USA v. Willie McCloud

Filing

Opinion issued by court as to Appellant Willie McCloud. Decision: Vacated and Remanded. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 03/16/2016

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14547
________________________
D.C. Docket No. 1:14-cr-20353-KMM-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE MCCLOUD,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 16, 2016)

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Before WILSON and JULIE CARNES, Circuit Judges, and HALL, ∗ District
Judge.
WILSON, Circuit Judge:
Willie McCloud pleaded guilty to being a convicted felon in possession of a
firearm that traveled interstate, in violation of 18 U.S.C. § 922(g)(1). This
conviction, coupled with his three prior convictions for armed robbery, made
possible his qualification as an armed career criminal. See 18 U.S.C. § 924(e).
The federal crime of possessing a firearm by a convicted felon generally carries no
mandatory minimum penalty and the statutory maximum sentence is 10-years
imprisonment. See id. § 924(a)(2). However, the Armed Career Criminal Act
(ACCA) imposes a mandatory minimum sentence of 15-years imprisonment when
a defendant has committed three prior qualifying offenses “on occasions different
from one another.” See id. § 924(e)(1).
The district court determined that McCloud’s three prior armed robbery
convictions were committed on separate occasions, thereby rendering McCloud
subject to the ACCA’s 15-year statutory minimum. 1 See id. The court then
∗

Honorable James Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.
1
McCloud previously was convicted of committing three armed robberies and third-degree
grand theft. The Presentence Investigation Report (PSI) does not identify which of the four
offenses were relied upon in recommending McCloud’s classification as an armed career
criminal. The parties agree that McCloud’s armed robbery convictions qualify as “violent
felon[ies]” within the meaning of 18 U.S.C. § 924(e)(2)(B). Because the Government neither
briefed nor argued that third-degree grand theft is a “violent felony” upon which an armed career
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imposed a 235-month sentence, which was at the top of the range recommended by
the United States Sentencing Guidelines (the Guidelines) and exceeded the
Government’s request by 40 months. This appeal followed.
We are called upon to determine whether the Government carried its burden
in proving McCloud is an armed career criminal under the statute. After thorough
review of the parties’ briefs and having had the benefit of oral argument, we
conclude that the district court erred in determining McCloud’s three prior offenses
were separate within the meaning of the ACCA. 2 We therefore vacate the district
court’s sentencing order and remand for sentencing consistent with this opinion.
I
For a defendant to receive the 15-year minimum sentence under 18 U.S.C. §
924(e)(1), the Government must prove by a preponderance of the evidence, using
“reliable and specific evidence,” see United States v. Almedina, 686 F.3d 1312,
1315 (11th Cir. 2012), that the defendant’s prior convictions each “arose out of a
separate and distinct criminal episode,” United States v. Sneed, 600 F.3d 1326,

criminal status could be based, that argument has been waived and we offer no opinion on that
issue. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
Accordingly, whether McCloud qualifies as an armed career criminal rests on whether the
conduct underlying his three prior convictions for armed robbery occurred on occasions different
from one another.
2
Because we conclude McCloud is not subject to the ACCA mandatory minimum sentence,
leading us to remand for resentencing, we need not address whether McCloud’s prior sentence
was procedurally or substantively unreasonable. Additionally, although McCloud raised a
constitutional challenge to his conviction under 18 U.S.C. § 922(g)(1), this argument is squarely
foreclosed by our precedent. See United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).
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1329 (11th Cir. 2010) (internal quotation marks omitted). To qualify as separate
under the ACCA, the predicate crimes must be “successive rather than
simultaneous”—in other words, “temporally distinct.” See United States v. Weeks,
711 F.3d 1255, 1261 (11th Cir. 2013) (per curiam) (internal quotation marks
omitted). A crime is “successive” when the defendant had “a meaningful
opportunity to desist . . . activity before committing the second offense” and “the
crimes reflect[] distinct aggressions.” United States v. Lee, 208 F.3d 1306, 1307
(11th Cir. 2000) (per curiam) (first alteration in original) (internal quotation mark
omitted). Thus, distinctions in the timing and location of the events in question are
central to the determination that they are “separate and distinct criminal episodes.”
See Sneed, 600 F.3d at 1333; Weeks, 711 F.3d at 1261.
To determine the nature of a prior conviction, the district court is “limited to
examining the statutory definition [of the offense of the prior conviction], charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.” United States
v. Shepard, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005). These documents are
known as “Shepard-approved sources” or “Shepard documents.” See, e.g., Weeks,
711 F.3d at 1259–60. Police reports and arrest affidavits may not be used to
determine whether ACCA predicate offenses occurred on separate occasions.
Sneed, 600 F.3d at 1333. The district court may make findings of fact based on
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undisputed statements in the PSI, but may not rely on those portions to which the
defendant objected “with specificity and clarity,” unless the Government
establishes the disputed facts by a preponderance of the evidence. United States v.
Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam); United States v.
Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (per curiam).
Both in his objections to the PSI and at sentencing, McCloud argued that the
Shepard documents did not support the Government’s contention that his prior
crimes were separate within the meaning of the ACCA. On appeal, McCloud asks
us to review whether the Government failed to carry its burden of proving that the
armed robberies were offenses “occurring on occasions different from one
another” using Shepard-approved materials. “We review de novo whether crimes
were committed on occasions different from one another within the meaning of the
ACCA.” Weeks, 711 F.3d at 1261.
II
McCloud contends that the Government failed to meet its burden of proof
because the Shepard documents do not state the time and location of his prior
convictions, or otherwise indicate that the offenses were “temporally distinct.” See
id.; Almedina, 686 F.3d at 1315. The Shepard documents in this case include the
charging documents for each armed robbery, the transcript of the plea colloquy,

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and undisputed statements in the PSI. 3 McCloud’s arrest affidavits are not
Shepard documents. See Sneed, 600 F.3d at 1333 (holding that “courts may not
use police reports to determine whether predicate offenses under § 924(e)(1) were
committed on ‘occasions different from one another.’”); cf. United States v.
Rosales-Bruno, 676 F.3d 1017, 1022–23 (11th Cir. 2012) (explaining that arrest
affidavits lack “indicia of reliability sufficient to meet Shepard’s requirements”).
We review, in turn, the charging documents, plea colloquy transcript, and
undisputed portions of the PSI to determine if these documents provide reliable
and specific evidence reflecting that McCloud’s prior convictions more likely than
not arose out of “separate and distinct criminal episode[s].” See Sneed, 600 F.3d at
1329 (internal quotation marks omitted). When it is equally likely that the crimes
were committed simultaneously as it is that they were committed successively, the
Government has not met its evidentiary obligation under the preponderance of the
evidence standard.
We conclude that, although the charging documents reflect there were three
different victims, different items stolen, and three different case numbers, these
pieces of information do not make it more likely than not that the crimes were
committed successively rather than simultaneously. In addition, although the
charging documents reflect the varying participation of McCloud’s co-defendants,

3

There is no written plea agreement in this case.
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they do not state in what order the robberies occurred or make it more likely than
not that there was a meaningful opportunity to desist the criminal activity.
Similarly, the plea colloquy transcript and undisputed paragraph of the PSI
indicate—at most—two separate offenses occurred. Thus, whether taken
individually or collectively, the Shepard documents do not support the conclusion
that the robberies occurred on occasions different from one another.
A. The Charging Documents
The Government concedes that the charging documents do not specify the
time or location at which each of the three prior robbery convictions occurred.
However, the Government argues, the charging documents do reflect that there
were three separate case numbers assigned to McCloud’s offenses on August 4,
2008, that McCloud and his fellow perpetrators stole from three differently named
individuals that day, that the property stolen was of three different types, and that
the offenses were committed with different co-defendants. The Government urges
us to conclude from this information that it is more likely than not that the armed
robberies were separate within the meaning of the ACCA.
That the charging documents indicate there were unrelated victims and
different items stolen does not constitute “reliable and specific evidence”
pertaining to the time and location of the offenses, or otherwise indicate that there
was a meaningful break between the offenses. We would not consider three
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temporally and logistically distinct robberies of the same victim to be a single
offense. Correlatively, we do not consider—without more evidence—three
different victims to indicate that the offenses were temporally or logistically
distinct. Similarly, whether the pieces of property stolen were of the same or
different types does not indicate the time or place of events. On the face of the
charging documents, it is plausible that all three victims were standing in the same
location, and each simultaneously gave up the items of value in his pockets. Thus,
that there were different victims and the items stolen were two gold chains, one
cell phone, and one wallet provides no indication whether the thefts were
committed successively rather than simultaneously. See Weeks, 711 F.3d at 1261;
United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998).
The Government also argues that having three different case numbers in the
state court informations provides “reliable and specific evidence” that the offenses
were committed separately. However, the individual case numbers themselves do
not convey any information pertaining to the time or location of the offenses. It is
just as likely that there are three case numbers to reflect the number of victims as it
is that there are three case numbers to reflect three separate events. Accordingly,
the mere fact that the case numbers are different does not assist the Government in
meeting its burden of proving with reliable and specific evidence that the offenses

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are “separate and distinct criminal episode[s]” within the meaning of the ACCA.
See Sneed, 600 F.3d at 1329, 1333 (internal quotation marks omitted).
Lastly, the Government suggests that we may reasonably conclude the
offenses were separate because they involved different co-defendants. The
Government’s theory is that, because McCloud was joined by two co-defendants in
the commission of two offenses but only one co-defendant in the other offense,
there was “a meaningful opportunity to desist . . . [the criminal] activity,” and
therefore, the ACCA should apply even if the crimes were temporally and
physically proximate. See Pope, 132 F.3d at 689–90; United States v. Spears, 443
F.3d 1358, 1360 (11th Cir. 2006) (per curiam). The problem with this argument,
though, is that instead of resting on “reliable and specific evidence,” it requires us
to speculate in order to conclude that there was a break in the events. We are not
persuaded by the suggestion that the participation of certain co-defendants
delineates the order of each armed robbery. It is possible that McCloud and both
co-defendants committed the first robbery; McCloud and one co-defendant
committed the second robbery; and then McCloud and both co-defendants
committed the third robbery. If true, this could reflect three separate offenses.
However, it is equally plausible that McCloud and his two co-defendants
committed the first two offenses together, simultaneously, and then McCloud and
only one co-defendant committed the third offense. This would indicate only two
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separate offenses. Moreover, it is also equally plausible that McCloud committed
all three robberies simultaneously, with varying amounts of participation from his
colleagues. This would indicate only one criminal episode. Consequently, without
any information pertaining to the time or location of events, the fact that McCloud
did not have assistance from both co-defendants during the commission of all three
robberies does not assist the Government in proving, by a preponderance of the
evidence, that the three offenses were separate.
Thus, the charging documents do not contain reliable and specific evidence
reflecting that McCloud’s ACCA predicate offenses were three separate and
distinct criminal episodes.
B. The Plea Colloquy Transcript
The plea colloquy transcript does not demonstrate that the three prior
convictions occurred on occasions different from one another. Indeed, the
Government conceded at sentencing that “there’s not a whole lot” in the plea
colloquy transcript. We agree. At most, the transcript establishes two separate
offenses.
The district court found persuasive three pieces of evidence in the transcript:
(1) when the sentencing judge asked the prosecutor what the State would have
proven had the case gone to trial, the prosecutor identified the location of one of
the robberies, with citation to Case Number F0828463(A); (2) the sentencing judge
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told McCloud “you were busy that day”; and (3) the sentencing judge told
McCloud he would have “significant court costs on each case, $733 on each
case.”4 However, only the first piece of evidence assists the Government in
attempting to meet its burden.
The Government urges us to infer from the plea colloquy that, because the
prosecutor identified the address of one prior offense, the other two offenses
occurred at locations different from not only that address but also one another. But
the plea colloquy contains no reference to the addresses where the other offenses
occurred. The mere identification of the location of one robbery does not
demonstrate that the other robberies occurred at different locations. 5 Thus, the plea
colloquy does not contain reliable and specific evidence reflecting that McCloud’s
ACCA predicate offenses were three separate and distinct criminal episodes.
C. Undisputed Parts of the PSI
Lastly, we turn to the undisputed portions of the PSI to help us determine
whether the agreed-upon paragraphs contain “reliable and specific evidence” that
the prior offenses were separate. The Government contends that it should be

4

We have specifically held that the crimes need not be charged in separate indictments in
order to be considered separate under the ACCA. See United States v. Jackson, 57 F.3d 1012,
1018 (11th Cir. 1995). It follows that no probative value attaches to the fact that there were
separate court costs for each offense charged.
5
In fact, the prosecutor states on the record that the offenses all occurred within the same
county. If we were to look at this material and draw inferences, as the Government insists we
should, then that statement cuts against the suggestion that the other two offenses occurred at
locations different from one another.
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permitted to rely on paragraphs 27, 28, 29, and 30 of the PSI, which expressly
incorporate McCloud’s arrest records, because McCloud either failed to object or
did not enter a proper objection to the use of those paragraphs.6 McCloud accepts
that he did not object to paragraph 29, but argues that he did enter a proper
objection to the other paragraphs on the basis of their incorporation of nonShepard documents.
We have long held that “challenges to the facts contained in the PSI must be
asserted with specificity and clarity.” See Bennett, 472 F.3d at 832. A defendant
makes a proper objection when he identifies the specific PSI paragraphs to which
he objects and states that the reason for his objection is that the source of those
facts is a particular non-Shepard document. See United States v. Schneider, 681
F.3d 1273, 1276–77 (11th Cir. 2012); Bennett, 472 F.3d at 833; cf. Rosales-Bruno,
676 F.3d at 1023–24. The Government may not avoid Shepard and Sneed by
claiming that an explicit objection to PSI paragraphs that incorporate the facts of a
non-Shepard document is insufficient when the defendant unambiguously and
specifically objects to the source of the factual material. See also Sneed, 600 F.3d
at 1331–33 (discussing the principles that underpin Shepard and guide the
application of its rule).

6

Paragraphs 27, 28, 29, and 30 of the PSI each state: “According to the arrest affidavit . . . .”
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Turning to the facts before us, we conclude that the Government may rely on
paragraph 29 of the PSI, but may not rely on paragraphs 27, 28, and 30. McCloud
filed no objection to paragraph 29, which makes those facts undisputed and
available to the Government, despite the express incorporation of a non-Shepard
source. See Bennett, 472 F.3d at 832. However, McCloud validly objected to the
use of paragraphs 27, 28, and 30, and the Government may not rely on the content
of those paragraphs to prove the offenses are separate. McCloud’s objection
specifically identified those paragraphs he disputed—paragraphs 27, 28, and 30—
and clearly stated that his objection stemmed from the source of those facts being
an arrest affidavit, which is a non-Shepard document. This objection is
sufficiently specific and clear to satisfy Bennett and render the paragraphs
“disputed.” See id. at 829. Unlike the facts of Bennett, however, the Government
here has not argued and the record does not reflect that the facts stated in
paragraphs 27, 28, and 30 were available in other Shepard-approved sources that
the Government provided to McCloud on discovery. Cf. id. at 833. Therefore,
McCloud properly disputed those paragraphs in the PSI and the Government may
not rely on them to prove that McCloud’s prior convictions constitute separate
offenses under the ACCA.
Paragraph 29 conveys details pertaining to McCloud’s conviction for thirddegree grand theft. Specifically, that paragraph states:
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According to the arrest affidavit, on August 4, 2008, a
BOLO was issued for two armed robberies involving a
green Nissan Altima occupied by three black males. Law
enforcement officers observed the vehicle, bearing
Florida license plate number xxxxxx, driven by the
defendant. As the officer attempted to stop the vehicle,
he noticed the defendant absconding from the area. The
defendant was taken into custody. A records check
revealed that the vehicle was stolen on August 2, 2008.
The Government reads this paragraph to support its conclusion that “the three
armed robberies occurred at different locations” because “[t]he use of a vehicle in
conjunction with the armed robberies by all three defendants further indicates that
the defendants, including McCloud, were traveling between locations together to
find their victims.” We find no statements to that effect in paragraph 29. Rather,
Paragraph 29 indicates only that, at the time the police were looking for the
perpetrators of “two armed robberies involving a green Nissan Altima occupied by
three black males,” an officer observed McCloud driving a vehicle matching that
description, and after apprehending him, learned the car had been stolen two days
prior.
Thus, Paragraph 29 does not contain “reliable and specific evidence”
reflecting that the three convictions for armed robbery were “separate and distinct
criminal episodes.” The paragraph ties McCloud to the commission of two armed
robberies, confirms that those robberies occurred on August 4, and adds that a
vehicle was involved in the commission of those robberies. It neither states that
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the two armed robberies occurred at different locations nor indicates that McCloud
and his co-defendants “were traveling between locations together to find their
victims.” This paragraph leaves it just as likely as not that all three robberies
occurred simultaneously, but only two victims had reported the crime at the time
the officers began looking for the green Nissan Altima. Moreover, the paragraph
provides no information as to which of the two armed robberies were committed in
connection with the stolen car or who was in the car with McCloud at the time of
his arrest, rendering it of negligible value even when combined with the other
Shepard documents.
*

*

*

Thus, the charging documents, plea colloquy transcript, and paragraph 29 of
the PSI do not provide “reliable and specific evidence” reflecting three violent
felonies that McCloud “committed on occasions different from one another.” See
18 U.S.C. § 924(e)(1); Almedina, 686 F.3d at 1315. Because the documents are
vague as to which offense(s) they relate, even when taken collectively they do not
satisfy the Government’s evidentiary obligations.
No other Shepard documents are in the record to assist the Government in
proving, by a preponderance of the evidence, that McCloud’s prior offenses were
separate within the meaning of the ACCA. Therefore, the burden of showing

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McCloud is an armed career criminal is not met, and the district court erroneously
applied the 15-year ACCA sentencing enhancement.
IV
In light of the foregoing, we vacate McCloud’s current sentence and remand
to the district court for resentencing consistent with this opinion.
VACATED and REMANDED.

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