PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-1691

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UNITED STATES OF AMERICA

v.

JEFFREY A. BENTLEY,

Appellant

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On Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal No. 1-05-cr-00039-001)

District Judge, Maryellen Noreika

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Argued: June 29, 2022

Before: JORDAN, PORTER, and PHIPPS, 

Circuit Judges.

(Filed:September 14, 2022)

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2

Daniel J. Tyrrell [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 Appellee

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OPINION OF THE COURT

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PORTER, Circuit Judge.

Jeffrey 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 Act (“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 unconstitutionally vague. 576 U.S. 591, 597 (2015). Seeking to retroactively benefit from that legal development, Bentley asked

the District Court to vacate his sentence and order resentencing. The District Court denied Bentley a do-over. The District 
3

Court concluded that even if the prior convictions mentioned

in Bentley’s plea could no longer be counted as strikes under 

ACCA, any error would be harmless because of Bentley’s long

rap sheet of ACCA-qualifying burglaries, documented in an

undisputed presentence report. On appeal, Bentley argues that 

the District Court had to disregard his ACCA-qualifying burglaries because they were not mentioned in his plea agreement. 

He also quibbles with the District Court’s factual findings. 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 after 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, 

carried a sentence of not more than ten years. 18 U.S.C.

§ 924(a)(2) (2005).

1 But under ACCA, a person convicted of 

that crime who has three or more prior convictions “for a violent felony or a serious drug offense, or both,” is subject to a 

1 Congress recently increased the maximum penalty to 15 

years. Bipartisan Safer Communities Act, Pub. L. 117-159, 

Div. A, Title II, § 12004(c), 136 Stat. 1313, 1329 (2022), codified 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 possession of a firearm and using and carrying a firearm during a 

crime of violence. As part 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,” and so is 

subject to a sentencing enhancement under ACCA. J.A. 28. 

The fourth paragraph of the memorandum gave a factual basis 

for Bentley’s guilty plea, and included an 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. The United States agreed to recommend the minimum prison sentence available to Bentley—fifteen years for 

count 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 to 
5

dismiss count two, Hobbs Act robbery. The plea memorandum

specified that the District Court was not bound by the sentencing stipulations made by the parties.2

B

During the sentencing hearing, the District Court 

adopted “the facts as represented in the presentence investigation report,” without objection. J.A. 37; see also Fed. R. Crim.

P. 32(i)(3)(A) (sentencing court “may accept any undisputed 

portion of the presentence report as a finding of fact”). The 

presentence report (“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 implementing ACCA’s sentencing enhancement. PSR ¶ 33. The 

PSR’s criminal-history section listed eighteen prior convictions, including six 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 circumstances a Career Criminal within 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 4B1.4? Do we agree, counsel?

GOVERNMENT COUNSEL: Agreed.

DEFENSE COUNSEL: Agreed.

J.A. 39. When 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 conviction. J.A. 54.

The District Court ultimately sentenced Bentley to fifteen years for count one, the minimum mandatory sentence 

under ACCA, and seven years for count three, to run consecutively, 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 exceeding 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, attempted use, 

or threatened use of physical force against 

the person of another; or
7

(ii) is burglary, arson, or extortion, involves 

use of explosives, or otherwise involves conduct 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 elements 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 difficulties began when the Supreme Court 

held that ACCA requires a “categorical approach.” Taylor v. 

United States, 495 U.S. 575, 602 (1990). Under a categorical

approach, courts deciding whether a prior conviction counts as 

a violent felony must ignore the specific conduct of the criminal and ask instead whether the elements of the crime are no 

broader than ACCA’s general terms. Id. at 600. 

The categorical approach made it difficult to predictably 

apply ACCA’s residual clause, as the clause itself references 

“conduct.” Before Johnson, when determining whether prior 

convictions fell under ACCA’s residual clause, courts had to

decide “whether the conduct encompassed by the elements 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. 591. But this 

“ordinary case” analysis proved “nearly impossible to apply 
8

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 conduct entailed in a crime’s ordinary case? Statistical analyses? 

Surveys? Experts? Google? Gut instinct?”). Given the difficulty of this enterprise, some Justices began calling on the 

Court to hold the residual clause void for vagueness. James, 

550 U.S. at 230 (Scalia, J., dissenting).

The Supreme Court at first resisted, but in Johnson, “the 

skeptics won.” Vargas-Soto, 35 F.4th at 985. In Johnson, the

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 States, 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 seeking to vacate ACCA sentences followed.

D

Bentley filed one of those motions. He asked the 

District Court to vacate his original sentence and order resentencing, claiming that his sentence was unconstitutional after 

Johnson. Focusing on the three prior convictions mentioned in 

his plea memorandum, Bentley argued that his Delaware conviction 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 pending 

the resolution of cases involving North Carolina’s breakingand-entering statute, as well as Supreme Court cases addressing the scope of “burglary” under ACCA’s enumeratedoffenses clause. These decisions were ultimately unfavorable 

to Bentley’s legal position.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 six 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.”). Bentley did not reply.

The District Court denied Bentley’s motion. “Given 

[Bentley’s] apparent concession that [his] prior North Carolina 

3 See Quarles v. United States, 139 S. Ct. 1872, 1877 (2019) 

(“burglary” under ACCA includes “remaining-in” burglary

even when 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 accommodation); United States v. Beatty, 702 F. App’x 148, 150 (4th 

Cir. 2017) (North Carolina breaking-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 burglary under ACCA’s enumerated-offenses clause. J.A. 3. The 

District Court held that they did. 

We granted a certificate of 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 law de novo. 

United States v. Peppers, 899 F.3d 211, 220 (3d Cir. 2018). We 

review the District 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 sentence, 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 mentioned in Bentley’s PSR as ACCA predicates, even though they 

4 Daniel J. Tyrrell of Chiesa Shahinian & Giantomasi represented 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

We begin by explaining the legal framework governing 

Bentley’s claim for relief. To 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 merits 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 residual 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 that made a difference in 

his sentence.” Id. at 235 n.21. He must prove this by a preponderance 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 errors 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 substantial 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 only if the error caused “actual 

prejudice,” that is, “had [a] substantial and injurious effect or 

influence” on the sentence. Brecht v. Abrahamson, 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” definition, so his sentence necessarily implicated the unconstitutional residual clause. Bentley’s argument assumes that the 

sentencing court relied exclusively on the three prior convictions stipulated in the plea memorandum to sentence Bentley

under ACCA. 

That assumption is difficult 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 relevant information.” United States v. Ketcham, 80 F.3d 789, 

792 n.6 (3d Cir. 1996); 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 information. See Fed. R. Crim. P. 32(i)(3)(A); U.S.S.G. § 6A1.1

(commentary) (“A thorough presentence investigation ordinarily is essential in determining the facts relevant to sentencing.”). And the PSR said that Bentley was subject to ACCA’s

enhancement because of his criminal history of robbery and 

burglary, referencing the breaking-and-entering convictions

listed in the PSR. The sentencing record does not clearly indicate whether the court relied on the plea memorandum’s stipulations, looked to the PSR’s conclusions, or did both. Given 

this ambiguity, to show that the residual clause made a difference, Bentley would need to establish that none of the ACCA 

predicates referenced in the plea memorandum or the undis-
13

puted PSR would have allowed the sentencing court to sentence 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 this argument before 

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 convictions on collateral review.

6 We first describe Bentley’s argument and the relevant and conflicting caselaw that has developed in various circuits. We then explain why we reject 

Bentley’s arguments. Finally, we reject the United States’

argument that new ACCA predicates may always be swapped 

for original predicates on collateral review.

1

Bentley contends 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 we requested briefing on this issue when 

we granted the certificate of appealability, and the United 

States never moved to vacate the certificate as improvidently 

granted. We will 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 an 

improvidently granted certificate and affirm on the merits for 

the sake of judicial economy).
14

other ACCA predicates on collateral review. In Bentley’s

view, due process requires that the District Court wait until 

resentencing to address whether Bentley’s burglary convictions 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 argument, we describe it at

some length.

In Hodge, the PSR identified three specific prior convictions as ACCA predicates, one of which necessarily relied 

on the residual clause. Id. at 426. On collateral review after 

Johnson, the United States argued that other convictions mentioned 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 refused to consider 

these other ACCA predicates on collateral review, reasoning

that the PSR’s “express identification of some convictions as 

ACCA predicates implies an intentional exclusion of the others.” Id. at 427. Because the United States never objected to the

PSR’s “intentional exclusion” of other ACCA predicates, the 

Fourth Circuit continued, the United States had forfeited reliance 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, by keeping these ACCA predicates quiet until they were needed on

collateral review, the United States shifted the burden of sentencing proof to the defendant and restricted his appeal rights. 

Id. To avoid that perverse incentive and the resulting procedural unfairness, the Fourth Circuit held “that the Government 
15

must identify all convictions it wishes to use to support a 

defendant’s ACCA sentence enhancement at the time of sentencing,” at least if it wants to rely on those convictions on collateral review. Id. at 430.

Hodge is not the only relevant decision on the books. At

least two circuits have rejected the Fourth Circuit’s requirement 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.4th 547, 553–

54 (7th Cir. 2021). At the other extreme is the Eleventh 

Circuit’s decision in Tribue. Because it conflicts with Hodge, 

we 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. After 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 an ACCA predicate, counted as a violent felony. Id. Relying on that alternative ACCA predicate, the Eleventh Circuit concluded that the 

prisoner had not shown that his sentence was invalid. Id. at 

1331–32. 

On appeal, the prisoner argued that the United States 

had “waived” reliance on that new ACCA predicate 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 enhancement during his original 

sentencing. Third, “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 that 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 mistakenly 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 court 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 specifically designated by the United States as ACCA predicates 

during sentencing. The Eleventh Circuit allows the United 

7 Two judges dissented 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

We chart a middle course. Like the Seventh Circuit, we

disagree 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 321. 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 predicate was reasonably on the menu of options if, among other 

things, it was mentioned as an ACCA predicate in a charging 

document, a plea memorandum, a pretrial notice, the PSR, sentencing 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 predicates, with no 

alternatives. This case involves two alternative predicate lists: 

The plea memorandum list and the PSR list. The facts are thus

closer to the situation in White, where alternative ACCA predicates 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 particular conviction as an ACCA predicate in a timely manner 

bars 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 felonies, it

pointed to Bentley’s robbery and breaking-and-entering convictions 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 PSR’s reliance 

on his breaking-and-entering convictions, but he did not.

On these 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 weight. 

Any exclusivity implied by the plea memorandum’s list of

ACCA 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 reasonable assurance that the court would overlook the PSR’s 

alternative list of ACCA predicates. For these reasons, the plea 

memorandum’s list did not preclude the District Court from 

relying on Bentley’s breaking-and-entering convictions on

direct review. So, too, on collateral review. And because 

Bentley never disputed the PSR’s conclusions during his sentencing, the United States cannot be faulted for waiting until 

collateral review to introduce the records of conviction.
19

For similar reasons, considering Bentley’s breakingand-entering convictions on collateral review does not violate

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 & Improvement 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 sentencing enhancements for recidivist criminals

were considered penalties at common law, not separate crimes,

due process “does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be 

pleaded in an indictment and submitted to a jury for proof 

beyond a reasonable doubt.” United States v. Cheek, 415 F.3d 

349, 351–52 (4th Cir. 2005).

8 For this reason, we have held that 

“due process does not require the government to provide formal, 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 See also United States v. Coleman, 451 F.3d 154, 159 (3d Cir. 

2006) (“[P]rior convictions that increase the statutory maximum 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). But 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 process 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. The

PSR gave him adequate notice that his breaking-and-entering 

convictions were on the menu of ACCA predicates before the 

sentencing court. See id. (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. He 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 232. So the sentencing court adopted the PSR’s conclusions as fact. Fed. R. 

Crim. P. 32(i)(3)(A). Bentley, like many others, failed to anticipate the result in Johnson, and so did not raise timely objections to the PSR’s ACCA conclusions during his original sentencing. But Bentley’s lack of foresight, while understandable,

does not make his notice inadequate.

Bentley argues that the comparative procedural shortfalls of a section 2255 proceeding, including the prisoner’s 

initial burden of proof and restricted appeal rights, should 

inform our due process analysis. See Hodge, 902 F.3d at 429–

30. Due process, however, does not require giving Bentley 

another fresh chance to attack his sentence on the same procedural terms. The Supreme Court has often applied 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 prior
21

sentence on collateral review. After all, at common law, res 

judicata would have barred Bentley’s post-conviction challenge entirely. See Brown v. Davenport, 142 S. Ct. 1510, 1520–

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 

jurisdiction 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 predicates during his direct 

criminal case. So even if due process requires fair notice of 

ACCA predicates during sentencing before they may be considered on post-conviction review, that requirement was satisfied here.

To the extent Bentley’s argument for more notice is

informed by pragmatic fairness concerns, not by constitutional 

imperative, we reject it too. The Fourth Circuit’s prophylactic 

prior-identification notice requirement “risks producing 

expansive litigation at sentencing over whether each and every 

prior felony 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, when 

the United States relies on some ACCA predicates during sentencing, and the PSR relies on others, nothing stops district 

courts from relying 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, we 
22

see no legal basis for compelling preemptive sentencing litigation 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 during 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 an 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 collateral review is limited to reviewing the job of the sentencing 

court.

The United States contends that our decision in Peppers

greenlights open-ended predicate swapping. In Peppers, we 

concluded that a prisoner was unconstitutionally sentenced

under the residual clause because two out of three ACCA predicates (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 

that 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 instance 
23

whether [the defendant] has at least two other qualifying convictions 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 that district courts may swap new ACCA predicates on collateral review, even when they were never mentioned as ACCA predicates during the original criminal case.

We disagree. Peppers never decided whether the district 

court could consider the prior drug conviction on harmlesserror review, nor did we address the proper scope of harmlesserror review generally. Those questions were for the district 

court to decide on remand.

If anything, Peppers undermines the United States’ 

argument. The harmless-error approach we did endorse—

Brecht—would conflict with the open-ended predicatesubstitution 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

Brecht’s standard to section 2255 motions. See United States 

v. Smith, 723 F.3d 510, 517 (4th Cir. 2013) (collecting cases); 

see also Golinveaux v. United States, 915 F.3d 564, 569–70

(8th Cir. 2019) (applying Brecht to Johnson error raised in section 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 courts to entertain new evidence of guilt or deny 

relief based on the probability of conviction on retrial. Bennett 

v. Superintendent 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. 

This limitation, 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 conclusion 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 responsibility.”). That constitutional concern has no force here. Sentencing courts must 

decide whether an ACCA sentencing enhancement applies

without the aid of a jury, by a preponderance of the evidence. 

United States v. Coleman, 451 F.3d 154, 159 (3d Cir. 2006). 

When 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 functional separation preserved by Brecht has

some value even here, as sentencing proceedings are better

adapted to accurately determining the applicability of a sentencing enhancement in the first instance. And in any event, by 

endorsing Brecht’s harmless-error standard for ACCA sentences in Peppers, we endorsed its limitations. Under Brecht, a

district court’s job on collateral review is not to decide whether 
25

Bentley should be resentenced under ACCA. That 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, if a prior conviction was not adequately raised

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, we 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 not allow the United States to

swap ACCA predicates on collateral review, neither did our 

brief concluding instructions in Peppers. We therefore reject 

the United States’ predicate-swapping rule as overbroad. The 

United States, of course, remains free to bring new ACCA

predicates to the district court’s attention during resentencing.

But while district courts 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

We next consider whether the District Court erred in 

holding that the six North Carolina breaking-and-entering convictions listed in the PSR triggered an enhanced sentence under 

the enumerated-offenses clause of ACCA, which specifically 

lists “burglary.” If they did, then any reliance on the residual 

clause would have been harmless, and Bentley’s motion must 

fail.

The District Court concluded that the elements of subsection of (a) of North Carolina’s general burglary law—
26

breaking and entering with the intent to commit a felony or 

larceny, N.C. Gen. Stat. § 14-54(a)—are narrower than generic 

burglary and so the convictions would qualify as violent felonies under ACCA. The Fourth and Ninth Circuits have reached 

the same conclusion 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 the issue in this case. 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-statutory record materials, including judicial records of the convicting court, to determine 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 they 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” overbroad considering recent Supreme Court decisions. United 

States v. Dodge, 963 F.3d 379, 384 (4th Cir. 2020); see also 

N.C. Gen. Stat. § 14-54(c) (defining building to include any 

“structure designed to house or secure within it any activity or 

property”). 
27

subsection (a) instead of subsection (b). But Bentley never disputed that he was convicted under subsection (a) of the North 

Carolina burglary statute before the District Court, so he has 

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

Even if we excused his forfeiture, though, Bentley’s 

argument would 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 Court’s conclusion was plausible considering the record before it. The “Felony Judgment & 

Commitment” order introduced by the United States plausibly 

shows that Bentley was convicted of a “Class H” felony, not a 

misdemeanor, meaning Bentley was convicted under subsection (a). J.A. 93. The “Index to Criminal Action” records similarly 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. 96–112. 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 ACCA 
28

predicates in the PSR and so were reasonably before the sentencing court when it decided an enhancement 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 sentenced 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 that similar future cases may 

not require this retroactive analysis. Bentley’s Johnson claim 

should have failed for a threshold reason: Like many other convicts raising Johnson claims, Bentley failed to argue that 

ACCA’s residual clause was unconstitutional 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, 622 (1998) (citations omitted); see also

White v. United States, 8 F.4th 547, 554 (7th Cir. 2021) (applying 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, 993 

(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 the 
2

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 until the Supreme Court squarely forecloses a legal argument. See Gatewood v. United States, 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 principles, 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 precedent 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 continued 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 Johnson 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 the danger of arbitrary or discriminatory 

enforcement.” Nathan S. Chapman & Michael W. McConnell,

Due Process as Separation of Powers, 121 Yale L.J. 1672, 

1806 (2012). Bentley “therefore had a reasonable basis for raising a vagueness challenge to the residual clause of the threestrikes 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 the question. The United States never raised the 
3

question of procedural default in this case, and procedural 

default is an 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 sentenced before James lacks sufficient

legal cause to excuse a procedural default.