In Tribue v. United States, No. 18-10579 (July 11,
2019) (Hull, Jordan, Grant), the Court affirmed the denial of a 2255
motion based on Johnson.
First, the Court concluded that the 2255 motion was properly
denied because the movant had three prior serious drug offenses under the ACCA. The Court rejected the movant's argument that
the government waived reliance on one of three convictions, which was not
identified as an ACCA predicate in the PSI, because the government failed to
rely on that conviction at sentencing.
The Court emphasized that the government had no reason to rely on that
conviction at the time of sentencing, where there was no objection to the ACCA
enhancement. Because there was no
objection, and the government did not expressly disclaim reliance on the prior
conviction, the Court distinguished other cases where the Court had found a
government waiver.
