Eleventh Circuit Court of Appeals - Published Opinions

Thursday, July 11, 2019

Tribue: Government Did Not Waive Ability to Rely on New ACCA Predicate in 2255 Proceeding

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.