United States v. Kevin Earl Sneed ( 2010 )


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  •                                                                                    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 09-13195                        MARCH 24, 2010
    ________________________                    JOHN LEY
    CLERK
    D. C. Docket No. 08-00190-CR-F-N
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    KEVIN EARL SNEED,
    a.k.a. Evan Sneed,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    _________________________
    (March 24, 2010)
    Before HULL, WILSON and FARRIS,* Circuit Judges.
    HULL, Circuit Judge:
    *
    Honorable Jerome Farris, United States Court of Appeals for the Ninth Circuit, sitting by
    designation.
    Kevin Earl Sneed appeals his 180-month sentence for possession of a
    firearm by a convicted felon and possession of marijuana. On appeal, Sneed
    argues that his sentence was improperly enhanced under the Armed Career
    Criminal Act, 
    18 U.S.C. § 924
    (e) (“ACCA”), because the district court used police
    reports to determine whether Sneed’s prior drug convictions were committed on
    different occasions and thus qualified as predicate felonies for the § 924(e)
    enhancement. After review, we conclude the district court erred in relying on non-
    Shepard approved records and thus vacate Sneed’s sentence.
    I. BACKGROUND FACTS
    A.    Indictment and Guilty Plea
    While responding to a burglary call, officers spotted Sneed, who matched
    the description of the suspect, walking down the road. When officers attempted to
    stop Sneed to talk to him, he ran and was apprehended when he fell. Underneath
    Sneed’s body, officers found a loaded handgun and a clear plastic bag containing a
    green leafy substance that later tested positive for marijuana.
    Sneed was indicted for possession of a firearm by a convicted felon, in
    violation of 
    18 U.S.C. § 922
    (g)(1) (Count 1), and possession of marijuana, in
    violation of 
    21 U.S.C. § 844
    (a) (Count 2). As enhancements to the firearm offense
    in Count 1, the indictment charged that Sneed had these three prior felony drug
    2
    convictions: “January 27, 2003, Distribution of a Controlled Substance, (3 counts),
    case numbers CC 2002-000301, CC 2002-000302, CC 2002-000303, in the Circuit
    Court of Pike County, Alabama.”1
    Sneed pled guilty to both counts of the indictment. The plea agreement
    stated the factual basis for the plea, and listed the same three prior felony drug
    convictions: “June 18, 2001, Unlawful Distribution of a Controlled Substance
    (three counts), case number CC 2002-000301; CC 2002-000302; and CC 2002-
    000303, in the Circuit Court of Pike County, Alabama.” Sneed waived his right to
    appeal his sentence except for his right to appeal the application of the ACCA.
    B.     Presentence Investigation Report
    The Presentence Investigation Report (“PSI”) stated that Sneed’s base
    offense level was 20. However, the PSI also concluded that Sneed qualified as an
    armed career criminal under § 924(e)(1) because he had “three prior convictions in
    Pike County, Alabama, case numbers CC02-301, 302, and 303.” Thus, the PSI
    concluded that Sneed had a base offense level of 33, pursuant to U.S.S.G.
    § 4B1.4(b)(3)(B), and was subject to § 924(e)(1)’s mandatory minimum fifteen-
    year sentence. With a three-level reduction for acceptance of responsibility, the
    1
    The indictment also charged that Sneed had a September 4, 2003 conviction for
    promoting prison contraband in the Circuit Court of Pike County, Alabama. It was later learned
    that Sneed’s twin brother, Earl Evan Sneed, committed this offense.
    3
    PSI calculated a total offense level of 30.
    Based on Sneed’s three drug convictions and other prior convictions, the PSI
    calculated nine criminal history points, resulting in a criminal history category of
    IV. Paragraph 34 of the PSI listed the three drug convictions and described the
    date, location, and time of the offenses as follows:
    The defendant was represented by counsel. Details of count
    one reveal that on September 26, 2001, at 5:04 p.m., a confidential
    informant working with [the Troy Police Department] purchased .07
    grams of crack cocaine from Sneed. The transaction was caught on
    video surveillance. Details of count 2 reveal that on September 26,
    2001, at 5:43 p.m., a confidential informant purchased .12 grams of
    crack cocaine from the defendant. The transaction was observed by a
    Pike County Sheriff’s Deputy who positively identified the subject as
    Kevin Sneed. Details of count three reveal that on October 11, 2001,
    at 5:29 p.m., a confidential informant purchased .12 grams of crack
    cocaine from the defendant. This transaction was video taped. All of
    these sales occurred within a three mile radius of a public housing
    project owned by a housing authority.
    A criminal history category of IV and a total offense level of 30 yielded an
    advisory guidelines range of 135 to 168 months’ imprisonment. Due to the fifteen-
    year statutory mandatory minimum, the PSI advised that the advisory guidelines
    range was 180 months, pursuant to U.S.S.G. § 5G1.1(b).
    C.    State Indictment and Police Reports
    In his written objections to the PSI, Sneed contended that he did not qualify
    as an armed career criminal under the ACCA and its corresponding guideline,
    4
    U.S.S.G. § 4B1.4(a). Sneed did not deny that he had the three prior drug
    convictions. Rather, Sneed argued that “the offenses listed in paragraph 34 of the
    [PSI] did not occur on different occasions” and that the PSI’s “finding that the
    offenses occurred on different occasions is not reflected in the state indictment,
    indeed, the indictment merely reflects three counts and provided neither the day or
    the time.” Sneed also objected “to the inclusion of the details in paragraph 34, as it
    ‘exceeds that allowed by the U.S. Supreme Court’s opinion in Shepard v. United
    States, 
    544 U.S. 12
    , 26 (2005) . . . .”
    In response, the government filed a sentencing memorandum and attached a
    copy of the state indictment that charged Sneed with the three drug convictions.
    Specifically, each count of the state indictment contained the exact same language
    and alleged that Sneed “did unlawfully sell, furnish, give away, manufacture,
    deliver or distribute a controlled substance, to wit: COCAINE, in violation of
    Section 13A-12-211 of the Code of Alabama, while the said KEVIN SNEED, was
    within a three mile radius of a public housing project owned by a housing
    authority, did sell a controlled substance, to wit: COCAINE, in violation of Section
    13A-12-270 of the Code of Alabama, Against the Peace and Dignity of the State of
    Alabama.” None of the counts contained dates, times or locations for the charged
    offenses.
    5
    In addition, the government attached copies of police reports for each state
    offense. These reports indicate that each of the three offenses was the result of a
    controlled buy using a confidential informant. The first state offense occurred on
    September 26, 2001, at 5:04 p.m., in a trailer park beside the housing project in
    Spring Hill. On this occasion, the confidential informant purchased .07 grams of
    crack cocaine from Sneed for $20.00. The second state offense occurred less than
    an hour later, at 5:43 p.m, when the same confidential informant returned to the
    same trailer park and purchased .12 grams of crack cocaine from Sneed for
    $20.00.2 The third offense occurred on October 11, 2001 in the Spring Hill
    housing project when a confidential informant purchased .12 grams of crack
    cocaine from Sneed for $20.00.
    The government argued that: (1) under this Court’s binding precedent in
    United States v. Richardson, 
    230 F.3d 1297
     (11th Cir. 2000), the district court
    could examine police reports to determine whether qualifying predicate felonies
    were separate for purposes of the ACCA; and, (2) here, those reports showed that
    the three state offenses were separate because they were temporally distinct drug
    sales.
    2
    Although the confidential informant’s name is redacted in the police reports, it appears
    the same confidential informant was used in both September 26, 2001 controlled buys because,
    according to the police reports, during the second purchase the confidential informant told Sneed
    that the “dope he bought earlier was good shit and asked for another twenty.”
    6
    D.     Sentencing
    At sentencing, Sneed reasserted his objections to application of the ACCA,
    including use of the police reports to determine whether he had the predicate prior
    felony offenses to trigger the § 924(e) enhancement. Sneed argued that Richardson
    was abrogated by Shepard v. United States, 
    544 U.S. 13
    , 
    125 S. Ct. 1254
     (2005).
    The district court overruled Sneed’s objections and, after considering the police
    reports, concluded that Sneed was convicted of three separate drug offenses.3 The
    district court adopted the PSI’s facts and found that Sneed’s advisory guidelines
    range was the mandatory statutory minimum of 180 months’ imprisonment.4 The
    district court sentenced Sneed to an 180-month term on Count 1 and a concurrent
    36-month term on Count 2. Sneed filed this appeal.
    II. DISCUSSION
    3
    Pursuant to the plea agreement, the parties agreed that if the district court determined
    that Sneed qualified as an armed career criminal under the ACCA, Sneed could withdraw his
    guilty plea. After the district court overruled Sneed’s ACCA objection, Sneed advised the
    district court that he wanted to exercise his right under the plea agreement to withdraw his guilty
    plea. After a brief recess, however, the parties advised the court that they had agreed to modify
    the plea agreement; in exchange for Sneed not withdrawing his guilty plea, the government
    agreed not to charge Sneed with any offenses in connection with his recent possession of illegal
    narcotics on May 8, 2008, June 24, 2008, and October 17, 2008. The district court accepted the
    modification.
    4
    The PSI’s factual recitation contained facts surrounding Sneed’s subsequent arrests for
    possession of marijuana on May 8, 2008 and June 24, 2008, which were the subject of pending
    state charges. In accordance with the agreed modification to Sneed’s plea agreement, the district
    court sustained Sneed’s objection to the inclusion of these facts in the PSI, and the court did not
    adopt them or consider them in sentencing Sneed.
    7
    A.     Section 924(e)’s Distinct Offenses Requirement
    Under the ACCA, a defendant convicted under 
    18 U.S.C. § 922
    (g) is subject
    to § 924(e)(1)’s mandatory minimum sentence of fifteen years if the defendant has
    “three previous convictions . . . for a violent felony or a serious drug offense, or
    both, committed on occasions different from one another . . . .” 
    18 U.S.C. § 924
    (e)(1) (emphasis added). Sneed does not dispute that his three prior state
    drug convictions are serious drug offenses within the meaning of the ACCA.
    Rather, Sneed contends that the district court erred in finding that the three
    offenses were committed on different occasions as expressly required by
    § 924(e)(1).
    Section 924(e)(1) does not require separate indictments, but it does require
    that the three previous convictions “be committed on occasions different from one
    another.” 
    18 U.S.C. § 924
    (e)(1). This Court has said that to be different the three
    convictions must be “‘for crimes that are temporally distinct.’” United States v.
    Sweeting, 
    933 F.2d 962
    , 967 (11th Cir. 1991) (quoting United States v. Howard,
    
    918 F.2d 1529
    , 1538 (11th Cir. 1990)). The government must show “the three
    previous convictions arose out of a separate and distinct ‘criminal episode.’”
    United States v. Pope, 
    132 F.3d 684
    , 689 (11th Cir. 1998).5
    5
    Whether prior convictions meet the ACCA’s separate offenses requirement is a legal
    determination we review de novo. Pope, 
    132 F.3d at 689
    .
    8
    “Mere temporal proximity is ordinarily insufficient to merge multiple
    offenses into a single criminal episode. Distinctions in time and place are usually
    sufficient to separate criminal episodes from one another even when the gaps are
    small.” 
    Id. at 690
    . Two offenses are distinct if “some temporal ‘break’ occurs
    between [them].” 
    Id.
    The issue in this case is what can a sentencing court consider in determining
    whether Sneed’s prior drug convictions were committed on occasions different
    from another for purposes of § 924(e)(1).
    B.     Taylor’s Categorical Approach
    In 1990, the Supreme Court in Taylor v. United States, 
    495 U.S. 575
    , 
    110 S. Ct. 2143
     (1990), addressed how the district court may determine whether a prior
    conviction is a “violent felony” under § 924(e). The Supreme Court held that the
    plain language and legislative history of the ACCA “mandates a formal categorical
    approach,” looking only to “the fact of conviction and the statutory definitions of
    the prior offense,” and “not to the facts underlying the prior convictions.” Id. at
    600-01, 
    110 S. Ct. at 2159-60
    .
    Taylor reasoned that “the only plausible interpretation of § 924(e)(2)(B)(ii)
    is that, like the rest of the enhancement statute, it generally requires the trial court
    to look only to the fact of conviction and the statutory definition of the prior
    9
    offense.” Id. at 602, 
    110 S. Ct. at 2160
    . This categorical approach applied
    because, “Congress intended the sentencing court to look only to the fact that the
    defendant had been convicted of crimes falling within certain categories, and not to
    the facts underlying the prior convictions.” 
    Id. at 600
    , 
    110 S. Ct. at 2159
    .
    However, Taylor acknowledged an exception for “a narrow range of cases” in
    which the statutory definition of an offense encompassed some conduct that would
    qualify as a “violent felony” and other conduct that would not. In such cases, the
    district court could look at the charging document and jury instructions to
    determine if the defendant necessarily was convicted of an offense qualifying as a
    “violent felony.” 
    Id. at 602
    , 
    110 S. Ct. at 2160
    .
    C.    Eleventh Circuit’s Richardson Decision
    In 2000, this Court in United States v. Richardson, 
    230 F.3d 1297
     (11th Cir.
    2000), concluded that Taylor’s categorical approach did not apply to the district
    court’s determination of whether prior crimes were “committed on occasions
    different from one another.” Richardson, 
    230 F.3d at 1299-1300
    . Richardson
    explained that whether offenses “were committed on ‘occasions different from one
    another,’ i.e., whether they were ‘temporally distinct’ or ‘successive rather than
    simultaneous,’ is a question unsuited to a categorical approach that relies on an
    examination of the criminal statute. The mere fact of conviction does not answer
    10
    this question.” 
    Id. at 1300
    . The Richardson Court reasoned that, “[i]n contrast [to
    determining the nature of the conviction], determining whether crimes were
    committed on occasions different from one another requires looking at the facts
    underlying the prior convictions.” 
    Id. at 1299
    . The Richardson Court noted that
    the police reports before the district court showed the “burglaries took place on
    different days at different locations” and that defendant Richardson had “not
    contested the accuracy of the police reports.” 
    Id. at 1300
    . Thus, the Court
    concluded that the burglaries were committed on occasions different from one
    another for purposes of the ACCA. 
    Id.
    D.     Shepard’s Modified Categorical Approach
    In 2005, the Supreme Court issued Shepard v. United States, 
    544 U.S. 13
    ,
    
    125 S. Ct. 1254
     (2005), explaining further the exception to the categorical
    approach recognized in Taylor and providing additional guidance about what
    material sentencing courts may use to determine the nature of a defendant’s prior
    felony convictions for purposes of the § 924(e)(1) ACCA enhancement. See
    United States v. Aquilar-Ortiz, 
    450 F.3d 1271
    , 1273 (11th Cir. 2006).6 The
    6
    Shepard, like Taylor, involved a prior burglary conviction in a state in which the
    burglary statute covered a broader range of conduct than the “generic burglary” needed for an
    ACCA enhancement as a “violent felony.” The Shepard defendant’s prior burglary conviction,
    however, resulted from a guilty plea and not a jury trial. At the outset, Shepard made clear that
    Taylor’s categorical approach applied equally to convictions obtained by a guilty plea. Id. at 19,
    
    125 S. Ct. at 1259
    . The Supreme Court then discussed what kinds of evidence could be
    considered to determine whether the defendant’s burglary conviction was actually for an ACCA-
    11
    Shepard Court concluded that, in determining whether a prior burglary was a
    “violent felony,” the district court (1) may not consider police reports or complaint
    applications but (2) may examine “the terms of the charging document, the terms
    of the plea agreement or transcript of the colloquy between the judge and
    defendant in which the factual basis for the plea was confirmed by the defendant,
    or [] some comparable judicial record of this information.” Shepard, 
    544 U.S. at 23-26
    , 
    125 S. Ct. at 1261-63
    .
    Subsequently, the Supreme Court has explained that Shepard’s “modified
    categorical approach” permits a sentencing court “to determine which statutory
    phrase was the basis for the conviction by consulting the trial record – including
    charging documents, plea agreements, transcripts of plea colloquies, findings of
    fact and conclusions of law from a bench trial, and jury instructions and verdict
    forms.” Johnson v. United States, __ U.S. __, 
    130 S. Ct. 1265
    , __ (2010).
    Three aspects of Shepard are particularly important to this case. First, the
    Supreme Court in Shepard observed that the government had argued for a “wider
    evidentiary cast,” looking to police reports for example, but expressly rejected that
    argument. Shepard, 
    544 U.S. at 21
    , 
    125 S. Ct. at 1260
    . Second, Shepard was
    qualifying “generic burglary” and expanded Taylor’s list to include the plea agreement and the
    plea colloquy, which would be available after a guilty plea, but excluded documents, such as
    police reports, “going beyond conclusive records.” 
    Id. at 20-21
    , 
    125 S. Ct. at 1259-60
    .
    12
    decided in 2005 and stressed (1) the significant developments in the law since
    Taylor was decided in 1990, such as the 1999 Jones and the 2000 Apprendi7
    decisions, and (2) the constitutional concerns underlying Jones and Apprendi that,
    except for the fact of a prior conviction, the Sixth Amendment and Fourteenth
    Amendment guarantee a jury’s finding of a disputed fact about a prior conviction
    where that disputed fact is essential to increase the statutory maximum of a
    potential sentence. Shepard, 
    544 U.S. at 24-26
    , 
    125 S. Ct. at 1262-63
    .8 Third, in
    part based on the intervening Jones and Apprendi decisions, the Supreme Court in
    Shepard permitted sentencing courts to determine the nature of a prior conviction
    based only on the list of judicial records in Shepard or a fact to which the
    defendant assented (the “Shepard-approved sources”) and precluded the sentencing
    court’s use of police reports to establish the nature of a prior conviction for
    purposes of the § 924(e)(1) enhancement. Id. at 26, 
    125 S. Ct. at 1263
    .
    III. SHEPARD’S IMPACT ON RICHARDSON
    We acknowledge that Shepard involved the violent felony phrase in § 924(e)
    7
    Jones v. United States, 
    526 U.S. 227
    , 
    119 S. Ct. 1215
     (1999); Apprendi v. New Jersey,
    
    530 U.S. 466
    , 
    120 S. Ct. 2348
     (2000).
    8
    This portion of Shepard discussing Apprendi and Jones is joined by a plurality of the
    Court. The plurality opinion concludes, in light of Apprendi and Jones, that permitting
    sentencing courts to consult police reports would raise serious constitutional concerns. See id. at
    25-26, 
    125 S. Ct. at 1262-63
    . In his concurrence, Justice Thomas concludes that it “would not
    give rise to constitutional doubt, . . . . [but] to constitutional error.” 
    Id. at 28
    , 
    125 S. Ct. at 1264
    .
    13
    and did not address the different occasions phrase that immediately follows in §
    924(e). And, since Shepard, this Court has not decided whether Shepard’s ban on
    the use of police records and reports applies to § 924(e)(1)’s different occasions
    inquiry and nullifies our decision in Richardson.9 We also acknowledge the
    strength of the prior panel precedent rule in this circuit. Under that rule, a prior
    panel’s holding is binding on all subsequent panels unless and until it is overruled
    or undermined to the point of abrogation by the Supreme Court or by this court
    sitting en banc. Smith v. GTE Corp., 
    236 F.3d 1292
    , 1300 n.8 (11th Cir. 2001);
    Chambers v. Thompson, 
    150 F.3d 1324
    , 1326 (11th Cir. 1998).
    Nonetheless, after considerable review and helpful oral argument, we
    conclude that the Supreme Court’s decision in Shepard has undermined
    Richardson’s approval of the use of police reports for § 924(e)(1) inquiries to the
    point of abrogation. The ACCA enhancement in § 924(e) contains two statutory
    predicates in the very same sentence – (1) that the prior convictions are for “a
    violent felony or a serious drug offense, or both,” and (2) that such requisite
    offenses were “committed on occasions different from one another.” 18 U.S.C.
    9
    We avoided reaching this question in United States v. Spears, 
    443 F.3d 1358
     (11th Cir.
    2006), on the basis that the “Defendant’s own testimony sufficiently supports the district court’s
    conclusion that Defendant committed two different robberies, [and thus] we do not reach this
    [Shepard] argument.” 
    Id.
     at 1360 n.1; see also United States v. Canty, 
    570 F.3d 1251
    , 1256
    (11th Cir. 2009) (avoiding the issue of Richardson’s viability after Shepard because the
    government waived it in the district court).
    14
    § 924(e)(1). Based on Shepard, there is simply no distinction left between the
    scope of permissible evidence that can be used to determine if the prior convictions
    are violent felonies or serious drug offenses or if they were committed on different
    occasions under § 924(e)(1).
    It is noteworthy that Richardson’s rationale was (1) that the different
    occasions inquiry under § 924(e)(1) was unsuited to the categorical approach in
    Taylor that looked primarily to the criminal statute, and (2) that the different
    occasions inquiry required looking at the facts underlying the prior conviction.
    While Shepard, too, allows sentencing courts to consider facts about the nature of a
    prior conviction, Shepard clarified the type of evidence that could reveal those
    facts and gave us the Shepard-approved sources largely to address or avoid
    constitutional concerns. Thus, while Richardson remains correct that in the
    different occasions inquiry sentencing courts may look to certain facts underlying
    the prior conviction, Shepard has undermined to the point of abrogation
    Richardson’s approval of the use of police reports for § 924(e)(1) inquiries.
    We are further persuaded to this conclusion by our sister circuits that have
    decided that only Shepard-approved sources can be used to determine if prior
    offenses were committed on different occasions for purposes of the § 924(e)(1)
    enhancement. See United States v. Fuller, 
    453 F.3d 274
    , 279-80 (5th Cir. 2006)
    15
    (vacating defendant’s sentence as to the § 924(e) enhancement “[b]ecause the
    record [did] not contain the written plea agreement, the plea colloquy, or other
    Shepard-approved material that might resolve th[e] question” and stating “[t]o
    determine whether two offenses occurred on different occasions, a court is
    permitted to examine only ‘the statutory definition, charging document, written
    plea agreement, transcript of plea colloquy, and any explicit factual finding by the
    trial judge to which the defendant assented’”); United States v. Harris, 
    447 F.3d 1300
    , 1305-06 (10th Cir. 2006) (affirming defendant’s § 924(e)-enhanced sentence
    in part because “the district court below had sufficient evidence in light of Shepard
    to conclude that [defendant’s] prior crimes were committed on separate occasions,”
    and noting the court relied on defendant’s “admissions as well as documents
    sanctioned by Shepard”); United States v. Taylor, 
    413 F.3d 1146
    , 1157 (10th Cir.
    2005) (examining what documents could be used in finding that prior convictions
    occurred on occasions different from the other and remanding because the court
    could not “determine whether the district court reviewed judicial records consistent
    with Shepard”); United States v. Thompson, 
    421 F.3d 278
    , 282, 286 (4th Cir.
    2005) (stating that “[t]he common denominator of the [Shepard] approved sources
    is their prior validation by process comporting with the Sixth Amendment.
    Excluded sources, such as . . . police reports, are not necessarily inherent in the
    16
    conviction,” and the “ACCA’s use of the term ‘occasion’ requires recourse only to
    data found in conclusive judicial records . . . upon which Taylor and Shepard say
    we may rely”).
    For all of these reasons, we hold only that courts may not use police reports
    to determine whether predicate offenses under § 924(e)(1) were committed on
    “occasions different from one another” and that Shepard undermines that aspect of
    Richardson to the point of abrogation.
    IV. SNEED’S SENTENCE
    In Sneed’s case, the government produced the Shepard-approved state court
    indictment, but the indictment contains the same language for each of his three
    drug offenses and does not specify a date or time, much less different dates or
    different times on the same date. For the ACCA different occasions inquiry, the
    government relied on police reports and submitted no other Shepard-approved
    material. And Sneed preserved his objection to the use of this material at every
    stage of the proceeding, asserted that his prior offenses did not occur on different
    occasions, and objected to the details in paragraph 34 of the PSI about his prior
    offenses.10 Therefore, in light of Shepard and given this record, the district court
    10
    Cf. United States v. Bennett, 
    472 F.3d 825
    , 832-34 (11th Cir. 2006) (post-Shepard, a
    sentencing court’s findings of fact supporting an ACCA enhancement may be based on
    statements in the PSI undisputed by the defendant at sentencing); United States v. Beckles, 
    565 F.3d 832
    , 843 (11th Cir. 2009) (“For purposes of sentencing [under the U.S.S.G. § 4B1.1 career
    offender guideline], the district court also may base its factual findings on undisputed statements
    17
    erred in overruling Sneed’s objections to the use of the police reports to establish
    the different occasions predicate to the § 924(e)(1) enhancement. Accordingly, we
    vacate Sneed’s sentence and remand for resentencing without the § 924(e)
    enhancement.11
    VACATED and REMANDED.
    found in the PSI, because they are factual findings to which the defendant has assented”).
    11
    We note the government has not asked that we remand for the government to introduce
    Shepard-approved material but instead has relied on Richardson.
    18