 922(g) sentence could have no effect on his overall sentence, so no purpose is served by reviewing that sentence on appeal. The court disagrees.

A court may not decline to review a sentence where the defendant may suffer adverse collateral consequences if the sentence is left unreviewed. Here, it appears that, if the court were to leave Benton’s § 922(g) sentence unreviewed, he could be denied any effective benefit from a First Step Act sentence reduction on Counts One and Three.

Reversed, vacated and remanded.

United States v. Benton, Case No. 19-7471, Jan. 24, 2022. 4th Cir. (Harris), from DSC at Florence (Currie). Shari Silver Derrow for Appellant. Michael Rhett DeHart for Appellee. VLW 022-2-019. 12 pp.

VLW 022-2-019

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