United States v. Harris

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 15, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-1536
MICHAEL KEVIN HARRIS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 04-CR-158-WM)

Barrett T. Weisz, Richilano & Ridley, P.C., Denver, Colorado, for Defendant-
Appellant.

Martha A. Paluch, Assistant United States Attorney, (William J. Leone, Acting
United States Attorney, with her on the brief) Office of the United States
Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Michael Harris was convicted of firearm possession and sentenced to the

statutory minimum of fifteen years as a career criminal. On appeal, he asks us to
consider the scope of the “prior conviction” exception to the rule established in

Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically, whether a jury, rather

than a judge, must determine if prior crimes were committed on separate

occasions under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The district court concluded that this determination was included within the prior

conviction exception and could be made by the court. We agree and, therefore,

AFFIRM.

I. Background

Harris was indicted for possessing a firearm after previously being

convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Typically, a person

who violates § 922(g) faces a sentence of up to ten years. 18 U.S.C. § 924(a)(2).

However, under the ACCA, a person who violates § 922(g) is subject to an

enhanced penalty if he “has three previous convictions . . . for a violent felony or

a serious drug offense, or both, committed on occasions different from one

another.” Id. § 924(e)(1). The enhanced penalty is a mandatory fifteen years to

life. Id.

Pursuant to a written plea agreement, Harris pled guilty to violating

§ 922(g). As part of the plea he acknowledged he had evaded police officers in a

high-speed car chase that ended with him leaving his vehicle and fleeing from

police on foot. When the police finally captured him, they found a .45 caliber

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Colt pistol about twenty feet from his car and matching ammunition on him and in

his car.

Harris also admitted that, prior to this incident, he had been convicted of

several different felonies: robbery, second degree burglary, possession of a

weapon by a previous offender, and two convictions for drug distribution. Prior

to sentencing the probation office prepared a presentence report (PSR),

concluding that Harris’s prior criminal history made him eligible for sentence

enhancements as an armed career criminal. The PSR listed these crimes and

noted they occurred years apart and in different jurisdictions. Harris did not

object to the factual assertions in the PSR, arguing instead that whether his prior

convictions were “committed on occasions different from one another” was a

question of fact that a jury, not a judge, must decide:

Answering this question necessarily requires that the Court look to the
actual conduct of the defendant supporting the convictions, not merely
the date on which [the] judgment of conviction [was] entered. In
contrast, to determine whether a conviction exists and whether it
constitutes a violent felony or serious drug offense, the Court need only
look to the face of the conviction and need not inquire into the facts of
the offense.

Vol. I, Doc. 38, Pg. 6. He continued, “[T]he single criminal episode rule requires

the trial court to inquire into, not the date of conviction, but the factual

circumstances underlying the conviction. In state[] criminal cases the date of

conviction says very little about when the offenses were actually committed.” Id.

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at 7.

At the sentencing hearing, the government urged the court to treat this fact

as one of a prior conviction and to find it satisfied based on charging documents

and judgments from the prior convictions. Harris again responded that because

the court would have to look at the facts underlying the conviction, rather than

simply the conviction itself, the prior conviction exception would not apply.

The court rejected Harris’s argument:

Clearly I can review the judgment of conviction and the statute upon
which they are based, and I conclude that inherent in a fact of
conviction is the time and place of conviction. And in this instance we
have significant break-up between three, the first two which are also
distinct crimes of jurisdiction of authority and a four-year difference,
and then another significant temporal break to the drug convictions in
1998, which are again separated by place of conviction. And there may
be some connection, but even if there were and one were not to separate
the two drug convictions, we still would be left with three.

Vol. III, Pg. 15.

The court found the ACCA satisfied, and since the high end of the

applicable range (168 months) under the United States Sentencing Guidelines was

below the ACCA’s 180-month mandatory minimum, the court imposed the higher

sentence.

II. Analysis

Harris makes three claims on appeal: (1) the district court violated the Sixth

Amendment when it, rather than a jury, concluded his prior crimes were

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committed on different occasions; (2) the district court improperly relied on the

PSR in reaching this conclusion; and (3) under United States v. Booker, 543 U.S.

220 (2005), imposition of the mandatory minimum sentence violated the Sixth

Amendment.

A. Scope of Prior Conviction Exception

Harris first argues that the district court violated his Sixth Amendment

rights by determining that his prior crimes were committed on different occasions.

This argument asks us to define the scope of the “prior conviction exception” to

the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). The scope of

the prior conviction exception is critical to the proper application of the ACCA,

which requires sentencing courts to enhance a defendant’s sentence based on his

prior criminal record. The ACCA applies where the defendant “has three

previous convictions . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

Thus, imposition of the ACCA requires: (1) that at least three prior convictions

exist, (2) that those convictions were either for a violent felony or a serious drug

offense, and (3) that the prior offenses were committed on different occasions

from one another.

Harris claims these facts must be submitted to a jury. In Apprendi,

however, the Supreme Court expressly excluded a defendant’s prior criminal

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history as a matter for jury deliberation: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490 (emphasis added). The Supreme Court

reaffirmed this holding last year in Booker: “Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 543

U.S. at 244 (emphasis added).

Applying this authority, we have recently held that all three elements of the

ACCA are properly assessed by the sentencing court. 1 First, the requisite number

of convictions of the defendant is a question for the court. United States v.

Moore, 401 F.3d 1220, 1226 (10th Cir. 2005). Second, whether a particular

conviction was for a “violent felony” under § 924(e) is also a question of law for

the court since it “involves an inquiry intimately related to whether a prior

conviction exists, and therefore falls within the prior convictions exception to the

1
Harris argues the prior conviction exception is constitutionally suspect in
light of recent doubts expressed by some members of the Supreme Court about its
continuing vitality. See United States v. Shepard, 544 U.S. 13, 27–28 (2005)
(Thomas, J., concurring). Unless and until the Supreme Court determines
otherwise, we will continue to follow applicable precedent. United States v.
Moore, 401 F.3d 1220, 1224 (10th Cir. 2005).

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Apprendi rule.” Id. at 1225. Finally, we most recently held that “whether prior

convictions happened on different occasions from one another is not a fact

required to be determined by a jury but is instead a matter for the sentencing

court.” United States v. Michel, __ F.3d __, No. 04-2214, 2006 WL 1266514

(10th Cir. May 10, 2006).

As we explained in Michel, every circuit court to consider the issue has

concluded the question is one for the sentencing court, not a jury. United States

v. Thompson, 421 F.3d 278, 284–85 (4th Cir. 2005); United States v. Wilson, 406

F.3d 1074, 1074 (8th Cir. 2005); United States v. Burgin, 388 F.3d 177, 186 (6th

Cir. 2004); United States v. Morris, 293 F.3d 1010, 1012 (7th Cir. 2002); United

States v. Santiago, 268 F.3d 151, 156–57 (2d Cir. 2001).

We found two cases particularly persuasive. In Thompson, the Fourth

Circuit explained the logic of the prior convictions exception:

A conviction cannot . . . be reduced to nothing more than that the defendant
was at some prior time convicted of some crime. This bare fact is certainly at
the nucleus of the conviction. But that nucleus also contains other operative
facts, such as the statute which was violated and the date of the conviction.
The Supreme Court has declined to attempt extraction of the mere fact of a
prior conviction, stripped of all content. We cannot be willfully blind to that
content—date, statutory violation, and the like—where it is properly
established by one of the sources approved [by the United States Supreme
Court]. It is as much a part of the conviction as the fact that twelve jurors
agreed about the defendant’s guilt.

421 F.3d at 282–83 (emphasis added). Thus, the issue was “whether the facts

necessary to support the enhancement inhere in the fact of conviction or are

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extraneous to it.” Id. at 283.

In concluding the former, the court made the commonsense observation:

“[The] ACCA’s use of the term ‘occasion’ requires recourse only to data normally

found in conclusive judicial records, such as the date and location of an offense,

upon which [Supreme Court precedents] say we may rely.” Id. at 286. Thus, “the

‘different occasions’ requirement of § 924(e) cannot be significantly

distinguished from ‘the fact of a prior conviction.’” Id. at 286 (quoting Burgin,

388 F.3d at 186).

The Second Circuit expressed a similar view in Santiago:

The determination of “the fact of a prior conviction” implicitly entails
many subsidiary findings, not the least of which is that the defendant being
sentenced is the same defendant who previously was convicted of those
prior offenses, a fact that could be quite controversial indeed. . . . Thus,
the separateness of the convictions is not a fact which is different in kind
from the types of facts already left to the sentencing judge.

268 F.3d at 156. The court concluded that the “different occasions” language of

§ 924(e) “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.”

Id. at 157.

The teaching of these cases is that the separateness of prior crimes is

inherent in the fact of conviction. The time, place, and substance of the prior

convictions can ordinarily be ascertained from court records associated with those

8
convictions, and the Supreme Court has held that the Constitution allows

sentencing courts to rely on such records to make findings about prior

convictions. Shepard v. United States, 544 U.S. 13, 16 (2005). Like the number

of prior crimes and whether they are violent felonies, separateness is an “inquiry

intimately related to whether a prior conviction exists.” See United States v.

Moore, 401 F.3d 1220, 1225 (10th Cir. 2005). Therefore, separateness falls

within the prior crimes exception. Michel, __ F.3d at __, 2006 WL 1226514 at

*7.

Accordingly, the district court properly concluded the Sixth Amendment

did not prevent it from deciding whether Harris’s prior convictions were

“committed on occasions different from one another” under the ACCA.

B. Evidence of Prior Convictions

Harris next claims that even if the district court had the authority to make

findings as to separateness, the court did not have a constitutionally adequate

record to do so. In particular, he argues that the district court impermissibly

relied on the PSR and government characterizations of his prior convictions to

conclude the prior crimes were committed on different occasions.

The Supreme Court has described the sort of evidence a court may review

in determining a defendant’s prior record under the Sixth Amendment. In Taylor

v. United States, 495 U.S. 575 (1990), the Court held that a sentencing judge

9
making findings about a prior jury conviction is limited to reviewing the charging

documents filed in the court of conviction and jury instructions. Id. at 602. Last

year, in Shepard v. United States, 544 U.S. 13 (2005), the Court expanded this

holding to plea cases:

In cases tried without a jury, the closest analogs to jury instructions
would be a bench-trial judge’s formal rulings of law and findings of
fact, and in pleaded cases they would be the statement of the factual
basis for the charge, shown by a transcript of plea colloquy or by
written plea agreement presented to the court, or by a record of
comparable findings of fact adopted by the defendant upon entering the
plea.

Id. at 20–21. Thus, a district court enhancing a defendant’s sentence for prior

convictions under the ACCA may examine such sources as “the statutory

definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the

defendant assented.” Id. at 16.

In this appeal, we have no doubt that the evidence supported the district

court’s finding of separateness. First, in pleading guilty Harris admitted in the

plea agreement that he had numerous prior felony convictions. It is uncontested

that these crimes (although committed in Colorado) were separated geographically

and over time: 2

Separateness under the ACCA turns on when and where the crimes were
2

committed, not when the convictions were entered. These dates are taken from
(continued...)

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 • 1979 – Robbery, Arapahoe County
• 1983 – Burglary, Jefferson County
• 1990 – Felon in possession, Arapahoe County
• 1998 – Drug distribution, Jefferson County
• 1998 – Drug distribution, Arapahoe County

In addition to the information admitted in the plea agreement, these prior

convictions were also identified in both the indictment and the PSR. And the PSR

was based in part on a review of court records detailing Harris’s criminal history.

Harris never objected to the information contained in the plea agreement,

indictment or PSR, or otherwise argued they were inaccurate.

It is true that we have remanded where the district court’s reliance on the

PSR made it unclear whether it complied with Shepard. See United States v.

Taylor, 413 F.3d 1146, 1156–58 (10th Cir. 2005). Nevertheless, two observations

allow us to conclude that the district court below had sufficient evidence in light

of Shepard to conclude that Harris’s prior crimes were committed on separate

occasions.

First, the record indicates that the court had before it some of the court

records from Harris’s prior crimes. At sentencing, for example, the government

urged the court to rely on “the judgment of convictions and the charging

documents” to conclude that Harris’s crimes were separate incidents. Vol. III, Pg.

2
(...continued)
the indictment in this case, which identifies the prior convictions by the year they
were charged.

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5–6. In light of the evidence before the court, Harris effectively admitted the

prior crimes were committed on different occasions when he told the court, “no

reasonable jury could conclude the convictions were not separate events.” Vol.

III, Pg. 13. In the end, however, the court stated that it was relying on “the

judgment of conviction and the statute upon which they are based.” Vol. III, Pg.

14–15. It thus appears from this record that the court relied on Harris’s

admissions as well as documents sanctioned by Shepard to conclude the prior

crimes were committed on different occasions.

Second, Harris’s failure to object to the PSR created a factual basis for the

court to enhance his sentence under the ACCA. Criminal Procedure Rule 32

requires the defendant to affirmatively point out any fact in the PSR that he

contends is inaccurate. Absent an objection to the PSR, the district court “may

accept any undisputed portion of the presentence report as a finding of fact.”

Fed. R. Crim. P. 32(i)(3)(A). Except in the context of an admission “for Sixth

Amendment Booker purposes,” a defendant must still point out contested facts:

Booker has not relieved a defendant of his obligation under Rule
32(i)(3)(A) to point out factual inaccuracies included in the PSR. And
requiring a defendant to challenge any factual inaccuracies in the PSR
before or during sentencing permits the district court to address those
objections at a time and place when the district court is able to resolve
those challenges.

United States v. Wolfe, 435 F.3d 1289, 1299 (10th Cir. 2006).

If Harris disputed the PSR’s conclusion that he had committed three

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separate prior felonies, he could have objected to the PSR, and the court would

have resolved the objection by further reference to the court records discussed

above. Harris made no such objection. Rather, he objected only with the legal

argument that he presses on appeal: separateness requires a jury finding. He has

offered nothing to support any claim that truly contested facts were at stake at

sentencing. Thus, the district court could properly rely on the PSR to conclude

that his prior crimes were separate. See Thompson, 421 F.3d at 285 (affirming

sentence where district court relied on PSR in absence of any “objection either to

the propriety of its source material or to its accuracy”).

In sum, the district court did not err in concluding the government’s

evidence established the separateness of Harris’s prior convictions.

C. Mandatory Minimum Sentences After Booker

Finally, Harris asserts that the mandatory imposition of a fifteen-year

sentence violates the Sixth Amendment as interpreted in United States v. Booker,

543 U.S. 220 (2005), which concluded that the mandatory application of the

United States Sentencing Guidelines was unconstitutional. It remedied the

constitutional violation by allowing courts to continue to apply the sentencing

guidelines, but only in a discretionary fashion, subject to review for

reasonableness. United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006).

Harris’s challenge, in essence, is that mandatory minimums for career criminals

13
also violate the Sixth Amendment by taking away from the court the discretion to

impose a lower sentence.

Under the statute of conviction, 18 U.S.C. § 922(g), Harris’s potential

sentence was a maximum of 10 years. 18 U.S.C. § 924(a)(2). Under the ACCA

provision, § 924(e), however, not only did Harris face the mandatory minimum

sentence, but the minimum sentence was above the maximum penalty he

otherwise would have faced. Harris thus argues that since “the district court in

this case did not have discretion to sentence [him] to anything less than the 15

year statutory minimum, . . . [his] sentence was imposed in violation of Booker

and [the Sixth Amendment].” Aplt. Br. at 21.

Booker, however, does not apply to statutory minimum sentences. While it

is true that the district court has no discretion to impose a sentence below the

statutory minimum, the Supreme Court’s holdings in Apprendi and Shepard still

apply the prior conviction exception. Thus, although it is typically

unconstitutional to mandatorily enhance a sentence based on a judge-found fact,

because the mandatory enhancement here is based on prior convictions, neither

the Sixth Amendment nor Booker require a jury finding. The Supreme Court in

Apprendi excluded increases based on the “fact of a prior conviction,” and the

majority in Booker preserved that exclusion. See Booker, 543 U.S. at 244 (“[W]e

reaffirm our holding in Apprendi.”). It then follows that Booker does not

14
preclude a court from imposing a statutory minimum established by Congress

based on a defendant’s record of prior convictions. See, e.g., United States v.

Warford, 439 F.3d 836, 845 (8th Cir. 2006) (rejecting defendant’s argument “that

mandatory minimum sentences are ‘constitutionally suspect’ in light of” Booker

and holding that Booker “does not render unconstitutional a statutory minimum

sentence”).

Accordingly, we reject Harris’s argument that Booker prohibits the

application of § 924(e) in his case.

III. Conclusion

For these reasons, we hold that the separateness of prior convictions is a

“fact of a prior conviction” and, thus, excluded from the Sixth Amendment

protections discussed in Apprendi and Booker. We also hold that in making this

determination, the district court should consider those documents specified in

Shepard and that a review of those documents in this case supported the district

court’s conclusion that the prior convictions were “committed on occasions

different from one another.” Accordingly, we AFFIRM.

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