RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0071p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 15-4192
v. │
│
│
ERROL DONTES KING, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for
the Northern District of Ohio at Cleveland.
No. 1:14-cr-00336—Sara E. Lioi, District Judge.
Argued: July 28, 2016
Decided and Filed: March 30, 2017
Before: WHITE and STRANCH, Circuit Judges; MICHELSON, District Judge.
_________________
COUNSEL
ARGUED: Nathan A. Ray, BURDON & MERLITTI, LPA, Akron, Ohio, for Appellant.
Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
ON BRIEF: Nathan A. Ray, BURDON & MERLITTI, LPA, Akron, Ohio, for Appellant.
Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
The Honorable Laurie J. Michelson, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 15-4192 United States v. King Page 2
_________________
OPINION
_________________
MICHELSON, District Judge. Defendant Errol King pleaded guilty to being a felon in
possession of a firearm and, based on King’s prior convictions, the Government sought and
obtained an enhanced sentence under the Armed Career Criminal Act. On appeal, King
maintains that the ACCA’s fifteen-year mandatory minimum does not apply to him. He makes
this claim not by arguing that he has fewer than three prior convictions for violent felonies, but
by arguing that the Government cannot show that his prior offenses were committed on different
occasions. In assessing King’s claim, we must answer the following question: When a federal
district court is tasked with determining whether a defendant’s prior offenses were “committed
on occasions different from one another” as that phrase is used in the ACCA, is the court
restricted to using only the evidentiary sources approved in Taylor v. United States, 495 U.S. 575
(1990), and Shepard v. United States, 544 U.S. 13 (2005)? We think both the legal and policy
rationales behind Taylor and Shepard’s evidentiary restrictions compel an affirmative answer.
This conclusion, coupled with our finding that the district court sentenced King under the ACCA
using evidence not approved by Taylor and Shepard, requires us to VACATE the district court’s
judgment and REMAND for resentencing.
I.
A.
In 2002, King was convicted in Ohio courts for committing a number of similar crimes
on the same day.
Three indictments led to King’s convictions. One asserted that King (and another) had
robbed and kidnapped one Arthur Lundberg “on or about” February 18, 2002. A second said
that King (and another) had robbed and kidnapped one David Mariano—also on or about
February 18, 2002. And the third indictment charged that King (along with three others) had
committed aggravated robbery against five victims—again on or about February 18, 2002. None
of the indictments alleged the times or locations of the offenses.
No. 15-4192 United States v. King Page 3
But three bills of particulars did. The one filed in the Lundberg case stated, in relevant
part, “the Prosecuting Attorney says that the State of Ohio will prove [at trial], the following:
That on or about February 18, 2002 at approximately 1900 hours, and at the location of
740 Euclid Avenue, in the City of Cleveland, Ohio,” King had kidnapped and robbed Lundberg
(or tried to). Similarly, the bill of particulars filed in the Mariano case asserted that Ohio would
prove that King’s criminal conduct had occurred “on or about February 18, 2002, at
approximately 7:27 p.m., and at the location of 1000 Barn Court, in the City of Cleveland,
Ohio.” And in the case charging King with five counts of aggravated robbery, the bill claimed
that Ohio would prove that the offenses had occurred “on or about February 18, 2002 at
approximately 7:50 p.m., and at the location of East 21st and Euclid, in the City of Cleveland,
Ohio.” In short, together, the bills of particulars indicate that the offenses charged in each of the
three indictments occurred about 25 minutes apart and that King committed them at different
locations in Cleveland.
King eventually pleaded guilty to some charges (or amended charges). Apparently due to
Ohio’s record-keeping practices, transcripts of King’s plea colloquies are no longer available.
And while each guilty plea was memorialized in a “Journal Entry,” like the indictments, none of
the journal entries provide the alleged times or locations of King’s offenses.
B.
About twelve years later, in February 2015, King pleaded guilty in federal district court
to possessing a firearm with a felony conviction in violation of 18 U.S.C. § 922(g)(1). Although
that conviction carries a maximum sentence of ten years in prison, see 18 U.S.C. § 924(a)(2),
given King’s 2002 convictions, the Government sought a fifteen-year mandatory minimum under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). The ACCA states in relevant part, “In the
case of a person who violates section 922(g) of this title and has three previous convictions . . .
for a violent felony . . . committed on occasions different from one another, such person shall
be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
King disputed the Government’s claim that he was subject to the ACCA’s enhancement.
Although conceding that his 2002 convictions were “violent felon[ies]” under the ACCA, King
No. 15-4192 United States v. King Page 4
claimed that the tests established by Taylor v. United States, 495 U.S. 575 (1990), and Shepard v.
United States, 544 U.S. 13 (2005), excluded the bills of particulars from the evidence the court
was permitted to rely on in determining whether his 2002 offenses were “committed on
occasions different from one another.” And, argued King, reviewing the appropriate documents
revealed only that his prior offenses took place on the same day, and the Government thus failed
to show that his felonies were committed on different occasions.
The Government’s argument to the district court was three tiered. The Government first
took the position that Taylor and Shepard’s restrictions on the evidence that a sentencing court
may consider apply only when the court determines whether the elements of a prior conviction
match the elements of an ACCA predicate. In support of this position, the Government relied on
a footnote in United States v. Thomas, where we indicated that Taylor’s evidentiary limitations
(Shepard had not yet been decided) did not apply to the different-occasions inquiry. See
211 F.3d 316, 318 n.3 (6th Cir. 2000). The Government next argued that even if the evidentiary
restrictions of Taylor and Shepard extend to the different-occasions inquiry, the bills of
particulars filed in the 2002 cases came within those restrictions. Lastly, as an (admittedly
weaker) alternative, the Government asserted that based on only the indictments and journal
entries, it was still more likely than not that King’s prior offenses had occurred on different
occasions.
The district court agreed with the Government’s first argument and so it did not reach the
other two. In particular, although recognizing that we previously questioned Thomas’s viability
given Shepard, see United States v. Barbour, 750 F.3d 535, 543 n.1 (6th Cir. 2014), the district
court believed that Thomas remained binding precedent. It thus relied on the bills of particulars,
concluded that King’s 2002 offenses were “committed on occasions different from one another,”
and sentenced King to fifteen years and eight months in prison under the ACCA. Regarding the
evidence that may be considered in making the different-occasions determination, the district
court remarked, “the issue is absolutely teed up for the Sixth Circuit. And now it’s a matter that
the Sixth Circuit has to decide.”
No. 15-4192 United States v. King Page 5
II.
We review de novo the issue of what evidence a court may rely on when deciding
whether prior offenses were “committed on occasions different from one another” as that phrase
is used in the ACCA. See United States v. Singer, 782 F.3d 270, 279 (6th Cir. 2015); United
States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997).
III.
A.
King first claims that a district court, in deciding whether a defendant’s prior offenses
were “committed on occasions different from one another,” may consult only the evidentiary
sources approved by the Supreme Court in Taylor and Shepard. We think that the reasoning of
those decisions, especially in light of subsequent Supreme Court decisions, shows that King is
correct.
In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court set out the approach
that courts must use in determining whether a prior conviction qualifies as an ACCA predicate,
such as “burglary, arson, or extortion.” The Court said that federal district courts are generally to
employ a “formal categorical approach”: ask whether the elements of the prior offense match
the elements of the “generic” version of the crime listed in the ACCA. Id. at 600. The Court
noted, however, that it may be permissible for a sentencing court to consider information beyond
the statutory definition of the prior offense where that definition has alternative elements and, if
the defendant was convicted of one alternative, the conviction would count as an ACCA
predicate, but if another, it would not. See id. at 602. “For example,” hypothesized the Court,
because generic burglary in the ACCA covered only entry into a building, if a prior conviction
was for violating a burglary statute covering entry into a building or a vehicle, a court applying
the ACCA could look to the “indictment or information and jury instructions” filed in the prior
case to see if “the jury necessarily had to find an entry of a building to convict.” Id.
This method of consulting limited evidence to determine which of several alternative elements
underlies a prior conviction is now known as the “modified categorical approach.”
See Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276, 2283–84 (2013).
No. 15-4192 United States v. King Page 6
More important to resolving this appeal is why the Supreme Court thought that a
categorical approach, permitting a sentencing court to at most determine what “the jury
necessarily had to find . . . to convict,” Taylor, 495 U.S. at 602, was proper. One reason, the
Court explained, was the legislative history of the ACCA: “If Congress had meant to adopt an
approach that would require the sentencing court to engage in an elaborate factfinding process
regarding the defendant’s prior offenses, surely this would have been mentioned somewhere in
the legislative history.” Id. at 601. Another reason for not allowing sentencing courts to engage
in a factual inquiry was the text of the ACCA: by referring to the defendant’s “previous
convictions” for violent felonies instead of, say, the defendant’s “previous commission” of
violent felonies, Congress had indicated that it was not the conduct leading to the conviction but
the conviction itself that mattered to the ACCA-predicate determination. Id. at 600.
In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court adhered to these
rationales. At issue was whether a prior conviction for violating a state law criminalizing
burglary of a “building, ship, vessel, or vehicle” matched the ACCA’s generic-burglary
predicate. Id. at 16; id. at 31 (O’Connor, J., dissenting). Because the defendant’s prior state
conviction was the result of a plea, a court deciding if the ACCA applied could not (as Taylor
had suggested) consult jury instructions in the state case to see if the defendant had been
convicted of entry into a building as generic burglary requires. See id. at 17 (majority opinion).
The Government took the position that the federal sentencing court could look to an
uncontroverted police report alleging that the defendant had entered a building. Id. Although
the report was reliable, the Supreme Court rejected that position, explaining that the
Government’s “wider evidentiary cast,” id. at 21, was a call to “ease away” from Taylor and its
respect for “congressional intent and avoidance of collateral trials,” id. at 23. The Court instead
held that, where a prior conviction for violating a statute with alternative elements was the result
of a plea, a court answering the ACCA-predicate question could attempt to identify the element
underlying the conviction by consulting the plea-colloquy transcript, the written plea agreement,
or “a record of comparable findings of fact adopted by the defendant upon entering the plea.” Id.
at 20. With this information, the Court explained, “a later court could generally tell whether the
plea had ‘necessarily’ rested on the fact identifying the burglary” as generic burglary, “just as”
No. 15-4192 United States v. King Page 7
jury instructions would do in a tried case or a “charging document would do in any sort of case.”
Id. at 21 (quoting Taylor, 495 U.S. at 602).
A four-justice plurality thought that the Constitution provided an additional reason for
requiring that the ambiguous element underlying a prior conviction in a pleaded case be clarified
by a defendant through admission rather than determined by a judge applying the ACCA.
Shepard, 544 U.S. at 24–26. The plurality noted that since Taylor, the Court had held in Jones v.
United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000), that the
Constitution requires a jury, not a judge, to find any fact subjecting the defendant to a greater
statutory penalty (with the exception that a judge could find the fact of conviction). See Shepard,
544 U.S. at 24. The plurality was concerned that if a court answered the ACCA-predicate
question by finding facts not admitted by the defendant, the court might very well abridge the
defendant’s Sixth and Fourteenth Amendment rights. See id. at 25–26; cf. id. at 28 (Thomas, J.,
concurring in part and in the judgment) (explaining that “broadening the evidence judges may
consider when finding facts under Taylor . . . would not give rise to constitutional doubt, as the
plurality believes,” but instead “constitutional error”).
Since Shepard, a majority of the Supreme Court has recognized this constitutional
concern. In Descamps v. United States, the Court explained that if a sentencing court were to
answer the ACCA-predicate question by “try[ing] to discern what a trial showed, or a plea
proceeding revealed, about the defendant’s underlying conduct,” there would be friction with the
Sixth Amendment’s promise that “a jury—not a sentencing court—will find such facts,
unanimously and beyond a reasonable doubt.” ___ U.S. ___, ___, 133 S. Ct. 2276, 2288 (2013).
And just last year the Court reiterated, “a judge cannot go beyond identifying the crime of
conviction to explore the manner in which the defendant committed that offense. . . . He can do
no more, consistent with the Sixth Amendment, than determine what crime, with what elements,
the defendant was convicted of.” Mathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243,
2252 (2016).
In sum, the Supreme Court has restricted federal district courts tasked with answering the
ACCA-predicate question to first the statutory definition of the prior offense, and, if that
definition is phrased in the alternative, to limited evidence, because of the ACCA’s text and
No. 15-4192 United States v. King Page 8
legislative history and because of likely conflict with the Constitution were the evidentiary
restrictions absent.
We think that the legislative history and constitutional concerns apply with equal force
when a sentencing court undertakes the different-occasions inquiry. Congress’s desire to avoid
mini-trials almost assuredly covers not only proceedings to answer the ACCA-predicate question
but also proceedings to answer the different-occasions question. Indeed, because facts relevant
to the different-occasions inquiry, such as the time and location of the prior offense, are most
often not elements of the offense, a proceeding to answer the different-occasions question may
well be more extensive than one to answer the ACCA-predicate question. See United States v.
Dantzler, 771 F.3d 137, 143–44 (2d Cir. 2014). Notwithstanding this practical concern, we
acknowledge that there is some tension between the text and the legislative history. We do not
here have the textual hook that Taylor used. As opposed to the ACCA’s language pertaining to
the predicate question, its different-occasions language does focus on the defendant’s conduct:
it asks courts to determine whether prior offenses were “committed” on different occasions.
See 18 U.S.C. § 924(e)(1).
What most convinces us, then, that Taylor and Shepard’s evidentiary restrictions extend
to the different-occasions question is the Supreme Court’s expressed concern over a judge
finding facts that become the basis of an ACCA enhancement. “Under ACCA, the court’s
finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that
finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely
identifying a prior conviction.” Descamps, 133 S. Ct. at 2288. Just so with the different-
occasions question: a sentencing court’s finding that prior violent felonies were “committed on
occasions different from one another” can be as dispositive of an ACCA enhancement as finding
that a conviction is a third ACCA predicate. (Indeed, this is that case.) So if a sentencing judge,
in answering the different-occasions question, became the trier of fact regarding when and where
the prior offenses occurred, that procedure would raise the very constitutional concern identified
in Shepard and reaffirmed in Descamps and Mathis.
The Taylor-Shepard approach quells this constitutional concern. Under the framework of
those cases, a judge is restricted to those facts that “necessarily” underlie the prior conviction,
No. 15-4192 United States v. King Page 9
Shepard, 544 U.S. at 20–21, i.e., those facts necessarily determined beyond a reasonable doubt
by the trier of fact or necessarily admitted by the defendant, see Descamps, 133 S. Ct. at 2288.
Thus, under Taylor and Shepard, a sentencing judge is not finding facts in the first instance, but
merely identifying findings or admissions that were previously made under constitutional
safeguards.
Accordingly, we hold that Taylor and Shepard’s limitations on the evidentiary sources
and information that a federal district court may consider in determining whether a prior
conviction is a predicate under the ACCA also apply when the court determines whether prior
offenses were “committed on occasions different from one another” under the ACCA.
Not only does Supreme Court precedent compel this conclusion, but our holding is
consistent with that of our sister circuits (save, perhaps, one). See United States v. Dantzler,
771 F.3d 137, 139 (2d Cir. 2014); Kirkland v. United States, 687 F.3d 878, 886 & n.9 (7th Cir.
2012); United States v. Boykin, 669 F.3d 467, 472 (4th Cir. 2012); United States v. Sneed,
600 F.3d 1326, 1332 (11th Cir. 2010); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir.
2009); United States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006); United States v. Harris,
447 F.3d 1300, 1305 (10th Cir. 2006); United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir.
2005). But see United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (“[W]e have rejected
similar Sixth Amendment arguments challenging the information the district court considers
when determining the specific dates on which the offenses occurred.” (citing United States v.
Richardson, 483 F. App’x 302, 305 (8th Cir. 2012))); Richardson, 483 F. App’x at 305 & n.3
(explaining that Shepard’s evidentiary restrictions are not applicable in determining whether
offenses were committed on different occasions).
The Government, citing United States v. Thomas, 211 F.3d 316 (6th Cir. 2000), and
United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), argues that our published precedents are
contrary to what we have just concluded. We disagree. It is true that in Thomas we (foot)noted
that Taylor’s framework did not extend to the different-occasions question. See 211 F.3d at 318
n.3. And it is also true that published precedent generally binds later panels. United States v.
Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) abrogated on other grounds by Beckles v. United
States, ___ U.S. ___, 137 S. Ct. 886 (2017).
No. 15-4192 United States v. King Page 10
But we do not adhere to published precedent when “an intervening decision of the United
States Supreme Court requires modification of our prior decision.” Id. And Shepard fits the bill.
That post-Thomas decision did more than extend Taylor’s categorical approach to situations
where prior convictions rested on guilty pleas. When read in light of Descamps (and Mathis),
Shepard harnessed Apprendi to back Taylor’s categorical approach. Shepard, 544 U.S. at 24–26
(plurality opinion); Descamps, 133 S. Ct. at 2288 (discussing constitutional implications of non-
categorical approach and relying on Shepard plurality opinion). Indeed, we have previously
suggested that Thomas was “appropriate for reconsideration” given “Shepard and its progeny.”
United States v. Barbour, 750 F.3d 535, 543 n.1 (6th Cir. 2014). Taking our prior advice, we
find that, to the extent Thomas conflicts with the limitations Shepard sets on determining an
ACCA enhancement—whether on the predicate-conviction or different-occasions question—
Thomas is abrogated by Supreme Court precedent.
As for Burgin, which also predated Shepard, there we answered a related but different
question than the one presented here. In Burgin we held that, consistent with Apprendi, a
sentencing judge may answer the question of whether prior offenses were “committed on
occasions different from one another.” See 388 F.3d at 183 (“[T]he issue before the Court is
whether this ‘different occasions’ language is a fact, ‘other than the fact of a prior conviction,’
which is subject to the protections outlined in Apprendi.”); see also id. at 184, 186. And to the
extent that answering the different-occasions question requires a sentencing judge to identify the
who, when, and where of the prior offenses, nothing we say here precludes a judge from doing
so. We only hold that in identifying those facts, a sentencing judge is constrained to reviewing
evidence approved by Taylor and Shepard.
The Government also argues that the “different[-]occasions inquiry requires an analysis
of facts” while the “sole” purpose of the Taylor-Shepard framework is to determine elements of
the prior offense.
We agree with the Government that the function of the categorical approach and its
modified helper is to determine which elements, not which facts, underlie a prior conviction. But
identifying the function of the categorical approach does not answer the critical question: why
has the Supreme Court prohibited courts applying the ACCA from considering all but a limited
No. 15-4192 United States v. King Page 11
class of documents when identifying elements? As we have explained, a substantial part of the
answer lies in the need to avoid mini-trials, with the attendant logistical concerns and
constitutional risks. And, as we have said, that concern also warrants limiting district courts
answering the different-occasions question to those sources approved by Taylor and Shepard.
The Government also raises a practical argument. It asks, how can a district court answer
the different-occasions question if it is “blinded” to the evidence it needs to make that
determination by Taylor and Shepard’s restrictions?
We recognize that in some cases Taylor and Shepard evidence will not be sufficient for a
district court to determine that prior offenses occurred on different occasions while a broader
swath of evidence would permit the determination. But a similar practical argument was raised
and rejected in Shepard. There, it was argued that a police report, “free from any inconsistent,
competing evidence,” would have reliably shown that the defendant had burglarized a building
(as the ACCA’s burglary predicate required), whereas, absent the report, it was (likely)
impossible to identify which of several alternatives was the basis of the prior conviction. See
Shepard, 544 U.S. at 17–18, 22; United States v. Medina-Almaguer, 559 F.3d 420, 425 (6th Cir.
2009). This concern, the Court explained, was not “sufficient justification for upsetting
precedent,” particularly as Taylor’s evidentiary limitation “was the heart of [that] decision.”
See id. at 23. The Court further noted that “time has enhanced even the usual precedential force”
of Taylor because in the intervening fifteen years, Congress had made no change to the statute.
Id. In reaching our decision based on the same reasoning, we likewise respect precedent.
Finally, at oral argument, the Government relied heavily on Nijhawan v. Holder,
557 U.S. 29 (2009), to argue that it would be improper to extend Taylor and Shepard’s
restrictions to the different-occasions inquiry.
Nijhawan sheds little light on the issue before us. There, the Supreme Court found that
an immigration judge was not limited to Taylor’s categorical approach in determining that an
alien had a prior felony conviction involving fraud or deceit causing a $10,000 or more loss. Id.
at 32. But, significantly, “a deportation proceeding is a civil proceeding,” id. at 42, so the Sixth
and Fourteenth Amendment concerns that animate our decision were not present in Nijhawan.
No. 15-4192 United States v. King Page 12
Indeed, in response to the argument that Taylor and Shepard should apply because the
immigration judge’s loss-amount determination could lead to an increased sentence in a later
criminal proceeding, the Government conceded that it would have to prove the loss amount
beyond a reasonable doubt in the later criminal case. Id. at 40. And that concession
“eliminat[ed] any constitutional concern.” Id.
In short, we find that in determining whether prior offenses were “committed on
occasions different from one another,” 18 U.S.C. § 924(e)(1), a sentencing court may only rely
on the evidentiary sources and information approved by the Supreme Court in Taylor and
Shepard.
B.
Remaining is to apply this rule to the facts of this case: are the times and locations recited
in the bills of particulars filed in King’s 2002 cases within the scope of information and sources
approved by the Supreme Court in Taylor and Shepard? We think not.
To start with, the documents at issue are not in the list of Shepard-approved materials
unless they are properly considered “charging documents” or “comparable judicial sources” as
those terms are used in Shepard. 544 U.S. at 26. We can also employ the constitutional
concerns espoused in Apprendi, 530 U.S. at 490, to guide our analysis of whether the Ohio bills
of particulars are properly considered Shepard-approved evidence. As we explained, if a
sentencing judge were the first to determine that allegations by the state prosecutor in the three
bills of particulars were facts, the very constitutional concern identified in Shepard, Descamps,
and Mathis would arise. So we need only decide whether King necessarily admitted the times or
locations alleged in the bills (thereby eliminating the constitutional concern).
It is improper to infer that King necessarily admitted the when and where of the
2002 offenses as set forth in the bills of particulars when he pleaded guilty. To start, there are no
transcripts of King’s plea colloquies or copies of written plea agreements reflecting any such
admissions. And the time and place of King’s robberies or attempted robberies were not
elements of those offenses. The statutory language corresponding to King’s convictions makes
this apparent. See Ohio Rev. Code § 2911.02(a)(1) (West 2002) (“No person, in attempting or
No. 15-4192 United States v. King Page 13
committing a theft offense or in fleeing immediately after the attempt or offense, shall . . . [h]ave
a deadly weapon on or about the offender’s person or under the offender’s control.”); Id.
§ 2911.02(a)(3) (“No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall . . . [u]se or threaten the immediate use of force
against another.”). Notably, too, none of the three indictments recite the time and place of the
offenses, and no one disputes that King could have pled guilty to the charges in the indictments
without requesting the bills of particulars. It is thus improper to infer that King necessarily
admitted the time or place of his 2002 offenses. Descamps, 133 S. Ct. at 2288 (“[T]he only facts
[a sentencing] court can be sure the jury [found unanimously and beyond a reasonable doubt] are
those constituting elements of the offense—as distinct from amplifying but legally extraneous
circumstances.”); see also Mathis, 136 S. Ct. at 2248. That finding, coupled with today’s
holding, leads to the conclusion that the alleged times and locations as recited in the bills of
particulars were not information the district court was permitted to consider in enhancing King’s
sentence under the ACCA. See Descamps, 133 S. Ct. at 2288 (“[A]s Shepard indicated, when a
defendant pleads guilty to a crime, he waives his right to a jury determination of only that
offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a
later sentencing court to impose extra punishment.”).
The Government implies that, in limiting a court applying the ACCA to what King
necessarily admitted, we apply Shepard’s restrictions too strictly. It stresses that in Shepard, the
Supreme Court stated that courts making the ACCA-predicate determination may consider “the
terms of the charging document” (which, says the Government, includes bills of particulars).
The Government is correct about what Shepard said. See 544 U.S. at 26. But to hold that
a court answering the different-occasions question can consider anything that might be classified
as a charging document would be to unmoor Shepard’s reference to “charging documents” from
its reasoning. The list of approved documents was compiled with a focus on what the defendant
“necessarily” admitted in pleading guilty—not the other way around. Indeed, Shepard made
clear that the task was to identify whether a prior conviction “necessarily” rested on the elements
of the generic offense:
No. 15-4192 United States v. King Page 14
We hold that enquiry under the ACCA to determine whether a plea of guilty to
burglary defined by a nongeneric statute necessarily admitted elements of the
generic offense is limited to the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.
544 U.S. at 26 (emphases added); see also id. at 20–21 (explaining that with a plea-colloquy
transcript, the written plea agreement, or a comparable record, “a later court could generally tell
whether the plea had ‘necessarily’ rested on the fact identifying the burglary as generic”).
But, one might argue, if the Supreme Court had truly wanted to limit courts making the
ACCA-predicate determination to those facts necessarily admitted by the defendant or
necessarily found by a jury, then why reference “charging documents” generally, rather than the
necessary facts or elements within the charging documents? The answer, we think, lies in the
issue presented to the Court in Shepard. Insofar as a sentencing court’s task is to identify which
elements underlie a prior conviction, the terms of the charging document will always be
appropriate to consider: a conviction necessarily means the elements—but not “superfluous
facts,” Descamps, 133 S. Ct. at 2288—charged in the indictment were found by a jury or
admitted by the defendant.
This understanding of Shepard is not new. We have previously read Shepard to permit
courts to consider only those facts that a defendant necessarily admitted in pleading guilty. See
United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th Cir. 2009) (“[Shepard] requires a
judicial record that identifies the facts a defendant ‘necessarily admitted’ in entering a guilty
plea—as Shepard itself demonstrates.”). And the Second Circuit also read Shepard this way in
finding that a bill of particulars is not Shepard-approved evidence. See United States v. Rosa,
507 F.3d 142, 154 (2d Cir. 2007) (“We are not convinced, notwithstanding the Shepard Court’s
reference to ‘charging document[s]’ as potentially reliable indicia of the nature of prior
convictions, that the Bill is therefore ‘Shepard evidence’ for our purposes.” (alteration in
original)).
The Government implies that we interpreted Shepard differently in United States v.
Jones, 453 F.3d 777 (6th Cir. 2006). It is true that in Jones we emphasized the “reliability” of
No. 15-4192 United States v. King Page 15
the document: “Complaints are judicial documents, filed under oath and submitted in
furtherance of formal prosecution. They bear, accordingly, substantially greater indicia of
reliability than mere police reports, which are not filed in court, are not sworn to, and are
developed for an investigatory purpose.” Id. at 780.
To the extent that Jones might be read as making the reliability of the complaint
dispositive of whether it was a Shepard-approved source, other circuits disagree. See Rosa,
507 F.3d at 155 (“[W]e do not think, as the Jones court seemed to indicate, that the question
before us is whether the unsworn Bill of Particulars bears indicia of reliability. The dispositive
question is whether the plea necessarily rested on the fact that the crime to which [the defendant]
pleaded involved the use or carrying of a firearm.” (alterations, internal quotation marks, and
citation omitted)).1
We read Jones differently. Jones relied on our decision in United States v. Kappell,
418 F.3d 550, 560 (6th Cir. 2005), to conclude that a complaint may be considered under the
Shepard framework. Jones, 453 F.3d at 780. This is significant because the defendant in Kappell
had “stipulated that the facts recited in the complaint were correct for purposes of entering his
plea.” 418 F.3d at 558. Thus, Kappell, and therefore Jones, suggests that a district court
answering the different-occasions question may rely on facts in a complaint—if those facts were
later admitted by the defendant. Here, there are no such admissions in the record as to the times
or locations of the offenses.
Further, Jones does not answer the question before us because Jones found that a
Tennessee criminal complaint is a Shepard-approved source, whereas this case involves Ohio
bills of particulars. The distinction matters at least because the Government has previously
conceded that an Ohio bill of particulars is not proper for consideration under Shepard. See
United States v. Stafford, 721 F.3d 380, 397 (6th Cir. 2013).
1
In attempting to put distance between Jones and the cases before them involving a predicate-offense
determination, the panels in United States v. Wells, 473 F.3d 640, 647 n.5 (6th Cir. 2007), and Medina-Almaguer,
559 F.3d at 424, confined Jones to the different-occasions inquiry without explaining why the constitutional
concerns present in making the predicate-offense determination would not apply to the different-occasions inquiry.
No. 15-4192 United States v. King Page 16
In sum, King did not necessarily admit the times and locations asserted in the three bills
of particulars when he pleaded guilty in 2002. As such, we find that the district court erred in
considering the times and locations asserted in the bills in determining that King’s prior offenses
were committed on occasions different from one another.
C.
This leaves what the Government has indicated is its weakest argument: that even when
limited to the information in the indictments and the journal entries, it is more likely than not that
King’s offenses were committed on different occasions. Given that King’s convictions involve
seven victims (Lundberg, Mariano, and five from the aggravated-robbery case), the Government
argues as follows: “[n]othing in the record in any way suggests that King robbed all [seven]
victims simultaneously, attempting and failing with some, succeeding with others, working
alongside different accomplices depending on the victim, and using a deadly weapon only
against [five] of them.” Thus, the Government concludes, “[i]t strains credulity and defies
common sense to read even the limited version of the record in that manner.”
We disagree. The Government’s argument ignores the fact that the indictments in the
Lundberg and the Mariano cases charged the same two defendants with committing the same two
offenses on the same day. In other words, those two indictments are indistinguishable save for
the victim. And King was not charged and convicted of the Lundberg and the Mariano offenses
in two different venues, a fact that might indicate that those offenses occurred separately.
See State v. Hampton, 983 N.E.2d 324, 328–29 (Ohio 2012) (providing that, under Ohio law,
venue must be proven beyond a reasonable doubt). Thus, even if the Government is correct that
the offenses charged in the five-victim case occurred on an occasion different from the Lundberg
and Mariano offenses, nothing that can be considered under Shepard permits the Lundberg and
Mariano offenses to be deemed separate. See Kirkland, 687 F.3d at 887 (“[W]e agree with the
district court that the ‘factually sparse’ record sheds little light on whether the 1985 offenses
occurred on the same occasion. The charging informations for the burglary and robbery
establish that Kirkland and his co-defendants committed both offenses on the same day, but there
is no information as to the timing or sequence of events.”). Similarly, no Shepard-approved
evidence shows that the offenses charged in the five-victim case did not happen at the same time
No. 15-4192 United States v. King Page 17
in the same place. At most then, the Government can show that, on February 18, 2002, King
committed violent felonies on two different occasions. The ACCA’s enhancement, however,
requires three. See 18 U.S.C. § 924(e)(1).
IV.
For the foregoing reasons, we hold that a federal district court deciding whether prior
offenses were “committed on occasions different from one another” as that phrase is used in the
Armed Career Criminal Act is limited to Shepard-approved evidentiary sources that contain facts
necessarily found beyond a reasonable doubt by the trier of fact or necessarily admitted by the
defendant. Under that rule, it was error for the district court to consider the times and locations
alleged in King’s bills of particulars. And the Government failed to otherwise meet its burden to
show that the offenses were committed on different occasions. We thus VACATE the district
court’s judgment and REMAND for resentencing consistent with this opinion.