13‐2930‐cr
United States v. Dantzler
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2013
No. 13‐2930‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
ZEPHANIAH DANTZLER,
Defendant‐Appellant,
________
Appeal from the United States District Court
for the Eastern District of New York.
No. 12 CR 568‐1 (NGG) ― Nicholas G. Garaufis, Judge.
________
SUBMITTED: JUNE 27, 2014
DECIDED: NOVEMBER 14, 2014
________
Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.
________
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
imposes a 15‐year mandatory minimum sentence on violators who
have three previous convictions for a violent felony or a serious
drug offense “committed on occasions different from one another.”
The question presented is whether, in determining whether crimes
2 No. 13‐2930‐cr
were committed “on occasions different from one another,” a court
at sentencing is limited to examining only materials approved by the
Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and
Shepard v. United States, 544 U.S. 13, 16 (2005).
We hold that, in determining whether crimes were committed
“on occasions different from one another” for purposes of applying
the ACCA, a court is limited to examining only materials approved
by the Supreme Court in Taylor and Shepard. We also hold that a
court may not rely upon a Presentence Report (“PSR”) in
determining whether crimes were committed “on occasions different
from one another” for purposes of applying the ACCA, where the
relevant facts described in the PSR were not derived from sources
determined to be consistent with Taylor and Shepard.
Accordingly, we VACATE the sentence of the United States
District Court for the Eastern District of New York (Nicholas G.
Garaufis, Judge) and REMAND for resentencing in accordance with
this opinion.
________
DAVID A. LEWIS, Federal Defenders of New York,
Inc., New York, NY, for Appellant Zephaniah
Dantzler.
JO ANN M. NAVICKAS (Kevin M. Trowel, on the
brief), Assistant United States Attorneys, for
Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, NY, for
Appellee United States of America.
3 No. 13‐2930‐cr
________
JOSÉ A. CABRANES, Circuit Judge:
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
imposes a 15‐year mandatory minimum sentence on violators who
have three previous convictions for a violent felony or a serious
drug offense “committed on occasions different from one another.”
The question presented is whether, in determining whether crimes
were committed “on occasions different from one another,” a court
at sentencing is limited to examining only materials approved by the
Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and
Shepard v. United States, 544 U.S. 13, 16 (2005).
We hold that, in determining whether crimes were committed
“on occasions different from one another” for purposes of applying
the ACCA, a court is limited to examining only materials approved
by the Supreme Court in Taylor and Shepard. We also hold that a
court may not rely upon a Presentence Report (“PSR”) in
determining whether crimes were committed “on occasions different
from one another” for purposes of applying the ACCA, where the
relevant facts described in the PSR were not derived from sources
determined to be consistent with Taylor and Shepard.
Accordingly, we VACATE the sentence of the District Court
and REMAND for resentencing in accordance with this opinion.
4 No. 13‐2930‐cr
BACKGROUND
Defendant‐appellant Zephaniah Dantzler (“Dantzler”) was
convicted, in the United States District Court for the Eastern District
of New York (Nicholas G. Garaufis, Judge), upon his plea of guilty,
of one count of possession of a firearm as a felon in violation of 18
U.S.C. § 922(g)(1).
At Dantzler’s plea colloquy in the District Court, the
Government stated that it would seek to prove at trial that he had
been previously convicted of three violent felonies committed on
three different occasions, as required by the ACCA, 18 U.S.C.
§ 924(e), and Dantzler expressly waived the right to a jury trial on
the issue of his “prior felony convictions.” Appellant’s App. 33.
Section 924(e)(1) states, in relevant part, that “[i]n the case of a
person who violates [the substantive provision] of this title and has
three previous convictions by any court . . . for a violent felony or a
serious drug offense, or both, committed on occasions different from
one another, such person shall be fined under this title and
imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
The PSR prepared for sentencing found that, in 2006, at the
age of 18, Dantzler had been convicted of three robberies that
rendered him an armed career criminal subject to a mandatory
minimum sentence of 15 years’ imprisonment pursuant to the
ACCA. The three predicate convictions described in the PSR were as
follows: (1) a conviction in the New York State Supreme Court in
Brooklyn for a robbery committed on February 18, 2006 in Brooklyn,
5 No. 13‐2930‐cr
at 11:00 a.m., in which Dantzler and a co‐defendant stole a debit card
from the victim using a box cutter; (2) a conviction in the New York
State Supreme Court in Manhattan for a robbery committed on the
subway in Manhattan on February 19, 2006, together with two co‐
defendants, using a box cutter and a bladed knife; and (3) a
conviction in the New York State Supreme Court in Queens for a
robbery also committed on February 19, 2006, on the subway in
Queens, with two unnamed individuals, using a box cutter and a
bladed knife. Dantzler was arrested for the February 19, 2006
subway robbery that took place in Manhattan on the day it occurred.
While under pretrial detention at the correctional facility on Rikers
Island, New York, Dantzler was arrested on March 2, 2006 for the
February 19, 2006 robbery that took place in Queens. While still in
custody, he was arrested on August 17, 2006 for the February 18,
2006 robbery that took place in Brooklyn.
In a letter addressed to Judge Garaufis, dated July 16, 2013,
counsel for Dantzler objected to the PSR’s characterization of the
second and third offenses as crimes committed ”on occasions
different from one another,” and argued that the two February 19,
2006 robberies “represent a single criminal episode.” Appellant’s
App. 83 (emphasis supplied). The letter also provided the following
additional information, which was not included in the PSR, taken
from the New York criminal complaints, which were attached:
In Mr. Dantzler’s case, he was arrested on February 19,
2006 at 3:30 a.m. at the Manhattan City Hall subway
station for a robbery that took place on a number 6
6 No. 13‐2930‐cr
subway train about 10 minutes earlier. While he was in
pretrial detention for that offense, he was arrested at
Rikers Island on March 2, 2006, for another robbery that
also took place on February 19, 2006, at 1:45 a.m. on an
eastbound number 7 train in Queens. . . . Although the
offenses involved different victims, both robberies were
committed by Mr. Dantzler and the same two co‐
defendants, both robberies took place in the New York
City subway system, and both robberies took place
approximately an hour and a half apart. As noted in the
Presentence Report, the modus operandi was the same for
both robberies. There also does not appear to have been
any interruption in the criminal activity the three
undertook for the night.
Appellant’s App. 83‐84. The Government responded in a letter dated
July 23, 2013. Both letters relied upon the case of United States v.
Rideout, 3 F.3d 32 (2d Cir. 1993). In Rideout, we were faced with the
same question—whether two offenses, which formed two of the
three predicates required for consideration as an armed career
criminal under the ACCA, occurred on separate occasions. In that
case, we concluded that “offenses committed against different
victims separated by at least twenty to thirty minutes and twelve to
thirteen miles qualify as offenses ‘committed on occasions different
from one another.’” Id. at 35 (quoting the ACCA, § 924(e)).
At the sentencing hearing on July 25, 2013, Judge Garaufis, an
experienced and careful adjudicator, began by noting the materials
he reviewed for purposes of sentencing: the original PSR and two
addenda to the PSR, the second of which responded to Dantzler’s
7 No. 13‐2930‐cr
objections in his July 16, 2013 letter to Judge Garaufis and its three
attachments, one of which included the New York criminal
complaints sworn to by attesting police officers for the two February
19, 2006 subway robberies; a July 16, 2013 letter of the defense to the
probation officer objecting to the PSR and attaching the same New
York criminal complaints; and the Government’s July 23, 2013
response letter with three exhibits attached. Dantzler raised no
objection to the Court’s consideration of any of these materials.
During her statement at sentencing, Dantzler’s counsel reiterated
many of the facts contained in Dantzler’s sentencing submission.
Agreeing with the Government that Rideout was “on all fours”
with the facts before it, the District Court first held that, pursuant to
Rideout’s teaching, Dantzler’s offenses were committed “on
occasions different from one another” such that the ACCA was
triggered. Appellant’s App. 44. The District Court then stated that
the applicable Sentencing Guidelines range for Dantzler’s offense
was 168 to 210 months, but was subject to the ACCA statutory
minimum of 180 months. The District Court then sentenced him,
principally, to 180 months’ imprisonment and 5 years of supervised
release. Had Dantzler not been subject to a Guidelines enhancement
as an armed career criminal under § 924(e), his total offense level
would have been 23, rather than 30 under the ACCA, see PSR ¶ 17,
which would have made the applicable sentencing range 92‐115
months’ imprisonment.
This timely appeal followed.
8 No. 13‐2930‐cr
DISCUSSION
On appeal, Dantzler argues that, in determining whether
crimes were committed “on occasions different from one another”
for purposes of applying the ACCA, a court is limited to examining
only sources approved by the Supreme Court in Shepard v. United
States, 544 U.S. 13, 16 (2005)—namely, the charging document,
written plea agreement, transcript of plea colloquy, or analogous
materials. Because the District Court’s conclusion in this case rested
upon sources not allowable under Shepard, and, Dantzler asserts,
without those inappropriate sources there was insufficient proof that
his convictions occurred on “occasions different from one another,”
he argues that his sentence should be vacated and the case
remanded for resentencing based solely upon Shepard‐approved
sources.
Dantzler concedes that he did not raise this claim in the
District Court, and accordingly, we review for plain error. “This
standard is met when ‘(1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights, which in the ordinary case
means it affected the outcome of the district court proceedings; and
(4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Vilar, 729 F.3d
62, 70 (2d Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258
(2010)).
9 No. 13‐2930‐cr
A.
Dantzler argues that two decisions of the Supreme Court
establish considerable restrictions on the materials that a sentencing
court may consider in determining whether three predicate offenses
under the ACCA were committed “on occasions different from one
another.” In Taylor v. United States, 495 U.S. 575, 577‐79 (1990), the
defendant challenged the sentencing court’s determination that two
of his predicate offenses for burglary under Missouri law constituted
“violent felonies” for purposes of the ACCA. Taylor argued that he
would have committed a “violent felony” for purposes of the ACCA
only if he had committed “generic burglary” of a building or
dwelling. The Missouri statute, however, criminalized a significantly
broader range of activity, including the “non‐generic” burglarizing
of boats, tents, and other non‐buildings. Id. at 599.
The question before the Supreme Court was “whether the
sentencing court in applying § 924(e) must look only to the statutory
definitions of the prior offenses, or whether the court may consider
other evidence concerning the defendant’s prior crimes.” Id. at 600.
The Court rejected an approach that required the sentencing court
“to engage in an elaborate factfinding process regarding the
defendant’s prior offenses,” id. at 601, and instead held that, in
determining whether a prior conviction was for a “violent felony”
under the ACCA, a sentencing court should look only to: (1) the fact
of conviction; (2) the statutory definition of the prior offense; and, in
cases where the defendant was convicted by a jury, to (3) the
10 No. 13‐2930‐cr
criminal indictment or information, together with (4) the jury
instructions. Id. at 602.
In a later case, Shepard v. United States, the Supreme Court was
faced with the question of how to apply Taylor when the predicate
offenses for sentencing under the ACCA stemmed from a guilty plea
rather than a jury verdict. 544 U.S. 13, 19 (2005). The predicate
offenses at issue there, as in Taylor, were for burglary in a state
where the burglary statute encompassed both “generic” and “non‐
generic” burglary, and the sentencing court was required to
determine if Shepard’s burglary convictions were “violent
felon[ies]” under the ACCA. Id. at 15‐16. In particular, the Shepard
Court addressed whether a sentencing court could look to police
reports or complaint applications in determining whether Shepard’s
guilty pleas for burglary had been based upon conduct that would
constitute “generic burglary,” in which case they could be properly
considered as ACCA predicate offenses. Id. at 16.
The Shepard Court first held, as a threshold matter, that “guilty
pleas may establish ACCA predicate offenses.” Id. at 19. It then
concluded that “a later court determining the character of an
admitted burglary [for purposes of sentencing under the ACCA] 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 16. This was based upon the same “pragmatic”
concerns expressed in Taylor, namely, a sentencing court’s need to
identify ACCA predicate offenses while “avoid[ing] subsequent
11 No. 13‐2930‐cr
evidentiary enquiries into the factual basis for the earlier
conviction.” Id. at 20.
Justice Souter, writing for a plurality of the Shepard Court,1
also placed the decision within the line of cases preceding Shepard
that greatly diminished the scope of a court’s factfinding authority at
sentencing. Id. at 24. He noted that the Court’s opinion in Taylor
“anticipated the very rule later imposed for the sake of preserving
the Sixth Amendment right, that any fact other than a prior
conviction sufficient to raise the limit of the possible federal sentence
must be found by a jury, in the absence of any waiver of rights by
the defendant.” Shepard, 544 U.S. at 24 (referring to the rule
announced by Jones v. United States, 526 U.S. 227 (1999), and Apprendi
v. New Jersey, 530 U.S. 466 (2000)). The Court explicitly excluded
from this limitation the fact of a defendant’s prior conviction,
pursuant to its earlier decision in Almendarez‐Torres v. United States,
523 U.S. 224 (1998). More recently, in Alleyne v. United States, the
Court held that “[a]ny fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found
beyond a reasonable doubt.” 133 S. Ct. 2151, 2155 (2013).
1 Justice Souter authored the Court’s opinion with respect to its primary holding
that, for purposes of sentencing under the ACCA, a court 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. However, Justice Souter’s discussion contextualizing the holding
within the Court’s recent sentencing jurisprudence, described above, was written only on
behalf of a plurality of the Court.
12 No. 13‐2930‐cr
B.
Dantzler’s primary argument on appeal is that the Shepard
limitations on sources to be consulted in determining the character
of an offense should also apply to district court inquiries into
whether crimes were committed “on occasions different from one
another.” We agree. Although Taylor and Shepard involved the
question of whether predicate offenses under the ACCA were
“violent felonies,” the reasoning underlying those decisions applies
with equal force to the analysis of whether the offenses were
committed “on occasions different from one another.” 18 U.S.C.
§ 924(e)(1).
First, as a matter of statutory interpretation, there is nothing in
the statute’s construction to suggest that Congress intended to limit
the “violent felony” inquiry for predicate offenses, but not to limit a
court’s inquiry with respect to whether offenses were committed on
“occasions different from one another.” Nor is there any indication
by the Court in Shepard that its conclusion was informed by a unique
characteristic of the “violent felony” analysis that would not apply
to the parallel “on occasions different from one another” inquiry.
Furthermore, the majority in Shepard reiterated its
commitment, first expressed in Taylor, to “respect[ ] Congress’s
adoption of a categorical criterion that avoids subsequent
evidentiary enquiries into the factual basis for the earlier
conviction.” 544 U.S. at 20. The Court in Taylor explicitly determined
that, in enacting the ACCA, Congress had not meant “to adopt an
13 No. 13‐2930‐cr
approach that would require the sentencing court to engage in an
elaborate factfinding process regarding the defendant’s prior
offenses.” 495 U.S. at 601. Indeed, “the Shepard Court was apparently
concerned about the prospect of a sentencing court
making any factual finding not necessarily implied by the prior
conviction—irrespective of how clearly the factual finding was
established.” United States v. Rosa, 507 F.3d 142, 153 (2d Cir. 2007).
The Shepard Court explicitly rejected the Government’s desire for a
“wider evidentiary cast” that would include police reports and
“documents submitted to lower courts even prior to charges.” 544
U.S. at 21.
The same concerns expressed by the Court in Shepard with
regard to “violent felonies” are implicated when the inquiry
concerns the separateness of the predicate crimes. Indeed, these
concerns are perhaps even more salient here because the facts relied
upon in determining whether offenses are committed on “different
occasions”—the date, time, victim identity, or location of the
offense—are rarely elements required for conviction, and hence,
might not be included in jury instructions or placed before the court
(much less admitted by a defendant) during a plea colloquy. Absent
reliance on Taylor‐ or Shepard‐approved sources, such as a charging
paper,2 jury instruction, or plea colloquy, a sentencing judge would
2 We note that, although Shepard used the words “charging documents” in listing
materials acceptable for a sentencing court to rely upon, 544 U.S. at 16, in this Circuit, a
document’s mere characterization as a “charging document” does not end the inquiry.
For example, where the predicate offense is a state offense to which the defendant
pleaded guilty, the defendant may not have specifically admitted all of the factual
14 No. 13‐2930‐cr
necessarily have to reconstruct the conduct underlying a conviction,
which might require in‐depth examination of the trial record for
each predicate offense, or a similarly broad evidentiary inquiry that
Taylor and Shepard have decidedly foreclosed. See, e.g., Taylor, 495
U.S. at 601.
Additionally, limiting the “on occasions different from one
another” analysis to Taylor and Shepard materials avoids potential
constitutional problems associated with affording broad factfinding
powers to a sentencing court in evaluating ACCA predicate
offenses. In Shepard, the plurality noted:
[T]he dispute raises the concern underlying Jones and
Apprendi: the Sixth and Fourteenth Amendments
guarantee a jury standing between a defendant and the
power of the State, and they guarantee a jury’s finding of
any disputed fact essential to increase the ceiling of a
potential sentence. . . . The rule of reading statutes to avoid
serious risks of unconstitutionality therefore counsels us to
limit the scope of judicial factfinding on the disputed
generic character of a prior plea, just as Taylor constrained
judicial findings about the generic implication of a jury’s
verdict.
544 U.S. at 25‐26 (internal citation omitted).
allegations contained in a “charging document” such as a Bill of Particulars. See Rosa, 507
F.3d at 155 (“[W]e do not think that every document properly classified as a charging
document in a state case to which a defendant pleads guilty is ipso facto probative on the
issue of whether the defendant necessarily pleaded guilty to” the facts therein.).
15 No. 13‐2930‐cr
Indeed, our precedent makes clear that a sentencing judge’s
determination of whether ACCA predicate offenses were committed
“on occasions different from one another” is no different, as a
constitutional matter, from determining the fact of those convictions.
In United States v. Santiago, the defendant argued that, pursuant to
Apprendi, any fact relevant to imposition of the ACCA mandatory
minimum—namely, convictions for three violent felonies or drug
offenses committed on occasions different from one another—must
be charged in the indictment and found by a jury in order to be
considered by a sentencing court. 268 F.3d 151, 153 (2d Cir. 2001). He
also tried to distinguish the fact of conviction from the “different
occasions” analysis, arguing that, even if a sentencing judge could
permissibly determine the fact of conviction, a jury must decide the
“different occasions” question. We rejected that argument, holding
that “the separateness of the convictions is not a fact which is
different in kind from the types of facts already left to the sentencing
judge by Almendarez‐Torres and Apprendi . . . . In short, we
read Apprendi as leaving to the judge, consistent with due process,
the task of finding not only the mere fact of previous convictions but
other related issues as well.” Id. at 156.
In other words, we held in Santiago that the question of the
separateness of predicate offenses is intertwined with the fact of
conviction, and because a sentencing judge was authorized to find
the fact of conviction under Almendarez‐Torres and Apprendi, he
could also find that such convictions were separate. Here, we take
the logical next step and hold that because, after Shepard, the fact
16 No. 13‐2930‐cr
that a crime constituted a “violent felony” may be established only
through Shepard‐approved materials, so too the question of whether
the convictions were for three separate offenses may also be
answered by looking only to Shepard‐approved materials.
Accordingly, we hold that, in determining whether offenses
were committed “on occasions different from one another” for
purposes of sentencing under the ACCA, a sentencing court is
bound by the source limitations established by Taylor and Shepard.3
3 This holding is consistent with that of many of our sister Circuits. See, e.g.,
United States v. Boykin, 669 F.3d 467, 470‐71 (4th Cir. 2012) (finding plain error in the
district court’s “reli[ance] on the PSR’s factual details of Boykin’s 1980 shootings to make
the judicial finding that the two shootings occurred on separate occasions for ACCA
purposes” because “there is no indication in the PSR itself that the information therein
came from Shepard‐approved sources,” and “the factual details of the encounter are not
typically found in Shepard‐approved sources”); United States v. Sneed, 600 F.3d 1326, 1332
(11th Cir. 2010) (“Based on Shepard, there is simply no distinction left between the scope
of permissible evidence that can be used to determine if the prior convictions are violent
felonies or serious drug offenses or if they were committed on different occasions under
§ 924(e)(1).”); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009) (“[T]he district
court erred in concluding the Government presented insufficient evidence that the two
predicate drug offenses were ‘committed on occasions different from one another’
[because] [t]he two indictments offered in the second sentencing satisfied the evidentiary
requirements set out in Taylor and Shepard.” (internal citation omitted)); United States v.
Fuller, 453 F.3d 274, 279 (5th Cir. 2006) (“To determine whether two offenses occurred on
different occasions, a court is permitted to examine only 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.” (internal quotation
marks omitted)); United States v. Ngo, 406 F.3d 839, 843 (7th Cir. 2005) (“The finding that
[defendant’s] crimes were not consolidated falls within the narrow parameters permitted
by Shepard, i.e., those findings that can be made by resorting only to information with the
conclusive significance of a prior judicial record.” (internal quotation marks omitted));
United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005) (remanding for resentencing
because the court could not “determine whether the district court reviewed judicial
records consistent with Shepard” in conducting the “occasions different” analysis).
17 No. 13‐2930‐cr
In so holding, we acknowledge that, for what is likely a
relatively small number of cases, such as the one before us, in which
the dates of the predicate offenses are not dispositive in determining
whether they were committed “on occasions different from one
another,” the sentencing court’s ability to impose the ACCA
mandatory minimum will depend upon whether the Taylor‐ and
Shepard‐approved materials also contain other facts necessary for
such a determination. Here, where two of the predicate offenses
occurred on the same date, the District Judge was compelled to look
to facts such as the identities of the victims and the times and
locations of the offenses—which, under our clear precedent in
Rideout are precisely the factors rightly considered—in determining
whether the crimes occurred on “occasions different from one
another.” In such a case, it is only if these particular facts are
included in Taylor‐ and Shepard‐approved materials that a sentencing
judge can make the requisite determination. And, as we have held
with regard to the determination of whether predicate offenses were
“violent felonies,” “if such [Shepard‐approved] evidence is not
available, then the government has not met its burden” of
establishing the predicate crimes for the purpose of sentencing
under the ACCA. Rosa, 507 F.3d at 153.
Our acknowledgment echoes the concern animating Justice
O’Connor’s dissent in Shepard, in which she noted that “[a]
defendant’s sentence will now depend . . . on whether those States’
record retention policies happen to preserve the musty written plea
agreements and recordings of ‘plea colloquies’ ancillary to long‐past
18 No. 13‐2930‐cr
convictions.” Shepard, 544 U.S. at 36‐37 (O’Connor, J., dissenting)
(alterations and internal quotation marks omitted). But we are
bound by the Court’s opinions in Taylor and Shepard regarding the
sources that may be consulted for purposes of sentencing under the
ACCA, even if it is unclear whether, in the narrow array of cases
that would require a more in‐depth factual inquiry, those sources
will contain the requisite information.4
C.
Having established that, in determining whether offenses
were committed “on occasions different from one another” for
purposes of sentencing under the ACCA, a court may only utilize
4 For example, the Seventh Circuit faced such a circumstance in Kirkland v. United
States, where the sentencing court consulted only Shepard‐approved materials—“the
charging documents, the judgments, and the plea questionnaires”—to determine
whether a robbery and burglary that occurred on the same date were indeed separate
offenses for purposes of the ACCA. 687 F.3d 878, 881 (7th Cir. 2012). The Court of
Appeals noted generally that, “in practice, this means that if the Shepard‐approved
documents before a district court are equivocal as to whether the offenses occurred on
the same occasion, the ACCA does not apply.” Id. at 889. And indeed, the Court
concluded that the case before it was one of the “exceptional cases,” id. at 891, in which
“‘the factually sparse’ record sheds little light on whether the 1985 offenses occurred on
the same occasion” and therefore those convictions could not support a sentence
imposed under the ACCA, id. at 887. See also Fuller, 453 F.3d at 279‐80 (vacating
defendant’s sentence with regard to the ACCA enhancement, for which two predicate
offenses occurred on the same day, because, “[b]ased on the indictments alone . . . we
cannot determine as a matter of law that the burglaries occurred on different occasions”
and “the record does not contain the written plea agreement, the plea colloquy, or
other Shepard‐approved material that might resolve this question”).
19 No. 13‐2930‐cr
sources consistent with Taylor and Shepard, we now turn to our
consideration of Dantzler’s particular sentence.5
There does not appear to be any dispute that the District
Court relied upon materials that were not of the type specifically
condoned by Taylor or Shepard in making its determination that
Dantzler’s two February 19, 2006 subway robbery convictions were
committed “on occasions different from one another” for purposes
of the ACCA. As we held above, this reliance was error.
The error was also plain. The District Court underscored its
reliance on the PSR, which, when discussing Dantzler’s previous
offenses, explicitly drew upon “[c]ourt records,” “parole records,”
“local presentence report[s],” and “arrest report[s],” PSR ¶¶ 23‐25.6
The District Court also clearly relied upon Dantzler’s sentencing
5 The Government argues that Dantzler has waived the challenge we consider
here, as his counsel relied upon the PSR and criminal complaints in making its argument
to the District Court. However, this argument was not waived. The Supreme Court has
described waiver as the “intentional relinquishment or abandonment of a known right,”
United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)), and courts applying waiver doctrine have focused on strategic, deliberate
decisions that litigants consciously make. Here, there is nothing in the record suggesting
that this was a strategic, calculated decision by Dantzler to introduce facts taken from the
complaints and PSR, and then when it backfired, to seek to “undo” that decision. The
applicability of Shepard was never mentioned in the District Court, nor was there any
discussion of proper and improper materials for the Court to consult; there is no
indication that either side invoked Shepard’s implications in this context, and accordingly,
we cannot conclude that Dantzler waived this argument.
6 We have previously held that state PSRs are not necessarily consistent with
Taylor and Shepard, and the relevant inquiry is whether the facts contained in the state
PSR were “explicitly adopted by the trial judge” or assented to by the defendant when
pleading guilty. Rosa, 507 F.3d at 157 & n.13.
20 No. 13‐2930‐cr
submission, which both discussed and attached the New York
criminal complaints sworn to by attesting police officers, as did the
Government’s submission in response. Reference to these materials
was not specifically condoned by the Court in Taylor or Shepard, and
there is no suggestion that these materials were themselves derived
from materials approved by Taylor or Shepard or that they are
analogs of the types of materials approved by Taylor or Shepard.
Our conclusion that the District Court’s reliance on materials
not permitted by Taylor and Shepard was plain error is intentionally a
limited one. In so holding, we intimate no view as to the
applicability of Taylor and Shepard to cases in which a sentencing
court relied upon a PSR that was derived in whole, or in large part,
from Taylor‐ or Shepard‐approved materials. For example, another
Court of Appeals has held that a “trial judge was entitled to rely
upon the PSR” where it “b[ore] the earmarks of derivation
from Shepard‐approved sources such as the indictments and state‐
court judgments from his prior convictions.” United States v.
Thompson, 421 F.3d 278, 285 (4th Cir. 2005).7
Relatedly, we recognize the possibility that some of the
materials provided as part of the parties’ sentencing submissions or
incorporated into the PSR, which referenced inter alia certain
unidentified “court records,” may in fact be considered analogous to
7
In Thompson, the Fourth Circuit also appeared to rely in part on the fact that the
defendant lodged no objection to use of the PSR, see 421 F.3d at 285, but, as discussed
below, we accord less weight to that circumstance.
21 No. 13‐2930‐cr
those approved by Taylor and Shepard or may be otherwise
consistent with Taylor and Shepard. At present, we are not in a
position to decide this issue definitively because neither party has
presented this argument on appeal, nor is the record sufficient for us
to determine whether the documents were permissible pursuant to
Taylor and Shepard.8 Accordingly, we leave this question to the
determination in the first instance by the District Court on remand,
and emphasize that this opinion should not be construed as
foreclosing an argument by the Government that some of the
materials already in the record are in fact consistent with the
limitations of Taylor and Shepard. Any such determination must be
guided by the Supreme Court’s limitation of reference materials 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 . . .
some comparable judicial record of this information,” Shepard, 544
U.S. at 26—or, in other words, “conclusive records made or used in
adjudicating guilt,” id. at 21. By contrast, reliance on materials akin
to police reports and “documents submitted to lower courts even
prior to charges” has already been explicitly proscribed by the
Supreme Court. Id. at 21‐23. Even though we do not reach the
question of whether all of the materials relied upon by the District
Court in this instance were impermissible, there is no doubt that at
8 As discussed above, the Government chose instead to present arguments that
Taylor and Shepard do not apply to the determination of whether predicate offenses were
committed on separate occasions, and that Dantzler waived this argument by providing
the District Court with some of these materials, both of which we have rejected here.
22 No. 13‐2930‐cr
least some of those materials fall outside the limited set sanctioned
by Taylor and Shepard, and therefore the District Court’s use thereof
constitutes plain error.
This error also affected Dantzler’s substantial rights. The
District Court explicitly derived from these non‐Shepard approved
materials the facts it used to determine that the two February 19,
2006 robberies were committed “on occasions different from one
another,” for the purposes of the ACCA. Judge Garaufis stated at
sentencing, “[i]f [Dantzler] had gone from car to car of the No. 6
train and robbed a bunch of people, all right, that I could consider [ ]
one incident but he decided to travel on different subway lines at
different times the same night and that’s really the problem is that
[Rideout] seems to tie my hands.” Appellant’s App. 44‐45. This
factual determination in turn triggered the enhancement in
Dantzler’s applicable Guidelines imprisonment range from 92‐115
months to 168‐210 months, as well as the 15‐year (180‐month)
mandatory minimum sentence under the ACCA. Judge Garaufis
acknowledged the severity of the enhanced ACCA sentence, noting
“I’m not enthusiastic about this construction, all right? Personally, in
the interest of justice. But . . . I’m compelled to follow Rideout . . . .”
Id. at 46.
Finally, the error affects the fairness, integrity, or public
reputation of judicial proceedings within the meaning of the
Supreme Court’s plain error jurisprudence. As the Fourth Circuit
has held in a similar circumstance, “[s]uch improper factfinding as
occurred here strikes at the core of our judicial system’s protections
23 No. 13‐2930‐cr
for criminal defendants.” Boykin, 669 F.3d at 472. Holding otherwise
would allow to stand a 15‐year sentence—predicated on error—that
far exceeds the 115‐month maximum sentence that would otherwise
have been recommended by the Guidelines.
The error is not mitigated, as the Government contends, by
Dantzler’s having invoked the very facts relied upon by the District
Court in defendant’s submission to the Court in advance of
sentencing. In United States v. Reyes, the PSR identified the defendant
as a career offender under United States Sentencing Guidelines §
4B1.1 based upon its determination that he had several convictions
“involving a crime of violence and a controlled substance offense.”
691 F.3d 453, 455 (2d Cir. 2012). The defendant did not object to any
of the facts in the PSR, including its description of the conduct that
resulted in his conviction for one of the predicate offenses;
moreover, defense counsel in Reyes affirmatively represented at the
sentencing hearing that the defense had “no objections to the facts or
the Guidelines calculations” stated in the PSR. Id. at 456 (internal
alterations omitted). In the absence of any objection, Reyes was
sentenced in accordance with the enhancement for career offenders.
Id.
On appeal in Reyes, we were faced with the question of
whether “the district court was [ ] entitled to rely on the PSR’s
uncontested description of [defendant’s] pre‐arrest conduct that
resulted in his conviction for battery of a law enforcement officer to
determine whether the battery was a ‘crime of violence’” for
sentencing purposes. Id. at 456. Relying on Shepard, we held that “a
24 No. 13‐2930‐cr
sentencing court may not rely on a PSR’s description of a
defendant’s pre‐arrest conduct that resulted in a prior conviction to
determine that the prior offense constitutes a ‘crime of violence’
under U.S.S.G. § 4B1.2(a)(1),9 even where the defendant does not
object to the PSR’s description,” and that doing so was plain error.
Id. at 459 (emphasis supplied).
We are persuaded that a similar holding applies here, even
where Dantzler not only failed to object to the facts in the PSR, but
supplemented them by providing the New York criminal
complaints, and relied upon them in his sentencing argument. In
Reyes, we reasoned that defendant’s failure to object did not cure the
Government’s failure to submit the proper evidence, nor did it
render the PSR’s description more reliable in establishing the
requisite ACCA predicate. Id. at 458‐60. The same is true here. The
absence of an objection will not relieve the Government of its burden
of proving through Taylor‐ and Shepard‐approved sources that the
ACCA enhancement applies.
Accordingly, because there is no suggestion that the materials
relied upon by the District Court at sentencing were of the type
approved by Taylor or Shepard, it was plain error for the District
Court to have relied upon them in making its determination that
Dantzler’s two February 19, 2006 robbery convictions occurred “on
occasions different from one another,” and we are thus required to
9 Although Reyes involved an enhancement under the Sentencing Guidelines
rather than the ACCA, its reliance on Shepard, Taylor, and Rosa, all ACCA cases, make it
applicable to the instant case.
25 No. 13‐2930‐cr
remand for resentencing. Upon remand, if the Government renews
its request to the District Court that it apply the mandatory
minimum sentence prescribed by the ACCA, it must submit
materials consistent with Taylor and Shepard to demonstrate that
Dantzler’s two robbery convictions were committed on separate
occasions.
CONCLUSION
To summarize, we hold that:
(1) In determining whether crimes were committed “on
occasions different from one another” for purposes of
applying the ACCA, a court is limited to examining only the
types of materials approved by the Supreme Court in Taylor v.
United States, 495 U.S. 575, 577‐79 (1990), and Shepard v. United
States, 544 U.S. 13, 16 (2005).
(2) For cases in which the dates of the predicate offenses do not
conclusively support a determination that they were
committed “on occasions different from one another,” the
sentencing court’s ability to impose the ACCA mandatory
minimum will depend upon whether the Taylor‐ and Shepard‐
approved materials contain other facts necessary for such a
decision.
(3) In determining that ACCA predicate offenses were committed
on separate occasions, it is plain error for the sentencing court
to draw relevant facts from materials that were neither
26 No. 13‐2930‐cr
condoned by the Court in Taylor or Shepard nor determined to
be either derived from approved materials or analogs of
approved materials.
(4) Where the relevant facts described in a PSR were not derived
from sources consistent with Taylor and Shepard, a sentencing
court may not rely upon the PSR in determining whether
crimes were committed “on occasions different from one
another,” even where a defendant does not object to the PSR’s
factual content about the ACCA predicate offenses, or relies
upon such facts in his submissions and argument to the
sentencing court.
For the reasons set out above, we VACATE the sentence and
REMAND to the District Court for resentencing in accordance with
this opinion.