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United States v. Wright ( 2022 )


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  • Case: 21-60877      Document: 00516433909         Page: 1    Date Filed: 08/16/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 16, 2022
No. 21-60877                         Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Darius D. Wright,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CR-94-2
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Darius D. Wright was arrested for being a felon in possession of a
firearm after an officer discovered a shotgun in his car during a traffic stop.
Wright filed a motion to suppress all evidence obtained during the traffic
stop, arguing that the stop violated his Fourth Amendment rights. The
district court denied that motion. Afterwards, Wright entered an
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60877     Document: 00516433909            Page: 2   Date Filed: 08/16/2022
No. 21-60877
unconditional guilty plea, reserving no issues to raise on appeal. At
sentencing, the district court found that Wright qualified as a “armed career
criminal” within the meaning of the Armed Career Criminal Act (ACCA),
meaning that Wright faced an imprisonment range of 15 years to life. The
district court sentenced Wright to 204 months’ imprisonment, which was 16
months above the Guidelines range.
On appeal, the parties raise three issues: (1) Whether the district court
erred by denying Wright’s motion to suppress; (2) Whether the district court
erred in finding that Wright was a career offender under ACCA; and (3)
Whether     Wright’s     above-guidelines       sentence   was    substantively
unreasonable.
The first issue is, as Wright concedes, waived. Wright entered a
voluntary and unconditional guilty plea, which waived “all nonjurisdictional
defects in the prior proceedings.” United States v. Wise,
    179 F.3d 184
    , 186
(5th Cir. 1999) (citing McMann v. Richardson,
    397 U.S. 759
    , 766 (1970) and
Busby v. Holman,
    356 F.2d 75
    , 77 & n.3 (5th Cir. 1966)).
As for the second issue, the parties focus on whether the district court
properly concluded that Wright had three or more convictions that occurred
on “occasions different from one another,” as required by ACCA.
    18 U.S.C. § 924
    (e)(1). Wright says he didn’t because his two prior burglary convictions
occurred on the same day, and that the PSR’s statement that the second
burglary occurred four days later is impossible because he was already in jail
on that date. Because the burglaries were committed on the same night with
the same co-defendant, and because the two properties were only .7 miles
apart, Wright argues that the burglaries were not committed on different
occasions, citing the Court’s recent decision in Wooden v. United States,
    142 S. Ct. 1063
     (2022). The Government responds that even if Wright is correct
that the PSR contains a “scrivener’s error” and the burglaries occurred on
2
Case: 21-60877        Document: 00516433909              Page: 3     Date Filed: 08/16/2022
No. 21-60877
the same day, the offenses still qualified as “separate occasions” as defined
by Wooden.
Both parties overlook a more fundamental issue: The district court
relied on the PSR—and only the PSR—to find that Wright had the three
requisite convictions. The Supreme Court held in Shepard v. United States,
    142 S. Ct. 1063
     (2022), that district courts applying ACCA may only rely on
“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. Fuller,
    453 F.3d 274
    , 279
(5th Cir. 2006), abrogated on other grounds by Wooden,
    142 S. Ct. 1063
    ; see also
United States v. Young, 809 F. App’x 203, 210 (5th Cir. 2020) (per curiam)
(same). “Thus, under Shepard, a district court is not permitted to rely on the
PSR’s characterization of a defendant’s prior offense for enhancement
purposes.” United States v. Garza-Lopez,
    410 F.3d 268
    , 274 (5th Cir. 2005).
We have examined the record, and nothing in the charging document nor the
plea colloquy speak to this issue. Because no Shepard-approved documents
are conclusive as to whether the predicate ACCA offenses occurred on
separate occasions, Wilson’ s sentence must be vacated. See Fuller,
    453 F.3d at 
    279–80 (vacating the defendant’s conviction because the Shepard-
approved materials were inconclusive); Young, 809 F. App’x at 210, 213
(same). 1
*        *         *
Wright’s conviction is AFFIRMED. We VACATE the sentence
and REMAND for resentencing.
1
Because we hold that the Government failed to proffer cognizable evidence
proving that Wilson’s prior convictions occurred on separate occasions, we need not reach
the issue of whether the above-guidelines sentence was substantively unreasonable.
3