958 F.3d 1148
11th Cir.2020Background
- Alex Tribue pleaded guilty in 2013 to conspiracy to distribute cocaine and being a felon in possession of a firearm and was sentenced to 170 months under the Armed Career Criminal Act (ACCA).
- The PSR identified three predicate convictions for ACCA: delivery of cocaine (2003, 2009) and Florida fleeing-and-eluding (2006); the PSR listed a 2007 delivery conviction but did not identify it as an ACCA predicate and the government did not rely on it at sentencing.
- Johnson v. United States later invalidated ACCA’s residual clause as unconstitutionally vague, and Welch made that ruling retroactive, enabling § 2255 collateral attacks to challenge ACCA-based sentences.
- Tribue filed a § 2255 motion arguing the 2006 fleeing-and-eluding conviction relied on the now-invalid residual clause, leaving fewer than three ACCA predicates; the government responded by asserting the 2007 cocaine conviction could supply the third predicate despite not having relied on it at sentencing.
- The district court adopted the government’s new predicate argument and denied relief; a unanimous Eleventh Circuit panel affirmed, and Chief Judge Martin (joined by Judge Jill Pryor) dissented from the denial of rehearing en banc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the government rely on a conviction not invoked at the original sentencing to sustain an ACCA enhancement on collateral review? | Government waived reliance by not using the 2007 conviction at sentencing; gov’t must be held to the case it presented then. | The government may rely on any convictions in the record (e.g., PSR-listed convictions) to show ACCA eligibility on collateral review. | Panel allowed the government to invoke the 2007 conviction post hoc to sustain the ACCA sentence; en banc rehearing denied (Martin dissented). |
| Who bears the burden of proof to show ACCA eligibility on collateral review? | Government bears the burden to prove a defendant qualifies for the ACCA enhancement. | Panel effectively shifts burden to defendant to disprove newly asserted predicates. | Panel’s approach treated Tribue as responsible for refuting the 2007 conviction as a predicate (dissent says this improperly shifts burden). |
| How should the Beeman two-step test be applied in Johnson § 2255 cases? | Step 1: ask whether the original sentence was imposed solely by application of the residual clause; Step 2: then consider only predicates the sentencing court relied on. | Panel read Beeman to permit examination of any convictions in the record (PSR) at step two without first determining reliance on the residual clause. | Panel skipped the step-one inquiry and focused on whether other convictions in the record could qualify; dissent argues this misapplies Beeman. |
| Does the panel’s rule create a conflict with other circuits (Fourth, Seventh)? | Denying relief based on post-sentencing substitution conflicts with Fourth and Seventh decisions that protect defendants from surprise post hoc predicate substitutions. | Panel treated those circuits as distinguishable and allowed substitution here. | Dissent contends the panel’s approach creates a circuit split (Fourth and Seventh reached opposite results); rehearing en banc was denied. |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 578 U.S. 120 (2016) (Johnson error is retroactive for collateral review)
- Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) (two-step framework for Johnson § 2255 petitions)
- Tribue v. United States, 929 F.3d 1326 (11th Cir. 2019) (panel decision affirming denial of § 2255 relief)
- United States v. Hodge, 902 F.3d 420 (4th Cir. 2018) (government cannot introduce new ACCA predicates on collateral review; protects defendant’s opportunity to respond)
- Dotson v. United States, 949 F.3d 317 (7th Cir. 2020) (refusal to permit unfair surprise from substituting an unannounced predicate at collateral stage)
- United States v. Petite, 703 F.3d 1290 (11th Cir. 2013) (government may not propose new predicate on appeal/after sentencing)
- Bryant v. Warden, FCC Coleman–Medium, 738 F.3d 1253 (11th Cir. 2013) (government waived right to a new predicate when it failed to object at sentencing)
- United States v. Canty, 570 F.3d 1251 (11th Cir. 2009) (government entitled to one opportunity to present evidence supporting an enhanced sentence)
- United States v. Lee, 586 F.3d 859 (11th Cir. 2009) (government bears burden to prove ACCA enhancement warranted)
- United States v. Martinez, 606 F.3d 1303 (11th Cir. 2010) (permitted additional evidence on remand in narrow circumstances; distinguishable on facts)