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

QUESTIONS PRESENTED In Johnson v. United States, 135 8. Ct. 2551 (2015), this Court declared the Armed Career Criminal Act’s (ACCA) residual clause unconstitutionally vague. In Welch v. United States, 136 S. Ct. 1257 (2016), this Court held that Johnson announced a new substantive rule of constitutional law that applied retroactively on collateral review. In Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), the Eleventh Circuit considered how a defendant could meet his burden to prove his ACCAenhanced sentence was based upon the now unconstitutional residual clause. The court concluded the defendant could rely only on the “historical record,” that is, the long-ago sentencing transcript and a snapshot of the then-current case law. Since then, a number of other circuits have diverged, holding instead that a court may consider the historical record, but when that record is silent, it may also rule out the alternative non-residual clauses by looking to more recent Supreme Court cases clarifying the law. In Beckles v. United States, 137 S. Ct. 886 (2017), this Court held an identical residual clause in the Career Offender provision of the Sentencing Guidelines was not unconstitutionally vague. See USSG § 4B1.2(a)(2). The Court reasoned that the advisory Guidelines were not subject to the constitutional vagueness prohibition because, unlike the ACCA, they do not “fix the permissible range of sentences.” Beckles, 137 S. Ct. at 892. The Beckles Court, however, “le[ft] open the question whether defendants sentenced to terms of imprisonment before our decision in United i States v. Booker, 543 U.S. 220 (2005) — that is, during the period in which the Guidelines did fix the permissible range of sentences — may mount vagueness attacks on their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (citations omitted). The questions presented here are: 1. May a defendant, faced with a silent record below, prove that his ACCAenhanced sentence was indeed 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 clarifying 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?? 1A collection of petitions pending before this Court present variations on this question. See, e.g., Beeman v. United States, No. 18-6385 (pending); Harper v. United States, No. 18-339 (pending); Prutting v. United States, No. 18-5398 (pending); Curry v. United States, No. 18-229 (pending); George v. United States, No. 18-5475 (pending); and Washington v. United States, No. 18-5594 (pending). The Court has also denied petitions on this topic. See, e.g., 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); Perez v. United States, No. 18-5217 (cert. denied Oct. 9, 2018). 2 Mr. Upshaw is aware of at least four other cases pending before this Court that present a similar issue. See Cottman v. United States, No. 17-7563 (pending); Garrett v. United States, No. 18-5422 (pending); and Allen v. United States, No. 18-5939 (pending). il PARTIES INVOLVED The parties identified in the caption of this case are the only parties before the Court. iii