Jeffrey Kirkland v. United States
2012 U.S. App. LEXIS 15194
| 7th Cir. | 2012Background
- Kirkland was convicted of unlawful possession of a firearm by a felon and sentenced under the ACCA based on five violent felonies, including two alcohol-related offenses.
- After Begay, the Supreme Court held DUI is not a violent felony; on remand, the district court re-evaluated whether three remaining felonies still supported ACCA enhancement.
- The district court found the 1984 burglary and the 1985 burglary and aggravated robbery convictions could support the enhancement; Kirkland challenged whether the 1985 offenses occurred on different occasions.
- Charging documents for 1985 offenses show burglary and aggravated robbery/ theft with co-defendants on February 6, 1985, but lack timing and location details for the robbery.
- Kirkland offered an affidavit and testimony to show the 1985 offenses occurred on the same occasion, but Shepard restrictions limit the court to Shepard-approved sources for the factual record.
- The district court denied relief, applying a burden-shifting approach suggesting the government bears the burden to show separate occasions, which the Seventh Circuit later scrutinized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1985 burglary and robbery occurred on different occasions | Kirkland contends 1985 offenses were on the same occasion. | Government argues offenses were on separate occasions, justifying ACCA. | Burden must be proven with Shepard-approved sources; ambiguities preclude separate occasions finding. |
| Whether the district court erred in excluding Kirkland's affidavit/testimony at resentencing | Kirkland argues his testimony could resolve the timing/sequence question. | Government relies on Shepard-approved documents; court may not consider the extra-record testimony. | Court reversed on this rationale without reaching the admission issue; remand for resentencing. |
| Application of Shepard source restrictions to the 'different occasions' inquiry | Shepard governs what sources may be used to determine separate occasions. | Hudspeth burden shifting allowed broader fact-finding prior to Shepard. | Shepard applies; the government must prove separate occasions using Shepard-approved sources. |
Key Cases Cited
- Begay v. United States, 553 U.S. 137 (U.S. 2008) (driving under the influence not a violent felony under ACCA)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (formal categorical approach to 'violent felony' definitions)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limits evidence for prior convictions to Shepard-approved sources)
- Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (set burden shifting for separate occasions before Shepard)
- Ngo, 406 F.3d 839 (7th Cir. 2005) (Shepard applied to sentencing context)
- Sneed, 600 F.3d 1326 (11th Cir. 2010) (vacated ACCA where non-Shepard sources used for separate occasions)
- Bookman, 263 F. App’x 398 (5th Cir. 2008) (government bears burden; use of Shepard-approved docs for occasions)
- Philips, 149 F.3d 1026 (9th Cir. 1998) (reaffirmed burden on government for separate occasions with reliable evidence)
- Morris, 293 F.3d 1010 (7th Cir. 2002) (distinct criminal actions indicated by timing/locations)
- Cardenas, 217 F.3d 491 (7th Cir. 2000) (separate episodes with distinct aggression)
- Godinez, 998 F.2d 471 (7th Cir. 1993) (different victims/locations more than an hour apart)
- Nigg, 667 F.3d 929 (7th Cir. 2012) (sequential offenses support ACCA where feasible)