In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2507
JEFFREY D. K IRKLAND,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-CV-335—Jon E. DeGuilio, Judge.
A RGUED JANUARY 20, 2012—D ECIDED JULY 24, 2012
Before F LAUM and R OVNER, Circuit Judges, and
C ASTILLO, District Judge.
C ASTILLO, District Judge. Jeffrey Kirkland was con-
victed of unlawful possession of a firearm by a felon, and
based on a finding that he had five “violent felony”
convictions, including two drunk driving offenses, the
The Honorable Ruben Castillo, United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 11-2507
district court sentenced him as an armed career criminal
pursuant to the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (“ACCA”). After the Supreme Court deter-
mined that drunk driving is not a “violent felony” as the
term is defined in the ACCA, Begay v. United States,
553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008),
Kirkland filed a petition for relief under 28 U.S.C. § 2255.
The district court denied Kirkland’s petition. On appeal,
we vacated that judgment and remanded the case with
directions for the district court to determine whether
Kirkland still qualified as a career criminal absent
the two convictions for drunk driving. On remand, the
district court concluded that an enhancement of Kirk-
land’s sentence under the ACCA was still appropriate
based on his three remaining convictions for violent
felonies.
Kirkland appeals on two grounds: first, that the
district court erred in determining that two of Kirkland’s
“violent felony” convictions that arose from events on a
single day constituted separate predicate offenses under
the ACCA, and second, that the district court erred in
not admitting Kirkland’s testimony and affidavit at his
resentencing hearing. We reverse.1
1
This opinion has been circulated to the full court pursuant
to Circuit Rule 40(e). No judge in active service requested to
hear this case en banc.
No. 11-2507 3
I. BACKGROUND
On August 15, 2006, a jury found Kirkland guilty of
unlawful possession of a firearm by a felon in violation
of 18 U.S.C. § 922(g)(1). At sentencing, the district court
adopted the findings of the presentence investigation
report (“PSR”), which indicated that Kirkland’s crim-
inal history included five “violent felony” convictions:
a 1984 conviction for burglary; a 1985 conviction for
burglary; a 1985 conviction for aggravated robbery;
a 2001 conviction for operating while intoxicated; and a
2003 conviction for operating while intoxicated. Based on
the PSR’s findings, the district court concluded that
Kirkland qualified as an armed career criminal under
the ACCA, which increases the penalty for possession of
a firearm by a felon when a defendant has three
predicate convictions for “violent felon[ies]” as defined in
the ACCA that were “committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). The district
court sentenced Kirkland to the mandatory fifteen-year
minimum under the ACCA.
In 2008, the Supreme Court held in Begay that the
felony offense of driving under the influence is not a
“violent felony” within the meaning of the ACCA. 553
U.S. at 148, 128 S.Ct. 1581. Kirkland subsequently filed a
§ 2255 petition challenging his sentence, which the
district court denied. On appeal, we remanded the case
to the district court for further consideration in light of
our holding in Welch v. United States, 604 F.3d 408 (7th
Cir. 2010), that Begay applies retroactively.
On remand, the district court considered whether
Kirkland qualified as an armed career criminal based on
4 No. 11-2507
his three remaining felony convictions—the 1984 bur-
glary conviction and the 1985 burglary and aggravated
robbery convictions. The government maintained that
Kirkland’s enhanced sentence was valid because the
three remaining convictions were violent felonies as
defined by the ACCA. Kirkland conceded that all three
convictions were violent felonies, but argued that the
1985 convictions could not serve as separate predicate
felonies under the ACCA because they were not com-
mitted on “occasions different from one another,” as
required by § 924(e)(1).
The district court conducted a resentencing hearing to
resolve this disputed issue. At the hearing, the parties
submitted the charging documents, the judgments, and
the plea questionnaires from the 1985 convictions. The
two charging documents indicate that both the burglary
and the robbery occurred on February 6, 1985. The
first document, an information for cause number “C 85-
104,” charges Kirkland, Johnny Henry Yearley, and Karen
Sue Foster with burglary and second degree battery.
The information states that Kirkland, Yearley, and Foster
committed the burglary in the home of Charles Gabbard,
and that Gabbard was the victim of the battery.2 It does
2
Specifically, the “C 85-104” information states that:
Johnny Henry Yearley, Jeffrey Dean Kirkland & Karen Sue
Foster in said Washington County, State of Arkansas, on or
about the 6th day of February, 1985, did unlawfully,
feloniously and with the purpose of committing an offense
(continued...)
No. 11-2507 5
not provide a time for the offense. The second informa-
tion, for cause number “C 85-105,” charges the same
three defendants with aggravated robbery and theft of
property, and indicates that the defendants robbed an
unnamed individual and stole cash and pizza that was
property of “Dominoe’s [sic] Pizza.” 3 The information
for cause number “C 85-105” does not indicate the
time or location of the robbery and theft.
2
(...continued)
punishable by imprisonment, enter or remain in the resi-
dence of Charles Gabbard, an occupiable structure in
violation of Ark. Stats. Ann. § 41-2002; and,
did unlawfully, feloniously and with the purpose of causing
physical injury to another person, cause physical injury
to Charles Gabbard, in violation of Ark. Stats. Ann. § 41-
1602.
3
The “C 85-105" information states that:
Johnny Henry Yearley, Jeffrey Dean Kirkland & Karen Sue
Foster in said Washington County, State of Arkansas, on or
about the 6th day of February, 1985, did unlawfully,
feloniously and with the purpose of committing a theft, or
resisting apprehension immediately thereafter, employ or
threaten to immediately employ physical force upon
another person, while armed with a deadly weapon, or
representation that he was so armed, in violation of
Ark. Stats. Ann. § 41-2102; and,
did unlawfully and with the purpose of depriving the
owner of its property, knowingly take or exercise unautho-
rized control over cash and pizza, such being the property
of Dominoe’s [sic] Pizza, in violation of Ark. Stats. Ann.
§ 41-2203.
6 No. 11-2507
The judgments and plea questionnaires for the 1985
offenses that were submitted to the district court do
not provide further information regarding the offenses.
The two judgments are identical except for the cause
numbers, the crimes listed, and the sentencing informa-
tion. The two plea questionnaires are also the same
aside from the cause numbers listed at the top of the
page.4 Despite the best efforts of the probation officer,
no additional records for the 1985 offenses were located.
At the hearing, the parties agreed that under Shepard
v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d
205 (2005), the district court could only consider the
charging documents, the judgments, and the plea ques-
tionnaires from the 1985 convictions in determining
whether Kirkland’s convictions were for offenses that
occurred on different occasions. Based on this record,
the government conceded that it was possible that the
two offenses occurred simultaneously given that
Kirkland was convicted of the offenses with two co-
defendants, and there was no information regarding
the time of either offense or the location of the robbery
to indicate otherwise. Nevertheless, the government
argued that the ACCA enhancement was appropriate
because Kirkland could not show that the offenses oc-
curred on the same occasion. Kirkland, in turn, agreed
4
In fact, the plea questionnaires appear to be copies of the
same document with one cause number scratched out and
replaced by the other cause number. Both plea questionnaires
therefore list all four offenses—aggravated robbery, theft of
property, burglary, and battery.
No. 11-2507 7
that the ambiguities in the record created a situation
in which, at best, the district court was left with “a guess”
as to what occurred if it only considered Shepard-
approved documents. He accordingly offered an
affidavit and testimony regarding the events that led to
the 1985 convictions in an effort to show that the
offenses occurred on the same occasion, even though
he conceded that such evidence was not contemplated
by Shepard.
Before determining whether the burglary and robbery
convictions resulted from offenses that were committed
on separate occasions, the district court concluded
that Shepard precluded it from considering Kirkland’s
affidavit or testimony.5 That left, as the district court
put it, a “factually sparse” record relevant to deter-
mining whether the offenses were “committed on occa-
sions different from one another.” In particular, the
district court noted that the record lacked information
regarding the timing of the offenses and the location
of the robbery. The fact that two co-defendants were
involved in both offenses further complicated the
inquiry as to the sequence of events. Ultimately, the
district court concluded that “based on the limited facts
available for review,” Kirkland could not prove by a
preponderance of the evidence that the offenses
5
The government also submitted a Department of Correction
admissions record, but the district court declined to consider
it. The district court also declined to consider portions of
the PSR that were not based on Shepard-approved sources.
8 No. 11-2507
occurred on a single occasion. Accordingly, the district
court denied Kirkland’s § 2255 petition because the
1985 convictions for burglary and robbery, combined
with the undisputed 1984 conviction for burglary,
served as the necessary predicates for an enhance-
ment under the ACCA. In an alternative holding, the
district court considered Kirkland’s testimony and deter-
mined that it did not alter its conclusion that the ACCA
enhancement was warranted in this case. Following
the district court’s granting of a certificate of appeal-
ability, Kirkland appealed.
II. DISCUSSION
Kirkland challenges the district court’s use of his 1985
convictions to enhance his sentence under the ACCA
because he contends that the violent felonies were com-
mitted on the same occasion. We review de novo the
district court’s application of the ACCA to Kirkland’s
sentence. United States v. Foster, 652 F.3d 776, 792 (7th
Cir. 2011) (citing United States v. Fife, 624 F.3d 441,
445 (7th Cir. 2010)). Any factual findings related to
Kirkland’s prior convictions, however, are reviewed for
clear error. Id. (citing United States v. Aljabari, 626 F.3d 940,
950 (7th Cir. 2010)).
A. Shepard Source Restriction
Before reaching Kirkland’s primary argument on
appeal, we first address the preliminary issue of whether
the evidentiary restrictions set forth in Shepard v. United
No. 11-2507 9
States apply to the “different occasion” inquiry under
§ 924(e)(1). We agree with the district court that Shepard
does apply, and though we have indicated as much in
prior opinions, see United States v. Ngo, 406 F.3d 839, 843
n.1 (7th Cir. 2005), United States v. Hunter, 418 Fed.
Appx. 490, 494 (7th Cir. 2011), we briefly explain our
reasoning in an attempt to clarify this constantly
evolving and “not always very logical” area of the law,
United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006).
The ACCA provides that anyone who has “three previ-
ous convictions . . . for a violent felony or a serious drug
offense, or both, committed on occasions different from
one another” is an armed career criminal and subject to
a fifteen-year mandatory minimum sentence. 18 U.S.C.
§ 924(e)(1). In Taylor v. United States, the Supreme
Court addressed how a district court may determine
whether a prior conviction qualifies as a “violent felony”
as defined under § 924(e)(1). 495 U.S. 575, 110 S.Ct.
2143, 109 L.Ed.2d 607 (1990). The defendant in Taylor
pleaded guilty to possession of a firearm by a felon in
violation of § 922(g)(1), and the government sought a
sentencing enhancement under § 924(e) based on his
criminal history that included burglary convictions. Id.
at 578-59, 110 S.Ct. 2143. The defendant argued that
although “burglary” is one of the “violent felon[ies]”
identified in § 924(e)(2)(B), his prior convictions for
burglary could not be predicate offenses because they
did not involve conduct presenting “a serious potential
risk of physical injury to another” as required by
10 No. 11-2507
§ 924(e)(2)(B)(ii). Id. at 579, 110 S.Ct. 2143.6 The Court
first determined that the “generic” meaning of burglary
was the proper definition of “burglary” under § 924(e),
meaning that if a defendant’s prior conviction involved
a crime with the basic elements of “generic burglary,”
regardless of the label of the conviction, the conviction
counts as a predicate offense for purposes of § 924(e). Id.
at 599, 110 S.Ct. 2143.
The Court next addressed the question of how to deter-
mine if a defendant’s prior conviction for burglary
qualifies as a conviction for “generic burglary” where
the state statute under which the defendant is convicted
6
18 U.S.C. § 924(e) provides:
(1) In the case of a person who violates section 922(g) . . .
and has three previous convictions by any court . . . for a
violent felony or a serious drug offense, or both . . . such
person shall be fined not more than $25,000 and impris-
oned not less than fifteen years.
(2) As used in this subsection— . . .
(B) the term “violent felony” means any crime punish-
able by imprisonment for a term exceeding one
year . . . that—
(i) has an element the use, attempted use, or
threatened use of physical force against the
person of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct
that presents a serious potential risk of physical
injury to another.
No. 11-2507 11
varies from the “generic definition.” Id. at 599, 110 S.Ct.
2143. The Court concluded that the plain language of
the ACCA, its legislative history, and practical consider-
ations require “a formal categorical approach” to this
inquiry that permits the trial court to look only to “the
fact of conviction and the statutory definition of the
prior offense” and “not to the facts underlying the
prior conviction.” Id. at 600-02, 110 S.Ct. 2143. The
Court acknowledged an exception in cases in which
the statutory definition of an offense encompasses
conduct that would qualify as a “violent felony” and other
conduct that would not. Id. at 602. In this “narrow range
of cases,” the district court can look to the charging
document and jury instructions to determine if the de-
fendant was “necessarily” convicted of conduct that
qualifies as a “violent felony.” Id.
In United States v. Hudspeth, a majority of this court
held that the source restriction outlined in Taylor for the
determination of whether an offense qualifies as a
“violent felony” did not apply when deciding whether
multiple offenses occurred on one or more “occasions.” 42
F.3d 1015, 1018 n.3 (7th Cir. 1994) (en banc). The majority
reasoned that “[a]s a practical matter, a district court
frequently must look beyond the charging papers and
judgment of conviction for these documents alone
rarely provide the district court with the detailed infor-
mation necessary (i.e., time, victim, location) to deter-
mine whether multiple offenses occurred on one or more
‘occasions.’ ” Id. Accordingly, under Hudspeth, a district
court could rely on documents such as police reports
that were not permissible under Taylor to examine the
12 No. 11-2507
factual underpinnings of a defendant’s prior convic-
tions. Id.
In 2005, the Supreme Court revisited the issue of what
materials a sentencing court may consider in deter-
mining the nature of a defendant’s prior felony convic-
tions for purposes of § 924(e)(1) in Shepard. 544 U.S. at 16,
125 S.Ct. 1254. Shepard, like Taylor, involved a prior bur-
glary conviction in a state in which the burglary
statute covered a broader range of conduct than the
“generic burglary” needed for an ACCA enhancement
as a “violent felony.” The defendant’s burglary conviction
in Shepard, however, resulted from a guilty plea and not
a jury trial, and because there were no jury instructions,
the government urged the district court to consider
police reports and complaint applications in deter-
mining whether the defendant’s convictions were for
“generic burglaries.” 544 U.S. at 17-18, 125 S.Ct. 1254. The
district court declined to consider this evidence, and
did not apply the ACCA enhancement because it “found
that the Government had failed to carry its burden
to demonstrate that Shepard had pleaded to three
generic burglaries.” Id. at 18-19, 125 S.Ct. 1254. The First
Circuit vacated the sentence and remanded for
resentencing “[a]fter observing that Shepard never ‘seri-
ously disputed’ that he did in fact” commit the acts
described in the police reports and complaint applica-
tions. Id. at 19, 125 S.Ct. 1254 (citation omitted).
The Supreme Court reversed. Because there was no
reason “to ease away from the Taylor conclusion,” the
Court rejected the government’s arguments for a “wider
No. 11-2507 13
evidentiary cast” and concluded that a district court
may not consider police reports or complaint ap-
plications in determining whether a prior burglary con-
viction that resulted from a guilty plea was a “violent
felony.” Id. at 21-23; 125 S.Ct. 1254. Instead, the Court
held, a district court may only examine “the terms of the
charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by
the defendant, or to some comparable judicial record of
this information.” Id. at 26, 125 S.Ct. 1254. Like jury in-
structions in a jury case, or “the details of a generically
limited charging document . . . in any sort of case,” docu-
ments stating the facts to which the defendant
admitted in entering the plea will generally inform a
later court on the crucial question: “whether the plea
had ‘necessarily’ rested on the fact identifying the
burglary as generic.” Id. at 21, 125 S.Ct. 1254 (citing
Taylor, 495 U.S. at 602, 110 S.Ct. 2143).
A plurality of the Court in Shepard also noted that
developments since Taylor—particularly Jones v. United
States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),
and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000)—provided further reason to adhere
to the limited evidentiary inquiry permitted under Tay-
lor. Id. at 24, 125 S.Ct. 1254. Specifically, the plurality
pointed to the rule imposed in Jones and Apprendi 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 de-
fendant.” Id. (citing Jones, 526 U.S. at 243 n.6, 119 S.Ct. 1215,
and Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). While
14 No. 11-2507
recognizing the exception to this rule for prior convic-
tions established in Almendarez-Torres v. United States,
523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the
plurality concluded that the disputed fact in Shepard—
whether a prior conviction was for “generic” bur-
glary—was “too removed from the conclusive sig-
nificance of a prior judicial record, and too much like
the findings subject to Jones and Apprendi, to say that
Almendarez-Torres clearly authorizes a judge to resolve
the dispute.” Id. at 25, 125 S.Ct. 1254.7 The Sixth Amend-
ment concerns underpinning Jones and Apprendi there-
fore provided further support for limiting “the scope
of judicial factfinding on the disputed generic character
of a prior plea, just as Taylor constrained judicial
findings about the generic implications of a jury’s ver-
dict.” Id. at 25-26, 125 S.Ct. 1254.
We addressed the impact of Shepard on judicial
factfinding regarding the application of the career
offender provision of the then-mandatory Sentencing
Guidelines in Ngo, 406 F.3d at 842. The career offender
provision of the Guidelines at the time provided that
“[p]rior sentences imposed in unrelated cases are to be
counted separately” and “[p]rior sentences imposed in
related cases are to be treated as one sentence.” Id. at 841
(quoting U.S.S.G. § 4A1.2(a)(2)). The district court in Ngo
7
This part of the opinion did not command a majority because
Justice Thomas, as he explained in his concurrence, wanted to
go even further than the plurality and overrule Almendarez-
Torres. 544 U.S. at 27-28, 125 S.Ct. 1254 (Thomas, J., concurring
in part and concurring in the judgment).
No. 11-2507 15
sentenced the defendant as a career offender based on
two prior armed robbery convictions that it concluded
were not related because they were not consolidated
for sentencing or part of a common scheme or plan. Id.
On appeal, the defendant argued that the district court’s
conclusion that he was a career offender “entailed
finding facts beyond the ‘fact of prior conviction,’ namely,
that his prior convictions were not consolidated for
sentencing or part of a common scheme or plan,” which
violated Almendarez-Torres as interpreted by Apprendi and
Shepard. Id. at 842. We agreed with the defendant, noting
that the Shepard plurality’s narrowing of the Almendarez-
Torres exception for prior convictions “suggests that
the recidivism exception exempts only those findings
traceable to a prior judicial record of ‘conclusive signifi-
cance.’ ” Id. We therefore concluded that the district
court’s finding that the defendant’s crimes were not part
of a common scheme or plan, which “was determined
by resorting to sources of information without the ‘con-
clusive significance’ of a prior judicial record, was not
‘clearly authorized’ by Almendarez-Torres.” Id. at 842-43.
Because this finding was used to increase the de-
fendant’s guideline range, his sentence violated the Sixth
Amendment. Id. at 843; see also United States v. McGee,
408 F.3d 966, 988-89 (7th Cir. 2005) (remanding career
offender sentence because of sentencing court’s possible
reliance on a police report to determine that two offenses
were not related).8
8
Regarding the district court’s finding that the defendant’s
crimes were not consolidated, we concluded that there was no
(continued...)
16 No. 11-2507
Relying on Taylor, Shepard, and Ngo, the district court
in this case concluded in its thorough and well-reasoned
opinion that it was limited to considering “the terms of
the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by
the defendant, or to some comparable judicial record of
this information,” Shepard, 544 U.S. 13 at 26, 125 S.Ct. 1254,
for the different occasions inquiry. We agree that the
reasoning behind these decisions clearly applies to the
determination of whether prior offenses occurred on
“occasions different from one another.” 9 Indeed, in Ngo
we noted that while the advisory nature of the Guide-
lines after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,
160 L.Ed.2d 621 (2005), resolved the Sixth Amendment
implications of judicial factfinding regarding the career
offender provision of the Guidelines, “no such cure
exists with respect to statutory enhancements—such as
[the ACCA]—which mandate higher sentences and leave
no discretion to the judge.” Ngo, 406 F.3d at 843 n.1; see
8
(...continued)
Sixth Amendment problem because our precedent already
limited the district court to considering sources that have
the “conclusive significance of a prior judicial record” as
required by Shepard when deciding a disputed consolidation
question. Id.
9
This conclusion, of course, means that the portion of Hudspeth
distinguishing Taylor and permitting the consideration of
police reports for the different occasion inquiry, 42 F.3d at
1019 n.3, is no longer good law.
No. 11-2507 17
also Hunter, 418 Fed. Appx. at 494 (applying the Shepard
source restriction to the different occasions inquiry,
but also noting that courts may also rely on undisputed
sections of a PSR to determine whether prior offenses
were committed on different occasions). This conclusion
also accords with our sister circuits, many of which
have also decided that the Shepard source restriction
applies to the determination of whether prior offenses
occurred on “occasions different from one another” under
§ 924(e)(1). See United States v. Thomas, 572 F.3d 945, 950-51
(D.C. Cir. 2009) (recognizing that the Shepard source
restriction applies to the different occasions inquiry);
United States v. Thompson, 421 F.3d 278, 285-86 (4th Cir.
2005) (upholding the district court’s reliance on the PSR
to find that three burglaries occurred on different
occasions where that information was derived from
Shepard-approved sources); United States v. Fuller, 453 F.3d
274, 279-80 (5th Cir. 2006) (applying Shepard to the
different occasions inquiry and vacating sentence be-
cause the Shepard-approved documents did not establish
that the offenses occurred on different occasions); United
States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2006)
(vacating a sentence enhanced by the ACCA and remand-
ing because it was unclear whether the district court
limited itself to Shepard-approved sources in determining
that the defendant’s prior crimes were committed on
different occasions); United States v. Sneed, 600 F.3d 1326,
1332-33 (11th Cir. 2010) (vacating an ACCA-enhanced
sentence and remanding where the district court relied
on police reports, which are not Shepard-approved, in
determining that the defendant’s prior convictions were
18 No. 11-2507
committed on different occasions). Accordingly, as
the district court properly concluded here, courts may
only consider Shepard-approved sources in determining
whether prior offenses occurred on separate occasions
under § 924(e)(1).
B. Different Occasions Inquiry
We turn now to the primary question on appeal of
whether Kirkland’s 1985 convictions were for offenses
“committed on occasions different from one another” as
required by § 924(e)(1). Although we and other circuit
courts have grappled with the meaning of “occasions
different from one another,” the majority of this court set
forth a framework for making the determination re-
quired by § 924(e)(1) in Hudspeth. 42 F.3d at 1019. Hudspeth
emphasized that the key issue for purposes of the statutory
enhancement is not whether the prior offenses are “re-
lated,” but whether each arose out of a “ ‘separate and
distinct criminal episode.’” Id. (quoting United States v.
Schieman, 894 F.2d 909, 911 (7th Cir. 1990)). Hudspeth
indicated that the primary question relevant to this deter-
mination “is simple: were the crimes simultaneous or were
they sequential?” Id. at 1021. This means that “one crime
hard on the heels of another can be a ‘separate and distinct
criminal episode[.]’ ” United States v. Godinez, 998 F.2d 471,
472 (7th Cir. 1993); United States v. Morris, 293 F.3d 1010,
1014 (7th Cir. 2002). The majority in Hudspeth reasoned
that an individual who has an opportunity to withdraw
from his criminal activity, but who chooses to commit
additional crimes, should be punished more harshly
No. 11-2507 19
than an individual who commits simultaneous crimes
and “has no opportunity to turn back and abandon his
criminal conduct.” 42 F.3d at 1021. Accordingly, under
this inquiry, courts consider the “nature of the crimes,
the identities of the victims, and the locations” of the
offenses, and whether the “perpetrator had the opportu-
nity to cease and desist from his criminal actions at
any time.” Id. at 1019; Morris, 293 F.3d at 1013.
Applying these factors here, we agree with the district
court that the “factually sparse” record sheds little light
on whether the 1985 offenses occurred on the same occa-
sion. The charging informations for the burglary and
robbery establish that Kirkland and his co-defendants
committed both offenses on the same day, but there is
no information as to the timing or sequence of events.
Regarding the location of the offenses, we know the
burglary occurred in the residence of Charles Gabbard,
but we do not know the location of the robbery. In terms
of the victims of the offenses, the information makes
clear that Gabbard was the victim of the burglary. For
the robbery, the district court found that the victim was
a Domino’s Pizza delivery person. On appeal, Kirkland
argues that this finding was in error because the rob-
bery and theft counts listed in the information for
cause number “C 85-105” are separate counts, and “noth-
ing” in the information indicates that the robbery was of
a Domino’s Pizza delivery person. Instead, Kirkland
suggests, the “logical inference” from the evidence is
that the victim of the robbery was Gabbard.
We need not decide whether the district court’s
finding that the unnamed individual identified in the
20 No. 11-2507
robbery count was an employee of Domino’s Pizza was
a permissible inference for the district court to make;
even with this finding of fact and the different nature
of the offenses, we cannot conclude that the offenses
occurred on separate occasions. As the burglary and
robbery happened on the same day, Kirkland was
charged with co-defendants for both offenses, and the
record lacks key information such as the timing and
location of the offenses, we do not know if the offenses
occurred simultaneously or sequentially. The govern-
ment conceded at Kirkland’s resentencing hearing that
Kirkland could have committed one offense while his co-
defendants committed the other offense.1 0 Neverthe-
less, the government urges us to affirm the ACCA en-
hancement despite the ambiguities in the record because
once the government provided evidence of three prior
“violent felony” convictions, it was Kirkland’s burden
to prove that the offenses occurred on the same occasion.
Given the sparse record, the government argues, Kirkland
cannot meet that burden.
It was on this basis that the district court applied
the ACCA enhancement; it did not conclude that the
Shepard-approved sources established that the 1985 of-
fenses occurred “on occasions different from one an-
other,” but rather that Kirkland could not prove any-
10
Based on the government’s representations at the resen-
tencing hearing and in its sentencing memo, we assume
without deciding that Kirkland could have been convicted
of both offenses under such a scenario under Arkansas law
at the time.
No. 11-2507 21
thing to the contrary given the state of the record. The
source of this burden shifting scheme upon which the
government’s argument rests is a footnote in Hudspeth, in
which the majority of this court outlined the burden
of proof for the separate occasions inquiry as follows:
[U]nder § 924(e)(1), the government must
establish that a defendant has three prior
violent felony convictions. A certified
record of conviction or a [PSR], if not chal-
lenged, will normally satisfy this show-
ing. . . . The burden then shifts to the de-
fendant to establish by a preponderance
of the evidence that the prior convictions
occurred on a single “occasion,” and thus
cannot be the basis for the sentence enhance-
ment under § 924(e)(1).
Hudspeth, 42 F.3d at 1019 n.6 (internal citations omitted).
On appeal, Kirkland argues that this burden allocation
combined with the Shepard source restriction means
that the ACCA enhancement is automatic when there
are few Shepard-approved documents and they are incon-
clusive as to the separate occasions inquiry. We agree
that the landscape of the law involving sentencing en-
hancements such as the ACCA has changed dramatically
since Hudspeth. When Hudspeth was decided, we as-
sumed that district courts had free reign to develop a
factual record regarding the crime of conviction to
support an ACCA enhancement, and could rely upon
a wide variety of sources to make factual findings.
Hudspeth, 42 F.3d at 1019 n.3. That is clearly not the
22 No. 11-2507
case anymore. As discussed above, although Shepard
involved the “violent felony” issue, its logic extends to
the “different occasions” issue, and its notions that
“certainty of record” is required for an ACCA enhance-
ment and that “collateral trials” regarding past convic-
tions should be avoided clearly conflict with Hudspeth’s
approval of an extensive factual inquiry at sentencing
regarding prior convictions. See Shepard, 544 U.S. at 23 n.4,
125 S.Ct. 1254 (“Taylor is clear that any enquiry beyond
statute and charging document must be narrowly re-
stricted to implement the object of the statute and avoid
evidentiary disputes.”).
When properly viewed in this post-Shepard context,
we believe that the burden shifting scheme set forth in
Hudspeth is no longer tenable because it essentially
requires an ACCA enhancement even if the available
Shepard-approved documents—the only evidence a sen-
tencing court may consider—is inconclusive as to
whether the offenses occurred on separate occasions.
After thorough consideration of our prior precedent, the
nature of proof for the different occasions inquiry, and
the opinions of our sister circuits, we conclude that the
more appropriate burden allocation for the separate
occasions inquiry requires the government to establish
by the preponderance of the evidence—using Shepard-
approved sources—that the prior convictions used for the
ACCA enhancement were “committed on occasions
different from one another.” 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.
No. 11-2507 23
This conclusion follows our well-established precedent.
A review of our cases considering the separate occasions
requirement before and after Hudspeth shows that we
have only affirmed ACCA enhancements after con-
cluding that the underlying record indicated that the prior
offenses were committed sequentially. See, e.g., United
States v. Nigg, 667 F.3d 929, 936 (7th Cir. 2012) (“Nigg’s
crimes were obviously committed in sequential fashion,
as it is physically impossible for one person to commit
three armed robberies simultaneously at three different
locations against three different victims on three different
dates.”); Morris, 293 F.3d at 1013 (“[T]he two offenses
committed by Morris, although close in time and loca-
tion, involved distinct criminal aggressions from which he
had an opportunity to cease and withdraw.”); United
States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000) (“In
this case, the two sales of crack cocaine on March 27 were
two separate and distinct episodes. While Cardenas sold
the crack cocaine to the same people, the sales were
separated by forty-five minutes and a half a block.
Cardenas had plenty of time to change his mind, to cease
and desist, and to refuse to sell to the informants.”);
Godinez, 998 F.2d at 473 (“Godinez . . . committed his
crimes against different victims, in different places,
more than an hour apart. It would strain language con-
siderably, without serving any purpose plausibly attrib-
uted to Congress, to treat the kidnapping and the robbery
as a single ‘occasion.’ ”); Schieman, 894 F.2d at 913
(“Schieman had successfully completed the burglary of
Jenny’s Cake Fair and safely escaped from the premises
before committing the subsequent offense.”). In fact, we
24 No. 11-2507
have not cited the portion of the Hudspeth burden
shifting scheme that requires the defendant to prove
that the prior offenses occurred on separate occasions
since Hudspeth, and even then, it was not at issue.
Instead, whenever we have had doubts as to whether
the record indicated that the offenses occurred on
separate occasions, we have declined to use the offense as
a predicate conviction for the ACCA enhancement or
remanded the case to the district court for further fact-
finding. The first time we considered whether the de-
fendant in Hudspeth was appropriately determined to be
an armed career criminal, the district court had relied
upon three burglary convictions the defendant had re-
ceived in 1983 as the predicates for the ACCA enhance-
ment. United States v. Hudspeth, No. 91-3786, 974 F.2d
1340, 1992 WL 205666, at *2 (7th Cir. 1992) (unpublished).
The only information we had regarding the burglaries
on appeal, however, was that the defendant and two co-
defendants “had entered Homestyle Cleaners, Melocreme
Donut, and Farmer’s Insurance Company located in
Springfield, Illinois.” Id. We concluded that this “brief
description” did not provide us with “sufficient infor-
mation to discern whether the 1983 burglaries were part
of the same or separate and distinct criminal episodes,”
and we therefore “[could not] decide whether Hudspeth’s
sentence was properly enhanced under § 924(e).” Id.
(citation omitted). We vacated the defendant’s sentence
and remanded the case to the district court for further
factual development. Id. After the district court inquired
into the facts surrounding the three burglaries on
remand, the majority of this court affirmed the ACCA
No. 11-2507 25
enhancement because the facts revealed that “Hudspeth
committed three separate crimes, at three separate
times, against three separate victims, in three separate
locations,” and that “[e]ntry into each successive
business reflected a clear and deliberate choice to commit
a ‘distinct aggression.’ ” Hudspeth, 42 F.3d at 1022-23
(citation omitted).11
In a post-Hudspeth case, United States v. Thomas, we
were again faced with an ambiguous record regarding a
defendant’s prior convictions. 280 F.3d 1149, 1159-60
(7th Cir. 2002). The defendant had three prior robbery
convictions, and while we concluded that at least two
of the convictions occurred on different occasions, we
noted that “[i]t is unclear from the record whether the
third robbery, which was committed on the same day as
one of the others, was also committed on a different
occasion because we do not know the time of day that
the robbery occurred nor do we have any facts (other
than the identity of the victim and the amount of money
taken) surrounding the robbery.” Id. at 1159 n.3. This
ambiguity proved inconsequential in Taylor because
the defendant had an additional conviction that served
as the third predicate offense for the ACCA enhancement.
Id. at 1160. Nevertheless, it shows that we have not en-
dorsed the government’s position that proof of prior
“violent felony” convictions plus an ambiguous record
11
As noted above, in Hudspeth the majority relied upon
sources for this conclusion that can no longer be considered
after Shepard.
26 No. 11-2507
regarding the separate occasions inquiry is sufficient
to support an ACCA enhancement.
Unlike with other questions for which the defendant
bears the burden of proof at sentencing, requiring the
government to prove by the preponderance of the
evidence that the prior offenses occurred on separate
occasions is not an onerous burden. Under § 924(e)(1), the
government already has the burden of proving three
predicate convictions for “violent felon[ies],” and after
Shepard, the evidence used to determine that offenses
occurred on separate occasions is the same evidence
used to determine if the prior convictions were for
“violent felon[ies].” See Sneed, 600 F.3d at 1332
(“[T]here 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 if they
were committed on different occasions[.]”); Thompson,
421 F.3d at 286 (The “ACCA’s use of the term ‘occasion’
requires recourse only to data normally found in con-
clusive judicial records, such as the date and location of
an offense, upon which Taylor and Shepard say we may
rely.”). Indeed, in rejecting arguments after Apprendi
that the separate occasions determination falls outside
the Almendarez-Torres exception, we and other circuits
have gone to great lengths to explain that the facts
related to whether prior convictions occurred on dif-
ferent occasions cannot be easily distinguished from the
facts related to the existence of the prior convictions. See,
e.g., Morris, 293 F.3d at 1012 (concluding that the dif-
ferent occasions determination falls within the Apprendi
exception); United States v. Santiago, 268 F.3d 151, 156-57
No. 11-2507 27
(2d Cir. 2001) (“[W]e are satisfied . . . that § 924(e)’s ‘differ-
ent occasions’ requirement falls safely within the range
of facts traditionally found by judges at sentencing and
is sufficiently interwoven with the facts of the prior
crimes that Apprendi does not require different fact-
finders and different burdens of proof for Section 924(e)’s
various requirements.”); Thompson, 421 F.3d at 285-86 (“The
data necessary to determine the ‘separateness’ of the
occasions is inherent in the fact of the prior convictions.”);
United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004)
(“[T]he ‘different occasions’ requirement of § 924(e) cannot
be significantly distinguished from ‘the fact of a prior
conviction.’ ”); United States v. Harris, 447 F.3d 1300, 1304
(10th Cir. 2006) (“Like the number of prior crimes and
whether they are violent felonies, separateness is an
‘inquiry intimately related to whether a prior convic-
tion exists.’ ”) (citation omitted).
Requiring the government to prove that the prior of-
fenses occurred on separate occasions is also not an
onerous burden because, as discussed above, a funda-
mental aspect of the framework we have adopted for
the separate occasions inquiry is whether the de-
fendant had an opportunity between offenses to cease
from the criminal activity. Thus, if the Shepard-approved
documents show that the offenses occurred on different
days, or, in other words, were committed sequentially
rather than simultaneously, the government will presum-
ably meet its burden. Or if the documents show that the
offenses occurred on the same day, but the nature of the
offenses is such that they could not have occurred
without giving the defendant an opportunity to recon-
28 No. 11-2507
sider his or her conduct and refuse to commit the
second crime, the government will likely meet its bur-
den. It is only in exceptional cases such as this one,
which have factually sparse records and factors that
complicate the determination of whether the offenses
occurred simultaneously or sequentially, that the gov-
ernment will find it difficult to meet its burden.
The Supreme Court has recently acknowledged, how-
ever, that the “absence of records will often frustrate
application of the modified categorical approach,” used
to determine whether a prior offense qualifies as a
“violent felony.” Johnson v. United States, ___ U.S. ___,
130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010). We do not
think that the lack of available records shedding light
on the different occasions inquiry should lead to a dif-
ferent result.
The government’s ease of access to proof for the
separate occasions requirement stands in contrast to its
access to proof for questions regarding the invalidity of
a defendant’s prior conviction, which the defendant
bears the burden of proving when challenging the use of
a prior conviction under the ACCA. See, e.g., United
States v. Gallman, 907 F.2d 639, 643 (7th Cir. 1990) (“For
purposes of section 924(e)(1), we believe that once the
government has shown that a defendant has three
prior ‘violent felony’ convictions, the burden rests with
the defendant to show that the conviction was uncon-
stitutional.”) (citations omitted). We and other circuits
have required defendants to bear this burden because
“[a]ny given conviction might suffer any of a myriad
of constitutional defects” and “[i]t would approach
No. 11-2507 29
the absurd to require the government to undertake to
prove guilt all over again in every predicate conviction.”
United States v. Ruo, 943 F.2d 1274, 1276 (11th Cir. 1991)
(adopting the Gallman standard for challenges to the
validity of prior convictions).1 2 Similarly, we have
required defendants to bear the burden of proving by
the preponderance of the evidence that their civil rights
have been restored when challenging the use of a prior
conviction under the “anti-mousetrapping” provision of
18 U.S.C. § 921(a)(20). See United States v. Gant, 627 F.3d
677, 682 (7th Cir. 2010); United States v. Vitrano, 405 F.3d
506, 509 (7th Cir. 2005). This is because “[i]t is certainly
much easier for criminal defendants to raise the issue
of whether their prior convictions have been nullified or
their civil rights otherwise restored” than for the gov-
ernment “to refute every possibility that criminal defen-
dants have had their prior convictions nullified or their
civil rights restored.” United States v. Bartelho, 72 F.3d
436, 440 (1st Cir. 1995); see also Foster, 652 F.3d at 791
(“Requiring [the government to prove beyond a rea-
sonable doubt that the defendant’s civil rights have not
been restored] ‘would impose an onerous burden,’ seeing
that a defendant ‘ordinarily will be much better able to
raise the issue of whether his . . . civil rights have been
restored.’ ”) (quoting United States v. Flower, 29 F.3d 530,
535 (10th Cir. 1994)). The same can be said of the career
12
After Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128
L.Ed.2d 517 (1994), a defendant may only collaterally attack a
prior state conviction obtained in violation of the right to
counsel.
30 No. 11-2507
offender provision of the Sentencing Guidelines. See, e.g.,
United States v. Joy, 192 F.3d 761, 771 (7th Cir. 1999)
(“Because the defendant is in the best position to know
whether he jointly planned two or more crimes and is the
beneficiary of any reduction in his sentence, he has the
burden of showing that his prior offenses were part of a
single scheme or plan [under the career offender pro-
vision of the Sentencing Guidelines.]”) (citations omit-
ted). By contrast, in the vast majority of cases, proving
that a defendant’s prior convictions were “committed on
occasions different from one another” will impose no
greater burden on the government than the govern-
ment already has in proving the existence of three
prior “violent felony” convictions.
Our conclusion that the government must prove
both the existence of the prior convictions for violent
felonies and that the prior convictions occurred on differ-
ent occasions is bolstered by our sister circuits’ treat-
ment of the different occasions inquiry, which also indi-
cates that the burden for the different occasions
inquiry properly belongs with the government. For exam-
ple, in United States v. Boykin, the Fourth Circuit recently
vacated an ACCA enhancement where the district court
improperly considered a PSR that did not “bear the
earmarks of derivation from Shepard-approved sources” for
the separate occasions inquiry. 669 F.3d 467, 469-471
(4th Cir. 2012). Without the PSR, the only information
applicable to the different occasions inquiry found in
Shepard-approved sources was the fact that the defendant
was convicted of two violent felonies—one for second-
degree murder and the other for assault with a deadly
No. 11-2507 31
weapon inflicting serious injury—on the same day. Id. at
471-72. The Fourth Circuit concluded that the “ACCA
cannot apply on such a meager factual basis,” reasoning
that “[i]t 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).” Id. at 472;
see also United States v. Russell, 402 Fed. Appx. 772, 773
(4th Cir. 2010) (“If the government can demonstrate,
based upon Shepard-approved documents . . . that the
[prior] convictions were committed on occasions
different from one another, then the district court can
apply the ACCA enhancement.”) (internal citations
omitted).
Similarly, in Sneed, the Eleventh Circuit was faced
with an appeal from an ACCA enhancement in which
the district court had considered police reports—a non-
Shepard-approved source—in determining that the de-
fendant’s prior felony convictions were committed on
different occasions. 600 F.3d at 1329. The state court
indictment, which was the only Shepard-approved docu-
ment produced by the government, contained the same
language for each of the defendant’s three drug
offenses and did “not specify a date or time, much less
different dates or different times on the same date.” Id. at
1333. Because the “government must show ‘the three
previous convictions arose out of a separate and
distinct ‘criminal episode,’ ” and the government had
not submitted any other Shepard-approved material, the
Eleventh Circuit vacated the defendant’s sentence and
remanded the case for resentencing. Id. at 1332-33; see also
32 No. 11-2507
United States v. Morejon, 437 Fed. Appx. 795, 798-99
(11th Cir. 2011) (vacating sentence where the sources in
support of the government’s assertion that the crimes
occurred on different occasions were arrest reports,
which are not Shepard-approved, and the state court
judgments did not include the date, time, or any facts
about the offenses).
Other circuits have also suggested that the govern-
ment bears the burden of proof under the different occa-
sions inquiry or that an ambiguous record is insufficient
to sustain an ACCA enhancement. See United States v.
Gillies, 851 F.2d 492, 497 (1st Cir. 1988) (“[Because the
defendant also had two convictions for robberies,] even
if . . . the two burglary convictions stemmed from one
‘episode’ . . . the government still proved three ‘violent
felony’ convictions as required by § 924(e).”); United
States v. Rideout, 3 F.3d 32, 35 (2d Cir. 1993) (“[W]e
reject Rideout’s claim that the Government presented
insufficient evidence to demonstrate that the triggering
offenses were distinct. The District Court had the
certified records of the prior state convictions, and the
Government introduced evidence of the distance and
travel time between the two homes.”); United States
v. Brown, 241 Fed. Appx. 890, 894-95 (3d Cir. 2007) (re-
manding ACCA-enhanced sentence due to the govern-
ment’s failure to meet “its burden under the ACCA to
prove that Brown has been convicted of three serious
drug offenses or violent felonies committed on separate
occasions” because “[b]ased on the record as it stands, it
is impossible to conclude that Brown was convicted of
three offenses ‘committed on occasions different from
No. 11-2507 33
one another . . .”); United States v. DeRoo, 13 Fed. Appx.
436, 438 (8th Cir. 2001) (vacating ACCA-enhanced sentence
and remanding case for further examination of prior
convictions because the record did not reveal “whether
there were separate burglaries in 1989 or whether they
were part of a continuous course of criminal conduct”);
Taylor, 413 F.3d at 1157-58 (remanding case where
district court may have relied upon non-Shepard-
approved sources to determine that offenses were com-
mitted on separate occasions so that the district court
could “determine whether the government can provide
evidence regarding Taylor’s prior violent crime convic-
tions consistent with Shepard . . .”); Thomas, 572 F.3d at
950 (“[E]ven assuming it was permitted to revisit
Thomas’s ACCA status, the district court erred in con-
cluding the Government presented insufficient evidence
that the two predicate drug offenses were ‘committed
on occasions different from one another’ . . . . The two
indictments offered in the second sentencing satisfied
the evidentiary requirements set out in Taylor and
Shepard.”) (internal citation omitted).
Only the Fifth and Ninth Circuits have cited the
burden shifting scheme set forth in Hudspeth, United
States v. Bookman, 263 Fed. Appx. 398, 400 n.1 (5th Cir.
2008); United States v. Taylor, 263 Fed. Appx. 402, 404 n.1
(5th Cir. 2008); United States v. Phillips, 149 F.3d 1026, 1033
(9th Cir. 1998), yet neither circuit has applied it as the
government asks us to in this case. Rather than placing
the burden on the defendant to put forth evidence that
the prior offense occurred on the same occasion, both
circuits have indicated that the government must
34 No. 11-2507
provide evidence that the offenses occurred on different
occasions, and the defendant then bears the burden of
challenging that evidence. See Phillips, 149 F.3d at 1033
(“The government carried its burden of proving by a
preponderance of the evidence that Phillips committed
three predicate offenses ‘on occasions different from one
another.’ It did so by submitting unchallenged, certified
records of conviction and other clearly reliable evi-
dence. . . . The burden then shifted to Phillips to challenge
the government’s evidence.”) (internal citations omitted).
In Bookman, for example, the government submitted
Shepard-approved documents that indicated that the
defendant’s prior convictions were for offenses com-
mitted on different dates and involved different victims.
263 Fed. Appx. at 399. The defendant argued, however,
that the “documents provided by the Government did
not sufficiently establish that his prior burglaries had
been committed on different dates because the indict-
ments alleged only that the offenses occurred ‘on or
about’ certain dates, not on any specific dates.” Id. The
Fifth Circuit rejected the defendant’s “attempt[] to intro-
duce uncertainty as to the date of the offenses,” and
concluded that the defendant had not met his burden
because he “provided no evidence that his burglaries
occurred simultaneously[.]” Id. at 401.1 3 Thus, the ACCA
13
We note that in discussing whether the defendant met his
burden regarding the different occasions inquiry, the Bookman
opinion repeatedly references United States v. Barlow, a case in
which the Fifth Circuit held that once the government estab-
(continued...)
No. 11-2507 35
enhancement was appropriate because the defendant did
not refute the government’s evidence indicating that
the offenses occurred on different occasions. Id.; see also
Taylor, 263 Fed. Appx. at 404-05 (affirming ACCA enhance-
ment where the indictments and judgments for the
two burglary convictions challenged by the defendant
established that the two offenses took place nine months
apart and the defendant did not put forth any evidence
that the offenses occurred simultaneously). Similarly,
in Phillips, the Ninth Circuit concluded that the ACCA
enhancement was appropriate because the government
had submitted reliable evidence that the defendant had
committed robberies involving two different victims
(in addition to a third prior felony conviction), and the
defendant failed to submit evidence challenging the
government’s evidence. 149 F.3d at 1032.1 4
(...continued)
lishes the fact of a prior conviction, the defendant must prove
the invalidity of the conviction by the preponderance of the
evidence. 17 F.3d 85, 89 (5th Cir. 1994) (citing Parke v. Raley, 506
U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)). As explained
above, while we agree that the defendant bears the burden
of proving the invalidity of prior convictions, which are pre-
sumptively valid, Parke, 506 U.S. at 29-30, 113 S.Ct. 517, we
believe that the burden of proof for the different occasions
requirement is a different matter.
14
Our recent opinion in United States v. Sims, No. 11-3550, slip
op. at 3-5, 2012 WL 2370107, at *1-2 (7th Cir. June 25, 2012),
accords with the different occasions inquiry as applied in
Bookman, Taylor, and Philips. In Sims, the government submitted
(continued...)
36 No. 11-2507
Despite having cited the burden shifting scheme set
forth in Hudspeth, both the Fifth and the Ninth circuits
have declined to apply the ACCA enhancement when
faced with an inconclusive record. See Fuller, 453 F.3d
at 279; United States v. McElyea, 158 F.3d 1016 (9th Cir.
1998). In Fuller, the defendant argued that his two prior
burglary convictions from the same day were not com-
mitted on separate occasions because he and an ac-
complice had entered the two buildings simultaneously.
Id. at 278. Based on the state court indictments—the
only Shepard-approved evidence in the record—the Fifth
Circuit held that it could not “determine as a matter of
law that the burglaries occurred on different occasions.”
Id. at 279. The Fifth Circuit noted that the defendant
may have been convicted “even if he was only a party to
the crime,” and “[b]ecause the record [did] not contain
the written plea agreement, the plea colloquy, or other
Shepard-approved material that might resolve this ques-
tion,” it vacated the defendant’s sentence with respect
to the ACCA enhancement. Id. at 279-80.
As in Fuller, the defendant in McElyea had two
prior burglary convictions that the district court used as
14
(...continued)
evidence establishing that the defendant’s two prior felony
convictions at issue were for offenses separated by a week,
and the defendant did not challenge that evidence or submit
any evidence that would support a finding that the offenses
occurred on the same occasion. Id. Given this record, we
concluded that it was appropriate for the district court to
treat the two offenses as separate. Id.
No. 11-2507 37
predicate felonies for the ACCA enhancement. 158 F.3d
at 1018. The defendant argued, though, that the convic-
tions were not “committed on occasions different from
one another.” Id. The record indicated that the de-
fendant and an accomplice broke into a store that was
part of a strip mall, and that a hole was cut in the wall
shared with another store, and items were stolen from
both stores, resulting in the defendant’s two convictions
for burglary. Id. The Ninth Circuit, in a split decision,
noted that “the record . . . [did] not contain any infor-
mation regarding the amount of time [the defendant]
spent in each store or whether he stayed in one store
while his accomplice entered the other store.” Id. at 1021.
The Ninth Circuit concluded that the district court erred
in applying the ACCA enhancement because “we
cannot say that the burglaries committed by [the defen-
dant] were ‘separate criminal episodes[.]’ ” Id. Thus,
although the Fifth and Ninth Circuits have cited the
burden shifting scheme set forth in the Hudspeth footnote,
we believe that the conclusion we reach today is in line
with both circuit’s precedent regarding the different
occasions inquiry.
In holding that the government bears the burden of
proving by the preponderance of the evidence that a
defendant’s prior convictions were “committed on occa-
sions different from one another” under § 924(e)(1), we
affirm that “[a] defendant who has the opportunity to
cease and desist or withdraw from his criminal activity
at any time, but who chooses to commit additional crimes,
deserves harsher punishment than the criminal who
commits multiple crimes simultaneously.” Hudspeth,
38 No. 11-2507
42 F.3d at 1021. Nevertheless, we believe that an ambigu-
ous record regarding whether a defendant actually had the
opportunity “to cease and desist or withdraw from
his criminal activity” does not suffice to support the
ACCA enhancement.1 5
III. CONCLUSION
For the foregoing reasons, we R EVERSE the judgment of
the district court and R EMAND the case for resentencing
in accordance with this opinion.
15
Because we conclude that the burden shifting scheme from
Hudspeth upon which the district court’s decision relied is no
longer tenable, we need not reach Kirkland’s second argument
on appeal that the district court erred in denying admission
of his affidavit and testimony.
7-24-12