Sunday, November 23rd, 2014

Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On “Different Occasions” Under ACCA

United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for certain firearms offenses if a  defendant “has three previous convictions … for violent felony or a serious drug offense, or both, committed on occasions different from one another.”  In this case, the Circuit held that in determining whether prior offenses were committed on occasions different from one another,” a district court is limited to consulting documents approved in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).
That is, a district court may consider the fact of the prior conviction, the statutory definition of the offense, the charging document, the jury instructions, the written plea agreement, the transcript of plea colloquy, and any explicit factual finding by the trial court to which the defendant assented.  However, it is plain error for a district court to consider (as the court did here) non-Shepard court records, parole records, local PSRs, arrest reports, criminal complaints, or a federal PSR that incorporates information drawn from these sources.
Defendant pleaded guilty to felon in possession.  He had three prior New York State robbery convictions, two of which arose from conduct that occurred on the same day.  After reviewing non-Shepard materials — in particular, criminal complaints attached to defendant’s sentencing submission — indicating that the two robberies occurred an hour and a half apart, in different boroughs, and involved different victims, the district court (Garaufis, J.) determined that the robberies had been committed on “different occasions” for ACCA purposes. Defendant did not raise a Shepard objection.
On appeal, the Circuit found plain error and reversed.  The Circuit noted that under Taylor/Shepard, a district court is limited to conclusive judicial records in determining whether a prior conviction is a “violent felony” for ACCA purposes, and saw no reason to apply a different rule in determining whether prior convictions were committed on “different occasions.”  On the contrary, maintaining the same rule would minimize judicial fact-finding and avoid the Sixth Amendment problems that would result from enhancing a sentence based on judge-found facts about the nature of prior convictions.  The error affected defendant’s substantial rights, as well as the fairness and integrity of judicial proceedings, because it increased his mandatory minimum sentence from 0 to 15 years and his Guidelines range from 92-115 to 168-210 months. 

Defendant’s submission of and reliance on the New York criminal complaints was immaterial because the government always bears the burden of proving the applicability of an ACCA enhancement with Shepard-approved documents.

The Circuit did not foreclose the possibility that a district court could consider a PSR “derived in whole, or in large part,” from ­Shepard-approved documents.  Likewise, the Circuit acknowledged that materials provided in the parties’ sentencing submissions or incorporated into the PSR might be analogous to Shepard-approved documents, and remanded for the district court to consider that possibility in this case.
[Disclosure: Federal Defenders of New York, Inc., represents the defendant, Zephaniah Dantzler, in this case.]
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