United States v. Garnett Hodge

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARNETT ALISON HODGE,
Defendant - Appellant.
__________________________________
TONY LLOYD JOHNSTON,
Amicus Curiae.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:10-cr-00441-CCE-1; 1:16-cv-00781-
CCE-LPA)
Argued: May 10, 2018 Decided: August 22, 2018
Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Wynn and Judge Thacker joined.
ARGUED: John Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Amicus Curiae. Michael Francis Joseph,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Amicus Curiae.
2
GREGORY, Chief Judge:
Garnett Alison Hodge received a mandatory sentence enhancement under the
Armed Career Criminal Act (ACCA) based on three prior convictions. One of those
convictions no longer qualifies as an ACCA predicate in light of Johnson v. United States,
135 S. Ct. 2551 (2015). When Hodge filed a motion to vacate his sentence under 28 U.S.C.
§ 2255, the Government argued and the district court found that another conviction, listed
in Hodge’s PSR but never designated as an ACCA predicate, could replace the now-invalid
predicate. We disagree. And, because Hodge has shown that his sentence is unlawful, we
reverse and remand for resentencing.
I.
In December 2010, Hodge was indicted for federal drug and firearm offenses. He
later pleaded guilty to possession with intent to distribute 8.2 grams of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1).
The U.S. Probation Office prepared a Presentence Investigation Report (PSR).
According to the PSR, Hodge qualified for a sentence enhancement under the ACCA, 18
U.S.C. § 924(e)(1). The ACCA provides that a person who violates 18 U.S.C. § 922(g)—
as Hodge did here—and has three previous convictions for a “violent felony” or a “serious
drug offense” committed on different occasions “shall be . . . imprisoned not less than
fifteen years.” Id. Hodge’s PSR identified three ACCA predicate convictions: (1) a July
1992 Maryland conviction for felony possession of cocaine with intent to distribute, a
3
serious drug offense; (2) a July 1998 Maryland conviction for felony possession of cocaine
with intent to distribute, another serious drug offense; and (3) a 1998 Maryland conviction
for three counts of misdemeanor reckless endangerment, a violent felony. 1 In a separate
“criminal history” section, the PSR listed at least seven other convictions not designated as
ACCA predicates, including another Maryland conviction for felony possession of cocaine
with attempt to distribute from March 1992.
Based on the offenses of conviction and Hodge’s criminal history, Hodge faced a
minimum of fifteen years (180 months) and a maximum of life in prison. The § 841(a)(1)
drug conviction entailed a ten-year mandatory minimum and a maximum sentence of life
under 21 U.S.C. § 841(b)(1)(B). 2 With the ACCA enhancement, the § 922(g)(1) firearm
conviction carried a fifteen-year mandatory minimum sentence. See 18 U.S.C. § 924(e)(1).
Meanwhile, the sentencing guidelines prescribed a total offense level of 31 and a criminal
history category of VI, resulting in a guideline range of 188 to 235 months.
1
Specifically, the PSR read,
Since the instant offense is a conviction for 18 U.S.C. § 922(g)(1) and the
defendant is subject to the enhanced penalties provided by 18 U.S.C.
§ 924(e)(1), the defendant is an armed career criminal . . . . {See convictions
for Felony Possession of Cocaine with Intent to Distribute (CR920256X),
Felony Possession of Cocaine with Intent to Distribute (CT931562B), and
three counts of Misdemeanor Reckless Endangerment (70137).
J.A. 160.
2
Per 21 U.S.C. § 851(a)(1), the Government had filed a timely “Information of Prior
Conviction” with the court, requesting that Hodge be subjected to this increased penalty
because he previously had been convicted of possession with intent to sell cocaine and
attempt to traffic cocaine under North Carolina law, N.C. Gen. Stat. § 90-95(a), (h)(3). See
21 U.S.C. §§ 841(b)(1)(B), 851(a)(1).
4
Neither Hodge nor the Government objected to anything in the PSR. At a
September 2011 hearing, the sentencing court adopted the PSR without change. The court
then sentenced Hodge to 188 months for the drug conviction and 204 months for the
firearm conviction, to run concurrently.
Hodge appealed, but his appeal was dismissed based on an appeal waiver in his plea
agreement. In June 2014, Hodge filed a § 2255 motion, challenging the § 841(a)(1) drug
conviction under Alleyne v. United States, 570 U.S. 99 (2013), and the § 922(g)(1) firearm
conviction under Descamps v. United States, 570 U.S. 254 (2013). The district court
dismissed this § 2255 motion on timeliness grounds.
In June 2016, this Court granted Hodge permission to file a second § 2255 motion
in light of Johnson v. United States, 135 S. Ct. 2551 (2015) (hereinafter “Johnson II” 3),
which substantially narrowed the ACCA’s definition of “violent felony,” and Welch v.
United States, 136 S. Ct. 1257 (2016), which held that Johnson II applies retroactively on
collateral review. When Hodge was sentenced, the ACCA defined “violent felony” as “any
crime punishable by imprisonment for a term exceeding one year” that either
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another [the force clause]; or
3
The Supreme Court’s 2015 decision in Johnson v. United States, 135 S. Ct. 2551(2015), is not to be confused with its 2010 decision in Johnson v. United States, 559 U.S.
133 (2010) (often referred to as “Johnson I”). The former addressed the ACCA’s residual
clause, see Johnson II, 135 S. Ct. at 2555‒56, and the latter addressed the ACCA’s force
clause, see Johnson I, 559 U.S. at 136, 138‒40. Although this case does not involve
Johnson I, we use the abbreviation Johnson II for clarity.
5
(ii) is burglary, arson, or extortion, involves use of explosives [the
enumerated crimes clause], or otherwise involves conduct that presents a
serious potential risk of physical injury to another [the residual clause].
18 U.S.C. § 924(e)(2)(B). Johnson II, however, struck down the residual clause as
unconstitutionally vague. See 135 S. Ct. at 2563. In his second § 2255 motion, Hodge
argued that his ACCA-enhanced sentence is now invalid: Without the ACCA’s residual
clause, Hodge contended, his reckless-endangerment conviction no longer qualifies as an
ACCA predicate. And, without the reckless-endangerment conviction, he has only two
ACCA predicates—the July 1992 and July 1998 Maryland convictions for felony
possession of cocaine with attempt to distribute.
Initially, the Government agreed. In its response to Hodge’s § 2255 motion, the
Government conceded that the reckless-endangerment conviction was not a “violent
felony” under the ACCA post-Johnson II. Because an ACCA sentence enhancement
requires three predicate offenses and Hodge had only two, the Government recommended
that Hodge be resentenced.
Ten days later, however, the Government reversed course. In a supplemental
response to Hodge’s § 2255 motion, the Government argued that Hodge continued to
qualify for the ACCA sentence enhancement notwithstanding Johnson II because he had a
third conviction for Maryland felony possession of cocaine with attempt to distribute from
March 1992. The Government asserted that this conviction—like Hodge’s July 1992 and
July 1998 convictions for the same offense—qualifies as an ACCA predicate, even though
the PSR did not identify it as one.
6
In December 2016, the district court denied Hodge’s second § 2255 motion. Hodge
v. United States, No. 1:16-cv-781, 2016 WL 7480397, at *1 (M.D.N.C. Dec. 29, 2016).
The court assumed without deciding that Maryland’s misdemeanor reckless-endangerment
offense no longer qualifies as an ACCA predicate. Id. at *2. But the court agreed with the
Government that Hodge’s March 1992 conviction for felony possession of cocaine with
intent to distribute does qualify as an ACCA predicate. Id. at *4. The court reasoned that,
when presented with a Johnson II-based § 2255 motion, courts “should ordinarily examine
the defendant’s entire criminal record to determine whether he has three qualifying
convictions for an ACCA-enhanced sentence.” Id. at *3. Because Hodge’s record
contained three convictions that could qualify as ACCA predicates, the court determined
that Hodge was properly sentenced as an armed career criminal under the ACCA and was
not entitled to § 2255 relief. Id. at *4.
The district court nonetheless issued a certificate of appealability, and Hodge timely
appealed.
II.
We begin by noting that Hodge’s § 2255 motion is procedurally proper. Federal
prisoners who seek relief in a second or successive § 2255 motion must show that their
claim relies on either newly discovered evidence or a new rule of constitutional law. See
28 U.S.C. § 2244(b)(2); id. § 2244(b)(4) (providing that “district court shall dismiss any
claim presented in a second or successive application that the court of appeals has
authorized to be filed unless the applicant shows that the claim satisfies the requirements”
7
in § 2244(b)(2)); United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (recognizing
that § 2255 incorporates § 2244(b)’s requirements). A Johnson II-based § 2255 motion
relies on a new rule of constitutional law, and thus clears this procedural hurdle, when the
petitioner’s ACCA-enhanced sentence “may have been predicated on application of the
now-void residual clause.” Winston, 850 F.3d at 682. Here, the Government has conceded
that Hodge’s ACCA enhancement was predicated on application of the residual clause
because Hodge’s Maryland reckless-endangerment conviction—one of the three predicate
convictions supporting that enhancement—“only could qualify as a ‘violent felony’ under
the ‘residual clause.’” J.A. 122. We therefore proceed to the merits of the motion.
III.
To prevail on a § 2255 motion to vacate, the petitioner must show that his sentence
is unlawful on one of the grounds specified in § 2255(b). United States v. Pettiford, 612
F.3d 270, 277 (4th Cir. 2010) (citing United States v. Hadden, 475 F.3d 652, 661 (4th Cir.
2007)). Specifically, the petitioner must demonstrate that “the judgment was rendered
without jurisdiction,” “the sentence imposed was not authorized by law or otherwise open
to collateral attack,” or “there has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C.
§ 2255(b). Thus, the question before us is whether Hodge can show that his ACCA-
enhanced sentence is unlawful where the sentencing court relied on three ACCA predicate
convictions, one of those three predicates is no longer valid, and the Government has
8
pointed to yet another potential ACCA predicate conviction that was listed in his PSR but
never designated nor relied upon as an ACCA predicate.
The district court concluded that he could not. We review that determination de
novo. See United States v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017).
A.
A sentence is unlawful within the meaning of § 2255 when it was enhanced under
the ACCA based on three ACCA predicate convictions and one or more of those predicates
is invalid. See United States v. Newbold, 791 F.3d 455, 457, 461, 464 (4th Cir. 2015); see
also United States v. Middleton, 883 F.3d 485, 487, 493 (4th Cir. 2018) (granting § 2255
relief where sentencing court had imposed ACCA sentence enhancement based on three
predicate convictions, and post-Johnson II, one of those convictions no longer qualified as
ACCA predicate).
Hodge’s ACCA-enhanced sentence rests on the three convictions designated in his
PSR as ACCA predicates—the July 1992 and July 1998 Maryland possession-with-intent-
to-distribute-cocaine convictions and the Maryland reckless-endangerment conviction.
The U.S. Probation Office could have designated additional convictions as ACCA
predicates in the PSR but, for whatever reason, it chose not to. And the Government could
have asked the sentencing court to recognize additional convictions as ACCA predicates
but, for whatever reason, it likewise chose not to. Absent any objection, the sentencing
court adopted the PSR’s finding that Hodge had three, and only three, ACCA-qualifying
predicates, and it applied the ACCA’s fifteen-year mandatory minimum sentence on that
basis.
9
Under Johnson II, one of those three ACCA predicates—the Maryland reckless-
endangerment conviction—cannot support an ACCA sentence enhancement. Johnson II
held that increasing a defendant’s sentence based on a conviction that qualifies as a violent
felony only under the ACCA’s residual clause violates the Constitution’s guarantee of due
process. 135 S. Ct. at 2563. Maryland reckless endangerment constitutes a “violent
felony” only under the ACCA’s residual clause. The Government has conceded as much,
and we agree. See Middleton, 883 F.3d at 498 (Floyd, J., writing for the plurality) (“[T]he
ACCA force clause [] requires a higher degree of mens rea than recklessness.”); Jones v.
State, 745 A.2d 396, 406 (Md. 2000) (“The elements of a prima facie case of reckless
endangerment are: 1) that the defendant engaged in conduct that created a substantial risk
of death or serious physical injury to another; 2) that a reasonable person would not have
engaged in that conduct; and 3) that the defendant acted recklessly.”); Minor v. State, 605
A.2d 138, 141 (Md. 1992) (“[G]uilt under the [reckless-endangerment] statute does not
depend upon whether the accused intended that his reckless conduct create a substantial
risk of death or serious injury to another.”). Thus, by imposing a fifteen-year mandatory
minimum sentence based in part on the reckless-endangerment conviction, the sentencing
court violated Hodge’s due process rights. See Johnson II, 135 S. Ct. at 2563.
Accordingly, we find that Hodge has carried his burden of demonstrating that his
ACCA-enhanced sentence is unlawful.
B.
We reject the Government’s attempt to revive Hodge’s ACCA enhancement by
arguing for the first time, on collateral review, that the March 1992 possession-with-intent-
10
to-distribute-cocaine conviction could serve as a substitute predicate. The Government
failed to provide Hodge with sufficient notice of its intent to use this conviction to support
an ACCA enhancement. Therefore, the Government has lost its right to use the conviction
to prevent Hodge from obtaining relief now.
1.
Defendants have “a right to adequate notice of the government’s plan to seek [an
ACCA] enhancement and of the convictions that may support that enhancement.” United
States v. O’Neal, 180 F.3d 115, 125‒26 (4th Cir. 1999) (citations omitted). Such notice is
necessary to give the defendant “an opportunity to contest the validity or applicability of
the prior convictions upon which [the] statutory sentencing enhancement is based.” United
States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000). This is typically done by listing the
supporting convictions in the defendant’s PSR. See Fed. R. Crim. P. 32(d); O’Neal, 180
F.3d at 126.
Where the PSR specifically designates certain convictions as ACCA predicates and
declines to designate others, it notifies the defendant that only the designated predicates
will be used to support the ACCA enhancement. Indeed, this express identification of some
convictions as ACCA predicates implies an intentional exclusion of the others. See, e.g.,
Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861, 865 (4th Cir. 2001) (applying doctrine
of expressio unius est exclusio alterius); see also NLRB v. SW Gen., Inc., 137 S. Ct. 929,
940 (2017) (“If a sign at the entrance to a zoo says ‘come see the elephant, lion, hippo, and
giraffe,’ and a temporary sign is added saying ‘the giraffe is sick,’ you would reasonably
assume that the others are in good health.”). And the PSR’s apparently intentional
11
exclusion of some convictions from the group of convictions supporting an enhancement
tells the defendant that he need not challenge the excluded convictions. Requiring
defendants to object to these excluded convictions in anticipation of arguments the
Government might make in a subsequent proceeding would undermine the adversarial
process: It would place defense counsel in the precarious position of flagging potential
predicates that neither the U.S. Probation Office nor the Government had contemplated,
likely to the defendant’s detriment.
Here, because the PSR designated only three convictions as ACCA predicates,
Hodge did not have adequate notice that additional convictions would be used to support
his ACCA sentence enhancement. The PSR plainly excluded the March 1992 possession-
with-intent-to-distribute-cocaine conviction from the group of designated ACCA
predicates—even though the group of designated predicates included two convictions for
the same offense. That the March 1992 conviction was for the same offense as two
designated convictions strongly suggests that its exclusion was deliberate. See Barnhart v.
Peabody Coal Co., 537 U.S. 149, 168 (2003) (explaining that expressio unius doctrine
applies with greatest force “when the items expressed are members of an ‘associated group
or series,’ justifying the inference that items not mentioned were excluded by deliberate
choice, not inadvertence” (quoting United States v. Vonn, 535 U.S. 55, 65 (2002))). 4 And
4
The Government suggests that the PSR failed to designate the March 1992
conviction as an ACCA predicate only because doing so was unnecessary; at the time,
Hodge had three valid ACCA-qualifying convictions without it. But the U.S. Probation
Office often designates more than three convictions as ACCA predicates. See, e.g.,
Winston, 850 F.3d at 680 (four); United States v. White, 836 F.3d 437, 440 (4th Cir. 2016)
12
nothing in the sentencing proceedings indicated otherwise: The Government never
objected to the PSR, and the sentencing court never mentioned the March 1992 conviction.
Moreover, the March 1992 conviction carried zero criminal history points. So not only did
the PSR convey that this conviction would not be used to support an ACCA enhancement,
but it also conveyed that the conviction would not be used in calculating Hodge’s criminal
history category and Sentencing Guidelines range.
In sum, when the Government or the sentencing court chooses to specify which of
the convictions listed in the PSR it is using to support an ACCA enhancement, it thereby
narrows the defendant’s notice of potential ACCA predicates from all convictions listed in
the PSR to those convictions specifically identified as such.
2.
Because the PSR did not designate the March 1992 possession-with-intent-to-
distribute-cocaine conviction as an ACCA predicate, and the Government never objected
to the PSR’s characterization of Hodge’s prior convictions, the Government cannot use the
March 1992 conviction to preserve Hodge’s ACCA enhancement on collateral review.
A “thorough” PSR is “essential in determining the facts relevant to sentencing.” See
U.S.S.G. § 6A1.1 (commentary). Both the defendant and the Government are required to
make any objections they may have to the information in the PSR at or before sentencing.
Fed. R. Crim. P. 32(f); U.S.S.G. § 6A1.2(b); see also United States v. Canty, 570 F.3d
1251, 1256 (11th Cir. 2009) (“We require litigants to make all their objections to a
(four); United States v. Burleson, 815 F.3d 170, 171 (4th Cir. 2016) (five); Pettiford, 612
F.3d at 273 (initially eight but, after objection, five).
13
sentencing court’s findings of fact, conclusions of law, and the manner in which the
sentence was imposed at the initial sentencing hearing. The rule applies to the defense and
the prosecution alike.” (citations omitted)). This requirement reflects the general principle
that, “[i]f a litigant believes that an error has occurred (to his detriment) during a federal
judicial proceeding, he must object in order to preserve the issue.” Puckett v. United States,
556 U.S. 129, 134 (2009); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 357 (2006)
(explaining that “the basic framework of an adversary system . . . require[s] parties to
present their legal claims at the appropriate time for adjudication.”).
Generally, a defendant’s failure to challenge the PSR’s designation of a particular
conviction as an ACCA predicate in a timely manner bars him from raising such a
challenge on collateral review. See Sanchez-Llamas, 548 U.S. at 351; United States v.
Maybeck, 23 F.3d 888, 891 (4th Cir. 1994). We see no reason to hold the Government to
a different standard. Indeed, the Supreme Court has recently stated that “the public
legitimacy of our justice system relies on procedures that are neutral, accurate, consistent,
trustworthy, and fair.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018)
(internal quotation marks and citation omitted).
Many of the reasons courts have cited for enforcing the forfeiture rule against
defendants apply equally to the Government’s failure to timely object. For one, such
enforcement “prevents a litigant from ‘sandbagging’ the court—remaining silent about his
objection and belatedly raising the error only if the case does not conclude in his favor.”
Puckett, 556 U.S. at 134. And “sandbagging is not the only evil to be feared. What is to
be feared even more is a lessening of counsel’s diligent efforts” to bring issues to the court’s
14
attention. Henderson v. United States, 568 U.S. 266, 286 (2013) (Scalia, J., dissenting).
Not to mention, “it is unfair to allow parties to surprise one another with new arguments
that they did not make at the appropriate procedural juncture.” United States v. Fernandez-
Jorge, 894 F.3d 36, 54 n.16 (1st Cir. 2018).
Here, the Government “has already been given one full and fair opportunity to offer
whatever” support for Hodge’s ACCA enhancement “it could assemble.” See United
States v. Parker, 30 F.3d 542, 553 (4th Cir. 1994). Nothing precluded the Government
from asking the U.S. Probation Office or the sentencing court to designate the March 1992
conviction as an ACCA predicate during the sentencing proceedings. “Having failed to
seize that opportunity,” the Government “should not be allowed to introduce” that
conviction as an additional predicate for the first time on collateral review. See id.Permitting the Government to use such latent convictions for the first time “at this
stage would unfairly deprive petitioner[s] of an adequate opportunity to respond.” Cf.
Giordenello v. United States, 357 U.S. 480, 488 (1958). Whereas at sentencing the
Government has the burden of proving by a preponderance of the evidence that the
defendant has three prior ACCA-qualifying convictions committed on different occasions,
United States v. Archie, 771 F.3d 217, 223 (4th Cir. 2014), on collateral review the
defendant has the burden of proving that the convictions supporting his ACCA
enhancement are infirm, see Pettiford, 612 F.3d at 277‒78. Moreover, the opportunities
for review of a habeas court’s decision regarding the use of a particular conviction as an
ACCA predicate are far more limited than the opportunities for review of a sentencing
court’s decision regarding the same. See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice
15
or judge issues a certificate of appealability, an appeal may not be taken to the court of
appeals from . . . the final order in a proceeding under section 2255.”).
We therefore hold that the Government must identify all convictions it wishes to
use to support a defendant’s ACCA sentence enhancement at the time of sentencing. The
Government cannot identify only some ACCA-qualifying convictions at sentencing—
thereby limiting the defendant’s notice of which convictions to contest—and later raise
additional convictions to sustain an ACCA enhancement once the burden of proof has
shifted to the defendant. Here, the PSR designated some but not all of Hodge’s prior
convictions as ACCA predicates. The Government endorsed this selection of predicate
convictions by not objecting to it at sentencing. We will not allow the Government to
change its position regarding which convictions support Hodge’s ACCA enhancement now
that one of its original choices—the reckless-endangerment conviction—cannot do the job.
Notably, the Eleventh Circuit has reached the same conclusion. In Bryant v.
Warden, FCC Coleman-Medium, the court considered whether a defendant could bring a
habeas petition after a change in the law precluded one of the three convictions supporting
his ACCA sentence enhancement from qualifying as an ACCA predicate. 738 F.3d 1253,
1256‒57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Director of
Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017). The government argued
that a prior burglary conviction, not previously identified as an ACCA predicate, could
replace the now-invalid predicate. Id. at 1279. The Eleventh Circuit disagreed:
The government never objected to [the district court’s finding that the
defendant had only three ACCA predicates]. Despite repeated opportunities
to do so at sentencing, the government also never suggested at any point that
16
Bryant’s 1988 burglary conviction could serve as [an ACCA]-qualifying
felony. . . . Therefore, we deny the government’s request to substitute the
burglary conviction.
Id. (citations omitted). In a similar case, where the defendant challenged an ACCA
predicate conviction not on collateral review but on direct appeal, the Eleventh Circuit
stated,
The PS[R]—and the district court—relied only on the other three felony
convictions in support of the ACCA enhancement, and the government at
sentencing never advanced an argument that any other prior conviction listed
in the PS[R] supported an enhanced sentence. The government cannot offer
for the first time on appeal a new predicate conviction in support of an
enhanced ACCA sentence. The argument should have been made prior to or
during sentencing, allowing [the defendant] the opportunity to object and
offering the sentencing court an opportunity to fairly consider the issue in the
first instance.
United States v. Petite, 703 F.3d 1290, 1292 n.2 (11th Cir. 2013), abrogated on other
grounds by Johnson II, 135 S. Ct. 2551. 5
C.
In denying Hodge relief, the district court relied primarily on our decision in United
States v. Pettiford, 612 F.3d 270 (4th Cir. 2010). But Pettiford rested on materially
different facts.
5
Ironically, the Government argues that Hodge “has defaulted by not objecting to
the [March 1992] conviction at sentencing, on direct appeal, or in his first § 2255 motion.”
Gov’t Br. 8. But, as amicus curiae Tony Johnston explained, this argument misses the
mark. Hodge is not challenging the conviction itself—or raising any issue that could have
been litigated at sentencing. Rather, he is arguing that in this § 2255 proceeding, the
Government cannot rely on any conviction not previously designated as an ACCA
predicate to support his current sentence.
17
There, we considered whether a § 2255 petitioner “should have been awarded
habeas relief and had his sentence reopened on the ground that two of the five convictions
used to support his sentence were later vacated.” Id. at 277. The petitioner’s PSR had
designated five prior convictions as ACCA predicates. Id. at 273. After a state court
vacated two of those five convictions, the petitioner had filed a § 2255 motion, challenging
his ACCA sentence enhancement. Id. at 274. We held that a habeas petitioner is not
“entitled to § 2255 relief after successfully attacking some of his predicate sentences if
those vacated convictions are not necessary for the armed career criminal designation.” Id.
at 277, 280. Specifically, we found that the petitioner could not challenge his ACCA
sentence enhancement because he had three remaining ACCA predicate convictions to
support it.
Here, Hodge is entitled to § 2255 relief because his reckless-endangerment
conviction was necessary for his armed career criminal designation. Unlike the PSR in
Pettiford, which designated five ACCA predicates, Hodge’s PSR designated only three
ACCA predicates. See id. at 273. When Johnson II invalidated the reckless-endangerment
conviction as a predicate for Hodge’s ACCA enhancement, only two designated ACCA
predicates remained. And two predicate convictions cannot sustain a fifteen-year
mandatory minimum sentence under the ACCA. See 18 U.S.C. § 924(e)(1). 6
6
Certainly, the invalidation of a predicate conviction does not “automatically
entitle[] a petitioner to habeas relief without further inquiry.” Pettiford, 612 F.3d at 278.
But further inquiry here demonstrates that Hodge is entitled to relief: Without the reckless-
endangerment conviction, the Government lacked the requisite number of ACCA
predicates to save Hodge’s enhanced sentence.
18
In short, Pettiford simply did not address the question presented here—whether the
government may use a conviction never before designated as an ACCA predicate to support
an ACCA sentence enhancement on collateral review. Indeed, in Pettiford, we repeatedly
referred to the defendant’s three remaining convictions as “predicate convictions,” giving
weight to the fact that the convictions previously had been designated as ACCA predicates.
See, e.g., 612 F.3d at 278 (“After the vacatur of the two 2002 convictions, three predicate
convictions remained in Pettiford’s record.” (emphasis added)); id. at 280 (“Pettiford never
challenged his three remaining predicate convictions at sentencing or on direct appeal[.]”
(emphasis added)); id. (“Pettiford maintains that cause existed to excuse his default because
he had no legal basis to challenge the predicate convictions at the original sentencing.”
(emphasis added)). As explained above, designating a conviction as an ACCA predicate
has significance, and the Government’s decision to designate only three ACCA predicates
here (or not to designate the March 1992 conviction as such) makes this case fundamentally
different. 7
IV.
For the foregoing reasons, we reverse the district court’s decision denying Hodge’s
§ 2255 motion to vacate, and we remand for resentencing.
REVERSED AND REMANDED
7
The district court also cited to our opinion in United States v. Newbold, 791 F.3d
455 (4th Cir. 2015), to support its decision. While Newbold does contain language that
could be read as advising district courts to review the entire PSR for ACCA-qualifying
convictions prior to granting § 2255 relief, the issue was not squarely presented, and that
language was not necessary to Newbold’s holding. See 791 F.3d at 459 & n.5.
19