Sentencing under the Armed Career Criminal Act (ACCA); Procedural reasonableness; “Enhanced penalties” under 18 USC § 924(e)(1); Waiver; United States v Aparco-Centeno; “Invited error,” United States v Montgomery

[This appeal was from the WD-MI.] Concluding that “the so-called ‘labeling error’ discovered in Montgomery is not rooted in” its precedent providing “that a defendant waives an argument by expressly agreeing with a judge’s proposed course of action[,]” the court held that defendant-Jackson’s express agreements that he had three prior convictions qualifying under § 924(e) constituted a waiver of his appellate argument that he did not. Jackson was involved in several firearm and drug crimes and eventually pled guilty to illegally possessing a firearm. He “has an extensive history of firearm and drug-related offenses[,]” and acknowledged both in his plea agreement and at sentencing that he was eligible for enhanced penalties under § 924(e)(1). The agreement acknowledged the statute’s mandatory minimum 15-year sentence. He was sentenced to 212 months, which fell in the middle of the Guidelines range. On appeal, he challenged the procedural reasonableness of his sentence, arguing the district court erred by applying the enhancement. The court held that Jackson waived his appellate argument where he had “repeatedly agreed” that he had three prior convictions for violent felonies or serious drug offenses. He argued that he did not waive an appellate challenge but rather, under Montgomery, he had “merely invited the purported error” and thus, his claim was reviewable “to prevent manifest injustice.” The court noted that since Montgomery, its “distinction between waiver and invited error has been imprecise.” It noted that before Montgomery, it “consistently read Aparco-Centeno according to its own terms—as applying waiver” and that “much of the tension between waiver and invited error emerged only after Montgomery and is attributable to Montgomery.” The court concluded that in Aparco-Centeno, it was “wrong to raise the possibility—in a sentence that had no bearing on our holding—that we could review a waived argument at all.” It now reaffirmed decades of cases “holding that waiver occurs when a defendant agrees with a ‘judge’s proposed course of conduct and then [later] charge[s] the court with error in following that course.’ Jackson did not provoke or invite the district court to err. Rather, he expressly and consistently admitted that he had three qualifying predicate convictions and that he understood the associated consequences of that admission.” This constituted waiver.