United States v. Dante Sheffield

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 20, 2016 Decided August 12, 2016

No. 12-3013

UNITED STATES OF AMERICA,
APPELLEE

v.

DANTE SHEFFIELD,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00213-1)

William Francis Xavier Becker, appointed by the court,
argued the cause and filed the briefs for appellant.

Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Elizabeth
Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: MILLETT, Circuit Judge, and GINSBURG and
SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

Opinion concurring in part and concurring in the
judgment filed by Senior Circuit Judge SENTELLE.
 2
MILLETT, Circuit Judge: A jury convicted Dante
Sheffield of unlawful possession of 100 grams or more of
phencyclidine (PCP) with intent to distribute, in violation of
21 U.S.C. § 841(a) and (b)(1)(B)(iv). Based in part on its
application of a career-offender enhancement, the district
court sentenced Sheffield to 230 months in prison.

Sheffield challenges both his conviction and sentence,
arguing that the district court erred in (i) denying his motion
to suppress the PCP discovered during the search of a car in
which he was a passenger, (ii) refusing to suppress statements
he made following his arrest but before he received his
Miranda warnings, (iii) admitting evidence of a decade-old
drug conviction, (iv) denying his post-trial motion for
independent testing of the drug evidence, and (v) applying the
career-offender enhancement at sentencing. We affirm the
judgment of conviction, but we reverse the district court’s
imposition of the career-offender enhancement, vacate
Sheffield’s sentence, and remand to the district court for
resentencing.

I

A

On the evening of June 8, 2011, Metropolitan Police
Department Detectives Christopher Smith and Michael
Iannacchione, along with two other officers, were driving in
an unmarked police car through the 2300 block of 11th Street,
N.W., in Washington, D.C. Detective Smith spotted Dante
Sheffield, whom he and the other officers recognized from an
earlier PCP investigation in the area. The officers then
observed Sheffield and an unknown male enter a car with
tinted windows. One of the officers told Detective Smith that
“he wanted to at least make a contact just to see who the
[un]identified * * * male was.” Supp. App. 7. Before they
 3
did so, however, they witnessed the car “pull[] * * * slightly
forward and ma[ke] a sharp left without using a turn signal
into an alleyway[.]” Id. at 8. The officers followed closely
behind the car, which then made a right turn out of the alley
“without using its signal.” Id. At that point, the officers
initiated a traffic stop.

All four officers approached the vehicle, two on each
side of the car. After asking the occupants to roll down the
windows because of the tinting, Detective Smith observed a
woman, Brande Dudley, in the driver’s seat, Sheffield in the
passenger seat, and the unknown male, Anthony Grant, in the
rear seat. Detective Smith later testified that he had detected a
“faint” but “fresh” smell of marijuana on the passenger side.
Supp. App. 10. In addition, Smith noticed “numerous air
fresheners all [over] the vehicle,” “on the top, the bottom, the
back, the front, all over the car.” Id. After asking for
Dudley’s license, the officers asked the three occupants to get
out of the vehicle.

Officers then searched the inside of the vehicle. Upon
unlocking and opening the armrest console, Detective
Iannacchione was immediately met with “a strong chemical
odor” and found an eight-ounce lemon juice bottle, “which
through [their] investigation was consistent with that of
storing and packaging of PCP in large quantities.” Supp.
App. 11–12. Detective Iannacchione opened the cap and
noticed “a strong chemical [odor] consistent with that of
PCP.” Id. at 12. At that point, the officers placed all three
individuals under arrest.

Sheffield then asked Detective Smith “[w]hat are we
getting arrested for?” Supp. App. 12. Smith responded that
the arrest was for “[w]hat was in the car,” to which Sheffield
responded “[e]verything is mine.” Id. After another detective
 4
began speaking privately with Brande Dudley, Sheffield
“became more irritated and started yelling toward their
direction for her not to say nothing, that they didn’t have a
strong case, they got nothing on us, don’t say anything.”
Hearing Tr. 15–16 (Sept. 16, 2011).

When the officers searched Grant incident to his arrest,
they found a plastic bag in his right sock containing
approximately 0.75 grams of marijuana.

B

1

The government indicted Sheffield on one count of
unlawful possession with intent to distribute 100 grams or
more of PCP, 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iv). Before
trial, Sheffield filed motions to suppress the physical evidence
of the PCP and his statements made during his arrest.

The district court denied Sheffield’s motions to suppress.
First, the court held that Dudley’s two turns made without
signaling gave the officers probable cause to believe she had
committed a traffic violation. The court rejected Sheffield’s
argument that the traffic violations were mere pretext for a
stop and search targeted at him because “the officers’
subjective motivations do not render unconstitutional a search
that is otherwise justified by objective circumstances.” J.A.
70.

Second, the district court held that the search of the
vehicle was lawful, citing inter alia “the smell of marijuana
and the unusual number of air fresheners in the car[.]” J.A.
74. The court further held that the officers’ search of the
locked armrest console was proper because there was a “‘fair
probability’ that [the defendant] might have hidden additional
 5
drugs not necessary for his current consumption in areas out
of plain sight, including the trunk of a car” or an armrest
console. Id. at 75 (quoting United States v. Turner, 119 F.3d
18, 20 (D.C. Cir. 1997)).

Third, with respect to Sheffield’s statements that
everything in the car “is mine” and that “they [don’t] have a
strong case, they’ve got nothing on us,” the district court ruled
that Miranda warnings were not required for their admission.
The court explained that the statements “were not made in
response to a question posed by the officers, nor did the
officers take any action to which defendant Sheffield’s
response was required or expected.” J.A. 77.

The district court separately granted the government’s
motion to admit a record documenting Sheffield’s conviction
in 2002 for possession with intent to distribute PCP, pursuant
to Federal Rule of Evidence 404(b).

2

At trial, Detectives Smith, Iannacchione, and a third
officer involved in the stop and arrest all testified to the
circumstances of the traffic stop, the discovery of the PCP,
and Sheffield’s statements at the time of his arrest. In
addition, the jury heard testimony from the law enforcement
officials who transported, stored, and tested the PCP found in
the car, including “two arresting officers, who observed and
seized the lemon juice bottle at the scene of the traffic stop;
three other officers who established the chain of custody of
the lemon juice bottle, and detailed their handling, storage,
and documentation of the evidence; and a DEA forensic
chemist, who testified as to his testing of the PCP evidence.”
J.A. 132. The jury learned that photographs were taken of the
lemon juice bottle and that the quantity and weight of the
liquid was measured. Id. In addition, the jury heard that,
 6
because a DEA regulation prohibits the agency from
accepting more than 28.35 grams of PCP for testing, Officer
Joseph Abdalla “separated approximately one ounce of the
drug evidence into a vial and gave it to [the DEA chemist]”
for testing. Id. at 133. The remaining PCP was never tested,
though it was introduced at trial. The jury subsequently found
Sheffield guilty of possessing with intent to distribute 100 or
more grams of PCP.

Following trial, Sheffield filed a “motion to test drugs not
submitted to DEA.” J.A. 121. He argued that he wanted the
test “to ensure that the drugs introduced at trial are the same
drugs seized on June 8, 2011, and to ensure that the
measurements performed by the Metropolitan Police are
accurate.” Id. at 123.

Treating it as a motion for a new trial in light of newly
discovered evidence under Federal Rule of Criminal
Procedure 33, the district court denied the motion. The court
explained that testing the remaining liquid would not lead to
new evidence that could produce an acquittal because (i) five
officers “testified as to the smell, seizure, documentation,
field testing, and storage of the drug evidence,” and Sheffield
never argued that such testing was erroneous or that the
witnesses were not credible, J.A. 136–137; (ii) measurement
of the PCP six months after Sheffield’s arrest would
“provide[] minimal probative value” because PCP evaporates
over time, id. at 137; and (iii) testing the remaining PCP
would not address whether the drugs presented at Sheffield’s
trial were the same drugs seized at his arrest, id. at 138.

Sheffield was sentenced to 230 months of imprisonment
and 96 months of supervised release. In calculating that
sentence, the district court applied a career-offender
enhancement under the United States Sentencing Guidelines.
 7
II

Sheffield first challenges the admission of the PCP
discovered during the search of the car. We decide de novo
whether the police had probable cause both to stop the car and
to search it. See, e.g., United States v. Burroughs, 810 F.3d
833, 839 (D.C. Cir. 2016). However, we review the district
court’s fact findings for clear error, giving “due weight to
inferences drawn from those facts and to the court’s
determinations of witness credibility.” United States v.
Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (quotation
marks omitted).

A

Given the district court’s factual findings, we hold that
the officers had probable cause to stop the car in which
Sheffield was riding. “As a general matter, the decision to
stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has
occurred.” Whren v. United States, 517 U.S. 806, 810 (1996).
Even minor violations of traffic law may justify a stop. See,
e.g., id. at 808 (turning without signaling and speeding);
United States v. Williams, 773 F.3d 98, 103 (D.C. Cir. 2014)
(failure to wear a seatbelt).

Here, the officers had probable cause to believe that the
driver of the vehicle had violated a mandatory traffic
regulation because the driver twice failed to signal a turn, in
contravention of D.C. Municipal Regulations, Title 18
§ 2204.3. Section 2204.3 provides that “[n]o person shall turn
any vehicle * * * from a direct course or move right or left
upon a roadway without giving an appropriate signal * * * if
any other traffic may be affected by the movement.” In this
case, the district court found that Dudley, the driver of the car
in which Sheffield was riding, first “turn[ed] sharply into an
 8
alley without using a turn signal,” and then after leaving the
alley “ma[de] another right turn without a turn signal” when
another car was behind her. J.A. 63, 69. Under Whren, those
violations of D.C. traffic law provided probable cause to stop
the vehicle, see 517 U.S. at 808–809, 819.

Sheffield does not deny that those traffic infractions
occurred, but argues that their use by the police was mere
pretext for the officers’ true motivation, which was to stop
him. That no traffic citation was ever issued, Sheffield
argues, is “clearly indicative of the intent to target Dante
Sheffield via this ever so slight traffic violation.” Pet. Br. 29.

Binding precedent forecloses that argument. The test for
probable cause is an objective one, focusing on whether the
stop was reasonable. See Whren, 517 U.S. at 811–813.
Accordingly, “the constitutional reasonableness of traffic
stops [does not] depend[] on the actual motivations of the
individual officers involved,” even when those motivations
are “admitted.” Id. at 813–814.

That means that, contrary to Sheffield’s argument,
“ulterior motives [cannot] invalidate police conduct that is
justifiable on the basis of probable cause to believe that a
violation of law has occurred.” Whren, 517 U.S. at 811; see
also United States v. Washington, 559 F.3d 573, 575 (D.C.
Cir. 2009) (traffic stop for running a stop sign was reasonable
notwithstanding evidence of “aggressive traffic patrols” that
“use[d] routine traffic stops to try to detect and prevent drug
and gun crimes”). Indeed, in United States v. Bookhardt, 277
F.3d 558 (D.C. Cir. 2002), we upheld a stop even though the
officers did not have probable cause to stop the defendant for
the reason they gave—that the defendant was driving with an
expired license, id. at 564—because the officers as an
objective matter did have probable cause to stop the defendant
 9
for a reason they did not give—reckless driving, id. at 565–
566.

Accordingly, the two undisputed signaling violations
committed in front of the officers’ car provided an objectively
reasonable basis for the officers to believe that the driver had
violated the traffic laws, and that in and of itself provided
probable cause to stop Dudley’s car.

B

We likewise hold that, given the district court’s factual
findings, probable cause existed to search the car after the
stop.

1

To begin with, the government argues that Sheffield lacks
Fourth Amendment “standing” to challenge the search of the
vehicle because he was just a passenger in a car that did not
belong to him. But that argument is forfeited because the
government failed to raise it in district court.

To be clear, Fourth Amendment “standing” is not really a
“standing” inquiry at all. Ordinarily in federal cases,
“standing” refers to the jurisdictional requirement that a
plaintiff have a sufficient stake in the outcome of the case to
be entitled to litigate it. See Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014). Standing, in that
context, is a critical component of the Constitution’s case-or-
controversy requirement, and as such may not be waived or
forfeited. See United States v. Cotton, 535 U.S. 625, 630
(2002) (“[D]efects in subject-matter jurisdiction require
correction regardless of whether the error was raised in
district court.”).
 10
Fourth Amendment “standing,” by contrast, has nothing
to do with jurisdiction. Fourth Amendment standing instead
limits the assertion of Fourth Amendment rights to those who
have an individualized expectation of privacy in the searched
property: “[S]uppression of the product of a Fourth
Amendment violation can be successfully urged only by those
whose rights were violated by the search itself, not by those
who are aggrieved solely by the introduction of damaging
evidence.” Alderman v. United States, 394 U.S. 165, 171–
172 (1969). In other words, “Fourth Amendment
jurisprudence * * * does not countenance the assertion of
another’s right to be free from unreasonable searches and
seizures.” United States v. Caicedo-Llanos, 960 F.2d 158,
161–162 (D.C. Cir. 1992); see also Plumhoff v. Rickard, 134
S. Ct. 2012, 2022 (2014) (“Fourth Amendment rights are
personal rights which may not be vicariously asserted.”)
(quotation marks and alterations omitted).

So understood, Fourth Amendment standing is merely an
aspect of the substantive merits of a Fourth Amendment
claim, inquiring whether the party invoking the Amendment
has a privacy interest that was invaded. As the Supreme
Court has explained, it would serve no “useful analytical
purpose to consider this principle a matter of standing, distinct
from the merits of a defendant’s Fourth Amendment claim.”
Rakas v. Illinois, 439 U.S. 128, 138–139 (1978); see id. at 140
(The “definition of [Fourth Amendment] rights is more
properly placed within the purview of substantive Fourth
Amendment law than within that of standing.”).

As a non-jurisdictional principle of substantive law,
Fourth Amendment “standing” is subject to ordinary rules of
waiver and forfeiture, as a number of circuits have held. See
United States v. Golson, 743 F.3d 44, 55 n.9 (3d Cir. 2014);
United States v. Moss, 963 F.2d 673, 676 (4th Cir. 1992);
 11
United States v. Price, 54 F.3d 342, 345–346 (7th Cir. 1995);
United States v. Dewitt, 946 F.2d 1497, 1499 (10th Cir.
1991); see also United States v. Gonzales, 79 F.3d 413, 419
(5th Cir. 1996) (government forfeits Fourth Amendment
standing argument where defendant provides facts in district
court supporting an inference of standing and government did
not raise the issue); United States v. Noble, 762 F.3d 509,
527–528 (6th Cir. 2014) (government may forfeit Fourth
Amendment standing argument, but appeals court may review
argument for plain error).

Two decades ago, this court indicated otherwise,
allowing the government to raise a Fourth Amendment
standing objection for the first time on appeal. In United
States v. Caicedo-Llanos, this court held that “we are
powerless to rule on Fourth Amendment rights which do not
belong to the parties before us,” 960 F.2d at 162. Two other
circuits also ruled that Fourth Amendment standing could be
raised for the first time on appeal. See United States v.
Bouffard, 917 F.2d 673, 677 (1st Cir. 1990); United States v.
Smith, 621 F.2d 483, 489 n.3 (2d Cir. 1980). 1

Since those decisions, the Supreme Court’s ruling in
Minnesota v. Carter, 525 U.S. 83 (1998), intervened and
“expressly rejected” treating Fourth Amendment standing like
jurisdictional standing, making clear that the question of a

1
The Eleventh Circuit appears to have had conflicting precedent on
the issue. Compare United States v. Gonzalez, 71 F.3d 819, 827
n.18 (11th Cir. 1996) (“[S]ince the government declined to press
this standing issue before the district court, we conclude that this
issue has been waived.”), with United States v. Braithwaite, 709
F.2d 1450, 1453–1454 (11th Cir. 1983) (addressing issue despite
the government’s failure to “challenge [the defendant’s] standing to
assert a violation of his fourth amendment rights at the district court
level”).
 12
defendant’s reasonable expectation of privacy must be
analyzed like a substantive merits issue, id. at 87.

Carter thus confirms our jurisdiction to decide this case
on the merits because Fourth Amendment standing is merely
a merits inquiry. Beyond that, the dispute over the
government’s right to raise Sheffield’s “standing” argument
for the first time on appeal is of no practical consequence in
this case. As Caicedo-Llanos recognized, defendants always
bear the burden of establishing that the government violated a
privacy interest that was protected by the Fourth Amendment,
960 F.2d at 162. Here, Sheffield has failed in that task
because probable cause existed for the search. 2

2

While the Fourth Amendment generally requires the
police to obtain a warrant for a search, motor vehicles are
different both because of their mobility and the government’s
extensive regulation of their use. See Pennsylvania v. Labron,
518 U.S. 938, 940 (1996) (noting that an automobile’s “ready
mobility” and its “pervasive regulation” justify an
“automobile exception to the Fourth Amendment’s warrant
requirement”) (quotation marks omitted). Accordingly,
officers generally may search a car if it “is readily mobile and
probable cause exists to believe it contains contraband.”
United States v. Maynard, 615 F.3d 544, 567 (D.C. Cir. 2010)
(quotation marks omitted). “If probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of
2
One other circuit has continued to hold that the government need
not obey ordinary argument-preservation rules when it comes to
Fourth Amendment standing, but has done so precisely because it is
the defendant’s burden to establish the invasion of a protected
expectation of privacy. See United States v. Paopao, 469 F.3d 760,
764 (9th Cir. 2006).
 13
every part of the vehicle and its contents that may conceal the
object of the search.” United States v. Ross, 456 U.S. 798,
825 (1982).

In this case, the smell of marijuana, in conjunction with
other evidence of drug use, provided probable cause to
believe the vehicle contained drug contraband, which in turn
supported a search of the car’s compartments. In United
States v. Turner, 119 F.3d 18 (D.C. Cir. 1997), we held that
“the smell of burnt marijuana emanating from the car, * * *
pieces of torn cigar paper arrayed around [the defendant], and
[a] ziplock bag of green weed material found on the floor
behind [the] seat” justified a search “elsewhere in the car,
including its trunk.” Id. at 20. Such evidence “establish[ed] a
fair probability that [the defendant] might have hidden
additional drugs not necessary for his current consumption in
areas out of plain sight, including the trunk of the car.” Id.
(quotation marks omitted).

In this case, the district court found that one officer
smelled the “faint” scent of “fresh marijuana,” and saw an
abnormally large number of air fresheners throughout the car,
which in the officers’ experience was consistent with efforts
to disguise narcotics odors. J.A. 73. Finding no clear error in
those fact findings, we hold that the officers had probable
cause. See United States v. Ortiz, 669 F.3d 439, 445 (4th Cir.
2012) (holding that “the presence of multiple air fresheners in
[a] vehicle” was a relevant factor in establishing probable
cause to search a vehicle). In addition, that evidence
“establish[ed] a fair probability that [an occupant] might have
hidden additional drugs not necessary for his current
consumption in areas out of plain sight,” Turner, 119 F.3d at
20, justifying the search of the armrest console. The district
court therefore properly admitted the PCP evidence.
 14
III

Sheffield next challenges the admission into evidence of
his statement to police officers at the time of his arrest that
“[e]verything is mine” in the car and that “they [don’t] have a
strong case, they’ve got nothing on us.” He argues that those
statements should be suppressed because he had not yet
received his Miranda warnings, see Miranda v. Arizona, 384
U.S. 436 (1966). Because the statements were not made
during an interrogation or in response to any police
questioning, however, the protections of Miranda do not
apply, and the statements were lawfully admitted.

“Miranda warnings are required where a suspect in
custody is subjected to interrogation.” United States v.
Vinton, 594 F.3d 14, 26 (D.C. Cir. 2010) (quotation marks
omitted). Sheffield’s statements, however, were not made in
response to any police “interrogation” within the meaning of
Miranda. “Interrogation” is “either express questioning or its
functional equivalent.” Rhode Island v. Innis, 446 U.S. 291,
300–301 (1980). The functional equivalent of express
questioning is “any words or actions on the part of the police
(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Id. The words or
coercive pressure must be “above and beyond that inherent in
custody itself.” Id. at 300.

There is no dispute that Sheffield was not being
questioned at the time of the statements. Rather, unrefuted
testimony establishes that Sheffield himself started talking on
his own, asking “[w]hat are we getting arrested for?” Supp.
App. 12. Detective Smith responded not with a question, but
with the matter-of-fact statement: “[w]hat was in the car.”
 15
Id. Without anything further from the officers, Sheffield then
declared: “Everything is mine.” Id.

So too for Sheffield’s statement that “they [don’t] have a
strong case.” He made that statement after another officer
spoke to Brande Dudley in a separate conversation to which
Sheffield was not even a party.

Sheffield argues that the officer’s statement to Ms.
Dudley that she would be taken back to the station and that
she might lose her vehicle was intended to elicit a response
from Sheffield. Pet. Br. 34. But such a commonplace
explanation given to a third party, which was not made in a
manner designed for Sheffield to even overhear, cannot
amount to an interrogation of Sheffield. In United States v.
Morton, 391 F.3d 274 (D.C. Cir. 2004), after officers arrested
the defendant and while transporting her to the police station,
the defendant “expressed concern over what would happen to
her vehicle,” id. at 275. Officers said “her vehicle would be
impounded,” that “she had been arrested for a serious
charge,” and that “she might not be getting out as quickly as
she thinks.” Id. In response, the defendant said “her lawyer
would help her beat the charge, and when she did get out, she
would be back down in the same area riding around with
another gun that she kept at her home.” Id. at 276 (quotation
marks omitted). We held that the officers’ statements—about
impounding the vehicle, her arrest on a serious charge, and
that she “might not be released as quickly as she thought—
were directly responsive to what Morton had said and were
not reasonably likely to elicit an incriminating response.” Id.

That same answer applies here, especially where one of
the officer’s statements was not even made to Sheffield.
Instead, in both instances, it was Sheffield who “initiated the
 16
conversation * * * and concede[d] that [the officer] did not
ask h[im] any questions.” Morton, 391 F.3d at 276.

For those reasons, the statements were not the product of
a custodial interrogation; no Miranda warnings were required;
and the statements were properly admitted at trial.

IV

Sheffield argues that the district court improperly
allowed the government to admit “other crimes” evidence
under Federal Rule of Evidence 404(b). Specifically, he
objects to the jury being told that, “[i]n February 2002,
Defendant Dante Sheffield was convicted of a possession with
intent to distribute Phencyclidine, PCP in the District of
Columbia Superior Court.” Supp. App. 52. We agree that the
district court erred in admitting that evidence, but the error
was harmless.

We review the district court’s decision to admit evidence
under Rules 403 and 404(b) for an abuse of discretion. See
Henderson v. George Washington University, 449 F.3d 127,
132–133 (D.C. Cir. 2006); United States v. Cassell, 292 F.3d
788, 792 (D.C. Cir. 2002).

“Convictions are supposed to rest on evidence relevant to
the crime charged, not on evidence of other, unrelated bad
acts suggesting nothing more than a tendency or propensity to
engage in criminality.” United States v. McGill, 815 F.3d
846, 878 (D.C. Cir. 2016). Consequently, Rule 404(b)
prohibits the admission of “[e]vidence of a crime, wrong, or
other act * * * to prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). However, such
evidence may “be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
 17
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).

In addition to Rule 404(b)’s specific limitations on the
admission of evidence of prior bad acts, “Federal Rule of
Evidence 403 permits a court to exclude otherwise-relevant
evidence ‘if its probative value is substantially outweighed by
a danger of unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.’” McGill, 815 F.3d at 880 (quoting
Fed. R. Evid. 403).

When it comes to evidence of prior drug dealings, we
have recognized that “[a] defendant’s hands-on experience in
the drug trade cannot alone prove that he possessed drugs on
any given occasion.” United States v. Crowder, 141 F.3d
1202, 1208 n.5 (D.C. Cir. 1998). But “it can show that he
knew how to get drugs, what they looked like, where to sell
them, and so forth.” Id. Said another way, “[e]vidence of a
defendant’s experience in dealing drugs * * * may be a
‘brick’ in the ‘wall’ of evidence needed to prove possession.”
Id. Thus, the type of evidence the government introduced
here—that of Sheffield’s prior PCP dealing—would generally
be permissible to show that Sheffield had the requisite
knowledge and intent to possess and distribute the PCP the
officers found in the armrest console.

But even general rules have their limits, and “evidence of
a prior conviction is subject to analysis under Rule 403 for
relative probative value and for prejudicial risk of misuse as
propensity evidence,” Old Chief v. United States, 519 U.S.
172, 182 (1997). In this case, the Rule 404(b) evidence was a
conviction that occurred a decade before the offense conduct
at issue in this case. Moreover, by telling the jury only about
the fact of a decade-old conviction, the evidence bore little
 18
evidentiary relevance to the question of Sheffield’s
knowledge in 2011 about such matters as how to acquire or to
market PCP. Cf. Crowder, 141 F.3d at 1208 n.5. Under those
circumstances, the staleness of this conviction reduces its
probative value such that it is “substantially outweighed” by
the danger of unfair prejudice already inherent in the
admission of prior-bad-act evidence. See United States v.
Bigesby, 685 F.3d 1060, 1065 (D.C. Cir. 2012) (explaining
that the “gap between [a] conviction and the [offense conduct]
limited the conviction’s probative value”); United States v.
Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008) (noting the risk
of unfair prejudice inherent in “the admission of prior
possession-with-intent-to-distribute evidence”). 3

“Wrongly admitted evidence, however, does not always
compel reversal.” McGill, 815 F.3d at 886. The error is
harmless if we “can say that the error did not affect the jury’s
verdict.” United States v. Watson, 171 F.3d 695, 700 (D.C.
Cir. 1999). While Sheffield has failed to make any argument
regarding harmlessness, the burden here is on the government
to show that its error “should not upset the trial court’s
determination.” Shinseki v. Sanders, 556 U.S. 396, 410
(2009); see also United States v. Olano, 507 U.S. 725, 734
(1993) (in a “harmless error” inquiry, “the Government * * *
bears the burden of persuasion with respect to prejudice”).
3
In a supplemental filing with this Court, the government offered
United States v. McCarson, 527 F.3d 170 (D.C. Cir. 2008), as an
example of a decision upholding the admission of a decade-old
conviction for firearm possession under Rule 404(b). Gov’t 7/5/16
Letter at 2. That opinion did not address the staleness of the
conviction. See Cooper Industries, Inc. v. Aviall Services, Inc., 543
U.S. 157, 170 (2004) (“‘Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are not
to be considered as having been so decided as to constitute
precedents.’”) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)).
 19
Admission of the stale conviction was harmless for three
reasons. First, the bad-act evidence “was neither so dramatic
nor compelling as to rivet the jury’s attention on [Sheffield’s]
bad character[.]” United States v. Brown, 597 F.3d 399, 405
(D.C. Cir. 2010). The evidence instead was a single-sentence
paper admission, without any of details of the prior crime
being aired before the jury.

Second, “the district court took caution to guard the space
between the permissible and impermissible inferences by
instructing the jury to consider the evidence only for its
proper purpose.” United States v. Mitchell, 49 F.3d 769, 777
(D.C. Cir. 1995). Here, the district court instructed the jury
both after the earlier drug conviction was admitted at trial and
during the final jury instructions that:

If you find that Mr. Sheffield was previously
convicted of possession with intent to distribute
PCP, you may use this evidence only for the limited
purpose of determining whether the Government has
proved beyond a reasonable doubt that Mr. Sheffield
intended to possess [the] PCP found in this case
knowingly and on purpose and not by mistake or
accident.

You may not use this evidence for any other
purpose. Mr. Sheffield is only on trial for the crimes
charged. You may not use this evidence to conclude
that Mr. Sheffield has a bad character or that he has a
criminal personality. The law does not allow you to
convict a defendant simply because you believe he
may have done bad things not specifically charged as
crimes in this case.
 20
Supp. App. 74–75. And during final jury instructions, the
district court reiterated the purpose of the Rule 404(b)
evidence:

You have heard evidence by way of a stipulation that
Mr. Sheffield was previously convicted of
possession with intent to distribute PCP. * * * You
may use this evidence only for the limited purpose of
determining whether the Government has proved
beyond a reasonable doubt that Dante Sheffield
intended to possess the PCP found in his case
knowingly and on purpose and not by mistake or
accident.

You may not use this evidence for any other
purpose. Dante Sheffield is only on trial for the
crime charged.

You may not use this evidence to conclude that the
defendant has a bad character or that he has a
criminal personality. The law does not allow you to
convict a defendant simply because you believe he
may have done bad things not specifically charged as
crimes in this case.

Id. at 124. Absent evidence to the contrary, the jury is
presumed to have followed that instruction, and Sheffield
offers no such contradictory evidence. Brown, 597 F.3d at
406.

Third and finally, “[t]he most significant factor that
negates the error’s impact is the weight and nature of the
evidence against [the defendant].” United States v. Williams,
212 F.3d 1305, 1311 (D.C. Cir. 2000). Here, the one-
sentence stipulation about an earlier drug crime “formed a
small part of what was otherwise an overwhelming case
 21
against” Sheffield, McGill, 815 F.3d at 886, and that amply
evidenced his knowledge and intent. The jury heard (i) the
officers’ testimony that Sheffield was a passenger in a car that
contained PCP, (ii) testimony about Sheffield’s statement that
“[e]verything is mine” in the car, (iii) Dudley’s testimony that
Sheffield had earlier taken her car for 30–45 minutes and that
there was no PCP in her car before then, and (iv) an extensive
recounting of the transportation and testing of the PCP, see
infra Part V. In addition, the jury heard legitimate Rule
404(b) evidence that Sheffield dealt PCP in 2009, the
admission of which Sheffield does not challenge. That Rule
404(b) evidence bore on his motive, intent, and knowledge to
deal in PCP. Taken together, all of that properly admitted
evidence rendered harmless the mistaken admission of the
2002 conviction.

V

Turning to the post-trial stage of the proceedings,
Sheffield challenges the district court’s denial of his motion
for independent testing of the portion of the seized PCP that
was not submitted to the DEA for analysis. The district court
treated that as a motion for a new trial because the motion
sought to challenge the jury finding that Sheffield was guilty
of “unlawfully, knowingly and intentionally possess[ing] with
intent to distribute” PCP in “the amount of * * * 100 grams or
more,” J.A. 12, 120.

We review a district court’s denial of a motion for new
trial for an abuse of discretion. See United States v. Johnson,
519 F.3d 478, 487 (D.C. Cir. 2008). A district court may
grant a new trial on the ground of newly discovered evidence
if (i) the evidence was discovered after the trial; (ii) the
movant was diligent in attempting to procure the evidence;
(iii) the evidence is material and not merely cumulative or
 22
impeaching; and (iv) if admitted, the evidence would
probably produce an acquittal. See United States v. Pettiford,
517 F.3d 584, 591 (D.C. Cir. 2008).

The district court reasonably concluded that testing the
remaining liquid in the lemon juice bottle was unlikely to
produce an acquittal. The jury heard ample, detailed, and
unrebutted testimony describing the transportation and testing
procedures that were used for the PCP evidence admitted at
trial, and thus jurors had a full opportunity to evaluate the
reliability of the determination that the bottle contained PCP
and the amount. For example, the jury heard that, after the
search of the car, one detective took photographs of the bottle
of PCP, and another detective then “physically picked up the
lemon juice bottle and placed it in a bag and transported it
back to the narcotic and special investigations division for
processing.” Supp. App. 41. At the police station, that
detective gave the lemon juice bottle to Officer Joseph
Abdalla, “the inhouse officer that processes liquid PCP when
large amounts are seized.” Id. at 42.

The jury also heard Officer Abdalla testify about how he
tested and processed the PCP. He first photographed the
lemon juice bottle and then conducted a field test by sticking
a tester directly into the lemon juice bottle’s liquid, which
came back positive for PCP. Trial Tr. 201–202 (Nov. 29,
2011). Officer Abdalla then weighed the PCP using two
different measurement techniques. Id. at 211–212. He
determined that the lemon juice bottle contained
approximately 195.9–198.7 grams of liquid. Supp. App. 96.
Officer Abdalla next undertook “the remediation process,” in
which he took “a bulk amount of the liquid * * * [and]
remov[ed] one ounce from that bulk substance, plac[ing] it
into a small glass vial and then * * * submitted [it] to the
Drug Enforcement Administration chemist for analysis.” Id.
 23
at 85–86. Officer Abdalla explained that extracting out a
single-ounce vial was necessary because the DEA lab would
not “accept any more than a one ounce sample from any
seizure of PCP.” Id. at 87.

After that, the jury heard testimony about the DEA’s
testing process. Officer Abdalla gave the one-ounce vial to a
detective, who placed it in a heat-sealed package for
submission to the DEA lab. The detective placed the vial
“into a secure evidence property box * * * where it [was] then
* * * transported to [the] DEA lab for analysis.” Supp. App.
48. At the DEA, Richard Isaacs, a forensic chemist, tested the
liquid in the vial and determined that the vial contained 25.9
grams of liquid that was 16.9% PCP. Isaacs also testified
that, when he received the vial, the heat seal was intact.

Finally, at the beginning of trial, the remaining PCP was
made available in the courthouse for Sheffield and his
attorney to inspect. The lemon juice bottle was ultimately
admitted into evidence, along with five photographs of the
bottle, its contents, and its weight, all of which were taken the
night of Sheffield’s arrest.

Notably, Sheffield did not challenge any of that
testimony at trial. He never argued, for example, that the
testing process was flawed, that those witnesses were not
credible, or that the chain of custody was interrupted.

The jury, in sum, considered the unrebutted “testimony of
five Metropolitan Police Department officers who testified as
to the smell, seizure, documentation, field testing, and storage
of the drug evidence,” viewed “photographs of the lemon
juice bottle and its contents that were taken shortly after the
evidence was seized” that indicated “the weight of the liquid,
its quantity, and the amount separated for DEA testing,” and
heard “the testimony of the DEA forensic chemist who tested
 24
the liquid sample and identified the liquid as PCP.” J.A. 136–
137. Given that extensive trial record addressing the handling
and testing of the liquid found in the lemon juice bottle and
the scientific determinations that it was PCP and of its
amount, the district court did not abuse its discretion in
concluding that further testing of the remaining seven ounces
of PCP had no realistic prospect of producing an acquittal.

Other factors governing motions for a new trial reinforce
the district court’s judgment. To begin with, the evidence
Sheffield’s motion sought could have been obtained before
the district court issued its judgment. Specifically, Sheffield
could have sought independent testing of the PCP before trial,
but he did not. Resp. Br. 48. Furthermore, to the extent that
Sheffield seeks to double check the measurements the various
officers performed, those goals would not be served by testing
the remaining seven ounces of liquid now because it is
undisputed that “some of the remaining seven ounces of PCP
[would have] evaporated over time despite being sealed in a
plastic bottle and a heat-sealed evidence bag.” J.A. 129.

Finally, Sheffield suggests that, under California v.
Trombetta, 467 U.S. 479 (1984), the Due Process Clause
requires that he be allowed to test the remaining PCP to
maintain the “fundamental fairness” of the proceedings.
Sheffield failed to make any due-process argument below, so
we review for plain error. See United States v. Pryce, 938
F.2d 1343, 1350 (D.C. Cir. 1991). And Sheffield has offered
no authority—let alone plain authority—for the proposition
that a defendant has the right under the Due Process Clause to
test drugs after failing to challenge the chain of custody or
testing procedures during trial, or to avail himself of a pre-
trial testing opportunity.
 25
For all of those reasons, the district court did not abuse
its discretion when it denied Sheffield’s motion to test the
PCP evidence.

VI

Lastly, Sheffield challenges the district court’s
imposition of a sentence enhancement for being a career
offender. The district court invoked a Sentencing Guidelines
provision to increase Sheffield’s sentence based on a
determination that he “ha[d] at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). Specifically, the
government introduced evidence that Sheffield had previously
been convicted of possession with intent to distribute PCP and
attempted robbery in the District of Columbia. Applying the
career-offender enhancement increased Sheffield’s Guidelines
offense level from 26 to 37, which in turn moved his original
Guidelines range of 92 to 115 months up to 360 months to life
in prison. The district court ultimately sentenced Sheffield to
230 months in prison.

Sheffield argues that the career-offender enhancement
was erroneously applied because his attempted robbery
conviction does not qualify as a crime of violence under
Sentencing Guideline 4B1.1(a). Although we typically
review de novo a district court’s determination that a
defendant’s “conviction qualified as a crime of violence,” In
re Sealed Case, 548 F.3d 1085, 1090 (D.C. Cir. 2008),
Sheffield did not raise this objection in the trial court. To
prevail, then, Sheffield must demonstrate plain error by
showing that (i) an error occurred; (ii) it was a plain, clear, or
obvious error; (iii) the error affected Sheffield’s substantial
rights; and (iv) the error also seriously affected the fairness,
integrity, or public reputation of judicial proceedings. See
 26
Puckett v. United States, 556 U.S. 129, 135 (2009). As the
government now concedes, see Gov’t 7/5/16 Letter at 1, the
district court’s application of the career-offender enhancement
was plain error, and Sheffield is entitled to a new sentencing
free from any such enhancement.

To be considered a career offender, Sheffield’s prior
conviction for attempted robbery in the District of Columbia
had to qualify as a “crime of violence” under the Sentencing
Guidelines. The Guidelines define “crime of violence” as a
state or federal offense that is punishable by imprisonment for
a term exceeding one year, and that: “(1) has as an element
the use, attempted use, or threatened use of physical force
against the person of another, or (2) is burglary of a dwelling,
arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. § 4B1.2(a). The first
clause is referred to as the “elements clause.” The “otherwise
involves” portion of the second clause is known as the
“residual clause.” See Welch v. United States, 136 S. Ct.
1257, 1261 (2016).

Unfortunately, the district court never specified which
clause of the “crime of violence” definition it believed applied
to Sheffield’s attempted robbery conviction. Nor did the
Presentence Report or the government’s sentencing
memorandum. See Gov’t Sentencing Mem. ¶ 7. At the
sentencing hearing, the district court stated only that “your
2007 conviction for attempted robbery * * * qualifies you
under the Guidelines as a career offender under the Guideline
Section 4B1.1(b).” Sentencing Tr. 12.

The record, however, leaves only the residual clause as a
possible basis for finding that attempted robbery constituted a
crime of violence. That is because the government “carries
 27
the burden of proving any facts that may be relevant in
sentencing.” United States v. Price, 409 F.3d 436, 444 (D.C.
Cir. 2005). The government, however, introduced no
evidence into the district court record providing any basis for
specifically determining that the attempted robbery was a
crime of violence under the elements clause. The sentencing
occurred prior to the Supreme Court’s decision in Descamps
v. United States, 133 S. Ct. 2276 (2013). Accordingly, the
only way the district court could have classified Sheffield’s
conviction for attempted robbery as a crime of violence would
have been by reference to additional documentation—which
the Government admittedly did not submit. See In re Sealed
Case, 548 F.3d at 1089–1090. By default, the only thing left
for the district court to rely on was the residual clause.

The district court committed plain error by concluding
that Sheffield’s attempted robbery conviction supported an
enhanced sentence. In Johnson v. United States, 135 S. Ct.
2551 (2015), the Supreme Court held that the identically
worded residual clause in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally
vague, 135 S. Ct. at 2563; see also Welch, 136 S. Ct. at 1262–
1263. To be fair to the district court, we note that Johnson
came out after sentencing in this case. But “as long as [an]
error [is] plain as of * * * the time of appellate review * * *
the error is ‘plain’ within the meaning of [Federal Rule of
Criminal Procedure 52(b)].” Henderson v. United States, 133
S. Ct. 1121, 1124–1125 (2013). 4

While this case involves the Sentencing Guidelines rather
than ACCA, the government agrees with Sheffield that
Johnson’s rationale equally requires resentencing in this
4
We accordingly need not decide whether Sheffield’s conviction
would in fact have qualified as a crime of violence at the time of
sentencing.
 28
direct appeal. See Gov’t Supp. Br. 4 n.3 (“[T]he government
has consistently conceded that the residual clause of the
career offender guideline is unconstitutionally vague[.]”).
That concession makes ample sense. This court has
repeatedly noted that, because the language of the Guidelines
and ACCA residual clauses are the same, “we apply the
ACCA standard to determine whether an offense qualifies as
a crime of violence under section 4B1.2.” In re Sealed Case,
548 F.3d at 1089. That textual linkage did not change when
the residual clause was held unconstitutional. The “grave
uncertainty about how to estimate the risk posed by a crime”
and the “uncertainty about how much risk it takes for a crime
to qualify as a violent felony,” Johnson, 135 S. Ct. at 2557–
2558, brood just as heavily over the Guidelines’ application as
they did over the statute.

Furthermore, constitutional challenges may be brought
against the Guidelines even though they are only advisory.
See Peugh v. United States, 133 S. Ct. 2072, 2082 (2013).
That is because the Guidelines “impose a series of
requirements on sentencing courts that cabin the exercise of
* * * discretion.” Id. at 2084. “Common sense indicates that
in general, this system will steer district courts to more
within-Guidelines sentences.” Id.

So too with a constitutional vagueness challenge. Where
the Guidelines “exert controlling influence on the sentence
that the court will impose,” Peugh, 133 S. Ct. at 2085, an
unconstitutionally vague Guidelines provision that has the
effect of doubling or tripling a defendant’s sentence is
constitutionally troublesome in its own right. Indeed,
multiple courts of appeals have ruled that the Guidelines’
residual clause, like ACCA’s residual clause, is
unconstitutionally vague, as the government has repeatedly
conceded. See United States v. Pawlak, 822 F.3d 902, 911
 29
(6th Cir. 2016) (holding so explicitly); United States v.
Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015) (same); United
States v. Townsend, 638 F. App’x 172, 177–178 (3d Cir.
2015) (same); see also United States v. Fields, 823 F.3d 20,
33 (1st Cir. 2016) (noting the government’s concession);
United States v. Martinez, 821 F.3d 984, 988 (8th Cir. 2016)
(same); United States v. Maldonado, 636 F. App’x 807, 810
(2d Cir. 2016) (same); Ramirez v. United States, 799 F.3d
845, 856 (7th Cir. 2015) (“proceed[ing] on the assumption
that the Supreme Court’s reasoning applies to section 4B1.2
as well”). But see United States v. Matchett, 802 F.3d 1185,
1195 (11th Cir. 2015) (holding Peugh inapplicable to due
process challenges). Given the breadth of authority from both
the Supreme Court and other circuits, combined with the
government’s concession in this case and others, the error was
plain. See In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir.
2009) (error can be plain despite a circuit split on the issue).

Finally, the district court’s plain error unquestionably
affected Sheffield’s substantial rights. See Olano, 507 U.S. at
734. Application of the career-offender enhancement
dramatically increased Sheffield’s sentencing exposure. As
the district court specifically mentioned, “[a]bsent this career
offender adjustment,” Sheffield would have faced “a
sentencing range of 92 to 115 months.” Sentencing Tr. 12. In
other words, because of the enhancement, Sheffield was
sentenced to double the top of the Guidelines range he
otherwise would have faced.

Nor can the increase be sustained on the alternative
ground of relying on the “elements clause.” That clause
requires a conviction to be based on a crime that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 4B1.2(a).
Importantly, “[i]n determining whether [a] crime is a violent
 30
felony, we consider the offense generically, that is to say, we
examine it in terms of how the law defines the offense and not
in terms of how an individual offender might have committed
it on a particular occasion.” Begay v. United States, 553 U.S.
137, 141 (2008). “The prior conviction qualifies as an ACCA
predicate only if the statute’s elements are the same as, or
narrower than, those of the generic offense.” Descamps, 133
S. Ct. at 2281.

Under that test, D.C.’s attempted robbery statute is not
categorically a crime that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another,” § 4B1.2. At the time Sheffield was
convicted, D.C.’s “[a]ttempt to commit robbery” provision
read: “Whoever attempts to commit robbery, as defined in
§ 22-2801, by an overt act, shall be imprisoned for not more
than 3 years or be fined not more than $500, or both.” D.C.
Code § 22-2802. The robbery statute, in turn, defines the
offense as: “by force or violence, whether against resistance
or by sudden or stealthy seizure or snatching, or by putting in
fear, * * * tak[ing] from the person or immediate actual
possession of another anything of value[.]” Id. § 22-2801.

As the “stealthy seizure” clause indicates, D.C.’s robbery
statute includes “offenses that fail to qualify as crimes of
violence under section 4B1.2.” In re Sealed Case, 548 F.3d at
1089. By the same token, the attempted robbery statute also
“[is] not categorically [a] crime[] of violence,” as the
government recognizes. Gov’t Supp. Br. 8; see also Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016) (“[I]f the crime of
conviction covers any more conduct than the generic offense,
then it is not an ACCA [offense]—even if the defendant’s
actual conduct (i.e., the facts of the crime) fits within the
generic offense’s boundaries.”).
 31
There is just one more wrinkle in this inquiry. The
Supreme Court has allowed for a “modified categorical
approach” to identifying crimes of violence for offenses that
do not categorically satisfy the elements clause in those rare
instances when that statutory offense is “divisible.” A statute
is divisible if it “list[s] potential offense elements in the
alternative, [and thus] renders opaque which element played a
part in the defendant’s conviction.” Descamps, 133 S. Ct. at
2283. Under that modified categorical approach to divisible
statutes, a court can review certain types of documents to
determine whether the particular crime that the defendant
committed necessarily included an element of violence,
within the meaning of ACCA or Guidelines § 4B1.1. See
Descamps, 133 S. Ct. at 2283–2284.

But D.C.’s attempted robbery statute is not divisible—
that is, it does not set out “multiple, alternative versions of the
crime” that include both violent and non-violent elements.
Descamps, 133 S. Ct. at 2284. To be sure, this court has held
that D.C.’s robbery statute is divisible because robbery may
be accomplished “against resistance” or “by putting in fear,”
or alternatively, “by sudden or stealthy seizure or snatching.”
In re Sealed Case, 548 F.3d at 1089 (citing D.C. Code § 22-
2801). 5 That means that a person can be convicted of
committing either the violent version of robbery or the non-
violent, stealthy version of robbery. And if a defendant is
convicted of the violent version, the defendant has committed
a crime that has as an element the use of physical force
against the person of another for purposes of Sentencing
Guideline § 4B1.1.

5
This court’s determination that D.C.’s robbery statute is divisible
preceded the Supreme Court’s recent decision in Mathis v. United
States, 136 S. Ct. 2243 (2016), which cast additional light on when
the modified categorical approach applies.
 32
The same cannot be said, though, of D.C.’s attempted
robbery statute. That statute does not include those same
alternative versions of the crime. “The elements of attempted
robbery are that (1) the defendant committed an act which
was reasonably adapted to the commission of the offense of
robbery, (2) at the time the act was committed, the defendant
acted with the specific intent to commit the offense of
robbery, and (3) the act went beyond mere preparation, and
carried the project forward to within dangerous proximity of
the criminal end to be sought.” Robinson v. United States,
608 A.2d 115, 116 (D.C. 1992).

Thus, to convict a defendant of attempted robbery, D.C.
law requires a jury to find beyond a reasonable doubt only
that the defendant committed an act in furtherance of and with
the specific intent to commit generic robbery, not any specific
type of robbery (whether violent or stealthy). Nothing in the
statutory text or case law requires a jury, in convicting a
defendant of attempted robbery, to first find that the defendant
committed one of multiple alternative elements, one of which
is a crime of violence under the elements clause. Quite the
contrary, attempted robbery is a loosely defined crime, with
an expansive overt act requirement that is not tied to any
specific type of robbery—violent or otherwise. Indeed, in
Jones v. United States, 386 A.2d 308 (D.C. 1978), the D.C.
Court of Appeals upheld a conviction for attempted robbery
under D.C. law where the defendant had carefully planned a
bank robbery, had “conducted a dry run,” was armed, “was
proceeding toward the bank according to plan and was no
further than four blocks away, turning back only when he
heard police sirens and concluded that something had gone
wrong.” Id. at 312–313. That conviction required no finding
as an element of how the ultimate robbery might have been
committed in terms of violence or stealth.
 33
Because attempted robbery is an indivisible crime, we
may not consult documents—such as the indictment or plea
colloquy—to determine whether Sheffield’s offense qualifies
as a crime of violence. See Mathis, 136 S. Ct. at 2254 (The
modified categorical approach “is not to be repurposed as a
technique for discovering whether a defendant's prior
conviction, even though for a too-broad crime, rested on facts
(or otherwise said, involved means) that also could have
satisfied the elements of a generic offense.”). D.C.’s
attempted robbery statute simply does not qualify as a crime
of violence as a categorical matter. See Descamps, 133 S. Ct.
at 2281–2282.

In sum, the district court’s plain error under the residual
clause affected Sheffield’s substantial rights because his
sentence cannot be saved under the elements clause. The
unlawfulness of his sentence necessarily affects the
fundamental fairness and integrity of his conviction.
Sheffield is entitled to a resentencing without the career-
offender enhancement. 6

VII

We affirm Sheffield’s conviction, but vacate his sentence
and remand for resentencing consistent with this decision.

So ordered.

6
Last month, the Supreme Court granted certiorari in Beckles v.
United States, No. 15-8544, to decide whether Johnson applies to
enhancements under Sentencing Guidelines § 4B1.2. The
government, however, has conceded that Sheffield is entitled to a
new sentencing and has not requested that his case be held pending
Beckles. We agree that disposition is appropriate.
 SENTELLE, Senior Circuit Judge, concurring in part and
concurring in the judgment: I concur in the decision of the court,
and in much of what the court’s opinion has to say. On only two
points do I differ from the thinking of the majority. First, I do
not join the majority’s discussion in Part IV, concluding that the
district court “improperly allowed the government to admit
‘other crimes’ evidence under Federal Rule of Evidence
404(b).” Maj. Op. at 16.

As the majority recognizes, “[w]e review the district court’s
decision to admit evidence under Rules 403 and 404(b) for an
abuse of discretion.” Id. (citing Henderson v. George Wash.
Univ., 449 F.3d 127, 132-33 (D.C. Cir. 2006); United States v.
Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002)). I see no abuse in
the present record. As the majority notes,

we have recognized that “[a] defendant’s hands-on
experience in the drug trade cannot alone prove that he
possessed drugs on any given occasion.” United States v.
Crowder, 141 F.3d 1202, 1208 n.5 (D.C. Cir. 1998). But “it
can show that he knew how to get drugs, what they looked
like, where to sell them, and so forth.” Id. Said another
way, “[e]vidence of a defendant’s experience in dealing
drugs * * * may be a ‘brick’ in the ‘wall’ of evidence
needed to prove possession.” Id. Thus, the type of
evidence the government introduced here—that of
Sheffield’s prior PCP dealing—would generally be
permissible to show that Sheffield had the requisite
knowledge and intent to possess and distribute the PCP the
officers found in the armrest console.

Maj. Op. at 17.

By holding that the district court nonetheless erred in
admitting the evidence because, under Rule 403, “the staleness
 2

of [Sheffield’s 2002] conviction reduces its probative value such
that it is ‘substantially outweigh[ed]’ by the danger of unfair
prejudice already inherent in the admission of prior-bad-act
evidence,” id. at 18 (citing United States v. Bigesby, 685 F.3d
1060, 1065 (D.C. Cir. 2012)), the majority impermissibly
replaces its judgment for that of the district court. See United
States v. Mathis-Gardner, 783 F.3d 1286, 1288 (D.C. Cir. 2015)
(“Our review for abuse of discretion does not permit us to
‘substitute our judgment’ for that of the trial court, . . . so we
cannot decide the issue by determining whether we would have
reached the same conclusion.”). A Rule 403 balancing is, after
all, an evidentiary resolution. In reviewing a finding of fact, if
the district court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
I see no reason why any different analysis would apply to the
Rule 403 balancing, indeed the majority itself recognizes that
this question is committed to the discretion of the district judge.

I would add that I not only do not understand how we can
properly reverse a balancing whose resolution is allocated to the
district court on nothing more than our differing opinion as to
the effect of “staleness,” but also do not share the majority’s
view that there is staleness. Therefore, of the four judges who
have viewed the question of the admission of this evidence, two
circuit court judges would, apparently in their discretion, not
have admitted it. The district court judge, charged with the
actual duty of deciding whether or not to admit it, decided to
admit it. And, finally, one of the circuit court judges supposed
to review the issue only for abuse of discretion would also have
admitted it.
 3

Differing from the majority, I would find no error at all in
the admission of the evidence and would deem it perfectly
consistent with the exception to Rule 404(b) recognized in such
cases as Crowder and with Rule 403. However, though the
majority perceives an error not apparent to me, they deem it
harmless. With that resolution, I join the majority’s disposition
on Sheffield’s merits appeal.

I also differ from the majority with respect to the analysis
supporting its conclusion that there is plain error in the sentence.
See Maj. Op. at 25-33. As I have stated on a prior occasion, “I
fear that this circuit is drifting toward a jurisprudence in which
there is no distinction between reviewing for ‘plain error’ and
simply reviewing to determine whether the district court erred.”
United States v. Head, 817 F.3d 354, 362 (D.C. Cir. 2016)
(Sentelle, J., dissenting). As the majority notes, “the
government now concedes . . . the district court’s application of
the career-offender enhancement was plain error, and Sheffield
is entitled to a new sentencing free from any such
enhancement.” Maj. Op. at 26. Given the centrality of the
prosecutorial function to the power of the Article II executive,
I would simply accept that concession, vacate the sentence, and
remand. As that is the same result reached by the majority, I
concur in the judgment. However, I do not understand the need
to then proceed to analyze whether there is in fact “plain error”
or not in terms that seem to me to be potentially dangerous as
precedent.

Briefly put, I simply do not see any definition of “plain”
that requires an analysis based on a decision as to a different
statutory scheme–that is the sentencing guidelines as opposed to
the Armed Career Criminal Act–and as to which there was no
consensus among the circuits nor controlling authority from this
court or the Supreme Court.
 4

That said, in the end, I agree with the court’s judgment as
to both merits and sentencing issues, and I therefore concur.