United States v. Rosa, No. 05-3621 (2d Cir. 2007)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on November 1, 2007.
Download PDF
05-3621-cr United States v. Rosa 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term, 2006 (Argued: April 27, 2007 6 Decided: October 30, 2007 Final Submissions: May 4, 2007 Errata Filed: November 19, 2007) 7 8 9 Docket No. 05-3621-cr ------------------------------------- 10 UNITED STATES OF AMERICA, 11 Appellee, 12 - v - 13 EDUARDO ROSA, 14 Defendant-Appellant. 15 ------------------------------------- 16 17 18 19 Before: KEARSE and SACK, Circuit Judges, and MILLS, District Judge.* 20 of conviction in the United States District Court for the 21 Southern District of New York (Charles L. Brieant, Judge) that 22 sentenced him to the statutory mandatory minimum of 180 months' 23 imprisonment based on the court's finding that he is a violent 24 felon under the Armed Career Criminal Act, 18 U.S.C. § 924(e). 25 We conclude that no evidence before the district court 26 established that a "guilty plea [resulting in a predicate state The defendant appeals from that portion of a judgment * The Honorable Richard Mills, of the United States District Court for the Central District of Illinois, sitting by designation. 1 conviction] necessarily admitted, and supported a 2 conviction for," Shepard v. United States, 544 U.S. 13, 16 3 (2005), a crime or "act of juvenile delinquency involving the use 4 or carrying of a firearm . . . that would be punishable by 5 imprisonment for [a] term [exceeding one year]," 18 U.S.C. 6 § 924(e)(2)(B). 7 Vacated and remanded for resentencing. 8 9 10 11 12 13 14 JESSE M. FURMAN, Assistant United States Attorney for the Southern District of New York (Michael J. Garcia, United States Attorney, Jonathan S. Kolodner, Assistant United States Attorney, on the brief), New York, New York, for Appellee. 15 16 PAUL P. RINALDO, Forest Hills, New York, for Appellant. 17 18 SACK, Circuit Judge: This appeal presents the narrow question of whether, 19 under the circumstances here presented, Eduardo Rosa's 1991 New 20 York state-court guilty plea to a charge of Robbery in the First 21 Degree qualifies as a "violent felony" conviction under the Armed 22 Career Criminal Act, 18 U.S.C. § 924(e) (the "ACCA"). 23 district court decided that it did, and that, therefore, it was 24 bound to impose on Rosa a mandatory minimum sentence of fifteen 25 years' (180 months') imprisonment under the ACCA. 26 We disagree. The Under Shepard v. United States, 544 U.S. 27 13 (2005), decided shortly before the district court handed down 28 this sentence, the district court was required to determine 29 whether Rosa's "earlier guilty plea necessarily admitted, and 2 1 supported a conviction for," id. at 16, "an[] act of juvenile 2 delinquency involving the use or carrying of a firearm . . . that 3 would be punishable by imprisonment for [a] term [exceeding one 4 year] if committed by an adult," 18 U.S.C. § 924(e)(2)(B). 5 doing so, the court was "limited to the terms of the charging 6 document, the terms of a plea agreement or transcript of colloquy 7 between judge and defendant in which the factual basis for the 8 plea was confirmed by the defendant, or to some comparable 9 judicial record of this information." In Shepard, 544 U.S. at 26. 10 No such document, at least none submitted to the district court, 11 established that Rosa's 1991 "guilty plea necessarily admitted, 12 and supported a conviction for," id. at 16, "an[] act of juvenile 13 delinquency involving the use or carrying of a firearm . . . that 14 would be punishable by imprisonment for [a] term [exceeding one 15 year] if committed by an adult," 18 U.S.C. § 924(e)(2)(B). 16 therefore vacate the sentence and remand for resentencing. We BACKGROUND 17 18 On January 28, 2004, New York State police officers, 19 acting on a tip from a confidential informant, executed a search 20 warrant for the basement of Eduardo Rosa's home. 21 discovered two .45 caliber handguns,1 142 rounds of ammunition, 1 There, they The word "gun" has been used frequently during the course of these proceedings. The statutory word with which we are concerned, however, is "firearm." See, e.g., 18 U.S.C. § 924(e)(2)(B). It is important for purposes of addressing this appeal that not all guns are firearms -- BB guns and staple guns, for example, are not. See, e.g., United States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000) (jury had "a sufficient basis to reasonably conclude that Mr. Jones knew that he possessed a 3 1 and a bullet-proof vest. Rosa was arrested on the same day. He 2 was indicted on February 24, 2004. 3 counts of being a felon in possession of a firearm in violation 4 of 18 U.S.C. § 922(g)(1) (Counts One and Two), and one count of 5 possession of body armor after having been convicted of a felony 6 that is a crime of violence in violation of 18 U.S.C. § 931 7 (Count Three). He was charged with two 8 A superseding indictment (the "Superseding Indictment") 9 was returned on January 18, 2005, less than one week before trial 10 was scheduled to begin in the United States District Court for 11 the Southern District of New York (Charles L. Brieant, Judge). 12 It contained the same three charges as the original indictment 13 but added allegations in Counts One and Two that Rosa had "three 14 [prior] convictions for either violent felony or serious drug 15 offenses, as those terms are defined in [the ACCA, 18 U.S.C. 16 § 924(e)(2)]." 17 No. S1 04-cr-176 (CLB) (S.D.N.Y. Jan. 19, 2005), at 1-3. 18 Superseding Indictment, United States v. Rosa, On the morning of January 24, 2005, the day on which 19 the trial was scheduled to begin, Rosa pleaded guilty, without a 20 formal plea agreement, to all three counts of the Superseding 21 Indictment. 22 According to the Presentence Investigation Report 23 ("Federal PSR"), Rosa previously had been convicted of eight 24 other offenses. The Probation Office and the government 'firearm' [in violation of § 922(g)(1)] and not a BB gun"). 4 1 classified three of his prior convictions as "violent felonies" 2 within the meaning of the ACCA: 3 1) On May 23, 1991, Rosa was convicted in New York, 4 after a guilty plea, of Robbery in the First Degree, a Class B 5 felony, in Westchester County Court. 6 as a Youthful Offender and was sentenced to probation. 7 He received an adjudication 2) On October 15, 1993, Rosa was convicted in a North 8 Carolina state court of the felony of assault with a deadly 9 weapon with intent to kill or inflicting serious injury. 10 3) On October 14, 1997, Rosa was convicted of Assault 11 in the Second Degree, a Class D felony, in Westchester County 12 Court. 13 Rosa concedes that the second and third convictions 14 qualify as violent felonies for ACCA purposes. He denies, 15 however, that the first conviction, for Robbery in the First 16 Degree, also qualifies as a "violent felony" under the ACCA. 17 it did, Rosa would be subject to a mandatory minimum sentence of 18 fifteen years' imprisonment. 19 question of whether it was properly so classified is the focus of 20 this appeal. 18 U.S.C. § 924(e)(1). If The narrow 21 1991 Robbery Conviction 22 On November 19, 1990, at age fifteen, Rosa and one or 23 24 more of his acquaintances robbed another person of his jacket. On March 13, 1991, in an indictment in Westchester 25 County Supreme Court, Rosa, along with co-defendant Steven 26 Warren, was charged on four counts. 5 The "First Count" accused 1 Rosa and Warren of Robbery in the First Degree pursuant to New 2 York Penal Law § 160.15(4): 3 4 5 6 7 8 9 10 11 12 The defendants, in the County of Westchester and State of New York, on or about November 19, 1990, each aiding and abetting the other and acting in concert, did forcibly steal property from another person, and in the course of the commission of the crime and in immediate flight therefrom, displayed what appeared to be a pistol, revolver and other firearm, to wit, a handgun. This is an Armed Felony offense. 13 Indictment of Steven Warren and Edwardo [sic] Rosa, Supreme 14 Court, Westchester Cty., Nos. 91-0239-01, -02, filed Mar. 13, 15 1991 (the "1991 Indictment"), at 1. 16 On March 26, 1991, some two weeks later, the state 17 prosecutor filed a Bill of Particulars.2 18 subject to discovery and inspection, the Bill of Particulars 19 referred to a "small .22 cal. type gun" that was not recovered 20 and therefore would not be submitted as physical evidence at 21 trial as a "[w]eapon[] used in the crime." 22 Indictment No. 91-239-02, Consent Order dated Mar. 28, 1991 23 ("Bill of Particulars"), at 5. 24 the "substance of the defendant's conduct encompassed by the 2 In a list of evidence People v. Rosa, The Bill of Particulars set forth Under New York law, a "[b]ill of particulars" is a written statement by the prosecutor specifying . . . items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on their direct case . . . . N.Y. C.P.L. § 200.95(1)(a). 6 1 charges set forth in the indictment which the People intend to 2 prove upon . . . trial," id. at 1: 3 the stomach area of the victim while stealing his jacket," id. 4 (unpaginated attachment). 5 "The group did place a gun in Rosa pleaded guilty to Robbery in the First Degree. 6 The other three charges were apparently thereafter discontinued. 7 During the plea colloquy, Rosa admitted that he aided and abetted 8 other people who forcibly stole property from another while 9 "display[ing] what appeared to be a pistol, revolver or other 10 firearm, to wit, a handgun." 11 carried a handgun. 12 during the colloquy, throughout the plea allocution the judge 13 consistently adhered to the terminology of the charge -- that 14 someone other than Rosa displayed what appeared to be a handgun. 15 16 But Rosa denied that he ever Although his counsel referred to a "pistol" In accepting the plea, the judge and the defendant engaged in the following colloquy: 17 18 [Judge] Q Mr. Rosa, do you admit to the crime of robbery in the first degree? 19 [Rosa] A Yes. 20 . . . 21 22 23 24 25 26 Q Do you admit at that time and place, while aiding and abetting and acting in concert with [other] individuals, you did forcibly steal property from another person, that person being Mr. Romeo? 27 A Yes. 28 29 30 Q. And do you admit that while aiding and abetting and acting in concert with those other individuals, you 7 1 2 3 4 5 did engage in a fight with Mr. Romeo and you did display what appeared to be a pistol, revolver or other firearm, to wit, a handgun? 6 A Not me. 7 8 9 Q Did someone else that you were aiding and abetting and acting in concert with, that is the question? 10 A Yes. 11 12 13 14 15 16 Q So while you yourself may not have possessed what appeared to be a handgun, did you, was one displayed by the people with whom you were acting in concert and aiding and abetting? 17 A Yes. 18 19 20 21 Q And that was in the course of commission of the robbery and the stealing of the property from Mr. Romeo? 22 A Yes. 23 People v. Rosa, Indictment No. 0239-91, Westchester County Ct., 24 Tr. of Plea, Apr. 19, 1991 ("1991 Plea Tr."), at 15-17. 25 The state presentence report relating to Rosa's 1991 26 conviction ("State PSR") included several references to a black 27 handgun. 28 observed a black handgun pressed into his stomach." 29 noted that a bus driver said he saw one of the perpetrators 30 "holding what appeared to be a black automatic handgun." 31 State PSR also described Rosa as saying that a co-defendant 32 "apparently had in his possession a BB gun." It cited a statement by the victim that "he felt and 8 It also But the 1 The state trial judge made no direct findings 2 pertaining to the State PSR or the actual use of a firearm. The 3 judge's only mention of a gun -- rather than "what appeared to 4 be" a gun -- was made during the sentencing hearing to 5 acknowledge that one of the circumstances supporting a more 6 lenient sentence was that Rosa "was not the one who wielded the 7 gun." 8 Ct., Tr. of Sentencing, May 23, 1991, ("1991 Sentencing") at 9. 9 Rosa's attorney, seeking to minimize the sentence, also referred People v. Rosa, Indictment No. 0239-91, Westchester County 10 to a gun at that hearing: "[I]t was not Eduardo [Rosa] who had 11 the gun in this particular incident." 12 also referred to a "pistol" during the plea allocution in 13 explaining what Rosa was not pleading to. 14 15 ("Your Honor, Mr. Rosa can't admit to displaying a 15 pistol. . . . 16 a pistol but not that he did it himself.") Id. at 5. As noted, he See 1991 Plea Tr. at He can admit to aiding and abetting of displaying 17 District Court Sentencing 18 The Federal PSR provided no explanation for its 19 characterization of the 1991 robbery conviction as a conviction 20 of a violent felony. 21 referenced the State PSR, including the passage where the victim 22 of the robbery stated that he felt a black handgun pressed 23 against him. 24 corresponded to what the government had set forth in a Pimentel 25 letter dated January 23, 2005. 26 932 F.2d 1029 (2d Cir. 1991). In describing this prior conviction, it The Probation Office's sentencing recommendation See United States v. Pimentel, Rosa made no objection to the 9 1 Probation Office regarding the Federal PSR. He did, however, 2 submit a letter to the district court on May 11, 2005, objecting 3 to the PSR's assertion that Rosa qualified as an armed career 4 criminal under the ACCA. 5 At sentencing in the district court, the government 6 acknowledged "that unless [the putative weapon] was in fact a 7 real gun, [the robbery conviction] wouldn't count" as a "violent 8 felony" under the ACCA. 9 (CLB) (S.D.N.Y. June 21, 2005), Sentencing Tr. ("Sentencing Tr.") 10 at 12; see 18 U.S.C. § 924(e)(2)(B) (defining "violent felony"). 11 But the government maintained that the object used must be 12 inferred to have been a firearm, and, therefore, that Rosa 13 qualified as an Armed Career Criminal under the statute. 14 States v. Rosa, No. 04-cr-176 (CLB), Letter from Government to 15 the District Court dated June 3, 2005 ("Sentencing Mem."), at 8- 16 9. 17 United States v. Rosa, No. 04-cr-176 United In its Sentencing Memorandum, the government asserted 18 that Rosa's 1991 conviction satisfied the statutory requirements 19 for three reasons: 20 First, the government argued, the defendant admitted 21 that a firearm was used by pleading guilty to Robbery in the 22 First Degree, thereby waiving an affirmative defense that the 23 firearm "was not a loaded weapon from which a shot . . . could be 24 discharged." 25 availability of this affirmative defense is the only relevant 26 distinction here between first and second degree robbery, the N.Y. Penal Law § 160.15(4). 10 Because the 1 government asserted, the defendant's plea to first degree robbery 2 waived the affirmative defense and logically required the 3 conclusion that the offense involved a gun. 4 8-9. 5 Sentencing Mem. at Second, the government asserted, the records from the 6 state court proceeding, including the State PSR, the Bill of 7 Particulars, and the sentencing transcript, establish that the 8 perpetrator wielded a firearm. 9 who carried the gun as long as the crime "involv[ed]" its use, 10 United States v. King, 325 F.3d 110 (2d Cir. 2003), the offense 11 qualified as a "violent felony." 12 Because Rosa need not be the one Sentencing Mem. at 7. Finally, the government argued, by failing to object to 13 the Federal PSR, which included language from the State PSR in 14 which the victim referred to a gun, Rosa waived any objection to 15 this characterization of the state offense. 16 Id. at 11. The district court accepted the government's arguments, 17 concluding that Rosa was a "career criminal under the [United 18 States Sentencing Guidelines ("U.S.S.G." or the "Guidelines")]." 19 Sentencing Tr. at 25. 20 for an armed career criminal pursuant to U.S.S.G. § 4B1.4, and a 21 two-level reduction for acceptance of responsibility,3 the 22 defendant's net offense level was 31. 23 category of VI, his Guidelines sentencing range was 188 to 235 After applying the Guidelines enhancement 3 With a criminal history The district court also denied an additional one-point reduction for acceptance of responsibility. The defendant does not appeal this determination. 11 1 months.4 2 minimum -- 180 months -- for Counts One and Two, and 36 months' 3 imprisonment for Count Three, all to be served concurrently. 4 The court then imposed a sentence of the mandatory Rosa appeals his sentence. DISCUSSION 5 6 I. Issue Presented 7 The Armed Career Criminal Act, 18 U.S.C. § 924(e), 8 "mandates a minimum 15-year prison sentence for anyone possessing 9 a firearm after three prior convictions for serious drug offenses 10 or violent felonies." 11 (2005).5 Shepard v. United States, 544 U.S. 13, 15 As relevant here, the term "violent felony" includes 4 Without the sentencing enhancement as a career criminal under U.S.S.G. § 4B1.4(b)(3)(B), defense counsel asserted that the Guidelines range would have been 84 to 105 months based on a net offense level of 22 and criminal history category VI. 5 Section 924(e) provides: (1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (2) As used in this subsection-. . . (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if 12 1 "any act of juvenile delinquency [1] involving the use or 2 carrying of a firearm, knife, or destructive device that [2] 3 would be punishable by imprisonment for [a term exceeding one 4 year] if committed by an adult." 5 Rosa does not dispute that his 1991 conviction for First Degree 6 Robbery, a Class B Felony, would have been punishable in New York 7 by a term of imprisonment of more than one year. 8 Law § 160.15 ("Robbery in the first degree is a class B 9 felony."); id. § 70.00(2)(b) (maximum sentence for a Class B 10 See N.Y. Penal felony is twenty-five years). 11 12 18 U.S.C. § 924(e)(2)(B).6 New York law defines First Degree Robbery, in pertinent part, as follows: 13 14 15 16 17 A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: 18 . . . committed by an adult, that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (C) the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony. 18 U.S.C. § 924(e). 6 Rosa does not contest that his first conviction satisfies the requirements of subsection (i) or (ii) of 18 U.S.C. § 924(e)(2)(B). 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime. 17 Id. § 160.15(4) (emphasis added); see also People v. Padua, 297 18 A.D.2d 536, 539, 747 N.Y.S.2d 205, 208 (1st Dep't 2002) 19 (describing the state's burden when charging a defendant under 20 section 160.15(4)). 21 Rosa and his codefendant tracked the statute. 22 Indictment at 1. Count One of the 1991 Indictment against See 1991 23 During his plea colloquy in state court, as to Count 24 One, the only count to which he pleaded, Rosa admitted that he 25 had aided and abetted another in "forcibly steal[ing] property 26 from another person" and that "what appeared to be a 27 handgun . . . was . . . displayed by the people with whom [he 28 was] acting in concert and aiding and abetting." 29 at 16. 30 handgun" satisfied the elements of the First Degree Robbery crime 31 with which he was charged. 32 standing alone, they do not satisfy the elements of a "violent 33 felony" as defined by the ACCA. 1991 Plea Tr. These admissions regarding "what appeared to be a See N.Y. Penal Law § 160.15(4). To be a violent felony, the 14 But, 1 crime of conviction must "involv[e] the use or carrying of a 2 firearm." 3 as the government concedes, the 1991 conviction is a "violent 4 felony" only if the crime involved a firearm, Sentencing Tr. at 5 12, the district court was confronted with the question of 6 whether the 1991 crime involved a firearm. 7 government's arguments, the district court determined that it 8 did. 9 18 U.S.C. § 924(e)(2)(B) (emphasis added). Because, Adopting the The sole question for us on appeal is: Did the 10 district court properly determine that Rosa's 1991 state-court 11 conviction "involv[ed] the use or carrying of a firearm," as 12 opposed to the use of a BB gun, or something else other than a 13 firearm, thereby making it a "violent felony" for ACCA purposes? 14 To answer this question we must consider whether the district 15 court looked to appropriate sources in determining the nature of 16 Rosa's 1991 conviction for ACCA purposes. 17 at 16 (addressing "whether a sentencing court can look to police 18 reports or complaint applications to determine whether an earlier 19 guilty plea necessarily admitted, and supported a conviction for, 20 generic burglary," which is a "violent felony" under the ACCA). 21 Rosa argues that the district court erred in applying See Shepard, 544 U.S. 22 the fifteen-year mandatory minimum under the ACCA because the 23 state court record does not necessarily demonstrate that the 1991 24 conviction for robbery involved a firearm, and, therefore, the 25 government did not prove the robbery conviction was for a 15 1 "violent felony" under the ACCA.7 2 essentially the same as those rehearsed above that it made to, 3 and were accepted by, the district court. 4 II. Standard of Review 5 "[T]he government bears the burden of establishing (by 6 a preponderance of the evidence), the existence of prior violent 7 felony convictions when seeking a sentence enhancement pursuant 8 to U.S.C. § 924(e)." 9 (2d Cir. 1995). The government's arguments are United States v. Brown, 52 F.3d 415, 425 The questions of what documents a district court 10 may rely on to determine the nature of a prior conviction and of 11 the scope of a district court's authority to make factual 12 findings are questions of law, Shepard, 544 U.S. at 16; id. at 24 13 (opinion of Souter, J.), which we review de novo.8 7 Rosa also argues that, even if a firearm were used in the offense, Rosa did not carry it and the ACCA does not apply to a crime where a confederate, and not the defendant, carried a gun. We have previously rejected a very similar argument. See United States v. King, 325 F.3d 110, 113 (2d Cir. 2003) ("The word 'involving' has expansive connotations, and we think it must be construed as extending the focus of § 924(e) beyond the precise offenses of distributing, manufacturing, or possessing, and as encompassing as well offenses that are related to or connected with such conduct."). 8 The government contends that we should review the district court's decision for clear error, following United States v. Houman, 234 F.3d 825 (2d Cir. 2000) (per curiam). In Houman, "print-outs of [the defendant's] criminal history . . . list[ed] [his previous] conviction as one for theft," but contemporaneous court records listed the conviction as one for robbery. Id. at 827. We applied clear error review and upheld the district court's decision to "credit[] the contemporaneous court records over the later criminal history tabulations." Id. As we explained, "[t]he court used this information [in the indictment] solely for the purpose of determining whether it was more likely that Houman was convicted of robbery than of theft, not for the purpose of looking beyond the elements of a theft 16 1 III. Determining the Character of a Prior Guilty Plea 2 In Taylor v. United States, 495 U.S. 575 (1990), the 3 Court endorsed a "categorical approach" to determining whether a 4 prior conviction qualifies as a "violent felony" under the ACCA. 5 The sentencing court generally must "look only to the fact of 6 conviction and the statutory definition of the prior offense." 7 Id. at 602. 8 definition of the state crime of conviction encompasses both 9 crimes that would qualify as a "violent felony" and crimes that Where, as in Taylor (and here), the statutory 10 would not, however, the Taylor Court concluded that a broader 11 inquiry is permissible. 12 guilt of the prior offense was determined at trial, that broader 13 inquiry may include the charging document and jury instructions, 14 which define the offense of conviction. 15 Id. If, as in Taylor (but not here), Id.9 Shepard and Taylor both addressed the question whether 16 a burglary conviction in a state whose law defined "burglary" 17 more broadly than the "generic" definition of burglary -- for conviction to find that the underlying conduct was violent in nature." Id. (emphasis added). The court here, in contrast, sought to determine the nature of the conduct underlying the previous conviction. The questions presented here, similar to those presented in Shepard, concern the district court's authority to make a factual finding about the nature of the conviction, and are thus questions of law that require de novo review. 9 The Supreme Court most recently discussed the ACCA in James v. United States, ___ U.S. ___, 127 S. Ct. 1586 (2007). There, the Court held that, under Florida law, attempted burglary is considered a "violent felony" under the ACCA because it "'involv[es] conduct that presents a serious potential risk of physical injury to another.'" Id. at 1591 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). 17 1 example, a state that defined burglary as including breaking and 2 entry into a building or a boat, in contrast to "generic" 3 burglary, which is limited to breaking and entry into buildings 4 -- was based on facts that could support a conviction for 5 "generic" burglary, and thus could fit the definition of "violent 6 felony" under the ACCA.10 7 by Taylor: 8 whether the offense of conviction following a guilty plea, rather 9 than trial, qualifies as a "violent felony"? 10 Shepard addressed a question left open What may a district court consider to determine Shepard, 544 U.S. at 16. 11 In Shepard, the district court had not applied the 12 ACCA's fifteen-year mandatory minimum sentence because it had 13 declined to look to "police reports or complaint applications to 14 determine whether an earlier guilty plea necessarily admitted, 15 and supported a conviction for, generic burglary." 16 this evidence, "the District Court found that the Government had 17 failed to carry its burden to demonstrate that Shepard had 18 pleaded to three generic burglaries." 19 Circuit vacated the sentence and remanded for resentencing 20 "[a]fter observing that Shepard had never 'seriously disputed' 21 that he did in fact" commit the acts described in the police 10 Id. at 18-19. Id. Without The First A conviction for (generic) burglary is a conviction for a "violent felony" under the ACCA. 18 U.S.C. § 924(e)(B)(ii); see also Taylor, 495 U.S. at 577-78 ("[The ACCA also] provides a sentence enhancement for a defendant who is convicted under 18 U.S.C. § 922(g) (unlawful possession of a firearm) and who has three prior convictions for specified types of offenses, including 'burglary.'"). 18 1 reports and complaint applications. 2 omitted). 3 The Supreme Court reversed. Id. at 19 (citation It concluded that "enquiry 4 under the ACCA to determine whether a plea of guilty to burglary 5 defined by a nongeneric statute necessarily admitted elements of 6 the generic offense is limited to the terms of the charging 7 document, the terms of a plea agreement or transcript of colloquy 8 between judge and defendant in which the factual basis for the 9 plea was confirmed by the defendant, or to some comparable 10 judicial record of this information." 11 Id. at 26. Like jury instructions in a jury case, or "the details 12 of a generically limited charging document . . . in any sort of 13 case," documents stating the facts to which the defendant 14 admitted in entering the plea will generally inform a later court 15 on the crucial question: "whether the plea had 'necessarily' 16 rested on the fact identifying the burglary as generic." 17 21. 18 evidentiary cast, . . . going beyond conclusive records made or 19 used in adjudicating guilt and looking to documents submitted to 20 lower courts even prior to charges," id., because such an 21 approach would "ease away from the Taylor conclusion, that 22 respect for congressional intent and avoidance of collateral 23 trials require that evidence of generic conviction be confined to 24 records of the convicting court approaching the certainty of the 25 record of conviction in a generic crime State," id. at 23. Id. at The Court rejected the government's argument "for a wider 19 1 A plurality of the Court was of the view that 2 developments since Taylor -- particularly Jones v. United States, 3 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 4 (2000) -- further justify "adher[ing] to the demanding 5 requirement that any sentence under the ACCA rest on a showing 6 that a prior conviction 'necessarily' involved (and a prior plea 7 necessarily admitted) facts equating to generic burglary." 8 Shepard, 544 U.S. at 24 (opinion of Souter, J.) (emphasis added). 9 Jones and Apprendi established the rule that "for the sake of 10 preserving the Sixth Amendment right, . . . any fact other than a 11 prior conviction sufficient to raise the limit of the possible 12 federal sentence must be found by a jury, in the absence of any 13 waiver of rights by the defendant." 14 Apprendi). 15 generic burglary, and without a charging document that narrows 16 the charge to generic limits, the only certainty of a generic 17 finding lies . . . (in a pleaded case) in the defendant's own 18 admissions or accepted findings of fact confirming the factual 19 basis for a valid plea." 20 in considering the ACCA enhancement, to "make a disputed finding 21 of fact about what the defendant and state judge must have 22 understood as the factual basis of the prior plea," the 23 factfinding would raise the constitutional concern underlying 24 Jones and Apprendi. 25 26 Id. at 24 (citing Jones and Where "[t]he state statute requires no finding of Id. at 25. Were the sentencing judge, Id. In Shepard, the Court concluded that the fact in question -- whether Shepard had broken into the buildings 20 1 described in the police reports or complaint applications -- even 2 though it was undisputed by the defendant, was "too far removed 3 from the conclusive significance of a prior judicial record, and 4 too much like the findings subject to Jones and Apprendi." 5 The plurality therefore would have limited the permissible 6 sources of judicial factfinding to exclude police reports and 7 complaint applications in order, in part, to avoid the risk of 8 unconstitutionality. 9 Id. Id. at 25-26. Shepard teaches that the sentencing court cannot make 10 its own finding of fact regarding whether a prior conviction 11 qualifies as a "violent felony" (or "serious drug offense") under 12 the ACCA. 13 rejecting, the government's argument for allowing a sentencing 14 court to rely on documents beyond "conclusive records made or 15 used in adjudicating guilt"). 16 evidence from the record of conviction to determine whether the 17 "earlier guilty plea [in question] necessarily admitted, and 18 supported a conviction for," a "violent felony," id. at 16; if 19 such evidence is not available, then the government has not met 20 its burden to demonstrate that the prior conviction was a 21 "violent felony." 22 in light of the Supreme Court's concern about establishing with 23 "certainty" that a prior conviction is a predicate crime under 24 the ACCA. 25 certainty"). Id. at 21 (majority opinion) (noting, and later The sentencing court must rely on Speculation based on inferences is misplaced See id. at 21-22 (discussing Taylor's "demand for 21 1 The Shepard Court indicated that documents relating to 2 the plea itself -- "a transcript of a plea colloquy or . . . 3 written plea agreement presented to the court, or . . . a record 4 of comparable findings of fact adopted by the defendant upon 5 entering the plea" -- would be "the closest analogs" to the 6 judicial record evidence approved in Taylor. 7 analogs were different from the pre-state-plea documents -- 8 police reports and complaint applications -- that the government 9 had urged the Shepard district court to consider. Id. at 20. These 10 Here, the government urged the district court to look 11 to one pre-state-plea document, the Bill of Particulars, and to 12 other post-state-plea documents, documents relating not to the 13 taking of Rosa's plea in State Supreme Court, but to his 14 sentencing there. 15 Particulars filed in the state case (pre-plea), (2) the State PSR 16 (post-plea), (3) the state sentencing transcript (post-plea), and 17 (4) the Federal PSR prepared in this case in determining the 18 factual basis of Rosa's 1991 conviction (post-plea). 19 drew logical inferences about facts underlying an affirmative 20 defense that Rosa waived by virtue of his plea. 21 at 25; see also Sentencing Mem. at 8-9. 22 The district court relied upon (1) the Bill of It also (5) Sentencing Tr. We pause to note that the Shepard Court was apparently 23 concerned about the prospect of a sentencing court making any 24 factual finding not necessarily implied by the prior 25 conviction -- irrespective of how clearly the factual finding was 26 established. The State PSR here reveals a disputed assertion of 22 1 fact: whether the "gun" was a "firearm." 2 concluding that it did not matter whether the defendant in that 3 case disputed that he had broken into the buildings in question 4 and thereby committed a "generic" burglary, Shepard, 544 U.S. at 5 19, implies that it does not matter here whether the assertion 6 that the 1991 crime of conviction involved a firearm was disputed 7 or not. 8 But Shepard, by For us to affirm the district court's conclusion that 9 the "gun" was a firearm, then, the documents and inferences that 10 the district court used to reach this conclusion must qualify as 11 "Shepard evidence," in this case, documents that show that the 12 "earlier guilty plea necessarily admitted, and supported a 13 conviction for," id. at 16, an offense "involving the use or 14 carrying of a firearm," 18 U.S.C. § 924(e)(2)(B). 15 that they do not. 16 A. We conclude The Bill of Particulars 17 The Bill of Particulars filed by the People in support 18 of the 1991 Indictment included the statement that a "small .22 19 cal. type gun," which the government intended to prove at trial 20 was used in the crime, was not recovered and therefore would not 21 be submitted as physical evidence at trial, and described the 22 conduct that the People intended to prove at trial as involving 23 "a gun." 24 reference the government's Sentencing Memorandum which made 25 reference to the Bill of Particulars. 26 was made in the government's presentation to us, we asked the The district court, in sentencing Rosa, incorporated by 23 But since no mention of it 1 parties for, and received, supplemental briefing on whether the 2 Bill of Particulars is a "charging document" under Shepard from 3 which the district court might have concluded that what "appeared 4 to be a pistol" was in fact a "firearm" under the ACCA. 5 conclude that, assuming that the issue has not been waived by the 6 government,11 the Bill of Particulars does not satisfy the 7 requirements of Shepard. 8 9 We We assume for purposes of this discussion that the Bill of Particulars may best be characterized as a "charging 10 document." We are not convinced, notwithstanding the Shepard 11 Court's reference to "charging document[s]" as potentially 12 reliable indicia of the nature of prior convictions, that the 13 Bill is therefore "Shepard evidence" for our purposes. 14 Shepard, 544 U.S. at 26. 15 Particulars did not help define the crime of which he was 16 convicted, see Taylor, 495 U.S. at 602, or serve to limit the 17 charges that he could have pleaded guilty to, see Shepard, 544 18 U.S. at 21. 19 the State would have been allowed to prove against Rosa had the 20 case gone to trial. 21 980, 767 N.Y.S.2d 530, 531-32 (4th Dep't 2003) (reversing rape 22 conviction because of violation of the "defendant's 'fundamental Rosa did not stand trial. See The Bill of At most, the Bill of Particulars limited only what See, e.g., People v. Greaves, 1 A.D.3d 979, 11 The principle that "[i]ssues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal," Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998), is applicable to criminal cases, see United States v. Crispo, 306 F.3d 71, 86 (2d Cir. 2002). 24 1 and nonwaivable' right to be tried on only those crimes charged 2 in the indictment . . . as limited by the bill of particulars"). 3 Rosa admitted at his plea allocution to having acted in 4 concert with and aided and abetted people who had displayed "what 5 appeared to be a handgun." 6 His plea of guilty to Count One was an admission of that with 7 which he was charged -- aiding and abetting and acting in concert 8 with others in "forcibly steal[ing] property from another person" 9 in the course of which one of the perpetrators "display[ed] . . . 1991 Plea Tr. at 16 (emphasis added). 10 what appeared to be a handgun." 11 nothing he said constituted an admission of the use by anyone in 12 any way of a firearm in connection with the crime. 13 Id. (emphasis added). But To be sure, the Bill of Particulars referred to a 14 "small .22 cal. type gun" that was not recovered -- and therefore 15 would not be submitted as physical evidence at trial as a 16 "[w]eapon[] used in the crime" -- but that the People intended to 17 demonstrate had been used by the co-defendants during the course 18 of the robbery. 19 use had a trial taken place. 20 in pleading guilty, pleaded only to participating in a robbery 21 involving "what appeared to be a handgun." 22 Probation Office interview, he expressly stated that a BB gun, 23 which is not a firearm, was used. 24 that Rosa necessarily pleaded to a crime involving the use of a 25 firearm, regardless of the allegations in the Bill of 26 Particulars. Perhaps the People would have established such But there was no trial. 25 And Rosa, During the State We therefore cannot conclude 1 Our conclusion may be in tension with those of two of 2 our sister circuits. 3 (4th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 233 (2006), 4 the Fourth Circuit approved a district court's reliance on a 5 victim's statement because it was "later explicitly incorporated 6 into Maryland's statement of charges against Simms." 7 "Taylor and Shepard specifically allow district courts to 8 consider charging documents in determining the nature of prior 9 convictions." Id. In United States v. Simms, 441 F.3d 313 We do not disagree. Id. at 317. But we do not think, nor 10 did the Fourth Circuit say or imply, that the characterization of 11 evidence as a "charging document" concludes the inquiry. 12 facts before us, even accepting that the Bill of Particulars was 13 a "charging document," as we do for these purposes, we do not 14 think that Rosa pleaded guilty to, or otherwise admitted the 15 allegations contained in the Bill; thus, he did not necessarily 16 plead to a charge involving a firearm. 17 Simms, in pleading guilty to the charges against him, did, by 18 contrast, allocute to the factual elements that the witness 19 described and that were later incorporated by the state in its 20 statement of charges. 21 On the It may well be that In United States v. Jones, 453 F.3d 777 (6th Cir.), 22 cert. denied, --- U.S. ---, 127 S. Ct. 611 (2006), the Sixth 23 Circuit concluded that 24 25 26 27 28 An affidavit of complaint is a type of record that a district court can properly rely on in determining the nature of predicate offenses, consistent with the standards of Shepard. Complaints are judicial documents, filed 26 1 2 3 4 5 6 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. 7 Id. at 780 (citation omitted). As we have said, we do not think 8 that every document properly classified as a charging document in 9 a state case to which a defendant pleads guilty is ipso facto 10 probative on the issue of whether the defendant necessarily 11 pleaded guilty to a "violent felony." 12 the Jones court seemed to indicate, that the question before us 13 is whether the unsworn Bill of Particulars "bear[s] . . . indicia 14 of reliability." 15 plea . . . 'necessarily' rested on the fact," Shepard, 544 U.S. 16 at 21, that the crime to which Rosa pleaded "involv[ed] the use 17 or carrying of a firearm." 18 And we do not think, as The dispositive question is "whether the We do not think that it did. We conclude that the Bill of Particulars, even if a 19 charging document, was not one upon which the district court 20 could rely in concluding that the defendant pleaded guilty in 21 state court in 1991 to a felony involving a firearm. 22 therefore could not support the district court's application of 23 the ACCA to Rosa. 24 B. 25 It Federal PSR The Federal PSR cannot satisfy Shepard either. See 26 United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 27 2006) ("[A] presentence report in a subsequent case ordinarily 28 may not be used to prove the details of the offense conduct that 29 underlies a prior conviction."); United States v. Garza-Lopez, 27 1 410 F.3d 268, 274 (5th Cir. 2005) ("[U]nder Shepard, a district 2 court is not permitted to rely on a PSR's characterization of a 3 defendant's prior offense for enhancement purposes."). 4 Federal PSR relies entirely on the State PSR for the fact of the 5 involvement of a firearm further undermines the ability of the 6 district court to use it to establish the nature of the crime to 7 which Rosa pleaded guilty. 8 That the See Shepard, 544 U.S. at 23. Some circuits have held that a sentencing court may 9 look to a PSR prepared for that case to determine the underlying 10 facts of a previous conviction when the defendant fails to object 11 to the PSR's findings, and thereby assents to those facts. 12 e.g., United States v. Siegel, 477 F.3d 87, 93-94 (3d Cir. 2007) 13 (concluding that the defendant's failure to object in the 14 sentencing court and on appeal to the factual description of his 15 prior conviction in the PSR amounts to an adoption of the factual 16 record included therein, and "that the facts averred in the PSR 17 acceded to by Siegel avoid the 'collateral trial,' and 'judicial 18 factfinding' preempted by the Court's holding in Shepard"); 19 United States v. Cullen, 432 F.3d 903, 905 (8th Cir. 2006) ("By 20 not objecting to the PSR's factual allegations, [the defendant] 21 has admitted them." (citation omitted)). 22 whether we would adopt such a rule. 23 lodge any objection to the PSR directly with the probation 24 office, he submitted a sentencing memorandum to the district 25 court dated May 11, 2005, specifically objecting to the PSR's 26 findings regarding the 1991 conviction. 28 See, We need not decide Although Rosa failed to We therefore cannot 1 conclude that Rosa admitted the findings in the Federal PSR by 2 failing to object to them. 3 C. The State PSR 4 As discussed, the State PSR prepared following Rosa's 5 1991 conviction cited conflicting evidence about the nature of 6 the object used during the robbery. 7 statement that during the robbery the victim "felt and observed a 8 black handgun pressed into his stomach," and a witness's 9 statement that one of the perpetrators was "holding what appeared It contained a victim's 10 to be a black automatic handgun." 11 statement by Rosa that Rosa's co-defendant "apparently had in his 12 possession a BB gun" -- which is not a firearm under the ACCA. 13 The State PSR itself, then, seems to reflect a disputed issue of 14 fact as to the nature of the object used during the robbery. 15 But it also contained a We have not yet addressed whether, in light of Shepard, 16 a district court may look to facts about the nature of the 17 offense presented in a state presentence report in determining 18 whether a prior conviction constitutes a "violent felony" under 19 the ACCA. 20 witness making references to a handgun does not establish, the 21 government agrees, that Rosa "necessarily" pleaded to an offense 22 involving a firearm, as Shepard requires.12 23 so where, as here, the State PSR also describes a statement The fact that the State PSR quotes the victim or a 12 This is especially See Gov't Br. at 29 ("[U]nder the Supreme Court's decisions in Shepard and Taylor, it is not at all clear that the District Court is permitted to consult the State Presentence Report on its own terms . . . ."). 29 1 disputing the victim's assertions. See Shepard, 544 U.S. at 21; 2 see also United States v. Grier, 475 F.3d 556, 603 (3d Cir. 2007) 3 (en banc) (Sloviter, J., dissenting) ("I submit that after 4 Shepard, a presentence report without more cannot be the basis 5 for a finding of an offense that is the predicate for a sentence 6 enhancement."). 7 to prove those facts described in the State PSR that were 8 "explicitly adopted by the trial judge to which Rosa assented." 9 Gov't Br. at 29. The government relies on the State PSR, instead, As we discussed in the next section, however, 10 we disagree with the government's view that the relevant facts in 11 the State PSR were "explicitly adopted by the trial judge" or 12 assented to by Rosa.13 13 The State PSR here does not provide a basis for 14 determining the nature of the defendant's conduct any better than 15 does a police report, which, the Shepard Court ruled, "do[es] not 16 define the conduct to which a defendant eventually pleads 17 guilty." United States v. Green, 480 F.3d 627, 632 (2d Cir. 13 If a state presentence report were adopted by the state trial court without objection by the defendant, Shepard's requirement that the defendant "assent" to the factual findings of the trial court for purposes of an inquiry under the ACCA might be met. But the record indicates neither that the district court explicitly adopted the findings in the State PSR, nor that Rosa assented to such findings. Because the district court did not explicitly adopt any of these findings, we do not think that Rosa's failure to raise the issue of the PSR's conflicting reports as to the nature of the object used in the robbery constitutes an admission of any kind. Moreover, because the issue during the plea colloquy concerned who was holding the object, not the nature of the object, it is understandable that no one made a specific finding or objection as to whether the object used was a firearm. 30 1 2007) (applying Shepard). To begin with, it appears that the 2 State PSR drew its descriptions of statements by the victim and 3 bus-driver witness directly from the police reports rather than 4 an independent investigation. 5 dependence of descriptions on "City of New Rochelle Police 6 Department records"). 7 neither the police reports from which the State PSR drew support 8 nor the accounts of the nature of the object used in the offense 9 were "mentioned at [Rosa's] pleas" or "read by the judge to See State PSR at 2 (noting Like the police reports in Shepard, 10 [Rosa] during the plea colloquy." 11 was never "asked if the information contained in the [PSR] w[as] 12 true." 13 stated 'that none of the details in th[e police] reports w[as] 14 ever mentioned at his pleas,' that 'the reports themselves were 15 never read by the judge to him during the plea colloquy,' and 16 that at no time 'was he ever asked if the information contained 17 in the . . . [police] [r]eports w[as] true.'" (third brackets 18 added; citation to district court opinion omitted)). 19 extent that the district court relied on the State PSR itself to 20 support its conclusion that a firearm was used in the 1991 21 robbery, such reliance was misplaced. 22 D. The State Trial Sentencing Transcript 23 Shepard, 544 U.S. at 18. Rosa Id. (first brackets added); see id. ("Shepard . . . To the The government concedes that the State PSR, without 24 more, is unlikely to satisfy Shepard. 25 where a state trial court adopts the factual findings of a state 26 presentence report, a defendant's failure to object to those 31 It argues, however, that 1 factual findings amounts to an assent by the defendant to those 2 facts. 3 transcript, the government also does not contend that the 4 transcript, alone, is Shepard evidence. 5 case, it satisfies the Shepard requirements because Rosa 6 "assented" to that court's statements suggesting that a firearm 7 was used in the robbery. 8 9 Extending this argument to the state sentencing It asserts that in this The Shepard Court ruled that in determining whether a prior plea of guilty admitted a particular fact, a district court 10 is generally "limited to examining the statutory definition, 11 charging document, written plea agreement, transcript of plea 12 colloquy, and any explicit factual finding by the trial judge to 13 which the defendant assented." 14 added). 15 statement at sentencing that "[Rosa] was not the one who wielded 16 the gun," and contends that this constituted a factual finding by 17 the judge that the wielded object was in fact a gun. 18 argues that Rosa assented to this "finding," both because he did 19 not dispute the characterization of the object as a gun and 20 because his lawyer stated that "it was not Eduardo who had the 21 gun in this particular incident." Shepard, 544 U.S. at 16 (emphasis The government here points to the state judge's It further We disagree. 22 In Shepard, the Court stated that the most appropriate 23 sources for the district court to consult to determine whether a 24 given fact was necessarily established "in pleaded cases" are 25 "the statement of factual basis for the charge, Fed. Rule Crim. 26 Proc. 11(a)(3), shown by a transcript of plea colloquy or by 32 1 written plea agreement presented to the court, or by a record of 2 comparable findings of fact adopted by the defendant upon 3 entering the plea. 4 court could generally tell whether the plea had 'necessarily' 5 rested on the fact" at issue. 6 (emphases added). 7 stage reflects both the conclusive effect of a plea as an 8 adjudication of the defendant's guilt and the judicial care that 9 goes into the court's acceptance of a plea. With such material in a pleaded case, a later Shepard, 544 U.S. at 20-21 The Court's repeated reference to the plea See generally Von 10 Moltke v. Gillies, 332 U.S. 708, 719 (1948) ("A plea of guilty 11 differs in purpose and effect from a mere admission or an 12 extrajudicial confession; it is itself a conviction. . . . 13 of just consideration for persons accused of crime, courts are 14 careful that a plea of guilty shall not be accepted unless made 15 voluntarily after proper advice and with full understanding of 16 the consequences.'" (quoting Kercheval v. United States, 274 U.S. 17 220, 223 (1927))). 18 Out At the joint plea hearing for Rosa and Warren, with 19 both defendants placed under oath, the court was indeed careful 20 to determine that they understood what it was they were 21 admitting. 22 which the defendants had threatened the victim was in fact a gun, 23 because a conviction of First Degree Robbery required only that 24 the object appeared to be a gun. 25 plea hearing focused on who held the object; and the object was 26 unvaryingly referred to by the court as "what appeared to be" a No question was raised as to whether the object with 33 Instead, the questioning at the 1 gun. Thus, the court asked, "Mr. Rosa, do you freely and 2 voluntarily admit that . . . you did display what appeared to be 3 a pistol, revolver, or other firearm . . . ?" 4 14-15 (emphasis added). 5 Rosa could admit only to aiding and abetting, not to displaying, 6 the court asked Rosa, "And do you admit that while aiding and 7 abetting . . . you did display what appeared to be a pistol, 8 revolver, or other firearm . . . ?" 9 When Rosa responded "Not me," the court asked, "So while you 1991 Plea Tr. at After Rosa's counsel interposed that Id. at 15 (emphasis added). 10 yourself may not have possessed what appeared to be a 11 handgun, . . . was one displayed by the people with whom you were 12 acting in concert and aiding and abetting?" 13 added). 14 displayed object in conducting the allocution of Warren. 15 at 14 ("Mr. Warren, do you freely and voluntarily admit 16 that . . . you did display what appeared to be a pistol, 17 revolver, or other firearm . . . ?" (emphasis added)). 18 never asked either Rosa or Warren whether what was displayed was 19 in fact a gun. 20 Rosa and Warren, the court noted that "they have been asked very 21 specific questions." 22 Id. (emphasis The court had used this same careful term for the See id. The court And after it had concluded its questioning of Id. at 17. In light of the state court's punctilious framing of 23 the "very specific questions" to be answered before he accepted 24 the pleas of guilty, inquiring not whether the object displayed 25 was a gun but only whether it "appeared to be" a gun, it would be 26 unreasonable to infer that his statement at sentencing that he 34 1 was imposing a lenient sentence on Rosa because Rosa "was not the 2 one who wielded the gun," was intended to constitute a finding 3 that what had been wielded was in fact a gun. 4 or shorthand, reference is not the manner in which careful judges 5 make findings, and we cannot conclude that this reference falls 6 within the scope of what Shepard meant by "an[] explicit factual 7 finding by the trial judge." Such an offhand, 8 Put another way, we do not think that Rosa's failure to 9 object when the state court said that "[Rosa] was not the one who 10 wielded the gun" qualifies as an admission by silence. 11 said that "an admission by silence is admissible [as evidence] if 12 'there are circumstances which render it more reasonably probable 13 that a man would answer the charge made against him than that he 14 would not.'" 15 1994) (citations omitted). 16 the course of giving Rosa a lesser sentence because he was not 17 the one holding "the gun." 18 "charged" Rosa. 19 an incriminatory or defamatory statement with a denial . . . ." 20 (citation omitted)). 21 probable" that someone in Rosa's position would have contradicted 22 the judge at that moment to insist that the object that he was 23 not holding was not a firearm. 24 We have United States v. Aponte, 31 F.3d 86, 87 (2d Cir. The state court made its statement in We hardly think that the statement Cf. id. ("[A] person ordinarily will respond to And we do not think it "more reasonably For all of these reasons, we conclude that the district 25 court was not able to rely on the state sentencing transcript to 26 find that Rosa's crime or act of delinquency involved a firearm. 35 1 E. Logical Inference from the Guilty Plea 2 Without any sufficiently reliable records from the 3 state proceedings, the linchpin of the government's argument is 4 its interpretation of the logical consequences of Rosa's guilty 5 plea to First Degree Robbery. 6 defendant's guilty plea to Robbery in the First Degree rather 7 than to Robbery in the Second Degree in the 1991 proceedings 8 necessarily means that he admitted that the crime involved a 9 firearm. 10 The government contends that the Gov't Br. at 24-27, 29. The government's logic is as follows: The elements of 11 subsection (4) of Robbery in the First Degree are identical to 12 the elements of Robbery in the Second Degree under subsection 13 (2)(b). 14 person is guilty of robbery in the first degree when he forcibly 15 steals property and when, in the course of the commission of the 16 crime or of immediate flight therefrom, he or another participant 17 in the crime . . . . [d]isplays what appears to be a pistol, 18 revolver, rifle, shotgun, machine gun or other firearm . . . .") 19 with id. § 160.10(2)(b) (Second Degree) ("A person is guilty of 20 robbery in the second degree when he forcibly steals property and 21 when . . . [i]n the course of the commission of the crime or of 22 immediate flight therefrom, he or another participant in the 23 crime . . . 24 rifle, shotgun, machine gun or other firearm . . . ."). 25 as Rosa's case was concerned, the only difference between the 26 two, which defines their relationship to one another, is that a Compare N.Y. Penal Law § 160.15(4) (First Degree) ("A [d]isplays what appears to be a pistol, revolver, 36 Insofar 1 person accused of Robbery in the First Degree can assert, as an 2 affirmative defense, that "such pistol, revolver, rifle, shotgun, 3 machine gun or other firearm was not a loaded weapon from which a 4 shot, readily capable of producing death or other serious 5 physical injury, could be discharged." 6 defendant can establish that affirmative defense, the alleged 7 crime is reduced to Robbery in the Second Degree. 8 asserts that here, by pleading guilty to first degree robbery, 9 Rosa waived this affirmative defense. 10 Id. § 160.15(4). If the The government And by doing so, Rosa necessarily conceded that the weapon was a firearm. 11 We find the government's argument unpersuasive. Rosa 12 pleaded guilty, as reflected by the plea colloquy, to a crime 13 that included only the "display [of] what appeared to be . . . a 14 handgun." 15 "robbery in the first degree (displayed)" in New York, the 16 state's burden is not "to introduce into evidence the weapon used 17 in the robbery; nor [need it] present evidence that the weapon 18 was loaded or capable of being fired." 19 A.D.2d 536, 539, 747 N.Y.S.2d 205, 208 (1st Dep't 2002). 20 "Instead, 'Penal Law § 160.15(4) merely requires the prosecution 21 to prove that the defendant or another participant displayed what 22 appeared to a be pistol, revolver or other firearm.'" 23 (citations omitted). 24 State had carried this burden. 25 contrast, the defendant bears the burden of proof. 26 Penal Law § 25.00(2) ("When a defense declared by statute to be 1991 Plea Tr. at 16. When charging a defendant with People v. Padua, 297 Id. By pleading guilty, Rosa admitted that the On an affirmative defense, by 37 See N.Y. 1 an 'affirmative defense' is raised at a trial, the defendant has 2 the burden of establishing such defense by a preponderance of the 3 evidence."). 4 We are not convinced that by agreeing to plead guilty 5 to Robbery in the First Degree, and therefore not asserting the 6 affirmative defense that the object used during the crime was not 7 a firearm, Rosa was conceding that he would have been unable to 8 carry his burden of proving this affirmative defense had he 9 decided to raise it at trial. First, in order to carry this 10 burden, it seems that Rosa would have been required to go to 11 trial and accept its additional expense and risks. 12 practical matter, a principal goal of pleading guilty is to avoid 13 trial, and the desire not to bear the costs of trial should not 14 be a ground for an inference that the party could not prevail at 15 trial. 16 abandonment of three other charges against Rosa in exchange for 17 his agreement to plead guilty to First Degree Robbery could be 18 viewed as an implicit concession that it could not carry its 19 burden of proving these abandoned counts. 20 As a It is doubtful that the State would agree that its own Second, Padua, which involved a BB gun in evidence and 21 an alleged second, unintroduced, gun that was "real," suggests 22 that the affirmative defense here comes into play only if the 23 object -- whether "real" gun or BB gun -- was unloaded or 24 inoperable. 25 ("[T]he affirmative defense to robbery in the first degree comes 26 into play only when it is demonstrated by a preponderance of the See Padua, 297 A.D.2d at 539, 747 N.Y.S.2d at 208 38 1 evidence that the gun was unloaded or inoperable -- and there was 2 no such evidence offered in this case with respect to either 3 gun."). 4 gun, and hence was not a firearm within the meaning of ACCA, Rosa 5 could not have established the affirmative defense under 6 § 160.15(4) if the BB gun was loaded. 7 decision to forgo any attempt to establish the affirmative 8 defense does not necessarily imply that what was involved was a 9 real gun. 10 Therefore, if the object in Rosa's incident was a BB For this reason too, his We doubt, moreover, that Shepard and, as the plurality 11 in Shepard suggested, Apprendi, allow such an inference to be 12 drawn. 13 circumvent Shepard's requirement that district courts limit their 14 consideration to particular documents that can identify the 15 underlying facts of a prior conviction with certainty. 16 The waiver argument would permit the government to We think that the fundamental problem underlying the 17 district court's reliance on inferences from waiver of an 18 affirmative defense, or on the Bill of Particulars, the Federal 19 PSR, the State PSR, the state sentencing transcript, or any other 20 part of the state record, for its conclusion that the "gun" 21 involved was a firearm is precisely the fact that the district 22 court looked to the evidence before it and drew its own 23 inferences rather than determining what inferences were compelled 24 by the state record of conviction. 25 ("find[ing] that the record here supports . . . that the 26 defendant is a career criminal under the Guidelines"). 39 See Sentencing Tr. at 25 1 Permitting a district court to make such factual findings thus 2 threatens to violate the Jones-Apprendi constitutional rule that 3 "any fact other than a prior conviction sufficient to raise the 4 limit of the possible federal sentence must be found by a jury, 5 in the absence of any waiver of rights by the defendant." 6 Shepard, 544 U.S. at 24 (opinion of Souter, J.). 7 police reports that the majority in Shepard refused to permit the 8 district court to consult, which, according to the Shepard 9 dissenters, "ma[de] inescapable the conclusion that, at each Unlike the 10 guilty plea, Shepard understood himself to be admitting the crime 11 of breaking into a building," id. at 31 (O'Connor, J., 12 dissenting), we think it clear from the plea transcript that 13 neither Rosa nor the court understood Rosa to be admitting that 14 what was displayed was an actual firearm. 15 district court relied on here seems less reliable than that on 16 which the district court relied in Shepard, and which the Supreme 17 Court found unsound. 18 was subject to the ACCA's fifteen-year mandatory minimum 19 therefore relied on an improper factual finding based on evidence 20 outside the scope of what is permitted by Shepard. 21 22 23 Thus, the evidence the The district court's conclusion that Rosa CONCLUSION For the foregoing reasons, we vacate Rosa's sentence and remand for resentencing. 40
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
