PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________
No. 2 0

- 1691

__ __________ UNITED STATES OF AMERICA

v.

JEFFREY A. BENTLEY

,

Appellant

____________ On Appeal from the United States District Court

for the District of Delaware (D.C. C riminal No. 1

- 05

- cr

- 00 039

- 001 ) District Judge , Maryellen Noreika

__ __________ Argued: June 29 , 2022

Before: JORDAN

, PORTER , and P HIPPS

,

Circuit Judges

.
(Filed: September 14, 2022)

____________2 Daniel J. Ty r rell [ARGUED ] Chiesa Shahinian & Giantomasi One Boland Drive West Orange, NJ 07024

Counsel for Appellant

Alexander P. Ibrahim [ARGUED ] Office of United States Attorney 1313 North Market Street Hercules Building, Suite 400 Wilmington, DE 19801

Counsel for Appell ee

____________ OPINION OF THE COURT

____________ PORTER, Circuit Judge

.
Jeffre y Bentley appeals from the District Court’s denial of his post

- conviction motion. In a plea agreement, Bentley admitted he had three prior “violent felony” convictions

, requiring a sentencing enhancement under the Armed Career Criminal Ac t (“ACCA ” )

. He was sentenced to twenty

- two years in prison. A decade later

, in Johnson v. United States

, the Supreme Court held that one part of ACCA’ s definition of “violent felony,” known as the “residual clause

, ” was uncon

stitutional ly vague

. 576 U.S. 591 , 597 (2015)

. Seeking t o ret

roactively benefit from that legal development, Bentley a sk ed the District Court to vacate his sentence and order resentenc

ing

. The District Court denied Bentle y a do

- over. The District3 Court concluded that even if the prior conviction s mentioned in Bentley’s plea could no longer be count ed as strike s under ACCA

, a ny error would be harmless because of Bentley’s long rap sheet of ACCA

- qualifying burglaries

, documented in an undisputed p resentenc e r eport

. On appeal, Bentle y argues that the District Court had to di sregard his ACCA

- qualifying bur

glaries because they were n ot mentioned in his plea agreement. He als o quibbles with the District Court’s factual finding s

. We disagree with Bentley ’s arguments , so we will affirm.

I

A

In 2005

, Bentley robbed a liquor store at gunpoint. The police caught him aft er a car chase, and he confessed to the robbery . Bentley was indicted for being a felon in possession of a firearm, 18 U.S.C. § 922(g) (1)

, Hobbs Act robbery, id. § 1951, and using and carrying a firearm during a crime of violence, id. § 924(c)(1)(A)(ii).

Count one, the felon

- in

- possession

- of

- a

- firearm charge, carrie d a sentence of not more than ten years. 18 U.S.C. § 924(a)( 2 ) (2 005 )

. 1 But under ACCA

, a person convicted of that c rime who has three or more prior convictions “for a vio

lent felony or a seri ous drug offense, or both,” is subject to a

1 Congress recently increased t he maximum penalty to 15
years. Bipartisan Safer Communities Act, Pub. L. 117

- 159, Div. A, Title II, § 12004(c)

, 136 Stat. 1313, 1329 (2022)

, cod

ified at 18 U.S.C. § 924 (a)(8)

.4 mandatory sentence of “not less than fifteen years.” Id. § 924(e)(1).
Bentley agreed to plead guilty to being a felon in pos

session of a firearm and using and carrying a firearm during a crime of violence

. As pa rt of the plea agreement , Bentley also admitted he was subject to ACCA ’s sentencing enhancement

. The first paragraph of the plea memorandum recited that Bentley “has three previous convictions for a violent felony committed on occasions different from one another,” an d so is subject to a sentencing enhancement under ACCA

. J.A. 28. The fourth paragraph of the memorandum gave a factual basis for Bentle y’s guilty plea, an d included a n admission that Bentley “was convicted previously [of] three violent felonies,” listing three prior convictions:

(1) Reckless Endangering in the First Degree in Kent County (Delaware) Superior Court on or about March 8, 1991 ;

(2) Robbery and Use of a Firearm in the Circuit Court of the City of Richmond (Virginia) on or about December 14, 1988; and

(3) Robbery and Use of a Firearm in the Circuit Court of the County of Henrico (Virginia) on or about February 14, 1989.

J.A. 29

– 30. T he United States agreed to recommend the mini

mum prison sentence available to Bentley

— fifteen years for

c ount one (as required by ACCA) and seven years for count three, using and carrying a firearm during a crime of violence

, for a total of twenty

- two years ’ imprisonment . It also agreed to5 dismiss c ount t wo, Hobbs Act robbery

. The plea memorandum specified that the District Court was not bound by the sentenc

ing stipulations made by the parties. 2

B
During the sentencing hearing

, the Distric t Court adopted “the facts as represented in the presentence investiga

tion report

, ” without objection. J.A. 37 ; see also F ed. R. C rim. P. 32(i)(3)(A) (sentencing court “may accept any undisputed portion of the presentence report as a finding of fact”)

. The
p resentence r eport (“PSR”) referenced Bentley’s extensive criminal history and said that Bentley “has previously been convicted of both robbery and burglary” and so was subject to Section 4B1.4 of the Sentencing Guidelines

, the section imple

menting AC CA’s sentencing enhancement

. PSR ¶ 33. The PSR ’s criminal

- history section listed eighteen prior convic

tions

, including si x breaking

- and

- entering convictions in North Carolina.
During the plea colloquy

, the parties agreed that Bentley was subject to ACCA ’s enhancement without elaboration :
THE COURT: Is there any objection to an enhancement in the offense level to 33 because the defendant is considered under the circum

stances a Career Criminal with in the meaning of

2 The plea agreement was thus a non

- binding “Type B” plea, not a “Type C” plea binding the court to a particular sentence. Compare Fed. R. Crim. P. 11(c)(1)(B), with Fed. R. Crim. P. 11(c)(1)(C); see also United States v. Gillen , 449 F.3d 898, 902 (8th Cir. 2006) (explaining the difference).6 Guidelines Section 4 B1.4? Do we agree, coun

sel?

GOVERNMENT COUNSEL : Agreed.

DEFENSE COUNSEL : Agreed.

J.A. 39. W hen discussing ACCA ’s sentencing enhancement with Bentley

, the District Court referenced Bentley’s prior encounters with the criminal justice systems of “Virginia and North Carolina

, ” but never mentioned Bentley’s Delaware reckless endangering convictio n

. J.A. 54

. The District Court ultimately sentenced Bentley t o fif

teen years for c ount one , the minimum mandatory sentence under ACCA , and seven years for count three , to run consecu

tively, for a total sentence of twenty

- two years

. Bentley did not appeal his sentence.

C
ACCA’s definition of violent felony provides , in full :
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceed

ing one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that

—
(i) has as an element the use, attempte d use, or threatened use of physical force against the person of another; or7 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves con

duct that presents a serious potential risk of physical injury to another

.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Paragraph (i) of the definition of violent felony is known as the force or ele

ments clause. The first part of paragraph (ii) is known as the enumerated

- offenses clause. The italicized part of paragraph (ii) is known as the “residual clause.”
“The Supreme Court long struggled with interpreting various ‘residual clauses’ in federal criminal statutes, such as the definition of ‘violent felony’ in the Armed Career Criminal Act .

. . . ” United States v. Vargas

- Soto , 35 F. 4th 979, 984 (5th Cir. 2022)

. The difficult ies began when the Supreme Court held that ACCA require s a “categorical approach

. ” Taylor v. United States , 495 U.S. 575, 60 2 (1990)

. Under a categorical approach, courts deciding whether a prior conviction counts as a violent felony must ignore the specific conduct of the crimi

nal and ask instead whether the elements of the crim e are no broader than ACCA’s general terms

. Id. at 600.
The categorical appro ach made it difficult to predictably apply ACCA’s residual clause , as the clause itself references “conduct

. ” Before Johnson , w hen determin ing whether prior conviction s f

e ll under ACCA’s residual clause, courts had to decide “ whether the conduct encompassed by the ele ments of the offense, in the ordinary case, presents a serious potential risk of injury to another. ” James v. United States , 550 U.S. 192, 208 (2007), overruled by Johnson , 576 U.S. 59 1. But t his “ordinary case” analysis proved “nearly impossible to apply8 consistently.” Chambers v. United States , 555 U.S. 122, 133

– 34 (2009) (Alito, J., concurring in the judgment), abrogated by Johnson , 576 U.S. 591 ; see also Sessions v. Dimaya , 138 S. Ct. 1204, 1215 (2018) (“ How does one go about divining the con

duct entailed in a crime ’ s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct? ”)

. Given the diffi

culty of this enterprise, some Justices began call ing on the Court to hold the residual clause void for vagueness. James
, 5 50 U.S. at 23 0 (Scalia, J., dissenting).
The Supreme Court at first resisted

, b ut in Johnson , “the skeptics won.” Vargas

- Soto , 35 F.4th at 985. In Johnson , t he Supreme Court overruled James and held “ that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process .” 576 U.S. at 606

. Johnson , however, did “ not call into question

. . . the remainder of the Act’s definition of a violent felony.” Id.

After Johnson , in Welch v. United Sta tes , the Supreme Court held that Johnson ’s holding applied in post

- conviction cases brought under section 2255 of the Judicial Code . 578 U.S. 120, 135 (2016). A flood of post

- conviction motions seek

ing to vacate ACCA sentences followed.

D
Bentley filed on e of those motions. He asked the District Court to vacate his original sentence and order resen

tencing, claiming that hi s sentence was unconstitutional after Johnson

. Focusing on the three prior convictions mentioned in his plea memorandum

, Bentley argued that his Delaware con

viction for reckless endangering and his two Virginia robbery convictions could no longer be counted as ACCA predicates

.9 Proceedings on Bentley’s motion were stayed pendin g the resolution of cases involving North Carolina’s b reaking

and

- entering statute, as well as Supreme Court cases address

ing the scope o f “ burglary ” under ACCA’s enumerated

offenses clause

. These decisions were ultimately unfavorable to Bentley’s legal p osition. 3 Wanting to move forward, Bentley requested that the stay be lifted and that the United States respond to his motion.

The United States answered that even though Bentley’s reckless endangering conviction could no longer be validly counted as a violent felony after Johnson , Bentley had si x prior North Carolina convictions for breaking and entering with intent to commit larceny, which would still qualify as generic burglary under ACCA ’s enumerated

- offenses clause

. See N.C. Gen. Stat. § 14

- 54(a) ; see also United States v. Mungro , 754 F.3d 267, 272 (4th Cir. 2014) (“We therefore conclude that N.C. Gen. Stat. § 14

– 54(a), as interpreted by the North Carolina Supreme Court, sweeps no more broadly than the generic elements of burglary.”)

. B entley did not reply.
The District Court denied Bentley’s motion. “Given [Bentley’s] apparent concession that [his] prior North Carolina

3 See Q uarles v. United States , 139 S. Ct. 1872, 1877 (2019) (“burglary” under ACCA includes “remaining

- in” burglary

even whe n the criminal intent to commit a burglary is formed after entry); United States v. Stitt , 139 S. Ct. 399, 403

– 04 (2018) (“burglary” under ACCA includes the burglary of a structure or vehicle customarily used for overnight accommo

dation); United States v. Beatty , 702 F. App ’ x 148, 150 (4th Cir. 2017) (North Carolina breakin g

- and

- entering statute’s “building” element tracks ACCA generic burglary).10 felony convictions are relevant to deciding whether to grant relief,” the District Court viewed the relevant issue before it as whether Bentley’s six convictions under section 14

- 54(a) of the North Carolina General Statutes qualified as generic bur

glary under ACCA ’s enumerated

- offenses clause

. J.A. 3. The District Court held that they did

. We granted a certificate o f appealability and asked the parties to address “whether the District Court erred by relying on convictions other than those identified in the plea agreement to sustain the ACCA sentence and deny Bentley’s § 2255 motion.” J.A. 15. This appeal followed. 4

II
The District Court had jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C. § 2255(a) . We have jurisdiction under 28 U.S.C. § § 1291 and 2253. We review questions of la w de novo

. United States v. Peppers , 899 F.3d 211, 22 0 (3d Cir. 2018). We review the Dist rict Court’s findings of fact for clear error. United States v. Folk , 954 F.3d 597, 601 (3d Cir. 2020 )

.
III

The main issue in this appeal boils down to whether ACCA’s residual clause made a difference to Bentley’s sen

tence, and if so, whether the constitutional error was harmless. More narrowly, we must address whether the District Court could consider the breaking

- and

- entering convictions men

tioned in Bentley’s PSR as ACCA predicates, even though they

4 Daniel J. Ty r rell of Chiesa Shahinian & Giantomasi repre

sented Bentley on appeal pro bono. He has ably discharged his responsibilities.11 were not listed in the plea memorandum ’s factual stipulations

. If the answer is yes, we must then consider whether Bentley’s North Carolina convictions qualify as violent felonies under ACCA.

A

W e begin by explaining the legal framework governing Bentley’s claim for reli ef. T o prevail, Bentley must show that his sentence was constitutionally invalid. 28 U.S.C. § 2255 (a), (b). In this context, Bentley “has the burden of proving the mer

its of his Johnson claim, .

. . which means he bears the burden of demonstrating that his sentence implicated the residual clause of the ACCA.” Peppers , 899 F.3d at 235. “To prove a Johnson claim,” Bentley must “demonstrate that his sentence necessarily implicates the resid ual clause, which may be shown either by evidence that the district court in fact sentenced him under the residual clause or proof that he could not have been sentenced under the elements or enumerated offenses clauses based on current case law, and that t hat made a difference in his sentence.” Id. at 235 n.21. He must prove this by a prepon

derance of the evidence. Id. If Bentley proves his Johnson claim

, we must consider whether the error was harmless

. Peppers , 899 F.3d at 236

. 5 On collateral review , a Johnson

5 See also Fed. R. Civ. P. 61 (“At every stage of the proceeding, the court must disregard all err ors and defects that do not affect any party ’ s substantial rights.”); Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect sub

stantial rights must be disregarded.” ); Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 12 ( noting the applicability of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure )

.12 error requires vacatur o nly if the error caused “actual prejudice,” that is, “had [ a ] substantial and injurious effect or influence ” on the sentenc e. Brecht v. Abra ha mson , 507 U.S. 619, 631 , 637 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)).
Bentley asserts that he has proven his Johnson claim because the three prior convictions listed in his plea memorandum fit no other part of ACCA’s “violent felony” def

inition, so his sentence necessarily implicated the unconstitu

tional residual clause. Bentley’s argument assumes t hat the sentencing court relie d exclusively on the three prior convic

tions stipulated in the plea memorandum to sentence Bentley under ACCA

.
Th at assumption is d ifficult to test here

. “ A sentencing court is not bound by factual stipulations in a plea agreement and has discretion to make factual findings based on other rel

evant information.” United States v. Ketcham , 80 F.3d 789, 792 n.6 (3d Cir. 19 96); see also United States v. Maurer , 639 F.3d 72, 81 (3d Cir. 2011) (same). The PSR , adopted by the sentencing court without objection, is other relevant infor

mation. See Fed. R. Crim. P. 32( i )( 3)(A) ; U.S.S.G. § 6A1.1 (commentary) (“ A thorough presenten ce investigation ordinar

ily is essential in determining the facts relevant to sentenc

ing. ”). And the PSR said that Bentley was subject to ACCA’s enhancement because of his criminal history of robbery and burglary , referencing th e breaking

- and

- entering convictions listed in the PSR

. The sentencing record does not clearly indi

cate whether the court relied on the plea memorandum’s stipu

lations, looked to the PSR’s conclusions, or did both

. Given this ambiguity, to show that the resi dual clause made a differ

ence, Bentley would need to establish that none of the ACCA predicates referenced in the plea memorandum or the undis

-13 puted PSR would have allow ed the sentencing court to sen

tence him under ACCA.
Bentley argues, however, that as a matter of law the District Court could not consider the breaking

- and

- entering convictions on collateral review, raising arguments that sound in waiver and due process . We consider th is argument b efore turning to the merits of Bentley’s Johnson claim.

B
Bentley’s main argument on appeal is that the District Court erred by considering his breaking

- and

- entering convic

tions on collateral review

. 6 W e first describe Bentley’s argu

ment and the relevant and conflicting caselaw that has devel

oped in various circuits . We then explain why we reject Bentley’s argume nt s

. Finally, we reject the United States’ argument that new ACCA predicates ma y always be swapped for original predicates on collateral review.

1
Bentley conten d s we should read the plea memorandum as an exclusive list of violent felonies, precluding reliance on

6 Bentley never raised his argument before the District Court,

so it is forfeited

. Yet w e requested briefing on this issue when we granted the certificat e of appealability , and the United States never moved to vacate the certificate as improvidently granted

. W e wil l affirm on the merits for the sake of judicial
economy. See United States v. Marcello , 212 F.3d 1005, 1007

– 08 (7th Cir. 2000) (courts have discretion to disregard a n improvidently granted certificate and affirm on the merits for the sake of judicial economy).14 other ACCA predicates on collateral review. I n Bentley’s view

, due process requires that the District Court wait until resentencing to address whether Bentley’s burglary convic

tions qualify as ACCA predicates , where the prosecution

— not Bentley

— will bear the initial burden of proof

. To support this argument, Bentley relies on the Fourth Circuit’ s decision in United States v. Hodge , 902 F.3d 420 (4th Cir. 2018). Because that decision is central to Bentley’s a rgument , we describe it at some length.

In Hodge , the PSR identified three specific prior con

victions as ACCA predicates , one of which necessarily relied

on the residual clause. Id. at 42 6

. On collateral review after Johnson , the United States argued that other convictions men

tioned in the PSR’s criminal

- history section, but not designated by the probation officer as violent felonies in the PSR

, were also ACCA predicates

. The Fourth Circuit re fuse d to consider these other ACCA predicates on collateral review

, re ason ing that the PSR’s “express identification of some convictions as ACCA predicates implies an intentional exclusion of the oth

ers.” Id

. at 427. Because the United States never objected to th e PSR’s “intentional exclusion” of other ACCA pr edicate s , the Fourth Circuit continued, the United States had forfeited reli

ance on other ACCA predicates during sentencing

. Id. at 429. Excusing this forfeiture on collateral review would

, in the Fourth Circuit’s view, deprive the defendant of his right to fair notice and an adequate opportunity to dispute these ACCA predicates during sentencing. Id. at 429

– 30. After all, b y keep

ing these ACCA predicates quiet until they were needed on collateral review

, the United State s s hif t ed the burden of sen

tencing proof to the defendant and restrict ed his appeal rights

. Id. T o avoid that perverse incentive and the resulting proce

dural unfairness, the Fourth Circuit held “ that the Government15 must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sen

tencing

, ” at least if it wants to rely on th ose convictions on col

lateral review

. Id. at 430.

Hodge is not the only relevant decision on the books. At least two circuits have re jected the Fourth Circuit’s require

ment that the United States specifically identify all predicates during sentencing

. See Tribue v. United States , 929 F.3d 1326, 1332 (11th Cir. 2019) ; Dotson v. United States , 949 F.3d 317, 321 (7th Cir. 2020); White v. United States , 8 F.4 th 547, 553

– 54 (7th Cir. 2021)

. A t the other extreme is the Eleventh Circuit’s decision in Tribue

. Because it conflicts with Hodge

, w e describe Tribue in detail as well.

In Tribue , as in Hodge

, the PSR listed three ACCA predicates, but one of them relied on the residual clause. Tribue , 929 F.3d at 1328 , 1330

. A fter Johnson , the prisoner sought to vacate his sentence. Id. at 1330. In response

, the United States argued that another crime listed in the PSR’s criminal

- history section, but not designated as a n ACCA pred

icate , counted as a violent felony. Id. Relying on that alterna

tive ACCA predicate , t he Eleventh Circuit concluded that the prisoner had not show n that his sentence was invalid. Id. at 1331

– 32.
On appeal, t he prisoner argued that the United States had “ waived ” reliance on that new ACCA p redicate by failing to object to the PSR ’ s limited list of three ACCA predicates

. The Eleventh Circuit rejected this argument for three reasons

. Id. at 1332. First, Tribue admitted he had been convicted of that crime by not objecting to the PSR. Second, Tribue raised no objection to the ACCA enh ancement during his original sentencing . Th ird , “there is no requirement that the govern

-16 ment prospectively address whether each and every conviction listed in the criminal history section of a PS [R] is an ACCA predicate in order to guard against potential future changes in the law and avoid later claims that it has waived use of those convictions as qualifying ACCA predicates. ” Id. 7

The Seventh Circuit, for its part, has adopted a “narrow and limited” approach that rejects the Eleventh Circuit’s view but takes a more fact

- bound approach to notice than the Fourth Circuit

. Dotson , 949 F.3d at 318 . In Dotson , the Seventh Circuit held tha t on collateral review, the district court could rely on a burglary conviction that was not listed as an ACCA predicate in the PSR for two reasons: first, because it was so listed in the indictment and, “more importantly,” because the defendant had mistake nly believed that the sentencing court had relied on that burglary conviction to enhance his sentence. Id. at 321. Similarly, in White v. United States , the Seventh Circuit held that the district court could rely on a prior drug conviction listed as an ACCA predicate by the United States in a pretrial notice, even though it was not listed as an ACCA predicate in the PSR, and even though the sentencing co urt did
not ultimately rely on it to enhance the defendant’s sentence under ACCA. 8 F.4th at 553.
To summarize the conflicting approaches: On collateral review, the Fourth Circuit considers only crimes that were spe

cifically designated by the United State s as ACCA predicates during sentencin g. The Eleventh Circuit allows the United

7 Two judges disse nted from denial of rehearing en banc

, relying on the Fourth Circuit’s reasoning in Hodge

. See Tribue v. United States , 958 F.3d 1148, 1149 (11th Cir. 2020) (Martin, J., dissenting from the denial of rehearing en banc).17 States to swap new predicates on collateral review. The Seventh Circuit takes a more fact

- bound approach to notice.

2

W e chart a middle course. Like the Seventh Circuit, w e disa gree with “the broader strokes the Eleventh Circuit painted” in Tribue , but we also reject the Fourth Circuit’s broad rule. Dotson , 949 F.3d at 32 1

. We adopt an approach that aligns more closely with the Seventh Circuit ’s fact

- bound approach: To be considered on collateral review, a prior conviction must have been reasonably on the menu of options as an ACCA predicate during the original criminal case

. An ACCA predi

cate was reasonably on the menu of options if, among other things, it was menti oned as a n ACCA predicate in a charging document, a plea memorandum, a pretrial notice, the PSR, sen

tencing filings, or during the sentencing hearing , and so could have reasonably been considered by the sentencing court

. By contrast, a crime listed in the criminal

- history section of the PSR but never mentioned as an ACCA predicate during a direct criminal case, as was the case in both Hodge and Tribue

, was not fairly on the menu of ACCA predicates and may not be considered during collateral review.

That is not the situation we face, though

. Hodge and Tribue both involved a single list of ACCA predicate s , with no alternatives. This case involves two alternative predicate lists: The plea memorandum list and the PSR list

. The facts are thus closer to th e situation in Whit e, where alternative ACCA pred

icates had been identified during the direct criminal case.

That difference drives our forfeiture analysis. Bentley did not object to the PSR ’s reliance on his multiple North Carolina breaking

- and

- entering convictions as ACCA “bur

-18 glary” predicates , so ordinarily principles of forfeiture would, if anything

, cut against him, not for him. White , 8 F.4th at 554 ; see also United States v. Vonner , 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (“ By failing to object to the presentence report, Vonner accepted all of the factual allegations contained in it

. . . ”). As the Fourth Circuit put it in Hodge , “[g]enerally, a defendant’s failure to challenge the PSR’s designation of a par

ticular conviction as an ACC A predicate in a timely manner bar s him from raising such a challenge on collateral review.” 902 F.3d at 429. That is what happened here. Although the PSR did not specifically enumerate Bentley’s violent felonie s , it pointed to Bentley’s robbery and breaki ng

- and

- entering con

victions as the basis for the probation officer’s conclusion that Bentley was subject to an enhanced sentence under ACCA. PSR ¶ 33. Bentley had a chance to object to the PS R ’s reliance on his breaking

- and

- entering convictions

, but he did not.

O n th ese facts

, Bentley’s argument that we should read the plea memorandum as impliedly excluding all his other prior felonies for ACCA purposes carries little persuasive w eight

. A ny exclusiv ity implied by the plea memorandum ’s list of AC CA predicates is refuted by the PSR’s alternative list

. The sentencing court was not bound to follow the facts stipulated by the parties in the plea memorandum , so Bentley had no rea

sonable assurance that the court would overlook the PSR’s alternative list of ACCA predicates

. For these reasons, the plea memorandum’s list did not pr eclude the District Court from relying on Bentley’s breaking

- and

- entering convictions on direct review . S o , too , on collateral review

. And b ecause Bentley never di sputed the PSR’s conclusions during his sen

tencing, the United States cannot be faulted for waiting until collateral review to introduce the records of conviction.19 For similar reasons, c onsidering Bentley’s breaking

and

- entering convictions on collateral review d oes not violat e due process . The Due Process Clause , as interpreted by the Supreme Court, guarantees at least those “settled usages and modes of proceeding existing in the common and statute law of England.” Murray v. Hoboken Land & Imp rovement Co. , 59 U.S. 272, 277 (1855) ; see also Dimaya , 138 S. Ct. at 1224 (Gorsuch, J., concurring in part and concurring in the judgment) (same) ; accord id. at 1243 (Thomas, J., dissenting)

. Because sentenc ing enhancement s for recidivis t criminals

w ere considere d penalt ies at common law , not separate crim e s , due process “d oes not demand that the mere fact of a prior con

viction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt. ” Un ited States v. Cheek , 415 F.3d 349, 35 1

– 5 2 (4th Cir. 2005)

. 8 For this reason, we have held that “due process does not require the government to provide for

mal, pretrial notice of its intention to seek a sentence under the ACCA.” United States v. Mack , 229 F.3d 226, 231 (3d Cir. 2000)

.

8 S ee also United States v. Coleman

, 451 F.3d 154, 159 (3d Cir. 2006) (“[P]rior convictions that increase the statutory maxi

mum for an offense are not elements of the offense and thus may be determined by the District Court by a preponderance of the evidence.”); Almendarez

- Torres v. United States , 523 U.S. 224, 243

– 44 (1998) (same)

. B ut see id. at 261 (Scalia, J., dissenting) (“At common law, the fact of prior convictions had to be charged in the same indictment charging the underlying crime, and submitted to the jury for determination along with that crime.”)

.20 Still

, due proces s requires adequate notice of an ACCA predicate and a reasonable opportunity to dispute its use to enhance a criminal sentence under ACCA

. Id. at 232. But Bentley was afforded that process during his criminal case

. T h e PSR gave him adequate notice that his b reaking

- and

- entering convictions were on the menu of ACCA predicates before the sentencing court

. See i d. (upholding notice as adequate based in part on the PSR specifying relevant ACCA predicates for sentencing). Bentley had an opportunity to read the PSR and discuss it with his counsel. Fed. R. Crim. P. 32(i)(1)(A). Rule 32(f)(1) also gave him fourteen days to “state in writing any objections ” to the PSR

. H e then had an opportunity to object to the PSR ’s ACCA conclusions during the sentencing hearing

.
“ He chose not to do so

. ” Mack , 229 F.3d at 2 32

. So the sen

tencing court adopted the PSR’s conclusions as fact. Fed. R. Crim. P. 32(i)(3)(A). Bentley, like many others

, failed to antic

ipate the result in Johnson

, and so did not raise timely objec

t ions to the PSR ’s ACCA conclusions during his original sen

tencing . But Bentley’s lack of foresight , while understandable, do e s not make his notice inadequate.
Bentley argues that the comparative procedural short

falls of a section 2255 proceeding, including the prisoner’s initial burden of proof and restricted appeal r ights

, should inform our due process analysis

. See Hodge , 902 F.3d at 429

– 30. D ue process , however, does not require giving Bentley

a nother fresh chance to attack his sentence on the same proce

dural terms. The Supreme Court has often appli ed far less favorable procedures on collateral review , recognizing that post

- conviction relief is an extraordinary remedy

. See Brecht

, 507 U.S. at 634

– 35 (citing examples )

. In a post

- conviction context, it is not obvious that due process would forbid district courts from relying on new ACCA predicates to uphold a prior21 sentence on collateral review

. After all, at common law, res judicata would have barred Bentley’s post

- conviction chal

lenge entirely

. See Brown v. Davenport , 142 S. Ct. 1510, 15 20

– 21 (2022); United States v. Hayman , 342 U.S. 205, 211 , 223

– 24 (1952) (rejecting a constitutional challenge to the adequacy of section 2255 proceedings and noting that “at common law a judgment of conviction rendered by a court of general criminal jurisd iction was conclusive proof that confinement was legal. Such a judgment prevented issuance of the writ [of habeas corpus] without more.”)

. In any event , Bentley received fair notice of his breaking

- and

- entering predicate s during his direct criminal case . S o even if due process requires fair notice of ACCA predicates during sentencing before they may be con

sidered on post

- conviction review

, that requirement w as satis

fied here

.
To the extent Bentley’s argument for more notice is informed by pragmatic fairness concerns, not by constitutional imperative, we reject it too . T he Fourth Circuit’s prophylactic prior

- identification notice r equirement “risks producing expansive litigation at sentencing over whether each and every prior fe lony in a defendant’s criminal history constitutes a qualifying ACCA predicate.” Dotson , 949 F.3d at 322. We thus
agree with the Seventh Circuit that so long as defendants had adequate notice that an ACCA predicate was reasonably on the

menu of options during the original criminal case

, “ [j] udicial resources warrant better investment.” Id. Accordingly, w hen the United States relies on some ACCA predicates during sen

tencing, and the PSR relies on others, nothing stops district
court s from rel ying on the predicates mentioned in the PSR on collateral review

. A district court only needs to count three ACCA predicate strikes during initial sentencing, and unless notice of an ACCA predicate was absent on direct review

, we22 see no legal basis for com pellin g preemptive sentencing litiga

tion over ACCA strikes that “may never matter.” Id.

3

The United States wants us to go further

. It asks us to join the Eleventh Circuit in Tribue and hold that district courts
may freely “ substitute” new ACCA predicates on collateral review to show that a Johnson error was harmless

, so long as the United States generally sought an ACCA enhancement dur

ing the original sentencing proceeding

. A contrary rule, it argues, would conflict with our precedent and the mandatory nature of ACCA

. Not so

. Precedent does not allow the United States a n opportunity to relitigate a sentence on collateral review by swapping old predicates for new ones

. ACCA is mandatory, but it is the sentencing court ’ s job to carry out ACCA’s requirements. The job of the district court on collat

eral review is limit ed to review ing the job of the sentencing
court.

T he United States contends that our decision in Peppers greenlights open

- ended predicate swapping

. In Peppe rs , we concluded that a prisoner was unconstitutionally sentenced under the residual clause because two out of three ACCA pred

icates (two robberies) relied on by the sentencing court did not otherwise qualify as violent felonies. Peppers
, 899 F.3d at 233

– 34

. In the remand instructions that concluded our opinion

, we noted that the district court would have to “resolve whether th at error was harmless

. ” Id. at 236 (citing Brecht , 50 U.S. at 638) . We explained in passing that the district court had “noted that ‘the record reflects that Peppers also has a prior drug charge which qualifies as a predicate offense.’ ” Id. And we instructed the district court to “analyze in the first instance23 whether [the defendant] has at least two other qualifying con

victions rendering any constitutional error harmless.” Id. 9

The United States points out that the prior drug charge to which we alluded “had not been discussed or agreed to as a potential ACCA predicate during the original proceeding.” Appellee Br. 13. So

, it argues

, Peppers must have held by implication t hat district courts may swap new ACCA predi

cates on collateral review , even when they were never men

tioned as ACCA predicates during the or iginal criminal case.

W e disagree. Peppers never decided whether the district court could consider th e prior drug conviction on harmless

error review, nor did we address the proper scope of harmless

error review generally

. Those questions were for the dis trict
court to decide on remand.
If anything, Peppers undermines the United States’ argument . T he harmless

- error approach we did endorse

— Brecht

— would conflict with the open

- ended predicate

substitution rule suggested by the United States.

9 While Brecht arose in the context of federal habeas review of
state criminal convictions, other circuits have extended Brech t ’s standard to section 2255 motions. See United States v. Smith , 723 F.3d 510, 517 (4th Cir. 2013) (collecti ng cases) ; see also Golinveaux v. United States , 915 F.3d 564, 569

– 70 (8th Cir. 2019) (applying Brecht to Johnson error raised in sec

tion 2255 motion)

. Consistent with the caselaw, Peppers assumed that Brecht ’s standard governs section 2255 motions

. We agree with that assumption and join all other circuits that have considered the issue.24 Brecht arose in the context of constitutional trial errors, not sentencing errors. In that context, Brecht does not allow reviewing court s to entertain new evidence of guilt or deny relief based on the probability of conviction on retrial. Bennett v. Superintende nt Graterford SCI , 886 F.3d 268, 290 (3d Cir. 2018). Brecht instead calls on reviewing courts to determine whether an error substantially affected the actual jury’s verdict based on the entire trial record

.
Th is limit ation , however, has its origins in the need to protect the constitutional role of the jury against encroachment by reviewing courts. Id

. ; see also Weiler v. United States , 323 U.S. 606, 611 (1945) (“We are not authorized to look at the printed record, resolve conflicting evidence, and reach the con

clusion that the error was harmless because we think the defendant was guilty. That would be to substitute our judgment for that of the jury and, under our system of justice, juries alone have been entrusted with that responsib ility. ”). That constitu

tional concern has no force here . S entencing court s must decide whether an ACCA sentencing enhancement applies without the aid of a jury , by a preponderance of the eviden ce. United States v. Coleman , 451 F.3d 154, 159 (3d Cir. 2006)

. W hen applying harmless

- error review to ACCA sentences

, the role of the jury is not at stake, and so collateral review does not demand the same strict institutional separation between the role of the factfinder and the reviewing court

. Still, the fun ctional separation preserved by Brecht has

some value even here

, as sentencing proceedings are better adapted to accurately determin ing the applicability of a sen

tencing enhancement in the first instance. And in any event, by endorsing Brecht ’s harmless

- e rror standard for ACCA sen

tences in Peppers , we endorsed its limitations

. Under Brecht, a district court’s job on collateral review is not to decide whether25 Bentley should be re sentenced under ACCA. T hat is what resentencing is for. Brecht adapted to this context instead requires reviewing courts to examine whether the residual clause substantially affected the sentencing court’s decision. Under that test, i f a prior conviction was not adequately raise d

as an ACCA predicate during a direct criminal case , we may not assume it influenced the sentencing court’s decision and made a sentencing error harmless

. Put differently, w e may not assume that the district court sentenced a convict under ACCA without adequate notice of a dispositive ACCA predicate, in violation of due process.

Because Brecht would no t allow the United States to
swap A CCA predicates on collateral review, neither did our brief concluding instructions in Peppers . We therefore reject the United States’ predicate

- s wapping rule as overbroad

. The United States, of course, remains free to bring new ACCA predicates to the d istrict c ourt’s attention during resentencing. But while district court s must consider those new predicates during resentencing, they may not do so on collateral review under the guise of applying Brecht ’s harmless

- error standard.

C

W e next consider whether the District Court erred in holding that the six North Carolina breaking

- and

- entering con

victions listed in the PSR triggered an enhanced sentence under the enumerated

- offenses clause of ACCA, which specifically lists “burglary

. ” If they d id , then any reliance on the residual clause would have be en harmless , and Bentl ey’s motion must fail

.
The District Court concluded that the elements of sub

section of (a) of North Carolina’s general burglary law

—26 breaking and entering with the intent to commit a felony or larceny, N.C. G en

. S tat . § 14

- 54(a)

— are narrower than generic burglary and so the convictions would qualify as violent felo

nies under ACCA. The Fourth and Ninth Circuits have reached th e same con clusion as the District Court

. United States v. Dodge , 963 F.3d 379, 385 (4th Cir. 2020) ; Mutee v. United States , 920 F.3d 624, 627

– 28 (9th Cir. 2019)

. 10

Bentley does not dispute that legal conclusion , so we have no occasion to decide th e issue in this ca se . Bentley instead mounts a record

- based challenge to the District Court’s ruling. He argues that “[t]he government failed to satisfy its burden to establish that Mr. Bentley had been convicted under subsection (a)” of the North Carolina law

. Appellant Br. 30. As relevant here, the North Carolina law is divided into two main subsections

, and subsection (b) is a misdemeanor “wrongful breaking” crime that would not qualify as generic burglary under ACCA. Under the “modified categorical approach,” courts may rely on some limited extra

- s tatutory record materi

als , including judicial records of the convicting court, to deter

mine the specific crime of conviction. Peppers , 899 F.3d at 231 ; Shepard v. United States , 544 U.S. 13, 16, 20 (2005)

. The United States introduced records of the convicting court, but on appeal, Bentley says the y were not clear enough for the District Court to conclude that Bentley was convicted under

10 In Dodge , the Fourth Circuit noted that its precedent may be wrong, suggesting that the “building” element “may be” over

broad considering recent Supreme Court de cisions. United States v. Dodge , 963 F.3d 379, 384 (4th Cir. 2020 ) ; see also N.C. G en

. S tat . § 14

- 54( c ) (defining building to include any

“ structure designed to house or secure within it any activity or property ”).27 sub section (a) instead of subsection (b)

. But Bentley never dis

puted that he was convicted under subsection (a) of the North Carolin a burglary statute before the District Court , so he has forfeited his record

- based challenge. Peppers , 899 F.3d at 235.

Ev en if w e excused his forfeiture, though, Bentley’s argument woul d fail. We review the District Court’s finding for clear error. United States v. Silva , 944 F.3d 993, 995 (8th Cir. 2019) ; Fed. R

. Civ. P. 52(a) (6). That is “ a serious thumb on the scale for ” the District Court. U.S. Bank Nat ’l Ass ’ n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC

, 138 S. Ct. 960, 966 (2018)

. “ A finding that is ‘ plausible ’ in light of the full record

— even if another is equally or more so

— must govern. ” Cooper v. Harris , 137 S. Ct. 1455, 1465 (2017)

.
The District C ourt’s conclusion was plausible consider

ing the record before it

. The “Felony Judgment & Commitment” order introduced by the United States plausibly show s that Bentley was convicted of a “Class H” felony, not a misdemeanor, meaning Bentley was convicted under subsec

tion (a). J.A. 93. The “Index to Criminal Action” records sim

ilarly show that Bentley was convicted of “BE&L,” which the District Court plausibly understood to mean breaking and entering with the intent to commit larceny under subsection (a). J.A. 9 6

– 112

. While these records are not free from ambiguity, the District Court’s conclusion was at least plausible , so it must govern this appeal.

* * *
Bentley has not shown that his six prior convictions under North Carolina’s breaking

- and

- entering statute do not qualify as “burglary” under ACCA’s enumerated

- offenses clause. Those prior convictions were mentioned as ACCA28 predicates in the PSR and so were reasonably before the se n

tencing court when it decided an enhan cement was required

. Considering this, any Johnson error would be harmless . We will affirm the District Court.1 PORTER, J., concurring

. Figuring out whether a defendant was originally sen

tenced under the Armed Career Criminal Act’s (“ACCA”) residual clause years later, when the defendant never opposed the enhancement during sentencing

, requires some imaginative reconstruction. Often, as here, the sentencing record will be silent, and judges will have to apply the categorical approach to several prior convictions that may, or may not have been, the basis for the sentence

. I write separately to note t hat similar future cases may not require this retroactive analysis. Bentley’s Johnson claim sh ould have fail ed for a threshold reaso n : L ike many other con

victs raising Johnson claims, Bentley failed to argue that ACCA’s residual clause was unconstitutiona l during his direct criminal case , so he forfeited his constitutional claim. “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice’ or that he is ‘actually innocent.’ ” Bousley v. United States, 523 U.S. 614, 6 22 ( 1998) (citations omitted) ; s ee also White v. United States , 8 F.4th 547, 554 (7th Cir. 2021) (apply

ing procedural default excuse framework to post

- Johnson claim under ACCA )

. Bentley shows neither. At best, Bentley ’s “cause” is that

“ the Supreme Court had not yet held that his vagueness claim was a winner. ” United States v. Vargas

- Soto , 35 F.4th 979, 99 3 (5th Cir. 2022)

. But Bentley’s failure to anticipate Johnson does not come close to the legal roadblock necessary for excusing a procedural default on collateral review

. “ Supreme Court precedent holds that a prisoner cannot invoke ‘ novelty ’ as cause for a default where he was legally able to make the2 putatively novel argument. ” Id. at 994. A defendant also cannot rely on a futility exception as cause to excuse a procedural default based on contrary court precedent and stare decisis , at least un til the Supreme Court squarely forecloses a legal argu

ment

. See Gatewood v. United State s, 979 F.3d 391, 397 (6th Cir. 2020 ). In other words, “a claim foreclosed merely by state or lower court precedent does not” show futility

. Id.
Applying these legal princ iples, Bentley shows no cause to excuse his procedural default. Bentley was sentenced in 2005, before the Supreme Court’s decision in James first rejected a void

- for

- vagueness argument in a footnote. James v. United States , 550 U.S. 192, 210 n.6 (2007). It follows that no Supreme Court preceden t blocked Bentley from arguing that the residual clause was void for vagueness

. See Gatewood , 979 F.3d at 397. Even after James
, some criminal defendants con

tinued arguing that ACCA’s residual clause was void for vagueness, disproving any notion that Bentley was unable to make this argument. See United States v. Jones , 689 F.3d 696, 698 (7th Cir. 2012)

. And the void

- for

- vagueness argument that prevailed in Joh nson was not so novel that the tools to make it did not exist before James

. “ Since at least the mid

- 1920s, the Supreme Court has invalidated vague criminal statutes as a failure of due process of law, based on some combination of insufficient notice and th e danger of arbitrary or discriminatory enforcement. ” Nathan S. Chapman & Michael W. McConnell, Due Process a s Separation of Powers , 121 Yale L.J. 1672, 1806 (2012 ). Bentley “therefore had a reasonable basis for rais

ing a vagueness challenge to the residu al clause of the three

strikes statute.” Gatewood , 979 F.3d at 397.

While this threshold procedural

- default issue should decide a similar future case, this case is not the proper vehicle to consider th e question. The United States never raised the3 question of procedural default in this case , and procedural default is a n affirmative defense that we may not consider sua sponte in the context of a section 2255 proceeding

. See United States v. Doe , 810 F.3d 132, 154 (3d Cir. 2015). In a future case that properly raises the issue, however, we should follow the Sixth Circuit in Gatewood and hold that

, at the very least,

a Johnson claimant sentence d before James lacks sufficient legal cause to excuse a procedural default.