Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, December 28, 2021

Sharp: Given Intervening Change in Law, No Waiver by the Government for Failing to Rely on a Prior Conviction for ACCA Purposes at Sentencing

In United States v. Sharp, No. 20-12574 (Dec. 28, 2021) (Wilson, Lagoa, Martinez (S.D. Fla.)), the Court, in a government appeal, vacated the district court’s non-ACCA sentence and remanded for re-sentencing.

At sentencing, the government failed to rely on the defendant’s prior Georgia conviction for making terroristic threats as an ACCA predicate because, at that time, circuit precedent had held that it categorically did not qualify as an ACCA predicate.  However, ten days after sentencing, the Eleventh Circuit modified that precedent and held that the Georgia statute was divisible and so could qualify.  In this case, the Eleventh Circuit held that, in light of the intervening change in the law, the government did not waive its ability to rely on that prior conviction by failing to rely on it at sentencing.  The Court found it to be "too far a stretch" to require the government to object to binding precedent or anticipate future changes in the law.  The Court remanded for the district court to receive evidence and determine whether the defendant’s particular conviction qualified under the ACCA.