Whether a defendant in a 28 U.S.C. § 2255 proceeding may prove that his enhanced sentence was based on the now-unconstitutional residual clause of the Armed Career Criminal Act by showing that a predicate offense does not fit the elements or enumerated crimes clauses, including through the use of post-sentencing case law

QUESTION PRESENTED In Johnson v. United States, this Court held that the residual clause of the Armed Career Criminal Act is unconstitutional. In Welch v. United States, this Court declared that the Johnson rule applies retroactively to cases on collateral review. Under 28 U.S.C. § 2255, when a defendant collaterally attacks his sentence under Johnson, he bears the burden of proving that the sentence was based upon the now-forbidden residual clause. But when the record in the district court is silent on that topic, as it so often is, how shall a defendant meet that burden? The courts of appeals are fractured on this question. All agree that a district court must look to the factual record at the sentencing hearing and the case law current at the time of the hearing. But is that all? The First, Eighth, Tenth, and Eleventh Circuits insist that a district court must not look beyond that so-called “historical record,” a snapshot of the long-ago sentencing hearing entirely divorced from later case law interpreting the very same enhancement statute. See, e.g., Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017). Other circuits, including the Third, Fourth, and Ninth Circuits permit a defendant, faced with a silent record at the original sentencing hearing, to prove the residual clause by ruling out the recidivist statute’s alternative clauses (elements and enumerated crimes). And through this process of elimination, the defendant in these circuits may highlight post-sentencing case law clarifying that the sentencing court could not have lawfully relied upon any clause but the residual. ll And that is the question here: May a § 2255 defendant, faced with a silent record below, prove his enhanced sentence was indeed based upon the residual clause by showing that a predicate offense does not fit with the statutes alternative sources: the elements and enumerated crimes clauses? And may he prove his case by surveying post-sentencing case law, including this Court’s decisions clarifying the meaning of those alternative clauses?! 1 A collection of petitions pending before this Court present variations on this very question, including: Curry v. United States, No. 18-229 (pending); George v. United States, No. 18-5475 (pending); Perez v. United States, No. 18-5217 (pending); Prutting v. United States, No. 18-5398 (pending); and Washington v. United States, No. 18-5594 (pending). The Court has denied a handful of petitions on this topic, including: Casey v. United States, No. 17-1251 (cert. denied June 25, 2018); Coachman v. United States, No 17-8480 (cert. denied Oct. 1, 2018); King v. United States, No. 17-8280 (cert. denied Oct. 1, 2018); Oxner v. United States, No. 17-9014 (cert. denied Oct. 1, 2018); Rhodes v. United States, No. 17-8667 (cert. denied May 28, 2018); Robinson v. United States, No. 17-8457 (cert. denied Oct. 1, 2018); Westover v. United States, No. 17-7607 (cert. denied April 30, 2018); Snyder v. United States, No. 177157 (cert. denied April 30, 2018).