United States v. Dantzler, No. 13-2930 (2d Cir. 2014)

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Justia Opinion Summary

Defendant pled guilty of one count of possession of a firearm as a felon and subsequently appealed his sentence. The court held that, in determining whether crimes were committed "on occasions different from one another" for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), a court is limited to examining only materials approved by the Supreme Court in Taylor v. United States and Shepard v. United States. The court also held that a court may not rely upon a Presentence Report in determining whether crimes were committed "on occasions different from one another" for purposes of applying the ACCA, where the relevant facts described in the PSR were not derived from sources determined to be consistent with Taylor and Shepard. Accordingly, the court vacated and remanded for resentencing.

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13 2930 cr United States v. Dantzler In the United States Court of Appeals For the Second Circuit ________ AUGUST TERM 2013 No. 13 2930 cr UNITED STATES OF AMERICA, Appellee, v. ZEPHANIAH DANTZLER, Defendant Appellant, ________ Appeal from the United States District Court for the Eastern District of New York. No. 12 CR 568 1 (NGG) Nicholas G. Garaufis, Judge. ________ SUBMITTED: JUNE 27, 2014 DECIDED: NOVEMBER 14, 2014 ________ Before: CABRANES, CARNEY, and DRONEY, Circuit Judges. ________ The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), imposes a 15 year mandatory minimum sentence on violators who have three previous convictions for a violent felony or a serious drug offense “committed on occasions different from one another.” The question presented is whether, in determining whether crimes 2 No. 13 2930 cr were committed “on occasions different from one another,” a court at sentencing is limited to examining only materials approved by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13, 16 (2005). We hold that, in determining whether crimes were committed “on occasions different from one another” for purposes of applying the ACCA, a court is limited to examining only materials approved by the Supreme Court in Taylor and Shepard. We also hold that a court may not rely upon a Presentence Report (“PSR”) in determining whether crimes were committed “on occasions different from one another” for purposes of applying the ACCA, where the relevant facts described in the PSR were not derived from sources determined to be consistent with Taylor and Shepard. Accordingly, we VACATE the sentence of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) and REMAND for resentencing in accordance with this opinion. ________ DAVID A. LEWIS, Federal Defenders of New York, Inc., New York, NY, for Appellant Zephaniah Dantzler. JO ANN M. NAVICKAS (Kevin M. Trowel, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee United States of America. 3 No. 13 2930 cr ________ JOSÉ A. CABRANES, Circuit Judge: The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), imposes a 15 year mandatory minimum sentence on violators who have three previous convictions for a violent felony or a serious drug offense “committed on occasions different from one another.” The question presented is whether, in determining whether crimes were committed “on occasions different from one another,” a court at sentencing is limited to examining only materials approved by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13, 16 (2005). We hold that, in determining whether crimes were committed “on occasions different from one another” for purposes of applying the ACCA, a court is limited to examining only materials approved by the Supreme Court in Taylor and Shepard. We also hold that a court may not rely upon a Presentence Report (“PSR”) in determining whether crimes were committed “on occasions different from one another” for purposes of applying the ACCA, where the relevant facts described in the PSR were not derived from sources determined to be consistent with Taylor and Shepard. Accordingly, we VACATE the sentence of the District Court and REMAND for resentencing in accordance with this opinion. 4 No. 13 2930 cr BACKGROUND Defendant appellant Zephaniah Dantzler (“Dantzler”) was convicted, in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge), upon his plea of guilty, of one count of possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). At Dantzler’s plea colloquy in the District Court, the Government stated that it would seek to prove at trial that he had been previously convicted of three violent felonies committed on three different occasions, as required by the ACCA, 18 U.S.C. § 924(e), and Dantzler expressly waived the right to a jury trial on the issue of his “prior felony convictions.” Appellant’s App. 33. Section 924(e)(1) states, in relevant part, that “[i]n the case of a person who violates [the substantive provision] of this title and has three previous convictions by any court . . . 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.” 18 U.S.C. § 924(e)(1). The PSR prepared for sentencing found that, in 2006, at the age of 18, Dantzler had been convicted of three robberies that rendered him an armed career criminal subject to a mandatory minimum sentence of 15 years’ imprisonment pursuant to the ACCA. The three predicate convictions described in the PSR were as follows: (1) a conviction in the New York State Supreme Court in Brooklyn for a robbery committed on February 18, 2006 in Brooklyn, 5 No. 13 2930 cr at 11:00 a.m., in which Dantzler and a co defendant stole a debit card from the victim using a box cutter; (2) a conviction in the New York State Supreme Court in Manhattan for a robbery committed on the subway in Manhattan on February 19, 2006, together with two co defendants, using a box cutter and a bladed knife; and (3) a conviction in the New York State Supreme Court in Queens for a robbery also committed on February 19, 2006, on the subway in Queens, with two unnamed individuals, using a box cutter and a bladed knife. Dantzler was arrested for the February 19, 2006 subway robbery that took place in Manhattan on the day it occurred. While under pretrial detention at the correctional facility on Rikers Island, New York, Dantzler was arrested on March 2, 2006 for the February 19, 2006 robbery that took place in Queens. While still in custody, he was arrested on August 17, 2006 for the February 18, 2006 robbery that took place in Brooklyn. In a letter addressed to Judge Garaufis, dated July 16, 2013, counsel for Dantzler objected to the PSR’s characterization of the second and third offenses as crimes committed ”on occasions different from one another,” and argued that the two February 19, 2006 robberies “represent a single criminal episode.” Appellant’s App. 83 (emphasis supplied). The letter also provided the following additional information, which was not included in the PSR, taken from the New York criminal complaints, which were attached: In Mr. Dantzler’s case, he was arrested on February 19, 2006 at 3:30 a.m. at the Manhattan City Hall subway station for a robbery that took place on a number 6 6 No. 13 2930 cr subway train about 10 minutes earlier. While he was in pretrial detention for that offense, he was arrested at Rikers Island on March 2, 2006, for another robbery that also took place on February 19, 2006, at 1:45 a.m. on an eastbound number 7 train in Queens. . . . Although the offenses involved different victims, both robberies were committed by Mr. Dantzler and the same two co defendants, both robberies took place in the New York City subway system, and both robberies took place approximately an hour and a half apart. As noted in the Presentence Report, the modus operandi was the same for both robberies. There also does not appear to have been any interruption in the criminal activity the three undertook for the night. Appellant’s App. 83 84. The Government responded in a letter dated July 23, 2013. Both letters relied upon the case of United States v. Rideout, 3 F.3d 32 (2d Cir. 1993). In Rideout, we were faced with the same question—whether two offenses, which formed two of the three predicates required for consideration as an armed career criminal under the ACCA, occurred on separate occasions. In that case, we concluded that “offenses committed against different victims separated by at least twenty to thirty minutes and twelve to thirteen miles qualify as offenses ‘committed on occasions different from one another.’” Id. at 35 (quoting the ACCA, § 924(e)). At the sentencing hearing on July 25, 2013, Judge Garaufis, an experienced and careful adjudicator, began by noting the materials he reviewed for purposes of sentencing: the original PSR and two addenda to the PSR, the second of which responded to Dantzler’s 7 No. 13 2930 cr objections in his July 16, 2013 letter to Judge Garaufis and its three attachments, one of which included the New York criminal complaints sworn to by attesting police officers for the two February 19, 2006 subway robberies; a July 16, 2013 letter of the defense to the probation officer objecting to the PSR and attaching the same New York criminal complaints; and the Government’s July 23, 2013 response letter with three exhibits attached. Dantzler raised no objection to the Court’s consideration of any of these materials. During her statement at sentencing, Dantzler’s counsel reiterated many of the facts contained in Dantzler’s sentencing submission. Agreeing with the Government that Rideout was “on all fours” with the facts before it, the District Court first held that, pursuant to Rideout’s teaching, Dantzler’s offenses were committed “on occasions different from one another” such that the ACCA was triggered. Appellant’s App. 44. The District Court then stated that the applicable Sentencing Guidelines range for Dantzler’s offense was 168 to 210 months, but was subject to the ACCA statutory minimum of 180 months. The District Court then sentenced him, principally, to 180 months’ imprisonment and 5 years of supervised release. Had Dantzler not been subject to a Guidelines enhancement as an armed career criminal under § 924(e), his total offense level would have been 23, rather than 30 under the ACCA, see PSR ¶ 17, which would have made the applicable sentencing range 92 115 months’ imprisonment. This timely appeal followed. 8 No. 13 2930 cr DISCUSSION On appeal, Dantzler argues that, in determining whether crimes were committed “on occasions different from one another” for purposes of applying the ACCA, a court is limited to examining only sources approved by the Supreme Court in Shepard v. United States, 544 U.S. 13, 16 (2005)—namely, the charging document, written plea agreement, transcript of plea colloquy, or analogous materials. Because the District Court’s conclusion in this case rested upon sources not allowable under Shepard, and, Dantzler asserts, without those inappropriate sources there was insufficient proof that his convictions occurred on “occasions different from one another,” he argues that his sentence should be vacated and the case remanded for resentencing based solely upon Shepard approved sources. Dantzler concedes that he did not raise this claim in the District Court, and accordingly, we review for plain error. “This standard is met when ‘(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Vilar, 729 F.3d 62, 70 (2d Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258 (2010)). 9 No. 13 2930 cr A. Dantzler argues that two decisions of the Supreme Court establish considerable restrictions on the materials that a sentencing court may consider in determining whether three predicate offenses under the ACCA were committed “on occasions different from one another.” In Taylor v. United States, 495 U.S. 575, 577 79 (1990), the defendant challenged the sentencing court’s determination that two of his predicate offenses for burglary under Missouri law constituted “violent felonies” for purposes of the ACCA. Taylor argued that he would have committed a “violent felony” for purposes of the ACCA only if he had committed “generic burglary” of a building or dwelling. The Missouri statute, however, criminalized a significantly broader range of activity, including the “non generic” burglarizing of boats, tents, and other non buildings. Id. at 599. The question before the Supreme Court was “whether the sentencing court in applying § 924(e) must look only to the statutory definitions of the prior offenses, or whether the court may consider other evidence concerning the defendant’s prior crimes.” Id. at 600. The Court rejected an approach that required the sentencing court “to engage in an elaborate factfinding process regarding the defendant’s prior offenses,” id. at 601, and instead held that, in determining whether a prior conviction was for a “violent felony” under the ACCA, a sentencing court should look only to: (1) the fact of conviction; (2) the statutory definition of the prior offense; and, in cases where the defendant was convicted by a jury, to (3) the 10 No. 13 2930 cr criminal indictment or information, together with (4) the jury instructions. Id. at 602. In a later case, Shepard v. United States, the Supreme Court was faced with the question of how to apply Taylor when the predicate offenses for sentencing under the ACCA stemmed from a guilty plea rather than a jury verdict. 544 U.S. 13, 19 (2005). The predicate offenses at issue there, as in Taylor, were for burglary in a state where the burglary statute encompassed both “generic” and “non generic” burglary, and the sentencing court was required to determine if Shepard’s burglary convictions were “violent felon[ies]” under the ACCA. Id. at 15 16. In particular, the Shepard Court addressed whether a sentencing court could look to police reports or complaint applications in determining whether Shepard’s guilty pleas for burglary had been based upon conduct that would constitute “generic burglary,” in which case they could be properly considered as ACCA predicate offenses. Id. at 16. The Shepard Court first held, as a threshold matter, that “guilty pleas may establish ACCA predicate offenses.” Id. at 19. It then concluded that “a later court determining the character of an admitted burglary [for purposes of sentencing under the ACCA] is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16. This was based upon the same “pragmatic” concerns expressed in Taylor, namely, a sentencing court’s need to identify ACCA predicate offenses while “avoid[ing] subsequent 11 No. 13 2930 cr evidentiary enquiries into the factual basis for the earlier conviction.” Id. at 20. Justice Souter, writing for a plurality of the Shepard Court,1 also placed the decision within the line of cases preceding Shepard that greatly diminished the scope of a court’s factfinding authority at sentencing. Id. at 24. He noted that the Court’s opinion in Taylor “anticipated the very rule later imposed for the sake of preserving the Sixth Amendment right, that any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant.” Shepard, 544 U.S. at 24 (referring to the rule announced by Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000)). The Court explicitly excluded from this limitation the fact of a defendant’s prior conviction, pursuant to its earlier decision in Almendarez Torres v. United States, 523 U.S. 224 (1998). More recently, in Alleyne v. United States, the Court held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” 133 S. Ct. 2151, 2155 (2013). Justice Souter authored the Court’s opinion with respect to its primary holding that, for purposes of sentencing under the ACCA, a court is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. However, Justice Souter’s discussion contextualizing the holding within the Court’s recent sentencing jurisprudence, described above, was written only on behalf of a plurality of the Court. 1 12 No. 13 2930 cr B. Dantzler’s primary argument on appeal is that the Shepard limitations on sources to be consulted in determining the character of an offense should also apply to district court inquiries into whether crimes were committed “on occasions different from one another.” We agree. Although Taylor and Shepard involved the question of whether predicate offenses under the ACCA were “violent felonies,” the reasoning underlying those decisions applies with equal force to the analysis of whether the offenses were committed “on occasions different from one another.” 18 U.S.C. § 924(e)(1). First, as a matter of statutory interpretation, there is nothing in the statute’s construction to suggest that Congress intended to limit the “violent felony” inquiry for predicate offenses, but not to limit a court’s inquiry with respect to whether offenses were committed on “occasions different from one another.” Nor is there any indication by the Court in Shepard that its conclusion was informed by a unique characteristic of the “violent felony” analysis that would not apply to the parallel “on occasions different from one another” inquiry. Furthermore, the majority in Shepard reiterated its commitment, first expressed in Taylor, to “respect[ ] Congress’s adoption of a categorical criterion that avoids subsequent evidentiary enquiries into the factual basis for the earlier conviction.” 544 U.S. at 20. The Court in Taylor explicitly determined that, in enacting the ACCA, Congress had not meant “to adopt an 13 No. 13 2930 cr approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant’s prior offenses.” 495 U.S. at 601. Indeed, “the Shepard Court was apparently concerned about the prospect of a sentencing court making any factual finding not necessarily implied by the prior conviction—irrespective of how clearly the factual finding was established.” United States v. Rosa, 507 F.3d 142, 153 (2d Cir. 2007). The Shepard Court explicitly rejected the Government’s desire for a “wider evidentiary cast” that would include police reports and “documents submitted to lower courts even prior to charges.” 544 U.S. at 21. The same concerns expressed by the Court in Shepard with regard to “violent felonies” are implicated when the inquiry concerns the separateness of the predicate crimes. Indeed, these concerns are perhaps even more salient here because the facts relied upon in determining whether offenses are committed on “different occasions”—the date, time, victim identity, or location of the offense—are rarely elements required for conviction, and hence, might not be included in jury instructions or placed before the court (much less admitted by a defendant) during a plea colloquy. Absent reliance on Taylor or Shepard approved sources, such as a charging paper,2 jury instruction, or plea colloquy, a sentencing judge would We note that, although Shepard used the words “charging documents” in listing materials acceptable for a sentencing court to rely upon, 544 U.S. at 16, in this Circuit, a document’s mere characterization as a “charging document” does not end the inquiry. For example, where the predicate offense is a state offense to which the defendant pleaded guilty, the defendant may not have specifically admitted all of the factual 2 14 No. 13 2930 cr necessarily have to reconstruct the conduct underlying a conviction, which might require in depth examination of the trial record for each predicate offense, or a similarly broad evidentiary inquiry that Taylor and Shepard have decidedly foreclosed. See, e.g., Taylor, 495 U.S. at 601. Additionally, limiting the “on occasions different from one another” analysis to Taylor and Shepard materials avoids potential constitutional problems associated with affording broad factfinding powers to a sentencing court in evaluating ACCA predicate offenses. In Shepard, the plurality noted: [T]he dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. . . . The rule of reading statutes to avoid serious risks of unconstitutionality therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea, just as Taylor constrained judicial findings about the generic implication of a jury’s verdict. 544 U.S. at 25 26 (internal citation omitted). allegations contained in a “charging document” such as a Bill of Particulars. See Rosa, 507 F.3d at 155 (“[W]e do not think that every document properly classified as a charging document in a state case to which a defendant pleads guilty is ipso facto probative on the issue of whether the defendant necessarily pleaded guilty to” the facts therein.). 15 No. 13 2930 cr Indeed, our precedent makes clear that a sentencing judge’s determination of whether ACCA predicate offenses were committed “on occasions different from one another” is no different, as a constitutional matter, from determining the fact of those convictions. In United States v. Santiago, the defendant argued that, pursuant to Apprendi, any fact relevant to imposition of the ACCA mandatory minimum—namely, convictions for three violent felonies or drug offenses committed on occasions different from one another—must be charged in the indictment and found by a jury in order to be considered by a sentencing court. 268 F.3d 151, 153 (2d Cir. 2001). He also tried to distinguish the fact of conviction from the “different occasions” analysis, arguing that, even if a sentencing judge could permissibly determine the fact of conviction, a jury must decide the “different occasions” question. We rejected that argument, holding that “the separateness of the convictions is not a fact which is different in kind from the types of facts already left to the sentencing judge by Almendarez Torres and Apprendi . . . . In short, we read Apprendi as leaving to the judge, consistent with due process, the task of finding not only the mere fact of previous convictions but other related issues as well.” Id. at 156. In other words, we held in Santiago that the question of the separateness of predicate offenses is intertwined with the fact of conviction, and because a sentencing judge was authorized to find the fact of conviction under Almendarez Torres and Apprendi, he could also find that such convictions were separate. Here, we take the logical next step and hold that because, after Shepard, the fact 16 No. 13 2930 cr that a crime constituted a “violent felony” may be established only through Shepard approved materials, so too the question of whether the convictions were for three separate offenses may also be answered by looking only to Shepard approved materials. Accordingly, we hold that, in determining whether offenses were committed “on occasions different from one another” for purposes of sentencing under the ACCA, a sentencing court is bound by the source limitations established by Taylor and Shepard.3 This holding is consistent with that of many of our sister Circuits. See, e.g., United States v. Boykin, 669 F.3d 467, 470 71 (4th Cir. 2012) (finding plain error in the district court’s “reli[ance] on the PSR’s factual details of Boykin’s 1980 shootings to make the judicial finding that the two shootings occurred on separate occasions for ACCA purposes” because “there is no indication in the PSR itself that the information therein came from Shepard approved sources,” and “the factual details of the encounter are not typically found in Shepard approved sources”); United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010) (“Based on Shepard, there is simply no distinction left between the scope of permissible evidence that can be used to determine if the prior convictions are violent felonies or serious drug offenses or if they were committed on different occasions under § 924(e)(1).”); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009) (“[T]he district court erred in concluding the Government presented insufficient evidence that the two predicate drug offenses were ‘committed on occasions different from one another’ [because] [t]he two indictments offered in the second sentencing satisfied the evidentiary requirements set out in Taylor and Shepard.” (internal citation omitted)); United States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006) (“To determine whether two offenses occurred on different occasions, a court is permitted to examine only the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” (internal quotation marks omitted)); United States v. Ngo, 406 F.3d 839, 843 (7th Cir. 2005) (“The finding that [defendant’s] crimes were not consolidated falls within the narrow parameters permitted by Shepard, i.e., those findings that can be made by resorting only to information with the conclusive significance of a prior judicial record.” (internal quotation marks omitted)); United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005) (remanding for resentencing because the court could not “determine whether the district court reviewed judicial records consistent with Shepard” in conducting the “occasions different” analysis). 3 17 No. 13 2930 cr In so holding, we acknowledge that, for what is likely a relatively small number of cases, such as the one before us, in which the dates of the predicate offenses are not dispositive in determining whether they were committed “on occasions different from one another,” the sentencing court’s ability to impose the ACCA mandatory minimum will depend upon whether the Taylor and Shepard approved materials also contain other facts necessary for such a determination. Here, where two of the predicate offenses occurred on the same date, the District Judge was compelled to look to facts such as the identities of the victims and the times and locations of the offenses—which, under our clear precedent in Rideout are precisely the factors rightly considered—in determining whether the crimes occurred on “occasions different from one another.” In such a case, it is only if these particular facts are included in Taylor and Shepard approved materials that a sentencing judge can make the requisite determination. And, as we have held with regard to the determination of whether predicate offenses were “violent felonies,” “if such [Shepard approved] evidence is not available, then the government has not met its burden” of establishing the predicate crimes for the purpose of sentencing under the ACCA. Rosa, 507 F.3d at 153. Our acknowledgment echoes the concern animating Justice O’Connor’s dissent in Shepard, in which she noted that “[a] defendant’s sentence will now depend . . . on whether those States’ record retention policies happen to preserve the musty written plea agreements and recordings of ‘plea colloquies’ ancillary to long past 18 No. 13 2930 cr convictions.” Shepard, 544 U.S. at 36 37 (O’Connor, J., dissenting) (alterations and internal quotation marks omitted). But we are bound by the Court’s opinions in Taylor and Shepard regarding the sources that may be consulted for purposes of sentencing under the ACCA, even if it is unclear whether, in the narrow array of cases that would require a more in depth factual inquiry, those sources will contain the requisite information.4 C. Having established that, in determining whether offenses were committed “on occasions different from one another” for purposes of sentencing under the ACCA, a court may only utilize For example, the Seventh Circuit faced such a circumstance in Kirkland v. United States, where the sentencing court consulted only Shepard approved materials—“the charging documents, the judgments, and the plea questionnaires”—to determine whether a robbery and burglary that occurred on the same date were indeed separate offenses for purposes of the ACCA. 687 F.3d 878, 881 (7th Cir. 2012). The Court of Appeals noted generally that, “in practice, this means that if the Shepard approved documents before a district court are equivocal as to whether the offenses occurred on the same occasion, the ACCA does not apply.” Id. at 889. And indeed, the Court concluded that the case before it was one of the “exceptional cases,” id. at 891, in which “‘the factually sparse’ record sheds little light on whether the 1985 offenses occurred on the same occasion” and therefore those convictions could not support a sentence imposed under the ACCA, id. at 887. See also Fuller, 453 F.3d at 279 80 (vacating defendant’s sentence with regard to the ACCA enhancement, for which two predicate offenses occurred on the same day, because, “[b]ased on the indictments alone . . . we cannot determine as a matter of law that the burglaries occurred on different occasions” and “the record does not contain the written plea agreement, the plea colloquy, or other Shepard approved material that might resolve this question”). 4 19 No. 13 2930 cr sources consistent with Taylor and Shepard, we now turn to our consideration of Dantzler’s particular sentence.5 There does not appear to be any dispute that the District Court relied upon materials that were not of the type specifically condoned by Taylor or Shepard in making its determination that Dantzler’s two February 19, 2006 subway robbery convictions were committed “on occasions different from one another” for purposes of the ACCA. As we held above, this reliance was error. The error was also plain. The District Court underscored its reliance on the PSR, which, when discussing Dantzler’s previous offenses, explicitly drew upon “[c]ourt records,” “parole records,” “local presentence report[s],” and “arrest report[s],” PSR ¶¶ 23 25.6 The District Court also clearly relied upon Dantzler’s sentencing The Government argues that Dantzler has waived the challenge we consider here, as his counsel relied upon the PSR and criminal complaints in making its argument to the District Court. However, this argument was not waived. The Supreme Court has described waiver as the “intentional relinquishment or abandonment of a known right,” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), and courts applying waiver doctrine have focused on strategic, deliberate decisions that litigants consciously make. Here, there is nothing in the record suggesting that this was a strategic, calculated decision by Dantzler to introduce facts taken from the complaints and PSR, and then when it backfired, to seek to “undo” that decision. The applicability of Shepard was never mentioned in the District Court, nor was there any discussion of proper and improper materials for the Court to consult; there is no indication that either side invoked Shepard’s implications in this context, and accordingly, we cannot conclude that Dantzler waived this argument. 6 We have previously held that state PSRs are not necessarily consistent with Taylor and Shepard, and the relevant inquiry is whether the facts contained in the state PSR were “explicitly adopted by the trial judge” or assented to by the defendant when pleading guilty. Rosa, 507 F.3d at 157 & n.13. 5 20 No. 13 2930 cr submission, which both discussed and attached the New York criminal complaints sworn to by attesting police officers, as did the Government’s submission in response. Reference to these materials was not specifically condoned by the Court in Taylor or Shepard, and there is no suggestion that these materials were themselves derived from materials approved by Taylor or Shepard or that they are analogs of the types of materials approved by Taylor or Shepard. Our conclusion that the District Court’s reliance on materials not permitted by Taylor and Shepard was plain error is intentionally a limited one. In so holding, we intimate no view as to the applicability of Taylor and Shepard to cases in which a sentencing court relied upon a PSR that was derived in whole, or in large part, from Taylor or Shepard approved materials. For example, another Court of Appeals has held that a “trial judge was entitled to rely upon the PSR” where it “b[ore] the earmarks of derivation from Shepard approved sources such as the indictments and state court judgments from his prior convictions.” United States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005).7 Relatedly, we recognize the possibility that some of the materials provided as part of the parties’ sentencing submissions or incorporated into the PSR, which referenced inter alia certain unidentified “court records,” may in fact be considered analogous to 7 In Thompson, the Fourth Circuit also appeared to rely in part on the fact that the defendant lodged no objection to use of the PSR, see 421 F.3d at 285, but, as discussed below, we accord less weight to that circumstance. 21 No. 13 2930 cr those approved by Taylor and Shepard or may be otherwise consistent with Taylor and Shepard. At present, we are not in a position to decide this issue definitively because neither party has presented this argument on appeal, nor is the record sufficient for us to determine whether the documents were permissible pursuant to Taylor and Shepard.8 Accordingly, we leave this question to the determination in the first instance by the District Court on remand, and emphasize that this opinion should not be construed as foreclosing an argument by the Government that some of the materials already in the record are in fact consistent with the limitations of Taylor and Shepard. Any such determination must be guided by the Supreme Court’s limitation of reference materials to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record of this information,” Shepard, 544 U.S. at 26—or, in other words, “conclusive records made or used in adjudicating guilt,” id. at 21. By contrast, reliance on materials akin to police reports and “documents submitted to lower courts even prior to charges” has already been explicitly proscribed by the Supreme Court. Id. at 21 23. Even though we do not reach the question of whether all of the materials relied upon by the District Court in this instance were impermissible, there is no doubt that at As discussed above, the Government chose instead to present arguments that Taylor and Shepard do not apply to the determination of whether predicate offenses were committed on separate occasions, and that Dantzler waived this argument by providing the District Court with some of these materials, both of which we have rejected here. 8 22 No. 13 2930 cr least some of those materials fall outside the limited set sanctioned by Taylor and Shepard, and therefore the District Court’s use thereof constitutes plain error. This error also affected Dantzler’s substantial rights. The District Court explicitly derived from these non Shepard approved materials the facts it used to determine that the two February 19, 2006 robberies were committed “on occasions different from one another,” for the purposes of the ACCA. Judge Garaufis stated at sentencing, “[i]f [Dantzler] had gone from car to car of the No. 6 train and robbed a bunch of people, all right, that I could consider [ ] one incident but he decided to travel on different subway lines at different times the same night and that’s really the problem is that [Rideout] seems to tie my hands.” Appellant’s App. 44 45. This factual determination in turn triggered the enhancement in Dantzler’s applicable Guidelines imprisonment range from 92 115 months to 168 210 months, as well as the 15 year (180 month) mandatory minimum sentence under the ACCA. Judge Garaufis acknowledged the severity of the enhanced ACCA sentence, noting “I’m not enthusiastic about this construction, all right? Personally, in the interest of justice. But . . . I’m compelled to follow Rideout . . . .” Id. at 46. Finally, the error affects the fairness, integrity, or public reputation of judicial proceedings within the meaning of the Supreme Court’s plain error jurisprudence. As the Fourth Circuit has held in a similar circumstance, “[s]uch improper factfinding as occurred here strikes at the core of our judicial system’s protections 23 No. 13 2930 cr for criminal defendants.” Boykin, 669 F.3d at 472. Holding otherwise would allow to stand a 15 year sentence—predicated on error—that far exceeds the 115 month maximum sentence that would otherwise have been recommended by the Guidelines. The error is not mitigated, as the Government contends, by Dantzler’s having invoked the very facts relied upon by the District Court in defendant’s submission to the Court in advance of sentencing. In United States v. Reyes, the PSR identified the defendant as a career offender under United States Sentencing Guidelines § 4B1.1 based upon its determination that he had several convictions “involving a crime of violence and a controlled substance offense.” 691 F.3d 453, 455 (2d Cir. 2012). The defendant did not object to any of the facts in the PSR, including its description of the conduct that resulted in his conviction for one of the predicate offenses; moreover, defense counsel in Reyes affirmatively represented at the sentencing hearing that the defense had “no objections to the facts or the Guidelines calculations” stated in the PSR. Id. at 456 (internal alterations omitted). In the absence of any objection, Reyes was sentenced in accordance with the enhancement for career offenders. Id. On appeal in Reyes, we were faced with the question of whether “the district court was [ ] entitled to rely on the PSR’s uncontested description of [defendant’s] pre arrest conduct that resulted in his conviction for battery of a law enforcement officer to determine whether the battery was a ‘crime of violence’” for sentencing purposes. Id. at 456. Relying on Shepard, we held that “a 24 No. 13 2930 cr sentencing court may not rely on a PSR’s description of a defendant’s pre arrest conduct that resulted in a prior conviction to determine that the prior offense constitutes a ‘crime of violence’ under U.S.S.G. § 4B1.2(a)(1),9 even where the defendant does not object to the PSR’s description,” and that doing so was plain error. Id. at 459 (emphasis supplied). We are persuaded that a similar holding applies here, even where Dantzler not only failed to object to the facts in the PSR, but supplemented them by providing the New York criminal complaints, and relied upon them in his sentencing argument. In Reyes, we reasoned that defendant’s failure to object did not cure the Government’s failure to submit the proper evidence, nor did it render the PSR’s description more reliable in establishing the requisite ACCA predicate. Id. at 458 60. The same is true here. The absence of an objection will not relieve the Government of its burden of proving through Taylor and Shepard approved sources that the ACCA enhancement applies. Accordingly, because there is no suggestion that the materials relied upon by the District Court at sentencing were of the type approved by Taylor or Shepard, it was plain error for the District Court to have relied upon them in making its determination that Dantzler’s two February 19, 2006 robbery convictions occurred “on occasions different from one another,” and we are thus required to Although Reyes involved an enhancement under the Sentencing Guidelines rather than the ACCA, its reliance on Shepard, Taylor, and Rosa, all ACCA cases, make it applicable to the instant case. 9 25 No. 13 2930 cr remand for resentencing. Upon remand, if the Government renews its request to the District Court that it apply the mandatory minimum sentence prescribed by the ACCA, it must submit materials consistent with Taylor and Shepard to demonstrate that Dantzler’s two robbery convictions were committed on separate occasions. CONCLUSION To summarize, we hold that: (1) In determining whether crimes were committed “on occasions different from one another” for purposes of applying the ACCA, a court is limited to examining only the types of materials approved by the Supreme Court in Taylor v. United States, 495 U.S. 575, 577 79 (1990), and Shepard v. United States, 544 U.S. 13, 16 (2005). (2) For cases in which the dates of the predicate offenses do not conclusively support a determination that they were committed “on occasions different from one another,” the sentencing court’s ability to impose the ACCA mandatory minimum will depend upon whether the Taylor and Shepard approved materials contain other facts necessary for such a decision. (3) In determining that ACCA predicate offenses were committed on separate occasions, it is plain error for the sentencing court to draw relevant facts from materials that were neither 26 No. 13 2930 cr condoned by the Court in Taylor or Shepard nor determined to be either derived from approved materials or analogs of approved materials. (4) Where the relevant facts described in a PSR were not derived from sources consistent with Taylor and Shepard, a sentencing court may not rely upon the PSR in determining whether crimes were committed “on occasions different from one another,” even where a defendant does not object to the PSR’s factual content about the ACCA predicate offenses, or relies upon such facts in his submissions and argument to the sentencing court. For the reasons set out above, we VACATE the sentence and REMAND to the District Court for resentencing in accordance with this opinion.