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 a 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.]