United States v. Errol KingUnited States v. Errol King
Before: WHITE and STRANCH, Circuit Judges; MICHELSON, District Judge.*
MICHELSON, District Judge.
Defendant Errol King pleaded guilty to being a felon in possession of a firearm and, based on King‘s prior convictions, the Government sought and obtained an enhanced sentence under the Armed Career Criminal Act. On appeal, King maintains that the ACCA‘s fifteen-year mandatory minimum does not apply to him. He makes this claim not by arguing that he has fewer than three prior convictions for violent felonies, but by arguing that the Government cannot show that his prior offenses were committed on different occasions. In assessing King‘s claim, we must answer the
I.
A.
In 2002, King was convicted in Ohio courts for committing a number of similar crimes on the same day.
Three indictments led to King‘s convictions. One asserted that King (and another) had robbed and kidnapped one Arthur Lundberg “on or about” February 18, 2002. A second said that King (and another) had robbed and kidnapped one David Mariano—also on or about February 18, 2002. And the third indictment charged that King (along with three others) had committed aggravated robbery against five victims—again on or about February 18, 2002. None of the indictments alleged the times or locations of the offenses.
But three bills of particulars did. The one filed in the Lundberg case stated, in relevant part, “the Proseсuting Attorney says that the State of Ohio will prove [at trial], the following: That on or about February 18, 2002 at approximately 1900 hours, and at the location of 740 Euclid Avenue, in the City of Cleveland, Ohio,” King had kidnapped and robbed Lundberg (or tried to). Similarly, the bill of particulars filed in the Mariano case asserted that Ohio would prove that King‘s criminal conduct had occurred “on or about February 18, 2002, at approximately 7:27 p.m., and at the location of 1000 Barn Court, in the City of Cleveland, Ohio.” And in the case charging King with five counts of aggravated robbery, the bill claimed that Ohio would prove that the offenses had occurred “on or about February 18, 2002 at apprоximately 7:50 p.m., and at the location of East 21st and Euclid, in the City of Cleveland, Ohio.” In short, together, the bills of particulars indicate that the offenses charged in each of the three indictments occurred about 25 minutes apart and that King committed them at different locations in Cleveland.
King eventually pleaded guilty to some charges (or amended charges). Apparently due to Ohio‘s record-keeping practices, transcripts of King‘s plea colloquies are no longer available. And while each guilty plea was memorialized in a “Journal Entry,” like the indictments, none of the journal entries provide the alleged times or locаtions of King‘s offenses.
B.
About twelve years later, in February 2015, King pleaded guilty in federal district court to possessing a firearm with a felony conviction in violation of
King disputed the Governmеnt‘s claim that he was subject to the ACCA‘s enhancement. Although conceding that his 2002 convictions were “violent felon[ies]” under the ACCA, King claimed that the tests established by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), excluded the bills of particulars from the evidence the court was permitted to rely on in determining whether his 2002 offenses were “committed on occasions different from one another.” And, argued King, reviewing the appropriate documents revealed only that his prior offenses took place on the same day, and the Government thus failed to show that his felonies were committed on different occasions.
The Government‘s argument to the district court was three tiered. The Government first took the position that Taylor and Shepard‘s restrictions on the evidence that a sentencing court may consider apply only when the court determines whether the elements of a prior conviction match the elements of an ACCA predicate. In support of this position, the Government relied on a footnote in United States v. Thomas, 211 F.3d 316, 318 n.3 (6th Cir. 2000), where we indicated that Taylor‘s evidentiary limitations (Shepard had not yet been decided) did not apply to the different-occasions inquiry. The Government next argued that even if the evidentiary restrictions of Taylor and Shepard extend to the different-occasions inquiry, the bills of particulars filed in the 2002 cases came within those restrictions. Lastly, as an (admittedly weaker) alternative, the Government аsserted that based on only the indictments and journal entries, it was still more likely than not that King‘s prior offenses had occurred on different occasions.
The district court agreed with the Government‘s first argument and so it did not reach the other two. In particular, although recognizing that we previously questioned Thomas‘s viability given Shepard, see United States v. Barbour, 750 F.3d 535, 543 n.1 (6th Cir. 2014), the district court believed that Thomas remained binding precedent. It thus relied on the bills of particulars, concluded that King‘s 2002 offenses were “committed on occasions different from one another,” and sentenced King to fifteen years and eight months in prison under the ACCA. Regarding the evidence that may be considered in making the different-occasions determination, the district court remarked, “the issue is absolutely teed up for the Sixth Circuit. And now it‘s a matter that the Sixth Circuit has to decide.”
II.
We review de novo the issue of what evidence a court may rely on when deciding whether prior offenses were “committed on occasions different from one another” as that phrase is used in the ACCA. See United States v. Singer, 782 F.3d 270, 279 (6th Cir. 2015); United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997).
III.
A.
King first claims that a district court, in deciding whether a defendant‘s prior offenses were “committed on occasions different from one another,” may consult only the evidentiary sources approved by the Supreme Court in Taylor and Shepard.
In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Suprеme Court set out the approach that courts must use in determining whether a prior conviction qualifies as an ACCA predicate, such as “burglary, arson, or extortion.” The Court said that federal district courts are generally to employ a “formal categorical approach“: ask whether the elements of the prior offense match the elements of the “generic” version of the crime listed in the ACCA. Id. at 600. The Court noted, however, that it may be permissible for a sentencing court to consider information beyond the statutory definition of the prior offense where that definition has alternative elements and, if the defendant was cоnvicted of one alternative, the conviction would count as an ACCA predicate, but if another, it would not. See id. at 602. “For example,” hypothesized the Court, because generic burglary in the ACCA covered only entry into a building, if a prior conviction was for violating a burglary statute covering entry into a building or a vehicle, a court applying the ACCA could look to the “indictment or information and jury instructions” filed in the prior case to see if “the jury necessarily had to find an entry of a building to convict.” Id. This method of consulting limited evidence to determine which of several alternative elements underlies a prior conviction is now known as the “modifiеd categorical approach.” See Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013).
More important to resolving this appeal is why the Supreme Court thought that a categorical approach, permitting a sentencing court to at most determine what “the jury necessarily had to find ... to convict,” Taylor, 495 U.S. at 602, was proper. One reason, the Court explained, was the legislative history of the ACCA: “If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant‘s prior offenses, surely this would have been mentioned somewhere in the legislative history.” Id. at 601. Another reason fоr not allowing sentencing courts to engage in a factual inquiry was the text of the ACCA: by referring to the defendant‘s “previous convictions” for violent felonies instead of, say, the defendant‘s “previous commission” of violent felonies, Congress had indicated that it was not the conduct leading to the conviction but the conviction itself that mattered to the ACCA-predicate determination. Id. at 600.
In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court adhered to these rationales. At issue was whether a prior conviction for violating a state law criminalizing burglary of a “building, ship, vessel, or vehicle” matched the ACCA‘s generic-burglary predicate. Id. at 16; id. at 31 (O‘Connor, J., dissenting). Because the defendant‘s prior state conviction was the result of a plea, a court deciding if the ACCA applied could not (as Taylor had suggested) consult jury instructions in the state case to see if the defendant had been convicted of entry into a building as generic burglary requires. See id. at 17 (majority opinion). The Government took the position that the federal sentencing court could look to an uncontroverted police report alleging that the defendant had entered a building. Id. Although the report was reliable, the Supreme Court rejected that position, explaining that the Government‘s “wider evidentiary cast,” id. at 21,
A four-justice plurality thought that the Constitution provided an additional reason for requiring that the ambiguous element underlying a prior conviction in a pleaded case be clarified by a defendant through admission rather than determined by a judge applying the ACCA. Shepard, 544 U.S. at 24-26. The plurality noted that since Taylor, the Court had held in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the Constitution requires a jury, not a judge, to find any fact subjecting the defendant to a greater statutory penalty (with the exception that a judge could find the fact of conviction). See Shepard, 544 U.S. at 24. The plurality was concerned that if a court answered the ACCA-predicate question by finding facts nоt admitted by the defendant, the court might very well abridge the defendant‘s Sixth and Fourteenth Amendment rights. See id. at 25-26; cf. id. at 28 (Thomas, J., concurring in part and in the judgment) (explaining that “broadening the evidence judges may consider when finding facts under Taylor ... would not give rise to constitutional doubt, as the plurality believes,” but instead “constitutional error“).
Since Shepard, a majority of the Supreme Court has recognized this constitutional concern. In Descamps, the Court explained that if a sentencing court were to answer the ACCA-predicate question by “try[ing] to discern what a trial showed, or a plea proceeding revealed, about the defendant‘s underlying conduct,” there would be friction with the Sixth Amendment‘s promisе that “a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.” 133 S.Ct. at 2288. And just last year the Court reiterated, “a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense.... He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 2252, 195 L.Ed.2d 604 (2016).
In sum, the Supreme Court has restricted federal district courts tasked with answering the ACCA-predicate question to first the statutory definition of the prior offense, and, if that definition is phrased in the alternative, to limited evidence, because of the ACCA‘s text and legislativе history and because of likely conflict with the Constitution were the evidentiary restrictions absent.
We think that the legislative history and constitutional concerns apply with equal force when a sentencing court undertakes
What most convinces us, then, that Taylor and Shepard‘s evidentiary restrictions extend to the diffеrent-occasions question is the Supreme Court‘s expressed concern over a judge finding facts that become the basis of an ACCA enhancement. “Under ACCA, the court‘s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction.” Descamps, 133 S.Ct. at 2288. Just so with the different-occasions question: a sentencing court‘s finding that prior violent felonies were “committed on occasions different from one another” can be as dispositive of an ACCA enhancement as finding that a conviction is a third ACCA predicate. (Indeed, this is that case.) So if a sentencing judge, in answering the different-occasions question, became the trier of fact regarding when and where the prior offenses occurred, that procedure would raise the very constitutional concern identified in Shepard and reaffirmed in Descamps and Mathis.
The Taylor-Shepard approach quells this constitutional concern. Under the framework of those cases, a judge is restricted to those facts that “necessarily” underlie the prior conviction, Shepard, 544 U.S. at 20-21, i.e., those facts necessarily determined beyond a reasonable doubt by the trier of fact or necessarily admitted by the defendant, see Descamps, 133 S.Ct. at 2288. Thus, under Taylor and Shepard, a sentencing judge is not finding facts in the first instance, but merely identifying findings or admissions thаt were previously made under constitutional safeguards.
Accordingly, we hold that Taylor and Shepard‘s limitations on the evidentiary sources and information that a federal district court may consider in determining whether a prior conviction is a predicate under the ACCA also apply when the court determines whether prior offenses were “committed on occasions different from one another” under the ACCA.
Not only does Supreme Court precedent compel this conclusion, but our holding is consistent with that of our sister circuits (save, perhaps, one). See United States v. Dantzler, 771 F.3d 137, 139 (2d Cir. 2014); Kirkland v. United States, 687 F.3d 878, 886 & n.9 (7th Cir. 2012); United States v. Boykin, 669 F.3d 467, 472 (4th Cir. 2012); United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009); United States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006); United States v. Harris, 447 F.3d 1300, 1305 (10th Cir. 2006); United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005). But see United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (“[W]e have rejected similar Sixth Amendment arguments challenging the information the district court considers when determining the specific dates on which the offenses occurred.” (citing United States v. Richardson, 483 Fed.Appx. 302, 305 (8th Cir. 2012))); Richardson, 483 Fed.Appx. at 305 & n.3 (explaining that Shepard‘s evidentiary restrictions are not applicable in determining whether offenses were committed on different occasions).
The Government, citing United States v. Thomas, 211 F.3d 316 (6th Cir. 2000), and United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), argues that our published precedents are contrary to what we have just concluded. We disagree. It is true that in Thomas we (foot)noted that Taylor‘s framework did not extend to the different-occasions question. See 211 F.3d at 318 n.3. And it is also true that published precedent generally binds later panels. United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) abrogated on other grounds by Beckles v. United States, 580 U.S. 256, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017).
But we do not adhere to published precedent when “an intervening decision of the United States Supreme Court requires modification of our prior decision.” Id. And Shepard fits the bill. That post-Thomas decision did more than extend Taylor‘s categorical apprоach to situations where prior convictions rested on guilty pleas. When read in light of Descamps (and Mathis), Shepard harnessed Apprendi to back Taylor‘s categorical approach. Shepard, 544 U.S. at 24-26 (plurality opinion); Descamps, 133 S.Ct. at 2288 (discussing constitutional implications of non-categorical approach and relying on Shepard plurality opinion). Indeed, we have previously suggested that Thomas was “appropriate for reconsideration” given ”Shepard and its progeny.” United States v. Barbour, 750 F.3d 535, 543 n.1 (6th Cir. 2014). Taking our prior advice, we find that, to the extent Thomas conflicts with the limitations Shepard sets on determining an ACCA enhancement—whether on the predicate-conviction or different-occasions question—Thomas is abrogated by Supreme Court precedent.
As for Burgin, which also predated Shepard, there we answered a related but different question than the one presented here. In Burgin we held that, consistent with Apprendi, a sentencing judge may answer the question of whether prior offenses were “committed on occasions different from one another.” See 388 F.3d at 183 (“[T]he issue before the Court is whether this ‘differеnt occasions’ language is a fact, ‘other than the fact of a prior conviction,’ which is subject to the protections outlined in Apprendi.“); see also id. at 184, 186. And to the extent that answering the different-occasions question requires a sentencing judge to identify the who, when, and where of the prior offenses, nothing we say here precludes a judge from doing so. We only hold that in identifying those facts, a sentencing judge is constrained to reviewing evidence approved by Taylor and Shepard.
The Government also argues that the “different[-]occasions inquiry requires an analysis of facts” while the “sole” purpose of the Taylor-Shepard framework is to determine elements of the prior offense. Wе agree with the Government that the function of the categorical approach and its modified helper is to determine which elements, not which facts, underlie a prior conviction. But identifying the function of the categorical approach does not answer the critical question: why has the Supreme Court prohibited courts applying the ACCA from considering all but a limited class of documents when identifying ele-
The Government also raises a practical argument. It asks, how can a district court answer the different-occasions question if it is “blinded” to the evidence it needs to make that determination by Taylor and Shepard‘s restrictions?
We recognize that in some cases Taylor and Shepard evidence will not be sufficient for a district court to determine that prior offenses occurred on different occasions while a broader swath of evidence would permit the determination. But a similar practical argument was raised and rejected in Shepard. There, it was argued that a police report, “free from any inconsistent, competing evidence,” would have reliably shown that the defendant had burglarized a building (as the ACCA‘s burglary predicate required), whereas, absent the report, it was (likely) impossible to identify which of several alternatives was the basis of the prior conviction. See Shepard, 544 U.S. at 17-18, 22; United States v. Medina-Almaguer, 559 F.3d 420, 425 (6th Cir. 2009). This concern, the Court explained, was not “sufficient justification for upsetting precedent,” particularly as Taylor‘s evidentiary limitation “was the heart of [that] decision.” See id. at 23. The Court further noted that “time has enhanced even the usual precedential force” of Taylor because in the intervening fifteen years, Congress had made no change to the statute. Id. In reaching our decision based on the samе reasoning, we likewise respect precedent.
Finally, at oral argument, the Government relied heavily on Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), to argue that it would be improper to extend Taylor and Shepard‘s restrictions to the different-occasions inquiry.
Nijhawan sheds little light on the issue before us. There, the Supreme Court found that an immigration judge was not limited to Taylor‘s categorical approach in determining that an alien had a prior felony conviction involving fraud or deceit causing a $10,000 or more loss. Id. at 32. But, significantly, “a deportation proceeding is a civil proceeding,” id. at 42, so the Sixth and Fourteenth Amendment concerns that animate our decision were not present in Nijhawan. Indeed, in response to the argument that Taylor and Shepard should apply because the immigration judge‘s loss-amount determination could lead to an increased sentence in a later criminal proceeding, the Govеrnment conceded that it would have to prove the loss amount beyond a reasonable doubt in the later criminal case. Id. at 40. And that concession “eliminat[ed] any constitutional concern.” Id.
In short, we find that in determining whether prior offenses were “committed on occasions different from one another,”
B.
Remaining is to apply this rule to the facts of this case: are the times and locations recited in the bills of particulars filed in King‘s 2002 cases within the scope of information and sources approved by the Supreme Court in Taylor and Shepard? We think not.
It is improper to infer that King necessarily admitted the when and where of the 2002 offenses as set forth in the bills of particulars when he pleaded guilty. To start, there are no transcripts of King‘s plea colloquies or copies of written plea agreements reflecting any such admissions. And the time and place of King‘s robberies or attempted robberies were not elements of those offenses. The statutory language corresponding to King‘s convictions makes this apparent. See
The Government implies that, in limiting a court applying the ACCA to what King necessarily admitted, we apply Shepard‘s restrictions too strictly. It stresses that in Shepard, the Supreme Court stated that courts making the ACCA-predicate determination may consider “the terms of the charging document” (which, says the Government, includes bills of particulars).
The Government is correct about what Shepard said. See 544 U.S. at 26. But to hold that a court answering the different-occasions question can consider anything that might be classified as a charging document would be to unmoor Shepard‘s reference to “charging documents” from its reasoning. The list of approved documents was compiled with a
We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.
544 U.S. at 26 (emphases added); see also id. at 20-21 (explaining that with a plea-colloquy transcript, the written plea agreement, or a comparable record, “a later court could generally tell whether the plea had ‘necessarily’ rested on the fact identifying the burglary as generic“).
But, one might argue, if the Supreme Court had truly wanted to limit courts making the ACCA-predicate determination to those facts necessarily admitted by the defendant or necessarily found by a jury, then why reference “charging documents” generally, rather than the necessary facts or еlements within the charging documents? The answer, we think, lies in the issue presented to the Court in Shepard. Insofar as a sentencing court‘s task is to identify which elements underlie a prior conviction, the terms of the charging document will always be appropriate to consider: a conviction necessarily means the elements—but not “superfluous facts,” Descamps, 133 S.Ct. at 2288—charged in the indictment were found by a jury or admitted by the defendant.
This understanding of Shepard is not new. We have previously read Shepard to permit courts to consider only those facts that a defendant necessarily admitted in pleading guilty. See United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th Cir. 2009) (“[Shepard] requires a judicial record that identifies the facts a defendant ‘necessarily admitted’ in entering a guilty plea—as Shepard itself demonstrates.“). And the Second Circuit also read Shepard this way in finding that a bill of particulars is not Shepard-approved evidence. See United States v. Rosa, 507 F.3d 142, 154 (2d Cir. 2007) (“We are not convinced, notwithstanding the Shepard Court‘s referеnce to ‘charging document[s]’ as potentially reliable indicia of the nature of prior convictions, that the Bill is therefore ’Shepard evidence’ for our purposes.” (alteration in original)).
The Government implies that we interpreted Shepard differently in United States v. Jones, 453 F.3d 777 (6th Cir. 2006). It is true that in Jones we emphasized the “reliability” of the document: “Complaints are judicial documents, filed under oath and submitted in furtherance of formal prosecution. They bear, accordingly, substantially greater indicia of reliability than mere police reports, which are not filed in court, are not sworn to, and are developed for an investigatory purpose.” Id. at 780.
To the extent that Jones might be read as making the reliability of the complaint dispositive of whether it was a Shepard-approved source, other circuits disagree. See Rosa, 507 F.3d at 155 (“[W]e do not think, as the Jones court seemed to indicate, that the question before us is whether the unsworn Bill of Particulars bears indicia of reliability. The dispositive question is whether the plea necessarily rested on the fact that the crime to which [the defendant] pleaded involved the use or car-
We read Jones differently. Jones relied on our decision in United States v. Kappell, 418 F.3d 550, 560 (6th Cir. 2005), to conclude that a complaint may be considered under the Shepard framework. Jones, 453 F.3d at 780. This is significant because the defendant in Kappell had “stipulated that the facts recited in the complaint were correct for purposes of entering his plea.” 418 F.3d at 558. Thus, Kappell, and therefore Jones, suggests that a district court answering the different-occasions question may rely on facts in a complaint—if those facts were later admitted by the defendant. Here, there are no such admissions in the record as to the times or locatiоns of the offenses.
Further, Jones does not answer the question before us because Jones found that a Tennessee criminal complaint is a Shepard-approved source, whereas this case involves Ohio bills of particulars. The distinction matters at least because the Government has previously conceded that an Ohio bill of particulars is not proper for consideration under Shepard. See United States v. Stafford, 721 F.3d 380, 397 (6th Cir. 2013).
In sum, King did not necessarily admit the times and locations asserted in the three bills of particulars when he pleaded guilty in 2002. As such, we find that the district court erred in considering the times and locations asserted in the bills in determining that King‘s prior offenses were committed on occasions different from one another.
C.
This leaves what the Government has indicated is its weakest argument: that even whеn limited to the information in the indictments and the journal entries, it is more likely than not that King‘s offenses were committed on different occasions. Given that King‘s convictions involve seven victims (Lundberg, Mariano, and five from the aggravated-robbery case), the Government argues as follows: “[n]othing in the record in any way suggests that King robbed all [seven] victims simultaneously, attempting and failing with some, succeeding with others, working alongside different accomplices depending on the victim, and using a deadly weapon only against [five] of them.” Thus, the Government concludes, “[i]t strains credulity and defies common sense to read even the limited version of the record in that manner.”
We disagree. The Government‘s argument ignores the fact that the indictments in the Lundberg and the Mariano cases charged the same two defendants with committing the same two offenses on the same day. In other words, those two indictments are indistinguishable save for the victim. And King was not charged and convicted of the Lundberg and the Mariano offenses in two different venues, a fact that might indicate that those offenses occurred separately. See State v. Hampton, 134 Ohio St.3d 447, 983 N.E.2d 324, 328-29 (2012) (providing that, under Ohio law, venue must be proven beyond a reasonable doubt). Thus, even if the Government is correct that the offenses charged in the five-victim case occurred on an оccasion different from the Lundberg and Mariano offenses, nothing that can be considered
IV.
For the foregoing reasons, we hold that a federal district court deciding whether prior offenses were “committed on occasions different from one another” as that phrase is used in the Armed Career Criminal Act is limited to Shepard-approved evidentiary sources that contain facts necessarily found beyond a reasonable doubt by the trier of fact or necessarily admitted by the defendant. Under that rule, it was error for the district сourt to consider the times and locations alleged in King‘s bills of particulars. And the Government failed to otherwise meet its burden to show that the offenses were committed on different occasions. We thus VACATE the district court‘s judgment and REMAND for resentencing consistent with this opinion.
* Judge Sutton would grant rehearing for the reasons stated in his dissent.