United States v. Ker Yang
2015 U.S. App. LEXIS 14729
7th Cir.2015Background
- Defendant Ker Yang pleaded guilty to being a felon in possession of a firearm; district court applied the Armed Career Criminal Act (ACCA) mandatory minimum based on three prior felony convictions.
- One prior conviction was recorded on a generic judgment form as "felony domestic" without a clear statutory citation.
- District court consulted the Minnesota criminal code and plea/sentencing transcripts (Shepard documents) and concluded the conviction was under Minn. Stat. § 609.224(4) (felony domestic assault).
- Yang argued the court could not consult materials beyond the judgment unless the statute was divisible; he contended Descamps limits the modified categorical approach to resolving which alternate element of a divisible statute was used.
- The court held that when a judgment is ambiguous as to which statutory provision was the basis for conviction, the sentencing court may consult Shepard-approved documents to identify the statute (not to probe underlying facts), and that § 609.224(4) qualifies as an ACCA violent felony.
Issues
| Issue | Plaintiff's Argument (Yang) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the sentencing court could consult plea/sentencing transcripts when the judgment did not identify the statute of conviction | Descamps bars use of Shepard documents unless the statute is divisible; here the judgment ambiguity does not permit looking beyond the judgment | The court could rely on the judgment plus consulting the state statute and, if necessary, Shepard documents to identify the statutory basis | Court affirmed: judge may consult Shepard documents to identify which statute/subsection formed the basis of conviction; § 609.224(4) is a violent felony under ACCA |
| Whether felony domestic assault under Minn. Stat. § 609.224(4) qualifies as an ACCA violent felony | Yang implied it might not qualify absent clear statutory identification | Government: § 609.224(4) has elements involving use, attempted use, or threatened use of physical force and thus qualifies | Held: § 609.224(4) satisfies ACCA’s force clause and is a violent felony |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (limits when courts may use the modified categorical approach to identify which alternative element a defendant was convicted under)
- Shepard v. United States, 544 U.S. 13 (2005) (identifies permissible documents for determining the factual basis/elements of a prior conviction)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for determining ACCA predicates)
- James v. United States, 550 U.S. 192 (2007) (prohibits case-by-case factual inquiry into prior convictions for ACCA purposes)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (on use of statutory alternatives to define multiple crimes)
- Reiter v. Sonotone Corp., 442 U.S. 330 (1979) (judicial opinions must be read in context; general language not to be parsed as statute)
- United States v. Woods, 576 F.3d 400 (7th Cir. 2009) (explaining limits on consulting underlying facts and use of Shepard documents)
- United States v. Meherg, 714 F.3d 457 (7th Cir. 2013) (noting defendants may dispute interpretation of unclear judgments with Shepard-type evidence)
- United States v. Black, 636 F.3d 893 (7th Cir. 2011) (discussing indivisible vs divisible statutes and limits on using prior-proceeding materials)
- United States v. Ramirez, 606 F.3d 396 (7th Cir. 2010) (stating nondivisible statutes preclude use of plea colloquies and similar documents)
- United States v. Mathews, 453 F.3d 830 (7th Cir. 2006) (describing the modified categorical approach)
- United States v. Misleveck, 735 F.3d 983 (7th Cir. 2013) (applying ACCA categorical principles)