929 F.3d 1326
11th Cir.2019Background
- Tribue pled guilty in 2013 to a cocaine-distribution conspiracy and being a felon in possession of a firearm; PSI designated him an Armed Career Criminal (ACCA) based on three prior convictions listed in the PSI: delivery of cocaine (2003), fleeing and eluding (2006), and delivery of cocaine (2009).
- At sentencing Tribue’s counsel acknowledged the criminal record and did not press an objection to the ACCA enhancement; the district court adopted the PSI and sentenced Tribue to 170 months after a substantial-assistance downward departure.
- Tribue did not directly appeal. He later moved under 28 U.S.C. § 2255 asserting that Johnson invalidated the ACCA residual clause and that the 2006 fleeing-and-eluding conviction no longer qualified, so he no longer had three ACCA predicates.
- The government responded that Tribue still had three qualifying serious drug offense predicates (2003, 2007, 2009 deliveries of cocaine) and submitted a certified judgment (Shepard document) establishing a 2007 delivery conviction.
- The district court denied § 2255 relief, concluding Tribue failed to show that the residual clause caused his enhancement under Beeman because he still had three qualifying serious drug offenses; Tribue appealed.
Issues
| Issue | Tribue's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Tribue is entitled to § 2255 relief under Johnson because the ACCA residual clause was used to enhance his sentence | The PSI specifically identified three ACCA predicates including the 2006 fleeing conviction; the government did not object or rely on other convictions at sentencing and thus waived reliance on any additional predicates (e.g., 2007 delivery) | Even if the 2006 conviction no longer qualifies post-Johnson, Tribue still has at least three qualifying serious drug offenses (2003, 2007, 2009); the government did not waive reliance and may introduce Shepard documents in § 2255 proceedings | Affirmed: Tribue not entitled to relief because he still had three qualifying serious drug offenses; government did not waive reliance on the 2007 conviction |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause)
- Shepard v. United States, 544 U.S. 13 (2005) (limits evidence courts may consult to determine the nature of prior convictions)
- Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) (movant must prove ACCA enhancement was due to the residual clause and show lack of three other qualifying predicates)
- United States v. Canty, 570 F.3d 1251 (11th Cir. 2009) (government waiver of reliance on PSI facts where government expressly disclaimed reliance)
- Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013) (government conduct and sentencing findings can result in waiver of reliance on particular predicates)