Government Can’t Go Back to Argue Status of Prior Convictions in 2255

US v. Winbush: Last August the Fourth Circuit decided Hodge, in which the defendant filed a post-Johnson challenge to his ACCA designation, but the Government argued that other priors in his record were also ACCA predicates and so he was still properly sentenced under that provision. The court concluded that the Government couldn’t do that and was restricted to the ACCA predicates that were originally identified when Hodge was sentenced. This case takes that holding and applies it to a Guideline situation.

Winbush pleaded guilty to possession with intent to distribute crack and was sentenced as a career offender. Winbush later filed a 2255 motion arguing his counsel had been ineffective for failing to object to one of the identified priors as being a “controlled substance offense.” The Government agreed that one of the two priors was not a controlled substance offense, but argued that Winbush had another prior conviction for a “crime of violence,” and thus still qualified as a career offender. The district court agreed and denied Winbush’s 2255 motion.

On appeal the Fourth Circuit reversed. Applying Hodge, the court held that the Government was similarly prohibited from pointing to other prior convictions that could be career offender predicates now that it had not identified as such during Winbush’s original sentencing. Specifically, the court rejected the Government’s argument that the advisory Guidelines were different from an ACCA designation, noting that “this difference does not mean that the career offender designation has no consequences for criminal defendants.”