Case Information
*1 Bеfore: WHITE and STRANCH, Circuit Judges; MICHELSON, District Judge. _________________
COUNSEL ARGUED: Nathan A. Ray, BURDON & MERLITTI, LPA, Akron, Ohio, for Appellant. Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Nathan A. Ray, BURDON & MERLITTI, LPA, Akron, Ohio, for Appellant. Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. The Honorable Laurie J. Michelson, United States District Judge for the Eastern District of Michigan, sitting by designation.
_________________
OPINION
_________________
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 following question: When a federal
district court is tasked with determining whether a defendant’s prior offenses were “committed
on occasions different from one another” as that phrase is used in the ACCA, is the court
restricted to using only the evidentiary sources approved in
Taylor v. United States
,
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 statеd, in relevant part, “the Prosecuting 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 Februаry 18, 2002 at approximately 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 loсations 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 18 U.S.C. § 922(g)(1). Although that conviction carries a maximum sentence of ten years in prison, see 18 U.S.C. § 924(a)(2), given King’s 2002 convictions, the Government sought a fifteen-year mandatory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The ACCA states in relevant part, “In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . . committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
King disputed the Government’s clаim 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
,
The Government’s argument to the district court was three tiered. The Government first
took the position that
Taylor
and ’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
, where we indicated that ’s evidentiary limitations (
Shepard
had not yet been decided) did not apply to the different-occasions inquiry.
See
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 ,
see United States v. Barbour
,
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
,
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 and . We think that the reasoning of those decisions, especially in light of subsequent Supreme Court decisions, shows that King is correct.
In
Taylor v. United States
,
More important tо 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 for not allowing sentencing courts to engage in a factual inquiry was the text of the ACCA: by rеferring 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 (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 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, was a call to “ease away” from and its
respect for “congressional intent and avoidance of collateral trials,”
id.
at 23. The Court instead
hеld that, where a prior conviction for violating a statute with alternative elements was the result
of a plea, a court answering the ACCA-predicate question could attempt to identify the element
underlying the conviction by consulting the plea-colloquy transcript, the written plea agreement,
or “a record of comparable findings of fact adopted by the defendant upon entering the plea.” at 20. With this information, the Court explained, “a later court could generally tell whether the
plea had ‘necessarily’ rested on the fact identifying the burglary” as generic burglary, “just as”
jury instructions would do in a tried case or a “charging document would do in any sort of case.”
at 21 (quoting
Taylor
,
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.
,
Since , a majority of the Supreme Court has recognized this constitutional
concern. In
Descamps v. United States
, 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 promise that “a jury—not a sentencing court—will find such facts,
unanimоusly and beyond a reasonable doubt.” ___ U.S. ___, ___,
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 legislative history and because of likely conflict with the Constitution were the еvidentiary restrictions absent.
We think that the legislative history and constitutional concerns apply with equal force when a sentencing court undertakes the different-occasions inquiry. Congress’s desire to avoid mini-trials almost assuredly covers not only proceedings to answer the ACCA-predicate question but also proceedings to answer the different-occasions question. Indeed, because facts relevant to the different-occasions inquiry, such as the time and location of the prior offense, are most often not elements of the offense, a proceeding to answer the different-occasions question may well be more еxtensive than one to answer the ACCA-predicate question. See United States v. Dantzler , 771 F.3d 137, 143–44 (2d Cir. 2014). Notwithstanding this practical concern, we acknowledge that there is some tension between the text and the legislative history. We do not here have the textual hook that used. As opposed to the ACCA’s language pertaining to the predicate question, its different-occasions language does focus on the defendant’s conduct: it asks courts to determine whether prior offenses were “committed” on different occasions. See 18 U.S.C. § 924(e)(1).
What most convinces us, then, that Taylor and ’s evidentiary restrictions extend to the different-occasions question is the Supreme Court’s expressed concern over a judge finding facts that bеcome 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 and reaffirmed in Descamps and Mathis .
The - approach quells this constitutional concern. Under the framework of
those cases, a judge is restricted to those facts that “necessarily” underlie the prior conviction,
,
Accordingly, we hold that and ’s limitations on the evidentiary sourcеs 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
,
The Government, citing
United States v. Thomas
, 211 F.3d 316 (6th Cir. 2000), and
United States v. Burgin
,
But we do not adhere to published precedent when “an intervening decision of the United
States Supreme Court requires modification of our prior decision.” And
Shepard
fits the bill.
That post-
Thomas
decision did more than extend
Taylor
’s categorical approach to situations
where prior convictiоns rested on guilty pleas. When read in light of
Descamps
(and
Mathis
),
Shepard
harnessed
Apprendi
to back
Taylor
’s categorical approach.
Shepard
,
As for Burgin , which also predated , 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 bеfore the Court is whether this ‘different 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 and .
The Government also argues that the “different[-]occasions inquiry requires an analysis of facts” while the “sole” purpose of the - framework is to determine elements of thе prior offense.
We 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 elements? As we have explained, a substantial part of the answer lies in the need to avoid mini-trials, with the attendant logistical concerns and constitutional risks. And, as we have said, that concern also warrants limiting district courts answering the different-occasions question to those sources approved by Taylor and Shepard .
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 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 . 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
,
Finally, at oral argument, the Government relied heavily on Nijhawan v. Holder 557 U.S. 29 (2009), to argue that it would be improper to extend Taylor and ’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 ’s categorical approach in determining that an alien had a prior felony conviction involving fraud or deceit causing a $10,000 or more loss. 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 increаsed sentence in a later criminal proceeding, the Government 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.”
In short, we find that in determining whether prior offenses were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1), a sentencing court may only rely on the evidentiary sources and information approved by the Supreme Court in Taylor and Shepard .
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.
To start with, the documents at issue are not in the list of -approved materials
unless they are properly considered “charging documents” or “comparable judicial sources” as
those terms are used in . 544 U.S. at 26. We can also employ the constitutional
concerns espoused in
Apprendi
,
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
Ohio Rev. Code § 2911.02(a)(1) (West 2002) (“No person, in attempting or
committing a theft offense or in fleeing immediately after the attempt or offense, shall . . . [h]ave
a deadly weapon on or about the offender’s person or under the offender’s control.”); § 2911.02(a)(3) (“No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall . . . [u]se or threaten the immediate use of force
against another.”). Notably, too, none of the three indictments recite the time and place of the
offenses, and no one disputes that King could have pled guilty to the charges in the indictments
without requesting the bills оf particulars. It is thus improper to infer that King necessarily
admitted the time or place of his 2002 offenses.
Descamps
,
The Government implies that, in limiting a court applying the ACCA to what King necessarily admitted, we apply ’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 said.
See
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 elements within the charging documents? The answer, we think, lies in thе 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 itself demonstrates.”). And the Second Circuit also read
Shepard
this way in
finding that a bill of particulars is not -apрroved evidence.
See United States v. Rosa
The Government implies that we interpreted
Shepard
differently in
United States v.
Jones
,
To the extent that Jones might be read as making the reliability of the complaint dispositive of whether it was a -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 carrying of a firearm.” (alterations, internal quotation marks, and citation omitted)). [1]
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
framework.
Jones
,
Further,
Jones
does not answer the question before us because
Jones
found that a
Tennessee criminal complaint is a -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 .
See
United States v. Stafford
,
In sum, King did not necessarily admit the times and locations asserted in the three bills of partiсulars 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 when 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 indicаte that those offenses occurred separately.
See State v. Hampton
, 983 N.E.2d 324, 328–29 (Ohio 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 occasion different from the Lundberg
and Mariano offenses, nothing that can be considered under permits the Lundberg and
Mariano offenses to be deemed separate.
See Kirkland
,
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 limitеd to -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 court 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.
Notes
[1]
In attempting to put distance between
Jones
and the cases before them involving a predicate-offense
determination, the panels in
United States v. Wells
,