United States v. Hodge

• Decision Date: 22 August 2018
• Docket Number: No. 17-6054,17-6054
• Citation: 902 F.3d 420
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Garnett Alison HODGE, Defendant-Appellant. Tony Lloyd Johnston, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

902 F.3d 420

UNITED STATES of America, Plaintiff-Appellee,

v. Garnett Alison HODGE, Defendant-Appellant.Tony Lloyd Johnston, Amicus Curiae.

No. 17-6054

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2018

Decided: August 22, 2018

ARGUED: John Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North Carolina, for Appellant. Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Amicus Curiae. Michael Francis Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Amicus Curiae.

Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.

GREGORY, Chief Judge:

Garnett Alison Hodge received a mandatory sentence enhancement under the Armed Career Criminal Act (ACCA) based on three prior convictions. One of those convictions no longer qualifies as an ACCA predicate in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). When Hodge filed a motion to vacate his sentence under 28 U.S.C. § 2255, the Government argued and the district court found that another conviction, listed in Hodge's PSR but never designated as an ACCA predicate, could replace the now-invalid predicate. We disagree. And, because Hodge has shown that his sentence is unlawful, we reverse and remand for resentencing.

I.

In December 2010, Hodge was indicted for federal drug and firearm offenses. He later pleaded guilty to possession with intent to distribute 8.2 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

The U.S. Probation Office prepared a Presentence Investigation Report (PSR). According to the PSR, Hodge qualified for a sentence enhancement under the ACCA, 18 U.S.C. § 924(e)(1). The ACCA provides that a person who violates 18 U.S.C. § 922(g) —as Hodge did here—and has three previous convictions for a "violent felony" or a "serious drug offense" committed on different occasions "shall be ... imprisoned not less than fifteen years." Id. Hodge's PSR identified three ACCA predicate convictions: (1) a July 1992 Maryland conviction for felony possession of cocaine with intent to distribute, a serious drug offense; (2) a July 1998 Maryland conviction for felony possession of cocaine with intent to distribute, another serious drug offense; and (3) a 1998 Maryland conviction for three counts of misdemeanor reckless endangerment, a violent felony.¹ In a separate "criminal history" section, the PSR listed at least seven other convictions not designated as ACCA predicates, including another Maryland conviction for felony possession of cocaine with attempt to distribute from March 1992.

Based on the offenses of conviction and Hodge's criminal history, Hodge faced a minimum of fifteen years (180 months) and a maximum of life in prison. The § 841(a)(1) drug conviction entailed a ten-year mandatory minimum and a maximum sentence of life under 21 U.S.C. § 841(b)(1)(B).² With the ACCA enhancement, the § 922(g)(1) firearm conviction carried a fifteen-year mandatory minimum sentence. See 18 U.S.C. § 924(e)(1). Meanwhile, the sentencing guidelines prescribed a total offense level of 31 and a criminal history category of VI, resulting in a guideline range of 188 to 235 months.

Neither Hodge nor the Government objected to anything in the PSR. At a September 2011 hearing, the sentencing court adopted the PSR without change. The court then sentenced Hodge to 188 months for the drug conviction and 204 months for the firearm conviction, to run concurrently.

Hodge appealed, but his appeal was dismissed based on an appeal waiver in his plea agreement. In June 2014, Hodge filed a § 2255 motion, challenging the § 841(a)(1) drug conviction under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and the § 922(g)(1) firearm conviction under Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The district court dismissed this § 2255 motion on timeliness grounds.

In June 2016, this Court granted Hodge permission to file a second § 2255 motion in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (hereinafter " Johnson II "³ ), which substantially narrowed the ACCA's definition of "violent felony," and Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which held that Johnson II applies retroactively on collateral review. When Hodge was sentenced, the ACCA defined "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that either

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause]; or

(ii) is burglary, arson, or extortion, involves use of explosives [the enumerated crimes clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].

18 U.S.C. § 924(e)(2)(B). Johnson II , however, struck down the residual clause as unconstitutionally vague. See 135 S.Ct. at 2563. In his second § 2255 motion, Hodge argued that his ACCA-enhanced sentence is now invalid: Without the ACCA's residual clause, Hodge contended, his reckless-endangerment conviction no longer qualifies as an ACCA predicate. And, without the reckless-endangerment conviction, he has only two ACCA predicates—the July 1992 and July 1998 Maryland convictions for felony possession of cocaine with attempt to distribute.

Initially, the Government agreed. In its response to Hodge's § 2255 motion, the Government conceded that the reckless-endangerment conviction was not a "violent felony" under the ACCA post- Johnson II . Because an ACCA sentence enhancement requires three predicate offenses and Hodge had only two, the Government recommended that Hodge be resentenced.

Ten days later, however, the Government reversed course. In a supplemental response to Hodge's § 2255 motion, the Government argued that Hodge continued to qualify for the ACCA sentence enhancement notwithstanding Johnson II because he had a third conviction for Maryland felony possession of cocaine with attempt to distribute from March 1992. The Government asserted that this conviction—like Hodge's July 1992 and July 1998 convictions for the same offense—qualifies as an ACCA predicate, even though the PSR did not identify it as one.

In December 2016, the district court denied Hodge's second § 2255 motion. Hodge v. United States , No. 1:16-cv-781, 2016 WL 7480397, at *1 (M.D.N.C. Dec. 29, 2016). The court assumed without deciding that Maryland's misdemeanor reckless-endangerment offense no longer qualifies as an ACCA predicate. Id. at *2. But the court agreed with the Government that Hodge's March 1992 conviction for felony possession of cocaine with intent to distribute does qualify as an ACCA predicate. Id. at *4. The court reasoned that, when presented with a Johnson II -based § 2255 motion, courts "should ordinarily examine the defendant's entire criminal record to determine whether he has three qualifying convictions for an ACCA-enhanced sentence." Id. at *3. Because Hodge's record contained three convictions that could qualify as ACCA predicates, the court determined that Hodge was properly sentenced as an armed career criminal under the ACCA and was not entitled to § 2255 relief. Id. at *4.

The district court nonetheless issued a certificate of appealability, and Hodge timely appealed.

II.

We begin by noting that Hodge's § 2255 motion is procedurally proper. Federal prisoners who seek relief in a second or successive § 2255 motion must show that their claim relies on either newly discovered evidence or a new rule of constitutional law. See 28 U.S.C. § 2244(b)(2) ; id. § 2244(b)(4) (providing that "district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements" in § 2244(b)(2) ); United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017) (recognizing that § 2255 incorporates § 2244(b)'s requirements). A Johnson II -based § 2255 motion relies on a new rule of constitutional law, and thus clears this procedural hurdle, when the petitioner's ACCA-enhanced sentence "may have been predicated on application of the now-void residual clause." Winston , 850 F.3d at 682. Here, the Government has conceded that Hodge's ACCA enhancement was predicated on application of the residual clause because Hodge's Maryland reckless-endangerment conviction—one of the three predicate convictions supporting that enhancement—"only could qualify as a ‘violent felony’ under the ‘residual clause.’ " J.A. 122. We therefore proceed to the merits of the motion.

III.

To prevail on a § 2255 motion to vacate, the petitioner must show that his sentence is unlawful on one of the grounds specified in § 2255(b). United States v. Pettiford , 612 F.3d 270, 277 (4th Cir. 2010) (citing United States v. Hadden , 475 F.3d 652, 661 (4th Cir. 2007) ). Specifically, the petitioner must demonstrate that "the judgment was rendered without jurisdiction," "the sentence imposed was not authorized by law or otherwise open to collateral attack," or "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). Thus, the question before us is whether Hodge can show that his ACCA-enhanced sentence is unlawful where the sentencing court relied on three ACCA predicate convictions, one of those three predicates is no...