The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1691
____________
UNITED STATES OF AMERICA
v.
JEFFREY A. BENTLEY,
Appellant
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 1-05-cr-00039-001)
District Judge, Maryellen Noreika
____________
Argued: June 29, 2022
Before: JORDAN, PORTER, and PHIPPS,
Circuit Judges.
(Filed: September 14, 2022)
____________
Daniel J. Tyrrell [ARGUED]
Chiesa Shahinian & Giantomasi
One Boland Drive
West Orange, NJ 07024
Counsel for Appellant
Alexander P. Ibrahim [ARGUED]
Office of United States Attorney
1313 North Market Street
Hercules Building, Suite 400
Wilmington, DE 19801
Counsel for Appellee
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Jeffrey Bentley appeals from the District Court’s denial
of his post-conviction motion. In a plea agreement, Bentley
admitted he had three prior “violent felony” convictions,
requiring a sentencing enhancement under the Armed Career
Criminal Act (“ACCA”). He was sentenced to twenty-two
years in prison. A decade later, in Johnson v. United States, the
Supreme Court held that one part of ACCA’s definition of
“violent felony,” known as the “residual clause,” was uncon-
stitutionally vague. 576 U.S. 591, 597 (2015). Seeking to ret-
roactively benefit from that legal development, Bentley asked
the District Court to vacate his sentence and order resentenc-
ing. The District Court denied Bentley a do-over. The District
2
Court concluded that even if the prior convictions mentioned
in Bentley’s plea could no longer be counted as strikes under
ACCA, any error would be harmless because of Bentley’s long
rap sheet of ACCA-qualifying burglaries, documented in an
undisputed presentence report. On appeal, Bentley argues that
the District Court had to disregard his ACCA-qualifying bur-
glaries because they were not mentioned in his plea agreement.
He also quibbles with the District Court’s factual findings. We
disagree with Bentley’s arguments, so we will affirm.
I
A
In 2005, Bentley robbed a liquor store at gunpoint. The
police caught him after a car chase, and he confessed to the
robbery. Bentley was indicted for being a felon in possession
of a firearm, 18 U.S.C. § 922(g)(1), Hobbs Act robbery, id.
§ 1951, and using and carrying a firearm during a crime of
violence, id. § 924(c)(1)(A)(ii).
Count one, the felon-in-possession-of-a-firearm charge,
carried a sentence of not more than ten years. 18 U.S.C.
§ 924(a)(2) (2005).1 But under ACCA, a person convicted of
that crime who has three or more prior convictions “for a vio-
lent felony or a serious drug offense, or both,” is subject to a
1
Congress recently increased the maximum penalty to 15
years. Bipartisan Safer Communities Act, Pub. L. 117-159,
Div. A, Title II, § 12004(c), 136 Stat. 1313, 1329 (2022), cod-
ified at 18 U.S.C. § 924(a)(8).
3
mandatory sentence of “not less than fifteen years.” Id.
§ 924(e)(1).
Bentley agreed to plead guilty to being a felon in pos-
session of a firearm and using and carrying a firearm during a
crime of violence. As part of the plea agreement, Bentley also
admitted he was subject to ACCA’s sentencing enhancement.
The first paragraph of the plea memorandum recited that
Bentley “has three previous convictions for a violent felony
committed on occasions different from one another,” and so is
subject to a sentencing enhancement under ACCA. J.A. 28.
The fourth paragraph of the memorandum gave a factual basis
for Bentley’s guilty plea, and included an admission that
Bentley “was convicted previously [of] three violent felonies,”
listing three prior convictions:
(1) Reckless Endangering in the First Degree
in Kent County (Delaware) Superior Court on or
about March 8, 1991;
(2) Robbery and Use of a Firearm in the
Circuit Court of the City of Richmond (Virginia)
on or about December 14, 1988; and
(3) Robbery and Use of a Firearm in the
Circuit Court of the County of Henrico
(Virginia) on or about February 14, 1989.
J.A. 29–30. The United States agreed to recommend the mini-
mum prison sentence available to Bentley—fifteen years for
count one (as required by ACCA) and seven years for count
three, using and carrying a firearm during a crime of violence,
for a total of twenty-two years’ imprisonment. It also agreed to
4
dismiss count two, Hobbs Act robbery. The plea memorandum
specified that the District Court was not bound by the sentenc-
ing stipulations made by the parties.2
B
During the sentencing hearing, the District Court
adopted “the facts as represented in the presentence investiga-
tion report,” without objection. J.A. 37; see also Fed. R. Crim.
P. 32(i)(3)(A) (sentencing court “may accept any undisputed
portion of the presentence report as a finding of fact”). The
presentence report (“PSR”) referenced Bentley’s extensive
criminal history and said that Bentley “has previously been
convicted of both robbery and burglary” and so was subject to
Section 4B1.4 of the Sentencing Guidelines, the section imple-
menting ACCA’s sentencing enhancement. PSR ¶ 33. The
PSR’s criminal-history section listed eighteen prior convic-
tions, including six breaking-and-entering convictions in North
Carolina.
During the plea colloquy, the parties agreed that Bentley
was subject to ACCA’s enhancement without elaboration:
THE COURT: Is there any objection to an
enhancement in the offense level to 33 because
the defendant is considered under the circum-
stances a Career Criminal within the meaning of
2
The plea agreement was thus a non-binding “Type B” plea,
not a “Type C” plea binding the court to a particular sentence.
Compare Fed. R. Crim. P. 11(c)(1)(B), with Fed. R. Crim. P.
11(c)(1)(C); see also United States v. Gillen, 449 F.3d 898, 902
(8th Cir. 2006) (explaining the difference).
5
Guidelines Section 4B1.4? Do we agree, coun-
sel?
GOVERNMENT COUNSEL: Agreed.
DEFENSE COUNSEL: Agreed.
J.A. 39. When discussing ACCA’s sentencing enhancement
with Bentley, the District Court referenced Bentley’s prior
encounters with the criminal justice systems of “Virginia and
North Carolina,” but never mentioned Bentley’s Delaware
reckless endangering conviction. J.A. 54.
The District Court ultimately sentenced Bentley to fif-
teen years for count one, the minimum mandatory sentence
under ACCA, and seven years for count three, to run consecu-
tively, for a total sentence of twenty-two years. Bentley did not
appeal his sentence.
C
ACCA’s definition of violent felony provides, in full:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceed-
ing one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife,
or destructive device that would be punishable
by imprisonment for such term if committed by
an adult, that—
(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another; or
6
(ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves con-
duct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). Paragraph (i) of
the definition of violent felony is known as the force or ele-
ments clause. The first part of paragraph (ii) is known as the
enumerated-offenses clause. The italicized part of paragraph
(ii) is known as the “residual clause.”
“The Supreme Court long struggled with interpreting
various ‘residual clauses’ in federal criminal statutes, such as
the definition of ‘violent felony’ in the Armed Career Criminal
Act . . . .” United States v. Vargas-Soto, 35 F.4th 979, 984 (5th
Cir. 2022). The difficulties began when the Supreme Court
held that ACCA requires a “categorical approach.” Taylor v.
United States, 495 U.S. 575, 602 (1990). Under a categorical
approach, courts deciding whether a prior conviction counts as
a violent felony must ignore the specific conduct of the crimi-
nal and ask instead whether the elements of the crime are no
broader than ACCA’s general terms. Id. at 600.
The categorical approach made it difficult to predictably
apply ACCA’s residual clause, as the clause itself references
“conduct.” Before Johnson, when determining whether prior
convictions fell under ACCA’s residual clause, courts had to
decide “whether the conduct encompassed by the elements of
the offense, in the ordinary case, presents a serious potential
risk of injury to another.” James v. United States, 550 U.S. 192,
208 (2007), overruled by Johnson, 576 U.S. 591. But this
“ordinary case” analysis proved “nearly impossible to apply
7
consistently.” Chambers v. United States, 555 U.S. 122, 133–
34 (2009) (Alito, J., concurring in the judgment), abrogated by
Johnson, 576 U.S. 591; see also Sessions v. Dimaya, 138 S. Ct.
1204, 1215 (2018) (“How does one go about divining the con-
duct entailed in a crime’s ordinary case? Statistical analyses?
Surveys? Experts? Google? Gut instinct?”). Given the diffi-
culty of this enterprise, some Justices began calling on the
Court to hold the residual clause void for vagueness. James,
550 U.S. at 230 (Scalia, J., dissenting).
The Supreme Court at first resisted, but in Johnson, “the
skeptics won.” Vargas-Soto, 35 F.4th at 985. In Johnson, the
Supreme Court overruled James and held “that imposing an
increased sentence under the residual clause of the Armed
Career Criminal Act violates the Constitution’s guarantee of
due process.” 576 U.S. at 606. Johnson, however, did “not call
into question . . . the remainder of the Act’s definition of a
violent felony.” Id.
After Johnson, in Welch v. United States, the Supreme
Court held that Johnson’s holding applied in post-conviction
cases brought under section 2255 of the Judicial Code. 578
U.S. 120, 135 (2016). A flood of post-conviction motions seek-
ing to vacate ACCA sentences followed.
D
Bentley filed one of those motions. He asked the
District Court to vacate his original sentence and order resen-
tencing, claiming that his sentence was unconstitutional after
Johnson. Focusing on the three prior convictions mentioned in
his plea memorandum, Bentley argued that his Delaware con-
viction for reckless endangering and his two Virginia robbery
convictions could no longer be counted as ACCA predicates.
8
Proceedings on Bentley’s motion were stayed pending
the resolution of cases involving North Carolina’s breaking-
and-entering statute, as well as Supreme Court cases address-
ing the scope of “burglary” under ACCA’s enumerated-
offenses clause. These decisions were ultimately unfavorable
to Bentley’s legal position.3 Wanting to move forward, Bentley
requested that the stay be lifted and that the United States
respond to his motion.
The United States answered that even though Bentley’s
reckless endangering conviction could no longer be validly
counted as a violent felony after Johnson, Bentley had six prior
North Carolina convictions for breaking and entering with
intent to commit larceny, which would still qualify as generic
burglary under ACCA’s enumerated-offenses clause. See N.C.
Gen. Stat. § 14-54(a); see also United States v. Mungro, 754
F.3d 267, 272 (4th Cir. 2014) (“We therefore conclude that
N.C. Gen. Stat. § 14–54(a), as interpreted by the North
Carolina Supreme Court, sweeps no more broadly than the
generic elements of burglary.”). Bentley did not reply.
The District Court denied Bentley’s motion. “Given
[Bentley’s] apparent concession that [his] prior North Carolina
3
See Quarles v. United States, 139 S. Ct. 1872, 1877 (2019)
(“burglary” under ACCA includes “remaining-in” burglary
even when the criminal intent to commit a burglary is formed
after entry); United States v. Stitt, 139 S. Ct. 399, 403–04
(2018) (“burglary” under ACCA includes the burglary of a
structure or vehicle customarily used for overnight accommo-
dation); United States v. Beatty, 702 F. App’x 148, 150 (4th
Cir. 2017) (North Carolina breaking-and-entering statute’s
“building” element tracks ACCA generic burglary).
9
felony convictions are relevant to deciding whether to grant
relief,” the District Court viewed the relevant issue before it as
whether Bentley’s six convictions under section 14-54(a) of
the North Carolina General Statutes qualified as generic bur-
glary under ACCA’s enumerated-offenses clause. J.A. 3. The
District Court held that they did.
We granted a certificate of appealability and asked the
parties to address “whether the District Court erred by relying
on convictions other than those identified in the plea agreement
to sustain the ACCA sentence and deny Bentley’s § 2255
motion.” J.A. 15. This appeal followed.4
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and 28 U.S.C. § 2255(a). We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We review questions of law de novo.
United States v. Peppers, 899 F.3d 211, 220 (3d Cir. 2018). We
review the District Court’s findings of fact for clear error.
United States v. Folk, 954 F.3d 597, 601 (3d Cir. 2020).
III
The main issue in this appeal boils down to whether
ACCA’s residual clause made a difference to Bentley’s sen-
tence, and if so, whether the constitutional error was harmless.
More narrowly, we must address whether the District Court
could consider the breaking-and-entering convictions men-
tioned in Bentley’s PSR as ACCA predicates, even though they
4
Daniel J. Tyrrell of Chiesa Shahinian & Giantomasi repre-
sented Bentley on appeal pro bono. He has ably discharged his
responsibilities.
10
were not listed in the plea memorandum’s factual stipulations.
If the answer is yes, we must then consider whether Bentley’s
North Carolina convictions qualify as violent felonies under
ACCA.
A
We begin by explaining the legal framework governing
Bentley’s claim for relief. To prevail, Bentley must show that
his sentence was constitutionally invalid. 28 U.S.C. § 2255(a),
(b). In this context, Bentley “has the burden of proving the mer-
its of his Johnson claim, . . . which means he bears the burden
of demonstrating that his sentence implicated the residual
clause of the ACCA.” Peppers, 899 F.3d at 235. “To prove a
Johnson claim,” Bentley must “demonstrate that his sentence
necessarily implicates the residual clause, which may be shown
either by evidence that the district court in fact sentenced him
under the residual clause or proof that he could not have been
sentenced under the elements or enumerated offenses clauses
based on current case law, and that that made a difference in
his sentence.” Id. at 235 n.21. He must prove this by a prepon-
derance of the evidence. Id. If Bentley proves his Johnson
claim, we must consider whether the error was harmless.
Peppers, 899 F.3d at 236.5 On collateral review, a Johnson
5
See also Fed. R. Civ. P. 61 (“At every stage of the proceeding,
the court must disregard all errors and defects that do not affect
any party’s substantial rights.”); Fed. R. Crim. P. 52(a) (“Any
error, defect, irregularity, or variance that does not affect sub-
stantial rights must be disregarded.”); Rules Governing Section
2255 Proceedings for the United States District Courts, Rule
12 (noting the applicability of the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure).
11
error requires vacatur only if the error caused “actual
prejudice,” that is, “had [a] substantial and injurious effect or
influence” on the sentence. Brecht v. Abrahamson, 507 U.S.
619, 631, 637 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)).
Bentley asserts that he has proven his Johnson claim
because the three prior convictions listed in his plea
memorandum fit no other part of ACCA’s “violent felony” def-
inition, so his sentence necessarily implicated the unconstitu-
tional residual clause. Bentley’s argument assumes that the
sentencing court relied exclusively on the three prior convic-
tions stipulated in the plea memorandum to sentence Bentley
under ACCA.
That assumption is difficult to test here. “A sentencing
court is not bound by factual stipulations in a plea agreement
and has discretion to make factual findings based on other rel-
evant information.” United States v. Ketcham, 80 F.3d 789,
792 n.6 (3d Cir. 1996); see also United States v. Maurer, 639
F.3d 72, 81 (3d Cir. 2011) (same). The PSR, adopted by the
sentencing court without objection, is other relevant infor-
mation. See Fed. R. Crim. P. 32(i)(3)(A); U.S.S.G. § 6A1.1
(commentary) (“A thorough presentence investigation ordinar-
ily is essential in determining the facts relevant to sentenc-
ing.”). And the PSR said that Bentley was subject to ACCA’s
enhancement because of his criminal history of robbery and
burglary, referencing the breaking-and-entering convictions
listed in the PSR. The sentencing record does not clearly indi-
cate whether the court relied on the plea memorandum’s stipu-
lations, looked to the PSR’s conclusions, or did both. Given
this ambiguity, to show that the residual clause made a differ-
ence, Bentley would need to establish that none of the ACCA
predicates referenced in the plea memorandum or the undis-
12
puted PSR would have allowed the sentencing court to sen-
tence him under ACCA.
Bentley argues, however, that as a matter of law the
District Court could not consider the breaking-and-entering
convictions on collateral review, raising arguments that sound
in waiver and due process. We consider this argument before
turning to the merits of Bentley’s Johnson claim.
B
Bentley’s main argument on appeal is that the District
Court erred by considering his breaking-and-entering convic-
tions on collateral review.6 We first describe Bentley’s argu-
ment and the relevant and conflicting caselaw that has devel-
oped in various circuits. We then explain why we reject
Bentley’s arguments. Finally, we reject the United States’
argument that new ACCA predicates may always be swapped
for original predicates on collateral review.
1
Bentley contends we should read the plea memorandum
as an exclusive list of violent felonies, precluding reliance on
6
Bentley never raised his argument before the District Court,
so it is forfeited. Yet we requested briefing on this issue when
we granted the certificate of appealability, and the United
States never moved to vacate the certificate as improvidently
granted. We will affirm on the merits for the sake of judicial
economy. See United States v. Marcello, 212 F.3d 1005, 1007–
08 (7th Cir. 2000) (courts have discretion to disregard an
improvidently granted certificate and affirm on the merits for
the sake of judicial economy).
13
other ACCA predicates on collateral review. In Bentley’s
view, due process requires that the District Court wait until
resentencing to address whether Bentley’s burglary convic-
tions qualify as ACCA predicates, where the prosecution—not
Bentley—will bear the initial burden of proof. To support this
argument, Bentley relies on the Fourth Circuit’s decision in
United States v. Hodge, 902 F.3d 420 (4th Cir. 2018). Because
that decision is central to Bentley’s argument, we describe it at
some length.
In Hodge, the PSR identified three specific prior con-
victions as ACCA predicates, one of which necessarily relied
on the residual clause. Id. at 426. On collateral review after
Johnson, the United States argued that other convictions men-
tioned in the PSR’s criminal-history section, but not designated
by the probation officer as violent felonies in the PSR, were
also ACCA predicates. The Fourth Circuit refused to consider
these other ACCA predicates on collateral review, reasoning
that the PSR’s “express identification of some convictions as
ACCA predicates implies an intentional exclusion of the oth-
ers.” Id. at 427. Because the United States never objected to the
PSR’s “intentional exclusion” of other ACCA predicates, the
Fourth Circuit continued, the United States had forfeited reli-
ance on other ACCA predicates during sentencing. Id. at 429.
Excusing this forfeiture on collateral review would, in the
Fourth Circuit’s view, deprive the defendant of his right to fair
notice and an adequate opportunity to dispute these ACCA
predicates during sentencing. Id. at 429–30. After all, by keep-
ing these ACCA predicates quiet until they were needed on
collateral review, the United States shifted the burden of sen-
tencing proof to the defendant and restricted his appeal rights.
Id. To avoid that perverse incentive and the resulting proce-
dural unfairness, the Fourth Circuit held “that the Government
14
must identify all convictions it wishes to use to support a
defendant’s ACCA sentence enhancement at the time of sen-
tencing,” at least if it wants to rely on those convictions on col-
lateral review. Id. at 430.
Hodge is not the only relevant decision on the books. At
least two circuits have rejected the Fourth Circuit’s require-
ment that the United States specifically identify all predicates
during sentencing. See Tribue v. United States, 929 F.3d 1326,
1332 (11th Cir. 2019); Dotson v. United States, 949 F.3d 317,
321 (7th Cir. 2020); White v. United States, 8 F.4th 547, 553–
54 (7th Cir. 2021). At the other extreme is the Eleventh
Circuit’s decision in Tribue. Because it conflicts with Hodge,
we describe Tribue in detail as well.
In Tribue, as in Hodge, the PSR listed three ACCA
predicates, but one of them relied on the residual clause.
Tribue, 929 F.3d at 1328, 1330. After Johnson, the prisoner
sought to vacate his sentence. Id. at 1330. In response, the
United States argued that another crime listed in the PSR’s
criminal-history section, but not designated as an ACCA pred-
icate, counted as a violent felony. Id. Relying on that alterna-
tive ACCA predicate, the Eleventh Circuit concluded that the
prisoner had not shown that his sentence was invalid. Id. at
1331–32.
On appeal, the prisoner argued that the United States
had “waived” reliance on that new ACCA predicate by failing
to object to the PSR’s limited list of three ACCA predicates.
The Eleventh Circuit rejected this argument for three reasons.
Id. at 1332. First, Tribue admitted he had been convicted of
that crime by not objecting to the PSR. Second, Tribue raised
no objection to the ACCA enhancement during his original
sentencing. Third, “there is no requirement that the govern-
15
ment prospectively address whether each and every conviction
listed in the criminal history section of a PS[R] is an ACCA
predicate in order to guard against potential future changes in
the law and avoid later claims that it has waived use of those
convictions as qualifying ACCA predicates.” Id.7
The Seventh Circuit, for its part, has adopted a “narrow
and limited” approach that rejects the Eleventh Circuit’s view
but takes a more fact-bound approach to notice than the Fourth
Circuit. Dotson, 949 F.3d at 318. In Dotson, the Seventh
Circuit held that on collateral review, the district court could
rely on a burglary conviction that was not listed as an ACCA
predicate in the PSR for two reasons: first, because it was so
listed in the indictment and, “more importantly,” because the
defendant had mistakenly believed that the sentencing court
had relied on that burglary conviction to enhance his sentence.
Id. at 321. Similarly, in White v. United States, the Seventh
Circuit held that the district court could rely on a prior drug
conviction listed as an ACCA predicate by the United States in
a pretrial notice, even though it was not listed as an ACCA
predicate in the PSR, and even though the sentencing court did
not ultimately rely on it to enhance the defendant’s sentence
under ACCA. 8 F.4th at 553.
To summarize the conflicting approaches: On collateral
review, the Fourth Circuit considers only crimes that were spe-
cifically designated by the United States as ACCA predicates
during sentencing. The Eleventh Circuit allows the United
7
Two judges dissented from denial of rehearing en banc,
relying on the Fourth Circuit’s reasoning in Hodge. See Tribue
v. United States, 958 F.3d 1148, 1149 (11th Cir. 2020) (Martin,
J., dissenting from the denial of rehearing en banc).
16
States to swap new predicates on collateral review. The
Seventh Circuit takes a more fact-bound approach to notice.
2
We chart a middle course. Like the Seventh Circuit, we
disagree with “the broader strokes the Eleventh Circuit
painted” in Tribue, but we also reject the Fourth Circuit’s broad
rule. Dotson, 949 F.3d at 321. We adopt an approach that aligns
more closely with the Seventh Circuit’s fact-bound approach:
To be considered on collateral review, a prior conviction must
have been reasonably on the menu of options as an ACCA
predicate during the original criminal case. An ACCA predi-
cate was reasonably on the menu of options if, among other
things, it was mentioned as an ACCA predicate in a charging
document, a plea memorandum, a pretrial notice, the PSR, sen-
tencing filings, or during the sentencing hearing, and so could
have reasonably been considered by the sentencing court. By
contrast, a crime listed in the criminal-history section of the
PSR but never mentioned as an ACCA predicate during a
direct criminal case, as was the case in both Hodge and Tribue,
was not fairly on the menu of ACCA predicates and may not
be considered during collateral review.
That is not the situation we face, though. Hodge and
Tribue both involved a single list of ACCA predicates, with no
alternatives. This case involves two alternative predicate lists:
The plea memorandum list and the PSR list. The facts are thus
closer to the situation in White, where alternative ACCA pred-
icates had been identified during the direct criminal case.
That difference drives our forfeiture analysis. Bentley
did not object to the PSR’s reliance on his multiple North
Carolina breaking-and-entering convictions as ACCA “bur-
17
glary” predicates, so ordinarily principles of forfeiture would,
if anything, cut against him, not for him. White, 8 F.4th at 554;
see also United States v. Vonner, 516 F.3d 382, 385 (6th Cir.
2008) (en banc) (“By failing to object to the presentence report,
Vonner accepted all of the factual allegations contained in it
. . .”). As the Fourth Circuit put it in Hodge, “[g]enerally, a
defendant’s failure to challenge the PSR’s designation of a par-
ticular conviction as an ACCA predicate in a timely manner
bars him from raising such a challenge on collateral review.”
902 F.3d at 429. That is what happened here. Although the PSR
did not specifically enumerate Bentley’s violent felonies, it
pointed to Bentley’s robbery and breaking-and-entering con-
victions as the basis for the probation officer’s conclusion that
Bentley was subject to an enhanced sentence under ACCA.
PSR ¶ 33. Bentley had a chance to object to the PSR’s reliance
on his breaking-and-entering convictions, but he did not.
On these facts, Bentley’s argument that we should read
the plea memorandum as impliedly excluding all his other prior
felonies for ACCA purposes carries little persuasive weight.
Any exclusivity implied by the plea memorandum’s list of
ACCA predicates is refuted by the PSR’s alternative list. The
sentencing court was not bound to follow the facts stipulated
by the parties in the plea memorandum, so Bentley had no rea-
sonable assurance that the court would overlook the PSR’s
alternative list of ACCA predicates. For these reasons, the plea
memorandum’s list did not preclude the District Court from
relying on Bentley’s breaking-and-entering convictions on
direct review. So, too, on collateral review. And because
Bentley never disputed the PSR’s conclusions during his sen-
tencing, the United States cannot be faulted for waiting until
collateral review to introduce the records of conviction.
18
For similar reasons, considering Bentley’s breaking-
and-entering convictions on collateral review does not violate
due process. The Due Process Clause, as interpreted by the
Supreme Court, guarantees at least those “settled usages and
modes of proceeding existing in the common and statute law
of England.” Murray v. Hoboken Land & Improvement Co., 59
U.S. 272, 277 (1855); see also Dimaya, 138 S. Ct. at 1224
(Gorsuch, J., concurring in part and concurring in the
judgment) (same); accord id. at 1243 (Thomas, J., dissenting).
Because sentencing enhancements for recidivist criminals
were considered penalties at common law, not separate crimes,
due process “does not demand that the mere fact of a prior con-
viction used as a basis for a sentencing enhancement be
pleaded in an indictment and submitted to a jury for proof
beyond a reasonable doubt.” United States v. Cheek, 415 F.3d
349, 351–52 (4th Cir. 2005).8 For this reason, we have held that
“due process does not require the government to provide for-
mal, pretrial notice of its intention to seek a sentence under the
ACCA.” United States v. Mack, 229 F.3d 226, 231 (3d Cir.
2000).
8
See also United States v. Coleman, 451 F.3d 154, 159 (3d Cir.
2006) (“[P]rior convictions that increase the statutory maxi-
mum for an offense are not elements of the offense and thus
may be determined by the District Court by a preponderance
of the evidence.”); Almendarez-Torres v. United States, 523
U.S. 224, 243–44 (1998) (same). But see id. at 261 (Scalia, J.,
dissenting) (“At common law, the fact of prior convictions had
to be charged in the same indictment charging the underlying
crime, and submitted to the jury for determination along with
that crime.”).
19
Still, due process requires adequate notice of an ACCA
predicate and a reasonable opportunity to dispute its use to
enhance a criminal sentence under ACCA. Id. at 232. But
Bentley was afforded that process during his criminal case. The
PSR gave him adequate notice that his breaking-and-entering
convictions were on the menu of ACCA predicates before the
sentencing court. See id. (upholding notice as adequate based
in part on the PSR specifying relevant ACCA predicates for
sentencing). Bentley had an opportunity to read the PSR and
discuss it with his counsel. Fed. R. Crim. P. 32(i)(1)(A). Rule
32(f)(1) also gave him fourteen days to “state in writing any
objections” to the PSR. He then had an opportunity to object to
the PSR’s ACCA conclusions during the sentencing hearing.
“He chose not to do so.” Mack, 229 F.3d at 232. So the sen-
tencing court adopted the PSR’s conclusions as fact. Fed. R.
Crim. P. 32(i)(3)(A). Bentley, like many others, failed to antic-
ipate the result in Johnson, and so did not raise timely objec-
tions to the PSR’s ACCA conclusions during his original sen-
tencing. But Bentley’s lack of foresight, while understandable,
does not make his notice inadequate.
Bentley argues that the comparative procedural short-
falls of a section 2255 proceeding, including the prisoner’s
initial burden of proof and restricted appeal rights, should
inform our due process analysis. See Hodge, 902 F.3d at 429–
30. Due process, however, does not require giving Bentley
another fresh chance to attack his sentence on the same proce-
dural terms. The Supreme Court has often applied far less
favorable procedures on collateral review, recognizing that
post-conviction relief is an extraordinary remedy. See Brecht,
507 U.S. at 634–35 (citing examples). In a post-conviction
context, it is not obvious that due process would forbid district
courts from relying on new ACCA predicates to uphold a prior
20
sentence on collateral review. After all, at common law, res
judicata would have barred Bentley’s post-conviction chal-
lenge entirely. See Brown v. Davenport, 142 S. Ct. 1510, 1520–
21 (2022); United States v. Hayman, 342 U.S. 205, 211, 223–
24 (1952) (rejecting a constitutional challenge to the adequacy
of section 2255 proceedings and noting that “at common law a
judgment of conviction rendered by a court of general criminal
jurisdiction was conclusive proof that confinement was legal.
Such a judgment prevented issuance of the writ [of habeas
corpus] without more.”). In any event, Bentley received fair
notice of his breaking-and-entering predicates during his direct
criminal case. So even if due process requires fair notice of
ACCA predicates during sentencing before they may be con-
sidered on post-conviction review, that requirement was satis-
fied here.
To the extent Bentley’s argument for more notice is
informed by pragmatic fairness concerns, not by constitutional
imperative, we reject it too. The Fourth Circuit’s prophylactic
prior-identification notice requirement “risks producing
expansive litigation at sentencing over whether each and every
prior felony in a defendant’s criminal history constitutes a
qualifying ACCA predicate.” Dotson, 949 F.3d at 322. We thus
agree with the Seventh Circuit that so long as defendants had
adequate notice that an ACCA predicate was reasonably on the
menu of options during the original criminal case, “[j]udicial
resources warrant better investment.” Id. Accordingly, when
the United States relies on some ACCA predicates during sen-
tencing, and the PSR relies on others, nothing stops district
courts from relying on the predicates mentioned in the PSR on
collateral review. A district court only needs to count three
ACCA predicate strikes during initial sentencing, and unless
notice of an ACCA predicate was absent on direct review, we
21
see no legal basis for compelling preemptive sentencing litiga-
tion over ACCA strikes that “may never matter.” Id.
3
The United States wants us to go further. It asks us to
join the Eleventh Circuit in Tribue and hold that district courts
may freely “substitute” new ACCA predicates on collateral
review to show that a Johnson error was harmless, so long as
the United States generally sought an ACCA enhancement dur-
ing the original sentencing proceeding. A contrary rule, it
argues, would conflict with our precedent and the mandatory
nature of ACCA. Not so. Precedent does not allow the United
States an opportunity to relitigate a sentence on collateral
review by swapping old predicates for new ones. ACCA is
mandatory, but it is the sentencing court’s job to carry out
ACCA’s requirements. The job of the district court on collat-
eral review is limited to reviewing the job of the sentencing
court.
The United States contends that our decision in Peppers
greenlights open-ended predicate swapping. In Peppers, we
concluded that a prisoner was unconstitutionally sentenced
under the residual clause because two out of three ACCA pred-
icates (two robberies) relied on by the sentencing court did not
otherwise qualify as violent felonies. Peppers, 899 F.3d at
233–34. In the remand instructions that concluded our opinion,
we noted that the district court would have to “resolve whether
that error was harmless.” Id. at 236 (citing Brecht, 50 U.S. at
638). We explained in passing that the district court had “noted
that ‘the record reflects that Peppers also has a prior drug
charge which qualifies as a predicate offense.’ ” Id. And we
instructed the district court to “analyze in the first instance
22
whether [the defendant] has at least two other qualifying con-
victions rendering any constitutional error harmless.” Id.9
The United States points out that the prior drug charge
to which we alluded “had not been discussed or agreed to as a
potential ACCA predicate during the original proceeding.”
Appellee Br. 13. So, it argues, Peppers must have held by
implication that district courts may swap new ACCA predi-
cates on collateral review, even when they were never men-
tioned as ACCA predicates during the original criminal case.
We disagree. Peppers never decided whether the district
court could consider the prior drug conviction on harmless-
error review, nor did we address the proper scope of harmless-
error review generally. Those questions were for the district
court to decide on remand.
If anything, Peppers undermines the United States’
argument. The harmless-error approach we did endorse—
Brecht—would conflict with the open-ended predicate-
substitution rule suggested by the United States.
9
While Brecht arose in the context of federal habeas review of
state criminal convictions, other circuits have extended
Brecht’s standard to section 2255 motions. See United States
v. Smith, 723 F.3d 510, 517 (4th Cir. 2013) (collecting cases);
see also Golinveaux v. United States, 915 F.3d 564, 569–70
(8th Cir. 2019) (applying Brecht to Johnson error raised in sec-
tion 2255 motion). Consistent with the caselaw, Peppers
assumed that Brecht’s standard governs section 2255 motions.
We agree with that assumption and join all other circuits that
have considered the issue.
23
Brecht arose in the context of constitutional trial errors,
not sentencing errors. In that context, Brecht does not allow
reviewing courts to entertain new evidence of guilt or deny
relief based on the probability of conviction on retrial. Bennett
v. Superintendent Graterford SCI, 886 F.3d 268, 290 (3d Cir.
2018). Brecht instead calls on reviewing courts to determine
whether an error substantially affected the actual jury’s verdict
based on the entire trial record.
This limitation, however, has its origins in the need to
protect the constitutional role of the jury against encroachment
by reviewing courts. Id.; see also Weiler v. United States, 323
U.S. 606, 611 (1945) (“We are not authorized to look at the
printed record, resolve conflicting evidence, and reach the con-
clusion that the error was harmless because we think the
defendant was guilty. That would be to substitute our judgment
for that of the jury and, under our system of justice, juries alone
have been entrusted with that responsibility.”). That constitu-
tional concern has no force here. Sentencing courts must
decide whether an ACCA sentencing enhancement applies
without the aid of a jury, by a preponderance of the evidence.
United States v. Coleman, 451 F.3d 154, 159 (3d Cir. 2006).
When applying harmless-error review to ACCA sentences, the
role of the jury is not at stake, and so collateral review does not
demand the same strict institutional separation between the
role of the factfinder and the reviewing court.
Still, the functional separation preserved by Brecht has
some value even here, as sentencing proceedings are better
adapted to accurately determining the applicability of a sen-
tencing enhancement in the first instance. And in any event, by
endorsing Brecht’s harmless-error standard for ACCA sen-
tences in Peppers, we endorsed its limitations. Under Brecht, a
district court’s job on collateral review is not to decide whether
24
Bentley should be resentenced under ACCA. That is what
resentencing is for. Brecht adapted to this context instead
requires reviewing courts to examine whether the residual
clause substantially affected the sentencing court’s decision.
Under that test, if a prior conviction was not adequately raised
as an ACCA predicate during a direct criminal case, we may
not assume it influenced the sentencing court’s decision and
made a sentencing error harmless. Put differently, we may not
assume that the district court sentenced a convict under ACCA
without adequate notice of a dispositive ACCA predicate, in
violation of due process.
Because Brecht would not allow the United States to
swap ACCA predicates on collateral review, neither did our
brief concluding instructions in Peppers. We therefore reject
the United States’ predicate-swapping rule as overbroad. The
United States, of course, remains free to bring new ACCA
predicates to the district court’s attention during resentencing.
But while district courts must consider those new predicates
during resentencing, they may not do so on collateral review
under the guise of applying Brecht’s harmless-error standard.
C
We next consider whether the District Court erred in
holding that the six North Carolina breaking-and-entering con-
victions listed in the PSR triggered an enhanced sentence under
the enumerated-offenses clause of ACCA, which specifically
lists “burglary.” If they did, then any reliance on the residual
clause would have been harmless, and Bentley’s motion must
fail.
The District Court concluded that the elements of sub-
section of (a) of North Carolina’s general burglary law—
25
breaking and entering with the intent to commit a felony or
larceny, N.C. Gen. Stat. § 14-54(a)—are narrower than generic
burglary and so the convictions would qualify as violent felo-
nies under ACCA. The Fourth and Ninth Circuits have reached
the same conclusion as the District Court. United States v.
Dodge, 963 F.3d 379, 385 (4th Cir. 2020); Mutee v. United
States, 920 F.3d 624, 627–28 (9th Cir. 2019).10
Bentley does not dispute that legal conclusion, so we
have no occasion to decide the issue in this case. Bentley
instead mounts a record-based challenge to the District Court’s
ruling. He argues that “[t]he government failed to satisfy its
burden to establish that Mr. Bentley had been convicted under
subsection (a)” of the North Carolina law. Appellant Br. 30. As
relevant here, the North Carolina law is divided into two main
subsections, and subsection (b) is a misdemeanor “wrongful
breaking” crime that would not qualify as generic burglary
under ACCA. Under the “modified categorical approach,”
courts may rely on some limited extra-statutory record materi-
als, including judicial records of the convicting court, to deter-
mine the specific crime of conviction. Peppers, 899 F.3d at
231; Shepard v. United States, 544 U.S. 13, 16, 20 (2005). The
United States introduced records of the convicting court, but
on appeal, Bentley says they were not clear enough for the
District Court to conclude that Bentley was convicted under
10
In Dodge, the Fourth Circuit noted that its precedent may be
wrong, suggesting that the “building” element “may be” over-
broad considering recent Supreme Court decisions. United
States v. Dodge, 963 F.3d 379, 384 (4th Cir. 2020); see also
N.C. Gen. Stat. § 14-54(c) (defining building to include any
“structure designed to house or secure within it any activity or
property”).
26
subsection (a) instead of subsection (b). But Bentley never dis-
puted that he was convicted under subsection (a) of the North
Carolina burglary statute before the District Court, so he has
forfeited his record-based challenge. Peppers, 899 F.3d at 235.
Even if we excused his forfeiture, though, Bentley’s
argument would fail. We review the District Court’s finding
for clear error. United States v. Silva, 944 F.3d 993, 995 (8th
Cir. 2019); Fed. R. Civ. P. 52(a)(6). That is “a serious thumb
on the scale for” the District Court. U.S. Bank Nat’l Ass’n ex
rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
138 S. Ct. 960, 966 (2018). “A finding that is ‘plausible’ in
light of the full record—even if another is equally or more so—
must govern.” Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017).
The District Court’s conclusion was plausible consider-
ing the record before it. The “Felony Judgment &
Commitment” order introduced by the United States plausibly
shows that Bentley was convicted of a “Class H” felony, not a
misdemeanor, meaning Bentley was convicted under subsec-
tion (a). J.A. 93. The “Index to Criminal Action” records sim-
ilarly show that Bentley was convicted of “BE&L,” which the
District Court plausibly understood to mean breaking and
entering with the intent to commit larceny under subsection (a).
J.A. 96–112. While these records are not free from ambiguity,
the District Court’s conclusion was at least plausible, so it must
govern this appeal.
* * *
Bentley has not shown that his six prior convictions
under North Carolina’s breaking-and-entering statute do not
qualify as “burglary” under ACCA’s enumerated-offenses
clause. Those prior convictions were mentioned as ACCA
27
predicates in the PSR and so were reasonably before the sen-
tencing court when it decided an enhancement was required.
Considering this, any Johnson error would be harmless. We
will affirm the District Court.
28
PORTER, J., concurring.
Figuring out whether a defendant was originally sen-
tenced under the Armed Career Criminal Act’s (“ACCA”)
residual clause years later, when the defendant never opposed
the enhancement during sentencing, requires some imaginative
reconstruction. Often, as here, the sentencing record will be
silent, and judges will have to apply the categorical approach
to several prior convictions that may, or may not have been,
the basis for the sentence.
I write separately to note that similar future cases may
not require this retroactive analysis. Bentley’s Johnson claim
should have failed for a threshold reason: Like many other con-
victs raising Johnson claims, Bentley failed to argue that
ACCA’s residual clause was unconstitutional during his direct
criminal case, so he forfeited his constitutional claim. “Where
a defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas only
if the defendant can first demonstrate either ‘cause’ and actual
‘prejudice’ or that he is ‘actually innocent.’ ” Bousley v. United
States, 523 U.S. 614, 622 (1998) (citations omitted); see also
White v. United States, 8 F.4th 547, 554 (7th Cir. 2021) (apply-
ing procedural default excuse framework to post-Johnson
claim under ACCA).
Bentley shows neither. At best, Bentley’s “cause” is that
“the Supreme Court had not yet held that his vagueness claim
was a winner.” United States v. Vargas-Soto, 35 F.4th 979, 993
(5th Cir. 2022). But Bentley’s failure to anticipate Johnson
does not come close to the legal roadblock necessary for
excusing a procedural default on collateral review. “Supreme
Court precedent holds that a prisoner cannot invoke ‘novelty’
as cause for a default where he was legally able to make the
1
putatively novel argument.” Id. at 994. A defendant also cannot
rely on a futility exception as cause to excuse a procedural
default based on contrary court precedent and stare decisis, at
least until the Supreme Court squarely forecloses a legal argu-
ment. See Gatewood v. United States, 979 F.3d 391, 397 (6th
Cir. 2020). In other words, “a claim foreclosed merely by state
or lower court precedent does not” show futility. Id.
Applying these legal principles, Bentley shows no cause
to excuse his procedural default. Bentley was sentenced in
2005, before the Supreme Court’s decision in James first
rejected a void-for-vagueness argument in a footnote. James v.
United States, 550 U.S. 192, 210 n.6 (2007). It follows that no
Supreme Court precedent blocked Bentley from arguing that
the residual clause was void for vagueness. See Gatewood, 979
F.3d at 397. Even after James, some criminal defendants con-
tinued arguing that ACCA’s residual clause was void for
vagueness, disproving any notion that Bentley was unable to
make this argument. See United States v. Jones, 689 F.3d 696,
698 (7th Cir. 2012). And the void-for-vagueness argument that
prevailed in Johnson was not so novel that the tools to make it
did not exist before James. “Since at least the mid-1920s, the
Supreme Court has invalidated vague criminal statutes as a
failure of due process of law, based on some combination of
insufficient notice and the danger of arbitrary or discriminatory
enforcement.” Nathan S. Chapman & Michael W. McConnell,
Due Process as Separation of Powers, 121 Yale L.J. 1672,
1806 (2012). Bentley “therefore had a reasonable basis for rais-
ing a vagueness challenge to the residual clause of the three-
strikes statute.” Gatewood, 979 F.3d at 397.
While this threshold procedural-default issue should
decide a similar future case, this case is not the proper vehicle
to consider the question. The United States never raised the
2
question of procedural default in this case, and procedural
default is an affirmative defense that we may not consider sua
sponte in the context of a section 2255 proceeding. See United
States v. Doe, 810 F.3d 132, 154 (3d Cir. 2015). In a future
case that properly raises the issue, however, we should follow
the Sixth Circuit in Gatewood and hold that, at the very least,
a Johnson claimant sentenced before James lacks sufficient
legal cause to excuse a procedural default.
3