                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 18-1701
STEVEN DOTSON,
                                               Petitioner-Appellant,
                                v.

UNITED STATES OF AMERICA,
                                              Respondent-Appellee.
                    ____________________

        Appeal from the United States District Court for the
        Southern District of Indiana, Indianapolis Division.
         No. 1:14-cv-1648 — William T. Lawrence, Judge.
                    ____________________

   ARGUED OCTOBER 3, 2019 — DECIDED FEBRUARY 3, 2020
               ____________________

    Before WOOD, Chief Judge, and BARRETT and SCUDDER, Cir-
cuit Judges.
   SCUDDER, Circuit Judge. The Presentence Investigation Re-
port on Steven Dotson listed six prior felony convictions,
three of which the Probation Oﬃce identified as qualifying
him for the enhanced mandatory minimum sentence of 15
years’ imprisonment under the Armed Career Criminal Act.
The PSR was silent on whether any of Dotson’s other three
convictions so qualified, and nobody raised the question at
2                                                    No. 18-1701

sentencing. The district court agreed with the Probation Of-
fice and sentenced Dotson as a career oﬀender to 188 months
(15 years and 8 months).
    In recent years, federal courts have seen a floodtide of liti-
gation over what qualifies as an ACCA predicate. Dotson, too,
has watched these developments, and he reacted by pursuing
post-conviction relief under 28 U.S.C. § 2255. The district
court denied relief, determining that Dotson has four qualify-
ing ACCA predicates—the three originally designated as
such in the PSR and one additional for burglary under Indi-
ana law. Since the district court’s decision, the law has contin-
ued to evolve and has since knocked out one of the three pred-
icates the Probation Oﬃce originally determined qualified
Dotson as an armed career criminal. The question presented
is whether the government can save the enhanced sentence by
substituting another of Dotson’s convictions—one listed in
the PSR as part of Dotson’s criminal history but not desig-
nated as or found by the district court to be an ACCA predi-
cate at sentencing.
    In the circumstances before us, the answer is yes, owing
not only to the substituted conviction being included in the
indictment and later the PSR, but also to Dotson himself rec-
ognizing in legal filings and apparently believing (although
mistakenly) that his Indiana burglary conviction had served
as an ACCA predicate at his original sentencing. So, while we
aﬃrm, our decision is narrow and limited. The record leaves
us no doubt Dotson believed his Indiana burglary conviction
could serve to support and preserve his enhanced sentence.
No. 18-1701                                                   3

                               I
    In March 2011, a grand jury indicted Dotson for pos-
sessing a firearm following a prior felony conviction, a viola-
tion of 18 U.S.C. § 922(g). The indictment listed six prior fel-
ony convictions and likewise alleged that Dotson qualified for
the minimum sentence Congress mandated in the Armed Ca-
reer Criminal Act. See 18 U.S.C. § 924(e) (requiring a 15-year
minimum sentence for anyone who violates § 922(g) and has
three prior convictions for “a violent felony or a serious drug
oﬀense”).
   Following Dotson’s conviction at a bench trial, the case
proceeded to sentencing. The PSR recommended finding that
Dotson qualified as an armed career criminal on the basis of
these three convictions:
       1. Armed Robbery (Indiana 1992)
       2. Dealing in Cocaine (Indiana 1993)
       3. Attempted Robbery (Indiana 2007)
   A separate portion of the PSR recounted Dotson’s full
criminal history by listing these same three felonies and the
three others contained in the indictment:
       4. Burglary (Indiana 1993)
       5. Possession of Marijuana (Indiana 2000)
       6. Theft and Receipt of Stolen Property (Indiana 2001)
    In the end, the PSR came to a recommended guidelines
range of 235 to 293 months—driven largely by Dotson quali-
fying as an armed career criminal. See U.S.S.G. § 4B1.4.
   At sentencing neither party objected to the PSR’s account
of Dotson’s criminal history or determination that he
4                                                  No. 18-1701

qualified as an armed career criminal for both statutory and
guidelines purposes. Following its application of the factors
in 18 U.S.C. § 3553(a) and mindful of the 15-year mandatory
minimum Congress prescribed in ACCA, the district court
sentenced Dotson to 188 months. We aﬃrmed on direct re-
view. See United States v. Dotson, 712 F.3d 369 (7th Cir. 2013).
     In October 2014, Dotson invoked 28 U.S.C. § 2255 and
sought a reduced sentence. Pointing to the Supreme Court’s
decision in Descamps v. United States, 570 U.S. 254 (2013), he
argued that his 1993 Indiana burglary conviction (#4 in our
list above) no longer qualified as an ACCA predicate. That po-
sition reflected a misunderstanding on Dotson’s part, for the
district court at sentencing never considered or found that the
Indiana burglary qualified as a violent felony. In a supple-
mental filing, Dotson also questioned whether his Indiana
dealing in cocaine oﬀense (#2) was an ACCA predicate.
    The district court responded to Dotson’s motion by ap-
pointing counsel. Dotson’s counsel then repeated the same
mistake in an amended § 2255 motion, arguing that neither
the 1993 Indiana burglary conviction (#4) nor the 2007 Indiana
attempted robbery conviction (#3) qualified as violent felony
predicates. Nobody caught that the 1993 Indiana burglary
conviction (#4) was not part of the basis on which the sentenc-
ing judge found Dotson to be an armed career criminal.
    For its part, the district court likewise committed the same
mistake, denying Dotson’s § 2255 motion because, even if the
1993 Indiana dealing in cocaine conviction (#2) somehow did
not constitute a serious drug oﬀense within the meaning of
§ 924(e), his 1992 Indiana armed robbery (#1), 2007 Indiana at-
tempted robbery (#3), and 1993 Indiana burglary (#4) convic-
tions remained ACCA predicates. Put another way, in ruling
No. 18-1701                                                   5

on Dotson’s § 2255 motion, the district court started from the
express (but mistaken) premise that it previously “found” at
sentencing that Dotson “had three or more prior convictions
that qualified as ‘violent felonies’ [or serious drug oﬀenses],”
including oﬀenses #1 (armed robbery), #2 (dealing in cocaine),
#3 (attempted robbery), and #4 (burglary). Nobody caught the
mistake.
    After the district court’s denial of Dotson’s § 2255 motion
and request for a certificate of appealability, this court held
that an Indiana conviction for attempted robbery is not a
“crime of violence” within the meaning of ACCA.
See United States v. D.D.B., 903 F.3d 684, 692–93 (7th Cir.
2018). Dotson then sought, and we granted, a certificate of ap-
pealability in light of D.D.B.
                               II
    What happened during Dotson’s present appeal frames
the issue now before us. Our decision in D.D.B. meant that
Dotson’s 2007 Indiana attempted robbery conviction (#3) no
longer qualifies as an ACCA predicate. From there, however,
the government points to our decision in United States v. Perry,
862 F.3d 620 (7th Cir. 2017), where we held that Indiana bur-
glary qualifies as a violent felony under ACCA, and urges us
to rely upon—or, more accurately, to substitute—Dotson’s
1993 Indiana burglary conviction (#4) to sustain his sentence
as an armed career criminal. The government’s requests and
reasoning are straightforward: with the Indiana attempted
robbery conviction (#3) out because of D.D.B. but the burglary
conviction (#4) remaining a violent felony, Dotson still has
three qualifying predicates (#1, #2, and #4) and remains an
armed career criminal.
6                                                 No. 18-1701

   Not before now have we considered whether the govern-
ment can substitute ACCA predicates after sentencing to save
an enhanced sentence. We came the closest to the issue in
Light v. Caraway, 761 F.3d 809 (7th Cir. 2014), and take some
direction from our approach there.
    Augustus Light had at least four adult felony convictions,
three of which the PSR identified as ACCA predicates. See id.
at 811. At sentencing, and without expressly stating which
convictions qualified as ACCA predicates, the district court
followed the Probation Oﬃce’s recommendation and sen-
tenced Light as a career oﬀender. The Supreme Court then de-
cided several cases addressing what did and did not qualify
as ACCA predicates. The Court’s decision in Begay v. United
States, 553 U.S. 137 (2008), had the eﬀect of showing that
Light’s prior conviction for criminal vehicular operation un-
der Minnesota law was not a qualifying violent felony under
ACCA. But three years later came Sykes v. United States, 564
U.S. 1 (2011), which had the opposite eﬀect for Light. Sykes
made clear that Light’s conviction under Minnesota law for
fleeing in a car from a police oﬃcer—an oﬀense that was not
an ACCA predicate under the law in place at the time of
Light’s sentencing—did constitute a violent felony within the
meaning of § 924(e). Light, 761 F.3d at 814.
    The “net change” of these legal developments, we deter-
mined, was “zero.” Id. This meant Light remained an armed
career criminal: “Through intervening changes in the law, one
of his prior predicate oﬀenses for the ACCA enhancement no
longer qualifies, but one that was not previously a qualifying
predicate oﬀense has become eligible.” Id. More to it, we
failed to “see why Light is entitled to a one-way ratchet, sub-
ject only to changes in law that benefit him but immune from
No. 18-1701                                                      7

changes in law that are not helpful.” Id. at 817. Nor were we
persuaded by Light’s contention of unfair notice—that the
substituted oﬀense (the fleeing-in-a-vehicle oﬀense) was not
an ACCA predicate at the time of sentencing. Given “the nu-
merous recent cases elaborating on the scope of the ACCA’s
residual clause,” we explained, Light could not claim any
“undue surprise” that the changes in law could work in both
directions to leave his sentence undisturbed. Id.
   At the very least, Light counsels that our analysis here
should ask whether fundamental unfairness arising from a
lack of notice would befall Dotson by allowing his 1993 Indi-
ana burglary conviction (#4) to sustain his sentence as an
armed career criminal. On the record before us, we cannot an-
swer the question in Dotson’s favor.
    First, recall that the indictment listed the burglary convic-
tion among other prior felonies as part of charging a violation
of § 922(g) and § 924(e)—the latter being an express reference
to ACCA. The indictment, in short, informed Dotson the gov-
ernment may rely on his burglary conviction (#4) to show he
had three qualifying ACCA predicates and thus would face
an enhanced sentence upon a conviction.
    Second, and more importantly, Dotson himself submitted
at least four filings reflecting the belief, albeit a mistaken one,
that the district court had counted the 1993 burglary convic-
tion (#4) as a qualifying ACCA predicate at the original sen-
tencing. He then saw his appointed counsel make the same
mistake.
    The punchline, then, is that these circumstances are far
afield from a scenario where a defendant may be able to make
a credible showing of undue surprise from allowing the
8                                                     No. 18-1701

substitution of a particular felony conviction not relied upon
at sentencing to save an ACCA sentence otherwise called into
question by subsequent developments in the law. Dotson
more than knew of this possibility: he and his counsel repre-
sented it as reality in several legal filings in the course of these
§ 2255 proceedings. In these circumstances, we see no unfair-
ness in leaving intact Dotson’s sentence as an armed career
criminal.
    We prefer this narrower reasoning to the broader strokes
the Eleventh Circuit painted with in deciding the same ques-
tion in Tribue v. United States, 929 F.3d 1326 (11th Cir. 2019).
The court there held that, in opposing a § 2255 motion, the
government may rely on a conviction to serve as an ACCA
predicate even if the conviction was not among those listed in
the PSR as, or determined at sentencing to be, a predicate. See
id. at 1332 (observing that the defendant “raised no objection
to his ACCA enhancement” and emphasizing that “the gov-
ernment did not waive reliance on other convictions in the
[PSR] as ACCA predicates simply by not objecting to the
[PSR] on the grounds that Tribue had more qualifying convic-
tions than the three that the probation oﬃcer had identified
as supporting the ACCA enhancement”). The Tenth Circuit
seems to have reached a similar conclusion. See United States
v. Garcia, 877 F.3d 944, 956 (10th Cir. 2017) (allowing, without
express consideration of the issue, the post-sentencing substi-
tution of a prior conviction not designated in the PSR as a vi-
olent felony predicate to save an ACCA sentence), abrog’d on
other grounds by United States v. Ash, 917 F.3d 1238 (10th Cir.
2019).
  By contrast, the Fourth Circuit has held that the govern-
ment could not support an ACCA enhancement with a
No. 18-1701                                                     9

conviction listed in the PSR but not previously designated at
sentencing as a predicate. See United States v. Hodge, 902 F.3d
420, 427 (4th Cir. 2018). The court rooted its holding in the un-
fairness of the defendant having no notice—no reason at sen-
tencing—to believe the court or government may react to a
change in the law favorable to the defendant by relying on
another of his prior convictions to preserve the ACCA sen-
tence. The court put its holding this way: “when the Govern-
ment or the sentencing court chooses to specify which of the
convictions listed in the PSR it is using to support an ACCA
enhancement, it thereby narrows the defendant’s notice of po-
tential ACCA predicates from all convictions listed in the PSR
to those convictions specifically identified as such.” Id. at 428.
   While not siding with the Fourth Circuit’s broader hold-
ing, we agree with its concerns about notice to defendants.
Fair notice underpins due process precisely because it pre-
vents surprise and aﬀords opportunities to respond. Those
principles are not oﬀended here: Dotson himself believed and
represented in multiple legal submissions that the district
court counted his 1993 Indiana burglary conviction (#4) as an
ACCA predicate at his original sentencing. While his view
was mistaken, allowing the burglary conviction to sustain his
sentence does not in our view oﬀend principles of fair notice
on these unusual facts.
    So, too, do we worry about the consequences of a holding
that, as a practical matter, risks producing expansive litigation
at sentencing over whether each and every prior felony in a
defendant’s criminal history constitutes a qualifying ACCA
predicate. The law in this area, at the risk of great understate-
ment, is dizzyingly complex. The last outcome we want to risk
is sentencing hearings turning into full-blown, prolonged,
10                                               No. 18-1701

and extraordinarily diﬃcult exercises over questions where
the answers may never matter. Judicial resources warrant bet-
ter investment.
     For these reasons, we AFFIRM.
