United States v. Robert Benton, Jr.United States v. Robert Benton, Jr.
Before MOTZ, KING, and HARRIS, Circuit Judges.
Reversed, vacated, and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge King joined.
ARGUED: Shari Silver Derrow, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Michael Rhett
PAMELA HARRIS, Circuit Judge:
Robert Benton, Jr. was convicted of multiple offenses related to firearms, drug distribution, and witness tampering. For one of those offenses, possession of a firearm by a convicted felon,
We agree with Benton that his
I.
Benton was indicted in 1998 on a total of six charges. The one directly at issue here – Count Four – charged Benton with possession of a firearm by a convicted felon in violation of
Benton pleaded guilty to two counts and was convicted by a jury of the other four. The court initially sentenced Benton to life imprisonment, but later made certain reductions to his sentence, and Benton now is serving a total term of imprisonment of 420 months. On Count Four‘s felon-in-possession conviction, his sentence is 360 months, served concurrently with two other 360-month sentences on Counts One and Three. On the remaining counts, Benton is serving two additional concurrent sentences of 240 months (Counts Two and Five), and one of 60 months (Count Six) run consecutively to those terms.
At issue here is Benton‘s sentence of 360 months – or 30 years – on his
The ACCA‘s enhanced penalties apply to defendants with at least three previous convictions for a “violent felony” or “serious drug offense,” “committed on occasions different from one another.” Id. Benton‘s presentence report (“PSR“) identified four predicate felonies: aggravated assault and battery (now known as assault and battery of a high and aggravated nature, or “ABHAN“), on October 12, 1987; assault and battery with intent to kill (“ABIK“), on September 5, 1989; involuntary manslaughter, on September 14, 1991; and distribution of crack cocaine, on September 13, 1991. At sentencing, Benton did not challenge his armed career criminal designation, and the district court sentenced him accordingly, imposing a term of life imprisonment on the
In 2015, the Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), which substantially narrowed the ACCA‘s definition of “violent felony.”1 In 2016, this court granted Benton permission to file a successive
The district court denied relief. The government conceded, and the district court agreed, that the two predicates Benton identified no longer qualify categorically as “violent felonies” under the ACCA. But the other two predicates in the PSR, the court concluded, do qualify: ABIK remains a “violent felony,” even under Johnson‘s narrowed definition,2 and distribution of crack cocaine is a “serious drug offense.”
By themselves, those two predicates would be insufficient to support an ACCA enhancement, which, as noted above, requires three prior qualifying convictions. But critically, the district court agreed with the government that the September 13, 1991, drug arrest identified in the PSR actually could be counted as four separate predicate offenses. To reach that result, the court relied on the criminal history section of Benton‘s PSR, which contained additional detail about his September 13, 1991, arrest and indicated that Benton ultimately was convicted of four counts of distribution of crack cocaine. Then, because ACCA predicate offenses must have been “committed on occasions different from one another,” see
In sum, Benton correctly argued that two of the four predicates identified in his PSR no longer qualified as “violent felonies” under the ACCA, which requires three. But after accounting for the remaining ABIK “violent felony” and now the four separate “serious drug offenses,” Benton remained subject to the ACCA and its enhanced penalties. Accordingly, the district court denied Benton‘s motion to vacate his sentence.
Benton timely appealed the denial of his
II.
A.
In United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), we held that the government cannot rely on collateral review on ACCA predicates that were not identified at sentencing, in order to preserve an enhancement that no longer can be sustained by the original predicates. Benton has one argument on appeal: that under Hodge, it was improper in these collateral proceedings to treat as four separate predicates the September 13, 1991, drug arrest listed as a single predicate in his PSR. As the parties agree, we review this question de novo. United States v. Al-Muwwakkil, 983 F.3d 748, 754 (4th Cir. 2020).3 We conclude that there was a Hodge violation, and we vacate Benton‘s
We begin with the Hodge case, which controls the outcome here. In Hodge, we held that “the Government must identify all convictions it wishes to use to support a defendant‘s ACCA sentence at the time of sentencing.” 902 F.3d at 430. Like Benton, Hodge filed a
decision in Johnson. His original PSR identified three ACCA predicates. On collateral review, one of those predicates was disqualified, and the government for the first time pointed to an additional conviction, noted in the criminal history section of Hodge‘s PSR, as support for the enhancement. We held that this substitution was impermissible. Defendants have a right to “adequate notice” of the predicates the government intends to rely on to support an enhancement and the opportunity to contest them at sentencing. Id. at 427. And that notice and opportunity are absent, we reasoned, “[w]here the PSR specifically designates certain convictions as ACCA predicates and declines to designate others.” Id. Under those circumstances, a defendant has been “notifie[d]” that he need not challenge additional convictions, even those that otherwise appear in his PSR. Id. Indeed, it might be unwise to do so, “flagging potential predicates” that the government had not contemplated. Id. at 428.
Moreover, we explained, raising new predicates for the first time in collateral proceedings deprives a defendant of
Hodge and its reasoning apply straightforwardly here. Benton‘s PSR specifically designated four ACCA predicates, listing the September 13, 1991, drug arrest as a single predicate conviction. It is true, as the government argues, that the additional convictions it seeks to rely on now can be found in the criminal history section of Benton‘s PSR. But that was true in Hodge, as well, and the very point of our decision in that case: When the government “chooses to specify which of the convictions listed in the PSR it is using to support an ACCA enhancement,” it narrows the range of “potential ACCA predicates from all convictions listed in the PSR to those convictions specifically identified as such.” Id. at 428 (emphasis added). Just as in Hodge, the “apparently intentional exclusion of some convictions” left Benton without notice that the government later might use those same convictions to support an ACCA enhancement. Id. And lacking such notice, Benton had no reason at sentencing to argue – and perhaps good reason not to argue – that the overlooked convictions might qualify as four separate predicate offenses. See id.
The government also suggests that enforcing Benton‘s right to notice in this case would be an empty formality. We disagree. The number of predicate offenses arising from an arrest is an important component of adequate notice. A single arrest that leads to multiple convictions is likely to implicate the ACCA‘s requirement that predicate offenses be “committed on occasions different from one another,” see
factored test. Under Hodge, that crucial inquiry should have taken place at sentencing, not on collateral review: Benton is entitled to an opportunity to argue against ACCA predicates “at the time of sentencing,” when the government bears the burden of showing that a single arrest is for separate and distinct criminal offenses. See 902 F.3d at 430 (emphasis added).
The government, in short, has offered no meaningful ground for distinguishing Hodge from this case. Instead, it contends that Hodge was wrongly decided, candidly advising that we have erred and “respectfully preserv[ing] its objection to Hodge.” Appellee‘s Br. at 16 n.3. We are not sure what objection the government has in mind: In a prior and virtually identical case from the same district, the government readily conceded Hodge error and agreed to a remand for resentencing, see United States v. Brisbane, No. 17-6763 (4th Cir. Dec. 10, 2018) (unpublished order), and it provides no reason for the apparent change of heart. In any event, of course, Hodge is binding precedent, regardless of the government‘s objection,
B.
The government does have one fallback argument: Notwithstanding the Hodge error, the government contends, under the concurrent sentence doctrine, we need not review Benton‘s
The concurrent sentence doctrine “authorizes a court to leave the validity of one concurrent sentence unreviewed when another is valid and carries the same or greater duration of punishment so long as there is no substantial possibility that the unreviewed sentence will adversely affect the defendant.” United States v. Charles, 932 F.3d 153, 155 (4th Cir. 2019). This doctrine gives courts the discretion, in the interest of judicial economy, to forgo review when correction of a sentencing error will not affect a defendant‘s overall sentence. Id. at 158–59. But we have recognized an important caveat: A court may not decline to review a sentence where the defendant may suffer adverse collateral consequences if the sentence is left unreviewed. Id. at 155.
We applied that limitation in Charles, a collateral-review case in which a district court invoked the doctrine to forgo review of one of two concurrent sentences of equal length. Id. While the appeal was pending, Congress enacted the First Step Act, which appeared to make the defendant eligible for a reduction to his concurrent sentence. As a result, we concluded, there was a “realistic potential,” id., that leaving the challenged sentence unreviewed would impose an adverse consequence on the defendant, depriving him of the benefit of a First Step Act reduction. We thus remanded the case for the district court to reconsider its decision. Id. at 160–62.
For the same reason, we cannot apply the concurrent sentence doctrine in this case. It appears that Benton may be eligible for First Step Act relief on Counts One and Three, the only two concurrent sentences he is serving that are equal to or greater than his
for relief under the First Step Act). Just as in Charles, if we were to leave Benton‘s
And in any event, the concurrent sentence doctrine is purely discretionary, see Benton v. Maryland, 395 U.S. 784, 791 (1969), and there are other good reasons not to apply it here. See United States v. Buchanan, 638 F.3d 448, 450 n.2 (4th Cir. 2011) (“exercis[ing] our discretion to decide the appeal on the merits” despite concurrent sentences). The purpose of the doctrine is to conserve judicial resources when there is nothing to be gained from their expenditure, and accordingly, courts usually invoke it in deciding whether to review a sentence in the first instance. See, e.g., United States v. Parker, 801 F. App‘x 125, 126 (4th Cir. 2020). Here, however, that ship has sailed: The government failed
III.
For the foregoing reasons, we reverse the district court‘s order denying Benton‘s
REVERSED, VACATED, AND REMANDED