UNITED STATES of America, Plaintiff-Appellee, v. Willie McCLOUD, Defendant-Appellant.
No. 14-14547.
United States Court of Appeals, Eleventh Circuit.
March 16, 2016.
818 F.3d 591
We hold the district court abused its discretion by excluding Dr. Broker‘s testimony without providing a record of its gatekeeping inquiry under Rule 702. The record on appeal is inadequate for us to conduct a Daubert review in the first instance and we consequently, express no opinion on Dr. Broker‘s qualifications or the relevance and reliability of his expert testimony. But we can determine that Dr. Broker‘s proffered testimony would not have been cumulative of other evidence introduced at trial and was offered as American Family‘s alternative causation theory. As a result, we cannot conclude the error in excluding it without proper consideration was harmless.12 Accordingly, we vacate the verdict, and remand for a new trial, during which the parties may offer expert testimony. Before admitting or excluding any challenged expert testimony, thе district court should conduct an appropriate inquiry on the record as to its relevance and reliability under Rule 702 of the Federal Rules of Evidence and the Supreme Court‘s decision in Daubert.
III. CONCLUSION
For the above reasons, we AFFIRM the district court‘s decision denying summary judgment in favor of American Family on Mr. Adamscheck‘s statutory claim for unreasonable delay or denial of insurance benefits, because the district court is correct that under Colorado law, workers’ compensation benefits may not be offset against UIM benefits. But because the district court abused its discretion in ex-cluding Dr. Broker‘s testimony without performing a proper review under Rule 702, and because that error was not harmless, we vacate the verdict and REMAND for a new trial.
Nicole D. Mariani, Aileen Cannon, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney‘s Office, Miami, FL, for Plaintiff-Appellee.
Beforе WILSON and JULIE CARNES, Circuit Judges, and HALL,* District Judge.
WILSON, Circuit Judge:
Willie McCloud pleaded guilty to being a convicted felon in possession of a firearm that traveled interstate, in violation of
The district court determined that McCloud‘s three prior armed robbery convictions were committed on separate occasions, thereby rendering McCloud subject to the ACCA‘s 15-year statutory minimum.1 See
We are called upon to determine whether the Government carried its burden in proving McCloud is an armed career criminal under the statute. After thorough review of the parties’ briefs and having had the benefit of oral argument, we conclude that the district court erred in determining McCloud‘s three prior offenses were separate within the meaning of the ACCA.2 We therefore vacаte the district court‘s sentencing order and remand for sentencing consistent with this opinion.
I
For a defendant to receive the 15-year minimum sentence under
To determine the nature of a prior conviction, the district court is “limited to examining the statutory definition [of the offense of the prior conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205 (2005). These documents are known as “Shepard-approved sources” or “Shepard documents.” See, e.g., Weeks, 711 F.3d at 1259-60. Police reports and arrest affidavits may not be used to determine whether ACCA predicate offenses occurred on separate occasions. Sneed, 600 F.3d at 1333. The district court may make findings of fact based on undisputed statements in the PSI, but may not rely on those portions to which the defendant objected “with specificity and clarity,” unless the Government establishes the disputed facts by a preponderance of the evidence. United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam); United States v. Bennеtt, 472 F.3d 825, 832 (11th Cir. 2006) (per curiam).
Both in his objections to the PSI and at sentencing, McCloud argued that the Shepard documents did not support the Government‘s contention that his prior crimes were separate within the meaning of the ACCA. On appeal, McCloud asks us to review whether the Government failed to carry its burden of proving that the armed robberies were offenses “occurring on occasions different from one another” using Shepard-approved materials. “We review de novo whether crimes were committed on occasions different from one another within the meaning of the ACCA.” Weeks, 711 F.3d at 1261.
II
McCloud contends that the Government failed to meet its burden of proof because the Shepard documents do not state the time and location of his prior convictions, or otherwise indicate that the offenses were “temporally distinct.” See id.; Almedina, 686 F.3d at 1315. The Shepard documents in this case include the charging documents for each armed robbery, the transcript of the plea colloquy, and undisputed statemеnts in the PSI.3 McCloud‘s arrest affidavits are not Shepard documents. See Sneed, 600 F.3d at 1333 (holding that “courts may not use police reports to determine whether predicate offenses under § 924(e)(1) were committed on ‘occasions different from one another.’ “); cf. United States v. Rosales-Bruno, 676 F.3d 1017, 1022-23 (11th Cir. 2012) (explaining that arrest affidavits lack “indicia of reliability sufficient to meet Shepard‘s requirements“).
We review, in turn, the charging documents, plea colloquy transcript, and undisputed portions of the PSI to determine if these documents provide reliable and specific evidenсe reflecting that McCloud‘s prior convictions more likely than not arose out of “separate and distinct criminal episode[s].” See Sneed, 600 F.3d at 1329 (internal quotation marks omitted). When it is equally likely that the crimes were committed simultaneously as it is that they were committed successively, the Government has not met its evidentiary obligation under the preponderance of the evidence standard.
We conclude that, although the charging documents reflect there were three different victims, different items stolen, and three different case numbers, these pieces of information do not make it more likely than not that the crimes were committed successively rather than simultaneously. In addition, although the charging documents reflect the varying participation of McCloud‘s co-defendants, they do not state in what order the robberies occurred or make it more likely than not that there was a meaningful opportunity to desist the criminal activity. Similarly, the plea colloquy transcript and undisрuted paragraph of the PSI indicate at most—two separate offenses occurred. Thus, whether taken individually or collectively, the Shepard documents do not support the conclusion that the robberies occurred on occasions different from one another.
A. The Charging Documents
The Government concedes that the charging documents do not specify the time or location at which each of the three prior robbery convictions occurred. However, the Government argues, the charging documents do reflect that there were three separate case numbers assigned to McCloud‘s offenses on August 4, 2008, that
Thаt the charging documents indicate there were unrelated victims and different items stolen does not constitute “reliable and specific evidence” pertaining to the time and location of the offenses, or otherwise indicate that there was a meaningful break between the offenses. We would not consider three temporally and logistically distinct robberies of the same victim to be a single offense. Correlatively, we do not consider—without more evidence—three different victims to indicate that the offenses were temporally or logistically distinct. Similarly, whether the pieces of property stolen were of the same or different types does not indicate the time or place of events. On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets. Thus, that there were different victims and the items stolen were two gold chains, one cell phone, and one wallet provides no indication whether the thefts were committed successively rather than simultaneously. See Weeks, 711 F.3d at 1261; United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998).
The Government also argues that having three different case numbers in the state court informations provides “reliable and specific evidence” that the offenses were committed separately. However, the individual case numbers themselves do not convey any information pertaining to the time or location of the offenses. It is just as likely that there аre three case numbers to reflect the number of victims as it is that there are three case numbers to reflect three separate events. Accordingly, the mere fact that the case numbers are different does not assist the Government in meeting its burden of proving with reliable and specific evidence that the offenses are “separate and distinct criminal episode[s]” within the meaning of the ACCA. See Sneed, 600 F.3d at 1329, 1333 (internal quotation marks omitted).
Lastly, the Government suggests that we may reasonably сonclude the offenses were separate because they involved different co-defendants. The Government‘s theory is that, because McCloud was joined by two co-defendants in the commission of two offenses but only one co-defendant in the other offense, there was “a meaningful opportunity to desist [the criminal] activity,” and therefore, the ACCA should apply even if the crimes were temporally and physically proximate. See Pope, 132 F.3d at 689-90; United States v. Spears, 443 F.3d 1358, 1360 (11th Cir. 2006) (per curiam). The prоblem with this argument, though, is that instead of resting on “reliable and specific evidence,” it requires us to speculate in order to conclude that there was a break in the events. We are not persuaded by the suggestion that the participation of certain co-defendants delineates the order of each armed robbery. It is possible that McCloud and both co-defendants committed the first robbery; McCloud and one co-defendant committed the second robbery; and then McCloud and bоth co-defendants committed the third robbery. If true, this could reflect three separate offenses. However, it is equally plausible that McCloud and his two co-defendants committed the first two offenses together,
Thus, the charging documents do not contain reliable and specific evidence reflecting that McCloud‘s ACCA predicate offenses were three separate and distinct criminal episodes.
B. The Plea Colloquy Transcript
The plea colloquy transcript does not demonstrate that the three prior convictions occurred on occasions different from one another. Indeed, the Government conceded at sentencing that “there‘s not a whole lot” in the plea colloquy transcript. We agree. At most, the transcript establishes two separate offenses.
The district court found persuasive three pieces of evidence in the transcript: (1) when the sentencing judge asked the prosecutor what the State would have proven had the case gone to trial, the prosecutor identified the location of one of the robberies, with citation to Case Number F0828463(A); (2) the sentencing judge told McCloud “you were busy that day“; and (3) the sentencing judge told McCloud he would have “significant court costs on each case, $733 on each case.”4 However, only the first piece of evidеnce assists the Government in attempting to meet its burden.
The Government urges us to infer from the plea colloquy that, because the prosecutor identified the address of one prior offense, the other two offenses occurred at locations different from not only that address but also one another. But the plea colloquy contains no reference to the addresses where the other offenses occurred. The mere identification of the location of one robbery does not demonstrate that the other robberies occurred at different locations.5 Thus, the plea colloquy does not contain reliable and specific evidence reflecting that McCloud‘s ACCA predicate offenses were three separate and distinct criminal episodes.
C. Undisputed Parts of the PSI
Lastly, we turn to the undisputed portions of the PSI to help us determine whether the agreed-upon paragraphs contain “reliable and specific evidence” that the prior offenses were separate. The Government contends that it should be permitted to rely on paragraphs 27, 28, 29, and 30 of the PSI, which expressly incorporate McCloud‘s arrest records, because McCloud either failed to object or did not enter a proper objection to the use of
We have long held that “challenges to the facts contained in the PSI must be asserted with specificity and clarity.” See Bennett, 472 F.3d at 832. A defendant makes a proper objection when he identifies the specific PSI paragraphs to which he objects and states that the reason for his objection is that the source of those facts is a particular non-Shepard document. See United States v. Schneider, 681 F.3d 1273, 1276-77 (11th Cir. 2012); Bennett, 472 F.3d at 833; cf. Rosales-Bruno, 676 F.3d at 1023-24. The Government may not avoid Shepard and Sneed by claiming that an explicit objection to PSI paragraphs that incorporate the facts of a non-Shepard document is insufficient when the defendant unambiguously and specifically objects to the source of the factual material. See also Sneed, 600 F.3d at 1331-33 (discussing the principles that underpin Shepard and guide the application of its rule).
Turning to the facts before us, we conclude that the Government may rely on paragraph 29 of the PSI, but may not rely on paragraphs 27, 28, and 30. McCloud filed no objection to paragraph 29, which makes those facts undisputed and available to the Government, despite the express incorporation of a non-Shepard source. See Bennett, 472 F.3d at 832. However, McCloud validly objected to the use of paragraphs 27, 28, and 30, and the Government may not rely on the content of those paragraphs to prove the offenses are separate. McCloud‘s objection specifically identified those paragraphs he disputed—paragraphs 27, 28, and 30—and clearly stated that his objection stemmed from the source of those facts being an arrest affidavit, which is a non-Shepard document. This objection is sufficiently specific and clear to satisfy Bennett and render the paragraphs “disputed.” See id. at 829. Unlike the facts of Bennett, however, the Government here has not argued and the record does not reflect that the facts stated in paragraphs 27, 28, and 30 were available in other Shepard-approved sources that the Government provided to McCloud on discovery. Cf. id. at 833. Therefore, McCloud properly disputed those paragraphs in the PSI and the Government may not rely on them to prove that McCloud‘s prior convictions constitute separate offenses under the ACCA.
Paragraph 29 conveys details pertaining to McCloud‘s conviction for third-degree grand theft. Specifically, that paragraph states:
According to the arrest affidavit, on August 4, 2008, a BOLO was issued for two armed robberies invоlving a green Nissan Altima occupied by three black males. Law enforcement officers observed the vehicle, bearing Florida license plate number [REDACTED], driven by the defendant. As the officer attempted to stop the vehicle, he he noticed the defendant absconding from the area. The defendant was taken into custody. A records check revealed that the vehicle was stolen on August 2, 2008.
The Government reads this paragraph to support its conclusion that “the three armed robberies occurred at different locations” because “[t]he use of a vehicle in conjunction with the armed robberies by
Thus, Paragraph 29 does not contain “reliable and specific evidence” reflecting that the three convictions for armed robbery were “separate and distinct criminal episodes.” The paragraph ties McCloud to the commission of two armed robberies, confirms that those robberies occurred on August 4, and adds that a vehicle was involved in the commission of those robberies. It neither states that the two armed robberies occurred at different locations nor indicates that McCloud and his co-defendants “were traveling between locations together to find their victims.” This paragraph leaves it just as likely as not that all three robberies occurred simultaneously, but only two victims had reported the crime at the time the officers began looking for the green Nissan Altima. Moreover, thе paragraph provides no information as to which of the two armed robberies were committed in connection with the stolen car or who was in the car with McCloud at the time of his arrest, rendering it of negligible value even when combined with the other Shepard documents.
*
Thus, the charging documents, plea colloquy transcript, and paragraph 29 of the PSI do not provide “reliable and specific evidence” reflecting three violent felonies that McCloud “committed on ocсasions different from one another.” See
No other Shepard documents are in the record to assist the Government in proving, by a preponderance of the evidence, that McCloud‘s prior offenses were separate within the meaning of the ACCA. Therefore, the burden of showing McCloud is an armed careеr criminal is not met, and the district court erroneously applied the 15-year ACCA sentencing enhancement.
III
In light of the foregoing, we vacate McCloud‘s current sentence and remand to the district court for resentencing consistent with this opinion.
VACATED and REMANDED.