United States v. Thomas

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 23, 2009 Decided July 21, 2009

No. 07-3080

UNITED STATES OF AMERICA ,
APPELLANT /CROSS-APPELLEE

v.

ANTHONY THOMAS,
APPELLEE/CROSS-APPELLANT

Consolidated with No. 07-3085

Appeals from the United States District Court
for the District of Columbia
(No. 03cr00458-01)

SuzAnne C. Nyland, Assistant United States Attorney,
argued the cause for the appellant/cross-appellee. Jeffrey A.
Taylor, United States Attorney, and Roy W. McLeese III and
George P. Eliopoulos, Assistant United States Attorneys, were
on brief.
A. J. Kramer, Federal Public Defender, argued the cause for
the appellee/cross-appellant. Michelle M. Peterson, Assistant
Federal Public Defender, entered an appearance.
 2

Before: GINSBURG , HENDERSON and KAVANAUGH , Circuit
Judges.1
Opinion for the Court filed by Circuit Judge HENDERSON .
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge GINSBURG .
KAREN LE CRAFT HENDERSON , Circuit Judge: Appellant
and cross-appellee Anthony Thomas was convicted of one count
of unlawful possession of a firearm by a felon in violation of 18
U.S.C. § 922(g)(1). The district court sentenced Thomas to 188
months’ incarceration under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), which mandates a 15-year
minimum sentence for a felon in possession with three previous
convictions of qualifying offenses. In an earlier appeal, we
affirmed Thomas’s conviction but remanded for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005).
The district court resentenced Thomas to 82 months, holding the
Government had not proved on remand that Thomas qualified
for sentencing under the ACCA. Thomas again appeals his
conviction and the Government appeals the court’s failure to
sentence Thomas under the ACCA. We affirm Thomas’s
conviction because he raises the same arguments as in his earlier
appeal and our decision in the first appeal is the law of the case.
We vacate the district court’s sentence on two alternative
grounds. First, because Thomas could have challenged the
ACCA determination in the first appeal—but did not—the law
of the case doctrine precluded the district court from revisiting
its determination at resentencing. Alternatively, we conclude
that the Government adequately established that Thomas
committed the requisite predicate offenses under the ACCA “on
occasions different from one another,” 18 U.S.C. § 924(e)(1), so

1
Circuit Judge Kavanaugh concurs in the opinion except for Part
II.B.1.
 3

as to subject Thomas to the ACCA’s mandatory 15-year
sentence.
I.
On the morning of August 28, 2003, Deputy U.S. Marshals
arrested Thomas at his apartment in the District of Columbia for
violating parole. During a “protective sweep” of the apartment
following the arrest, the officers recovered a semi-automatic
pistol, an assault rifle, a shotgun and ammunition. Thomas was
subsequently indicted on one count of felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He moved to
suppress the guns and ammunition, as well as incriminating
statements he had made following his arrest, as fruits of an
unlawful search. The district court denied the motion and a jury
convicted Thomas. At sentencing, the court concluded that,
based on the Presentence Investigation Report (PSR), Thomas
was subject to a mandatory minimum sentence of 15 years under
the ACCA because he had “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),
namely, two convictions in D.C. Superior Court for distributing
cocaine and attempted possession of cocaine with intent to
distribute (PWID) and one conviction in the United States
District Court for the Eastern District of Virginia for assault.
Accordingly, on May 18, 2004, the court sentenced Thomas to
188 months’ imprisonment under the ACCA and the U.S.
Sentencing Guidelines (Guidelines), to be followed by five years
of supervised release, and imposed a $100 special assessment.
Thomas appealed the conviction, asserting the guns and
ammunition should have been suppressed because the arresting
officers had insufficient reason to believe he was in the
apartment when they entered and because the protective sweep
was unnecessary and its scope too broad. See United States v.
Thomas, 429 F.3d 282, 285-88 (D.C. Cir. 2005). We rejected
these arguments, holding that “the officers’ entry into Thomas’
 4

apartment was in all respects lawful” and that “the search of
Thomas’ bedroom was a lawful ‘protective sweep.’ ” Id. at 286,
288. Thomas also appealed his sentence on the ground the
district court improperly treated the Guidelines as mandatory
rather than advisory. See id. at 288. We agreed and vacated his
sentence, remanding “for resentencing in accordance with . . .
Booker.” United States v. Thomas, 179 Fed. App’x 60, 60 (D.C.
Cir. 2006).
On remand, the district court rejected the Government’s
assertion that the law of the case doctrine prevented it from
reconsidering whether Thomas was an armed career criminal
subject to the ACCA, citing two grounds. First, the court
concluded that our “remand under Booker permits—indeed,
requires—reconsideration” of both the court’s “reliance on the
PSR alone to find . . . that [Thomas] qualified as an Armed
Career Criminal” and “sentencing under a mandatory Guidelines
system.” Sentencing Memorandum, United States v. Thomas,
Cr. No. 03-458, at 4 (D.D.C. June 25, 2007) (Sentencing
Memorandum) (Gov’t App. 63). Second, the court found that
the remand fell within one of the “ ‘three narrow exceptions to
the law-of-the-case doctrine,’ ” namely, when “ ‘there is an
intervening change in the controlling law.’ ” Id. (quoting United
States v. Patterson, 194 Fed. App’x 687, 690 (11th Cir. 2006)).
In the court’s view, the United States Supreme Court had
effected such a change in Shepard v. United States, 544 U.S. 13
(2005). Accordingly, the court revisited its sentence and
determined that, contrary to its previous ruling, Thomas was not
an armed career criminal because the government had not
offered competent evidence to establish that the two D.C.
predicate drug convictions were “committed on occasions
different from one another,” as the ACCA requires, 18 U.S.C.
§ 924(e)(1). In particular, the court determined that under
Shepard, the indictments charging the two offenses, which
identified their dates as, respectively, April 17, 1991 and
September 18, 1991, did “not necessarily establish that the dates
 5

were found by the jury or admitted to by Defendant.”
Sentencing Memorandum at 10 (Gov’t App. 69). The court then
sentenced Thomas to 82 months’ imprisonment.
Thomas appealed his conviction, again challenging the
denial of his suppression motion, and the Government appealed
the sentence, contesting the district court’s decision not to
sentence Thomas under the ACCA.
II.
We address separately Thomas’s and the Government’s
appeals.
A. Thomas’s Appeal
Thomas advances the same arguments for reversing his
conviction that he did in his first appeal, again contending the
district court erred in denying his suppression motion. His
appeal is therefore barred by the law of the case doctrine, which
holds that “ ‘[w]hen there are multiple appeals taken in the
course of a single piece of litigation, . . . decisions rendered on
the first appeal should not be revisited on later trips to the
appellate court.’ ” LaShawn A. v. Barry, 87 F.3d 1389, 1393
(D.C. Cir. 1996) (en banc) (quoting Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir.), cert. denied, 516
U.S. 865 (1995)). Under the doctrine, we will not “reconsider
issues already decided ‘in the absence of extraordinary
circumstances such as where the initial decision was “clearly
erroneous and would work a manifest injustice.” ’ ” Id. (quoting
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (quoting Arizona v. California, 460 U.S. 605, 618 n.8
(1983))). Thomas asserts we should revisit our decision
disposing of his first appeal because it “was clearly erroneous on
each issue.” Thomas Br. at 22. We see no error, however—
much less clear error—to justify disturbing our earlier decision.
As we held in Thomas’s first appeal, the district court correctly
concluded that the officers were entitled to enter Thomas’s
 6

apartment to serve the arrest warrant and that they discovered
the contraband in the course of a permissible protective sweep
after his arrest. We therefore treat our previous decision as the
law of the case.
B. Government’s Appeal
The Government asserts the district court erred in refusing
to sentence Thomas as an armed career criminal. We agree and
vacate the district court’s sentence on each of two, alternative
grounds.
1.
First, on remand the district court was bound by its previous
unappealed ACCA determination as the law of the case, under
which “the same issue presented a second time in the same case
in the same court should lead to the same result.” LaShawn A.,
87 F.3d at 1393 (emphasis in original). Thus, a “ ‘legal decision
made at one stage of litigation, unchallenged in a subsequent
appeal when the opportunity to do so existed, [governs] future
stages of the same litigation, and the parties are deemed to have
waived the right to challenge that decision at a later time.’ ”
Crocker, 49 F.3d at 739 (quoting Williamsburg Wax Museum,
Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir.
1987)); see also United States v. Whren, 111 F.3d 956, 959-60
(D.C. Cir. 1997) (adopting “waiver approach” that “upon a
resentencing occasioned by a remand, unless the court of
appeals expressly directs otherwise, the district court may
consider only such new arguments or new facts as are made
newly relevant by the court of appeals’ decision—whether by
the reasoning or by the result”). Because Thomas failed in his
first appeal to challenge the district court’s determination that he
should be sentenced under the ACCA, the decision to sentence
him thereunder is the law of the case binding on remand. It is
for this reason that we remanded only “for resentencing in
accordance with United States v. Booker, 543 U.S. 220
 7

(2005)”—that is, to determine whether “the sentence would
have been lower had the district court not applied the Sentencing
Guidelines as though they were mandatory,” as the record
suggested. Remand Judgment, 179 Fed. App’x at 60. We did
not, as the district court inferred, remand for the court to
reconsider its reliance on the PSR findings in sentencing
Thomas under the ACCA. See Sentencing Memorandum at 4
(Gov’t App. 63). Nor was there an intervening change in the
law between the first sentencing and the second to disturb the
binding effect of the former as the law of the case. See Crocker,
49 F.3d at 740 (“While final judgments normally may not be
re-examined merely because of an intervening change in the
law, such a change will support a departure from the previously
established law of the case.” (citing Women’s Equity Action
League v. Cavazos, 906 F.2d 742, 752 n.14 (D.C. Cir.1990)))
(internal citations omitted) (emphasis in original). The district
court believed the Supreme Court’s decision in Shepard
represented such a change in the controlling law from the
Court’s earlier decision in Taylor v. United States, 495 U.S. 575
(1990).
In Taylor, the Court addressed when a prior
“burglary”—one of the “violent felon[ies]” identified in section
924(e)(2)(B)—qualifies as one of the three required predicate
offenses triggering the ACCA’s mandatory minimum sentence.
The Court first determined that the Congress used “burglary” in
“the generic sense,” that is, as containing the same elements that
are required under most states’ criminal codes. 495 U.S. at 598.2
The Court next considered whether the sentencing court may
look beyond the statutory definition of a prior offense and
consider other evidence of the particular defendant’s prior

2
These elements are: “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a
crime.” Taylor, 495 U.S. at 598.
 8

crime. Id. at 600. Rejecting an approach that looks only to the
statutory definitions, the Court concluded that in a particular
case, a prior offense such as burglary qualifies under section
924(e) “if either its statutory definition substantially corresponds
to ‘generic’ burglary, or the charging paper and jury
instructions actually required the jury to find all the elements of
generic burglary in order to convict the defendant.” Id. at 602
(emphasis added).
In Shepard, the Court applied Taylor’s modified categorical
approach to a guilty plea and rejected the Government’s attempt
to rely on police reports and criminal complaint applications to
prove the defendant’s predicate offenses constituted generic
burglary. Adapting Taylor’s standard to the plea context, the
Court held that the determination whether a guilty plea to an
offense defined in a “nongeneric” statute necessarily admits to
the elements of the generic offense “is limited to the terms of the
charging document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” 544 U.S. at 26
(emphasis added). Whether or not Shepard’s application of
Taylor may be characterized as a “change” from Taylor itself,
Shepard did not effect a change in the controlling law in our
Circuit at the time of Thomas’s sentencing.
When the district court sentenced Thomas, on May 18,
2004, our Circuit law already provided authority for Thomas to
challenge the district court’s making ACCA findings based on
the PSR. Our Circuit law was then clear that the Government
bears the responsibility “ ‘to produce such documents as are
necessary’ ” to establish that a prior offense qualifies as a
predicate for sentence enhancement. United States v.
Richardson, 161 F.3d 728, 738 (D.C. Cir. 1998) (quoting United
States v. Hill, 131 F.3d 1056, 1065 n.10 (D.C. Cir. 1997)). In
Richardson, we identified as “legitimate and reliable” such
 9

documents as “a charging document, a plea agreement, or a
previous presentence investigation report adopted by [the
previous sentencing court].” Id. We expressly rejected the
sentencing court’s reliance, however, on the “potentially
unreliable second-hand information” contained in the
Richardson PSR. Id. at 737-38 (rejecting use of PSR to
establish “crime of violence” for enhancement under U.S.S.G.
§ 2K2.1(a)(4)(A)); see also Hill, 131 F.3d at 1062 (“The court
may consider only the statutory definitions of the offenses of
which the defendant has been convicted; . . . . Alternatively, the
sentencing court can consider the charging documents and jury
instructions.” (citing Taylor, 495 U.S. at 600-02)). Because
Thomas could have invoked Richardson to challenge the district
court’s reliance on the PSR, the holding in Shepard did not
change the controlling law. Accordingly, when Thomas failed
to so object either at sentencing or on the appeal thereof, the
district court’s original ACCA determination became the law of
the case.
2.
Second, even assuming it was permitted to revisit Thomas’s
ACCA status, the district court erred in concluding the
Government presented insufficient evidence that the two
predicate drug offenses were “committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). The two indictments
offered in the second sentencing satisfied the evidentiary
requirements set out in Taylor and Shepard.
In both Taylor and Shepard, the Court authorized a
sentencing judge to rely on the “charging paper” or “charging
document” and this is precisely what the Government produced
as evidence Thomas committed the two drug offenses on
different occasions. See also United States v. de Jesus Ventura,
565 F.3d 870, 874-75 (D.C. Cir. 2009) (under Shepard, “the
charging document, the plea agreement, and the transcript of the
plea colloquy . . . offer the same certainty about the conviction
 10

as the hypothetical jury instructions discussed in Taylor”). The
Government presented the indictments from the two drug
offense prosecutions, each of which set out the date of the
particular charged offense of conviction: April 17, 1991 for
distributing cocaine and September 18, 1991 for attempted
PWID. These charging indictments sufficed under Taylor and
Shepard to establish the dates the two previous drug offenses
were committed—and thus “necessarily” establish the offenses
were committed on occasions different from one another. Cf. In
re Sealed Case, 548 F.3d 1085, 1089-93 (D.C. Cir. 2008)
(ACCA standard applied to career offender provision and
criminal information examined to determine if jury convicted
defendant of “crime of violence”). Further, that Thomas was
convicted of two separate drug distribution offenses occurring
fully five months apart manifests the offenses were “separate
and distinct criminal episodes” and therefore were “committed
on occasions different from one another,” United States v.
Jackson, 113 F.3d 249, 253 (D.C. Cir. 1997) (internal quotation
and alteration omitted).3 See United States v. Johnson, 130 F.3d

3
At oral argument, Thomas narrowly parsed Shepard’s language
to argue that, notwithstanding the specific separate dates recited in the
indictments, it is “possible” that Thomas in fact pleaded to attempted
PWID based on conduct that occurred on April 17, 1991, the same
date as his distribution offense, and therefore he did not “necessarily
admit[]” to committing a second offense on a different occasion. See
Shepard, 544 U.S. at 24. The Supreme Court, however, has
sanctioned reliance on “charging” documents such as an indictment
with the apparent presumption that they accurately reflect the facts of
a conviction or plea. See id., 544 U.S. at 16 (“We hold . . . that a later
court determining the character of an admitted burglary is generally
limited to examining 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 20-21 (“details” of “charging document” can support generic
nature of predicate felony in jury case or plea). And in this case, there
 11

1420, 1430-31 (10th Cir. 1997) (“[D]rug offenses committed at
‘distinct, different times’ will be treated as separate predicate
offenses for purposes of § 924(e)(1) ” (quoting United States v.
Maxey, 989 F.2d 303, 307 (9th Cir. 1993))); see also United
States v. Kelley, 981 F.2d 1464, 1473-74 (5th Cir. 1993) (two
cocaine deliveries fourteen days apart found “separate criminal
transactions”); United States v. Samuels, 970 F.2d 1312, 1315
(4th Cir. 1992) (same with two drug offenses on consecutive
days); United States v. Roach, 958 F.2d 679, 683-84 (6th Cir.
1992) (same with three drug offenses within fifteen days);

is no reason to suspect otherwise. At his first sentencing, Thomas did
not dispute that the two drug offenses were committed on the dates
specified in the indictment. In fact, at the 2004 sentencing his counsel
admitted as much when he stated: “The two cases are . . . an
attempt[ed] possession with intent to distribute and a distribution that
are separated by less than a year, and in the exact same area
according to the information that’s provided in the presentence report,
I think even the same block; involves the same drug, and the same
societal victim.” Tr. of Sentence Hearing, United States v. Thomas,
Cr. No. 03-458, at 4 (May 18, 2004) (Thomas App. at 143) (emphasis
added). Notwithstanding Thomas recasts the highlighted language as
“simply a recitation of information in the PSR,” Reply Br. at 33—it is
plainly an acknowledgment that Thomas committed the crimes on
separate occasions, as required under the ACCA. His counsel’s
subsequent reference to the presentence report was offered to support
his additional factual assertion that the crimes were committed “in the
exact same area,” a circumstance essential to his argument that the two
crimes “should be considered related and considered as one conviction
rather than two.” Tr. of Sentence Hearing at 4 (Thomas App. at 143).
Judge Ginsburg is wrong, then, when he states that “so far as the
record reveals, the defendant never admitted the dates of the offenses.”
Concurring Op. at 2.
 12

United States v. McDile, 914 F.2d 1059, 1061-62 (8th Cir. 1990)
(same with three drug sales within eight days).4
For the foregoing reasons, we affirm Thomas’s judgment of
conviction but vacate his sentence and remand for the district
court to resentence him as an armed career criminal.
So ordered.

4
Taylor based its evidentiary limitation on congressional intent.
Between Taylor and Shepard, the Supreme Court concluded that the
Sixth Amendment requires “that any fact . . . sufficient to raise the
limit of the possible federal sentence must be found by a jury”—not
a judge—“other than [the fact of] a prior conviction.” Shepard, 544
U.S. at 24 (citing Jones v. United States, 526 U.S. 227, 243, n.6
(1999); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Notwithstanding the Supreme Court’s express exception for proving
the fact of a prior conviction (which Shepard did not disavow),
Thomas contends that “it violates the Sixth Amendment for a
sentencing court to make a finding under ACCA that prior offenses
were committed on occasions different from one another.” Reply Br.
at 35 (initial capitals altered). We agree with the many other circuits
that have rejected that argument as inconsistent with current Supreme
Court precedent. See, e.g., United States v. Thompson, 421 F.3d 278,
281, 284-87 (4th Cir. 2005); United States v. Jurbala, 198 Fed. App’x
236, 237 (3d Cir. 2006); United States v. White, 465 F.3d 250, 254
(5th Cir. 2006) (per curiam); United States v. Wilder, 161 Fed. App’x
545, 552 (6th Cir. 2006); United States v. Browning, 436 F.3d 780,
780-81 (7th Cir. 2006); United States v. Harris, 447 F.3d 1300, 1303-
05 (10th Cir. 2006); United States v. Santiago, 268 F.3d 151, 154-57
(2d Cir. 2001).
 GINSBURG, Circuit Judge, concurring in part: I concur in
the judgment and in the opinion for the court except with
respect to the alternative holding in Part II.B.2 that the
indictments constitute sufficient evidence that Thomas’s two
drug offenses were committed on separate occasions. In
reaching that issue, Judge HENDERSON ∗ has disregarded the
“well-established principle ... that normally the [c]ourt will
not decide a constitutional question if there is some other
ground upon which to dispose of the case.” Nw. Austin Mun.
Utility Dist. No. One v. Holder, No. 08-322, 2009 WL
1738645, at *9 (U.S. June 22, 2009) (quoting Escambia
County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam));
see also In re Sealed Case, 829 F.2d 50, 55 (D.C. Cir. 1987).
Having held the law of the case precluded the district court
from reconsidering its determination that Thomas qualified
for sentencing under the ACCA, the court need not — and
therefore should not — resolve the constitutional question
whether the Sixth Amendment bars a sentencing judge from
making a factual finding — based solely upon the dates listed
in the indictments — that the relevant offenses were
committed on separate occasions.

The question whether the sentencing judge may rely
solely upon an indictment to determine the date of a prior
offense without running afoul of the Sixth Amendment or of
the teaching of Shepard v. United States, 544 U.S. 13 (2005),
is more difficult than the court lets on. Under the Sixth
Amendment a judge may find only “the fact of a prior
conviction,” Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); the defendant is entitled to a jury finding for any “fact
about a prior conviction,” Shepard, 544 U.S. at 25 (plurality
opinion) (emphases added). Specifically in order to ensure

∗
Because Judge KAVANAUGH does not join the court’s holding that
the law of the case precluded the district court’s new ACCA
determination, only Judge HENDERSON reaches the constitutional
question unnecessarily.
 2
that a sentencing judge does not make a finding under the
ACCA that infringes upon the defendant’s Sixth Amendment
right to a jury, the Court in Shepard “adhere[d] to the
demanding requirement that any sentence under the ACCA
rest on a showing that a prior conviction ‘necessarily’
involved (and a prior plea necessarily admitted) facts equating
to” that finding. Id. at 24.

Shepard does provide that a judge asked to sentence a
defendant under the ACCA may consult the charging
documents from the defendant’s prior convictions, id. at 16,
but only in order to determine whether those convictions
necessarily required a finding relevant to ACCA status —
here, a finding with respect to the date of the offense. See
United States v. De Jesus Ventura, 565 F.3d 870, 874–75
(D.C. Cir. 2009) (describing Shepard inquiry as “look[ing] to
the charging document ... to determine whether the defendant
‘necessarily admitted’” the ACCA-qualifying facts). In this
case it is far from clear the indictments establish that
Thomas’s convictions required a finding with respect to the
date of each offense; as far as this record shows, neither
Thomas’s plea to one offense nor the jury’s judgment of
conviction on the other entailed a finding as to whether the
offense occurred on the date charged. Today the court
nonetheless unnecessarily concludes a conviction based upon
an indictment that specifies the date on which — or, more
accurately, “on or about” which — the charged offense took
place “necessarily” establishes the date when the offense
occurred, Ct. Op. at 10, even if the date was not material to
the question of guilt and even if, so far as the record reveals,
the defendant never admitted the dates of the offenses. The
court’s inference that the date was “necessarily” established
by the judgment would not pass muster even in a civil
context. See United States v. Andrews, 479 F.3d 894, 901
(D.C. Cir. 2007) (Williams, J., concurring) (analogizing the
 3
Shepard inquiry to issue preclusion and noting “a focus on
preclusion ... helps clarify which facts may appropriately be
drawn from the charging documents and jury instructions”).