United States v. Garnett Hodge
902 F.3d 420
| 4th Cir. | 2018Background
- Hodge pled guilty (2011) to possession with intent to distribute crack cocaine (21 U.S.C. § 841(a)(1)) and being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); sentencing relied on a PSR that identified three ACCA predicates and applied the 15-year ACCA mandatory minimum.
- The PSR designated three ACCA predicates: two Maryland felony cocaine possession-with-intent-to-distribute convictions (July 1992 and July 1998) and a 1998 Maryland misdemeanor reckless endangerment conviction. A separate March 1992 Maryland felony cocaine conviction appeared in the PSR’s criminal history but was not designated as an ACCA predicate.
- After Johnson v. United States (2015) invalidated the ACCA residual clause, Hodge moved under 28 U.S.C. § 2255 arguing the reckless-endangerment conviction no longer qualified, leaving only two designated predicates.
- The Government initially conceded relief but later argued—on collateral review—that the March 1992 felony could substitute as a third ACCA predicate, although it had not been designated or relied upon at sentencing.
- The district court accepted the Government’s substitution and denied § 2255 relief; the Fourth Circuit reversed, holding the Government forfeited the right to rely on a conviction not identified as an ACCA predicate at sentencing and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Hodge) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Hodge’s ACCA enhancement is invalid post-Johnson because one designated predicate (reckless endangerment) no longer qualifies | Reckless-endangerment no longer qualifies after Johnson; only two designated ACCA predicates remain, so enhancement is unlawful | The March 1992 felony (listed in PSR but not designated) can be used as a substitute third predicate | Held: Enhancement unlawful absent three designated predicates; Hodge entitled to § 2255 relief |
| Whether the Government may rely on a conviction not designated as an ACCA predicate at sentencing when defending the enhancement on collateral review | N/A (Hodge argues he lacked notice to contest such later-used conviction) | Government: It may point to any qualifying convictions in the criminal history to preserve the enhancement | Held: Government forfeited that right by failing to identify or object to the March 1992 conviction at sentencing; cannot raise it on collateral review |
| Whether a PSR’s explicit designation of certain convictions as ACCA predicates implies exclusion of others listed in the PSR | Hodge: Designation gave notice that only those listed predicates would be used; he had no obligation to challenge omitted convictions | Government: Omitted conviction was available and qualifying; omission was immaterial | Held: Designation implies intentional selection and narrows notice; defendant need not have challenged omitted convictions |
| Applicability of Pettiford and similar precedents to permit substitution of predicates on collateral review | Hodge: Pettiford is distinguishable because petitioner there had more than three designated predicates; here only three were designated and one is invalid | Government: Pettiford and related cases allow checking full record for qualifying convictions to preserve enhancement | Held: Pettiford is factually different; substitution not permitted where Government failed to identify the conviction at sentencing |
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) (held Johnson applies retroactively on collateral review)
- United States v. Pettiford, 612 F.3d 270 (4th Cir. 2010) (no relief if three remaining designated predicate convictions suffice)
- United States v. Newbold, 791 F.3d 455 (4th Cir. 2015) (discussed scope of reviewing PSR for ACCA predicates)
- United States v. Archie, 771 F.3d 217 (4th Cir. 2014) (burden at sentencing: government must prove predicate convictions by a preponderance)
- United States v. O’Neal, 180 F.3d 115 (4th Cir. 1999) (defendant’s right to notice of convictions the government will use for sentencing enhancements)
- Bryant v. Warden, FCC Coleman–Medium, 738 F.3d 1253 (11th Cir. 2013) (government cannot substitute an unmentioned prior conviction post-sentencing)
- Puckett v. United States, 556 U.S. 129 (2009) (litigants must timely object to preserve error; forfeiture doctrine applies)