US v. Gary Span
Filing
PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion terminating Motion to expedite decision [999514264-2] Originating case number: 3:12-cr-00234-MOC-DSC-1. [999597603]. [14-4655]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY VINCENT SPAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00234-MOC-DSC-1)
Argued:
April 8, 2015
Before MOTZ and
Circuit Judge.
GREGORY,
Decided:
Circuit
Judges,
and
June 8, 2015
DAVIS,
Senior
Vacated and remanded by published opinion.
Senior Judge Davis
wrote the opinion, in which Judge Gregory joined.
Judge Motz
wrote a dissenting opinion.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.
Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
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DAVIS, Senior Circuit Judge:
The
district
court
sentenced
Defendant
Gary
Span
to
a
mandatory minimum fifteen-year term of imprisonment pursuant to
the
Span
Armed
Career
appeals
documents
his
upon
Criminal
Act,
sentence,
which
the
18
U.S.C.
that
arguing
district
§
the
court
924(e)
(“ACCA”).
Shepard-approved
relied
for
the
ACCA
enhancement are fatally ambiguous as to whether he committed his
predicate armed robbery offenses on different occasions.
In the
alternative, Span argues that the Fifth and Sixth Amendments
prohibit a district court from making the “different occasions”
assessment.
We agree that the patent internal inconsistencies
infecting the underlying state court documents as to the dates
when the robberies occurred means, and we so hold, that the
Government
has
failed
to
prove
by
a
preponderance
of
the
evidence that Span’s prior felonies were separate and distinct
criminal episodes for purposes of the ACCA.
Accordingly, we
vacate the district court’s application of the ACCA enhancement
and remand for resentencing.
We need not, and accordingly do
not, resolve Span’s constitutional claim.
I.
Gary Span pleaded guilty to an indictment charging him with
one
count
of
being
a
felon
in
possession
violation of 18 U.S.C. § 922(g)(1).
of
a
firearm
in
At Span’s Rule 11 plea
hearing, the Government asserted that the punishment for the
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offense was a prison term of ten years, a $250,000 fine, and a
period of supervised release.
that
Span
was
an
armed
The Government did not believe
career
criminal
under
the
ACCA,
but
stated that, should the United States Probation Office determine
that he was, Span would be subject to a mandatory 15-year term
of
imprisonment.
(“PSR”)
did
Government
The
not
did
draft
presentence
recommend
not
object
the
to
ACCA
that
investigation
enhancement
report
and
determination.
the
Lacking
objections from the Government and Span, the final PSR issued on
July 22, 2013.
The Government later filed an objection to the final PSR,
arguing that Span was indeed an armed career criminal because
his
criminal
convictions
record
from
included
October
four
2000
for
previous
robbery
North
with
a
Carolina
dangerous
weapon, all of which were violent felonies that were committed
on different occasions.
that
the
underlying
The Government acknowledged, however,
state
court
documents
evidencing
convictions listed contradictory offense dates.
his
The Government
argued that, no matter the inconsistency across the documents,
the offenses were separate and distinct episodes because they
involved
different
locations
and
different
victims.
As
a
result, the Government sought an increase in Span’s base offense
level
from
17
to
33.
After
3
a
three-point
reduction
for
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acceptance of responsibility, Span’s base offense level reduced
to 30.
The
Span’s
Probation
armed
offense
IV);
career
level
category
Officer
and
revised
criminal
criminal
and
(3)
a
the
status;
history
15-year
PSR
(2)
to
an
increased
category
mandatory
reflect:
(level
minimum
(1)
base
30
and
sentence.
With the revisions, Span faced an increase in the Guidelines
range from between 30 and 37 months to 180 months.
Span
objected
to
his
designation
as
an
armed
career
criminal and argued that the facts in the PSR could not support
the
ACCA
federal
enhancement
indictment,
because
admitted
they
as
were
part
of
not
alleged
his
proven to a jury beyond a reasonable doubt.
the
plea,
guilty
in
or
Span argued that,
to allow an increased sentence above the statutory maximum on
disputed
facts
convictions,
beyond
would
the
mere
be
a
violation
on
October
existence
of
his
of
his
Fifth
prior
and
Sixth
Amendment rights.
At
sentencing
objections to the revised PSR.
Government
additional
time
21,
2013,
Span
renewed
his
The court permitted Span and the
to
brief
the
issues,
sentencing hearing was continued until July 16, 2014.
and
the
At the
continued hearing, the court heard argument from Span and the
Government as to whether Span should be classified as an armed
career criminal.
Span maintained his argument that the state
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court indictments, plea transcript, and judgment were ambiguous
as to when the robberies were actually committed, and that the
court
could
not
resolve
the
ambiguity
by
finding and looking beyond those documents.
engaging
in
fact-
The solution, Span
asserted, was to view the ambiguity in his favor and decline to
apply the ACCA enhancement.
The district court disagreed and relied on three of Span’s
robbery convictions to support the ACCA enhancement. 1
reasoned
that
the
indictments
and
plea
The court
transcript
listed
consistent dates for the three convictions, while the judgment,
which listed a different date, likely contained a transcription
error. 2
The district court then reasoned that the robberies were
separate criminal episodes.
It noted that two of the three
armed robberies occurred at the same location and involved the
same corporate victim, but each offense involved a different
1
The convictions supporting the ACCA enhancement have the
following file numbers: 00-CRS-002827 (“2827”), 00-CRS-002829
(“2829”), and 00-CRS-002830 (“2830”).
The district court
omitted a fourth armed robbery conviction, file number 00-CRS002834 (“2834”), from consideration.
2
Notably, under North Carolina practice and jargon, a “plea
transcript” is not what most federal practitioners would
understand the term to suggest. It is not a verbatim account of
a guilty plea colloquy among the court, counsel, and the
defendant. Rather, it is a form document filled out by the
participants in the course of the guilty plea proceedings
containing information about the charges, the rights waived by
the defendant, and other pertinent information.
5
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individual victim who was put in danger.
The district court
found that Span had an opportunity after committing the first
robbery to make a conscious decision to engage in the next one
because, “after you’ve committed one, and you wait some days and
you commit another one, you had a little time to think.”
J.A.
66.
The
court
distinctly
concluded
separate
that
“each
offense”
and
of
these
offenses
application
of
was
the
a
ACCA
enhancement was appropriate, resulting in a sentence of 180months’ imprisonment.
J.A. 65.
Span has timely appealed and we possess jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
A defendant who has violated 18 U.S.C. § 922(g) qualifies
for an enhanced sentence under the ACCA if the defendant has
three previous convictions for a violent felony or serious drug
offense,
or
both,
and
those
offenses
were
“committed
on
occasions different from one another.”
18 U.S.C. § 924(e)(1).
The
proving
Government
bears
the
burden
of
the
elements
necessary to support the ACCA enhancement by a preponderance of
the evidence.
United States v. Archie, 771 F.3d 217, 223 (4th
Cir. 2014).
The
parties
do
not
dispute
that
Span’s
predicate
North
Carolina convictions for robbery with a dangerous weapon are
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violent felonies under the ACCA.
Our analysis thus centers on
the district court’s conclusion that the robbery offenses were
committed
on
different
occasions
and
the
factual
findings
supporting that determination.
A.
We review de novo the district court’s “legal conclusion”
that three of Span’s qualifying convictions were committed on
occasions different from one another.
United States v. Hobbs,
136 F.3d 384, 387 (4th Cir. 1998).
However, we review the
district court’s factual findings, and its judgment regarding
factual disputes, for clear error.
Archie, 771 F.3d at 224; see
also Hobbs, 136 F.3d at 387 n.5 (applying clear error review to
the district court’s factual findings that the defendant’s three
predicate burglaries occurred within an hour of each other).
The clear error standard requires “a reviewing court [to]
ask
whether
definite
‘on
and
committed.’”
the
firm
entire
evidence,’
conviction
Easley
v.
Cromartie,
is
a
that
it
mistake
532
U.S.
‘left
with
has
234,
242
the
been
(2001)
(quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).
of
fact
simply
differently,”
id.
omitted),
we
but
determinations
We “will not reverse a lower court’s finding
because
we
(citation
may
are
find
would
and
clear
not
have
internal
error
supported
7
decided
the
quotation
“where
by
the
case
marks
factual
substantial
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evidence.”
United States v. Martinez-Melgar, 591 F.3d 733, 738
(4th
2010)
Cir.
omitted).
(citations
and
internal
quotation
marks
In other words, “clear error occurs when a district
court’s factual findings ‘are against the clear weight of the
evidence considered as a whole.’”
Id. (quoting Miller v. Mercy
Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983)).
B.
In
view
of
the
evidence
before
the
district
court,
we
conclude that its factual finding that Span’s three predicate
robbery offenses were committed on separate dates was clearly
erroneous.
law,
Span’s
By extension, we cannot hold that, as a matter of
predicate
robbery
offenses
were
“committed
on
occasions different from one another” under the ACCA.
1.
To
satisfy
its
burden
under
the
ACCA,
the
Government
introduced three sources: (1) the North Carolina judgment for
the four robbery convictions, (2) four bills of indictment (one
for each conviction), and (3) a plea transcript.
The judgment
provides Span’s name and the file number for each offense.
It
indicates that Span committed three of the robberies, identified
by file numbers 2827, 2829, and 2830, on the same day, January
18, 2000, and one robbery, file number 2834, on January 11,
2000.
Each
indictment
North
Carolina
v.
Gary
provides
Vincent
8
the
case
Span,”
the
caption,
“State
accompanying
of
file
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number, the date the indictment issued (February 7, 2000), and a
paragraph of factual allegations supporting the charge.
The
indictments corresponding to file numbers 2827, 2830, and 2834
indicate
that,
on
December
30,
1999,
December
14,
1999,
and
January 11, 2000, respectively, Span used a firearm to rob Pawn
Mart,
Inc.
(“Pawn
Mart”),
at
which
time
he
stole
currency,
personal property, and other items of value in the presence of a
named victim.
The indictment for file number 2829 states that,
on November 17, 1999, Span did the same at Cash America Pawn.
The final source, the plea transcript, identifies the file
numbers for the four robbery convictions and describes the terms
of Span’s plea agreement.
the
offense
convictions
dates
—
for
2827,
An attachment to the transcript lists
each
2829,
conviction.
and
2830
—
For
the
three
offense
of
the
dates
correspond to the dates in the indictments, but those dates are
handwritten above a different, illegible date, which was at some
point stricken through. 3
The fourth conviction, 2834, provides
an offense date of December 14, 1999.
dates
in
the
plea
transcript
were
It is unclear when the
altered
and
whether
the
alterations were made with Span’s knowledge or consent.
3
The district court believed that the original date in the
attachment to the plea transcript was January 11, 2000.
Span
contends that the original date was January 18, 2000. We cannot
discern which date, if either, is correct.
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No single offense date for any predicate robbery conviction
is consistent across all three sources. 4
2.
The
Supreme
Court
has
carved
out
a
“prior
exception to judicial factfinding at sentencing.
conviction”
In general,
the jury requirements of the Sixth Amendment and the Due Process
Clause together require that “each element of a crime be proved
to
the
jury
beyond
a
reasonable
doubt.”
States, 133 S. Ct. 2151, 2156 (2013).
Alleyne
v.
United
However, in Almendarez-
Torres v. United States, 523 U.S. 224 (1998), the Supreme Court
held that the fact of a prior conviction is not an element that
must
be
alleged
in
defendant’s sentence.
an
indictment
in
order
to
enhance
a
Facts, “[o]ther than the fact of a prior
conviction,” which “increase[] the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”
Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (emphasis added).
Accord United States
v. Booker, 543 U.S. 220, 244 (2005); Blakely v. Washington, 542
U.S. 296, 301 (2004).
A
sentencing
judge
may
consult
only
a
limited
set
of
sources when determining the nature of a prior conviction for
4
For ease of reference, the offense dates and their
corresponding sources are listed in the table attached as
Appendix A.
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the purpose of applying the ACCA enhancement.
See Shepard v.
United States, 544 U.S. 13 (2005) (plurality opinion). In cases
involving prior guilty pleas, a sentencing judge may examine the
charging document, plea agreement, plea transcript between the
judge and the defendant “in which the factual basis for the plea
was confirmed by the defendant, or to some comparable judicial
record
of
approved”
inquiry
this
sources,
of
avoid
unlike
sentencing
“collateral
police
courts
Id. at 25.
record[s].”
Id.
information.”
to
at
26. 5
reports,
These
properly
“conclusive
.
.
“Shepardlimit
.
the
judicial
Such records serve a dual purpose: they
trials”
on
the
underlying
facts
of
a
defendant’s prior conviction, and they abate “a ‘concern that a
wider inquiry would violate the Sixth Amendment right to trial
by jury.’”
United States v. Alston, 611 F.3d 219, 226 (4th Cir.
2010) (quoting United States v. Dean, 604 F.3d 169, 175 (4th
Cir.
2010)),
abrogated
on
other
grounds
by
United
States
v.
Royal, 731 F.3d 333 (4th Cir. 2013).
We
to
have
held
that
Shepard-approved
a
sentencing
sources
judge
when
merely
the existence of an ACCA-qualifying offense.
v.
Washington,
629
F.3d
403
5
(4th
Cir.
is
not
limited
determining
See United States
2011).
In
that
Cf. supra, n.2, for the North Carolina use of the term
“plea transcript.”
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circumstance, a district court faced with inconsistent record
evidence may look to secondary sources, such as printouts of
computerized records, to engage in “fact-finding in a routine
and
conscientious
sense.”
Washington,
629
F.3d
at
414-15.
Discrepancies in these records, “such as different dates of the
same offense, ‘do not upend the trial court’s sound conclusion’
when there is additional evidence to ‘indicate the erroneous
date is likely a scrivener’s error.’”
Archie, 771 F.3d at 225
(quoting Washington, 629 F.3d at 413) (alterations omitted).
There is no question as to the existence of Span’s four
ACCA-qualifying
predicate
dangerous weapon.
convictions
for
robbery
with
a
The Government’s evidence surely meets the
preponderance standard on that score.
However, what remains
unclear is when Span committed the robberies.
The nature of the
predicate offenses is therefore the subject of our inquiry and
the district court properly looked no further than the Shepardapproved documents. 6
6
Accordingly, we reject Span’s argument that the district
court looked to non-Shepard-approved documents in applying the
ACCA enhancement. While the district court stated before recess
that it had “some other documents [it was] looking at,” J.A. 59,
the court made clear before announcing its sentence that it
looked only to the judgment, plea transcript, and indictments.
“That’s what I’m using. Those appear to be the documents that
have been offered.” J.A. 59.
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The
answers.
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documents
in
this
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case
raise
more
questions
than
The indictments list unique offense dates, but those
dates are directly contradicted by the judgment, which states
that three of the predicate offenses occurred on the same day,
January 18, 2000.
The district court viewed the judgment as
“obviously” containing a transcription error, but the offense
dates
in
document
the
judgment
suggests
human
were
typewritten
error.
The
and
in
the
transcript,
plea
nothing
on
the
other hand, raises several concerns, not the least of which is
that the original handwritten offense dates for three of the
convictions were altered at a point unknown and now match the
dates in three of the indictments.
If anything, the attachment
to the plea transcript, riddled with strikethroughs, bespeaks of
transcription error and unreliability.
In finding that the three predicate armed robbery offenses
occurred on separate dates, the district court necessarily had
to
disregard
the
offense
dates
in
the
judgment.
Given
the
discrepancies in the state court documents, the district court’s
reliance on the indictments and plea transcript in place of the
judgment
is
not
a
“permissible
view[]
of
the
evidence
of
record.”
Anderson v. City of Bessemer City, N.C., 470 U.S. 564
(1985).
Accordingly, we must conclude that the district court
clearly erred in finding that the offenses were committed on
separate dates.
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3.
Having concluded that the district court clearly erred by
finding
that
the
predicate
convictions
occurred
on
separate
dates, we now turn to the legal question of whether the offenses
were committed on occasions different from one another. 7
Offenses are deemed to have been committed on different
occasions under the ACCA “when they arise out of a ‘separate and
distinct criminal episode.’”
United States v. Boykin, 669 F.3d
467, 470 (4th Cir. 2012) (emphasis in original) (quoting United
States v. Carr, 592 F.3d 636, 640 (4th Cir. 2010)).
Offenses
committed on the same day, or even in the span of a few hours
may nevertheless be considered “separate and distinct” criminal
episodes
if
they
criminal conduct.”
337
(4th
Cir.
do
not
“arise
from
a
continuous
course
of
United States v. Letterlough, 63 F.3d 332,
1995).
The
ACCA
extends
only
to
predicate
offenses “that can be isolated with a beginning and an end —
ones that constitute an occurrence unto themselves.”
Id. at
335.
We
listed
determination
several
of
factors
whether
in
offenses
occasions different from one another.
7
Letterlough
have
been
to
guide
committed
the
on
We consider:
While the district court omitted consideration of the
fourth robbery conviction from its analysis, file number 2834,
we include it as part of our de novo assessment.
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(1) whether the offenses arose in different geographic
locations; (2) whether the nature of each offense was
substantively different; (3) whether each offense
involved different victims; (4) whether each offense
involved
different
criminal
objectives;
and
(5)
whether the defendant had the opportunity after
committing
the
first-in-time
offense
to
make
a
conscious and knowing decision to engage in the nextin-time offense.
Carr, 592 F.3d at 644 (enumerating factors); Letterlough, 63
F.3d
at
335-36.
These
factors
can
be
viewed
“together
or
independently” and any one factor with a “strong presence . . .
can dispositively segregate an extended criminal episode into a
series of separate and distinct episodes.”
Carr, 592 F.3d at
644 (quoting Letterlough, 63 F.3d at 336).
We
have
enhancement
declined
where
the
to
sanction
Government
application
has
failed
to
of
the
ACCA
“definitively
establish[]” any of the Letterlough factors indicating that the
predicate
offenses
occasions.
2010).
where
In
it
were
committed
on
different
United States v. Tucker, 603 F.3d 260, 266 (4th Cir.
Tucker,
was
we
unclear
vacated
from
the
the
district
court’s
judgment
underlying
South
Carolina
judgments and indictments whether the defendant committed two
prior second-degree burglaries of four different storage units
on separate occasions.
Three of the Letterlough factors — the
nature and objective of the offenses and the lack of information
regarding whether there had been different victims — suggested
that the burglaries occurred on the same occasion.
15
Id. at 265.
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However, under South Carolina law, the defendant could have been
held criminally responsible for the acts of his accomplice, and
the
underlying
Shepard-approved
documents
did
not
make
clear
that the defendant sequentially committed the two burglaries,
rather than simultaneously with the aid of his accomplice.
Moreover,
the
Government
could
not
establish
from
the
approved sources that the defendant himself entered more than
one storage unit and thus, the two remaining Letterlough factors
—
whether
the
offenses
had
been
committed
in
different
locations, and whether the defendant had an opportunity to make
a conscious decision to engage in more than one burglary — did
Id. at 266.
not weigh in favor of multiple criminal episodes.
As a result, we were constrained to regard the two burglary
convictions as one for the purposes of the ACCA.
Id.
And in Boykin, we held that it was plain error for the
district court to rely on facts recited in the defendant’s PSR
to support the ACCA enhancement because there was no indication
that the facts in the PSR derived from Shepard-approved sources.
669
F.3d
resulted
at
from
472.
a
Given
jury
that
verdict,
the
no
defendant’s
plea
colloquy
factfinding existed to support the PSR’s narrative.
Absent
the
factual
details
from
the
PSR,
the
convictions
or
judicial
Id. at 471.
only
reliable
information remaining was that the defendant was convicted of
two violent felonies committed on the same day in 1980. That
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information was too “meager” to determine whether the offenses
occurred
on
different
occasions,
factors “nearly useless.”
rendering
the
Letterlough
Id. at 472.
A weighing of the Letterlough factors in this case does not
lead
us
to
the
conclusion
separate occasion.
that
each
robbery
occurred
on
a
First, the indictments indicate that, of the
four burglaries, three were committed at the same location, Pawn
Mart.
Span committed one robbery at Cash America Pawn, which
suggests,
four.
at
See
locations
most,
Carr,
of
592
thirteen
two
F.3d
separate
at
separate
645
criminal
(reasoning
storage
units
their burglaries were separate episodes).
episodes,
that
not
different
suggested
that
Second, the nature
and criminal objectives of the robberies remained the same; at
each robbery, Span used a gun to steal money and property from a
pawn shop.
See Hobbs, 136 F.3d at 389 (stating that offenses
with the same nature bolster the conclusion that the offenses
occurred
on
the
same
occasion,
if
that
conclusion
is
also
supported by other facts).
Given that we cannot conclude, with any confidence, what
date the offenses occurred, and, if they were committed on the
same day, whether they occurred in quick succession as part of a
continuous
course
of
conduct,
we
hesitate
to
assign
any
significant weight to the Letterlough factor assessing whether
Span had an opportunity to make a conscious and knowing decision
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to engage in one offense after the other.
Span could have
committed the robberies at Pawn Mart all at once, or within a
short period of time.
We lack reliable information from the
Government to make the distinction between the former scenario
and
the
latter.
separate
The
locations
fact
would
that
two
ordinarily
robberies
indicate
occurred
in
least
two
at
separate criminal episodes because Span cannot be in two places
at once; however, as discussed below, Span could have acted with
an accomplice.
Therefore, it remains entirely possible that
Span was responsible for the robberies at one location and his
accomplice
was
responsible
for
the
robbery
at
a
separate
location.
This degree of uncertainty precludes the weight of
this factor from aiding the Government.
The
separate
only
persuasive
criminal
factor
episodes
is
different individual victim.
the
scale”
and
that
in
each
favor
indictment
of
four
named
a
This factor can “decisively tip[]
dispositively
separate occasions.
leaning
segregate
a
crime
Hobbs, 136 F.3d at 390.
spree
into
We do not find
this factor dispositive, however, in light of the weight of the
other factors in the aggregate.
The Government counters by advancing a speculative theory
that
the
offenses
occurred
on
separate
occasions.
The
Government asserts that, under North Carolina law, armed robbery
requires
both
the
taking
of
property
18
and
a
life-threatening
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assault, and “where a defendant takes the property of only a
business but does so in the presence of multiple employees, even
if threatening the life of both employees, only a single armed
robbery is committed.”
Gov’t Br. 25 (citing State v. Beaty, 293
S.E.2d
1982)).
760,
robberies
764
each
(N.C.
involved
a
Because
different
the
three
employee
and
Pawn
Mart
different
property of the business, they necessarily must have occurred on
different occasions because they could not have been charged in
separate
indictments
otherwise.
To
accept
the
Government’s
theory as true, we must first find that the named victims were
employees of Pawn Mart and that only the property of Pawn Mart
was stolen.
We have no way of firmly making that determination
from mere allegations found only in the indictments.
Casting further doubt on the Government’s theory is the
plea transcript, which indicates that Span may have acted with
an
accomplice,
as
it
recommends
severally with co-defendant.”
“restitution
J.A. 196.
jointly
and
Under North Carolina
law, a defendant may be charged with robbery with a dangerous
weapon if he aids or abets another in the commission of the
offense.
See
N.C.
Gen.
Stat.
Ann.
§
14-87.
However,
a
defendant’s acting in concert with another is not an essential
element of robbery with a dangerous weapon and need not appear
in the indictment.
See State v. Small, 400 S.E.2d 413, 416
(N.C. 1991) (describing the elements of robbery with a dangerous
19
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weapon
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as
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“(1)
the
unlawful
Pg: 20 of 34
taking
or
an
attempt
to
take
personal property from the person or in the presence of another
(2) by use or threatened use of a firearm or other dangerous
weapon
(3)
whereby
the
life
of
a
person
is
endangered
or
threatened”).
If Span did, in fact, commit three of the robberies on the
same day, January 18, 2000, it remains entirely plausible that
he did not act alone.
As described earlier, he could have
robbed Pawn Mart while an accomplice simultaneously robbed Cash
America Pawn.
Fuller,
See Tucker, 603 F.3d at 266; cf. United States v.
453
F.3d
defendant’s
275,
ACCA
279
(5th
enhancement
Cir.
because
2006)
the
(vacating
court
could
the
not
determine from the indictment whether the defendant committed
the burglaries as an accomplice or acted alone).
In
sum,
offense
was
application
of
the Letterlough factors does not lead us to that conclusion.
We
committed
cannot,
we
on
in
application
a
decline
separate
good
of
to
conclude
occasion
conscience,
the
ACCA
that
because
affirm
enhancement
each
the
on
district
this
record,
court’s
and
we
reverse the district court and remand for resentencing.
III.
Span
raises
an
alternative
argument
that
the
Fifth
and
Sixth Amendments prohibit a sentencing court from determining
whether a defendant’s predicate convictions were committed on
20
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different occasions.
Pg: 21 of 34
He draws support from the Supreme Court’s
recent admonition in Descamps v. United States, 133 S. Ct. 2276
(2013),
against
a
sentencing
court’s
consideration
of
facts
extraneous to the elements of an underlying prior conviction for
the purpose of applying the ACCA enhancement.
Span contends
that our decision in United States v. Thompson, 421 F.3d 278
(4th Cir. 2005), which approved a sentencing court’s finding of
“operative facts” inherent in the fact of a prior conviction, is
in conflict with Descamps and should be overturned.
We do not
view Descamps to be as far-reaching as Span suggests, and we
will
not
revisit
Thompson
absent
a
contrary
Supreme
Court
opinion because we lack the authority to overrule another panel
decision, see McMellon v. United States, 387 F.3d 329 (4th Cir.
2004) (en banc).
The defendant in Descamps had previously been convicted of
burglary in California, an offense that the state defined rather
broadly by not requiring the entry to have been unlawful.
sentencing,
categorical
including
the
district
approach
the
court
reasoned
that
it
consult
permitted
transcript
of
the
to
plea
the
colloquy,
to
At
modified
documents,
determine
whether the defendant had admitted the traditional elements of
burglary, such as breaking or entering.
Having determined that
the defendant’s conviction qualified as “a generic burglary” and
thus
a
violent
felony
under
the
21
ACCA,
the
district
court
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enhanced the defendant’s sentence.
The Ninth Circuit affirmed
the
an
district
court
and
approved
interpretation
of
the
modified categorical approach in which sentencing judges were
permitted to examine conclusive court documents to determine the
factual basis of a prior conviction where the defendant had been
convicted under a statute “that is categorically broader than
the generic offense.”
The
Supreme
133 S. Ct. at 2283.
Court
was
chiefly
concerned
with
the
Ninth
Circuit’s expansive view and held that, where a defendant has a
prior conviction under an indivisible statute, i.e., one that
does not list alternative elements, the sentencing court may not
turn to the modified categorical approach to determine whether
that prior conviction qualifies as a violent felony under the
ACCA.
The Court reiterated that the limited purpose of the
modified
categorical
approach
is
“to
identify,
from
among
several alternatives, the crime of conviction so that the court
can compare it to the generic offense.”
Id. at 2285.
A statute
that does not contain alternative elements of proof, but merely
defines
the
offense
“overbroadly,”
does
not
sentencing court’s reference to other documents.
warrant
the
Id. at 2286.
Most salient for purposes of our analysis were the Court’s
statements
regarding
categorical
and
the
modified
Sixth
Amendment
categorical
roots
approaches.
of
The
the
Ninth
Circuit’s efforts to “discern what a trial showed, or a plea
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proceeding revealed, about the defendant's underlying conduct”
offended the Sixth Amendment because a jury must find such facts
beyond a reasonable doubt.
sentencing
court
“constituting
can
the
Id. at 2288.
be
elements
sure
of
a
the
The only facts that a
jury
found
offense.”
are
Id.
those
When
a
defendant pleads guilty, he is waiving his right to a jury trial
only on the elements of the offense, and other extraneous facts,
whether admitted or not, cannot be used at sentencing to enhance
his punishment.
in
aged
court
Id.
The majority warned that extraneous facts
documents
could
very
well
be
incorrect,
as
a
defendant “often has little incentive to contest facts that are
not elements of the charged offense — and may have good reason
not to.”
Span
Id. at 2289.
seizes
on
this
language
to
call
the
defendant’s
argument
question
the
There, a divided panel
reasoning of our decision in Thompson.
rejected
into
that
the
Sixth
Amendment
prohibited his ACCA-enhanced sentence because the jury did not
find, nor did he admit, that his predicate convictions were for
violent felonies committed on different occasions.
Recognizing
that a defendant’s prior conviction is not a fact that a jury
must find, the majority explained that data inherent in the fact
of a prior conviction includes “operative facts, such as the
statute
which
conviction.”
was
violated
and
Thompson, 421 F.3d at 282.
23
the
date
of
The court concluded
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that
Doc: 49
the
entering
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defendant’s
convictions
North
that
the
information
convictions
had
Carolina
qualified
ACCA as a matter of law.
been
Pg: 24 of 34
as
predicate
violent
Id. at 284.
necessary
committed
breaking
felonies
under
and
the
And the Court reasoned
to
determine
on
inherent in the convictions themselves.
the
occasions
different
whether
was
“To take notice of the
different dates or locations of burglaries — something inherent
in the conviction — is to take notice of different occasions of
burglary as a matter of law.”
Id. at 286.
The tension between Descamps and Thompson, which has been
described as an “outlier,” United States v. Aviles–Solarzano,
623 F.3d 470, 474 (7th Cir. 2010), is apparent.
permits
a
documents
sentencing
to
sort
out
court’s
the
dive
facts
conviction, not just its elements.
of
into
the
Our precedent
Shepard-approved
underlying
predicate
Descamps intimates that this
analysis exceeds a sentencing court’s proper role.
Ultimately,
we are persuaded, however, that the Supreme Court’s statements
in Descamps, while foreboding, will most likely be confined to
identification
of
a
approach to the ACCA.
predicate
under
the
convictions
ACCA
more
violent
felony
under
the
categorical
The question of whether a defendant’s
were
likely
committed
on
different
involves
an
altogether
occasions
separate
assessment outside of the strictures of the Descamps rationale.
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We leave to another case on another day the continued viability
of Thompson.
IV.
We
respect
our
esteemed
dissenting
colleague’s
contrary
view of the proper analysis and outcome in this case, but we
remain unshaken in our view that the Government’s evidence was
insufficient to satisfy the Government’s burden and thus the
district court’s finding here was clearly erroneous. Under the
dissent’s view, if some other district judge had found, as we
conclude as a matter of law, that the Government’s evidence was
insufficient to sustain its burden of proof, then the dissent
would also affirm that judgment as resting on findings that were
not “clearly erroneous.” 8 Consequently, the arbitrary, if not
8
It is clear that the experienced judge in this case took
no pleasure in imposing the sentence that he did:
And so these sentences are just -- I mean we [federal
judges] sort of give them out like they’re M&Ms or
something and then go off the bench . . . .
I mean, you know, you’re putting people away. Some
people need to be warehoused and if you’re in the
opinion that he should be warehoused, that’s fine and
I can respect that. I can see that off of this that
there would be disagreements about if he’s reached the
“let’s warehouse him and lock him away forever stage,”
and I can respect that. But sentences that we give out
are real. These are real years, and 15 years is a long
time . . . .
Now, understand that I’m not sentencing -- if I was
sentencing him for the armed robberies you could bring
(Continued)
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freakish,
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imposition
of
Pg: 26 of 34
federal
criminal
sentences,
to
say
nothing of mandatory minimum recidivist sentences, based on a
sentencing judge’s strained ability and willingness to parse for
“plausible”
meaning
highly
unreliable
state
court
documents,
would hold sway. But such a regime flies in the face of the
entire remedial
(SRA).
The
thrust
collection
of
of
the
Sentencing
Shepard
Reform
documents
in
Act
this
of
1984
case
is
anything but the “conclusive . . . judicial record,” Shepard,
544 U.S. at 25, necessary to ensure proper respect for the Sixth
Amendment.
If it is not the role of federal appellate judges to
normalize the achievement of Shepard’s and the SRA’s laudable
goals of rational determinant sentencing, then we do not know
what our role is expected to be.
V.
“Good
enough
for
government
work”
has
never
been
a
legitimate critique of the important processes that turn the
wheels
of
our
constitutional
democracy.
Nowhere
is
it
those victims in and I could hear what those victims
say. I’m sentencing him for what happened that day
that he got caught. I’m not sentencing him for the
armed robberies. Now he’s paying a price for having
done those again . . . . He paid a price and then he’s
paying another price today for having done that. I’m
sentencing him for being a felon in possession of a
firearm . . . .
J.A. 75-77.
26
less
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legitimate than in the requirement that prosecutors establish by
a preponderance of the available evidence the facts necessary to
justify a federal district court’s imposition of a mandatory
minimum recidivist sentence of a decade and a half based on
dated
and
marked-up
state
court
documents
of
questionable
reliability. Accordingly, for the reasons set forth, we vacate
the judgment and remand this case for further proceedings not
inconsistent with this opinion.
VACATED AND REMANDED
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APPENDIX A
Case Number
Indictment
Plea
Transcript *
Judgment
00-CRS-002827
Offense Date:
Offense Date:
Offense Date:
Pawn Mart,
Inc.
00-CRS-002829
12/30/1999
12/30/1999*
1/18/2000
Offense Date:
Offense Date:
Offense Date:
Cash America
Pawn
00-CRS-002830
11/17/1999
11/17/1999*
1/18/2000
Offense Date:
Offense Date:
Offense Date:
Pawn Mart,
Inc.
00-CRS-002834
12/14/1999
12/14/1999*
1/18/2000
Offense Date:
Offense Date:
Offense Date:
Pawn Mart,
Inc.
1/11/2000
12/14/1999
1/11/2000
*
For the dates in this column with an asterisk, the plea
transcript contained an illegible offense date, which was
stricken through and replaced with the dates listed.
Span’s
initials do not appear by the strikethroughs and it is unclear
when the offense dates were altered and whether Span agreed to
the alterations.
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DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent.
The majority seems to me to be
correct, except on one point.
That point, unfortunately, makes
all the difference.
When the district court sentenced Gary Span under the Armed
Career Criminal Act, it determined that he had committed three
predicate
state
another.”
18
U.S.C.
recognizes
that
the
approved
state
crimes
court
§
“on
occasions
924(e)(1).
district
The
court
documents
in
different
majority
relied
making
from
only
this
on
one
correctly
Shepard-
determination.
The majority is also correct that, before the district court
decided
that
Span
committed
the
state
crimes
on
different occasions -- a legal conclusion -- it made a factual
finding that Span committed the crimes on different dates.
And
the majority correctly acknowledges that we must affirm this
finding of fact unless it is clearly erroneous. 1
Where
the
majority
falters
is
in
concluding
that
the
district court clearly erred in its key factual finding -- that
Span committed the three predicate state crimes on different
dates.
The majority reasons that the district court’s reliance
1
And if we do so, then we must also affirm Span’s sentence
because offenses committed on different dates necessarily were
committed on different occasions.
See United States v.
Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).
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on the indictments and plea transcript to resolve conflicting
dates in the state court documents was “not a ‘permissible view
of the evidence.’”
Op. at 13 (quoting Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985)).
I cannot agree.
Given the evidence before the district court and the deference
we must afford facts found by that court, the district court’s
determination here was plainly “permissible.”
When
sentencing
courts
engage
in
fact
finding,
“[p]reponderance of the evidence is the appropriate standard of
proof.”
United States v. Grubbs, 585 F.3d 793, 803 (4th Cir.
2009).
As the Supreme Court has explained, “[t]he burden of
showing
something
by
a
preponderance
of
the
evidence
. . .
simply requires the trier of fact to believe that the existence
of a fact is more probable than its nonexistence.”
Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust
for S. Cal., 508 U.S. 602, 622 (1993) (internal quotation marks
and citation omitted).
All the district court needed to find,
therefore, was that it was more probable than not that Span
committed the three predicate robberies on different dates.
For us to overturn that finding requires a good deal more.
Only when we are “left with the definite and firm conviction
that a mistake has been committed” may we reverse a district
court’s finding of fact.
Easley v. Cromartie, 532 U.S. 234, 242
(2001) (internal quotation marks and citation omitted).
30
As long
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as “the district court’s account of the evidence is plausible in
light of the record viewed in its entirety,” we must affirm,
even if we are “convinced that . . . [we] would have weighed the
Anderson, 470 U.S.
evidence differently” as the trier of fact.
at 573-74 (emphasis added).
I do not see how the district court’s determination that
Span committed the three predicate crimes on three different
days is anything less than plausible.
Two of the three sets
of Shepard-approved documents introduced at sentencing indicate
that Span committed the three state crimes at issue here on
different days.
The indictments state that Span robbed Cash
America Pawn on November 17, 1999; Pawn Mart on December 14,
1999;
and
Pawn
transcript
Mart
on
those
confirms
again
December
dates.
To
30,
be
2000.
sure,
transcript also contains three crossed-out dates.
dates
now
legible
indictments.
on
that
document
match
the
The
the
plea
plea
But the only
dates
on
the
Certainly it is at least plausible that the plea
transcript was edited to correct an error, not introduce one.
The dates in the indictments and the plea transcript do
conflict with the dates in the judgment, which states that all
three robberies at issue here occurred on January 18, 2000.
But
the fact that there was a discrepancy among the Shepard-approved
documents did not prohibit the district court from resolving it.
Making factual findings in the face of conflicting testimony,
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documents, or other evidence is a district court’s bread and
butter.
Anderson,
on
which
the
majority
instructive on this point.
relies,
is
particularly
There, a unanimous Supreme Court
reversed this court, concluding that we had “misapprehended and
misapplied the clearly-erroneous standard” when we overturned a
district
Supreme
court’s
Court
factual
findings.
explained
that
the
470
U.S.
clearly
at
566.
erroneous
The
standard
applies “even when the district court’s findings do not rest on
credibility
determinations,
“documentary evidence.”
but
are
Id. at 574.
based,”
as
here,
on
That is because “[t]he
trial judge’s major role is the determination of fact, and with
experience in fulfilling that role comes expertise.”
Id.
The
Court has never retreated from these guidelines, and we are not
free to deviate from them.
Here, the district court acknowledged that the dates on the
judgment contradicted the dates on the indictments and the plea
transcript, but concluded that this was “an error” on the face
of the judgment.
In reaching that conclusion, the court fairly
relied on the fact that two-thirds of the available evidence
supported its finding.
edited
plea
transcript
Perhaps both the indictments and the
are
inaccurate,
“plausible” that they are both correct.
at 574.
but
it
is
certainly
See Anderson, 470 U.S.
The majority provides no additional reasons, beyond the
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conflicting dates in the judgment and the fact that the plea
transcript was edited, to suggest otherwise. 2
I too am troubled that the length of Span’s sentence hinged
on
the
district
documents.
court’s
In
nearly
parsing
every
of
inconsistent
other
instance
state
in
court
which
a
defendant’s sentence jumps from a Guidelines maximum of thirtyseven
months
to
a
mandatory
minimum
of
fifteen
years,
the
Constitution would require a jury to find the fact triggering
that increased sentence beyond a reasonable doubt.
See Alleyne
v. United States, 133 S. Ct. 2151, 2155 (2013).
But to the
extent the district court’s decision seems unjust, it is because
binding precedent tied the court’s hands.
Archie,
771
F.3d
217,
223
(4th
Cir.
See United States v.
2014);
see
also
United
States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005).
resolving
a
close
factual
question,
2
the
district
court
In
was
In response to this dissent, the majority suggests that I
would also affirm if the district court had found the
“government’s evidence was insufficient to sustain its burden of
proof.”
Op. at 25.
It seems to me that our role as an
appellate court, not empowered to find facts, would require
exactly that result.
Notably, in Anderson, the Supreme Court
concluded that “[b]ased on [its] own reading of the record,” it
could
not
determine
that
either
the
district
court’s
“interpretation of the facts” or the Fourth Circuit’s contrary
interpretation was “illogical or implausible.” 470 U.S. at 577.
This conclusion, however, did not justify the Fourth Circuit’s
reversal of the district court given “the appropriately
deferential”
standard
of
review.
Id.
The
majority’s
willingness to reverse here erases the “clear” from the “clear
error” standard of review.
33
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required
to
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apply
a
Pg: 34 of 34
relatively
preponderance of the evidence.
low
standard
of
proof
--
Any injustice here is the result
of that standard, not a clear error on the part of the district
court in applying it.
Accordingly, I dissent.
34
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