United States v. George Wesley ShortUnited States v. George Wesley Short
Argued: February 7, 2025
Decided and Filed: February 14, 2025
Before: THAPAR, NALBANDIAN, and RITZ, Circuit Judges.
COUNSEL
ARGUED: Conrad Benjamin Kahn, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Conrad Benjamin Kahn, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellee.
OPINION
THAPAR, Circuit Judge. When police officers saw George Short driving twenty-five miles per hour over the speed limit and without a car hood, they tried to initiate a traffic stop. But Short refused to obey their orders and led the officеrs on a high-speed chase. When the officers caught and arrested Short, they found a rifle in his car. Short wasn‘t allowed to have the rifle since he had several prior felonies, so he pled guilty to being a felon in possession of a firearm. Given Short‘s prior violent felonies, he was sentenced as an armed career criminal. But Short argues that the factual basis in support of his plea agreement was insufficient. It wasn‘t, so we affirm.
I.
Because Short had prior felonies, the government indicted him for possessing a firearm as a felon under
Why the ACCA enhancement? Because ACCA provides that defendants who violate
ACCA‘s application mаttered a great deal for Short‘s sentence. Without it, Short would face at most ten years in prison for illegally possessing a firearm as a felon. See
A few months after the government amended the indictment to reflect the ACCA enhаncement, Short pled guilty to the offense as charged (without a plea
After that hearing, the probation office recommended in its presentence report that Short be sentenсed under ACCA. Short objected to the ACCA enhancement and pointed to Wooden v. United States in support. See 595 U.S. 360 (2022). He argued that the Fifth and Sixth Amendments “require that the occasions-different fact necessary to impose the ACCA be found by a jury beyond a reasonable doubt or admitted to by [him].” R. 34, Pg. ID 189. And he noted that the written factual basis that he and the government had signed “only admitted to facts pertaining to” his
At the time, Sixth Circuit precedent allowed the district court to determine for itself whether the defendant had committed his priоr felonies on different occasions. See, e.g., United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022). In opposing Short‘s objection, the government didn‘t rely on that circuit precedent. Instead, the government argued that the separate-occasions element had to be found by a jury or waived by the defendant. And acсording to the government, Short waived his jury trial right “when he pleaded guilty to the ACCA-enhanced offense as charged,” so he had waived his right to have the separate-occasions element found by a jury. R. 36, Pg. ID 197.
At his sentencing hearing, Short argued that he hadn‘t waived his right to a jury determination, since the written factual basis didn‘t mention the separate-occasions element. When invoking the factual basis requirement in support of his waiver argument, Short contended that the defendant must “be specifically told about” the elements and consequences of the crime to which he‘s pleading guilty. R. 51, Pg. ID 468. The government responded in part by arguing that
The district court overruled Short‘s objection by relying on circuit precedent. Months later, the Supreme Court abrogated that precedent. The Court held that the Constitution requires a unanimous jury to determine beyond a reasonable doubt (or a defendant to admit) that the defendant committed his past offenses on separate occasions for ACCA to apply. Erlinger v. United States, 602 U.S. 821, 834-35 (2024).
Here, Short argues that the distriсt court erred in accepting his guilty plea because the written factual basis didn‘t include any facts about whether he had committed his prior felonies on different occasions. So, Short argues, his plea didn‘t rest on a sufficient factual basis, as required by
II.
Short‘s appeal attempts to fusе Rule 11 with the Fifth and Sixth Amendments. He argues that because of the Supreme Court‘s decision in Erlinger regarding the
Rule 11‘s protections do guard against “inadvertent and ignorant waivers of constitutional rights.” United States v. Vonn, 535 U.S. 55, 67 (2002). But Rule 11 provides a set of legal protections distinct from those in the Constitution itself.
Short‘s Rule 11 challenge fails.
III.
The parties disagree about whether plain error shоuld govern Short‘s Rule 11 appeal. Normally, we review district court compliance with Rule 11 for an abuse of discretion. See, e.g., United States v. Bennett, 291 F.3d 888, 894 (6th Cir. 2002). But plain error review applies when a defendant doesn‘t challenge the factual basis of his guilty plea before the district court. United States v. Windham, 53 F.4th 1006, 1009 (6th Cir. 2022). Short did challenge the factual basis of his plea before the district court, but he housed that argument under his constitutional right to a jury trial. Now, he lodges it under
Still, we need not decide whether plain error review should apply, since the district court committed no error at all.
Under Rule 11, before the district court enters judgment on a defendant‘s guilty plea, “the court must determine that there is a factual basis for the plea.”
And under the plain text of Rule 11, the district court must only assure itself of a factual basis before entering “judgment” on the defendant‘s plea.
So, the fact that Short‘s written factual basis lacks any findings on ACCA‘s separate-occasions
Short‘s indictment, PSR, and sentencing hearing provided a sufficient factual basis for his plea to the superseding indictment charging him with violations of
Consider the different pieces оf evidence that provided a sufficient factual basis, beginning with the indictment. The indictment itself can contribute to the factual basis finding. Pitts, 997 F.3d at 698 (citing 5 Wayne R. LaFave, et al., Criminal Procedure § 21.4(f) (4th ed. 2020)). Short‘s indictment expressly listed his four violent felony predicates committed years apart. It also alleged thаt they‘d been committed “on occasions different from one another, in violation of”
Short‘s PSR provides further support for the factual basis finding. We can rely on the PSR in determining whether there was a sufficient factual basis. Pitts, 997 F.3d at 698. Indeed, a PSR can bear much of
Short‘s PSR provides abundant evidence that he committed his prior violent felonies on separate occasions. Like his superseding indictment, Short‘s PSR included an aggravated robbery from 1992, an aggravated burglary from 2001, an aggravated burglary from 2007, and a burglary from 2010. Short never disputed that he‘d been convicted of these violent crimes, or that they had been committed years apart from one another. Cf. Wooden, 595 U.S. at 369-70 (“In many cases, a single factor—especially of time or place—can decisively differentiate occasiоns. Courts, for instance, have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a ‘significant distance.‘” (citation omitted)).
Short argues that Bennett is wrong because it ignores earlier precedent limiting our review to the change of plea record. Therefore, he claims that earlier precedent—namely, United States v. Tunning—controls.
But we only disregard later circuit precedent for earlier circuit precedent when the two conflict. Habich v. City of Dearborn, 331 F.3d 524, 530 n.2 (6th Cir. 2003). There‘s no conflict between Tunning and Bennett. Tunning didn‘t say, let alone hold, anything about whether the plea hearing record was the exclusive source of information for purposes of establishing the factual basis (thus barring any reliance on the PSR). See 69 F.3d at 112. After quoting Tunning at length, Bennett added that a PSR and sentencing hearings can serve as evidence. See Bennett, 291 F.3d at 895-97.
Indeed, that lack of conflict helps explain why we have “reрeatedly considered a defendant‘s PSR to confirm that a factual basis existed below.” Pitts, 997 F.3d at 698.
Short also argues that Bennett conflicts with United States v. Goldberg, 862 F.2d 101 (6th Cir. 1988). In Goldberg, the government argued that it was permissible for
Importantly, although Goldberg said we limit our review of the factual basis‘s sufficiency “to the record of the plea proceeding,” the court was not confronted with and did not address any arguments about whether the record post-plea collоquy could support a factual basis finding. Id. at 105. The question was whether extra-record evidence could support a factual basis, not whether post-plea colloquy record evidence could. “There was no ‘application of the judicial mind‘” to the question of whether post-рlea colloquy record evidence could support a factual basis because there were no arguments raised on that front, the question wasn‘t relevant to the case at hand, and there was no “controversy” about it. Wright v. Spaulding, 939 F.3d 695, 704 (6th Cir. 2019) (citation omitted). Because Goldberg held nothing about whether post-plea colloquy record evidence (like PSRs) can support a sufficient factual basis finding, it does not conflict with later precedent relying on post-plea colloquy record evidence in assessing the sufficiency of the factual basis. See Pitts, 997 F.3d at 698 (collecting cases).
Still, Short argues that even if we can consider the PSR, we shouldn‘t do sо here. He reiterates that only facts he has admitted to or were proven beyond a reasonable doubt can support the factual basis. But it‘s incoherent to require facts underlying a guilty plea to be proven beyond a reasonable doubt—by pleading guilty, the defendant is forgoing his right tо have these facts proven beyond a reasonable doubt. At bottom, Short‘s argument is a misguided attempt to import Erlinger into
Short‘s attempt to analogize his case to McCreary-Redd also fails. In that case, the defendant pled guilty to possessing cocaine with an intent to distribute it. 475 F.3d at 719-20. We concluded that there was an insufficient factual basis under
Indeed, Short‘s sentencing hearing reinforces his plea‘s sufficient factual basis. See Pitts, 997 F.3d at 697. There, the government provided judgments and supporting records of his prior violent felony convictions committed years apart from each other. Again, Short didn‘t dispute any of these convictions.
In sum, no
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