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.