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United States v. King

United States Court of Appeals, Sixth Circuit

March 30, 2017

United States of America, Plaintiff-Appellee,
v.
Errol Dontes King, Defendant-Appellant.

          Argued: July 28, 2016

         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:

          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.

          Before: WHITE and STRANCH, Circuit Judges;

          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.

          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 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. See211 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 ...


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