PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4439
ANTONIO BERNARD DEAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:06-cr-00443-RJC-1)
Argued: March 25, 2010
Decided: May 5, 2010
Before WILKINSON and MOTZ, Circuit Judges,
and Joseph R. GOODWIN, Chief United States District
Judge for the Southern District of West Virginia,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz and Judge Goodwin joined.
COUNSEL
ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
2 UNITED STATES v. DEAN
Carolina, for Appellant. Adam Christopher Morris, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Exec-
utive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.
WILKINSON, Circuit Judge:
Antonio Bernard Dean challenges the imposition of a "ca-
reer offender" sentence enhancement under the U.S. Sentenc-
ing Guidelines following his conviction on a drug possession
charge. Dean was eligible for that enhancement only if the
two predicate offenses upon which it was based were "sepa-
rated by an intervening arrest." See U.S. Sentencing Guide-
lines Manual § 4A1.2(a)(2) (2007). Dean argues that in
determining that an intervening arrest had occurred, the dis-
trict court erred by relying on materials prohibited by the
Supreme Court’s decision in Shepard v. United States, 544
U.S. 13 (2005).
In United States v. Booker, 543 U.S. 220 (2005), and its
progeny, the Supreme Court intended two things. First, it
sought to eliminate conflict between the Sixth Amendment
jury trial right and the Sentencing Guidelines scheme, a task
it accomplished by rendering the once-mandatory Guidelines
advisory. Second, it endeavored to accord a greater, though
not a complete, measure of latitude to district courts at sen-
tencing, both in their ability to find facts and to determine the
most appropriate sentence. Dean’s contention runs afoul of
both these principles and would require us to backtrack signif-
icantly on the teachings of Booker and its progeny.
UNITED STATES v. DEAN 3
I.
In December 2006, Dean was charged with one count of
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841. The offense carries a maximum sentence of
twenty years. 21 U.S.C. § 841(b)(1)(C). He pled guilty with-
out a plea agreement. The Pre-Sentence Investigation Report
("PSR") calculated an advisory Sentencing Guidelines range
of 151 to 188 months’ imprisonment. This range reflected the
conclusion that Dean qualified as a "career offender" within
the meaning of the Guidelines, which increased both his
offense level and his criminal history classification. See
USSG § 4B1.1(b). Under the Guidelines, Dean was eligible
for this enhancement if he had "at least two prior felony con-
victions of either a crime of violence or a controlled substance
offense." Id. The PSR concluded that Dean was a career
offender since his record showed that he had pled guilty to
two cocaine felonies in North Carolina state court.
Dean, however, objected. The two predicate offenses cited
by the PSR had been sentenced the same day, and the Guide-
lines provide that in such a situation, they are to be counted
as only a single offense unless it can be shown that the sen-
tences "were imposed for offenses that were separated by an
intervening arrest." USSG § 4A1.2(a)(2); see also USSG
§ 4B1.2(c)(2). An intervening arrest means that "the defen-
dant is arrested for the first offense prior to committing the
second offense." USSG § 4A1.2(a)(2). Dean objected to his
career offender classification on these grounds, arguing that
there was no intervening arrest separating the predicate
offenses cited by the PSR. Treating the two sentences as a sin-
gle conviction would have produced a Guidelines range of
thirty to thirty-seven months’ imprisonment.
The issue was taken up at Dean’s sentencing hearing in
April 2008. The government claimed that Dean was arrested
for the first offense on April 1, 1999, and that he committed
the second offense on January 26, 2000. In support of these
4 UNITED STATES v. DEAN
propositions, it produced copies of two bond orders from state
magistrate judges, as well as certain records from the state
court clerk’s office. The docket number listed on each of the
respective magistrate’s orders corresponded with the docket
numbers associated with Dean’s two prior convictions. The
first order was dated April 2, 1999, and indicated that Dean
had committed and been arrested for a drug felony the day
before, on April 1. The second order was issued January 27,
2000, and stated that Dean had committed and been arrested
for a drug felony the day before, on January 26.
Over Dean’s continued objection, the district court con-
cluded on the basis of the government’s evidence that an
intervening arrest had taken place. The court then sentenced
Dean to the Guidelines minimum of 151 months’ imprison-
ment. This appeal followed.
II.
Under Shepard v. United States, 544 U.S. 13 (2005), a sen-
tencing court attempting to determine the character of a prior
offense to which a defendant pled guilty generally may look
only to certain documents: "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." Id. at 16. Shepard was founded on two
rationales: concern that a wider inquiry would violate the
Sixth Amendment right to trial by jury and a desire to avoid
elaborate proceedings in which an earlier trial might be
picked apart. Id. at 23-25.
Dean argues that the district court erred by relying on mate-
rials other than the sort Shepard allows to establish that an
intervening arrest had occurred. For purposes of this appeal,
we assume that the magistrate’s orders and clerk’s office
records that Dean seeks to exclude would not qualify for
admission under Shepard, since the government has not
UNITED STATES v. DEAN 5
argued otherwise. Nonetheless, Dean’s claim is mistaken for
several reasons.
A.
The Sixth Amendment right to trial by jury applies to the
finding of "any fact that increases the penalty for a crime
beyond the prescribed statutory maximum." United States v.
Booker, 543 U.S. 220, 231 (2005) (citation omitted). There is
an exception to this principle, however. Under the doctrine
originating in Almendarez–Torres v. United States, 523 U.S.
224, 239-47 (1998), there is no right to have a jury determine
the existence of the "fact of a prior conviction," nor of any
fact "necessarily" established for the conviction to have been
valid. See Booker, 543 U.S. at 231; Shepard, 544 U.S. at 24-
25.
The reason for this exception is that a prior conviction and
any subsidiary conclusions it necessarily entailed are more
like legal facts than real-world ones. As we have explained,
decisions like "Booker[ ] and Shepard do not, of course, trans-
mogrify what have always been questions of law into ques-
tions of fact." United States v. Thompson, 421 F.3d 278, 285
(4th Cir. 2005). And the process of putting two and two
together—of reasoning that a jury that convicted a defendant
of a given offense necessarily found that the defendant
engaged in conduct that is an essential element of the offense
—is a matter of legal reasoning, not factual inference. See
Shepard, 544 U.S. at 25; Thompson, 421 F.3d at 282-83.
But while facts established through a prior conviction are
excepted from the Sixth Amendment jury trial right, respect
for the Sixth Amendment requires that this exception be kept
within its proper bounds. That was one of the lessons of Shep-
ard, which noted that in some cases the meaning of a prior
conviction may be "debatable." Shepard, 544 U.S. at 25.
Shepard therefore held that courts relying on the Almen-
darez–Torres exception could consider as evidence only offi-
6 UNITED STATES v. DEAN
cial documents establishing the matter with "the conclusive
significance of a prior judicial record." Id.
Shepard’s Sixth Amendment holding was meant to ensure
that judges do not "smuggle in contraband facts—those that
are reserved for juries—under the mantle" of the Almendarez-
Torres exception. Thompson, 421 F.3d at 282. It should be
obvious that in contexts where there is no Sixth Amendment
right to trial by jury, there is no need to rely on Shepard’s
technique for ensuring that the Almendarez-Torres exception
to the jury-trial right genuinely applies. In arguing that the
intervening arrest determination violated the Sixth Amend-
ment, however, Dean runs headlong into this principle.
In Booker, the Supreme Court held that the then-mandatory
Sentencing Guidelines violated the Sixth Amendment since
they allowed a defendant’s sentence to be increased beyond
the maximum allowable by law if the sentencing judge made
certain factual findings. Booker, 543 U.S. at 243-44. The
Court’s solution was to convert the Guidelines from binding
law to an advisory document. Id. at 246. Once the Guidelines
were stripped of legal force, the Sixth Amendment no longer
pertained to them—that, after all, was the reason for the strip-
ping. As we have explained:
Sentencing judges may find facts relevant to deter-
mining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is
treated as advisory and falls within the statutory
maximum authorized by the jury’s verdict. Indeed,
"many individual Guidelines apply higher sentences
in the presence of special facts" and "[i]n many
cases, the sentencing judge, not the jury, will deter-
mine the existence of those facts." That "does not
violate the Sixth Amendment," however, because
"[a]s far as the law is concerned, the judge could dis-
regard the Guidelines and apply the same sentence in
the absence of the special facts." The point is thus
UNITED STATES v. DEAN 7
that the Guidelines must be advisory, not that judges
may find no facts.
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(quoting Rita v. United States, 551 U.S. 338, 352 (2007)).
The Guidelines’ career offender provisions are no less advi-
sory than any other portion. See United States v. Moreland,
437 F.3d 424, 436 (4th Cir. 2006); see also Gall v. United
States, 552 U.S. 38, 49 (2007) (noting that "the abuse-of-
discretion standard of review applies to appellate review of all
sentencing decisions."); Kimbrough v. United States, 552 U.S.
85, 101-08 (2007). The maximum sentence to which Dean
could lawfully have been sentenced was twenty years, regard-
less of whether or not he was a career offender. See 21 U.S.C.
§ 841(b)(1)(C). That being so, Shepard’s Sixth Amendment-
based limitations on the kind of sources a sentencing judge
may consult were not implicated by the enhancement in
Dean’s advisory Guidelines sentence, which, we note,
resulted in a recommended range well below the statutory
maximum.
Dean protests that Shepard has previously been applied in
advisory Guidelines cases. E.g., United States v. Maroquin-
Bran, 587 F.3d 214 (4th Cir. 2009); United States v. Farrior,
535 F.3d 210 (4th Cir. 2008). But those cases do not address
the issue of whether Shepard’s Sixth Amendment limitations
apply to advisory Guidelines sentences. Because those cases
applied Shepard’s statutory rule, and because Dean has dis-
avowed any challenge regarding Shepard’s statutory rule, the
cases do not assist Dean in any way. As to the Sixth Amend-
ment point, the language of Rita and the logic of Booker is
inescapable: because the Sixth Amendment does not apply to
the process of calculating an advisory sentence under the
Guidelines, Shepard’s Sixth Amendment-based evidentiary
restrictions do not apply to that process either.
8 UNITED STATES v. DEAN
B.
Dean’s argument also founders on a second principle enun-
ciated in Rita and Gall, the Supreme Court’s major sentencing
decisions in the wake of Booker. Those cases were clear not
only that the Sentencing Guidelines have been purged of any
Sixth Amendment defect, but that a sentencing court may rely
upon its discretion to fashion the sentence it reasonably
believes most appropriate. Under the regime established in
Rita and Gall, it is not only permissible but indeed critical for
a sentencing court to calculate a defendant’s advisory range
using the fact-finding tools normally available to it.
For one thing, the Guidelines continue to play an important
role in the sentencing process. A district court must begin its
sentencing determination by calculating the Guidelines range,
and this typically requires the judge to make any number of
factual determinations and judgment calls. Rita, 551 U.S. at
351-54. But that is only the beginning. A sentencing court is
not bound by the Guidelines. Id. at 355. Rather, its sentencing
decision must reflect an "individualized assessment based on
the facts presented," an assessment that is entitled to "due def-
erence" from any reviewing court. Gall, 552 U.S. at 51. As
Gall explained, sentencing courts are "in a superior position
to find facts and judge their import" for purposes of determin-
ing the most appropriate sentence for a given defendant since
"[t]he judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains
insights not conveyed by the record." Id. (citation omitted).
In short, under Rita and Gall, sentencing courts are licensed
to find a host of facts and to assign weight and relevance to
those findings as they reasonably see fit. In that context, it
makes little sense to tie their hands artificially when it comes
to the sources they can consult as they go about this discre-
tionary task.
To be sure, a sentencing court’s ability to find facts is not
unlimited. Its fact-finding with respect to prior convictions is
UNITED STATES v. DEAN 9
constrained in two notable ways. First, federal sentencing pro-
ceedings are generally not the appropriate vehicle for mount-
ing collateral attacks on the validity of prior convictions. See
Custis v. United States, 511 U.S. 485, 497 (1994); see also
United States v. Bacon, 94 F.3d 158, 163-64 & n.5 (4th Cir.
1996); USSG § 4A1.2, cmt (n. 6). As the Custis Court noted,
allowing such attacks "would require sentencing courts to
rummage through frequently nonexistent or difficult to obtain
state-court transcripts or records that may date from another
era, and may come from any one of the 50 States," and would
"delay and impair the orderly administration of justice." Cus-
tis, 511 U.S. at 496-97. In this case, however, Dean does not
raise such a challenge.
Second, under the "categorical approach" to assessing prior
convictions, a sentencing court is to look to the legal defini-
tion of the offense rather than the factual record of the defen-
dant’s particular case to ascertain the character of the
defendant’s conduct. Originally developed in the context of
18 U.S.C. § 924(e), the Armed Career Criminal Act
("ACCA"), the categorical approach has been extended to the
career offender provisions under the Guidelines. See United
States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009); United
States v. Diaz-Ibarra, 522 F.3d 343, 352-53 (4th Cir. 2008).
Shepard and Taylor v. United States, 495 U.S. 575 (1991), an
earlier decision from which Shepard sprang, also imposed
evidentiary restrictions on sentencing courts in connection
with the categorical approach. Because of the way some
offenses are defined, a simple record of conviction in some
situations will be insufficient to establish whether the defen-
dant’s conduct qualifies under the categorical approach. Shep-
ard and Taylor held that when that happens, a sentencing
court may continue to attempt to determine the nature of the
defendant’s prior offense, but only by looking to a specified
set of "conclusive records." Shepard, 544 U.S. at 21.
Shepard and Taylor embraced the categorical approach and
those related evidentiary restrictions out of desire for the
10 UNITED STATES v. DEAN
"avoidance of collateral trials." Shepard, 544 U.S. at 23. Their
aim was to protect sentencing courts from becoming forums
in which the prosecution and defense attempt to reproduce the
defendant’s earlier trial. See Taylor 495 U.S. at 601-02. In an
attempt to evoke these concerns, Dean raises the specter of
"mini-trials," arguing that to allow the magistrate’s orders to
be used to establish his arrest date and the date he committed
the offense would mire sentencing courts in complex proceed-
ings that Shepard and Taylor sought to avoid.
This argument, however, misses the mark. As we have
noted, sentencing courts find facts all the time. Even before
reaching the question of whether the Guidelines recommenda-
tion is the most appropriate in a given case, a court must make
a variety of factual determinations under the Guidelines. A
judge calculating a Guidelines range, for instance, must deter-
mine whether a defendant was involved in criminal activity
involving five or more participants or that "was otherwise
extensive," and if so, must give the defendant a four-level
offense-level increase if it considers him "an organizer or
leader" of the activity and a three-level increase if it considers
him a "manager or supervisor." See USSG § 3B1.1. As this
example (and many others) demonstrate, simply determining
the date of a particular event is hardly the most laborious sort
of determination a sentencing court has to make. The ques-
tions involved in the "intervening arrest" inquiry involve dis-
crete and objective facts rather than qualitative assessments of
the sort at issue in Shepard and Taylor and in a great many
Guidelines determinations. Were this a diving or a figure-
skating contest, the degree of difficulty might be pegged at no
more than two or three on a scale of ten.
Most importantly, what Dean overlooks is that neither the
date he was arrested for a crime nor the date he committed
one bears upon the nature of the conduct underlying his prior
convictions. The categorical approach is a way of classifying
the activity involved in prior offenses, not an across-the-board
prohibition on learning any detail in some way related to a
UNITED STATES v. DEAN 11
prior conviction. This distinction is one our circuit has repeat-
edly noted. In United States v. Martinez-Melgar, 591 F.3d
733 (4th Cir. 2010), for instance, we rejected the defendant’s
invocation of Shepard and Taylor, noting that those cases
concerned the "substantive content of a prior conviction"
rather than the existence of one. Id. at 739. And in Thompson,
an ACCA case, we distinguished our earlier decision in
United States v. Washington, 404 F.3d 834 (4th Cir. 2005),
noting that the question of whether a set of offenses were
committed on "separate occasions" did not entail the kind of
"wide-ranging, fact-intensive findings" necessary to deter-
mine whether a prior offense presented "a serious potential
risk of physical injury to another" under USSG
§ 4B1.2(a)(2)), which had been the issue in Washington.
Thompson, 421 F.3d at 286.
A policy that seeks to avoid re-litigating what the defendant
did or did not do in a series of events that indisputably
resulted in a criminal conviction is one thing. It seems entirely
sensible to declare that one trial is enough, at least where a
fairly accurate proxy for those issues is available. But when
the question does not bear upon the character of the acts for
which the defendant was tried, this concern does not come
into play.
The scheme envisioned in Rita and Gall is one in which
sentencing courts have enhanced authority and flexibility in
determining sentences. Limitations like the categorical
approach circumscribe their activities to an extent, but they
cannot be allowed to reach beyond their legitimate bounds if
sentencing discretion is to be taken seriously. To accept
Dean’s Shepard claim in this case would require us to cut
back on Booker, Gall, and Rita. This we cannot and will not
do.
III.
Across the range of its major sentencing decisions, the
Supreme Court has labored to bring a sense of balance to the
12 UNITED STATES v. DEAN
sentencing process. Common to cases like Rita and Gall,
Shepard and Taylor, Custis and others, is a desire to facilitate
sentencing—to help district courts fulfill their mission of
determining the most appropriate sentence in each case before
them. Part of this means removing obstacles to judicious sen-
tencing, giving district courts discretion to find facts and exer-
cise their judgment as they reasonably see fit. And part of this
means disallowing inquiries that threaten to mire sentencing
courts in complicated questions tangential to the task at hand.
The point is to facilitate the sentencing process, not to sink it.
For the reasons noted, the fact found by the district court in
this case clearly advanced the cause of facilitation.
The district court thus did not err in consulting the records
of an intervening arrest offered by the government. Those
records indicated that Dean was arrested for his first drug fel-
ony before he committed his second, and Dean offered no evi-
dence whatsoever to rebut that conclusion. The district court
therefore was justified in its finding that Dean’s prior offenses
were separated by an intervening arrest and thus that Dean
qualified for a career offender enhancement in his advisory
Guidelines calculation. Accordingly, the judgment of the dis-
trict court is hereby
AFFIRMED.