UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4253
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWANE EDWARD CHERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
03-316-DKC)
Argued: May 26, 2006 Decided: August 9, 2006
Before NIEMEYER and TRAXLER, Circuit Judges, and Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Barbara Suzanne Skalla,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,
Federal Public Defender, Denise Barrett, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Dwane Cherry appeals from a 188-month sentence imposed on him
in the District of Maryland following a bench trial where he was
found guilty of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g), and possession of a controlled
substance, in violation of 21 U.S.C. § 844(a). Cherry contends the
sentencing court committed Sixth Amendment error by relying on
inconclusive facts about a disputed juvenile adjudication. Cherry
also contends the sentencing court erred in its statutory analysis
of the Armed Career Criminal Act (ACCA) and by giving the U.S.
Sentencing Guidelines mandatory effect. We find the court
erroneously relied on disputed facts to enhance Cherry’s sentence
and thus committed Sixth Amendment error. We therefore vacate
Cherry’s sentence and remand for further proceedings.
I.
On December 18, 2003, the district court found Cherry guilty
of (1) being a felon in possession of a handgun and (2) possessing
a controlled substance. The court subsequently applied an ACCA
sentence enhancement pursuant to 18 U.S.C. § 924(e). Pursuant to
the ACCA, a defendant convicted under § 922(g) who has three
previous convictions for violent felonies or serious drug offenses
is considered an Armed Career Criminal and is subject to enhanced
penalties.
3
The presentence report stated that Cherry was an Armed Career
Criminal because of a 1991 conviction for distribution of cocaine,
a 1991 conviction for conspiracy to commit robbery with a deadly
weapon, and a 1985 juvenile adjudication for attempted murder and
use of a handgun. Cherry disputes the sentencing court’s findings
related to the 1985 juvenile adjudication.
A juvenile adjudication satisfies the ACCA’s "violent felony"
standard if it involves "the use or carrying of a firearm, knife,
or destructive device" and involves force, a threat of force, or a
potential risk of physical injury to another. 18 U.S.C. §
924(e)(2)(B) (2000). The district court examined the following
documents to determine whether Cherry’s juvenile adjudication
qualifies as a predicate offense: (1) a Maryland juvenile docket
sheet stating Cherry was "involved" in attempted murder and use of
a handgun; (2) a Maryland adult court indictment charging eleven
criminal counts against Cherry and Tyrone A. Davis; (3) a statement
of charges filed against Davis; (4) an application for a statement
of charges against Davis; (5) and Davis’s police report. Relying
on those documents, the court found that Cherry was indicted with
Davis for an attempted murder involving the use of a handgun and
that this incident served as the basis of the juvenile
adjudication. The court accordingly held that Cherry was an Armed
Career Criminal under § 924(e), which enhanced Cherry’s guideline
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range from 92-115 months to 188-235 months. The court imposed a
sentence of 188 months.
II.
We resolve Cherry’s appeal based on his Sixth Amendment claim.
In the court below, Cherry challenged the determination that he was
an Armed Career Criminal. He failed, however, to raise a Sixth
Amendment challenge. Cherry’s claim that the district court
violated his Sixth Amendment rights is therefore reviewed for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
To demonstrate plain error, Cherry must prove that: (1) error
occurred, (2) it was plain, and (3) it affected his substantial
rights. Id. at 547–48. If Cherry establishes these requirements,
the court’s "discretion is appropriately exercised only [if]
failure to do so would result in a miscarriage of justice . . . ."
Id. at 555.
III.
In Taylor v. United States, 495 U.S. 575 (1990), the Supreme
Court considered whether a sentencing court could consider facts
beyond statutory definitions when applying a § 924 enhancement
after a jury trial. The Court explained that a sentencing court
must use a categorical approach when applying § 924 enhancements,
which "generally requires the trial court to look only to the fact
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of conviction and the statutory definition of the prior offense."
Id. at 602. The Court held, however, that sentencing courts may
look beyond the statutory definition in a narrow range of cases and
consider charging papers and jury instructions. Id.
In Shepard v. United States, 544 U.S. 13 (2005), the Court
examined the breadth of Taylor. Similar to Cherry, Shepard pleaded
guilty to being a felon in possession of a handgun under §
922(g)(1), and the government sought to enhance his sentence under
the ACCA. The government asserted that Shepard’s prior generic
burglary conviction constituted a "violent felony" and thus served
as a predicate offense. Id. at 17-18. The government urged the
district court to consider police reports and complaint
applications as proof of the character of Shepard’s burglary
conviction. Id. at 17.
The Court explained that its "pragmatic conclusion" in Taylor
about the manner in which sentencing courts should undertake
evidentiary inquiries into the factual basis of prior convictions
did not preclude the use of "adequate judicial record evidence."
Id. at 20. The Court cautioned, however, that inquiries beyond
statutes and charging documents "must be narrowly restricted to
implement the object of the statute and avoid evidentiary
disputes." Id. at 24 n.4 (citing Taylor, 495 U.S. at 602). The
Court held that sentencing courts are "generally limited to
examining the statutory definition, charging document, written plea
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agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented." Id.
at 16. Because police reports and complaint applications generally
are not "conclusive records made or used in adjudicating guilt,"
the Court found that sentencing courts cannot rely on those
documents to enhance sentences.1 Id. at 16.
In United States v. Washington, 404 F.3d 834, 840 (4th Cir.
2005), we interpreted Taylor and Shepard as holding that a
sentencing court considering a sentence enhancement "cannot
consider items from the record of a prior conviction that were not
conclusively validated in the earlier proceeding."
We have not previously examined whether docket sheets in
general rise to the level of documents "conclusively validated" in
prior proceedings. Other circuits, however, have examined the
issue and found that clerical documents such as docket sheets are
unreliable and cannot be used for sentence enhancement. See United
States v. Gutierrez-Ramirez, 405 F.3d 352, 357–58 (5th Cir. 2005)
(finding a sentencing court could not rely on an abstract of
judgment—a clerical document containing a summary of court
proceedings—to determine whether a prior conviction qualifies to
enhance a sentence); United States v. Navidad-Marcos, 367 F.3d 903,
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We found in United States v. Simms, 441 F.3d 313, 317 (4th
Cir. 2006), however, that a sentencing court can properly consider
an application for a statement of charges that has been "expressly
incorporated" into a charging document.
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908–09 (9th Cir. 2004) (holding an abstract of judgment did not
"unequivocally" establish that a defendant entered a guilty plea);
see also United States. v. Price, 409 F.3d 436, 445 (D.C. Cir.
2005) (explaining that a docket sheet is not a reliable source of
information). Nonetheless, this case does not require us to
address the reliability of docket sheets in general because even if
Cherry’s docket sheet is considered, there is insufficient evidence
to establish that he committed a "violent felony" as defined in the
ACCA.
IV.
We first examine the docket sheet itself. The only reference
to the contested charges on the docket sheet is found in a March 8,
1985 entry stating "Find – Involved Ct. 1 – Attempted Murder; Count
13 Use of handgun." J.A. 332. This entry fails to explain how, or
if, the attempted murder and use of a handgun charges are related.
Absent a link between the disputed charges on the face of the
docket sheet, we cannot infer that Cherry used a handgun while
attempting murder.
The government contends the entries on the docket sheet should
be considered with documents from the adult criminal proceedings
brought against Cherry and Davis. The government argues that these
documents sufficiently link the disputed charges when considered
together.
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As Cherry argues, however, the adult court documents and the
juvenile docket sheet are inconsistent and cannot be linked. The
most obvious inconsistency is that the adult court indictment
contains only 11 counts, while the juvenile docket sheet lists
Cherry’s "use of a handgun" charge as Count 13. Further, the
juvenile docket sheet does not indicate that Cherry’s juvenile
proceeding was transferred from an adult criminal court or, for
that matter, that it was in any way related to the charges alleged
in the adult court indictment.
Based on the scant record of the juvenile proceedings provided
by the government and the inconsistencies between the docket sheet
and the adult court documents, the district court could not
properly find that the events alleged in the adult court
proceedings were the same as the events that resulted in the
disputed juvenile charges. Accordingly, we find the district court
improperly relied on disputed facts, and therefore, committed Sixth
Amendment error.
V.
We also find the imposition of Cherry’s sentence was plain
error under United States v. Booker, 543 U.S. 220 (2005), and
Shepard. To demonstrate plain error, Cherry must establish that:
(1) error occurred, (2) it was plain, and (3) it affected his
substantial rights. Hughes, 401 F.3d at 547–49. If Cherry
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establishes these requirements, the court’s "discretion is
appropriately exercised only [if] failure to do so would result in
miscarriage of justice . . . ." Id. at 555. We find that error
occurred. In addition, even though Booker and Shepard were
rendered after Cherry was sentenced, the error was "plain" at the
time of our review. See Johnson v. United States, 520 U.S. 461,
468 (1997) (finding error plain "where the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal"). We also find that the error affected Cherry’s
substantial rights because the court imposed a longer sentence than
the term of imprisonment the district court should have imposed had
the court considered only the facts found beyond a reasonable
doubt. See Hughes, 401 F.3d at 548. Finally, our discretion is
exercised appropriately because our failure to do so would result
in a miscarriage of justice. Accordingly, we find the sentencing
court’s imposition of an enhanced sentence was plain error.
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We vacate Cherry’s sentence and remand for resentencing.2
VACATED AND REMANDED
2
Because there is Sixth Amendment error that needs to be
corrected on remand, it is unnecessary to address Cherry’s
remaining claims that he was sentenced improperly under the
mandatory guideline scheme and that the district court erred in its
ACCA statutory analysis. See Hughes, 401 F.3d at 556 n.15.
Although the Sentencing Guidelines are no longer mandatory, Booker
makes clear that a sentencing court must still "consult [the]
Guidelines and take them into account when sentencing." 543 U.S.
at 264. On remand, the district court first should determine the
appropriate sentencing range under the Guidelines, including
whether Cherry is an Armed Career Criminal, making all appropriate
factual findings. Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with other factors described
in 18 U.S.C. § 3553(a), and then impose a sentence. Id. The
sentence must be "within the statutorily prescribed range and . .
. reasonable." Id. at 547.
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