US v. Hodge: Hodge was convicted of, among other things, being a felon in possession of a firearm. In the PSR, the probation officer identified three prior Maryland convictions that qualified Hodge for sentencing under the Armed Career Criminal Act. The PSR also listed several other convictions, at least one of which could have been an ACCA predicate. There were no objections to that determination and Hodge was sentenced to 204 months on that conviction.
In the wake of Johnson, Hodge filed a 2255 motion seeking to vacate his sentence on the felon in possession charge, arguing that one of the identified ACCA priors no longer counted as a crime of violence. After initially agreeing that Hodge should be resentenced, the Government changed its mind and argued that he still qualified for sentencing under ACCA because of the other potential ACCA predicate listed in the PSR, but not previously identified as one. The district court agreed and denied Hodge’s motion.
The Fourth Circuit reversed. The court noted that to prevail on his 2255 motion all Hodge had to show was that his sentence as imposed violated the Constitution. He did that by showing that one of the identified prior convictions no longer qualified as an ACCA predicate. The court rejected the Government’s attempt to identify another conviction as an ACCA predicate at this point. The court noted that due process requires a defendant have notice of the alleged ACCA predicates during the initial proceeding. If the Government (or probation officer) doesn’t identify more than the minimum number of priors needed to trigger ACCA, it cannot go back and find another if one of the identified predicates goes away. The court requires that the Government request that all potential predicates be determined to be such (if it wants to rely on them later), avoiding the awkward nature of defense counsel identifying other potential predicates while arguing they are not predicates. Bottom line – the Government bears the burden.