United States v. Reed, 39 F.4th 1285 (10th Cir. 2022) ACCA & occasions different from one another & IAC on direct appeal Mr. Reed had a mixture of state and federal convictions when he picked up a felon in possession. He pled[1] and the agreement stated max of 10 years unless ACCA eligible. Trial counsel told Mr. Reed that he didn’t think he was ACCA eligible but couldn’t guarantee it yadda, yadda, yadda. The possibility of an ACCA sentence was discussed at the plea colloquy. The plea also said you can’t withdraw your plea if you get an unexpected sentence. PSR came out and tah-dah: Mr. Reed is ACCA eligible! Mr. Reed fires us and gets a new attorney who tries to withdraw the plea based on IAC for not catching that Mr. Reed was ACCA eligible. They had a feeling and decided the plea was knowing and voluntary despite not thinking ACCA applied. On appeal they kinda reach the IAC issue – but shortcut the analysis by going first to whether Mr. Reed could establish prejudice. Of course in the plea context, to show prejudice you have to show that he likely would have gone to trial. And they decide Mr. Reed cannot show that; they reason that he was repeatedly warned that ACCA may apply. Secondly, they point out the evidence was strong and he did get a benefit from the plea even with ACCA. So, no prejudice to Mr. Reed. Now this is why the case is important. Mr. Reed made an Apprendi/Alleyne argument that the district court cannot determine if the predicate felonies occurred on occasions different from one another. Recall in March, SCOTUS decided Wooden v. United States, 142 S. Ct. 1063 (2022), holding that the ACCA’s “on occasions different from7 one another” means the convictions could not stem from the “same criminal episode.” Despite listing a bunch o’ factors that sound like facts, in a footnote, the Court says it is purposefully not reaching Apprendi/Alleyne issue. So, the Tenth says it can’t overrule another panel and years ago they said that a court can make that determination and unless and until SCOTUS says otherwise they’re not going to change their minds. (Mr. Reed did petition for rehearing but the Tenth refused.)