Argued: March 19, 2019
from the United States District Court for the Middle District
of Tennessee at Columbia. No. 1:17-cr-00018-1-Aleta Arthur
Trauger, District Judge.
W.VanDevender, UNITED STATES ATTORNEY'S OFFICE,
Nashville, Tennessee, for Appellant.
Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellee.
W.VanDevender, UNITED STATES ATTORNEY'S OFFICE,
Nashville, Tennessee, for Appellant.
Michael C. Holley, R. David Baker, FEDERAL PUBLIC DEFENDER,
Nashville, Tennessee, for Appellee.
Before: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges.
Smith Gibbons, Circuit Judge.
Hennessee pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). The government sought an enhanced penalty under
§ 924(e)(1) based on Hennessee's three prior
convictions for violent felonies. Hennessee objected on the
basis that the government could not prove that two of his
prior offenses were committed on different occasions, as
required by the Armed Career Criminal Act. The district court
agreed with Hennessee, finding that our precedent precluded
its review of non-elemental facts in Shepard
documents when conducting the different-occasions analysis.
But because a sentencing court may consider non-elemental
facts such as times, locations, and victims in
Shepard documents when conducting the
different-occasions analysis, we hold that the district court
erred. The facts of Hennessee's prior convictions-as
established in Shepard-approved documents-indicate
that he committed those violent felonies on occasions
different from one another. Thus, the government proved that
Hennessee's prior convictions qualify him for a sentence
enhancement as an armed career criminal. Therefore, we vacate
Hennessee's sentence and remand to the district court for
resentencing with instructions to apply the enhancement under
the Armed Career Criminal Act.
August 2016, a police officer came across Hennessee in a park
in Pulaski, Tennessee. Hennessee informed the officer that he
was on state parole and consented to a search. The officer
searched Hennessee's person and items nearby on the
ground. The officer arrested Hennessee after finding a
digital scale, methamphetamine, hydrocodone pills, and a
loaded handgun. On November 8, 2017, the government charged
Hennessee with being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Hennessee pled
guilty on March 13, 2018.
Probation Office prepared a presentence investigation report
("PSR") and recommended that the district court
sentence Hennessee as an armed career criminal based on his
prior criminal convictions. The PSR identified three prior
convictions-one in Limestone County, Alabama and two in
Davidson County, Tennessee-that qualified as violent felonies
under the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(e). Based on these predicate offenses, the
PSR recommended that the district court impose the mandatory
minimum sentence of fifteen years for a defendant with three
predicate violent felonies under the ACCA.
first predicate offense stemmed from Hennessee's 2015
convictions for manufacturing a controlled substance and
second-degree assault in Limestone County, Alabama. Each
conviction would independently qualify as an ACCA predicate,
but the Probation Office could not conclusively determine
whether the two offenses were "committed on occasions
different from one another," as required under §
924(e)(1). Consequently, the Probation Office treated the two
Alabama convictions as a single predicate offense.
second and third ACCA predicates stemmed from Hennessee's
2006 convictions for aggravated robbery and attempted
aggravated robbery in Davidson County, Tennessee. The
indictment charged Hennessee with committing both offenses on
March 3, 2005 in Davidson County. Hennessee pled guilty to
both, and the judgments of conviction were entered on
February 23, 2006. Unlike in the Limestone County case, the
Probation Office could discern facts in the Davidson County
record that indicated Hennessee committed the offenses on
different occasions. A review of the transcript reveals that,
during Hennessee's plea colloquy, the government
proffered a factual basis for the guilty plea and described
the timing and locations of the offenses as follows:
[T]he State's witnesses would be available and the
testimony would be that in the early morning hours, around
five o'clock -- four-thirty or five o'clock -- in the
morning of March 3rd, 2005 Mr. Hennessee and his codefendant
Mr. Reeves --first individual approached was the gentleman in
Count Two Mr. Alah Basabi (ph.), who would testify that he
was approached by two individuals, that he would identify as
Mr. Hennessee and Mr. Reeves, in the parking lot of his
apartment, which was here in Davidson County, Tennessee
(unintelligible) 960 Edmondson Pike.
And just a few minutes later a Ms. Terry Wainwright was,
actually, stopped at a gas station . . . Mapco Express on
Smith Springs Road, getting gas about five-twenty a.m. when
two individuals approached her.
Both these events occurred here in Davidson County.
DE 24-3, Davidson County Plea Tr., Page ID
94-95. At the end of the government's
summary, the court asked Hennessee whether the facts as
described by the government were true, and Hennessee said
Based on Hennessee's 2006 plea colloquy, the Probation
Office concluded that the two Tennessee offenses were
committed on occasions different from one another. Thus, it
recommended that the district court find Hennessee had the
requisite three ACCA predicate offenses to qualify as an
armed career criminal.
objected, arguing that the government could not show that he
committed the Tennessee offenses on different occasions.
Hennessee reasoned that our precedent prohibits sentencing
courts from considering any "features of the prior
conviction" other than the "elements of
the prior offense," and the times and locations on which
the government relied were not elements of his prior offenses
under Tennessee law. DE 18, Hennessee Sentencing Position,
Page ID 29. Thus, he argued that the district court could
only look to the elements of his offenses when
conducting its different-occasions analysis.
district court agreed with Hennessee, concluding that Supreme
Court and Sixth Circuit precedent prohibited it from
considering any "non-elemental facts" when determining
whether Hennessee's Tennessee offenses were committed on
different occasions. Because the elements of Hennessee's
aggravated robbery and attempted aggravated robbery
convictions are silent as to the time and location of each
offense, the district court concluded that it could not
designate Hennessee as an armed career criminal. The court
perceived some tension among cases in the Sixth Circuit
regarding what sources and facts a court may consider when
determining whether prior offenses were committed on
different occasions, stating that "at some point the
Sixth Circuit's going to have to clarify this,"
because district courts "need clarification" on
this issue. DE 28, Sentencing Tr., Page ID 128-131.
district court found that Hennessee was not subject to the
penalty enhancement under the ACCA and sentenced him to 110
months in prison, which both parties agreed was the
appropriate sentence in the absence of an
armed-career-criminal designation. The district court entered
its judgment on July 18, 2018. The government timely
appealed, arguing that Hennessee qualifies as an armed career
criminal and that the district court erred in declining to
consider non-elemental facts in conducting the
issues before us are twofold: (1) whether a sentencing court
may consider non-elemental facts in its ACCA
different-occasions analysis, and (2) whether Hennessee's
prior Tennessee offenses were committed on occasions
different from one another. We review both questions of law
de novo. United States v. Southers, 866
F.3d 364, 369 (6th Cir. 2017) ("We review the district
court's decision that Defendant's offenses were
committed on separate occasions under the ACCA de
novo."); United States v. King, 853 F.3d
267, 270 (6th Cir. 2017) ("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 imposes a mandatory minimum of fifteen years for any
person who, in relevant part, "violates section 922(g)
of this title and has three previous convictions . . . for a
violent felony . . . committed on occasions different from
one another." 18 U.S.C. § 924(e)(1). This requires
two separate inquiries: (1) whether prior convictions qualify
as ACCA-predicates, and (2) whether such offenses were
committed on different occasions. The case before us concerns
only the different-occasions analysis.
district court concluded that Supreme Court and Sixth Circuit
precedent prohibited it from looking to "non-elemental
facts"-here, the times and specific locations of
Hennessee's Tennessee offenses-when determining whether
two prior felonies were committed on different occasions.
Under this approach, the district court refused to consider
the facts as described during Hennessee's plea colloquy.
Limiting itself to only elemental facts in Shepard
documents, the district court concluded that the government
did not prove that Hennessee committed the Tennessee offenses
on different occasions. The district court thus declined to
apply the ACCA enhancement to Hennessee's sentence.
district court implored us to clarify the law of the Sixth
Circuit as it pertains to evidentiary-source limitations in
the different-occasions analysis. And with this opinion, we
do. We now clarify that King adopted the
restriction for the different-occasions analysis and created
no limitation on a sentencing court's consideration of
non-elemental facts contained within Shepard
documents. See King, 853 F.3d 267. This reading of
King accords with the approach adopted by the
Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C.
Circuits. See, e.g., United States v.
Bordeaux, 886 F.3d 189, 196 (2d Cir. 2018);
Dantzler, 771 F.3d at 143, 145; United States v.
Span, 789 F.3d 320, 326 (4th Cir. 2015); Kirkland v.
United States, 687 F.3d 878, 883 (7th Cir. 2012);
United States v. Boykin, 669 F.3d 467, 471 (4th Cir.
2012); United States v. Sneed, 600 F.3d 1326, 1333
(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.
Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). These
courts have all previously determined that only
Shepard documents may be examined when conducting a
different-occasions analysis. They have not, however,
imported an elemental-facts-only limitation into the
different-occasions analysis, nor do we do so today.
United States v. King, we adopted the
Taylor-Shepard source limitation and
applied it with equal force to the ACCA's
different-occasions analysis. King, 853 F.3d at 269
(adopting Shepard's holding that sentencing
courts may review only Shepard-approved documents,
including charging document, written plea agreement,
transcript of plea colloquy, jury instructions, judgment of
conviction, or other record of comparable findings of fact
adopted by the defendant upon entering a guilty plea, to
determine whether a defendant's prior crimes satisfy the
ACCA) (citing Shepard v. United States, 544 U.S. 13
(2005) and Taylor v. United States, 495 U.S. 575
(1990)). The issue before us in King was as follows:
"When a federal district court is tasked with
determining whether a defendant's prior offenses were
'committed on occasions different from one another' .
. ., is the court restricted to using only the evidentiary
sources approved in Taylor and
Shepard?" Id. (internal citations
omitted). We answered yes and reversed because the district
court reviewed a non-Shepard-approved bill of
particulars. Id. at 269, 278. In short, we held in
King that a sentencing judge may "identify the
who, when, and where of the prior offenses" in its
different-occasions analysis but is constrained to "the
evidentiary sources and information approved by the Supreme
Court in Taylor and Shepard."
Id. at 274-75. In reaching this conclusion, we
recognized that the same "legal and policy
rationales" underpinning the source limitation in the
ACCA-predicate analysis also applied in the
different-occasions context. Id. By limiting a
sentencing court's repertoire to Shepard
documents, we sought to prevent the judge from finding facts
not admitted by the defendant. See id. at 272
(citing Shepard, 544 U.S. at 25-26). We recognized
that, without such evidentiary restrictions, a sentencing
court may "very well abridge the defendant's Sixth
and Fourteenth Amendment rights." Id.
district court interpreted King differently. The
district court read King's reliance on two
post-Shepard cases, Descamps and
Mathis, as a signal that sentencing courts are not
only restricted to Shepard documents in the
different-occasions analysis, but also limited to elemental
facts inside those documents. In Descamps v. United
States, the Court refused to authorize a modified
categorical approach and permit the consideration of
extra-statutory evidence- Shepard documents-in the
ACCA-predicate context when the statute in question is
indivisible. 570 U.S. 254, 267-69 (2013). Otherwise,
the sentencing court could make its own finding of fact about
the means by which the defendant committed the offense and
run afoul of the Sixth Amendment guarantee. See id.
at 269; see also Apprendi, 530 U.S. at 490. In
Mathis v. United States, the Court counseled again
that "a judge cannot go beyond identifying the crime of
conviction to explore the manner in which the defendant
committed that offense." 136 S.Ct. 2243, 2252 (2016). To
comply with the Sixth Amendment, the sentencing court may not
stray beyond the elements of the prior offense "to
determine the means by which [a defendant] committed his
prior crimes." Id. at 2253. But the district
court's interpretation of King's reliance on
Descamps and Mathis is flawed. In
King, we drew upon ...