UNITED STATES OF AMERICA v. GARNETT ALISON HODGE
No. 17-6054
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 22, 2018
PUBLISHED
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,
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
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
The U.S. Probation Office prepared a Presentence Investigation Report (PSR). According to the PSR, Hodge qualified for a sentence enhancement under the ACCA,
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
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 filеd a
In June 2016, this Court granted Hodge permission to file a second
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause]; or
(ii) is burglary, arson, or extortion, involves use оf explosives [the enumerated crimes clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].
Initially, the Government agreed. In its response to Hodge‘s
Ten days later, however, the Government reversed course. In a supplemental response to Hodge‘s
In December 2016, the district court denied Hodge‘s second
The district court nonetheless issued a certificate of appealability, and Hodge timely appealed.
II.
We begin by noting that Hodge‘s
III.
To prevail on a
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
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 additiоnal 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
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 оf 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 рrocess 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-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 lоst 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
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
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 inadvеrtence” (quoting United States v. Vonn, 535 U.S. 55, 65 (2002))).4 And
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 conviсtions, 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
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 alikе.” (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 enforсement “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 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 alreаdy 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 оpportunities 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
We therefore hold that the Government must idеntify 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 selеction 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
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
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.
There, we considered whether a
Here, Hodge is entitled to
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 “predicаte 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
IV.
For the foregoing reasons, we reverse the district court‘s decision denying Hodge‘s
REVERSED AND REMANDED
Notes
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 by18 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.