United States v. Shepard

United States Court of Appeals
For the First Circuit

No. 99-2167

UNITED STATES,

Appellant,

v.

REGINALD SHEPARD,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Chief Judge,
Lipez, Circuit Judge
and Keeton,* District Judge.

Nadine Pellegrini, Assistant U.S. Attorney, with whom Donald
K. Stern, United States Attorney, Dina Michael Chaitowitz,
Timothy Q. Feeley, Assistant U.S. Attorneys, were on brief for
appellant.
Linda J. Thompson, with whom Jacobson & Thompson, P.C., were
on brief for appellee.

November 13, 2000

______________
* Of the District of Massachusetts, sitting by designation.
 LIPEZ, Circuit Judge. This case requires us to decide

the following question: may a sentencing court consider

certified copies of police reports and complaint applications to

determine whether a defendant pled guilty to three prior

"violent felonies" qualifying for sentence enhancement under the

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

question arises because the Massachusetts breaking and entering

statute encompasses unlawful entries into buildings, vehicles,

or vessels. For purposes of the ACCA, however, breaking and

entering into a building qualifies as a violent felony, while

breaking and entering into a vehicle or vessel does not.

On at least five prior occasions, Reginald Shepard had

pled guilty to breaking and entering on the basis of a complaint

that recited the boilerplate language of the statute. The

government submitted police reports and complaint applications

to the district court to show that Reginald Shepard had pled

guilty to breaking and entering buildings on these five prior

occasions. At sentencing, the district court concluded that the

Supreme Court decision in Taylor v. United States, 495 U.S. 575

(1990), and our own precedents applying Taylor, prohibited

consideration of the complaint applications and police reports.

In the view of the district court, such consideration would be

inconsistent with the categorical approach to the analysis of

-3-
predicate offenses announced in Taylor because police reports

and complaint applications "contain allegations that were never

adjudicated before a judge or jury, never admitted by Shepard."

We disagree with the court's reading of Taylor and our

precedents. We vacate the district court's ruling and remand

for resentencing.

I.

On October 17, 1995, Reginald Shepard sold firearms to

an undercover agent of the Bureau of Alcohol, Tobacco, and

Firearms. During the taped meeting, Shepard sold a Glock 17,

9mm pistol for $600 and ammunition for $20.00. On March 3,

1999, Shepard entered a guilty plea to one count of felon in

possession of a firearm, 18 U.S.C. § 922(g)(1). The ACCA

mandates a fifteen-year minimum penalty for a person convicted

as a felon in possession of a firearm pursuant to 18 U.S.C. §

922(g) who has three prior convictions for a violent felony or

serious drug offense. See 18 U.S.C. § 924(e)(1). The

government claimed that five of Shepard's eleven prior

convictions were burglaries of buildings, a category of violent

felony under the ACCA.

The complaints charging Shepard with breaking and

entering recited the language of Chapter 266, sections 16 and

18, of the Massachusetts General Laws which define the offense

-4-
to include unauthorized entry into vehicles or vessels, as well

as buildings. 1 For example, a complaint from May 1989 states

that Shepard "did break and enter in the night time the

building, ship, vessel or vehicle, the property of Jerri

Cothran, with intent to commit a felony therein."

In Taylor v. United States, 495 U.S. 575, 598 (1990),

the Supreme Court adopted a "generic" definition of burglary for

purposes of ACCA enhancement that limits the crime to "an

unlawful or unprivileged entry into, or remaining in, a building

or other structure, with intent to commit a crime." To show

that Shepard's breaking and entering convictions involved

buildings rather than vehicles or vessels, the Government

offered certified copies of complaint applications and police

1
Section 16 provides:
Whoever, in the night time, breaks and enters a
building, ship, vessel or vehicle, with intent to
commit a felony, . . . shall be punished by
imprisonment in the state prison for not more than
twenty years or in a jail or house of correction for
not more than two and one-half years.
MASS. GEN. LAWS ch. 266, § 16.
Section 18 provides:
Whoever, in the night time, enters a dwelling house
without breaking, or breaks and enters in the day time
a building, ship or motor vehicle or vessel, with
intent to commit a felony, no person lawfully therein
being put in fear, shall be punished by imprisonment
in the state prison for not more than ten years or by
a fine of not more than five hundred dollars and
imprisonment in jail for not more than two years.
MASS. GEN. LAWS ch. 266, § 18.

-5-
reports obtained from the state court files.2 These documents

contain the following accounts of the five offenses at issue.

May 1989: The Boston police report states:

Responded to R.C. [radio call] to 30 Harlem
St. for B & E in progress. On arrival
observed cellar door in rear had been broken
down. Spoke to victim who [said] she heard
noises downstairs. She then observed suspect
described above in her pantry.

Consistent with the police report, the complaint application

states that the defendant was charged with "breaking and

entering night;" that the place of offense was "30 Harlem St.,"

and that the property stolen or destroyed was a "cellar door."

March 1991: The Watertown police report states:

In reference to . . . a B&E&L from the
FRETTERS store # 550 Arsenal Street Town
reported on 3-11-91 the following is
submitted:

A follow-up investigation revealed
that while the manager . . . and the
assistant Manager . . . were in the back-
room to the above buisness [sic] . . . they
observed the back door open and observed a
former employee, Reginal Shepard of #9
Weaver Way Roxbury, enter the room. Upon
seeing the two managers, the suspect Shepard
ran from the room in a northerly direction
out the parking lot toward arsenal street.

2 By certifying a document, the signer attests that it has
been accurately copied, not that the facts in it have been
verified. The certifications of the police reports and complaint
applications signed by the clerk or magistrate in this case
state: "I hereby certify that this is a true copy, given under
my hand and seal this 6 day of May 1999."

-6-
 NOTE* According to both employee's
[sic] this door was locked and the only way
in was with a key which they suspect Shepard
had in his possession. . . .

After this incident took place both
[managers] did a quick inventory of the
backroom area and found that (4) Emerson
VCRs (20) 13" Hitachi T.V.s and (1) 19"
Toshiba T.V. were missing.3

July 1991: The Boston police report states:

Officers ... responded to a radio call for
an S/P wearing red shorts and blue shirt in
the hallway of 258 Norwell St.

Upon arrival observed S/P (described
above) walking away from above address. S/P
carrying a pink pillowcase. Officers
detained S/P to conduct threshold inq.,
found pillowcase to contain property listed
above. . . . Officers checked bldg and found
a panel on 3rd floor front door had been
broken in exposing inside door lock.
Officers entered apt. and observed, in
living room, areas where V.C.R. and phone
were taken from. Officers also observed in
bedroom one pink pillowcase missing from
pillow. Sheets and pillowcases in bedroom
were all pink in color.

Consistent with the police report, the complaint application

states that the defendant is charged with "b/e daytime," that

the place of offense is "258 Norwell St." and that the property

stolen or destroyed was a "V.C.R" and "phone/ans. machine."

February 1994: The Watertown police report states:

[R]esponded to a R/C [radio call] for a
black male going door to door asking for an

3 The record does not include a complaint application.

-7-
 unk. person. . . . [Witness said suspect]
went next door to #145 Gallivan and was
observed by the witness attempting to gain
entry by turning several door knobs . . .
[O]fficer ... went to the rear of the
property and suspect was observed with both
arms through the glass partition (Glass to
door was shattered) attempting to gain entry
to the second door (near basement).

The complaint application states that the defendant was charged

with "1. breaking & entering 2. wilful malicious destruction of

personal property," that the place of offense was "145 Gallivan

Blvd.," and that the property stolen or destroyed was a "rear

door."

April 1989: According to the district court:4

The complaint application suggested that a
building was involved, alleging that Shepard
gained access to the Children's Center by
breaking a window, and in so doing, he put
the Director of the Center in fear.

The Probation Department included in the Pre-Sentence

Report (PSR) descriptions of the police reports and complaint

applications. The department concluded, however, that the court

could not sentence Shepard as an armed career criminal because

it could not use those documents to determine whether Shepard

had pled guilty to a violent felony. Shepard agreed with the

4 We quote from the district court's rendering of the
complaint application because we do not have the application in
the record before us. The district court notes that the
government did "not provide any additional documentation."

-8-
department's conclusion, but he objected to the inclusion in the

PSR of factual allegations other than those set forth in the

complaints to which he had pled guilty in state court. The

government also filed an objection with the court challenging

the Probation Department's failure to apply the ACCA

enhancement.

At the conclusion of a two-part sentencing hearing, the

court rejected the government's request for an enhancement under

the ACCA, which would have placed Shepard's sentencing range at

188-235 months. Instead, the court sentenced Shepard pursuant to

the "prohibited person" provision, U.S.S.G. § 2K2.1(a)(6)(A),

which prescribes a base offense level of 14 for a person who

receives, possesses, or transports a firearm and has a prior

conviction for a "crime punishable by imprisonment for more than

one year," U.S.S.G. § 2K2.1, comment. (n.6). The court also

granted the government's motion for an upward departure pursuant

to U.S.S.G. § 4A1.3 due to the seriousness of Shepard's criminal

history and increased his sentencing range from 30-37 months to

37-46 months. We quote at length the district court's lucid

rationale for its decision:

Police reports and complaint applications do
not meet the narrow exception to the
categorical approach. They contain
allegations that were never adjudicated
before a judge or jury, never admitted by
Shepard. In fact, there is no indication

-9-
that the sentencing judge in the original
case even had any of these documents
available when he or she sentenced Shepard.
See Dueno, 171 F.3d at 6 (noting the
government provided no documents which had
been before the judge when the plea was
accepted).

No plea colloquies or plea agreements were
offered to suggest that Shepard adopted one
version of the facts rather than another for
each of the convictions. Moreover, because
Shepard objected to the factual
representations in the PSR, the government
cannot rely on the characterizations found
within. See Harris, 964 F.2d at 1236-37.

In fact, not only did Shepard not litigate
these facts, he had no idea he had to do so.
These facts -- the location of the breaking
and entering -- were not necessary to his
state plea. It is only now, years later,
that they seem central because of a federal
sentencing regime enacted years after
Shepard pled.

Contrast Shepard's situation with that of a
federal defendant pleading guilty today.
Now, federal defendants who plead guilty
make strategic decisions about which facts
to contest and which to accept, carefully
considering the impact their admissions will
have on the ultimate sentence. The plea
colloquy has assumed new significance, which
it never had in state court.

To attach such importance to facts neither
litigated nor conceded violates the policies
articulated by the Supreme Court in Taylor,
and subsequent First Circuit precedent. See
Taylor, 495 U.S. at 600-602 (unfair to
impose a sentencing enhancement based on the
federal court, rather than the state court's
review of the facts); Dueno, 171 F.3d at 6
(sentence defendant only for those specific

-10-
 "prior crimes of which he was convicted by a
trier of fact or by his own admission").

The government brought this appeal, arguing that the

district court erred by refusing to consider the police reports

and complaint applications and by not sentencing Shepard as an

armed career criminal. The question of "[w]hether a conviction

for a particular type of crime qualifies as a predicate offense

[under the Armed Career Criminals Act] presents a purely legal

question, sparking de novo review." United States v. Winter, 22

F.3d 15, 18 (1st Cir. 1994).

II.

A. The Taylor Categorical Approach

The Armed Career Criminals Act provides that a person

who violates the felon in possession of a firearm provision (§

922(g)) and has three prior convictions "for a violent felony or

serious drug offense, or both, committed on occasions different

from one another" will receive a fifteen-year minimum sentence.5

18 U.S.C. § 924(e)(1). The statute defines a violent felony as:

5 When the ACCA applies, the Guidelines address whether,
based on the defendant's criminal history and offense level, the
fifteen-year minimum or a greater sentence is warranted.
U.S.S.G. § 4B1.4 specifies how the court should calculate the
defendant's criminal history and base offense level so that it
can use the sentencing grid to determine the length of
imprisonment beyond the statutory minimum.

-11-
 [A]ny crime punishable by imprisonment for a
term exceeding one year . . . that
(i) has as 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 . . . .

18 U.S.C. § 924(e)(2)(B).

In Taylor v. United States, 495 U.S. at 596-600, the

Supreme Court considered whether the defendant's prior burglary

convictions qualified for enhancement under § 924(e) despite the

defendant's contention that the convictions did not involve

conduct that presented a serious potential risk of physical

injury to another. The United States Court of Appeals for the

Eighth Circuit had rejected Taylor's argument, ruling that the

word burglary in § 924(e)(2)(B)(ii) "means 'burglary' however a

state chooses to define it." United States v. Taylor, 864 F.2d

625, 627 (1989). The Supreme Court disagreed, concluding that

predicate offenses under the ACCA are "crimes having certain

common characteristics--the use or threatened use of force, or

the risk that force would be used--regardless of how they were

labeled by state law." Taylor, 495 U.S. at 589. The Court

called this focus on crimes having certain specified elements or

common characteristics a "categorical approach," which the Court

attributed to Congress. In order to implement the categorical

-12-
approach in Taylor, the Court concluded that Congress "had in

mind a modern 'generic' view of burglary, roughly corresponding

to the definitions of burglary in a majority of the States'

criminal codes." Id. The court found that definition to be the

following: "an unlawful or unprivileged entry into, or remaining

in, a building or other structure, with intent to commit a

crime." Id. at 598.

Having settled upon the generic definition of burglary

intended by Congress in the ACCA, the Court turned to a second

question in Taylor: "whether, in the case of a defendant who has

been convicted under a nongeneric-burglary statute [e.g. one

that includes places, such as automobiles and vending machines,

other than buildings], the Government may seek enhancement on

the ground that he actually committed a generic burglary." Id.

at 599-600. In addressing that question, the Court again

invoked the categorical approach intended by Congress. It noted

that "the practical difficulties and potential unfairness of a

factual approach are daunting," id. at 601, and concluded that

the categorical approach to the nongeneric burglary statute

"requires the trial court to look only to the fact of conviction

and the statutory definition of the prior offense." Id. at 602.

Then the Court immediately offered a qualification to

the rule it had just announced:

-13-
 This categorical approach, however, may
permit the sentencing court to go beyond the
mere fact of conviction in a narrow range of
cases where a jury was actually required to
find all the elements of generic burglary.
For example, in a State whose burglary
statutes include entry of an automobile as
well as a building, if the indictment or
information and jury instructions show that
the defendant was charged only with a
burglary of a building, and that the jury
necessarily had to find an entry of a
building to convict, then the Government
should be allowed to use the conviction for
enhancement.

Id. This qualification permits a court to consider the charging

document and jury instructions and to conclude that the fact of

conviction necessarily means conviction of the generic crime of

burglary included in the ACCA.6

In Taylor, however, the Court did not address the

extent to which a sentencing court can go beyond the fact of

conviction, for the purpose of determining an ACCA enhancement,

when a defendant has pled guilty to a charge based on a statute

that includes both violent and non-violent offenses within the

6In addition to specific crimes such as burglary, arson,
and extortion, the Armed Career Criminal Act defines as a
"violent felony" a crime that "otherwise involves conduct that
presents a serious potential risk of physical injury to
another." 18 U.S.C. § 924(e)(2)(B). We have regarded the Taylor
categorical approach for burglary as applying to other kinds of
felonies that may qualify as violent under the "otherwise"
clause. See United States v. Sacko, 178 F.3d 1, 7 (1st Cir.
1999).

-14-
meaning of the ACCA. That is the issue we have addressed in our

precedents,7 and to which we now turn.

B. The Categorical Approach and the Guilty Plea

Not surprisingly, our precedents separate into two

strands that reflect the two distinct questions addressed by the

Supreme Court in Taylor. We will discuss them accordingly.

1. Whether the Applicable State Statute Defines a
Violent Felony or a Crime of Violence

As we noted, the Taylor Court first decided what common

elements of burglary would make it a violent felony under the

7 To be precise, our precedents address this issue in the
context of both the Guidelines' career offender enhancement for
crimes of violence and the Armed Career Criminal Act's
enhancement for violent felonies. The career offender
enhancement applies if the defendant has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense." See U.S.S.G. § 4B1.1. The commentary to
U.S.S.G § 4B1.4 states: "It is to be noted that the definitions
of 'violent felony' and 'serious drug offense' in 18 U.S.C. §
924(e)(2) are not identical to the definitions of "crime of
violence" and "controlled substance offense" used in § 4B1.1
(Career Offender) . . . ." U.S.S.G § 4B1.4, cmt.n.1. Despite
the differences between § 4B1.1 and § 924(e)(2), the
categorical approach applies to both provisions and we may look
to the § 4B1.1 cases to elucidate the nature of the categorical
inquiry. See, e.g., United States v. Meader, 118 F.3d 876, 882
(1st Cir. 1997)(although Taylor's narrow exception may apply to
cases that come under the "otherwise" clause of § 4B1.2, "the
standard approach for determining whether a particular crime
fits within the 'crime of violence' rubric is a generic one, in
which inquiry is restricted to the statutory definitions of the
prior offense, without regard to the particular facts underlying
them"); United States v. Winter, 22 F.3d 15, 18 (1st Cir.
1994)("Determining whether a previous conviction represents a
crime of violence necessitates a formal categorical approach.").

-15-
ACCA. In United States v. Damon, 127 F.3d 139 (1st Cir. 1997)

and in United States v. Sacko, 178 F.3d 1 (1st Cir. 1999), the

comparable question was whether the statutory offenses at issue

in those cases constituted a crime of violence within the

meaning of the Guidelines (Damon) or a violent felony within the

meaning of the ACCA (Sacko). This was a general definitional

question that did not depend on documents specific to that case.

In Damon, we considered the district court's use of a

PSR to determine whether a Maine conviction for aggravated

criminal mischief constituted a "crime of violence." The

charging document indicated that Damon was convicted under

subsection B of the statute, which applies to a person who

intentionally or knowingly damages or destroys property valued

at over $2,000 in order to collect insurance proceeds. See

Damon, 127 F.3d at 142-43. Thus, "[t]he inquiry is whether the

elements of subsection B fit the definition of a crime of

violence under U.S.S.G. § 4B1.2(1)(ii)." Id. at 143. We looked

to the "mine run of conduct" that the statute was intended to

cover and concluded that "the typical conduct reachable under

subsection B does not involve a serious potential risk of

physical injury to another." Id. at 143-44. We concluded that

the district court erred by considering the fact that the

defendant set fire to his house to collect insurance proceeds

-16-
because "[u]nder Taylor, when the predicate statutory crime has

been determined to be typically non-violent, the inquiry ends."

Id. at 145.

In Sacko, we concluded that the district court erred

by considering the statement in the PSR that the defendant's

prior statutory rape conviction involved non-consensual

intercourse. That consideration involved the very reliance

proscribed by Taylor

--reliance on "the facts of Sacko's crime in order to determine

whether his conviction was for a violent or a non-violent

crime," Sacko, 178 F.3d at 5. We held that under the

categorical approach, the proper inquiry was whether the

category of the offense, statutory rape of a fourteen year-old,

constituted a violent felony. We noted that there was "no legal

basis . . . no studies or medical journals" to ground a holding

that intercourse with an adult is physically dangerous for a

fourteen-year-old female. Id. at 6. We remanded the case to the

district court to take evidence on this issue.

Both Damon and Sacko posed the definitional question

whether the statutory offenses at issue constituted a crime of

violence under the career offender guideline (Damon) or a

-17-
violent felony within the meaning of the ACCA (Sacko).8 There

was no uncertainty about whether a violent or non-violent

offense encompassed within a statute was involved in the fact of

conviction. As we noted in Damon, such cases do not "raise the

question of what documents beyond the charging document or the

jury instructions may be examined to determine which subsection

of the multi-faceted crime is involved. The question about what

subsection or type of statutory crime is involved is resolved

here by the charging document." 127 F.3d at 144 n.5.

8Our circuit addressed related definitional questions in
two other cases, United States v. Winter, 22 F.3d 15 (1st Cir.
1994) and United States v. Meade, 175 F.3d 215 (1st Cir. 1999).
In Winter, the issue before the court was whether
racketeering, conspiracy to commit racketeering, travel in aid
of racketeering, and sports bribery qualified as predicate
crimes of violence under the career offender guideline. Because
physical force is not an element of any of these offenses, we
asked whether, from a categorical standpoint, any of them could
be said to pose "serious risk of physical injury," as the
guideline required. Following Taylor, we cautioned that "the
court should not plunge into the details of a particular
defendant's conduct," but, rather, "should merely assess the
nature and object of the racketeering activity as described in
the indictment and fleshed out in the jury instructions."
Winter, 22 F.3d at 19.
Meade involved the question of whether the defendant's
misdemeanor conviction for spousal assault, under a general
assault and battery statute, qualified as a misdemeanor crime of
domestic violence. The court construed the underlying statute to
determine that the conviction did so qualify, rejecting the
defendant's argument that Taylor's categorical approach should
extend so far as to prevent courts from establishing the
elements of the statute of conviction. See Meade, 175 F.3d at
221.

-18-
 2. Whether the Fact of Conviction was for a Violent
or Non-Violent Felony When the Applicable State Statute
Encompasses Both

The second question addressed in Taylor was whether a

conviction under a nongeneric burglary statute, which included

violent and nonviolent offenses, could be a conviction for a

predicate offense under the ACCA. In United States v. Harris,

946 F.2d 1234 (1st Cir. 1992) and United States v. Dueno, 171

F.3d 3 (1st Cir. 1999), we addressed a comparable question.

There was no definitional uncertainty in those cases about

whether a statutory offense constituted a violent crime.

Instead, the uncertainty was whether the fact of conviction

related to a violent crime or a nonviolent crime. As we

recognized, that uncertainty could only be resolved by

considering case specific documents.

In Harris, the defendant pled guilty to a Massachusetts

assault and battery statute which covered both actual or

potential physical harm and unharmful but nonconsensual

touching. We acknowledged the general rule under Taylor that

when the statute encompasses violent and non-violent conduct,

the sentencing court should look to the indictment and

information or jury instructions to make the violent felony

determination. However, we recognized that Harris's case posed

a further question: "What . . . should a court do when there are

-19-
no jury instructions to look at . . . because the defendant pled

guilty?" Harris, 964 F.2d at 1235. In answer to that question,

we said the sentencing court should:

look to the conduct in respect to which the
defendant was charged and pled guilty, not
because the court may properly be interested
. . . in the violent or non-violent nature
of that particular conduct, but because that
conduct may indicate that the defendant and
the government both believed that the
generically violent crime . . . rather than
the generically non-violent crime . . . was
at issue.

Id. at 1236.

We concluded in Harris that "[t]he record before us

provides adequate information to make the required determination

relatively simply." Id. In particular, we considered a PSR

which recited facts from the case file revealing that both of

the defendant's assault and battery convictions involved violent

beatings. Id. at 1236-37. We found the PSR to be a reliable

source for establishing whether the defendant pled guilty to a

violent crime because the basic facts alleged in the PSR--i.e.,

that the defendant perpetrated a violent assault--were

"uncontested and uncontradicted." Id. at 1237. Given the PSR's

uncontradicted account of the defendant's conduct, we concluded

"that the defendant and the government both believed" that a

-20-
generically violent crime was the basis for the defendant's

guilty pleas. Id. at 1236.

In United States v. Dueno, 171 F.3d 3, 6-7 (1st Cir.

1999), despite strong urging from the defendant, we refused to

retreat from Harris's limited inquiry into conduct "in respect

to which the defendant was charged and pled guilty." Dueno, 171

F.3d at 5 (analyzing the Guidelines' career offender

enhancement). As here, Dueno involved a predicate Massachusetts

breaking and entering conviction memorialized by a judgment

which was ambiguous as to whether the defendant broke into or

entered a building or a vehicle. See id. at 5. On appeal, the

government conceded that the district court had engaged in

erroneous reasoning in concluding that the conviction was for

breaking into and entering a building,9 but urged us to sustain

the enhancement on the ground that Dueno never contradicted the

PSR's account of the break-in, which described a building

invasion. See id. at 6. Although we regarded the issue as

"close," we declined to affirm on the government's alternative

9
The court had accepted the government's argument that a
second charge in the complaint for destruction of property,
which alleged harm to "the personal property, dwelling, house or
building of [the victim]," established that Dueno broke into and
entered a building, and thus committed a crime of violence. On
appeal, the government conceded that this description could
refer to unlawful entry and vandalism of a vehicle as much as to
destruction of property related to breaking and entering into a
building. See Dueno, 171 F.3d at 5-6.

-21-
ground and instead remanded. Id. at 7. Applying Harris, we

concluded that "on the present record, a reasonable jurist could

conclude that there is insufficiently reliable evidence to

ground a finding that Dueno pleaded guilty to breaking into and

entering a building." Id. at 7. Specifically, we noted several

problems with the evidence presented to the sentencing court.

First, instead of offering the police report from which the

facts were taken, the government offered only the PSR which

incorporated facts from the police report. Second, the evidence

did not include "a single document that was before the judge who

accepted Dueno's plea." Id. at 7. Third, there was no account

of what took place at Dueno's plea hearing.

At the conclusion of Dueno, we said the following:

Dueno's sentence for this crime can reflect
only those prior crimes of which he has been
convicted -- either by a trier of fact or by
his own admission. As matters now stand,
the evidence is insufficient for us to
conclude, as a matter of law, that Dueno's
1994 guilty plea constituted an admission to
the building invasion described by the
police report.

Dueno, 171 F.3d at 7 (emphasis added). In its decision in this

case, the district court relied on the language we emphasize.

Although the court's reliance on this language is

understandable, that reliance nevertheless reflects a

-22-
misapplication of Harris, reaffirmed by the Dueno decision, and

of Dueno itself.

C. Consideration of Police Reports and Complaint Applications

Dueno's reference to an admission by the defendant

cannot be read apart from the inquiry framed in Harris: looking

to the conduct in respect to which the defendant was charged and

pled guilty, did "the defendant and the government both

believe[] that the generically violent crime . . . rather than

the generically non-violent crime . . . was at issue." Harris,

964 F.2d at 1236. In fact, having reaffirmed Harris, Dueno

describes the sentencing court's inquiry into the meaning of the

defendant's guilty plea in a specific sense that reflects

Harris--does the defendant's plea of guilty "constitute an

admission" to a crime of violence? See Dueno, 171 F.3d at 7

("the evidence is insufficient for us to conclude, as a matter

of law, that Dueno's 1994 guilty plea constituted an admission

to the building invasion described by the police report")

(emphasis added). The court's determination on the violent

felony or crime of violence question does not turn on an

explicit admission by the defendant to alleged conduct in the

sense of "yes, I struck the victim in the face," either at the

time the defendant pled guilty to the earlier offense or when

the enhancement issue arises at sentencing for a subsequent

-23-
offense. Rather, the court's determination about the meaning of

the guilty plea can be made on the basis of sufficiently

reliable evidence independent of a fact-specific admission. See

United States v. Broce, 488 U.S. 563, 570 (1989) ("By entering

a plea of guilty, the accused is not simply stating that he did

the discrete acts described in the indictment; he is admitting

guilt of a substantive crime.").

Nevertheless, Harris and Dueno leave open the question

of what documents are sufficiently reliable evidence for

determining whether a defendant's plea of guilty constitutes an

admission to a generically violent crime under a statute that

encompasses violent and non-violent conduct. In Harris, we

allowed the district court to rely on an uncontradicted PSR. In

Dueno, where the court had used faulty reasoning in making its

crime of violence determination, we declined to rule that the

uncontradicted narration of events in the PSR established that

Dueno had pled guilty to a crime of violence. Rather, in

concluding that the issue reasonably could be decided either

way, we pointed out that the government did not offer the police

report from which the facts in the PSR were taken, nor any other

document that was before the judge who accepted Dueno's plea.

Here, noting the deficiencies cited in Dueno, the

government offered certified copies of police reports and

-24-
complaint applications. Based on our precedents, we see no

justification for an absolute bar to the consideration of such

documents when the sentencing court must determine whether the

defendant and the government both believed that the defendant

was entering a guilty plea to a generically violent crime. 10

Such a bar would make the use of prior convictions based on

guilty pleas for purposes of the ACCA or criminal offender

guideline enhancement hinge on the happenstance of state court

record-keeping practices. The enhancement would only apply when

a plea agreement or a plea transcript had been preserved that

10 Other circuits have not addressed the precise question of
whether police reports and complaint applications are reliable
evidence for determining whether a defendant has pled guilty to
a violent crime when the statute under which he is charged
addresses violent and non-violent conduct. Some courts, however,
have allowed consideration of documents such as PSRs, plea
agreements, and plea transcripts. See United States v. Bonat,
106 F.3d 1472, 1476 (9th Cir. 1997) (district court properly
relied on plea transcript to determine whether defendant pled
guilty to generic burglary); United States v. Adams, 91 F.3d
114, 116 (11th Cir. 1996) (district court properly considered
PSR to determine whether defendant's prior conviction was for
generic burglary); United States v. Hill, 53 F.3d 1151, 1154
(10th Cir. 1995) (en banc), cert. denied, 516 U.S. 900 (1995)
(district court may consider text of guilty plea and/or other
documents that, coupled with the charging instrument, enable the
court to determine that defendant's prior conviction was for
generic burglary); United States v. Gallman, 907 F.2d 639, 645
n.7 (7th Cir. 1990), cert. denied, 499 U.S. 908 (1991) (district
court should refer to plea agreement or plea transcript to
determine whether defendant's prior conviction was for generic
burglary). But see United States v. Barney, 955 F.2d 635, 639
(10th Cir. 1992) ("we do not hold . . . that the sentencing
court determining enhancement may rely on the presentence
report").

- 24 -
showed a defendant pled guilty to a violent felony or a crime of

violence. Indeed, in Dueno, where we could have easily adopted

a bright-line rule barring the use of police reports, we did

not. We noted instead the absence in the record of "a copy of

the police report in question" or of "an explanation where the

police report came from." Dueno, 171 F.3d at 7. These specific

deficiencies made the PSR account insufficiently reliable for us

to determine as an initial matter and as a matter of law that

Dueno pled guilty to breaking and entering into a building.

The district court in this case did not attempt to

evaluate the reliability of the police reports and complaint

applications as a basis for the finding contemplated by both

Harris and Dueno--whether the defendant and the government both

believed that Shepard was entering guilty pleas to the

generically violent crime of breaking and entering a building.

In addressing that issue, the court should have asked the kind

of questions suggested by our precedents. As discussed in

Dueno, did the court taking the guilty plea have before it the

police reports and complaint applications described in the PSR,

or any other documents describing the defendant's conduct?

Where did the police reports come from? What took place at

Shepard’s plea hearings? More specifically, as discussed in

Harris, did the defendant provide anything at his plea hearings

- 25 -
to contest the facts set forth in the police reports and

complaint applications, thereby suggesting that the government

and the defendant did not share an understanding that he was

pleading guilty to an offense that had the elements of a

generically violent crime? We cite these questions from our

precedents as illustrative of the kind of inquiry that should be

made. They are not offered as an exhaustive list.

The reference above to a defendant's contesting the

facts set forth in a police report requires us to address a

confusion relating to the concept of an admission when the

enhancement issue arises at sentencing. The district court

stated that "if the relevant facts contained in the PSR are

uncontested, the court may consider these as further admissions

by the defendant." See also Dueno, 171 F.3d at 7; Harris, 964

F.2d at 1236-37. That statement is accurate. Such admissions

would be important for the reasons they were important in

Harris:

These two items of uncontested and
uncontradicted information make clear that
neither of the two "assault and battery"
crimes for which Harris was charged and
convicted were "nonconsensual touching"
crimes, and both were of the "physically
harmful" or "potentially physical harmful"
variety.

Harris, 964 F.2d at 1237. These admissions during the

sentencing process are an example of reliable evidence that

- 26 -
would permit a sentencing court to conclude that the defendant's

guilty plea to a prior offense constituted an admission to a

generic violent felony or crime of violence. But it does not

follow from this proposition that any objection posed by a

defendant at the time of sentencing to the facts set forth in a

PSR, or in an underlying police report or complaint application,

precludes the court from finding that the defendant's guilty

plea constituted such an admission. Such a result would be

inconsistent with the preponderance of the evidence standard

that generally applies when a court determines whether a

defendant qualifies for an enhancement under the ACCA or career

offender provision. See United States v. Spell, 44 F.3d 936

(11th Cir. 1995).

Therefore, the nature of the objection posed to a PSR,

or to underlying documents relied upon by the government, must

be considered carefully. The district court suggests that

Shepard contested the accuracy of the facts in those documents

that are relevant to whether he committed a generically violent

crime. "At no point--then or now, during the various plea

colloquies, or at this sentencing--did Shepard concede the facts

on which the government now relies. Indeed, Shepard expressly

contested any characterizations of these convictions that went

beyond the words of the complaint." However, Shepard's Taylor-

- 27 -
based categorical objection to the use of the complaint

applications and police reports does not challenge the accuracy

of the statements in those documents describing entries into

buildings. Shepard stated that these documents generally carry

a high risk of unreliability without ever explaining why that

was true in his case. Shepard's general challenge to the

appropriateness of the PSR setting forth accounts of his past

crimes, or to the reliance on police reports and complaint

applications for those accounts, left those accounts

uncontradicted, just as they were in Harris and Dueno.

We cannot anticipate the specific objections that

Shepard might pose to the government's documents. We can

emphasize, however, that the issue before the sentencing court

is not what Shepard did to provoke the criminal charges to which

he pled guilty. Rather, the issue, again, is the one framed in

Harris: did the defendant and the government both believe at

the time Shepard entered his pleas “that the generically violent

crime . . . rather than the generally non-violent crime . . .

was at issue.” Id. at 1236. To conclude otherwise would

enmesh the district court in the kind of factually disputed

"archeological dig" about the defendant’s conduct that Taylor

guards against, with all the attendant practical difficulties of

- 28 -
holding mini-trials on a defendant's prior convictions. See

Winter, 22 F.3d at 19.

Shepard's objections to the government's police reports

and complaint applications might focus, for example, on any

inconsistencies or ambiguities in their description of the

defendant's conduct, or any circumstances relating to the

creation or reproduction of the documents, that affect their

usefulness for determining whether Shepard and the government

both believed that an entry into a building was at issue when he

entered the guilty pleas. Or Shepard might offer an account of

what took place at his plea hearings, including the documents

before the judge, that raises questions about that issue. If the

government needs to respond to such objections, the response

should usually be “limited to examining easily produced and

evaluated court documents, including the judgment of conviction,

charging papers, plea agreement, presentence report adopted by

the court, and the findings of a sentencing judge." Spell, 44

F.3d at 939. To that list we add transcripts of the plea

hearing or other documents that were before the judge who

accepted the guilty plea at issue.

In the face of plausible objections from Shepard, and

in the absence of a sufficient response from the government,

the court may decide that it cannot conclude by a preponderance

- 29 -
of the evidence that his pleas of guilty constituted admissions

to unlawful entries into buildings. The government, of course,

"bears the burden of proving the applicability of an upward

adjustment under the guidelines [or the ACCA]," Dueno, 131 F.3d

at 7.

III.

In Taylor, the Supreme Court said that the sentencing

court could go beyond the mere fact of conviction "in a narrow

range of cases where a jury was actually required to find all

the elements of generic burglary." Taylor, 495 U.S. at 602. By

examining the indictment or information and jury instructions in

such cases, the court could conclude "that the jury necessarily

had to find" that the defendant had been convicted of the

violent felony of entry into a building, i.e. a violent felony.

Id.

The concept of a necessary finding does not apply to

disputes about the meaning of a defendant's guilty plea, and

whether that plea constitutes an admission to a violent felony

or a crime of violence. As we have indicated, those disputes

must be resolved by a finding of fact pursuant to the

preponderance of the evidence standard. Such a finding is not a

necessity. It is based on a judgment about the weight of the

evidence.

- 30 -
 Without minimizing the high stakes involved in

sentencing enhancements, we note that courts routinely resolve

factual disputes during sentencing hearings. We see no reason

why disputes about the meaning of a defendant's guilty plea

should be immune from that process, so long as the inquiry is

consistent with the principles of Taylor. We believe that we

have described such an inquiry here.

In Taylor, the Supreme Court explained why it would be

unfair for a sentencing court to look to the facts underlying

the prior conviction to determine if a defendant had pled guilty

to a violent felony. "Even if the Government were able to prove

those facts, if a guilty plea to a lesser, nonburglary offense

was the result of a plea bargain, it would seem unfair to impose

a sentence enhancement as if the defendant had pleaded guilty to

burglary." Taylor, 495 U.S. at 601-02. We, of course, agree.

It would be decidedly unfair to determine subsequently, for the

purpose of sentence enhancement under the ACCA or the career

offender guideline, that the conviction resulting from a guilty

plea was for a violent crime, based on the actual conduct of the

defendant, when the defendant in fact pled guilty to a non-

violent crime. But we see no unfairness in a court deciding on

the basis of sufficiently reliable evidence that the government

and the defendant shared the belief that the defendant was

- 30 -
pleading guilty to a generically violent crime, and hence the

defendant's plea constituted an admission to such a crime.

We also see no unfairness in a point emphasized by the

district court in its decision rejecting consideration of the

police reports and complaint applications--namely, that Shepard

had no appreciation of the importance of challenging the

location of the breaking and entering when he pled guilty to the

breaking and entering charges in the Massachusetts courts

because he could not anticipate that his convictions for these

charges would be so important for subsequent sentencing under

the ACCA. Logically, the premise of this concern is that

Shepard would have tried to minimize his criminal history

because of the possibility that he would commit another crime.

We do not find persuasive a fairness argument grounded in such

a premise. Sentencing enhancements do not punish a defendant

for the prior criminal conduct. See Nichols v. United States,

511 U.S. 738, 747 (1994) ("Enhancement statutes, whether in the

nature of criminal history provisions such as those contained in

the Sentencing Guidelines, or recidivist statutes which are

commonplace in state criminal laws, do not change the penalty

imposed for the earlier conviction."). Rather, enhancements

provide for "a stiffened penalty for the latest crime, which is

- 30 -
considered to be an aggravated offense because a repetitive

one." Gryger v. Burke, 334 U.S. 728, 732 (1948).

In summary, the court below concluded that it could not

consider the police reports and complaint applications offered

by the government because of its erroneous view that the violent

felony determination could only be based on adjudicated or

specifically admitted facts. The court did not carry out the

required analysis of whether the documents before it constituted

sufficiently reliable evidence of the government and the

defendant's shared belief that the defendant was pleading guilty

to the unlawful entry of a building. We therefore vacate the

sentence and remand for resentencing.

Vacated and remanded.

- 30 -