United States v. Dutch, No. 19-2196 (10th Cir. 2020)Annotate this Case
Marc Dutch pleaded guilty in 2016 to being a felon in possession of a firearm and ammunition. In its presentence report, probation recommended that Dutch could be subject to a sentencing enhancement under the Armed Career Criminals Act (ACCA). At the sentencing hearing, the district court concluded the ACCA should not govern Dutch’s sentencing because the government had not met its burden of proving Dutch’s predicate crimes occurred on separate occasions. The federal government appealed the sentencing decision to the Tenth Circuit Court of Appeals and, in an unpublished opinion, a panel concluded the ACCA applied because the government had proved by a preponderance of evidence that Dutch’s prior crimes “occurred on different dates and at different locations.” Prior to remand, Dutch pursued en banc review, raising much the same arguments, and then petitioned for relief before the United States Supreme Court. Both requests were denied. At resentencing, despite this history, the district court at defendant’s urging revisited the ACCA determination and concluded, once again, that it did not apply. The district court concluded the charging document and plea agreement the government offered to show Dutch committed his crimes on different occasions were inadequate to determine whether Dutch had actually committed the crimes on different occasions or simply committed one act of aiding and abetting. The court sentenced Dutch to a 60-month term of imprisonment and three years of supervised release. This appeal addressed the federal government’s challenge to the district court’s resentencing. The government insisted the district court violated the Tenth Circuit's directions for resentencing on remand by deciding, once again, that the ACCA did not apply to Dutch despite the Court's differing conclusion in "Dutch I." To this, the Tenth Circuit agreed: the district court disregarded the Tenth Circuit's clear mandate from Dutch I that the ACCA governed Dutch’s sentencing. The matter was reversed and remanded for resentencing.