United States v. Jeffrey Bentley, 49 F.4th 275

Background

In 2005 Bentley pleaded guilty to being a felon in possession of a firearm and to using/carrying a firearm during a crime of violence, and admitted he had “three previous convictions for a violent felony” for ACCA purposes; plea memorandum listed three specific prior convictions (one Delaware reckless-endangering, two Virginia robberies).
The presentence report (PSR), adopted without objection at sentencing, listed 18 prior convictions including six North Carolina breaking-and-entering convictions; the court imposed ACCA's mandatory minimum (15 years) plus a consecutive 7-year term (total 22 years).
In 2015 Johnson v. United States held ACCA’s residual clause void for vagueness; Bentley filed a §2255 motion arguing his plea-listed priors no longer qualified and thus his sentence implicated the residual clause.
The Government replied that even if the plea-listed priors failed post-Johnson, the six North Carolina breaking-and-entering convictions in the PSR qualified as generic burglary under ACCA’s enumerated-offenses clause. Bentley did not contest the PSR at sentencing.
The District Court held the NC convictions qualified as ACCA burglaries and that any Johnson error was harmless; Bentley appealed arguing (inter alia) the court could not rely on PSR-listed predicates not in the plea memorandum and also contested the record showing those NC convictions fell under the qualifying subsection. The Third Circuit affirmed.

Issues

Issue	Bentley's Argument	Government's Argument	Held
Whether district court may rely on ACCA predicates not listed in the plea memorandum on collateral review	The plea memorandum’s list was exclusive; due process requires notice and the Government must identify all predicates at sentencing — PSR-listed predicates cannot be used on §2255 review	The PSR, adopted without objection, put the NC burglary convictions "on the menu" at sentencing; Government may rely on predicates reasonably presented at the original proceeding	Court: May consider predicates that were reasonably on the menu during the original case (charging documents, plea memos, PSR, sentencing record). Rejected Hodge’s per se exclusion and rejected open-ended predicate swapping.
Standard for harmlessness when Johnson error alleged on collateral review	Bentley: If his plea-listed priors required the residual clause, the sentence implicated Johnson and is invalid	Government: If at least three qualifying predicates existed in the record (including PSR-listed NC burglaries), any reliance on residual clause was harmless	Court: Applies Brecht harmless-error standard; if PSR-listed qualifying predicates were reasonably before the sentencing court, the residual-clause error is harmless.
Whether North Carolina breaking-and-entering convictions (§ 14-54(a)) qualify as generic burglary under ACCA	Bentley: (on appeal) challenges sufficiency/clarity of records to show convictions were under subsection (a) (felony breaking/entering), not subsection (b) (misdemeanor)	Government: Conviction records (felony judgments, docket entries) reasonably show Class H felony / BE&L convictions under subsection (a)	Court: Bentley forfeited the record challenge by not objecting below; even reviewed for clear error, district court’s finding was plausible and affirmed — NC convictions qualify as ACCA burglary.
Whether the Government may freely substitute new ACCA predicates on collateral review	Bentley: Implicit argument that swapping predicates post hoc is impermissible and violates notice/due process	Government: Urged rule allowing substitution of new predicates so long as an ACCA enhancement was generally sought at sentencing	Court: Rejects broad predicate-swapping rule (Tribue); substitutions are limited — predicates must have been reasonably on the menu at the original proceeding; government may present new predicates at resentencing but not on §2255 harmlessness review absent adequate notice on direct review.

Key Cases Cited

Johnson v. United States, 576 U.S. 591 (2015) (residual clause of ACCA void for vagueness)
Welch v. United States, 578 U.S. 120 (2016) (Johnson error is retroactively applicable on collateral review under §2255)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for ACCA predicates)
James v. United States, 550 U.S. 192 (2007) (pre-Johnson ordinary-case approach to residual clause)
Chambers v. United States, 555 U.S. 122 (2009) (highlighting difficulty of ordinary-case analysis)
Peppers v. United States, 899 F.3d 211 (3d Cir. 2018) (applied Brecht harmless-error standard to Johnson claims on §2255)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard for collateral review: substantial and injurious effect)
Hodge v. United States, 902 F.3d 420 (4th Cir. 2018) (held government must identify all ACCA predicates at sentencing to rely on them on collateral review)
Tribue v. United States, 929 F.3d 1326 (11th Cir. 2019) (allowed government to rely on alternate PSR-listed predicates on collateral review)
Dotson v. United States, 949 F.3d 317 (7th Cir. 2020) (factbound allowance to rely on predicates not listed in PSR where reasonably before the court)
United States v. Mungro, 754 F.3d 267 (4th Cir. 2014) (interpreting North Carolina §14-54(a) as not broader than generic burglary)
White v. United States, 8 F.4th 547 (7th Cir. 2021) (permitted reliance on alternate predicates shown in the record though not listed in PSR)
Shepard v. United States, 544 U.S. 13 (2005) (limited record materials may be used under the modified categorical approach)