PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4061
WALTER LEE BOYKIN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, District Judge.
(5:10-cr-00027-D-1)
Argued: January 25, 2012
Decided: February 28, 2012
Before GREGORY, DIAZ, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Gregory
wrote the opinion, in which Judge Diaz and Judge Floyd
joined.
COUNSEL
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
2 UNITED STATES v. BOYKIN
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for Appellant. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker,
Toby W. Lathan, Assistant United States Attorneys, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
OPINION
GREGORY, Circuit Judge:
Walter Lee Boykin, Jr. challenges the use of his presen-
tence report ("PSR") to determine the circumstances sur-
rounding two prior violent-felony convictions for sentencing
purposes. We find it was plain error for the district court to
use the PSR’s discussion of the circumstances surrounding
these two convictions in applying an Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 924(e), enhancement. For the rea-
sons that follow, we vacate Boykin’s sentence and remand for
a new sentencing hearing on this issue.
I.
In May 2009, Boykin, a convicted felon, went to a pawn
shop in Goldsboro, North Carolina, where he pawned a rifle.
He later attempted to redeem the gun and lied on his Bureau
of Alcohol, Tobacco, and Firearms ("ATF") form when asked
whether he had been convicted of a felony. He again lied on
another ATF form the following month when he attempted to
redeem the gun a second time, having been unsuccessful on
the first try. On January 22, 2010, a grand jury sitting in the
Eastern District of North Carolina returned an indictment
charging Boykin with one count of being a felon in possession
of a firearm and with two counts of making false statements
to a federally licensed firearms dealer. 18 U.S.C.
§§ 922(g)(1), (a)(6). On February 1, 2010, authorities arrested
UNITED STATES v. BOYKIN 3
Boykin, who had six bullets in his possession at the time.
Boykin pled guilty to all charges on May 18, 2010.
In Boykin’s PSR, the probation officer calculated a base
guideline offense level of 20 but increased it to 33 because he
determined that Boykin qualified as an armed career criminal
under 18 U.S.C. § 924(e) based on three prior violent-felony
convictions. The first, a 1956 conviction for second-degree
murder, is not in dispute in the present case. Boykin’s two
other violent felony convictions, both in 1980, one for
second-degree murder and the other for assault with a deadly
weapon inflicting serious injury, form the basis of the present
dispute.
The district court and the probation officer relied on the fol-
lowing account from the PSR in concluding that the offenses
leading to his two 1980 convictions, although arising out of
the same altercation, were committed on "occasions different
from one another"—and, thus, could each serve as an ACCA
predicate offense—within the meaning of 18 U.S.C. § 924(e).
On December 25, 1980, Boykin and his brother Willie were
at a bar and Willie Boykin became involved in a fight with
James Lamb. The Boykins went to their car and retrieved
their guns. Willie Boykin randomly fired his weapon inside
the bar, striking Tommy Fennell in the jaw. Lamb fled the
bar, and Boykin, waiting outside, shot Lamb as he exited with
a .22 caliber rifle, killing him instantly. Azriah Fennell,
Tommy’s brother, tried to grab Boykin’s rifle. Boykin took a
handgun from his pocket and shot Azriah twice in the abdo-
men. The Fennell brothers suffered critical injuries and
required hospitalization.
After applying a three-level reduction to Boykin’s guide-
line range for acceptance of responsibility, the district court
sentenced Boykin to a term of imprisonment of 180 months,
the statutory minimum based on the ACCA enhancement.
Without it, Boykin’s guidelines range would have been 37-46
4 UNITED STATES v. BOYKIN
months. Boykin timely appealed the sentence on September
14, 2010.
II.
On appeal, Boykin argues that the district court should not
have used the PSR in determining his sentence because, under
this Court’s precedent, the PSR did not bear the earmarks of
derivation from Shepard-approved sources. See Shepard v.
United States, 544 U.S. 13 (2005); United States v. Thomp-
son, 421 F.3d 278 (4th Cir. 2005). Boykin also contends that
the district court erred in determining that his two convictions
arising from the 1980 altercation were for offenses committed
on separate occasions for ACCA purposes. We agree with
Boykin, finding that it was plain error for the district court to
use the PSR in determining that the relevant offenses occurred
on separate occasions.
A.
A threshold issue is whether Boykin preserved a challenge
to the PSR for appeal. The Government argues that Boykin
did not object to the use of the PSR at his sentencing, and
therefore his Shepard challenge should be considered under
the plain error standard. United States v. Lynn, 592 F.3d 572,
575 (4th Cir. 2010). Boykin responds that by contesting the
facts of the PSR in his sentencing colloquy, he has preserved
the issue for appeal. We agree with the Government.
As discussed in further detail below, this Court in Thomp-
son held that a PSR can be used in ACCA determinations
when the PSR "bears the earmarks of derivation from
Shepard-approved sources such as the indictments and state-
court judgments from [a defendant’s] prior convictions," par-
ticularly when he "never raised the slightest objection either
to the propriety of its source material or to its accuracy." 421
F.3d at 285.
UNITED STATES v. BOYKIN 5
It’s not entirely clear whether Thompson intended a two-
prong test for PSRs, first, whether the PSR appears to come
from Shepard-approved sources, and second, whether the
defendant objected to the source material or its accuracy. But
whether a Thompson error can be preserved solely on an
objection to the accuracy of the PSR is not a question we must
address today. Boykin’s alternate version of a detail contained
in the PSR,* voiced by him, not his counsel, during sentenc-
ing, did not rise to the level of a proper legal objection to
either the PSR’s source material or its accuracy, even assum-
ing the latter is grounds for a Thompson objection.
B.
Because Boykin did not preserve a challenge to the PSR for
appeal, we analyze the district court’s decision to use the PSR
for plain error. In order to find for Boykin, we must conclude
that there was an error, the error was plain, and the error
affected Boykin’s substantial rights. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
We may then exercise our discretion to correct the error if the
error results in a "miscarriage of justice"; that is, the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings, or the defendant must be actually inno-
cent. United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.
1996) (citing Olano, 507 U.S. at 736-37).
The district court relied 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 pur-
poses. This inquiry was necessary, because section 924(e)(1)
requires that three ACCA-predicate violent felonies or serious
drug offenses have been "committed on occasions different
from one another." This Court has held that offenses have
been committed on different occasions when they arise out of
*Boykin disputed the PSR’s statement that he got the gun from his
pocket—he asserted that it came from someone else’s hands. J.A. 73-74.
6 UNITED STATES v. BOYKIN
a "separate and distinct criminal episode." United States v.
Carr, 592 F.3d 636, 640 (4th Cir. 2010), cert. denied, 131 S.
Ct. 82 (2010). "Occasions" are "those predicate offenses that
can be isolated with a beginning and an end—ones that con-
stitute an occurrence unto themselves." United States v. Let-
terlough, 63 F.3d 332, 335 (4th Cir. 1995). To determine if
the episodes are separate, we ask
(1) whether the offenses arose in different geo-
graphic locations; (2) whether the nature of each
offense was substantively different; (3) whether each
offense involved different victims; (4) whether each
offense involved different criminal objectives; and
(5) whether the defendant had the opportunity after
committing the first-in-time offense to make a con-
scious and knowing decision to engage in the next-
in-time offense.
Carr, 592 F.3d at 644 (citation omitted). "We can consider
these factors together or independently, and ‘if any one of the
factors has a strong presence, it can dispositively segregate an
extended criminal enterprise into a series of separate and dis-
tinct episodes.’" Id. (quoting Letterlough, 63 F.3d at 336).
The Supreme Court has limited the sorts of documents that
can be used consistently with the Sixth Amendment by a sen-
tencing judge in deciding whether to apply the ACCA
enhancement. Most relevant is Shepard, which teaches that
some details about a conviction are contained in the very fact
of the conviction. But judges cannot resolve a "disputed fact
. . . about a prior conviction," if doing so requires data that
was not inherent in that prior conviction. Shepard, 544 U.S.
at 25. To allow otherwise would cause district courts to hold
what would essentially be a new trial on the previous convic-
tions. Nevertheless, a district court may consult a number of
so-called "Shepard-approved sources"—such as the indict-
ment, a judge’s findings of fact (in a bench trial), and a plea
UNITED STATES v. BOYKIN 7
colloquy—because the facts contained therein are considered
to be facts about the convictions themselves. Id. at 26.
Shepard did not address whether a district court may also
consult a PSR when considering an ACCA sentence enhance-
ment. But this Court in Thompson interpreted Shepard to
mean that a PSR can be used in ACCA determinations when
it "bears the earmarks of derivation from Shepard-approved
sources such as the indictments and state-court judgments
from [a defendant’s] prior convictions," particularly when he
"never raised the slightest objection either to the propriety of
its source material or to its accuracy." 421 F.3d at 285. While
Boykin disputed one of the facts contained in the PSR during
his allocution, his lawyer did not claim that the description of
the shootings was factually inaccurate, nor did he challenge
the sources from which the facts were derived.
The question is therefore whether the facts detailed in the
PSR "bear[] the earmarks of derivation from Shepard-
approved sources." Id. First, there is no indication in the PSR
itself that the information therein came from Shepard-
approved sources. Compare United States v. Vann, 660 F.3d
771, 817 (4th Cir. 2011) (en banc) (Niemeyer, J., dissenting)
(quoting the PSR, "[a]ccording to the indictment, on Decem-
ber 17, 1991, Vann willfully did take and attempt to take
immoral, improper, and indecent liberties with a child . . . for
the purpose of arousing and gratifying sexual desire and did
commit a lewd and lascivious act upon the body of said
child"), with J.A. 97-98 (no mention of Shepard-approved
sources in the PSR).
Second, the factual details of the encounter are not typically
found in Shepard-approved sources. The indictments and
other Shepard-approved sources for these two 1980 convic-
tions might well have included some details bearing on the
"separateness" of the two convictions, as analyzed under the
factors set forth in Letterlough. For example, one would
expect the indictments to have included the date, location, and
8 UNITED STATES v. BOYKIN
victim(s) of the alleged crimes, and the criminal statutes
alleged to have been violated, and this Shepard-approved
information would certainly inform the Letterlough analysis.
The record on appeal, however, does not include the under-
lying indictments or any other Shepard-approved documents.
Further, a jury convicted Boykin on the two charges stem-
ming from the 1980 altercation; therefore, there exists no plea
colloquy, or judicial factfinding during the course of a bench
trial, that could have conceivably revealed the level of detail
of the confrontation as recounted in the PSR and accepted by
the district court. As such, we simply cannot determine which
facts contained in Boykin’s PSR related to his prior convic-
tions "bear[] the earmarks of Shepard-approved documents."
Thus, while it was not error to use the PSR to determine
that two crimes had in fact been committed by Boykin—that
information is something that would exist in an indictment or
other Shepard-approved source—it was error for the district
court to use the PSR’s factual details of the encounter to apply
the ACCA enhancement to Boykin’s sentence.
The error was also plain. There is nothing in the record to
show that the PSR’s recounting of the circumstances sur-
rounding the two 1980 convictions exist in Shepard-approved
sources. Although some of the information might well appear
in such sources, most of it would not, particularly since the
sources could not include a plea colloquy or bench findings.
We next turn to whether the error affected Boykin’s sub-
stantial rights. Without the PSR’s details, the only informa-
tion that can be applied to the Letterlough analysis is the fact
that Boykin was convicted of two violent felonies committed
on the same day. It cannot be said that simply because two
crimes have been committed they necessarily occurred on dif-
ferent occasions; such an interpretation would nullify the
different-occasions language in § 924(e). The Letterlough fac-
tors are nearly useless on this record; ACCA cannot apply on
UNITED STATES v. BOYKIN 9
such a meager factual basis. We find that the use of the PSR’s
facts affected Boykin’s substantial rights because he was sen-
tenced to 180 months of incarceration, drastically exceeding
his advisory guidelines range. This result was based on the
mere fact that he was convicted of two violent felonies, which
alone is insufficient to show that Boykin’s offenses necessar-
ily occurred on different occasions, as required by ACCA.
Finally, we may only exercise our discretion to correct the
district court’s error if it resulted in a "miscarriage of justice";
that is, if the error "seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Cedelle, 89 F.3d
at 184 (quoting Olano, 507 U.S. at 736-37). The error had
such an effect. Such improper factfinding as occurred here
strikes at the core of our judicial system’s protections for
criminal defendants. The magnitude of the error cries out for
relief, given that Boykin’s guidelines range jumped from 37-
46 months to 135-168 months, with an applicable statutory
minimum of 180 months. There would clearly be a "miscar-
riage of justice" were we to allow such a severe sentence
enhancement to be applied inconsistently with the law. We
therefore exercise our discretion to afford Boykin relief.
III.
For the foregoing reasons we find it was plain error for the
district court to use the PSR’s recitation of the facts to deter-
mine that Boykin’s convictions occurred on different occa-
sions without having first satisfied itself that the PSR bore
"the earmarks of derivation from Shepard-approved sources."
Accordingly, we vacate Boykin’s sentence and remand to the
district court for a new sentencing hearing on this issue.
VACATED AND REMANDED