In Johnson v. United States, 135 S. Ct. 2551 (2015), this Court declared the Armed Career Criminal Act's (ACCA) residual clause unconstitutionally vague. In Welch v. United States, 136 S. Ct. 1257 (2016), this Court held that Johnson announced a new substantive rule of constitutional law that applied retroactively on collateral review.

In Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), the Eleventh Circuit considered how a defendant could meet his burden to prove his ACCA enhanced sentence was based upon the now unconstitutional residual clause. The court concluded the defendant could rely only on the "historical record," that is, the long-ago sentencing transcript and a snapshot of the then-current caselaw. Since then, a number of other circuits have diverged, holding instead that a court may consider the historical record, but when that record is silent, it may also rule out the alternative non-residual clauses by looking to more recent Supreme Court cases clarifying the law.

The question presented here is, whether a defendant, faced with a silent record below, can prove his ACCA-enhanced sentence was indeed based upon the residual clause through a process of elimination. And in doing so, can he rely on post-sentencing case law, including this Court's decisions clarifying the other ACCA clauses?

Whether a defendant can prove his ACCA-enhanced sentence was based on the unconstitutional residual clause by relying on post-sentencing case law