United States Court of Appeals

for the Fifth Circuit ____________

No. 22-60565

____________

United States of America, 

Plaintiff—Appellee,

versus

Benjamin Demond McAbee, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:20-CR-150-1

______________________________

Before Dennis, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

Appellant Benjamin McAbee (“McAbee”) appeals the district 

court’s sentence. For the reasons explained below, we VACATE and 

REMAND with instructions.

I. Background

In 1999, McAbee pled guilty to delivery of cocaine in violation of 

Mississippi law. In 2001, McAbee pled guilty to aggravated assault, after he 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

November 16, 2023

Lyle W. Cayce

Clerk

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No. 22-60565

2

hit his victim with a stick and stabbed him with a shank. In 2003, McAbee 

pled guilty to manslaughter after shooting and killing his victim during an 

argument.

In 2020, a Jackson Police Department officer was patrolling on foot 

when he smelled marijuana. The officer approached McAbee, who was in the 

parking lot of a gas station. The officer noticed a plastic bag containing what 

appeared to be marijuana next to McAbee. McAbee confirmed to the officer 

that the marijuana was his, and when asked if he had any other drugs on him, 

McAbee removed another bag of marijuana from his front right pocket. The 

officer placed McAbee under arrest. After arresting McAbee, the officer 

noticed a green and black 9mm pistol on the ground near where the officer 

found McAbee. Regarding the gun, McAbee stated “[y]eah that’s my gun, 

I’m not going to even lie. I’m going back to jail because I am a convicted 

felon.” 

In 2022, McAbee pled guilty pursuant to a plea agreement to one 

count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 

922(g)(1). McAbee’s plea agreement included a section titled “Waivers,” in 

which he agreed that he “expressly waive[d] . . . the right to appeal the 

conviction and sentence imposed in this case, or the manner in which that 

sentence was imposed . . . on any ground whatsoever,” with an exception for

a claim for ineffective assistance of counsel. McAbee “further 

acknowledge[d] and agree[d] that any factual issues regarding the sentencing 

will be resolved by the sentencing judge” and that “in making its sentencing 

decision, the district court may consider any relevant evidence without 

regard to its admissibility under the rules of evidence applicable at trial.” The 

plea agreement also outlined penalties, stating that the statutory maximum 

for a violation of the charged offense was “not more than 10 years in prison; 

a term of supervised release of not more than three (3) years; and a fine of up 

to $250,000.00.” However, the plea agreement explicitly stated that if 

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McAbee was “determined to be an Armed Career Criminal, the sentence 

shall be not less than fifteen years nor more than life in prison; a term of 

supervised release of not more than five years; and a fine of up to 

$250,000.00.” 

The presentence report (“PSR”) determined that McAbee qualified 

for enhanced sentencing under § 924(e) of the Armed Career Criminal Act 

(“ACCA”) and identified a mandatory minimum term of 15 years of 

imprisonment and a corresponding guidelines term of 180 months. McAbee 

objected to the PSR, and in his sentencing memorandum, he argued that two 

of his three prior convictions did not meet the definition of a “serious drug 

offense” or a “violent felony” under the ACCA; he raised the same 

arguments during the sentencing hearing. The district court overruled his 

objections, adopted the findings in the PSR, and sentenced McAbee under 

the ACCA to a 180-month term of imprisonment and five years of supervised 

release. McAbee timely appealed. 

II. Legal Standard 

Preserved challenges to “legal conclusions underlying a district 

court’s application of” the ACCA are reviewed de novo. United States v. 

James, 950 F.3d 289, 291 (5th Cir. 2020).

III. Discussion

The ACCA mandates a 15‐year minimum imprisonment sentence for 

a defendant convicted of being a felon in possession of a firearm in violation 

of 18 U.S.C. § 922(g) if the defendant has three prior convictions for a 

“serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e). The 

district court identified McAbee’s previous convictions for delivery of

cocaine, aggravated assault, and manslaughter as the predicate offenses for 

applying the ACCA enhancement. On appeal, McAbee only challenges the 

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district court’s categorization of his 1999 conviction for delivery of cocaine 

as a serious drug offense.

McAbee argues that because “the government failed to produce 

Shepard1 approved documents evidencing that Mr. McAbee’s conviction for 

delivery of cocaine was punishable by ten (10) years or more, the delivery of 

cocaine conviction does not constitute a serious drug offense under the 

ACCA.” In Shepard, the Supreme Court limited district courts’ inquiries 

into determining the character of an offense to “the statutory definition, 

charging document, written plea agreement, transcript of plea colloquy, and 

any explicit factual finding by the trial judge to which the defendant 

assented” or “some comparable judicial record” of information about the 

“factual basis for the plea.” Shepard, 544 U.S. at 16, 26. The government 

responded in its brief that “the record reflects that the court considered the 

Shepard documents” and references the PSR attachments which included 

the relevant indictment, sentencing order, and the Mississippi statute.

Our review of the record shows there are no Shepard approved 

documents supporting McAbee’s delivery of cocaine conviction. The 

indictment and sentencing order are silent as to the corresponding subsection 

under which McAbee was sentenced. Descamps v. United States, 570 U.S. 

254, 257, 262 (2013). The government argues McAbee waived his right to

appeal the conviction and sentence imposed in this case. And we have 

previously held that a defendant may waive his right to appeal his conviction 

and sentence notwithstanding a district court’s findings of facts not admitted 

in his guilty plea. See United States v. Bond, 414 F.3d 542, 544-46 (5th Cir. 

2005); see also United States v. Meredith, 52 F.4th 984, 987-88 (5th Cir. 2022) 

(quoting United States v. Smith, 404 F. App’x 884, 887 (5th Cir. 2010 (per 

_____________________

1 Shepard v. United States, 544 U.S. 13 (2005).

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curiam) (“We enforce broad appellate waivers and have declined to examine 

the correctness of applying a particular guideline where the defendant has 

agreed to a general waiver of the right to appeal the sentence.”)). Yet the 

district court judge here has not had the opportunity to determine whether 

the plea agreement encompasses waiver of Shepard approved documents. We 

are thus compelled to remand this matter to the district court for the 

following limited proceedings: 

1) to determine whether the government can provide evidence 

regarding McAbee’s 1999 delivery of cocaine conviction consistent 

with Shepard; and 

2) in the event the government cannot provide such evidence, to hold 

a hearing on whether the plea agreement’s waiver provision

encompasses the requirement for Shepard approved documents in 

determining the ACCA’s applicability. 

IV. Conclusion

Accordingly, we VACATE and REMAND for further proceedings. 

The government’s motion to dismiss is DENIED. Moreover, the motion for

leave to supplement brief is DENIED. 

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James L. Dennis, Circuit Judge, concurring in the judgment and 

dissenting in part:

I concur in the judgment reversing the district court. I join my 

colleagues in vacating Mr. McAbee’s sentence because the Shepard evidence 

is inconclusive about whether his 1999 conviction for delivery of cocaine 

constitutes a “serious drug offense” under the Armed Career Criminal Act 

(“ACCA”).1 I also agree with the panel majority’s recognition that Mr. 

McAbee did not waive his right to bring this appeal. However, I disagree with 

the panel majority’s remand instruction for the district court “to hold a 

hearing on whether the plea agreement’s waiver provision encompasses the 

requirement for Shepard approved documents in determining the ACCA’s 

applicability” but only “in the event the government cannot provide 

[conclusive Shepard] evidence.” Ante, at 5. Because I would remand for 

resentencing without instructions, I respectfully dissent.

* * *

As the panel majority explains, we are faced with a criminal appeal 

from a district court’s judgment imposing a fifteen-year term of 

imprisonment at sentencing. The hefty sentence stems from Mr. McAbee’s 

possession of a firearm as a convicted felon in violation of 18 U.S.C. § 

922(g)(1) (“It shall be unlawful for any person . . . who has been convicted in 

any court of, a crime punishable for a term exceeding one year . . . to . . . 

possess in or affecting commerce, any firearm or ammunition.”). Mr. 

McAbee was charged by a one-count indictment for being a felon in 

possession of a firearm, and he entered a plea of guilty pursuant to a written 

plea agreement with the Government. The district court accepted Mr. 

McAbee’s guilty plea and sentenced him to a fifteen-year term of 

_____________________

1 Shepard v. United States, 544 U.S. 13 (2005).

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imprisonment, finding that he qualified for an enhancement underthe ACCA 

because he had three prior convictions for “violent offenses” or “serious 

drug offenses.” That enhancement prescribes a fifteen-year statutory 

minimum term of imprisonment. Without the enhancement, the statute 

applicable to Mr. McAbee’s offense imposes a ten-year statutory maximum 

term of imprisonment.2 See 18 U.S.C. § 924(a)(2) (2018) (amended 2022).

Mr. McAbee appealed his sentence and argues, first, that his 1999 conviction 

for “delivery of cocaine” does not constitute a “serious drug offense” and, 

second, that he did not waive his right to appeal a sentence imposed in excess 

of a statutory maximum term of imprisonment.

With respect to the first issue, the panel majority appropriately finds 

that Mr. McAbee does not qualify for the ACCA sentencing enhancement

because we do not know whether his “delivery of cocaine offense” is a 

“serious drug offense.” The ACCA defines a “serious drug offense” to 

include “an offense under State law, involving manufacturing, distributing, 

or possessing with intent to manufacture or distribute, a controlled substance 

. . . , for which a maximum term of imprisonment of ten years or more is prescribed 

by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). “[T]here are no 

Shepard approved documents supporting McAbee’s delivery of cocaine 

conviction . . . [because] [t]he indictment and sentencing order are silent as 

to the corresponding subsection under which McAbee was sentenced” in 

1999. Ante, at 4. Given that the subsection of the statute Mr. McAbee was 

convicted under in 1999 is unknown and considering that Mr. McAbee was 

only sentenced to five years of imprisonment for that conviction, we cannot 

say whether the crime carried with it the possibility of “ten years or more” 

_____________________

2 Mr. McAbee committed the instant offense before Congress increased the 

statutory maximum to 15 years. See Bipartisan Safer Communities Act, Pub. L. No. 117-

159, tit. II, § 12004, 136 Stat. 1313, 1327 (2022) (codified at 18 U.S.C. § 924(a)(8)).

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imprisonment. The district court therefore did not have a sufficient basis to 

find the 1999 conviction was a “serious drug offense” and apply the ACCA 

sentencing enhancement. Mr. McAbee’s sentence must be vacated.

The second issue raised by the parties is whether Mr. McAbee waived 

his right to bring this appeal in light of appeal waiver language included in his 

plea agreement.3 The panel majority fails to squarely address the issue, but,

by proceeding to the merits and opting against granting the Government’s 

motion to dismiss, the majority implicitly—and correctly—rejects the 

Government’s contention that Mr. McAbee waived his right to bring the 

instant appeal.4 See United States v. Leal, 933 F.3d 426 (5th Cir. 2019) 

(holding that a defendant never waives his right to appeal a sentence imposed 

in excess of a statutory maximum when properly raised); see also United States 

v. Barnes, 953 F.3d 383, 388-89 (5th Cir. 2020) (noting that a sentence 

imposed in excess of a statutory maximum is one exception to the general 

rule that a knowing and voluntary appellate waiver is enforceable); see also 

United States v. Fields, No. 20-60148, 832 F. App’x 317, 317 (5th Cir. 2020)

(unpublished) (holding that a misapplication of the ACCA sentencing 

enhancement results in a sentence that is in excess of the statutory maximum 

term of imprisonment, meaning an appeal of the ACCA’s application is not 

barred by an appeal waiver under Leal); see also United States v. House, No. 

09-40302, 394 F. App’x 122, 124 n.6 (5th Cir. 2010) (unpublished) (same).

Though the parties argue over whether Mr. McAbee waived his right 

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3 Mr. McAbee’s plea agreement says “Defendant . . . waives . . . the right to appeal 

the . . . sentence imposed in this case . . . on any ground whatsoever.” We review “de novo 

whether an appeal waiver bars an appeal.” United States v. Keele, 755 F.3d 752, 754 (5th Cir. 

2014) (citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002)). 

4 The Government filed a motion to dismiss the appeal based on the appeal waiver 

in the plea agreement, which we denied. 

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to bring this appeal, the panel majority remands for the district court to 

determine whether Mr. McAbee waived a different right—his right to 

demand that the district court, presumably at a resentencing hearing, limit its 

ACCA review to Shepard evidence.5 In Shepard, the Supreme Court limited 

district courts’ inquiries into determining the character of a prior offense for 

ACCA purposesto so-called Shepard evidence, i.e., “the statutory definition, 

charging document, written plea agreement, transcript of plea colloquy, and 

any explicit factual finding by the trial judge to which the defendant 

assented” or “some comparable judicial record” of information about the 

“factual basis of the plea.” Shepard, 544 U.S. at 16, 26. The panel majority 

says the district court “has not had the opportunity to” decide the waiver 

issue that only the majority has raised and remands for further deliberation—

but only if the Government cannot provide any other Shepard-approved 

documents clarifying whether Mr. McAbee’s “delivery of cocaine” 

conviction is a serious drug offense. Ante, at 5.

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5 The panel majority deviates significantly from the principle of party presentation 

of argument. Not even the Government argues that Mr. McAbee waived the Shepard 

evidence limitation on the district court’s review. See Green Valley Special Util. Dist. v. City 

of Schertz, Tex., 969 F.3d 460, 474 (5th Cir. 2020) (en banc) (recognizing that neutral 

arbiters of justice do not “make a party’s argument for it in the first place”); see also United 

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“In our adversarial system of 

adjudication, we follow the principle of party presentation.”); Castro v. United States, 540 

U.S. 375, 381-83 (2003) (Scalia, J., concurring in part and concurring in the judgment)

(“Our adversary system is designed around the premise that the parties know what is best 

for them, and are responsible for advancing the facts and arguments entitling them to 

relief.”); United States v. Samuels, 808 F.3d 1298, 1301 (8th Cir. 1987) (R. Arnold, J., 

concurring in denial of reh’g en banc) (“Counsel almost always know a great deal more 

about their cases than we do, and this must be particularly true of counsel for the United 

States, the richest, most powerful, and best represented litigant to appear before us.”). 

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One need not do more than restate the majority’s remand instructions

to demonstrate that both are poorly thought out. It is unsound to remand for 

a hearing on whether Mr. McAbee waived the requirement that the district 

court consider only Shepard evidence while simultaneously vacating a 

sentence for a lack of Shepard evidence and remanding in the first instance to 

see if there is more Shepard evidence. It is abundantly clear that the panel 

majority does not actually believe Mr. McAbee waived Shepard’s limitation 

on the district court’s review. If it did, why would the panel majority vacate 

Mr. McAbee’s sentence for lack of Shepard evidence? And why would the 

panel majority also initially require the Government to determine whether 

other Shepard evidence exists on remand? I would cut to the chase and not 

waste the district court and parties’ resources by mandating preparation for 

and participation in a hearing on a question that no one has raised and, in any 

event, one that we already know the answer to.

Turning to that answer, the plea agreement’s waiver provision does 

not “encompass” the requirement that the district court, at resentencing,

review only Shepard-approved documents to determine whether Mr. 

McAbee qualifies for the ACCA enhancement. We interpret plea agreements

employing “ordinary principles of contract interpretation” and, in 

particular, “constru[e] waivers narrowly and against the Government.” 

Keele, 755 F.3d at 754 (citing United States v. Palmer, 456 F.3d 484, 488 (5th 

Cir. 2006)). The waiver provision in Mr. McAbee’s plea agreement reads in 

relevant part: “Defendant . . . hereby expressly waives . . . the right to appeal

the conviction and sentence imposed in this case, or the manner in which that 

sentence was imposed . . . on any ground whatsoever[.]”6 The right to appeal 

_____________________

6 Moreover, the provision in Mr. McAbee’s plea agreement where he “agree[d]

that, in making its sentencing decision, the district court may consider any relevant 

evidence without regard to its admissibility” does not support a finding that Mr. McAbee 

“waived” the Shepard evidence limitation either. Shepard evidence is the only “relevant

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a judgment entered after a sentencing hearing is distinct from a defendant’s 

right to demand the district court comply with Supreme Court precedent by 

limiting its ACCA sentencing enhancement review to Shepard evidence. 

Certainly, Mr. McAbee has not waived that latter right by way of his plea 

agreement’s appeal waiver provision. No court has ever found a defendant to 

have waived the Shepard evidence limitation, and we should caution the 

district court against haphazardly being the first.

* * *

The panel majority’s remand instructions raise more questions than 

answers. The panel should vacate Mr. McAbee’s sentence and remand for 

resentencing without the inclusion of instructions.

I respectfully dissent.

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evidence” when it comes to determining the character of a prior offense for ACCA 

purposes. Shepard, 544 U.S. at 16, 26.

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