United States v. Gary Span

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY VINCENT SPAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00234-MOC-DSC-1)
Argued: April 8, 2015 Decided: June 8, 2015
Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by published opinion. Senior Judge Davis
wrote the opinion, in which Judge Gregory joined. Judge Motz
wrote a dissenting opinion.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:
The district court sentenced Defendant Gary Span to a
mandatory minimum fifteen-year term of imprisonment pursuant to
the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).
Span appeals his sentence, arguing that the Shepard-approved
documents upon which the district court relied for the ACCA
enhancement are fatally ambiguous as to whether he committed his
predicate armed robbery offenses on different occasions. In the
alternative, Span argues that the Fifth and Sixth Amendments
prohibit a district court from making the “different occasions”
assessment. We agree that the patent internal inconsistencies
infecting the underlying state court documents as to the dates
when the robberies occurred means, and we so hold, that the
Government has failed to prove by a preponderance of the
evidence that Span’s prior felonies were separate and distinct
criminal episodes for purposes of the ACCA. Accordingly, we
vacate the district court’s application of the ACCA enhancement
and remand for resentencing. We need not, and accordingly do
not, resolve Span’s constitutional claim.
I.
Gary Span pleaded guilty to an indictment charging him with
one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At Span’s Rule 11 plea
hearing, the Government asserted that the punishment for the
2
offense was a prison term of ten years, a $250,000 fine, and a
period of supervised release. The Government did not believe
that Span was an armed career criminal under the ACCA, but
stated that, should the United States Probation Office determine
that he was, Span would be subject to a mandatory 15-year term
of imprisonment. The draft presentence investigation report
(“PSR”) did not recommend the ACCA enhancement and the
Government did not object to that determination. Lacking
objections from the Government and Span, the final PSR issued on
July 22, 2013.
The Government later filed an objection to the final PSR,
arguing that Span was indeed an armed career criminal because
his criminal record included four previous North Carolina
convictions from October 2000 for robbery with a dangerous
weapon, all of which were violent felonies that were committed
on different occasions. The Government acknowledged, however,
that the underlying state court documents evidencing his
convictions listed contradictory offense dates. The Government
argued that, no matter the inconsistency across the documents,
the offenses were separate and distinct episodes because they
involved different locations and different victims. As a
result, the Government sought an increase in Span’s base offense
level from 17 to 33. After a three-point reduction for
3
acceptance of responsibility, Span’s base offense level reduced
to 30.
The Probation Officer revised the PSR to reflect: (1)
Span’s armed career criminal status; (2) an increased base
offense level and criminal history category (level 30 and
category IV); and (3) a 15-year mandatory minimum sentence.
With the revisions, Span faced an increase in the Guidelines
range from between 30 and 37 months to 180 months.
Span objected to his designation as an armed career
criminal and argued that the facts in the PSR could not support
the ACCA enhancement because they were not alleged in the
federal indictment, admitted as part of his guilty plea, or
proven to a jury beyond a reasonable doubt. Span argued that,
to allow an increased sentence above the statutory maximum on
disputed facts beyond the mere existence of his prior
convictions, would be a violation of his Fifth and Sixth
Amendment rights.
At sentencing on October 21, 2013, Span renewed his
objections to the revised PSR. The court permitted Span and the
Government additional time to brief the issues, and the
sentencing hearing was continued until July 16, 2014. At the
continued hearing, the court heard argument from Span and the
Government as to whether Span should be classified as an armed
career criminal. Span maintained his argument that the state
4
court indictments, plea transcript, and judgment were ambiguous
as to when the robberies were actually committed, and that the
court could not resolve the ambiguity by engaging in fact-
finding and looking beyond those documents. The solution, Span
asserted, was to view the ambiguity in his favor and decline to
apply the ACCA enhancement.
The district court disagreed and relied on three of Span’s
robbery convictions to support the ACCA enhancement. 1 The court
reasoned that the indictments and plea transcript listed
consistent dates for the three convictions, while the judgment,
which listed a different date, likely contained a transcription
error. 2 The district court then reasoned that the robberies were
separate criminal episodes. It noted that two of the three
armed robberies occurred at the same location and involved the
same corporate victim, but each offense involved a different
1
The convictions supporting the ACCA enhancement have the
following file numbers: 00-CRS-002827 (“2827”), 00-CRS-002829
(“2829”), and 00-CRS-002830 (“2830”). The district court
omitted a fourth armed robbery conviction, file number 00-CRS-
002834 (“2834”), from consideration.
2
Notably, under North Carolina practice and jargon, a “plea
transcript” is not what most federal practitioners would
understand the term to suggest. It is not a verbatim account of
a guilty plea colloquy among the court, counsel, and the
defendant. Rather, it is a form document filled out by the
participants in the course of the guilty plea proceedings
containing information about the charges, the rights waived by
the defendant, and other pertinent information.
5
individual victim who was put in danger. The district court
found that Span had an opportunity after committing the first
robbery to make a conscious decision to engage in the next one
because, “after you’ve committed one, and you wait some days and
you commit another one, you had a little time to think.” J.A.
66.
The court concluded that “each of these offenses was a
distinctly separate offense” and application of the ACCA
enhancement was appropriate, resulting in a sentence of 180-
months’ imprisonment. J.A. 65.
Span has timely appealed and we possess jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
A defendant who has violated 18 U.S.C. § 922(g) qualifies
for an enhanced sentence under the ACCA if the defendant has
three previous convictions for a violent felony or serious drug
offense, or both, and those offenses were “committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1).
The Government bears the burden of proving the elements
necessary to support the ACCA enhancement by a preponderance of
the evidence. United States v. Archie, 771 F.3d 217, 223 (4th
Cir. 2014).
The parties do not dispute that Span’s predicate North
Carolina convictions for robbery with a dangerous weapon are
6
violent felonies under the ACCA. Our analysis thus centers on
the district court’s conclusion that the robbery offenses were
committed on different occasions and the factual findings
supporting that determination.
A.
We review de novo the district court’s “legal conclusion”
that three of Span’s qualifying convictions were committed on
occasions different from one another. United States v. Hobbs,
136 F.3d 384, 387 (4th Cir. 1998). However, we review the
district court’s factual findings, and its judgment regarding
factual disputes, for clear error. Archie, 771 F.3d at 224; see
also Hobbs, 136 F.3d at 387 n.5 (applying clear error review to
the district court’s factual findings that the defendant’s three
predicate burglaries occurred within an hour of each other).
The clear error standard requires “a reviewing court [to]
ask whether ‘on the entire evidence,’ it is ‘left with the
definite and firm conviction that a mistake has been
committed.’” Easley v. Cromartie, 532 U.S. 234, 242 (2001)
(quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)). We “will not reverse a lower court’s finding
of fact simply because we would have decided the case
differently,” id. (citation and internal quotation marks
omitted), but we may find clear error “where the factual
determinations are not supported by substantial
7
evidence.” United States v. Martinez-Melgar, 591 F.3d 733, 738
(4th Cir. 2010) (citations and internal quotation marks
omitted). In other words, “clear error occurs when a district
court’s factual findings ‘are against the clear weight of the
evidence considered as a whole.’” Id. (quoting Miller v. Mercy
Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983)).
B.
In view of the evidence before the district court, we
conclude that its factual finding that Span’s three predicate
robbery offenses were committed on separate dates was clearly
erroneous. By extension, we cannot hold that, as a matter of
law, Span’s predicate robbery offenses were “committed on
occasions different from one another” under the ACCA.
1.
To satisfy its burden under the ACCA, the Government
introduced three sources: (1) the North Carolina judgment for
the four robbery convictions, (2) four bills of indictment (one
for each conviction), and (3) a plea transcript. The judgment
provides Span’s name and the file number for each offense. It
indicates that Span committed three of the robberies, identified
by file numbers 2827, 2829, and 2830, on the same day, January
18, 2000, and one robbery, file number 2834, on January 11,
2000. Each indictment provides the case caption, “State of
North Carolina v. Gary Vincent Span,” the accompanying file
8
number, the date the indictment issued (February 7, 2000), and a
paragraph of factual allegations supporting the charge. The
indictments corresponding to file numbers 2827, 2830, and 2834
indicate that, on December 30, 1999, December 14, 1999, and
January 11, 2000, respectively, Span used a firearm to rob Pawn
Mart, Inc. (“Pawn Mart”), at which time he stole currency,
personal property, and other items of value in the presence of a
named victim. The indictment for file number 2829 states that,
on November 17, 1999, Span did the same at Cash America Pawn.
The final source, the plea transcript, identifies the file
numbers for the four robbery convictions and describes the terms
of Span’s plea agreement. An attachment to the transcript lists
the offense dates for each conviction. For three of the
convictions — 2827, 2829, and 2830 — the offense dates
correspond to the dates in the indictments, but those dates are
handwritten above a different, illegible date, which was at some
point stricken through. 3 The fourth conviction, 2834, provides
an offense date of December 14, 1999. It is unclear when the
dates in the plea transcript were altered and whether the
alterations were made with Span’s knowledge or consent.
3
The district court believed that the original date in the
attachment to the plea transcript was January 11, 2000. Span
contends that the original date was January 18, 2000. We cannot
discern which date, if either, is correct.
9
No single offense date for any predicate robbery conviction
is consistent across all three sources. 4
2.
The Supreme Court has carved out a “prior conviction”
exception to judicial factfinding at sentencing. In general,
the jury requirements of the Sixth Amendment and the Due Process
Clause together require that “each element of a crime be proved
to the jury beyond a reasonable doubt.” Alleyne v. United
States, 133 S. Ct. 2151, 2156 (2013). However, in Almendarez-
Torres v. United States, 523 U.S. 224 (1998), the Supreme Court
held that the fact of a prior conviction is not an element that
must be alleged in an indictment in order to enhance a
defendant’s sentence. Facts, “[o]ther than the fact of a prior
conviction,” which “increase[] the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (emphasis added). Accord United States
v. Booker, 543 U.S. 220, 244 (2005); Blakely v. Washington, 542
U.S. 296, 301 (2004).
A sentencing judge may consult only a limited set of
sources when determining the nature of a prior conviction for
4
For ease of reference, the offense dates and their
corresponding sources are listed in the table attached as
Appendix A.
10
the purpose of applying the ACCA enhancement. See Shepard v.
United States, 544 U.S. 13 (2005) (plurality opinion). In cases
involving prior guilty pleas, a sentencing judge may examine the
charging document, plea agreement, plea transcript between the
judge and the defendant “in which the factual basis for the plea
was confirmed by the defendant, or to some comparable judicial
record of this information.” Id. at 26. 5 These “Shepard-
approved” sources, unlike police reports, properly limit the
inquiry of sentencing courts to “conclusive . . . judicial
record[s].” Id. at 25. Such records serve a dual purpose: they
avoid “collateral trials” on the underlying facts of a
defendant’s prior conviction, and they abate “a ‘concern that a
wider inquiry would violate the Sixth Amendment right to trial
by jury.’” United States v. Alston, 611 F.3d 219, 226 (4th Cir.
2010) (quoting United States v. Dean, 604 F.3d 169, 175 (4th
Cir. 2010)), abrogated on other grounds by United States v.
Royal, 731 F.3d 333 (4th Cir. 2013).
We have held that a sentencing judge is not limited
to Shepard-approved sources when merely determining
the existence of an ACCA-qualifying offense. See United States
v. Washington, 629 F.3d 403 (4th Cir. 2011). In that
5
Cf. supra, n.2, for the North Carolina use of the term
“plea transcript.”
11
circumstance, a district court faced with inconsistent record
evidence may look to secondary sources, such as printouts of
computerized records, to engage in “fact-finding in a routine
and conscientious sense.” Washington, 629 F.3d at 414-15.
Discrepancies in these records, “such as different dates of the
same offense, ‘do not upend the trial court’s sound conclusion’
when there is additional evidence to ‘indicate the erroneous
date is likely a scrivener’s error.’” Archie, 771 F.3d at 225
(quoting Washington, 629 F.3d at 413) (alterations omitted).
There is no question as to the existence of Span’s four
ACCA-qualifying predicate convictions for robbery with a
dangerous weapon. The Government’s evidence surely meets the
preponderance standard on that score. However, what remains
unclear is when Span committed the robberies. The nature of the
predicate offenses is therefore the subject of our inquiry and
the district court properly looked no further than the Shepard-
approved documents. 6
6
Accordingly, we reject Span’s argument that the district
court looked to non-Shepard-approved documents in applying the
ACCA enhancement. While the district court stated before recess
that it had “some other documents [it was] looking at,” J.A. 59,
the court made clear before announcing its sentence that it
looked only to the judgment, plea transcript, and indictments.
“That’s what I’m using. Those appear to be the documents that
have been offered.” J.A. 59.
12
The documents in this case raise more questions than
answers. The indictments list unique offense dates, but those
dates are directly contradicted by the judgment, which states
that three of the predicate offenses occurred on the same day,
January 18, 2000. The district court viewed the judgment as
“obviously” containing a transcription error, but the offense
dates in the judgment were typewritten and nothing in the
document suggests human error. The plea transcript, on the
other hand, raises several concerns, not the least of which is
that the original handwritten offense dates for three of the
convictions were altered at a point unknown and now match the
dates in three of the indictments. If anything, the attachment
to the plea transcript, riddled with strikethroughs, bespeaks of
transcription error and unreliability.
In finding that the three predicate armed robbery offenses
occurred on separate dates, the district court necessarily had
to disregard the offense dates in the judgment. Given the
discrepancies in the state court documents, the district court’s
reliance on the indictments and plea transcript in place of the
judgment is not a “permissible view[] of the evidence of
record.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564
(1985). Accordingly, we must conclude that the district court
clearly erred in finding that the offenses were committed on
separate dates.
13
3.
Having concluded that the district court clearly erred by
finding that the predicate convictions occurred on separate
dates, we now turn to the legal question of whether the offenses
were committed on occasions different from one another. 7
Offenses are deemed to have been committed on different
occasions under the ACCA “when they arise out of a ‘separate and
distinct criminal episode.’” United States v. Boykin, 669 F.3d
467, 470 (4th Cir. 2012) (emphasis in original) (quoting United
States v. Carr, 592 F.3d 636, 640 (4th Cir. 2010)). Offenses
committed on the same day, or even in the span of a few hours
may nevertheless be considered “separate and distinct” criminal
episodes if they do not “arise from a continuous course of
criminal conduct.” United States v. Letterlough, 63 F.3d 332,
337 (4th Cir. 1995). The ACCA extends only to predicate
offenses “that can be isolated with a beginning and an end —
ones that constitute an occurrence unto themselves.” Id. at
335.
We listed several factors in Letterlough to guide the
determination of whether offenses have been committed on
occasions different from one another. We consider:
7
While the district court omitted consideration of the
fourth robbery conviction from its analysis, file number 2834,
we include it as part of our de novo assessment.
14
(1) whether the offenses arose in different geographic
locations; (2) whether the nature of each offense was
substantively different; (3) whether each offense
involved different victims; (4) whether each offense
involved different criminal objectives; and (5)
whether the defendant had the opportunity after
committing the first-in-time offense to make a
conscious and knowing decision to engage in the next-
in-time offense.
Carr, 592 F.3d at 644 (enumerating factors); Letterlough, 63
F.3d at 335-36. These factors can be viewed “together or
independently” and any one factor with a “strong presence . . .
can dispositively segregate an extended criminal episode into a
series of separate and distinct episodes.” Carr, 592 F.3d at
644 (quoting Letterlough, 63 F.3d at 336).
We have declined to sanction application of the ACCA
enhancement where the Government has failed to “definitively
establish[]” any of the Letterlough factors indicating that the
predicate offenses were committed on different
occasions. United States v. Tucker, 603 F.3d 260, 266 (4th Cir.
2010). In Tucker, we vacated the district court’s judgment
where it was unclear from the underlying South Carolina
judgments and indictments whether the defendant committed two
prior second-degree burglaries of four different storage units
on separate occasions. Three of the Letterlough factors — the
nature and objective of the offenses and the lack of information
regarding whether there had been different victims — suggested
that the burglaries occurred on the same occasion. Id. at 265.
15
However, under South Carolina law, the defendant could have been
held criminally responsible for the acts of his accomplice, and
the underlying Shepard-approved documents did not make clear
that the defendant sequentially committed the two burglaries,
rather than simultaneously with the aid of his accomplice.
Moreover, the Government could not establish from the
approved sources that the defendant himself entered more than
one storage unit and thus, the two remaining Letterlough factors
— whether the offenses had been committed in different
locations, and whether the defendant had an opportunity to make
a conscious decision to engage in more than one burglary — did
not weigh in favor of multiple criminal episodes. Id. at 266.
As a result, we were constrained to regard the two burglary
convictions as one for the purposes of the ACCA. Id.
And in Boykin, we held that it was plain error for the
district court to rely on facts recited in the defendant’s PSR
to support the ACCA enhancement because there was no indication
that the facts in the PSR derived from Shepard-approved sources.
669 F.3d at 472. Given that the defendant’s convictions
resulted from a jury verdict, no plea colloquy or judicial
factfinding existed to support the PSR’s narrative. Id. at 471.
Absent the factual details from the PSR, the only reliable
information remaining was that the defendant was convicted of
two violent felonies committed on the same day in 1980. That
16
information was too “meager” to determine whether the offenses
occurred on different occasions, rendering the Letterlough
factors “nearly useless.” Id. at 472.
A weighing of the Letterlough factors in this case does not
lead us to the conclusion that each robbery occurred on a
separate occasion. First, the indictments indicate that, of the
four burglaries, three were committed at the same location, Pawn
Mart. Span committed one robbery at Cash America Pawn, which
suggests, at most, two separate criminal episodes, not
four. See Carr, 592 F.3d at 645 (reasoning that different
locations of thirteen separate storage units suggested that
their burglaries were separate episodes). Second, the nature
and criminal objectives of the robberies remained the same; at
each robbery, Span used a gun to steal money and property from a
pawn shop. See Hobbs, 136 F.3d at 389 (stating that offenses
with the same nature bolster the conclusion that the offenses
occurred on the same occasion, if that conclusion is also
supported by other facts).
Given that we cannot conclude, with any confidence, what
date the offenses occurred, and, if they were committed on the
same day, whether they occurred in quick succession as part of a
continuous course of conduct, we hesitate to assign any
significant weight to the Letterlough factor assessing whether
Span had an opportunity to make a conscious and knowing decision
17
to engage in one offense after the other. Span could have
committed the robberies at Pawn Mart all at once, or within a
short period of time. We lack reliable information from the
Government to make the distinction between the former scenario
and the latter. The fact that two robberies occurred in
separate locations would ordinarily indicate at least two
separate criminal episodes because Span cannot be in two places
at once; however, as discussed below, Span could have acted with
an accomplice. Therefore, it remains entirely possible that
Span was responsible for the robberies at one location and his
accomplice was responsible for the robbery at a separate
location. This degree of uncertainty precludes the weight of
this factor from aiding the Government.
The only persuasive factor leaning in favor of four
separate criminal episodes is that each indictment named a
different individual victim. This factor can “decisively tip[]
the scale” and dispositively segregate a crime spree into
separate occasions. Hobbs, 136 F.3d at 390. We do not find
this factor dispositive, however, in light of the weight of the
other factors in the aggregate.
The Government counters by advancing a speculative theory
that the offenses occurred on separate occasions. The
Government asserts that, under North Carolina law, armed robbery
requires both the taking of property and a life-threatening
18
assault, and “where a defendant takes the property of only a
business but does so in the presence of multiple employees, even
if threatening the life of both employees, only a single armed
robbery is committed.” Gov’t Br. 25 (citing State v. Beaty, 293
S.E.2d 760, 764 (N.C. 1982)). Because the three Pawn Mart
robberies each involved a different employee and different
property of the business, they necessarily must have occurred on
different occasions because they could not have been charged in
separate indictments otherwise. To accept the Government’s
theory as true, we must first find that the named victims were
employees of Pawn Mart and that only the property of Pawn Mart
was stolen. We have no way of firmly making that determination
from mere allegations found only in the indictments.
Casting further doubt on the Government’s theory is the
plea transcript, which indicates that Span may have acted with
an accomplice, as it recommends “restitution jointly and
severally with co-defendant.” J.A. 196. Under North Carolina
law, a defendant may be charged with robbery with a dangerous
weapon if he aids or abets another in the commission of the
offense. See N.C. Gen. Stat. Ann. § 14-87. However, a
defendant’s acting in concert with another is not an essential
element of robbery with a dangerous weapon and need not appear
in the indictment. See State v. Small, 400 S.E.2d 413, 416
(N.C. 1991) (describing the elements of robbery with a dangerous
19
weapon as “(1) the unlawful taking or an attempt to take
personal property from the person or in the presence of another
(2) by use or threatened use of a firearm or other dangerous
weapon (3) whereby the life of a person is endangered or
threatened”).
If Span did, in fact, commit three of the robberies on the
same day, January 18, 2000, it remains entirely plausible that
he did not act alone. As described earlier, he could have
robbed Pawn Mart while an accomplice simultaneously robbed Cash
America Pawn. See Tucker, 603 F.3d at 266; cf. United States v.
Fuller, 453 F.3d 275, 279 (5th Cir. 2006) (vacating the
defendant’s ACCA enhancement because the court could not
determine from the indictment whether the defendant committed
the burglaries as an accomplice or acted alone).
In sum, we decline to conclude that each offense was
committed on a separate occasion because application of
the Letterlough factors does not lead us to that conclusion. We
cannot, in good conscience, affirm the district court’s
application of the ACCA enhancement on this record, and we
reverse the district court and remand for resentencing.
III.
Span raises an alternative argument that the Fifth and
Sixth Amendments prohibit a sentencing court from determining
whether a defendant’s predicate convictions were committed on
20
different occasions. He draws support from the Supreme Court’s
recent admonition in Descamps v. United States, 133 S. Ct. 2276
(2013), against a sentencing court’s consideration of facts
extraneous to the elements of an underlying prior conviction for
the purpose of applying the ACCA enhancement. Span contends
that our decision in United States v. Thompson, 421 F.3d 278
(4th Cir. 2005), which approved a sentencing court’s finding of
“operative facts” inherent in the fact of a prior conviction, is
in conflict with Descamps and should be overturned. We do not
view Descamps to be as far-reaching as Span suggests, and we
will not revisit Thompson absent a contrary Supreme Court
opinion because we lack the authority to overrule another panel
decision, see McMellon v. United States, 387 F.3d 329 (4th Cir.
2004) (en banc).
The defendant in Descamps had previously been convicted of
burglary in California, an offense that the state defined rather
broadly by not requiring the entry to have been unlawful. At
sentencing, the district court reasoned that the modified
categorical approach permitted it to consult documents,
including the transcript of the plea colloquy, to determine
whether the defendant had admitted the traditional elements of
burglary, such as breaking or entering. Having determined that
the defendant’s conviction qualified as “a generic burglary” and
thus a violent felony under the ACCA, the district court
21
enhanced the defendant’s sentence. The Ninth Circuit affirmed
the district court and approved an interpretation of the
modified categorical approach in which sentencing judges were
permitted to examine conclusive court documents to determine the
factual basis of a prior conviction where the defendant had been
convicted under a statute “that is categorically broader than
the generic offense.” 133 S. Ct. at 2283.
The Supreme Court was chiefly concerned with the Ninth
Circuit’s expansive view and held that, where a defendant has a
prior conviction under an indivisible statute, i.e., one that
does not list alternative elements, the sentencing court may not
turn to the modified categorical approach to determine whether
that prior conviction qualifies as a violent felony under the
ACCA. The Court reiterated that the limited purpose of the
modified categorical approach is “to identify, from among
several alternatives, the crime of conviction so that the court
can compare it to the generic offense.” Id. at 2285. A statute
that does not contain alternative elements of proof, but merely
defines the offense “overbroadly,” does not warrant the
sentencing court’s reference to other documents. Id. at 2286.
Most salient for purposes of our analysis were the Court’s
statements regarding the Sixth Amendment roots of the
categorical and modified categorical approaches. The Ninth
Circuit’s efforts to “discern what a trial showed, or a plea
22
proceeding revealed, about the defendant's underlying conduct”
offended the Sixth Amendment because a jury must find such facts
beyond a reasonable doubt. Id. at 2288. The only facts that a
sentencing court can be sure a jury found are those
“constituting the elements of the offense.” Id. When a
defendant pleads guilty, he is waiving his right to a jury trial
only on the elements of the offense, and other extraneous facts,
whether admitted or not, cannot be used at sentencing to enhance
his punishment. Id. The majority warned that extraneous facts
in aged court documents could very well be incorrect, as a
defendant “often has little incentive to contest facts that are
not elements of the charged offense — and may have good reason
not to.” Id. at 2289.
Span seizes on this language to call into question the
reasoning of our decision in Thompson. There, a divided panel
rejected the defendant’s argument that the Sixth Amendment
prohibited his ACCA-enhanced sentence because the jury did not
find, nor did he admit, that his predicate convictions were for
violent felonies committed on different occasions. Recognizing
that a defendant’s prior conviction is not a fact that a jury
must find, the majority explained that data inherent in the fact
of a prior conviction includes “operative facts, such as the
statute which was violated and the date of
conviction.” Thompson, 421 F.3d at 282. The court concluded
23
that the defendant’s North Carolina predicate breaking and
entering convictions qualified as violent felonies under the
ACCA as a matter of law. Id. at 284. And the Court reasoned
that the information necessary to determine whether the
convictions had been committed on different occasions was
inherent in the convictions themselves. “To take notice of the
different dates or locations of burglaries — something inherent
in the conviction — is to take notice of different occasions of
burglary as a matter of law.” Id. at 286.
The tension between Descamps and Thompson, which has been
described as an “outlier,” United States v. Aviles–Solarzano,
623 F.3d 470, 474 (7th Cir. 2010), is apparent. Our precedent
permits a sentencing court’s dive into Shepard-approved
documents to sort out the facts of the underlying predicate
conviction, not just its elements. Descamps intimates that this
analysis exceeds a sentencing court’s proper role. Ultimately,
we are persuaded, however, that the Supreme Court’s statements
in Descamps, while foreboding, will most likely be confined to
identification of a violent felony under the categorical
approach to the ACCA. The question of whether a defendant’s
predicate convictions were committed on different occasions
under the ACCA more likely involves an altogether separate
assessment outside of the strictures of the Descamps rationale.
24
We leave to another case on another day the continued viability
of Thompson.
IV.
We respect our esteemed dissenting colleague’s contrary
view of the proper analysis and outcome in this case, but we
remain unshaken in our view that the Government’s evidence was
insufficient to satisfy the Government’s burden and thus the
district court’s finding here was clearly erroneous. Under the
dissent’s view, if some other district judge had found, as we
conclude as a matter of law, that the Government’s evidence was
insufficient to sustain its burden of proof, then the dissent
would also affirm that judgment as resting on findings that were
not “clearly erroneous.” 8 Consequently, the arbitrary, if not
8
It is clear that the experienced judge in this case took
no pleasure in imposing the sentence that he did:
And so these sentences are just -- I mean we [federal
judges] sort of give them out like they’re M&Ms or
something and then go off the bench . . . .
I mean, you know, you’re putting people away. Some
people need to be warehoused and if you’re in the
opinion that he should be warehoused, that’s fine and
I can respect that. I can see that off of this that
there would be disagreements about if he’s reached the
“let’s warehouse him and lock him away forever stage,”
and I can respect that. But sentences that we give out
are real. These are real years, and 15 years is a long
time . . . .
Now, understand that I’m not sentencing -- if I was
sentencing him for the armed robberies you could bring
(Continued)
25
freakish, imposition of federal criminal sentences, to say
nothing of mandatory minimum recidivist sentences, based on a
sentencing judge’s strained ability and willingness to parse for
“plausible” meaning highly unreliable state court documents,
would hold sway. But such a regime flies in the face of the
entire remedial thrust of the Sentencing Reform Act of 1984
(SRA). The collection of Shepard documents in this case is
anything but the “conclusive . . . judicial record,” Shepard,
544 U.S. at 25, necessary to ensure proper respect for the Sixth
Amendment. If it is not the role of federal appellate judges to
normalize the achievement of Shepard’s and the SRA’s laudable
goals of rational determinant sentencing, then we do not know
what our role is expected to be.
V.
“Good enough for government work” has never been a
legitimate critique of the important processes that turn the
wheels of our constitutional democracy. Nowhere is it less
those victims in and I could hear what those victims
say. I’m sentencing him for what happened that day
that he got caught. I’m not sentencing him for the
armed robberies. Now he’s paying a price for having
done those again . . . . He paid a price and then he’s
paying another price today for having done that. I’m
sentencing him for being a felon in possession of a
firearm . . . .
J.A. 75-77.
26
legitimate than in the requirement that prosecutors establish by
a preponderance of the available evidence the facts necessary to
justify a federal district court’s imposition of a mandatory
minimum recidivist sentence of a decade and a half based on
dated and marked-up state court documents of questionable
reliability. Accordingly, for the reasons set forth, we vacate
the judgment and remand this case for further proceedings not
inconsistent with this opinion.
VACATED AND REMANDED
27
APPENDIX A
Case Number Indictment Plea Judgment
Transcript *
00-CRS-002827 Offense Date: Offense Date: Offense Date:
Pawn Mart, 12/30/1999 12/30/1999* 1/18/2000
Inc.
00-CRS-002829 Offense Date: Offense Date: Offense Date:
Cash America 11/17/1999 11/17/1999* 1/18/2000
Pawn
00-CRS-002830 Offense Date: Offense Date: Offense Date:
Pawn Mart, 12/14/1999 12/14/1999* 1/18/2000
Inc.
00-CRS-002834 Offense Date: Offense Date: Offense Date:
Pawn Mart, 1/11/2000 12/14/1999 1/11/2000
Inc.
*
For the dates in this column with an asterisk, the plea
transcript contained an illegible offense date, which was
stricken through and replaced with the dates listed. Span’s
initials do not appear by the strikethroughs and it is unclear
when the offense dates were altered and whether Span agreed to
the alterations.
28
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent. The majority seems to me to be
correct, except on one point. That point, unfortunately, makes
all the difference.
When the district court sentenced Gary Span under the Armed
Career Criminal Act, it determined that he had committed three
predicate state crimes “on occasions different from one
another.” 18 U.S.C. § 924(e)(1). The majority correctly
recognizes that the district court relied only on Shepard-
approved state court documents in making this determination.
The majority is also correct that, before the district court
decided that Span committed the state crimes on
different occasions -- a legal conclusion -- it made a factual
finding that Span committed the crimes on different dates. And
the majority correctly acknowledges that we must affirm this
finding of fact unless it is clearly erroneous. 1
Where the majority falters is in concluding that the
district court clearly erred in its key factual finding -- that
Span committed the three predicate state crimes on different
dates. The majority reasons that the district court’s reliance
1
And if we do so, then we must also affirm Span’s sentence
because offenses committed on different dates necessarily were
committed on different occasions. See United States v.
Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).
29
on the indictments and plea transcript to resolve conflicting
dates in the state court documents was “not a ‘permissible view
of the evidence.’” Op. at 13 (quoting Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985)). I cannot agree.
Given the evidence before the district court and the deference
we must afford facts found by that court, the district court’s
determination here was plainly “permissible.”
When sentencing courts engage in fact finding,
“[p]reponderance of the evidence is the appropriate standard of
proof.” United States v. Grubbs, 585 F.3d 793, 803 (4th Cir.
2009). As the Supreme Court has explained, “[t]he burden of
showing something by a preponderance of the evidence . . .
simply requires the trier of fact to believe that the existence
of a fact is more probable than its nonexistence.” Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust
for S. Cal., 508 U.S. 602, 622 (1993) (internal quotation marks
and citation omitted). All the district court needed to find,
therefore, was that it was more probable than not that Span
committed the three predicate robberies on different dates.
For us to overturn that finding requires a good deal more.
Only when we are “left with the definite and firm conviction
that a mistake has been committed” may we reverse a district
court’s finding of fact. Easley v. Cromartie, 532 U.S. 234, 242
(2001) (internal quotation marks and citation omitted). As long
30
as “the district court’s account of the evidence is plausible in
light of the record viewed in its entirety,” we must affirm,
even if we are “convinced that . . . [we] would have weighed the
evidence differently” as the trier of fact. Anderson, 470 U.S.
at 573-74 (emphasis added).
I do not see how the district court’s determination that
Span committed the three predicate crimes on three different
days is anything less than plausible. Two of the three sets
of Shepard-approved documents introduced at sentencing indicate
that Span committed the three state crimes at issue here on
different days. The indictments state that Span robbed Cash
America Pawn on November 17, 1999; Pawn Mart on December 14,
1999; and Pawn Mart again on December 30, 2000. The plea
transcript confirms those dates. To be sure, the plea
transcript also contains three crossed-out dates. But the only
dates now legible on that document match the dates on the
indictments. Certainly it is at least plausible that the plea
transcript was edited to correct an error, not introduce one.
The dates in the indictments and the plea transcript do
conflict with the dates in the judgment, which states that all
three robberies at issue here occurred on January 18, 2000. But
the fact that there was a discrepancy among the Shepard-approved
documents did not prohibit the district court from resolving it.
Making factual findings in the face of conflicting testimony,
31
documents, or other evidence is a district court’s bread and
butter.
Anderson, on which the majority relies, is particularly
instructive on this point. There, a unanimous Supreme Court
reversed this court, concluding that we had “misapprehended and
misapplied the clearly-erroneous standard” when we overturned a
district court’s factual findings. 470 U.S. at 566. The
Supreme Court explained that the clearly erroneous standard
applies “even when the district court’s findings do not rest on
credibility determinations, but are based,” as here, on
“documentary evidence.” Id. at 574. That is because “[t]he
trial judge’s major role is the determination of fact, and with
experience in fulfilling that role comes expertise.” Id. The
Court has never retreated from these guidelines, and we are not
free to deviate from them.
Here, the district court acknowledged that the dates on the
judgment contradicted the dates on the indictments and the plea
transcript, but concluded that this was “an error” on the face
of the judgment. In reaching that conclusion, the court fairly
relied on the fact that two-thirds of the available evidence
supported its finding. Perhaps both the indictments and the
edited plea transcript are inaccurate, but it is certainly
“plausible” that they are both correct. See Anderson, 470 U.S.
at 574. The majority provides no additional reasons, beyond the
32
conflicting dates in the judgment and the fact that the plea
transcript was edited, to suggest otherwise. 2
I too am troubled that the length of Span’s sentence hinged
on the district court’s parsing of inconsistent state court
documents. In nearly every other instance in which a
defendant’s sentence jumps from a Guidelines maximum of thirty-
seven months to a mandatory minimum of fifteen years, the
Constitution would require a jury to find the fact triggering
that increased sentence beyond a reasonable doubt. See Alleyne
v. United States, 133 S. Ct. 2151, 2155 (2013). But to the
extent the district court’s decision seems unjust, it is because
binding precedent tied the court’s hands. See United States v.
Archie, 771 F.3d 217, 223 (4th Cir. 2014); see also United
States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005). In
resolving a close factual question, the district court was
2
In response to this dissent, the majority suggests that I
would also affirm if the district court had found the
“government’s evidence was insufficient to sustain its burden of
proof.” Op. at 25. It seems to me that our role as an
appellate court, not empowered to find facts, would require
exactly that result. Notably, in Anderson, the Supreme Court
concluded that “[b]ased on [its] own reading of the record,” it
could not determine that either the district court’s
“interpretation of the facts” or the Fourth Circuit’s contrary
interpretation was “illogical or implausible.” 470 U.S. at 577.
This conclusion, however, did not justify the Fourth Circuit’s
reversal of the district court given “the appropriately
deferential” standard of review. Id. The majority’s
willingness to reverse here erases the “clear” from the “clear
error” standard of review.
33
required to apply a relatively low standard of proof --
preponderance of the evidence. Any injustice here is the result
of that standard, not a clear error on the part of the district
court in applying it. Accordingly, I dissent.
34