Petition for Writ of Certiorari — Anthony Marvin Bruten, Petitioner v. United States

Supreme Court briefOct 9, 2020

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No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

____________

ANTHONY MARVIN BRUTEN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________

PETITION FOR A WRIT OF CERTIORARI

____________

James T. Skuthan

Acting Federal Defender

Michelle R. Yard, BCS

Counsel of Record

Florida Bar No. 0014085

Federal Defender’s Office

Appellate Division

201 South Orange Avenue, Suite 300

Orlando, Florida 32801

Telephone: (407) 648-6338

Email: Michelle_Yard@fd.org

QUESTION PRESENTED

This case presents a clear circuit split over whether a defendant’s due process

rights are violated when, after an Armed Career Criminal Act (ACCA) predicate is

invalidated, the government substitutes a different predicate conviction on collateral

review to maintain an ACCA sentence when it did not provide the defendant with fair

notice at sentencing. The Eleventh Circuit has said no; the Fourth Circuit has said

yes; and the Seventh Circuit has said it depends.

The question presented is:

Whether, on collateral review, the government may maintain a

sentencing enhancement under the ACCA by substituting a different

ACCA predicate prior conviction that it did not provide the defendant

with fair notice of at sentencing.

i

LIST OF PARTIES

Petitioner, Anthony Marvin Bruten, was the movant in the district court and

the appellant in the court of appeals. Respondent, the United States of America, was

the respondent in the district court and the appellee in the court of appeals.

ii

TABLE OF CONTENTS

Question Presented......................................................................................................... i

List of Parties ................................................................................................................. ii

Table of Authorities ....................................................................................................... v

Petition for a Writ of Certiorari .................................................................................... 1

Opinion and Order Below .............................................................................................. 2

Jurisdiction .................................................................................................................... 2

Constitutional and Statutory Provisions ...................................................................... 3

Statement of the Case ................................................................................................... 5

Reasons for Granting the Writ .................................................................................... 10

I.

The Due Process Violations Implicate a Large Circuit Split Over the

Predicate Substitution Issue ................................................................... 10

II.

The Lower Court’s Decision Violates Fundamental Principles of

Constitutional and Contract Law ............................................................ 15

A. The lower court’s decision is wrong as a matter of

constitutional law ............................................................................... 15

B. The lower court failed to apply fundamental principles of

contract law when interpreting Mr. Bruten’s written plea

agreement with the government ........................................................ 19

III.

This Case Presents a Clear Vehicle to Resolve the Predicate

Substitution Issue .................................................................................... 21

A. Mr. Bruten can show cause for the default under Reed v. Ross ....... 22

B. Actual prejudice goes directly to the predicate substitution

issue ..................................................................................................... 24

Conclusion .................................................................................................................... 26

iii

Appendix

Decision of the Court of Appeals for the Eleventh Circuit,

Anthony Bruten v. United States, 814 F. App’x 486 (11th Cir. 2020) .......................... A

Order Denying Motion to Vacate and COA,

Anthony Bruten v. United States, 6:16-cv-1132-Orl-18DCI (M.D. Fla. 2017) ............. B

Order Granting COA,

Anthony Bruten v. United States, No. 18-10044, .......................................................... C

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Alleyne v. United States, 570 U.S. 99 (2013) .............................................................. 16

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ......................................... 16

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................................. 16

Begay v. United States, 553 U.S. 137 (2008)............................................................... 23

Bruten v. United States, 814 F. App’x. 486 (11th Cir. 2020) .............................. 2, 9, 24

Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013)............... 9

Cross v. United States, 892 F.3d 288 (7th Cir. 2018) ................................................. 24

Davis v. United States, 411 U.S. 233 (1973) ............................................................... 21

Derby v. United States, 564 U.S. 1047 (2011) ............................................................. 23

Descamps v. United States, 570 U.S. 254 (2013) ............................................ 16, 18, 25

DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) .................................................... 20

Dotson v. United States, 949 F.3d 317 (7th Cir. 2020) ......................................... 13, 14

Francis v. Henderson, 425 U.S. 536 (1976) ................................................................. 21

Fuentes v. Shevin, 407 U.S. 67 (1972) ......................................................................... 18

Garza v. Idaho, 130 S. Ct. 738 (2019) ......................................................................... 20

Giordenello v. United States, 357 U.S. 480 (1958) ..................................................... 13

Glover v. United States, 531 U.S. 198 (2001) .............................................................. 24

Guinan v. United States, 6 F.3d 468 (7th Cir. 1993) .................................................. 22

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).................................................................... 18

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ......................................................... 17

v

Cases

Page(s)

Johnson v. United States, 559 U.S. 133 (2010)........................................................... 25

Johnson v. United States, 135 S. Ct. 2551 (2015)............................................... passim

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) .................................................... 20

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007)................................... 19

Massaro v. United States, 538 U.S. 500 (2003) .................................................... 21, 22

Mathis v. United States, 136 S. Ct. 2243 (2016) ................................................... 16, 25

McCarthan v. Dir. of Goodwill Indus.-Suncoast, 851 F.3d 1076 (11th Cir. 2017) 9, 18

Murray v. Carrier, 477 U.S. 478 (1986) ...................................................................... 22

NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ............................................................ 12

Oyler v. Boles, 368 U.S. 448 (1962) ......................................................................... 1, 16

Puckett v. United States, 556 U.S. 129 (2009) ...................................................... 13, 20

Quarles v. United States, 139 S. Ct. 1872 (2019) ....................................................... 25

Raulerson v. United States, 901 F.2d 1009 (11th Cir. 1990)...................................... 20

Reed v. Ross, 468 U.S. 1 (1984) ........................................................................ iii, 22, 23

Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861 (4th Cir. 2001) ............................ 12

Richmond v. Louisa R. Co. 54 U.S. 71 (1852) ............................................................. 20

Ricketts v. Adamson, 483 U.S. 1 (1987) ...................................................................... 20

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) ........................................... 18

Rose v. United States, 738 F. App'x 617 (11th Cir. 2018)........................................... 24

Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) ........................................................ 13

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ................................................................ 17

vi

Cases

Page(s)

Shepard v. United States, 544 U.S. 13 (2005) ............................................................ 16

Shular v. United States, 140 S. Ct. 779 (2020) ..................................................... 20, 25

Stokeling v. United States, 139 S. Ct. 544 (2019) ....................................................... 25

Sykes v. United States, 564 U.S. 1 (2011) ............................................................. 23, 25

Tribue v. United States, 929 F.3d 1326 (11th Cir. 2019) ................................... passim

Tribue v. United States, 958 F.3d 1148 (11th Cir. 2020) ..................................... 11, 17

Tumey v. Ohio, 273 U.S. 510 (1927) ............................................................................ 17

United States v. Baez-Martinez, 950 F.3d 119 (1st Cir. 2020) ................................... 14

United States v. Barefoot, 754 F.3d 226 (4th Cir.)...................................................... 20

United States v. Booker, 543 U.S. 220 (2005) ............................................................. 17

United States v. Bowman, 634 F.3d 357 (6th Cir. 2011) ............................................ 20

United States v. Canty, 570 F.3d 1251 (11th Cir. 2009)............................................. 13

United States v. Carroll, 345 U.S. 457 (1953)............................................................. 15

United States v. Cobia, 41 F.3d 1473 (11th Cir. 1995) ................................................. 1

United States v. Cooper, 498 F.3d 1156 (10th Cir. 2007) ........................................... 20

United States v. Copeland, 381 F.3d 1101 (11th Cir. 2004) ....................................... 20

United States v. Frady, 456 U.S. 152 (1982) ........................................................ 21, 24

United States v. Gandy, 710 F.3d 1234 (11th Cir. 2013) ........................................... 23

United States v. Garcia, 877 F.3d 944 (10th Cir. 2017) ............................................. 14

United States v. Garner, 644 F. App’x 880 (11th Cir. 2016) ................................ 16, 24

United States v. Hodge, 902 F.3d 420 (4th Cir. 2018) ........................................ passim

vii

Cases

Page(s)

United States v. Lewis, 673 F.3d 758 (8th Cir. 2011) ................................................. 20

United States v. Melvin, 730 F.3d 29 (1st Cir. 2013).................................................. 21

United States v. Moore, 208 F.3d 411 (2d Cir. 2000) .................................................... 1

United States v. O’Neal, 180 F.3d 115 (4th Cir. 1999) ................................................. 1

United States v. Petite, 703 F.3d 1290 (11th Cir. 2013) ............................................... 9

United States v. Johnson, 457 U.S. 537 (1982)..................................................... 22, 23

United States v. Stitt, 139 S. Ct. 399 (2018) ............................................................... 25

Wainwright v. Sykes, 433 U.S. 72 (1977) .................................................................... 21

Welch v. United States, 136 S. Ct. 1257 (2016)............................................................. 6

Statutes

Page(s)

18 U.S.C. § 922(g) .................................................................................................... 1, 24

18 U.S.C. § 922(g)(1) .................................................................................................. 1, 5

18 U.S.C. § 924(a)(2) .................................................................................................. 1, 5

18 U.S.C. § 924(e)................................................................................................. passim

18 U.S.C. § 924(e)(1) .................................................................................................. 1, 5

18 U.S.C. § 3231 ............................................................................................................. 2

28 U.S.C. § 1254(1) ........................................................................................................ 3

28 U.S.C. § 2254 ........................................................................................................... 21

28 U.S.C. § 2255 ................................................................................................... passim

28 U.S.C. § 2255(a) .................................................................................................. 4, 15

Fla. Stat. § 893.13 .......................................................................................................... 6

viii

Other Authorities

Page(s)

4 W. Blackstone, Commentaries 301 (1769) ............................................................... 17

Fed. R. Crim. P. 32(f) ................................................................................................... 13

Restatement (Second) Contracts s. 206 (Am. Law Inst. 1981) .................................. 20

Sup. Ct. R. 13.1 .............................................................................................................. 2

U.S. Const. amend V................................................................................................ 3, 16

U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Firearms

Offenses in the Federal Criminal Justice System at 6, 54 (Mar.

2018), https://www.ussc.gov

/sites/default/files/pdf/research-and-

publications/research-publications/2018/20180315_Firearms-Mand-Min.pdf ...... 25

U.S.S.G. § 6A1.2(b) ...................................................................................................... 13

ix

PETITION FOR A WRIT OF CERTIORARI

The Armed Career Criminal Act (ACCA) mandates a 180-month mandatoryminimum term of imprisonment for individuals convicted of violating 18 U.S.C.

§ 922(g) if they have at least three prior convictions for a “violent felony” or “serious

drug offense.” 18 U.S.C. § 924(e). Due process mandates that the government provide

a defendant with fair notice prior to sentencing about what convictions it is relying

on to justify the imposition of the enhancement. United States v. Cobia, 41 F.3d 1473,

1476 (11th Cir. 1995) (“[D]ue process requires reasonable notice of and opportunity

to be heard concerning the prior convictions.” (citing Oyler v. Boles, 368 U.S. 448, 452

(1962))); United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000); United States v.

O’Neal, 180 F.3d 115, 125–26 (4th Cir. 1999).

Mr. Anthony Marvin Bruten pleaded guilty to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1),

pursuant to a written plea agreement with the government, agreeing that three of

his prior convictions in the indictment qualified for ACCA enhancement. In accord,

the Presentence Report, adopted by the parties and the district court, expressly

designated three of his prior convictions identified in the indictment as qualifying

convictions under the ACCA. Mr. Bruten was sentenced pursuant to the ACCA to an

enhanced sentence of 180 months’ incarceration followed by 5 years’ supervised

release. The government conceded on collateral review that one of those three

designated ACCA predicate convictions no longer qualifies as an ACCA predicate.

Still, while Mr. Bruten only agreed he had three predicate convictions in his written

1

plea agreement with the government, the district court permitted the government to

reach beyond the three expressly designated ACCA-predicate convictions in the PSR,

and substitute additional convictions on collateral review to maintain the ACCA

enhancement. Mr. Bruten respectfully petitions for a writ of certiorari to review the

Eleventh Circuit’s denial of his 28 U.S.C. § 2255 motion on the issue of whether, on

collateral review, the government may maintain a sentencing enhancement under

ACCA by substituting a different ACCA predicate prior conviction that it did not

provide the defendant with fair notice of at sentencing.

OPINION AND ORDER BELOW

The Eleventh Circuit’s denial, after oral argument, of Mr. Bruten’s § 2255

motion to vacate in Bruten v. United States, 814 F. App’x. 486 (11th Cir. 2020) is

provided in Appendix A. The district court order dismissing Mr. Bruten’s § 2255

motion to vacate sentence is provided in Appendix C.

JURISDICTION

The United States District Court for the Middle District of Florida had original

jurisdiction over Mr. Bruten’s criminal case under 18 U.S.C. § 3231 and jurisdiction

over his civil proceeding under § 2255. The district court denied Mr. Bruten’s § 2255

motion on November 3, 2017. See Appendix C. Mr. Bruten then filed a notice of appeal

and a motion for certificate of appealability (COA) in the Eleventh Circuit, which was

granted on April 3, 2018. See Appendix B. Following oral argument, the Eleventh

Circuit affirmed the denial of Mr. Bruten’s motion on May 14, 2020. See Appendix A.

This petition is timely filed under Supreme Court Rule 13.1 and the Court’s March

2

19, 2020 order on filing extensions. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the United States Constitution provides, in relevant

part:

No person shall be . . . deprived of life, liberty, or property,

without due process of law.

Section 924(e) of Title 18 of the United States Code, the ACCA, provides:

(1)

In the case of a person who violates section 922(g) of this title and

has three previous convictions . . . for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another, such person shall be fined under this title and

imprisoned not less than fifteen years . . . .

(2)

As used in this subsection—

(B)

the term “violent felony” means any crime punishable by

imprisonment for a term exceeding 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

(ii)

is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another . . . .

3

Section 2255(a) of Title 28 of the United States Code, which addresses when

an individual may collaterally attack a federal sentence, provides:

A prisoner in custody under sentence of a court established

by Act of Congress claiming the right to be released upon

the ground that the sentence was imposed in violation of

the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum authorized

by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set

aside or correct the sentence.

4

STATEMENT OF THE CASE

In 2012, Mr. Anthony Marvin Bruten was indicted in the Middle District of

Florida on one count of being a felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2), and 924(e)(1). The indictment listed four Florida state law

prior convictions: sale of cocaine (2011), fleeing or eluding (2009), sale or possession

of cocaine within 1,000 feet of a school (2005), and aggravated assault (2004).

Less than three months later, Mr. Bruten pleaded guilty, pursuant to a written

plea agreement with the government. The written plea was drafted by the

government and adopted by the district court. Mr. Bruten specifically pleaded guilty

to two elements, that he: (1)

“knowingly possessed a firearm in or affecting

interstate commerce” and (2) “before the defendant possessed the firearm, the

defendant had been convicted in a court of a crime punishable by imprisonment for a

term in excess of one year, that is, a felony offense.” As to Mr. Bruten’s prior

convictions, in the “Factual Basis” section of the plea agreement, Mr. Bruten

expressly admitted to the four prior convictions in the indictment and that the list of

four prior convictions “include[d] three felonies that BRUTEN admits qualify him as

an Armed Career Criminal.” However, Mr. Bruten did not concede, nor does the plea

agreement suggest, that any other prior conviction was a qualifying predicate under

the ACCA.

A presentence report (PSR) was prepared. In paragraph 23, the PSR reflected

an ACCA enhancement applied “based upon” three predicate Florida convictions in

the indictment: aggravated assault (2004), sale or possession of cocaine within 1,000

5

feet of a school (2005), and fleeing and eluding (2009). That synched with Mr. Bruten’s

written plea agreement—that three of his prior convictions were qualifying

predicates under the ACCA. The government did not object to the PSR, and the

district court adopted it without change. Mr. Bruten was sentenced under the ACCA

to 180 months’ imprisonment followed by 5 years’ supervised release. He did not

appeal. 1 Without the ACCA enhancement, the statutory maximum for his offense

would have been incarceration for not more than 120 months, and his advisory

guideline range would have been 92 to 115 months.

In the wake of this Court’s decisions in Johnson v. United States, 135 S. Ct.

2551 (2015) (Samuel Johnson) and Welch v. United States, 136 S. Ct. 1257 (2016), Mr.

Bruten was appointed counsel and applied for post-conviction relief under 28 U.S.C.

§ 2255. Mr. Bruten argued that, given recent developments in this Court’s ACCA

jurisprudence, his ACCA sentence was unconstitutional because it exceeded the

lawful statutory maximum penalty for this offense, violating due process. Specifically,

he claimed that two of his designated ACCA-qualifying predicates—his Florida

convictions for fleeing and eluding and aggravated assault—fail to qualify as ACCA

predicates after Samuel Johnson, leaving him with only one ACCA predicate. 2 He

argued that the government could not reach beyond those predicates due to its

1

Mr. Bruten filed a pro se application for collateral relief under 28 U.S.C. § 2255. In that

application, he challenged the validity of his previous conviction for sale of cocaine under Fla. Stat.

§ 893.13 for his ACCA enhancement. He alleged that trial counsel was ineffective for failing to raise

this claim. The district court denied that motion without prejudice, as Mr. Bruten had not kept the

court apprised of his address. Cr. Doc. 55.

Mr. Bruten was not granted a COA on whether Florida Aggravated Assault is a “violent felony”

under ACCA after Samuel Johnson.

2

6

waiver.

In its response, the government conceded that fleeing and eluding no longer

qualified as an ACCA predicate offense, but the government pointed to other prior

convictions listed in the PSR criminal history, sale or delivery of cocaine (1997),

manufacture of cocaine (2004), and sale of cocaine (2008), and, for the first time ever,

argued that Mr. Bruten qualified to be sentenced under ACCA based on these priors.

The government contended that Mr. Bruten’s argument they could not reach other

prior history was misplaced. Civ. Doc. 15 at 5. After Mr. Bruten’s response, the

district court denied his Samuel Johnson claim. Civ. Doc. 19. The court ruled that

Mr. Bruten was “procedurally barred from raising his claims because they were not

raised on direct appeal.” The court also rejected Mr. Bruten’s argument that Samuel

Johnson was sufficient to overcome the procedural bar as to prejudice (while not

addressing cause for default). The district court, without relying on the fleeing and

eluding conviction the ACCA conviction was expressly “based on,” and ignoring that

Mr. Bruten only agreed to three prior offenses qualified as ACCA predicates, looked

beyond the identified ACCA-predicate offenses to the criminal history section of Mr.

Bruten’s PSR and found that Mr. Bruten “still has at least three ACCA-qualifying

convictions” and therefore Samuel Johnson provides no basis to overcome the

procedural bar. Civ. Doc. 19 at 4-5. The court determined that the mere fact of Mr.

Bruten’s additional convictions was enough to allow their substitution, although they

had not been expressly designated as ACCA predicates at sentencing. The district

court declined to grant a certificate of appealability, determining that no “jurists of

7

reason would find this Court’s procedural rulings debatable.” Id. at 6.

The Eleventh Circuit disagreed, and granted a certificate of appealability on:

Whether the district court erred in dismissing Bruten’s 28 U.S.C. § 2255

motion as procedurally barred based on its conclusion that the

government was permitted to rely on prior convictions in the

presentence investigation report (“PSI”), as predicate offenses under the

Armed Career Criminal Act, despite the fact that neither the PSI nor

the sentencing court explicitly found those other convictions to be proper

predicate offenses.

See Appendix B. Between the time that briefs were filed and the court of appeals

granted oral argument, the Eleventh Circuit decided Tribue v. United States, 929

F.3d 1326 (11th Cir. 2019). In that case, none of Tribue’s predicates were mentioned

in his indictment. Id. at 1328. Tribue also did not specifically agree in a written plea

agreement with the government, accepted by the district court, to his number of

qualifying ACCA-predicates. But Tribue’s PSR expressly enumerated three prior

offenses as ACCA predicates: a conviction for fleeing and eluding, and two counts of

delivery of cocaine. Besides the enumerated ACCA predicates, the PSR included

seven other convictions.

After Samuel Johnson, Tribue filed a § 2255 motion challenging his sentence

on grounds that his Florida fleeing and eluding conviction no longer qualified as a

valid ACCA predicate. Tribue, 929 F.3d at 1330. The government asserted that three

of Tribue’s other convictions could be substituted as ACCA predicates. Id. Tribue

argued that the government waived its ability to rely on any other prior convictions

when it failed to object to the list of enumerated predicates in the PSR, which the

court adopted without change. Id. The court rejected Tribue’s argument, as Tribue

8

could not show that, but for the fleeing and evading conviction, he would not have

been designated an ACCA offender. Id. at 1332. The Court also stated that Tribue’s

waiver argument failed because Tribue himself had admitted that the existence of

the convictions and had raised no objection to the PSR. The court also asserted that

“where there is no objection by the defendant[,] . . . the government bears no burden

to argue or prove alternative grounds to support the ACCA enhancement,” nor does

it “waive reliance on other convictions in the PSI . . . .simply by not objecting to the

PSI on the grounds that Tribue had more qualifying convictions . . .” Id.

The Eleventh Circuit then scheduled oral argument in Bruten. After briefing

was completed, but before oral argument, the Fourth Circuit issued an opinion in

United States v. Hodge, 902 F.3d 420 (4th Cir. 2018). The Hodge court held that “the

Government must identify all convictions it wishes to use to support a defendant’s

ACCA sentence enhancement at the time of sentencing” and that it cannot maintain

an ACCA sentence on collateral review by substituting a different conviction. Id. at

430. 3 Mr. Bruten filed a Rule 28(j) letter on Hodge and emphasized that permitting

the government to substitute a different conviction on collateral review infringed on

his right to notice of the predicates to be relied on at sentencing.

In deciding Mr. Bruten’s case after oral argument, the Eleventh Circuit

determined that “Tribue is factually and legally on point with [Bruten’s] case and

The Fourth Circuit relied heavily on the Eleventh Circuit’s precedent in coming to its

conclusion. 902 F.3d at 430 (relying on Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253,

1256–57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.Suncoast, 851 F.3d 1076 (11th Cir. 2017) (en banc), and United States v. Petite, 703 F.3d 1290, 1292

n.2 (11th Cir. 2013), abrogated on other grounds by Samuel Johnson, 135 S. Ct. at 2251).

3

9

therefore dictates its outcome.” Bruten, 814 F. App’x at 489. The Eleventh Circuit

failed to acknowledge Hodge or the circuit split. Mr. Bruten’s relief was denied, his

sentence affirmed.

REASONS FOR GRANTING THE WRIT

In substituting Mr. Bruten’s invalidated ACCA predicate with another prior

conviction, the lower court stripped Mr. Bruten of his liberty without providing him

fair notice consistent with due process. This represents a serious constitutional

violation that led to Mr. Bruten being sentenced to 60 months’ incarceration above

the permissible statutory maximum. And in failing to distinguish Mr. Bruten’s plea

agreement from that in Tribue, where Mr. Bruten only agreed pursuant to his written

plea agreement that three prior offenses qualified for ACCA, the lower courts flouted

fundamental contract interpretation principles.

I.

The Due Process Violations Implicate a Large Circuit Split Over

the Predicate Substitution Issue.

The Courts of Appeals are divided on the predicate substitution issue posed by

Mr. Bruten’s case: whether a defendant’s due process rights are violated when the

government substitutes a different conviction on collateral review to maintain an

ACCA sentence when the defendant did not receive fair notice at sentencing. While

courts are divided over the correct approach, all have disagreed with the approach

now adopted by the Eleventh Circuit. Given the serious stakes of mandatory

minimum sentencing posed by ACCA, this Court must intervene to resolve the split.

This Court should use this case, which presents this exceptionally important legal

issue, to resolve the conflict the circuit courts are unwilling or unable to resolve.

10

All jurists agree with the premise that“[t]he prosecution bears the burden of

proving that a defendant has convictions that qualify for sentencing under ACCA.”

Samuel Johnson, 135 S. Ct. at 2580 (Alito, J., dissenting). But in Tribue, the Eleventh

Circuit turned this principle on its head: “The government was never required to

prove that Mr. Tribue’s 2007 cocaine conviction meets the statutory requirements to

justify his sentence under ACCA[, y]et now that Mr. Tribue seeks relief from his

sentence by way of his § 2255 motion, the panel requires him to prove this 2007

conviction is not a proper basis for ACCA to apply.” See Tribue v. United States, 958

F.3d 1148, 1151 (11th Cir. 2020) (Tribue II). Though this shifted burden rests on the

fact that Tribue did not object to the existence of his conviction, any objection would

have been fruitless given the Eleventh Circuit’s existing ACCA jurisprudence. Id. at

1151-52.

The Eleventh’s circuit position set forth in Tribue v. United States, and

followed here, is not without controversy even from within the Eleventh Circuit.

Judge Martin, dissenting from denial of rehearing en banc, recognized the circuits

are split and questioned whether Tribue even finds a proper basis in prior circuit

precedent. See id. at 1152-54 (Martin, J., dissenting from denial of rehearing en banc)

(discussing how the panel’s decision conflicts with Fourth Circuit and Seventh Circuit

precedent). Going beyond past precedent, Judge Martin argued that Tribue

represents an even deeper error. Judge Martin noted that such a “rule [] imposes an

after-the-fact duty upon federal defendants to make objections on any topic that could

someday be the subject of constitutional challenges.” Id. at 1152.

11

The Fourth Circuit has rejected predicate substitution on fair notice grounds.

United States v. Hodge, 902 F.3d 420 (4th Cir. 2018). Hodge’s PSR had expressly

designated three prior offenses as ACCA predicates; two were for possession of

cocaine with intent to distribute, one was a conviction for reckless endangerment. Id.

at 424. And just as in Mr. Bruten’s case, the parties made no objections, and the

district court adopted the PSR without change. Id.

After this Court decided Samuel Johnson, Hodge filed a successive § 2255

motion challenging his sentence because reckless endangerment no longer qualified

as an ACCA predicate. Id. at 425. The government conceded that Hodge’s reckless

endangerment conviction depended on the residual clause. Id. at 426. Turning to the

section of Hodge’s PSR that listed prior criminal history, the government pointed to

another prior conviction for possession of cocaine with intent to distribute and

asserted that this conviction served as an alternative basis to uphold the conviction.

Id. at 425.

The Fourth Circuit rejected the government’s suggestion that the court rewrite

the PSR, instead stating that “[w]here 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.” Id. at 427. Relying on the canon of inclusio unius, the Fourth Circuit

argued that “express identification of some convictions as ACCA predicates implies

an intentional exclusion of the others.” Id. (citing NLRB v. SW Gen., Inc., 137 S. Ct.

929, 940 (2017); and Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861, 865 (4th Cir.

12

2001)).

The Hodge court also explained that “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,’” id. at 429 (quoting Puckett

v. United States, 556 U.S. 129, 134 (2009); and citing Sanchez-Llamas v. Oregon, 548

U.S. 331, 357 (2006)), applies to both the government and the defendant, id. at 42829 (citing Fed. R. Crim. P. 32(f); U.S.S.G. § 6A1.2(b); and United States v. Canty, 570

F.3d 1251, 1256 (11th Cir. 2009)). Thus, the fact that both “[t]he U.S. Probation Office

could have designated additional convictions as ACCA predicates,” and “the

Government could have asked the sentencing court to recognize additional

convictions as ACCA predicates” meant that no other offenses could serve as ACCA

predicates. Hodge, 902 F.3d at 426. The Fourth Circuit also made clear that

“[p]ermitting 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,’” id.

at 429 (quoting Giordenello v. United States, 357 U.S. 480, 488 (1958)), as the burden

of proof shifts from the government to the respondent, id. at 429-30. The Fourth

Circuit’s ruling directly contradicts the reasoning of the Eleventh Circuit in both

Tribue and this case.

Likewise, in Dotson v. United States, the Seventh Circuit rejected “the broader

strokes the Eleventh Circuit painted with in deciding the same question in Tribue. .

. .” 949 F.3d 317, 321 (7th Cir. 2020), petition for cert. filed, (U.S. Sept. 4, 2020) (No.

20-302). Dotson’s PSR “listed six prior felony convictions, three of which” were

13

designated as ACCA predicates. Id. at 318. The Seventh Circuit denied Dotson’s

§ 2255 motion arguing that because of Supreme Court precedent he no longer had

three ACCA-qualifying offenses on the grounds that Dotson had a fourth possible

ACCA predicate that not only had been listed in the indictment, the PSR, but also,

critically, that “Dotson himself recognize[ed] in legal filings and apparently believ[ed]

(although mistakenly)” had served as the basis of his sentence. Id. at 318. While

“[f]air notice underpins due process precisely because it prevents surprise and affords

opportunities to respond[,] [t]hose principles [were] not offended here[,] as Dotson

himself believed and represented in multiple legal submissions that the district court

counted his 1993 . . . conviction [] as an ACCA predicate at his original sentencing.”

Id. at 321. While the Seventh Circuit agreed with Hodge’s “concerns about notice to

defendants,” it distanced itself from the “broader holding” in Hodge, id. at 321, the

court voiced concern that such an approach “risks producing expansive litigation at

sentencing over whether each and every prior felony in a defendant's criminal history

constitutes a qualifying ACCA predicate.” Id. at 322. 4

In United States v. Baez-Martinez, 950 F.3d 119 (1st Cir. 2020), petition for

cert. filed, (U.S. July 10, 2020) (No. 20-5075), the First Circuit determined that the

government need not precisely and exhaustively designate its ACCA predicates or

forever hold its peace. In that case, “the PSR did not designate any particular prior

conviction as an ACCA predicate; all convictions listed in the PSR were treated the

The Seventh Circuit also observed that the Tenth Circuit “seem[ed] to have reached a similar

conclusion” to the Eleventh Circuit. Dotson, 949 F.3d at 321 (citing United States v. Garcia, 877 F.3d

944, 956 (10th Cir. 2017). But the Tenth Circuit never addressed the question because the defendant

never raised the issue.

4

14

same,” and so Hodge’s logic, based on expressio unius est exclusion alterius, where

certain convictions were identified as ACCA-qualifying, as in Mr. Bruten’s case, did

not apply. Id. Thus, unlike Mr. Bruten, “Baez-Martınez was on equal notice as to each

of his convictions that they might be considered a predicate felony.” Id.

Thus, there are varied approaches to the predicate substitution issue—but all

outside the Eleventh Circuit recognize the serious role that fair notice concerns must

play in its resolution.

II.

The Lower Court’s Decision Violates Fundamental Principles of

Constitutional and Contract Law.

Federal prisoners have a right to seek collateral relief if their “sentence was

imposed in violation of the Constitution . . . .” 28 U.S.C. § 2255(a). But in denying Mr.

Bruten’s claim for relief under Samuel Johnson, the lower courts relied on a rule, that

it first set forth in Tribue, which itself violates the Constitution. And even if Tribue

were correct, the lower court failed to observe basic principles of contract

interpretation when it rejected Mr. Bruten’s argument based on his written plea

agreement that Tribue is distinguishable.

A.

The lower court’s decision is wrong as a matter of

constitutional law.

“[E]very citizen is entitled to fair warning of the traps which the criminal law

lays.” United States v. Carroll, 345 U.S. 457, 460 (1953). Out of all of Mr. Bruten’s

prior offenses, the PSR specifically enumerated three offenses that served as the

predicates for his ACCA enhancement, consistent with his agreement in the written

plea agreement that he had three prior qualifying ACCA predicate offenses. The

15

district court adopted this finding at sentencing. In light of Samuel Johnson, one of

those convictions, Florida fleeing and eluding, is not an ACCA predicate. See United

States v. Garner, 644 F. App’x 880, 881 (11th Cir. 2016). Despite the judgment of the

Eleventh Circuit, due process principles require that his unlawful sentence be

reversed.

It is no secret that the framework for modern ACCA sentencing are

undergirded by a misguided view of Fifth and Sixth Amendment requirements. See,

e.g., Mathis v. United States, 136 S. Ct. 2243, 2258-59 (2016) (Thomas, J., concurring);

Descamps v. United States, 570 U.S. 254, 279-81 (2013) (Thomas, J., concurring in

the judgment); Shepard v. United States, 544 U.S. 13, 26-28 (2005) (Thomas, J.,

concurring in part and concurring in the judgment). Such proceedings rest on the

dubious-at-best “distinction between guilt and punishment,” Almendarez-Torres v.

United States, 523 U.S. 224, 251 (1998) (Scalia, J., dissenting), which eschews the

original understanding of the Founders that “[a]ny fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and found

beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 102 (2013) (citing

Apprendi v. New Jersey, 530 U.S. 466, 483 n.10, 490 (2000)). It should come as no

surprise then that the actual mechanics of ACCA proceedings are often as

constitutionally suspect as the foundation on which they are rooted.

Here, the lower court’s retroactive redesignation of ACCA predicates rebuffs

the fair notice required by the Due Process Clause. The Fifth Amendment requires

that “a defendant must receive reasonable notice and an opportunity to be heard

16

relative to [a] recidivist charge . . . .” Oyler v. Boles, 368 U.S. 448, 504 (1962). When

determining the requirements of the Due Process Clause, “the court must look to

those settled usages and modes of proceeding” at founding-era English law. Tumey v.

Ohio, 273 U.S. 510, 523 (1927); see generally Honda Motor Co. v. Oberg, 512 U.S. 415,

430 (1994) (collecting cases).

Fair notice is deeply rooted in that tradition. See Sessions v. Dimaya, 138 S.

Ct. 1204, 1223-34 (2018) (Gorsuch, J., concurring in part and concurring in the

judgment) (cataloguing the roots of the Due Process Clause’s due process

requirements). At common law, “[c]riminal indictments at common law had to provide

‘precise and sufficient certainty’ about the charges involved.” Id. at 1225 (citing 4 W.

Blackstone, Commentaries 301 (1769)). Mr. Bruten’s plea agreement made clear that

the government was limiting its hand to three prior convictions by stating that Mr.

Bruten agreed he had three prior convictions that were ACCA predicates. The

government’s burden at sentencing to show a defendant is eligible for an ACCA

sentence is “fundamental to the integrity of federal sentencing,” and thus shifting the

burden to Mr. Bruten is “fundamentally unfair.” See Tribue, 958 F.3d at 1150

(Martin, J., dissenting from the denial of rehearing en banc).

Fair notice does not stop at the courthouse gates on the eve of sentencing. “The

Constitution prohibits allowing a judge alone to make a finding that raises the

sentence beyond the sentence that could have lawfully been imposed by reference to

facts found by the jury or admitted by the defendant.” United States v. Booker, 543

U.S. 220, 314 (2005) (Thomas, J., dissenting). When constructing a Pre-Sentencing

17

Report, “[t]he United States Probation Office[] operat[es] as an arm of the district

court . . . .” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). In his

written guilty plea, Mr. Bruten agreed that he had been convicted of the four

convictions listed in the indictment, and he agreed that three of those convictions

were ACCA predicates.

That Mr. Bruten admitted he has other convictions says nothing about whether

he admitted they qualify as an ACCA predicate—here, he specifically agreed under

the written plea agreement that he had three. See McCarthan, 851 F.3d at 1120

(Martin, J., dissenting). Not two, and not four—he agreed there were three. The

government drafted the agreement, and the government and court accepted it. See

Descamps, 570 U.S. at 270 (“[W]hatever [a defendant] says, or fails to say, about

superfluous facts cannot license a later sentencing court to impose extra punishment.

. . . A defendant, after all, often has little incentive to contest facts that are not

elements of the charged offense—and may have good reason not to. . . . . [T]he

defendant may not wish to irk the prosecutor or court by squabbling about

superfluous factual allegations.”).

The PSR noted that the indictment alleged four former felony convictions, and

yet it specifically enumerated that it was relying on three of those convictions for the

ACCA sentence enhancement. “‘[T]he right to notice and an opportunity to be heard

must be granted at a meaningful time and in a meaningful manner.’ . . . Th[is]

essential constitutional promise[] may not be eroded.” Hamdi v. Rumsfeld, 542 U.S.

507, 533 (2004) (quoting Fuentes v. Shevin, 407 U.S. 67, 80 (1972)) (internal citations

18

and quotation marks omitted). From that point on, absent objection to the PSR from

either party, the sentencing proceeding was to be based on those specifically

enumerated offenses. Cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174

(2007) (stating that “the object [of notice and comment] . . . is one of fair notice,” as

lower courts have held that “the final rule the agency adopts must be a logical

outgrowth of the rule proposed” (internal quotations and citations omitted)).

Anything else would have been to deprive Mr. Bruten proper notice and due process.

The lower court’s willingness to re-enumerate ACCA predicates in the wake of

Samuel Johnson stacks the deck against the defendant and crafts a rule that would

launch a thousand fruitless objections by defense counsel for fear of being held

ineffective. What is more, redesignation of prior offenses that Mr. Bruten did not even

concede in his guilty plea or sentencing exceeds the bounds of the judicial authority.

B.

The lower court failed to apply fundamental principles of

contract law when interpreting Mr. Bruten’s written plea

agreement with the government.

Even assuming, arguendo, the correctness of Tribue, the language in Mr.

Bruten’s written plea agreement, drafted by the government, allows him to

distinguish this proceeding from that case. Unlike the defendant in Tribue, Mr.

Bruten’s guilty plea specifically stated the number of prior convictions that he agreed

were ACCA predicates. Setting aside the due process concerns that always come with

the retroactive predicate substitution, the language in Mr. Bruten’s plea agreement

specifically prohibits the lower court’s substitution.

In rejecting this argument, the Eleventh Circuit violated fundamental

19

principles of contract interpretation. “[P]lea bargains are essentially contracts,”

Garza v. Idaho, 130 S. Ct. 738, 744 (2019) (quoting Puckett v. United States, 556 U.S.

129, 137 (2009)), and they should be interpreted as such. As a corollary, ambiguous

language should be interpreted against the drafter. Restatement (Second) Contracts

s. 206 (Am. Law Inst. 1981). This “rule [of] . . . ‘last resort,’” Lamps Plus, Inc. v. Varela,

139 S. Ct. 1407, 1417 (2019), has particular salience in the context of plea

agreements, as “plea agreements are constitutional contracts[,] . . . [and so they] must

be construed in light of the rights and obligations created by the Constitution.”

Ricketts v. Adamson, 483 U.S. 1, 16 (1987) (Brennan, J., dissenting). “[T]he reach of

the canon construing contract language against the drafter must have limits,”

DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 470 (2015), and those limits are here

coextensive with those imposed on the rule of lenity. Compare Shular v. United

States, 140 S. Ct. 779, 787-88 (2020) (Kavanaugh, J., concurring) (noting that the rule

of lenity should be applied after all other interpretive maxims), with Richmond v.

Louisa R. Co. 54 U.S. 71, 86 (1852) (noting that contra proferentem should come after

the standard canons of construction have been applied).

So there is wide agreement among the circuits that “[w]hen a plea agreement

is ambiguous, it ‘must be read against the government.’” United States v. Copeland,

381 F.3d 1101, 1105-06 (11th Cir. 2004) (quoting Raulerson v. United States, 901 F.2d

1009, 1012 (11th Cir. 1990)). Accord United States v. Barefoot, 754 F.3d 226, 246 (4th

Cir.), cert. denied, 574 U.S. 1006 (2014); United States v. Bowman, 634 F.3d 357, 36061 (6th Cir. 2011); United States v. Lewis, 673 F.3d 758, 763 (8th Cir. 2011); United

20

States v. Cooper, 498 F.3d 1156, 1159 (10th Cir. 2007); cf. United States v. Melvin,

730 F.3d 29, 37 (1st Cir. 2013) (applying contra proferentem to proffer agreements).

Mr. Bruten argued that his written plea agreement with the government and

accepted by the court, pared with the adopted PSR, dictated that three offenses

qualify him as an armed career criminal. No more, no less. Instead, the circuit court

insisted that “the plea agreement was not so limited,” as the plea agreement did not

use exclusive language. But it is equally true that the plea agreement did not use

inclusive language. The precise scope of the language is ambiguous; as such, the

above principles require that the language should be, and should have been,

interpreted against the government.

III.

This Case Presents a Clear Vehicle to Resolve the Predicate

Substitution Issue.

The procedural posture of this case gives a clear avenue for this Court to

resolve the predicate substitution issue. Mr. Bruten seeks relief through 28 U.S.C.

§ 2255. He did not previously raise this issue on appeal. Normally, Mr. Bruten would

be subject to the procedural default rule, a doctrine developed in the context of relief

under both 28 U.S.C. §§ 2254-2255. 5 But under this Court’s jurisprudence, Mr.

Bruten can show cause for his failure to raise this claim previously. Furthermore, Mr.

Bruten can show he has suffered actual prejudice, therefore, this Court now is

See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003) (relying on § 2254 cases for

developing the rule in the context of a § 2255 proceeding); United States v. Frady, 456 U.S. 152, 167

(1982) (discussing how the rule was developed in the context of § 2255 cases, later brought into § 2254

cases, and then reaffirmed in § 2255 cases). To overcome the procedural default rule, a petitioner must

satisfy “the ‘cause and actual prejudice’ standard . . . .” Id. at 167 (citing Davis v. United States, 411

U.S. 233 (1973); Francis v. Henderson, 425 U.S. 536 (1976); and Wainwright v. Sykes, 433 U.S. 72

(1977)).

5

21

presented with the opportunity to resolve the circuit split that has emerged over the

predicate substitution issue.

A.

Mr. Bruten can show cause for the default under Reed v. Ross.

It has been acknowledged that there are certain “objective impediments to

compliance” with the procedural default rule that allow a defendant to show cause

for the default. Murray v. Carrier, 477 U.S. 478, 488 (1986). This follows from the fact

that “[t]he procedural default rule is neither a statutory nor a constitutional

requirement, but it is a doctrine adhered to by the courts to conserve judicial

resources and to respect the law’s important interest in the finality of judgments.”

Massaro v. United States, 538 U.S. 500, 504 (2003). It was also imposed to “induce

litigants to present their contentions to the right tribunal at the right time.” Id.

(quoting Guinan v. United States, 6 F.3d 468, 474 (7th Cir. 1993) (Easterbrook, J.,

concurring).

But these policy concerns must give way to constitutional obligations. In Reed

v. Ross, the Court made clear that a petitioner may overcome a procedural bar when

they present a constitutional claim “so novel that its legal basis is not reasonably

available to counsel,” 468 U.S. 1, 16 (1984). The Court explained a constitutional

claim is rendered not “reasonably available” if the Court’s decision establishing the

claim meets one of three grounds. Id. at 17. The rule established by Samuel Johnson,

brought by Mr. Bruten’s § 2255 claim, satisfies all three grounds.

“First, a decision of this Court may explicitly overrule one of our precedents.”

Reed, 468 U.S. at 16 (citing United States v. Raymond Johnson, 457 U.S. 537 (1982)).

22

Of course, by finding the residual clause unconstitutional, Samuel Johnson expressly

overruled a long line of precedents construing the residual clause. See, e.g., Sykes v.

United States, 564 U.S. 1 (2011); James v. United States, 550 U.S. 192 (2007); see also

Begay v. United States, 553 U.S. 137 (2008). “Second, a decision may ‘overtur[n] a

longstanding and widespread practice to which this Court has not spoken, but which

a near-unanimous body of lower court authority has expressly approved.’” Reed, 468

U.S. at 17 (quoting Raymond Johnson, 457 U.S. at 551). Before Samuel Johnson,

there was a broad consensus that the residual clause was not void for vagueness

under Supreme Court precedent. See generally United States v. Gandy, 710 F.3d 1234

(11th Cir. 2013). (surveying cases). “[F]inally, a decision may ‘disapprov[e] a practice

this Court arguably has sanctioned in prior cases.’” Reed, 468 U.S. at 17 (quoting

Raymond Johnson, 457 U.S. at 551). Because of finding the entire residual clause

void-for-vagueness, the Court was disapproving of prior cases that sought to distill

its precise meaning.

When Mr. Bruten was sentenced in 2013, only a “law-office betting pool” of

SCOTUSblog seers handpicked by Nostradamus could have predicted that the

residual clause would be struck down in two years. See Derby v. United States, 564

U.S. 1047, 1048 (2011) (Scalia, J., dissenting from denial of certiorari). Rather,

reasonable defense counsel would have observed that, only two years earlier, “Justice

S[calia] was the only Member of the Sykes Court who took the position that the

residual clause could not be intelligibly applied to the offense at issue.” Samuel

Johnson, 135 S. Ct. at 2575 (Alito, J., dissenting); see also Rose v. United States, 738

23

F. App'x 617, 626 (11th Cir. 2018) (finding cause for failing to assert a vagueness

challenge to the ACCA’s residual clause on direct appeal).

B.

Actual prejudice goes directly to the predicate substitution

issue.

To overcome the procedural bar, Mr. Bruten must not only show cause for the

default, but he “must [also] show ‘not merely that the errors []. . . created a possibility

of prejudice, but that they worked to his actual and substantial disadvantage . . . .’”

Murray, 477 U.S. at 494 (1986) (quoting Frady, 456 U.S. at 170). A mandatory

minimum sentence of 180 months under 18 U.S.C. § 922(g), a 60-month increase from

the statutory maximum sentence attributable to the ACCA enhancement, is a

substantial disadvantage. See Glover v. United States, 531 U.S. 198, 200 (2001)

(holding that an increased prison term flowing from an error amounted to prejudice);

Cross v. United States, 892 F.3d 288 (7th Cir. 2018) (finding cause and prejudice in a

Samuel Johnson claim). There is no question that fleeing and eluding under Florida

law is not a valid ACCA predicate in a post-Samuel Johnson world; indeed, all parties

and the court below agree on this. See Garner, 644 F. App’x at 881; Bruten, 814 F.

App'x at 488.

This case presents a particularly good opportunity to resolve the issue because

the only question that remains is whether the parties must be held to the list of three

ACCA predicates that went unopposed at sentencing. If they must be held to that list,

then Mr. Bruten can show prejudice. If a government or court can retroactively alter

the list of enumerated predicates, then Mr. Bruten cannot show prejudice. While it

was not raised in direct appeal, Mr. Bruten fully litigated the question here on

24

collateral review in the district court and before the Eleventh Circuit. If this Court

adopts either the Fourth or Seventh Circuits’ positions, Mr. Bruten will be entitled to

relief on his § 2255 motion.

District courts sentence hundreds of defendants under the ACCA every year,

and thousands of prisoners are serving ACCA sentences. 6 Given the frequency with

which this Court wades into the ACCA’s treacherous waters and the hundreds of

collateral challenges prompted by these decisions, the question here is likely to

reoccur. 7 Thus, the question presented affects scores of prisoners, now and into the

future, and resolves whether those prisoners whose ACCA sentences were based on

a non-qualifying predicate are entitled to relief.

The Court should weigh in.

See U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Firearms Offenses in the

Federal

Criminal

Justice

System

at

6,

54

(Mar.

2018), https://www.ussc.gov

/sites/default/files/pdf/research-and-publications/research-publications/2018/20180315_FirearmsMand-Min.pdf (stating that district courts sentence between 300 and 600 defendants under the ACCA

every year).

6

Indeed, this Court has interpreted the ACCA several times in the last decade. See Shular v.

United States, 140 S. Ct. 779 (2020); Quarles v. United States, 139 S. Ct. 1872 (2019); Stokeling v.

United States, 139 S. Ct. 544 (2019); United States v. Stitt, 139 S. Ct. 399 (2018); Mathis, 136 S. Ct.

2243; Descamps, 570 U.S. at 254; Sykes, 564 U.S. 1; Curtis Johnson v. United States, 559 U.S. 133

(2010).

7

25

CONCLUSION

For the reasons stated above, this Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

James T. Skuthan

Acting Federal Defender

/s/ Michelle R. Yard

Michelle R. Yard, BCS

Research and Writing Attorney

Florida Bar No. 14085

Federal Defender’s Office

201 S. Orange Avenue, Suite 300

Orlando, Florida 32801

Telephone: (407) 648-6338

E-mail: Michelle_Yard@fd.org

Counsel of Record for Petitioner

26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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