United States v. Thomas

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 23, 2009 Decided July 21, 2009

No. 07-3080

UNITED STATES OF AMERICA ,

APPELLANT /CROSS-APPELLEE

v.

ANTHONY THOMAS,

APPELLEE/CROSS-APPELLANT

Consolidated with No. 07-3085

Appeals from the United States District Court

for the District of Columbia

(No. 03cr00458-01)

SuzAnne C. Nyland, Assistant United States Attorney,

argued the cause for the appellant/cross-appellee. Jeffrey A.

Taylor, United States Attorney, and Roy W. McLeese III and

George P. Eliopoulos, Assistant United States Attorneys, were

on brief.

A. J. Kramer, Federal Public Defender, argued the cause for

the appellee/cross-appellant. Michelle M. Peterson, Assistant

Federal Public Defender, entered an appearance.

2

Before: GINSBURG , HENDERSON and KAVANAUGH , Circuit

Judges.1

Opinion for the Court filed by Circuit Judge HENDERSON .

Opinion concurring in part and concurring in the judgment

filed by Circuit Judge GINSBURG .

KAREN LE CRAFT HENDERSON , Circuit Judge: Appellant

and cross-appellee Anthony Thomas was convicted of one count

of unlawful possession of a firearm by a felon in violation of 18

U.S.C. § 922(g)(1). The district court sentenced Thomas to 188

months’ incarceration under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), which mandates a 15-year

minimum sentence for a felon in possession with three previous

convictions of qualifying offenses. In an earlier appeal, we

affirmed Thomas’s conviction but remanded for resentencing in

accordance with United States v. Booker, 543 U.S. 220 (2005).

The district court resentenced Thomas to 82 months, holding the

Government had not proved on remand that Thomas qualified

for sentencing under the ACCA. Thomas again appeals his

conviction and the Government appeals the court’s failure to

sentence Thomas under the ACCA. We affirm Thomas’s

conviction because he raises the same arguments as in his earlier

appeal and our decision in the first appeal is the law of the case.

We vacate the district court’s sentence on two alternative

grounds. First, because Thomas could have challenged the

ACCA determination in the first appeal—but did not—the law

of the case doctrine precluded the district court from revisiting

its determination at resentencing. Alternatively, we conclude

that the Government adequately established that Thomas

committed the requisite predicate offenses under the ACCA “on

occasions different from one another,” 18 U.S.C. § 924(e)(1), so

1

Circuit Judge Kavanaugh concurs in the opinion except for Part

II.B.1.

3

as to subject Thomas to the ACCA’s mandatory 15-year

sentence.

I.

On the morning of August 28, 2003, Deputy U.S. Marshals

arrested Thomas at his apartment in the District of Columbia for

violating parole. During a “protective sweep” of the apartment

following the arrest, the officers recovered a semi-automatic

pistol, an assault rifle, a shotgun and ammunition. Thomas was

subsequently indicted on one count of felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He moved to

suppress the guns and ammunition, as well as incriminating

statements he had made following his arrest, as fruits of an

unlawful search. The district court denied the motion and a jury

convicted Thomas. At sentencing, the court concluded that,

based on the Presentence Investigation Report (PSR), Thomas

was subject to a mandatory minimum sentence of 15 years under

the ACCA because he had “three previous convictions . . . for a

violent felony or a serious drug offense, or both, committed on

occasions different from one another,” 18 U.S.C. § 924(e)(1),

namely, two convictions in D.C. Superior Court for distributing

cocaine and attempted possession of cocaine with intent to

distribute (PWID) and one conviction in the United States

District Court for the Eastern District of Virginia for assault.

Accordingly, on May 18, 2004, the court sentenced Thomas to

188 months’ imprisonment under the ACCA and the U.S.

Sentencing Guidelines (Guidelines), to be followed by five years

of supervised release, and imposed a $100 special assessment.

Thomas appealed the conviction, asserting the guns and

ammunition should have been suppressed because the arresting

officers had insufficient reason to believe he was in the

apartment when they entered and because the protective sweep

was unnecessary and its scope too broad. See United States v.

Thomas, 429 F.3d 282, 285-88 (D.C. Cir. 2005). We rejected

these arguments, holding that “the officers’ entry into Thomas’

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apartment was in all respects lawful” and that “the search of

Thomas’ bedroom was a lawful ‘protective sweep.’ ” Id. at 286,

288. Thomas also appealed his sentence on the ground the

district court improperly treated the Guidelines as mandatory

rather than advisory. See id. at 288. We agreed and vacated his

sentence, remanding “for resentencing in accordance with . . .

Booker.” United States v. Thomas, 179 Fed. App’x 60, 60 (D.C.

Cir. 2006).

On remand, the district court rejected the Government’s

assertion that the law of the case doctrine prevented it from

reconsidering whether Thomas was an armed career criminal

subject to the ACCA, citing two grounds. First, the court

concluded that our “remand under Booker permits—indeed,

requires—reconsideration” of both the court’s “reliance on the

PSR alone to find . . . that [Thomas] qualified as an Armed

Career Criminal” and “sentencing under a mandatory Guidelines

system.” Sentencing Memorandum, United States v. Thomas,

Cr. No. 03-458, at 4 (D.D.C. June 25, 2007) (Sentencing

Memorandum) (Gov’t App. 63). Second, the court found that

the remand fell within one of the “ ‘three narrow exceptions to

the law-of-the-case doctrine,’ ” namely, when “ ‘there is an

intervening change in the controlling law.’ ” Id. (quoting United

States v. Patterson, 194 Fed. App’x 687, 690 (11th Cir. 2006)).

In the court’s view, the United States Supreme Court had

effected such a change in Shepard v. United States, 544 U.S. 13

(2005). Accordingly, the court revisited its sentence and

determined that, contrary to its previous ruling, Thomas was not

an armed career criminal because the government had not

offered competent evidence to establish that the two D.C.

predicate drug convictions were “committed on occasions

different from one another,” as the ACCA requires, 18 U.S.C.

§ 924(e)(1). In particular, the court determined that under

Shepard, the indictments charging the two offenses, which

identified their dates as, respectively, April 17, 1991 and

September 18, 1991, did “not necessarily establish that the dates

5

were found by the jury or admitted to by Defendant.”

Sentencing Memorandum at 10 (Gov’t App. 69). The court then

sentenced Thomas to 82 months’ imprisonment.

Thomas appealed his conviction, again challenging the

denial of his suppression motion, and the Government appealed

the sentence, contesting the district court’s decision not to

sentence Thomas under the ACCA.

II.

We address separately Thomas’s and the Government’s

appeals.

A. Thomas’s Appeal

Thomas advances the same arguments for reversing his

conviction that he did in his first appeal, again contending the

district court erred in denying his suppression motion. His

appeal is therefore barred by the law of the case doctrine, which

holds that “ ‘[w]hen there are multiple appeals taken in the

course of a single piece of litigation, . . . decisions rendered on

the first appeal should not be revisited on later trips to the

appellate court.’ ” LaShawn A. v. Barry, 87 F.3d 1389, 1393

(D.C. Cir. 1996) (en banc) (quoting Crocker v. Piedmont

Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir.), cert. denied, 516

U.S. 865 (1995)). Under the doctrine, we will not “reconsider

issues already decided ‘in the absence of extraordinary

circumstances such as where the initial decision was “clearly

erroneous and would work a manifest injustice.” ’ ” Id. (quoting

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817

(1988) (quoting Arizona v. California, 460 U.S. 605, 618 n.8

(1983))). Thomas asserts we should revisit our decision

disposing of his first appeal because it “was clearly erroneous on

each issue.” Thomas Br. at 22. We see no error, however—

much less clear error—to justify disturbing our earlier decision.

As we held in Thomas’s first appeal, the district court correctly

concluded that the officers were entitled to enter Thomas’s

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apartment to serve the arrest warrant and that they discovered

the contraband in the course of a permissible protective sweep

after his arrest. We therefore treat our previous decision as the

law of the case.

B. Government’s Appeal

The Government asserts the district court erred in refusing

to sentence Thomas as an armed career criminal. We agree and

vacate the district court’s sentence on each of two, alternative

grounds.

1.

First, on remand the district court was bound by its previous

unappealed ACCA determination as the law of the case, under

which “the same issue presented a second time in the same case

in the same court should lead to the same result.” LaShawn A.,

87 F.3d at 1393 (emphasis in original). Thus, a “ ‘legal decision

made at one stage of litigation, unchallenged in a subsequent

appeal when the opportunity to do so existed, [governs] future

stages of the same litigation, and the parties are deemed to have

waived the right to challenge that decision at a later time.’ ”

Crocker, 49 F.3d at 739 (quoting Williamsburg Wax Museum,

Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir.

1987)); see also United States v. Whren, 111 F.3d 956, 959-60

(D.C. Cir. 1997) (adopting “waiver approach” that “upon a

resentencing occasioned by a remand, unless the court of

appeals expressly directs otherwise, the district court may

consider only such new arguments or new facts as are made

newly relevant by the court of appeals’ decision—whether by

the reasoning or by the result”). Because Thomas failed in his

first appeal to challenge the district court’s determination that he

should be sentenced under the ACCA, the decision to sentence

him thereunder is the law of the case binding on remand. It is

for this reason that we remanded only “for resentencing in

accordance with United States v. Booker, 543 U.S. 220

7

(2005)”—that is, to determine whether “the sentence would

have been lower had the district court not applied the Sentencing

Guidelines as though they were mandatory,” as the record

suggested. Remand Judgment, 179 Fed. App’x at 60. We did

not, as the district court inferred, remand for the court to

reconsider its reliance on the PSR findings in sentencing

Thomas under the ACCA. See Sentencing Memorandum at 4

(Gov’t App. 63). Nor was there an intervening change in the

law between the first sentencing and the second to disturb the

binding effect of the former as the law of the case. See Crocker,

49 F.3d at 740 (“While final judgments normally may not be

re-examined merely because of an intervening change in the

law, such a change will support a departure from the previously

established law of the case.” (citing Women’s Equity Action

League v. Cavazos, 906 F.2d 742, 752 n.14 (D.C. Cir.1990)))

(internal citations omitted) (emphasis in original). The district

court believed the Supreme Court’s decision in Shepard

represented such a change in the controlling law from the

Court’s earlier decision in Taylor v. United States, 495 U.S. 575

(1990).

In Taylor, the Court addressed when a prior

“burglary”—one of the “violent felon[ies]” identified in section

924(e)(2)(B)—qualifies as one of the three required predicate

offenses triggering the ACCA’s mandatory minimum sentence.

The Court first determined that the Congress used “burglary” in

“the generic sense,” that is, as containing the same elements that

are required under most states’ criminal codes. 495 U.S. at 598.2

The Court next considered whether the sentencing court may

look beyond the statutory definition of a prior offense and

consider other evidence of the particular defendant’s prior

2

These elements are: “an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a

crime.” Taylor, 495 U.S. at 598.

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crime. Id. at 600. Rejecting an approach that looks only to the

statutory definitions, the Court concluded that in a particular

case, a prior offense such as burglary qualifies under section

924(e) “if either its statutory definition substantially corresponds

to ‘generic’ burglary, or the charging paper and jury

instructions actually required the jury to find all the elements of

generic burglary in order to convict the defendant.” Id. at 602

(emphasis added).

In Shepard, the Court applied Taylor’s modified categorical

approach to a guilty plea and rejected the Government’s attempt

to rely on police reports and criminal complaint applications to

prove the defendant’s predicate offenses constituted generic

burglary. Adapting Taylor’s standard to the plea context, the

Court held that the determination whether a guilty plea to an

offense defined in a “nongeneric” statute necessarily admits to

the elements of the generic offense “is limited 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 to some

comparable judicial record of this information.” 544 U.S. at 26

(emphasis added). Whether or not Shepard’s application of

Taylor may be characterized as a “change” from Taylor itself,

Shepard did not effect a change in the controlling law in our

Circuit at the time of Thomas’s sentencing.

When the district court sentenced Thomas, on May 18,

2004, our Circuit law already provided authority for Thomas to

challenge the district court’s making ACCA findings based on

the PSR. Our Circuit law was then clear that the Government

bears the responsibility “ ‘to produce such documents as are

necessary’ ” to establish that a prior offense qualifies as a

predicate for sentence enhancement. United States v.

Richardson, 161 F.3d 728, 738 (D.C. Cir. 1998) (quoting United

States v. Hill, 131 F.3d 1056, 1065 n.10 (D.C. Cir. 1997)). In

Richardson, we identified as “legitimate and reliable” such

9

documents as “a charging document, a plea agreement, or a

previous presentence investigation report adopted by [the

previous sentencing court].” Id. We expressly rejected the

sentencing court’s reliance, however, on the “potentially

unreliable second-hand information” contained in the

Richardson PSR. Id. at 737-38 (rejecting use of PSR to

establish “crime of violence” for enhancement under U.S.S.G.

§ 2K2.1(a)(4)(A)); see also Hill, 131 F.3d at 1062 (“The court

may consider only the statutory definitions of the offenses of

which the defendant has been convicted; . . . . Alternatively, the

sentencing court can consider the charging documents and jury

instructions.” (citing Taylor, 495 U.S. at 600-02)). Because

Thomas could have invoked Richardson to challenge the district

court’s reliance on the PSR, the holding in Shepard did not

change the controlling law. Accordingly, when Thomas failed

to so object either at sentencing or on the appeal thereof, the

district court’s original ACCA determination became the law of

the case.

2.

Second, even assuming it was permitted to revisit Thomas’s

ACCA status, the district court erred in concluding the

Government presented insufficient evidence that the two

predicate drug offenses were “committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1). The two indictments

offered in the second sentencing satisfied the evidentiary

requirements set out in Taylor and Shepard.

In both Taylor and Shepard, the Court authorized a

sentencing judge to rely on the “charging paper” or “charging

document” and this is precisely what the Government produced

as evidence Thomas committed the two drug offenses on

different occasions. See also United States v. de Jesus Ventura,

565 F.3d 870, 874-75 (D.C. Cir. 2009) (under Shepard, “the

charging document, the plea agreement, and the transcript of the

plea colloquy . . . offer the same certainty about the conviction

10

as the hypothetical jury instructions discussed in Taylor”). The

Government presented the indictments from the two drug

offense prosecutions, each of which set out the date of the

particular charged offense of conviction: April 17, 1991 for

distributing cocaine and September 18, 1991 for attempted

PWID. These charging indictments sufficed under Taylor and

Shepard to establish the dates the two previous drug offenses

were committed—and thus “necessarily” establish the offenses

were committed on occasions different from one another. Cf. In

re Sealed Case, 548 F.3d 1085, 1089-93 (D.C. Cir. 2008)

(ACCA standard applied to career offender provision and

criminal information examined to determine if jury convicted

defendant of “crime of violence”). Further, that Thomas was

convicted of two separate drug distribution offenses occurring

fully five months apart manifests the offenses were “separate

and distinct criminal episodes” and therefore were “committed

on occasions different from one another,” United States v.

Jackson, 113 F.3d 249, 253 (D.C. Cir. 1997) (internal quotation

and alteration omitted).3 See United States v. Johnson, 130 F.3d

3

At oral argument, Thomas narrowly parsed Shepard’s language

to argue that, notwithstanding the specific separate dates recited in the

indictments, it is “possible” that Thomas in fact pleaded to attempted

PWID based on conduct that occurred on April 17, 1991, the same

date as his distribution offense, and therefore he did not “necessarily

admit[]” to committing a second offense on a different occasion. See

Shepard, 544 U.S. at 24. The Supreme Court, however, has

sanctioned reliance on “charging” documents such as an indictment

with the apparent presumption that they accurately reflect the facts of

a conviction or plea. See id., 544 U.S. at 16 (“We hold . . . that a later

court determining the character of an admitted burglary 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 20-21 (“details” of “charging document” can support generic

nature of predicate felony in jury case or plea). And in this case, there

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1420, 1430-31 (10th Cir. 1997) (“[D]rug offenses committed at

‘distinct, different times’ will be treated as separate predicate

offenses for purposes of § 924(e)(1) ” (quoting United States v.

Maxey, 989 F.2d 303, 307 (9th Cir. 1993))); see also United

States v. Kelley, 981 F.2d 1464, 1473-74 (5th Cir. 1993) (two

cocaine deliveries fourteen days apart found “separate criminal

transactions”); United States v. Samuels, 970 F.2d 1312, 1315

(4th Cir. 1992) (same with two drug offenses on consecutive

days); United States v. Roach, 958 F.2d 679, 683-84 (6th Cir.

1992) (same with three drug offenses within fifteen days);

is no reason to suspect otherwise. At his first sentencing, Thomas did

not dispute that the two drug offenses were committed on the dates

specified in the indictment. In fact, at the 2004 sentencing his counsel

admitted as much when he stated: “The two cases are . . . an

attempt[ed] possession with intent to distribute and a distribution that

are separated by less than a year, and in the exact same area

according to the information that’s provided in the presentence report,

I think even the same block; involves the same drug, and the same

societal victim.” Tr. of Sentence Hearing, United States v. Thomas,

Cr. No. 03-458, at 4 (May 18, 2004) (Thomas App. at 143) (emphasis

added). Notwithstanding Thomas recasts the highlighted language as

“simply a recitation of information in the PSR,” Reply Br. at 33—it is

plainly an acknowledgment that Thomas committed the crimes on

separate occasions, as required under the ACCA. His counsel’s

subsequent reference to the presentence report was offered to support

his additional factual assertion that the crimes were committed “in the

exact same area,” a circumstance essential to his argument that the two

crimes “should be considered related and considered as one conviction

rather than two.” Tr. of Sentence Hearing at 4 (Thomas App. at 143).

Judge Ginsburg is wrong, then, when he states that “so far as the

record reveals, the defendant never admitted the dates of the offenses.”

Concurring Op. at 2.

12

United States v. McDile, 914 F.2d 1059, 1061-62 (8th Cir. 1990)

(same with three drug sales within eight days).4

For the foregoing reasons, we affirm Thomas’s judgment of

conviction but vacate his sentence and remand for the district

court to resentence him as an armed career criminal.

So ordered.

4

Taylor based its evidentiary limitation on congressional intent.

Between Taylor and Shepard, the Supreme Court concluded that the

Sixth Amendment requires “that any fact . . . sufficient to raise the

limit of the possible federal sentence must be found by a jury”—not

a judge—“other than [the fact of] a prior conviction.” Shepard, 544

U.S. at 24 (citing Jones v. United States, 526 U.S. 227, 243, n.6

(1999); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

Notwithstanding the Supreme Court’s express exception for proving

the fact of a prior conviction (which Shepard did not disavow),

Thomas contends that “it violates the Sixth Amendment for a

sentencing court to make a finding under ACCA that prior offenses

were committed on occasions different from one another.” Reply Br.

at 35 (initial capitals altered). We agree with the many other circuits

that have rejected that argument as inconsistent with current Supreme

Court precedent. See, e.g., United States v. Thompson, 421 F.3d 278,

281, 284-87 (4th Cir. 2005); United States v. Jurbala, 198 Fed. App’x

236, 237 (3d Cir. 2006); United States v. White, 465 F.3d 250, 254

(5th Cir. 2006) (per curiam); United States v. Wilder, 161 Fed. App’x

545, 552 (6th Cir. 2006); United States v. Browning, 436 F.3d 780,

780-81 (7th Cir. 2006); United States v. Harris, 447 F.3d 1300, 1303-

05 (10th Cir. 2006); United States v. Santiago, 268 F.3d 151, 154-57

(2d Cir. 2001).

GINSBURG, Circuit Judge, concurring in part: I concur in

the judgment and in the opinion for the court except with

respect to the alternative holding in Part II.B.2 that the

indictments constitute sufficient evidence that Thomas’s two

drug offenses were committed on separate occasions. In

reaching that issue, Judge HENDERSON ∗ has disregarded the

“well-established principle ... that normally the [c]ourt will

not decide a constitutional question if there is some other

ground upon which to dispose of the case.” Nw. Austin Mun.

Utility Dist. No. One v. Holder, No. 08-322, 2009 WL

1738645, at *9 (U.S. June 22, 2009) (quoting Escambia

County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam));

see also In re Sealed Case, 829 F.2d 50, 55 (D.C. Cir. 1987).

Having held the law of the case precluded the district court

from reconsidering its determination that Thomas qualified

for sentencing under the ACCA, the court need not — and

therefore should not — resolve the constitutional question

whether the Sixth Amendment bars a sentencing judge from

making a factual finding — based solely upon the dates listed

in the indictments — that the relevant offenses were

committed on separate occasions.

The question whether the sentencing judge may rely

solely upon an indictment to determine the date of a prior

offense without running afoul of the Sixth Amendment or of

the teaching of Shepard v. United States, 544 U.S. 13 (2005),

is more difficult than the court lets on. Under the Sixth

Amendment a judge may find only “the fact of a prior

conviction,” Apprendi v. New Jersey, 530 U.S. 466, 490

(2000); the defendant is entitled to a jury finding for any “fact

about a prior conviction,” Shepard, 544 U.S. at 25 (plurality

opinion) (emphases added). Specifically in order to ensure

∗

Because Judge KAVANAUGH does not join the court’s holding that

the law of the case precluded the district court’s new ACCA

determination, only Judge HENDERSON reaches the constitutional

question unnecessarily.

2

that a sentencing judge does not make a finding under the

ACCA that infringes upon the defendant’s Sixth Amendment

right to a jury, the Court in Shepard “adhere[d] to the

demanding requirement that any sentence under the ACCA

rest on a showing that a prior conviction ‘necessarily’

involved (and a prior plea necessarily admitted) facts equating

to” that finding. Id. at 24.

Shepard does provide that a judge asked to sentence a

defendant under the ACCA may consult the charging

documents from the defendant’s prior convictions, id. at 16,

but only in order to determine whether those convictions

necessarily required a finding relevant to ACCA status —

here, a finding with respect to the date of the offense. See

United States v. De Jesus Ventura, 565 F.3d 870, 874–75

(D.C. Cir. 2009) (describing Shepard inquiry as “look[ing] to

the charging document ... to determine whether the defendant

‘necessarily admitted’” the ACCA-qualifying facts). In this

case it is far from clear the indictments establish that

Thomas’s convictions required a finding with respect to the

date of each offense; as far as this record shows, neither

Thomas’s plea to one offense nor the jury’s judgment of

conviction on the other entailed a finding as to whether the

offense occurred on the date charged. Today the court

nonetheless unnecessarily concludes a conviction based upon

an indictment that specifies the date on which — or, more

accurately, “on or about” which — the charged offense took

place “necessarily” establishes the date when the offense

occurred, Ct. Op. at 10, even if the date was not material to

the question of guilt and even if, so far as the record reveals,

the defendant never admitted the dates of the offenses. The

court’s inference that the date was “necessarily” established

by the judgment would not pass muster even in a civil

context. See United States v. Andrews, 479 F.3d 894, 901

(D.C. Cir. 2007) (Williams, J., concurring) (analogizing the

3

Shepard inquiry to issue preclusion and noting “a focus on

preclusion ... helps clarify which facts may appropriately be

drawn from the charging documents and jury instructions”).