United States v. Dutch, 978 F.3d 1341

Marc Dutch pleaded guilty in 2016 to being a felon in possession of a firearm; probation recommended an ACCA enhancement based on three 2005 bank-robbery convictions.
Dutch had pleaded guilty in 2006 to three substantive counts of bank robbery (and aiding and abetting), each alleged to have occurred on different days and at different banks in November 2005.
The district court initially rejected the ACCA enhancement, finding the government had not proved the predicate offenses were "committed on occasions different from one another," and sentenced Dutch to 60 months.
A Tenth Circuit panel (Dutch I) reversed, holding the indictment and plea documents showed the robberies occurred on different dates/locations and that ACCA applied; the panel remanded with instructions to resentence accordingly; rehearing and certiorari were denied.
On remand the district court, at Dutch’s urging, again declined to apply ACCA, finding the plea/charging documents ambiguous and concluding it was not bound by Dutch I; the government appealed that resentencing decision.
The Tenth Circuit (this opinion) held the district court violated the panel’s specific mandate, found no exception to the mandate rule applied, reversed, and remanded for resentencing consistent with Dutch I.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court on remand was bound by the prior panel’s mandate that ACCA applies	United States: Dutch I squarely held ACCA applies; the district court must follow the panel’s specific mandate on remand	Dutch: The panel did not fully address the ambiguity in plea/charging documents; district court may reconsider	Held: District court violated mandate rule; it was bound by Dutch I and abused discretion by relitigating the issue; no exception to the mandate rule applies
Whether the indictment/plea documents suffice to show the three robberies were committed on separate occasions for ACCA purposes	United States: Charging document, plea, and judgments show robberies occurred on different dates/locations and defendant pleaded to substantive counts—satisfies Shepard standard	Dutch: Plea language (aiding and abetting) is ambiguous and could represent a single act covering multiple robberies, so government failed to prove separate occasions	Held: Court agrees with Dutch I that the documents are sufficient to show distinct occasions; ACCA predicates established

Shepard v. United States, 544 U.S. 13 (2005) (district court may consider only certain documents when determining predicate offenses for sentencing)
United States v. Delossantos, 680 F.3d 1217 (10th Cir. 2012) (government must prove predicates were committed on occasions different from one another)
United States v. West, 646 F.3d 745 (10th Cir. 2011) (law-of-the-case/mandate rule prevents relitigation of decided issues on remand)
Proctor & Gamble Co. v. Haugen, 317 F.3d 1121 (10th Cir. 2003) (mandate consists of the court’s instructions and the opinion that precedes them)
United States v. Moore, 83 F.3d 1231 (10th Cir. 1996) (exceptions to mandate rule: intervening change in law, new evidence, or blatant error causing serious injustice)
United States v. Walker, 918 F.3d 1134 (10th Cir. 2019) (mandate interpretation reviewed de novo)