United States v. Taylor

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 28, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-6174
MARSHELL CANTRELL TAYLOR,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CR-03-198-HE)

Paul Antonio Lacy, Assistant Federal Public Defender (Teresa Brown, Assistant
Federal Public Defender with him on the brief), Office of the Public Defender,
Oklahoma City, Oklahoma, for Defendant-Appellant.

Scott L. Palk, Assistant United States Attorney (Robert G. McCampbell, United
States Attorney with him on the brief), Office of the United States Attorney,
Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before KELLY , McWILLIAMS , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

Marshell Cantrell Taylor, pursuant to a plea agreement, pled guilty to being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and waived
his right to appeal his sentence. During sentencing, the district court made

findings of fact that enhanced Taylor’s sentence under the United States

Sentencing Guidelines. Taylor appealed his sentence, and while it was pending

the Supreme Court handed down Blakely v. Washington, 124 S. Ct. 2531 (2004),

and United States v. Booker, 125 S. Ct. 738 (2005).

Taylor argues his appeal is valid because one of the exceptions to his

waiver of appellate rights applies—that he can appeal based on “changes in the

law reflected in Tenth Circuit or Supreme Court cases decided after the date of

this agreement.” Assuming he can pursue his appeal, Taylor also argues the

district court violated Booker by (1) making findings of fact at sentencing, and

then (2) misapplying the facts to the Guidelines’ enhancement for possession of a

firearm in connection with a drug offense. Finally, during oral argument Taylor

asserted the district court violated the Supreme Court’s recent holding in Shepard

v. United States, 125 S. Ct. 1254 (2005) (issued three days before oral argument),

when it determined he was subject to a fifteen-year mandatory minimum sentence

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), as a result of

three prior convictions for violent felonies.

Taking jurisdiction pursuant to 28 U.S.C. § 1291, we hold Taylor can

pursue this appeal because the appeal waiver does not apply to the Supreme

Court’s newly announced sentencing cases. We conclude Taylor cannot

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demonstrate the district court plainly erred when it enhanced his sentence based

on a finding he possessed a firearm in connection with a controlled substance

offense. As to the applicability of Shepard, however, the record does not

demonstrate the basis for the district court’s determination that Taylor had

committed three prior violent felonies. We therefore remand so the district court

can review the evidence of prior convictions in light of Shepard.

I. FACTUAL AND PROCEDURAL BACKGROUND

Beginning in May 2003, police in Norman, Oklahoma, working in

cooperation with the Bureau of Alcohol, Tobacco, Firearms, and Explosives

(ATF), conducted an undercover investigation of Taylor. During the

investigation, police made several undercover purchases of drugs and guns from

Taylor. Of importance to this appeal is one specific incident. On June 16, 2003,

an undercover officer contacted Taylor by phone seeking drugs. Taylor stated he

did not have enough money to buy drugs from his supplier and, accordingly, could

not sell any to the undercover officer. Taylor did, however, have a .357 Ruger

pistol. Eventually, the conversation resulted in Taylor agreeing to (1) sell the

undercover officer the pistol for $250; (2) use the money to purchase drugs from

his supplier; and (3) turn around and sell the drugs to the undercover officer.

On the morning of June 17 the undercover officer purchased the Ruger

from Taylor for $250. Later that same day, Taylor sold the undercover officer 3.9

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grams of cocaine base for $300. After the transaction completed, officers arrested

Taylor.

Subsequent to his arrest but before his indictment, Taylor agreed to plead

guilty to being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g). The plea agreement Taylor signed indicated that the “maximum penalty

that could be imposed as a result of this plea is not more than 10 years

imprisonment . . . .” The agreement, however, noted that “Defendant

acknowledges and understands that the Court is not bound by, nor obligated to

accept any stipulations, agreements or recommendations of the United States or

defendant.” The agreement also contained a waiver of appellate rights. That

waiver, though, contained two explicit exceptions allowing Taylor to bring an

appeal based on (1) “an upward departure from the sentencing guideline range

determined by the Court,” or (2) “changes in the law reflected in Tenth Circuit or

Supreme Court cases decided after the date of this agreement that are held by the

Tenth Circuit or Supreme Court to have retroactive effect.”

During sentencing, the judge examined and adopted the findings of the pre-

sentencing report (PSR) and heard testimony from an ATF agent familiar with the

case. The PSR chronicled Taylor’s extensive criminal history. The judge found

three of Taylor’s prior convictions were violent felonies for purposes of the

ACCA and that the ACCA applied. As a result, the statutory minimum sentence

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Taylor could receive was 15 years imprisonment. See 18 U.S.C. § 924(e). In

addition, the judge enhanced Taylor’s base offense level by finding he possessed

a firearm in connection with a controlled substance offense, see USSG

§ 4B1.4(b)(3)(A), i.e., possession with intent to distribute and distribution of

drugs. The court concluded Taylor’s total offense level was 31, which, with his

criminal history, subjected him to a sentence of 188 to 235 months.

Taylor objected to the application of the ACCA and to the enhancement for

possession of a firearm in connection with a controlled substance offense. The

judge overruled Taylor’s objections. Before the judge announced Taylor’s

sentence, Taylor apologized to the court for his crimes and his attorney requested

the court sentence Taylor at the low end of the Guidelines because he had to

support his family and did not want to spend a long time away from his children.

After considering the PSR, the agent’s testimony, and Taylor’s statements, the

judge sentenced Taylor near the high end of the Guidelines range, 230 months.

The judge based the sentence “on the fact that the circumstances here show a

wide range of serious criminal activity being conducted immediately prior to the

arrest . . . [a]nd that recidivism I think is an additional factor I think suggesting a

need to protect the public from further crimes.” [App. Vol. II, p. 25-26.]

On May 24, 2004, Taylor appealed. The Supreme Court decided Blakely on

June 24, 2004 and Booker on January 12, 2005.

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 II. ANALYSIS

A. TAYLOR’S APPEAL WAIVER

In cases such as this where a defendant waived his appellate rights pursuant

to a plea agreement, we must first determine whether the defendant can appeal his

sentence notwithstanding the appellate waiver. See United States v. Hahn, 359

F.3d 1315, 1321-25 (10th Cir. 2004) (en banc). To do this, we examine “(1)

whether the disputed appeal falls within the scope of the waiver of appellate

rights; (2) whether the defendant knowingly and voluntarily waived his appellate

rights; and (3) whether enforcing the waiver would result in a miscarriage of

justice as we define herein.” Id. at 1325. When construing an appellate waiver,

we apply “well-established contract principles” and examine the plain language of

the plea agreement. United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. May

3, 2005). In addition, we strictly construe “the scope of [the] appellate waiver[]

and [interpret] any ambiguities . . . against the Government and in favor of a

defendant’s appellate rights.” Id. (quotations and citation omitted).

In the present case, we need look only at the language of the appellate

waiver itself to satisfy ourselves that Taylor can appeal his sentence. 1
The

appellate waiver contained an explicit exception that provides:

Taylor also argues his plea was not voluntary. The sentencing transcript
1

conclusively belies this argument and our independent review of the record leaves
no doubt that the plea was voluntary. We therefore reject this argument.

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 [Taylor’s] waiver of rights to appeal and bring collateral
challenges shall not apply to appeals or challenges based on
changes in the law reflected in Tenth Circuit or Supreme Court
cases decided after the date of this agreement that are held by the
Tenth Circuit or Supreme Court to have retroactive effect.

Thus, the question in this case is whether Blakely and Booker changed the law in

this circuit regarding sentencing. We think they did.

To begin with, Blakely and Booker extended Apprendi v. New Jersey , 530

U.S. 466 (2000), to sentencing matters by finding that a defendant’s Sixth

Amendment rights are violated if any fact that increases the penalty for a crime

beyond the statutory maximum is not admitted or proved beyond a reasonable

doubt. See generally Blakely , 124 S. Ct. 2531 (2004); Booker 125 S. Ct. 738

(2005). The statutory maximum “is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” Blakely , 124 S.Ct. at 2537 (emphasis deleted); see also Booker , 125

S. Ct. at 749; United States v. Price , 400 F.3d 844, 847 (10th Cir. 2005). The

Court in Booker consequently found the Guidelines unconstitutional but remedied

their infirmity by making them advisory rather than mandatory. See Booker , 125

S. Ct. at 651.

As a result of these Supreme Court rulings, the law in this circuit has been

changed with regard to sentencing. Before Blakely and Booker , the sentencing

judge was required to enhance Taylor’s sentence under the Guidelines for

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possessing a firearm in connection with another offense. Now, however, the

sentencing judge is not required to mandatorily apply the Guidelines, although

they will be important to the overall reasonableness of any sentence imposed by a

court post- Booker . See United States v. Gonzalez-Huerta , 403 F.3d 727, 738

(10th Cir. 2005).

Having concluded the law of this circuit has been changed as a result of

Supreme Court rulings and our subsequent application of them, see, e.g., id. at

729, the more subtle question in this case then is whether these cases “have

retroactive effect” for purposes of Taylor’s appeal waiver. To begin with, no one

would argue these cases do not apply on direct review. See, e.g., United States v.

Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir. 2005) (applying Booker on

direct review). It is less obvious, however, whether the plea agreement’s

retroactivity language referred to a direct appeal, since the parties likely assumed

there would be no direct appeal, given the state of the law when the plea

agreement was executed. Moreover, the customary usage of the term

“retroactive” is in the collateral review context, where habeas petitioners are

foreclosed from relief except in those rare cases that the Supreme Court deems to

be retroactively applicable to collateral attack. See Price, 400 F.3d at 848

(applying Supreme Court’s retroactivity analysis and adding, “Blakely did not

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announce a watershed rule of criminal procedure that would apply retroactively to

initial § 2255 motions”).

The plain language of Taylor’s plea agreement is not so narrowly confined.

The agreement itself states that the appellate waiver bars Taylor from pursuing

both appeals and collateral challenges. The exception in Taylor’s waiver,

however, allows him to pursue both appeals and collateral challenges, so long as

they are based on “retroactive” changes in the law. Indeed, if the term

“retroactive” only referred to subsequent collateral challenges, the agreement’s

language regarding “direct appeal” would be superfluous. Because we construe a

plea agreement so as to give effect to all of its words and phrases, see Porter,

405 F.3d at 1142, we read the term “retroactive” on direct appeal as referring to

changes in the law made after the execution of the plea agreement and including

those decided while the direct appeal is pending. 2 The plea agreement by its

terms, of course, will not allow a subsequent collateral attack to the sentence

unless the Supreme Court expressly finds that a decision will be applied

retroactively on habeas review. See Johnson v. McKune, 288 F.3d 1187, 1194

(10th Cir. 2002).

2
Taylor timely filed his notice of appeal. It is fortuitous that the Supreme
Court announced Blakely contemporaneously with his filing of the appeal, and
that Booker was announced shortly before oral argument. The appeal waiver
exception will not apply to similar cases if the time for filing an appeal has
passed.

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 In sum, based on the language of his agreement, Taylor can appeal his

sentence.

B. APPLICATION OF BOOKER TO TAYLOR’S SENTENCE

In this appeal, Taylor argues the district court violated United States v.

Booker, 125 S. Ct. 738 (2005), in two ways. First, the court committed

constitutional Booker error by making the factual finding that he used a firearm in

connection with another offense. See Gonzalez-Huerta, 403 F.3d at 731. Second,

the court committed non-constitutional Booker error by mandatorily applying the

Guidelines in sentencing Taylor. Id. We conclude that neither Booker error

warrants re-sentencing in this case.

Taylor’s failure to object on constitutional grounds during sentencing

requires us to review the district court’s enhancement of his sentence for plain

error. See United States v. Dowlin, 408 F.3d 647, 669 (10th Cir. 2005) (citations

omitted). “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id.

1. Constitutional Booker Error

During sentencing, Taylor objected to the district court’s factual finding

that he possessed a gun “in connection with” another offense because, he argues,

the gun was not used to facilitate the sale of drugs. USSG § 4B1.4(b)(3)(A). The

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court’s findings and subsequent application of the mandatory Guidelines’

enhancement provisions increased his sentence range from a maximum of 210

months to a maximum of 235 months. Taylor was sentenced to 230 months, 20

months above the maximum without the enhancement. 3

Taylor’s objection at sentencing was not based on the Sixth Amendment or

other constitutional grounds but on the court’s interpretation of the Guidelines.

Only on appeal did Taylor assert his sentence violated his Sixth Amendment

rights under Booker because the judge found the relevant facts used to determine

the enhancement. Because the judge-found facts increased Taylor’s sentence

beyond the maximum allowed by the indictment, this case presents constitutional

Booker error.

By now, it is axiomatic under plain error review that a court commits error

that is plain when it enhances a defendant’s sentence based on judicially-found

facts. See, e.g. Blakely, 124 S. Ct. 2531; Booker, 125 S. Ct. 738; Gonzalez-

Huerta, 403 F.3d at 732. Because the court below did both, Taylor satisfies the

first two prongs of plain error analysis.

To satisfy the third prong of the plain error test, however, Taylor must

demonstrate that the error affected his substantial rights, i.e., that the error

3
Without the enhancement, the applicable range was 168 to 210 months.
With the enhancement, the applicable range was 188 to 235 months.

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disturbed “the outcome of the district court proceedings.” United States v.

Cotton, 535 U.S. 625, 632 (2002). We look to see if there is a “reasonable

probability” that the error led to a higher sentence under the Guidelines as applied

prior to Booker. See Gonzalez-Huerta, 403 F.3d at 733. One way of showing a

sentencing error affected substantial rights is to show the district court incorrectly

applied the Guidelines. United States v. Smith, 919 F.2d 123, 124 (10th Cir.

1990). When a sentencing court misapplies the Guidelines, a defendant’s

substantial rights may be affected if there is more than a reasonable probability

that such misapplication led to a higher sentence. See Gonzalez-Huerta, 403 F.3d

at 739 n.11 (application of the wrong range under the Guidelines affects a

defendant’s substantial rights in the plain error context).

The district court enhanced Taylor’s sentence for two related reasons: (1)

Taylor’s sale of a firearm to the undercover officer for $250 (the factual

determination) was (2) “in connection with” a “controlled substance offense” (the

legal determination). 4 In order to determine whether the district court incorrectly

applied the Guidelines (and affected Taylor’s substantial rights), we must analyze

4
USSG § 4B1.4(b)(3)(A) states that the base offense level of a defendant
subject to the ACCA is “34, if the defendant used or possessed the firearm or
ammunition in connection with . . . a controlled substance offense, as defined in
§ 4B1.2(b).”

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whether the court correctly concluded that the sale of the firearm by Taylor was

“in connection with” a “controlled substance offense.”

We have not yet had occasion to interpret the “in connection with”

language of USSG § 4B1.4(b)(3). Recently, we observed in interpreting USSG

§ 2K2.1(b)(5)’s identical “in connection with” language that the Guidelines

provide “little guidance regarding the nexus required between firearm possession

and the felony offense.” United States v. Brown, 314 F.3d 1216, 1222 (10th Cir.

2003). Our cases have held, for example, under § 2K2.1 that “if the weapon’s

possession is coincidental or entirely unrelated to the offense,” it is not possessed

“in connection with” another offense. United States v. Gomez-Arrellano, 5 F.3d

464, 466-67 (10th Cir. 1993). More specifically, “we have generally held that if

the weapon facilitated or had the potential to facilitate the underlying felony, then

enhancement under [the “in connection with” language] is appropriate.” United

States v. Brunner, 134 F.3d 1000, 1006 (10th Cir. 1998) (citing Gomez-Arrellano,

5 F.3d at 466).

Related to the “in connection with” requirement is the Guidelines’ broad

definition of the term “controlled substance offense.” The definition includes not

only most forms of drug possession with the intent to distribute, USSG

§ 4B1.2(b), but also the “offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.” USSG § 4B1.2, Application Note 1. In our

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circuit, a conspiracy or an attempt to commit a crime requires the intent to commit

the crime and overt acts in furtherance of that intent. See United States v.

Haynes, 372 F.3d 1164, 1167 (10th Cir. 2004). And we have previously found

that a specific agreement to commit a crime can constitute the requisite overt act

for attempt when combined with additional steps in furtherance of the agreement.

See United States v. Bunney, 705 F.2d 378, 381 (10th Cir. 1983) (detailed

conversations discussing how and when buildings were to be destroyed

constituted substantial step and completed attempt).

Applying these principles to the enhancement under USSG § 4B1.2 we

conclude the district court did not err in either its factual or legal determinations.

Here, Taylor not only made a specific agreement with the undercover officer to

sell the Ruger to raise funds in order to buy drugs, which he would then turn

around and sell to the undercover officer, but he also met the undercover officer

and sold him the firearm. Taylor further agreed to repurchase the Ruger from the

officer after the drug transaction had been consummated—closing the circle of

firearm for money for drugs for firearm. Indeed, there is no real argument that

Taylor engaged in several substantial steps towards the completion of the crime

supporting the enhancement (distributing drugs, which is a controlled substance

offense) while he possessed a firearm. In short, the firearm facilitated or had the

potential to facilitate the crime of drug distribution or attempted drug distribution,

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and was not “coincidental or entirely unrelated” to the crime or attempted crime.

Gomez-Arrellano, 5 F.3d at 466-67; Brunner, 134 F.3d at 1006. The firearm in

this case therefore had the required nexus to the predicate controlled substance

offense. We are thus satisfied that the district court’s legal determination was

correct.

As to the court’s factual determinations, Taylor has not pointed to any real

dispute about the factual background leading to the enhancement. The facts were

essentially conceded. Nor does Taylor point to any other factor we have

considered under the third prong of plain error review that weighs in favor of

finding his substantial rights were affected. See, e.g., United States v. Clifton,

406 F.3d 1173, 1181-82 (10th Cir. 2005) (describing ways in which the defendant

can satisfy his burden under the third prong). Rather, the only question before the

court was whether the essentially undisputed facts were correctly applied under

the ACCA enhancement. There being no error in the court’s application, Taylor

failed to show any prejudice to his substantial rights. He therefore does not meet

the third prong of plain error review.

Even if the court’s factual and legal determinations satisfied the third

prong, as we discuss next, we are satisfied that Taylor, in any event, could not

meet the fourth prong of plain error review. See Gonzalez-Huerta, 403 F.3d at

735-36 (“We need not determine whether [the defendant] can satisfy this burden

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[of showing his substantial rights were affected] because even if he were to meet

the third prong, he must also satisfy the fourth prong to obtain relief.”).

2. Fourth Prong Analysis and Non-Constitutional Booker Error

In addition to Taylor’s constitutional Booker error contention, he also

argues the district court committed non-constitutional Booker error when it

mandatorily applied the Guidelines. While it is true a court commits error that is

plain when it applies the Guidelines mandatorily, such an error does not

necessarily result in re-sentencing. See Gonzalez-Huerta, 403 F.3d at 732, 735.

Turning to the fourth prong analysis of our plain error review, we conclude

Taylor cannot show that the mandatory application of the Guidelines seriously

affected the fairness, integrity, or public reputation of judicial proceedings, the

fourth prong of plain error review. We recently outlined several factors to help

determine whether a defendant has satisfied this fourth prong of plain error

review, including among others (1) the weight of evidence supporting the

enhancement, (2) the likelihood that the district court would impose a lighter

sentence on remand, and (3) a showing that the objective factors of 21 U.S.C.

§ 3553(a) warrants a departure from the sentence suggested by the Guidelines.

See Dowlin, 2005 WL 1155882 at *18 (citations omitted). Applying these factors

to this case, we conclude we should not exercise our discretion under the fourth

prong.

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 First, we have already found the district court did not err in its

interpretation of the ACCA enhancement. The facts underlying the enhancement

are essentially undisputed. There is thus little doubt given the overwhelming

nature of the facts surrounding the drug transaction that a jury would view the

evidence differently. See United States v. Ambort, 405 F.3d 1109, 1119 (10th Cir.

2005) (weight of evidence a consideration under fourth prong). Indeed, Taylor

concedes he sold the gun to an undercover officer, used those funds to purchase

drugs, and sold those drugs to the officer. Taylor’s challenge to the enhancement

was one of interpretation under those facts.

Second, the sentencing judge expressed serious concerns regarding Taylor’s

expansive criminal history and sentenced Taylor near the very top of the

Guidelines range, 230 out of 235 possible months. This suggests the court would

impose a substantially similar sentence on remand. See United States v.

Lawrence, 405 F.3d 888, 908 (10th Cir. 2005) (finding no plain error where

defendant sentenced two months above the bottom of the sentencing range).

Finally, there is no indication the court disregarded or misapplied the 21

U.S.C. § 3553 factors, which allow a court to consider the personal mitigating

characteristics of the defendant. See Clifton, 406 F.3d at 1181-82. To the

contrary, the sentencing court here retained substantial discretion based on those

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factors which it refused to exercise in deciding to sentence Taylor to the high end

of the Guidelines’ range.

In short, Taylor does not meet our requirements for noticing plain error

under the fourth prong of our analysis.

C. Shepard and the ACCA

Although Taylor cannot meet his burden under the plain error standard

regarding the enhancement for possession of a firearm in connection with a

controlled substance offense, the Supreme Court’s recent opinion in Shepard v.

United States, 125 S. Ct. 1254 (2005), requires us to remand for limited further

proceedings.

Three days prior to oral argument in this case, the Supreme Court handed

down its decision in Shepard . Shepard is the Court’s most recent explanation of

its decision in Taylor v. United States, 495 U.S. 575 (1990), which held that when

a court determines whether a crime constitutes a violent felony under the ACCA,

the Sixth Amendment requires it to take “a formal categorical approach, looking

only to the statutory definitions of the prior offenses, and not to the particular

facts underlying those convictions.” Id. at 600.

Unlike the prior convictions in Taylor, which followed jury trials, the prior

convictions at issue in Shepard were the result of guilty pleas. The Court found

“Taylor’s reasoning controls the identification of . . . convictions following pleas,

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as well as convictions on verdicts.” Shepard, 125 S. Ct. at 1259. As a

consequence, when determining whether a prior conviction resulting from a guilty

plea is a violent felony for purposes of the ACCA, a court is limited to an

examination of the language of the statute of conviction, “the terms of the

charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant . . . , or to some comparable judicial record of this

information.” Id. at 1262. 5 In addition, the ACCA only applies if a person has

“three previous convictions by any court . . . for a violent felony or a serious drug

offense, or both, committed on occasions different from one another . . . .” 18

U.S.C. § 924(e).

Taylor does not dispute his prior convictions are violent felonies. Instead,

he argues the record fails to support the district court’s conclusion that two of his

three prior convictions arose from a different criminal episode under § 924(e). 6 If

the record does not show that his prior armed robberies were committed on

separate occasions, Taylor claims that Shepard and Taylor compel the court to

disregard the ACCA enhancement.

5
The Supreme Court’s decision in Almendarez-Torres v. United States, 523
U.S. 224 (1998), creates an explicit exception to Apprendi v. New Jersey, 530
U.S. 466 (2000), and its progeny by allowing a judge to determine a fact of prior
conviction without violating a defendant’s Sixth Amendment rights.
6
Taylor bases this objection on the fact that the abstract of judgment for
two of his prior convictions shared a common date of conviction and hearing.

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 There is yet very little post-Shepard guidance in the case law. Prior to

Shepard, we held that the ACCA enhancement “was intended to reach multiple

criminal episodes distinct in time” and that a court could make this determination

under the Guidelines. United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.

1990) (finding three different burglaries in the same building on the same day

sufficiently distinct). The Seventh Circuit, however, recently concluded that

“whether prior crimes are part of a common scheme is [] a fact question” that a

court must resolve after Shepard by consideration of a sufficient “judicial record”

from the prior proceeding. United States v. Ngo, 406 F.3d 839, 842-43 (7th Cir.

2005) (reviewing burglaries ten days apart). In all likelihood, depending on the

evidence presented to the court, this type of question will generally be a mixed

question of law and fact. See United States v. Yazzie, 407 F.3d 1139, 1148 (10th

Cir. 2005) (whether underlying facts qualified defendant for Guidelines

enhancement was mixed question of law and fact).

Unfortunately, based on the record before us, we cannot determine whether

the district court reviewed judicial records consistent with Shepard. The PSR

appears to have relied upon both police reports and “court documents.” At

sentencing the judge commented on the PSR and mentioned a report prepared by

the probation office. The record, however, does not tell us what these materials

were and how they were documented. While it is unlikely that the predicate

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crimes of armed robbery arose on the same occasion, we nonetheless are

compelled to remand this matter to the district court for the following further

limited proceedings:

1) to determine whether the government can provide evidence
regarding Taylor’s prior violent crime convictions consistent
with Shepard; and

2) in the event the government cannot provide such evidence,
to resentence Taylor consistent with this opinion and Shepard.

III. CONCLUSION

This appeal falls within one of the exceptions to the waiver of appellate

rights in Taylor’s plea agreement and is properly before us. Having jurisdiction,

we conclude the sentencing court did not err when it enhanced Taylor’s sentence

for possessing a firearm in connection with another offense. We cannot

determine from this record, however, whether the government supplied evidence

of prior convictions consistent with the rulings of the Supreme Court.

Accordingly, we remand for further proceedings in light of Shepard .

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