No. 18-6760

David Junior Upshaw v. United States

Lower Court: Eleventh Circuit
Docketed: 2018-11-20
Status: Denied
Type: IFP
Response WaivedIFP
Tags: acca-sentencing armed-career-criminal-act collateral-review criminal-procedure mandatory-guidelines post-sentencing-law pre-booker-mandatory-guidelines residual-clause retroactivity sentencing-guidelines vagueness void-for-vagueness
Latest Conference: 2019-01-04
Question Presented (from Petition)

1. May a defendant, faced with a silent record below, prove that his ACCA enhanced sentence was in deed based upon the residual clause through a process of elimination? And in doing so, can he rely on post-sentencing case law, including this Court's decisions cla rifying the other ACCA clauses ?

2. Is USSG § 4B1.2(a)(2) 's residual clause void for vagueness with respect to defendants sentenced under the pre -Booker mandatory Guidelines ?

Question Presented (AI Summary)

Whether a defendant can prove his ACCA-enhanced sentence was based on the residual clause through a process of elimination and rely on post-sentencing case law

Docket Entries

2019-01-07
Petition DENIED.
2018-12-06
DISTRIBUTED for Conference of 1/4/2019.
2018-12-03
Waiver of right of respondent United States to respond filed.
2018-11-16
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due December 20, 2018)

Attorneys

David Upshaw
Megan Jean SaillantOffice of the Federal Public Defender for the Northern District of Florida, Petitioner
United States
Noel J. FranciscoSolicitor General, Respondent