United States v. Johnny Barbour
2014 U.S. App. LEXIS 7275
6th Cir.2014Background
- In 2003 Barbour and three accomplices robbed a motorist outside a Gas-N-Go and then a clerk inside the store; Barbour was convicted of both aggravated robberies in a single state proceeding.
- About ten years later Barbour pleaded guilty in federal court to being a felon in possession of ammunition under 18 U.S.C. § 922(g) and the PSR classified him as an Armed Career Criminal under 18 U.S.C. § 924(e) based on three prior violent-felony convictions.
- At sentencing Barbour objected to counting the two 2003 robberies as separate "occasions different from one another," arguing the record was unclear whether the first robbery had ended before the second began and asserting the government bears the burden to prove separate occasions.
- The district court found the two robberies were separate (different locations; could discern end of first and start of second) and applied the ACCA 15-year mandatory minimum, imposing 188 months.
- The Sixth Circuit reviewed de novo whether offenses were "committed on occasions different from one another," examined circuit precedent, and focused on whether the government or defendant bears the burden of proof.
- The Sixth Circuit held the government must prove by a preponderance that predicate convictions occurred on different occasions and concluded the government failed to show the motorist robbery ended before the store robbery began; vacated the sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden to prove prior convictions were "committed on occasions different from one another" under § 924(e)? | Barbour: government must prove separate occasions; government bears burden of ACCA elements. | Government: burden should fall on defendant (relying on Cowart and arguments about defendant's access to facts). | Government bears burden to prove separate occasions by preponderance. |
| Were the two 2003 robberies separate occasions so they may both count as ACCA predicates? | Barbour: record is inconclusive; robberies may have overlapped (codefendants could have been guarding the motorist). | Government: district court can infer robberies were separate because they occurred at different physical locations and it was possible to discern endpoints. | The record lacks evidence that the first robbery ended before the second began; convictions cannot both be counted as separate ACCA occasions. |
| Proper test for determining "different occasions" | Barbour: must show temporal separation; focus on whether first crime had a definable endpoint. | Government: reliance on multi-factor tests (Hill/Jones indicia) and ability to infer separation. | Court reiterated prior indicia (Hill) but emphasized temporal, objective proof and government burden. |
| Application of Cowart burden-shifting to § 924(e) occasions inquiry | Barbour: Cowart inapplicable. | Government: Cowart suggests defendant should prove crimes were part of same scheme. | Cowart distinguishable; does not apply because occasions inquiry is objective and government has access to proof. |
Key Cases Cited
- United States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en banc) (two burglaries at different businesses held separate occasions)
- United States v. Hill, 440 F.3d 292 (6th Cir. 2006) (identifies three indicia for separateness: discernible endpoints, ability to withdraw, different locations)
- United States v. Murphy, 107 F.3d 1199 (6th Cir. 1997) (overlapping criminal acts by accomplices held a single episode)
- United States v. Carnes, 309 F.3d 950 (6th Cir. 2002) (adjacent burglaries separated by leaving one residence to enter another)
- United States v. Wilson, 27 F.3d 1126 (6th Cir. 1994) (rapes on different floors treated as separate occasions)
- United States v. Cowart, 90 F.3d 154 (6th Cir. 1996) (burden allocation where defendant best positioned to show a common scheme or plan)
- Kirkland v. United States, 687 F.3d 878 (7th Cir. 2012) (government must prove by preponderance, using Shepard-approved sources, that prior convictions occurred on different occasions)
- United States v. Phillips, 149 F.3d 1026 (9th Cir. 1998) (government met burden with plea admissions and other reliable evidence)