RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0289p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 17-3706
v. │
│
│
LUKE D. PATTERSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:14-cr-00289-1—James S. Gwin, District Judge.
Decided and Filed: December 20, 2017
Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Appellant. Carmen E. Henderson, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. In a prior appeal by Luke Patterson, we determined that “the
district court should have sentenced him as an armed career criminal” because he had three
previous convictions for a violent felony. The district court heeded those instructions on remand.
We affirm.
No. 17-3706 United States v. Patterson Page 2
In 2014, Akron police officers stopped Patterson’s car. They found an open container of
alcohol and a stolen pistol inside it. The state and federal governments filed charges. In state
court, Patterson pleaded guilty to receiving stolen property and driving with a suspended license.
In federal court, he pleaded guilty to being a felon in possession.
At his federal sentencing hearing, the district court treated Patterson’s 2001 Ohio
convictions for aggravated robbery with a deadly weapon as crimes of violence under the
Sentencing Guidelines but not under the Armed Career Criminal Act. Patterson appealed, and
the government cross-appealed. Patterson argued (1) that the court should have dismissed his
federal indictment because it violated the Double Jeopardy Clause and (2) that his Ohio
convictions did not qualify as crimes of violence under the Sentencing Guidelines. The
government argued that the district court erred by not treating his state court convictions as
crimes of violence under the relevant federal statute: the Armed Career Criminal Act.
We affirmed in part and reversed in part. United States v. Patterson, 853 F.3d 298, 300
(6th Cir. 2017). We rejected Patterson’s double jeopardy argument because the separate-
sovereigns doctrine permits such dual prosecutions, and we agreed with the district court that
Patterson’s prior convictions were predicate crimes of violence under the Guidelines. Id. at 301,
306. We disagreed, however, with the district court’s conclusion that those convictions did not
establish the requisite predicates for the Armed Career Criminal Act. “Patterson had ‘three
previous convictions . . . for a violent felony’ under [the Act],” we held, “and the district court
should have sentenced him as an armed career criminal.” Id. at 305 (quoting 18 U.S.C.
§ 924(e)(1)). As a result, we “reverse[d] the ruling that Patterson did not have three previous
convictions for a violent felony, vacate[d] Patterson’s sentence, and remand[ed] for
resentencing.” Id. at 306.
On remand, Patterson continued to argue that he should not be sentenced as an armed
career criminal. The government, he said, had not shown that his prior offenses were in fact
three separate offenses occurring on three distinct occasions. The district court doubted its
authority to reach this argument: “I read the mandate from the Sixth Circuit to be more narrow”
because it “specifically ma[de] a finding that the Defendant should be sentenced as an armed
career criminal.” R. 122 at 15. In the alternative, the court found Patterson’s argument meritless
No. 17-3706 United States v. Patterson Page 3
because the “logical inference” from the record was that he pleaded guilty to three different
offenses. Id. The court sentenced him to the mandatory minimum of 180 months under the Act.
Patterson appeals again. He insists that the district court misinterpreted the scope of our
remand by refusing to consider “any and all available legal arguments.” Br. of Appellant at 14.
And he maintains that the government has not shown that his Ohio convictions were “committed
on occasions different from one another.” 18 U.S.C. § 924(e)(1).
We interpret the scope of a mandate with fresh eyes. To determine whether we issued a
limited remand or a general one, we look to any “limiting language” in the instructions on
remand and the broader context of the opinion. United States v. O’Dell, 320 F.3d 674, 679–81
(6th Cir. 2003). Both indicators show that we issued a limited remand.
Our prior opinion states:
For these reasons, we . . . reverse the ruling that Patterson did not have three
previous convictions for a violent felony, vacate Patterson’s sentence, and remand
for resentencing.
Patterson, 853 F.3d at 306. The proper interpretation of that sentence, as the district court
concluded, is that we “remand[ed] for resentencing” because Patterson did, in fact, have “three
previous convictions for a violent felony.” That was not an invitation to start from scratch, and it
was not an invitation to conduct a new sentencing hearing.
The language “used in the context of the entire opinion” supports this conclusion. United
States v. Campbell, 168 F.3d 263, 267–68 (6th Cir. 1999). We recognized that Patterson’s “three
convictions stemmed from armed robberies” that occurred at three different places: “an
insurance agency, a cash advance store, and a cigarette shop.” Patterson, 853 F.3d at 301.
Those “prior convictions me[t] the requirements of” the Armed Career Criminal Act. Id. at 300.
And so, we concluded, “the district court should have sentenced [Patterson] as an armed career
criminal.” Id. at 305.
But Patterson faces another problem, separate and apart from the scope of our remand.
“[W]here an issue was ripe for review at the time of an initial appeal but was nonetheless
foregone, the mandate rule generally prohibits the district court from reopening the issue on
No. 17-3706 United States v. Patterson Page 4
remand.” O’Dell, 320 F.3d at 679 (quoting United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.
2001)). Patterson’s separate-occasions argument was ripe when he first appealed. He indeed
raised the argument at his initial sentencing, and the court rejected it. But Patterson never
appealed that issue in his first trip to this court. That makes the argument “doubly out of
bounds” now, Waldman v. Stone, 665 F. App’x 432, 434 (6th Cir. 2016), and that reality by itself
resolves this appeal.
That brings us to the third problem with this appeal. In the alternative and out of an
abundance of caution, the district court addressed the separate-occasions argument on the merits.
The court found it wanting. And so do we.
The original indictment charged Patterson with three counts of aggravated robbery. See
Ohio Rev. Code § 2911.01(A)(1), (C). Count 1 occurred at an insurance agency on November
28, 2000. Count 2 occurred at a First American Cash Advance store on December 8, 2000. And
Count 3 occurred at a tobacconist on December 16, 2000. Each charge came with a firearm
specification. See id. § 2941.145. Patterson pleaded guilty to Counts 1, 2, and 3 in an “amended
indictment,” which included a firearm specification only for Count 3. R. 112-3 at 2–3.
The “logical inference” from this sequence of events, as the district court concluded, is
that Patterson pleaded to the same three counts listed in the original indictment, with the firearm
specification removed from Counts 1 and 2. R. 122 at 15. The state court’s finding on
Patterson’s guilty plea confirms that, as part of the plea, Ohio agreed “to dismiss [the] firearm
specifications in [the] indictment as to Counts 1 & 2.” R. 112-3 at 4. Under any of our tests in
this area, aggravated robberies occurring at three different locations in three different weeks
amount to offenses “committed on different occasions.” United States v. Southers, 866 F.3d 364,
369 (6th Cir. 2017).
Patterson objects. He claims that, in light of amendments to the indictment, the original
indictment may not be considered as approved evidence. See Shepard v. United States, 544 U.S.
13 (2005). Because the amended indictment was never docketed in state court, he adds, the
remaining evidence available (the plea finding) establishes only that Patterson pleaded to
No. 17-3706 United States v. Patterson Page 5
offenses occurring at undisclosed times in undisclosed places. And so, he concludes, the
government failed to show that the offenses occurred on different occasions.
But the evidence considered in this case—the original indictment and plea finding—falls
squarely within the materials approved by Shepard, namely “the terms of the charging
document,” a statement of the “factual basis for the plea,” and “comparable judicial record[s].”
544 U.S. at 26. Because an amended indictment was never docketed and the original indictment
was cross-referenced in the plea finding, the district court naturally looked to the original
charging document. The district court’s permissible inferences from these prototypical Shepard
documents were fair and reasonable: that Patterson pleaded guilty to three distinct offenses.
United States v. King, 853 F.3d 267 (6th Cir. 2017), is not to the contrary. It refused to
consider evidence that appeared in three bills of particulars but not in the corresponding
indictments because the defendant “could have pled guilty to the charges in the indictment
without requesting the bills of particulars.” Id. at 269, 275–76; see also Southers, 866 F.3d at
370. Nor does it help Patterson to rely on King’s dicta that the documents must have
“necessarily admitted” the facts at issue. 853 F.3d at 276. Shepard restricted the category of
evidence to material from which “a later court could generally tell whether the plea had
‘necessarily’ rested” on the facts at issue. 544 U.S. at 21 (emphasis added). That makes sense,
as the government’s long-established burden is to prove by a preponderance of the evidence—
not beyond a reasonable doubt—that the prior convictions occurred on different occasions. See
United States v. Pham, 872 F.3d 799, 801 (6th Cir. 2017).
Making matters easier, Patterson has confirmed what the relevant documents and the
relevant sequence of events suggest. When he raised this issue at his first sentencing, Patterson
admitted through counsel that the predicate offenses occurred on three different days. The trial
court and Patterson’s counsel had the following exchange:
THE COURT: [D]o you agree that the—the underlying state convictions
were . . . for conduct that occurred on November 28th, 2000, December 8th, 2000,
and December 16th, 2000?
MR. IVEY: Yes, Your Honor. But at the same time, Mr. Patterson wants me to
emphasize that although that is true, they were all contained in the same
Indictment, in the same case, and sentenced on all of them at the same time.
No. 17-3706 United States v. Patterson Page 6
R. 71 at 5 (emphases added). Patterson conceded yesterday what he presses today. The mandate
rule exists to prevent just these sorts of efforts to relitigate an issue—to say nothing of
sidestepping a prior forfeiture and admission.
For these reasons, we affirm.