United States v. Wells

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0008p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee/ -

UNITED STATES OF AMERICA,

Cross-Appellant, -

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Nos. 05-6263/6514

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v. >

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Defendant-Appellant/ -

ALMON D. WELLS,

Cross-Appellee. -

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Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 04-00020—R. Leon Jordan, District Judge.

Argued: November 28, 2006

Decided and Filed: January 9, 2007

Before: DAUGHTREY and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*

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COUNSEL

ARGUED: Kim A. Tollison, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for

Appellant. Steve H. Cook, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee,

for Appellee. ON BRIEF: Kim A. Tollison, FEDERAL DEFENDER SERVICES, Knoxville,

Tennessee, for Appellant. Steve H. Cook, ASSISTANT UNITED STATES ATTORNEY,

Knoxville, Tennessee, for Appellee.

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. The appeal in this case presents a

question of first impression in this circuit: whether for purposes of recidivist sentencing under the

Armed Career Criminal Act, 18 U.S.C. § 924(e), a prior adjudication of juvenile delinquency is

subject to characterization under the “categorical approach” mandated for the review of prior adult

convictions by Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States,

544 U.S. 13 (2005). We hold that it is.

*

The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting

by designation.

1

Nos. 05-6263/6514 United States v. Wells Page 2

The defendant, Almon Wells, pleaded guilty to one charge of being a felon in possession of

ammunition and to a second charge of being a felon in possession of a firearm, based on his arrest

in two separate shooting incidents. After the district court sentenced him to consecutive prison

terms of 120 1months and 80 months, he appealed, contending that the 200-month sentence is

unreasonable. The United States also filed an appeal and now contends that the district judge erred

both in designating the date on which Wells’s sentence was to begin and in failing to find the

defendant to be an armed career criminal for sentencing purposes.

We conclude that the defendant’s sentence was reasonable and that the district judge did not

err in concluding that the defendant did not have the three necessary predicate convictions to justify

sentencing under the Armed Career Criminal Act. We therefore sustain the 200-month sentence.

However, we also conclude that the district court erred in designating a commencement date for

Wells’s sentence and find it necessary to order a remand for the limited purpose of deleting from the

sentencing order the statement “This sentence is effective as of August 11, 2005.”

FACTUAL AND PROCEDURAL BACKGROUND

At Wells’s guilty plea hearing, the government established on the record that the defendant

had pulled a gun during a fight at a Knoxville club on April 27, 2003, and that he had fired

numerous shots from a semiautomatic pistol at a Knoxville police officer on January 15, 2004, when

that officer approached the defendant in a city housing project. The prosecutor also established that

the weapons and ammunition involved in the two incidents were manufactured outside Tennessee

and that Wells had, in 1999, been convicted of prior felony offenses. Although the defense would

“not agree with those facts,” Wells’s counsel did state in open court, “We will agree that on the first

date we possessed the ammunition. We will admit that on the second date we possessed the weapon.

We do admit we were [sic] a convicted felon, and we do admit the interstate nexus.”

Based upon those representations, the district court accepted Wells’s guilty plea on April 22,

2004. The sentencing hearing was not held, however, until August 11, 2005, well after the issuance

of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). At that time, the

district judge recognized that application of the sentencing guidelines to this matter would yield a

range of 140-175 months. Nevertheless, in light of “the seriousness of the offense,” “to protect the

public from further crimes of this defendant,” and to “deter others from engaging in this type of life-

threatening behavior,” the court imposed consecutive sentences of 120 months on count one of the

indictment and 80 months on count two. The district judge further denied the government’s request

to sentence Wells as an armed career criminal and granted the defendant’s request to declare the date

of sentencing as the commencement date of Wells’s federal prison term. Both Wells and the

government appealed from portions of the district court’s orders.

DISCUSSION

The Defendant’s Appeal

After Booker, we review sentences to determine whether they are “reasonable,” both

procedurally and substantively. See United States v. Collington, 461 F.3d 805, 807-08 (6th Cir.

1

The defendant also challenged the sentence as a violation of the Ex Post Facto Clause. Because the district

court imposed sentence in compliance with the Supreme Court’s remedial opinion in United States v. Booker, 543 U.S.

220 (2005), Wells argued that he was pleading to offenses that occurred prior to the release of that opinion and would

have received a lesser punishment under the pre-Booker mandatory sentencing scheme than under post-Booker

discretionary sentencing. At oral argument, counsel conceded that recent Sixth Circuit case law holds to the contrary.

See, e.g., United States v. Barton, 455 F.3d 649, 652-57 (6th Cir.) cert. denied, ___ S.Ct. ___, 2006 WL 3192536 (U.S.

Dec. 4, 2006) (No. 06-7576); United States v. Shepherd, 453 F.3d 702, 705-06 (6th Cir. 2006). Recognizing that we are

bound by those prior decisions, counsel wisely abandoned this issue.

Nos. 05-6263/6514 United States v. Wells Page 3

2006). Wells does not argue that the sentencing process was unreasonable in this matter; instead,

he contends that a sentence within the guideline range of 140-175 months would have been

sufficient to satisfy the statutory sentencing considerations. Specifically, he argues that the 200-

month sentence was substantively unreasonable because the district court failed to recognize that

the reasons given for departing upward from the guideline range were already taken into

consideration by the various guideline factors that had been utilized to calculate the guidelines

range. As a result, he argues, the district court gave “an unreasonable amount of weight to” certain

sentencing factors. See United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005) (footnote

omitted), cert. denied, 126 S.Ct. 1110 ( 2006).

In imposing punishment upon Wells, the district judge stated:

First, considering the nature and circumstances of the offenses charged, I make the

following findings: the defendant has been charged with and has pled guilty to two

violations of 18 U.S.C. section 922(g)(1). In this case, the facts and circumstances

giving rise to these two charges are some of the most egregious in my experience.

I find that the government has satisfied its burden of proving by a preponderance

of the evidence that the firearm possessed by Mr. Wells was stolen. The firearm

was reported stolen by Jimmy Henson in 2002, as evidenced by the police report

that’s been filed in this case.

When Officer Willis attempted to stop Mr. Wells after receiving a report of shots

fired, Mr. Wells, instead of responding appropriately or instead of running away and

discarding the gun, stopped, he assumed a firing position, and using the stolen

firearm, fired four or five times at Officer Willis and then engaged in a gun fight

with Officer Mattina.

Based on these facts, I find by a preponderance of the evidence that the stolen

firearm was used in connection with another felony, the attempted first degree

murder of Officer Willis. What Mr. Wells did was clearly intentional and

premeditated. He had an opportunity to flee, he had an opportunity to throw away

the firearm; he turned, he pointed the gun at Officer Willis and fired at him.

The proof also shows that Officer Willis was in uniform, as were the other officers,

and that he arrived at the scene in his marked police cruiser. . . .

Concerning the history and characteristics of Mr. Wells, I find that he has a

noteworthy criminal history. He is 25 years old, but he has already earned a

criminal history category of six involving much violence. He clearly needs anger

management treatment. I’m going to make that a recommendation to the Bureau of

Prisons and also a condition of his supervised release.

I further find that a sentence of 200 months is necessary to reflect the seriousness

of the offense and to protect the public from further crimes of this defendant. I

would also like to think that this sentence will deter others from engaging in this

type of life-threatening behavior . . . .

This term reflects an enhancement from the upper end of the guideline range. It is

felt the sentence will afford adequate deterrence and will provide just punishment.

In reviewing this sentence to determine whether it is substantively reasonable, we start with

a “presumption of reasonableness” “[w]hen the district court issues a within-guidelines sentence.”

United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), pet. for cert. filed, (U.S. Nov. 13, 2006)

Nos. 05-6263/6514 United States v. Wells Page 4

(No. 06-7784). Of course, this “does not mean that a sentence outside of the Guidelines range –

either higher or lower – is presumptively unreasonable. It is not.” United States v. Foreman, 436

F.3d 638, 644, (6th Cir. 2006). But, “when the district court independently chooses to deviate from

the advisory guidelines range (whether above or below it), we apply a form of proportionality

review: ‘the farther the judge’s sentence departs from the guidelines sentence . . . the more

compelling the justification based on factors in section 3553(a)’ must be.” Davis, 458 F.3d at 496.

In this case, the district judge imposed an effective sentence that required the defendant to

serve less than 17 years for shooting and wounding one individual in an after-hours club, and for

repeatedly firing another weapon at point blank range toward a uniformed police officer. Such

egregious actions, coupled with the lengthy history of escalating violent behavior by the defendant

in his relatively short life,2 highlight the need for the sentence of incarceration to reflect the

seriousness of the offense and to protect the public from further crimes of this defendant. See

18 U.S.C. §§ 3553(a)(2)(A) and (C). In light of all relevant circumstances, therefore, the

sentencing decision by the district judge involves a relatively minor deviation from the applicable

guidelines range and is both justified and reasonable.

The Government’s Appeal

The government’s first issue on cross-appeal concerns the wording of the district court’s

final judgment. At the conclusion of the sentencing hearing, defense counsel asked the district

judge “to give a start date for the sentence . . . because Mr. Wells is here on a writ [of habeas

corpus ad prosequendum]. If you don’t give a start date, he’s going to go back to the state. He’ll

do his state time, and then he’ll do whatever time he has to do on this.” The district judge acceded

to the defendant’s request, a ruling that the United States now asserts was in error.

As the prosecution argued before the district court, however, 18 U.S.C. § 3585(a) clearly

provides that “[a] sentence to a term of imprisonment commences on the date the defendant is

received in custody awaiting transportation to, or arrives voluntarily to commence service of

sentence at, the official detention facility at which the sentence is to be served.” Because the

Bureau of Prisons is usually the governmental entity that can confirm that a defendant has been

taken into “custody awaiting transportation to” a federal detention facility, courts have stated that

“after a defendant is sentenced, it falls to BOP, not the district judge, to determine when a sentence

is deemed to ‘commence.’” United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997). Accord

Doan v. LaManna, No. 01-3013, 2001 WL 1299260, at *2 (6th Cir. Aug. 10, 2001) (“[T]he BOP

has the authority to determine when a sentence commences.”).

In this case, Wells was brought before the district court from state custody, a federal

sentence was imposed, and the defendant was then returned to the custody of the State of

Tennessee. Consequently, because Wells was not in custody awaiting transport to a federal prison

on the date his sentence was imposed, the district judge had no statutory authority to order that the

defendant’s federal sentence should “commence” on that date. This matter must, therefore, be

remanded to the district court so that the language indicating that Wells’s federal sentence

commenced on August 11, 2005, can be stricken.

2

The presentence report prepared in this matter lists, among other offenses, the following violent actions by

defendant Wells: 1) attempted robbery of a pizza delivery person when Wells was only 13 years old; 2) attempting to

punch and kick a police officer when apprehended for receiving and concealing a stolen vehicle when Wells was 15

years old; 3) shooting at a victim in a parking lot when the defendant was 16 years old; 4) attempting to strike a police

officer with a vehicle when Wells was 17 years old; 5) shooting at four individuals on the same day when the defendant

was 18 years old; 6) firing the pistol inside the after-hours club; 7) attempted murder of Officer Willis; and 8) repeatedly

jumping from a table onto two other inmates lying on the floor during an altercation while Wells was incarcerated in a

Tennessee correctional facility.

Nos. 05-6263/6514 United States v. Wells Page 5

Next, in the most significant issue raised by this appeal, the government contends that the

district judge erred in refusing to sentence Wells pursuant to the armed career criminal provisions

of 18 U.S.C. § 924(e). In relevant part, that statutory subsection provides:

(1) In the case of a person who violates [the felon-in-possession provisions of the

Code] and has three previous convictions by any court . . . for a violent felony . . .,

committed on occasions different from one another, such person shall be fined

under this title and imprisoned not less than fifteen years . . . .

(2)(B) [T]he 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 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 . . . .

Both the United States and Wells agree that the defendant has previously been convicted

of at least two offenses that would qualify as “violent felonies.” First, Wells conceded that he was

found delinquent at age 16 after he “shot at Torriand L. Thomas in the parking lot at 300 Mulvany,

Knoxville, Tennessee.” Such an aggravated assault conviction clearly would have resulted in

incarceration in excess of one year had the defendant been convicted of the offense as an adult. See

TENN. CODE ANN. §§ 39-13-102(a)(1) (defining aggravated assault to be an intentional assault using

a deadly weapon); 39-13-102(d)(1) (classifying aggravated assault as a Class C felony); 40-35-

111(b)(3) (authorizing incarceration of 3-15 years upon conviction for a Class C felony).

Furthermore, Wells’s admission of guilt in that matter included his recognition that a firearm was

used in the crime and that physical force was used against the person of another.

Second, Wells also admitted before the district court his guilt of four drive-by shootings

committed on a single day in 1998, when the defendant was 18 years old. Wells was sentenced to

concurrent five-year prison terms for each of those four offenses,3 crimes that clearly involved use

of a firearm and use of physical force against other individuals.

The government insists that two other prior adjudications of juvenile delinquency against

Wells should also be considered “violent felonies” so as to justify sentencing the defendant as an

armed career criminal. In advancing that argument, the United States references Wells’s 1993

adjudication of delinquency based upon a plea to the charge of attempted robbery and a 1997

adjudication based upon a charge of aggravated assault. Because the 1993 attempted robbery of

a pizza delivery person allegedly involved “pointing a handgun” at the victim, and because the

1997 aggravated assault petition alleged that Wells “intentionally attempted to strike Officer C.J.

Sramek of the Knoxville Police Department with the vehicle [the defendant] was driving during

an alleged robbery and shooting,” the government asserts that both acts “involv[ed] the use or

carrying of a firearm” so as to bring the activities within the parameters of the Armed Career

Criminal Act.

In denying the requested sentencing enhancement, the district court evaluated only the 1993

attempted robbery adjudication and applied the “categorical approach” mandated in Taylor v.

United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). Doing so,

3

The government concedes that the four convictions were properly considered to be only one conviction for

purposes of 18 U.S.C. § 924(e) when the defendant fired multiple gunshots into a crowd.

Nos. 05-6263/6514 United States v. Wells Page 6

the court found that the adjudication “did not necessarily involve ‘the use or carrying of a firearm,

knife, or destructive device,’ and cannot be used as [a] predicate offense to enhance the defendant’s

status to armed career criminal.”

In Taylor, the Supreme Court addressed the question of “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.” Taylor, 495 U.S. at

600. Relying upon the language of § 924(e) itself, the legislative history surrounding the statute,

and “the practical difficulties and potential unfairness of a factual approach,”4 id. at 601, the Court

found persuasive those lower court cases holding “that § 924(e) mandates a formal categorical

approach, looking only to the statutory definitions of the prior offenses, and not to the particular

facts underlying those convictions.” Id. at 600. In a narrow range of cases, however, the Court

recognized that this “categorical approach” would allow a sentencing court to examine “the

charging paper and jury instructions” to determine whether all the elements of the alleged crime

were, in fact, committed. Id. at 602.

For example, in a State whose burglary statutes include entry of an automobile as

well as a building [thus encompassing crimes not included within the generic

definition of “burglary”], if the indictment or information and jury instructions show

that the defendant was charged only with a burglary of a building, and that the jury

necessarily had to find an entry of a building to convict, then the Government

should be allowed to use the conviction for enhancement.

Id.

In Shepard, the Court was asked to expand upon the ruling in Taylor and consider “whether

a sentencing court can look to police reports or complaint applications to determine whether an

earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary.”

Shepard, 544 U.S. at 16. Declining to do so, the majority of the Court clearly and explicitly stated

that sentencing courts evaluating the nature of prior convictions for purposes of applying the armed

career criminal statute are “generally limited to examining the statutory definition, charging

4

In addressing these “practical difficulties,” the Court explained:

In all cases where the Government alleges that the defendant’s actual conduct would fit the generic

definition of burglary, the trial court would have to determine what that conduct was. In some cases,

the indictment or other charging paper might reveal the theory or theories of the case presented to the

jury. In other cases, however, only the Government’s actual proof at trial would indicate whether the

defendant’s conduct constituted generic burglary. Would the Government be permitted to introduce

the trial transcript before the sentencing court, or if no transcript is available, present the testimony

of witnesses? Could the defense present witnesses of its own and argue that the jury might have

returned a guilty verdict on some theory that did not require a finding that the defendant committed

generic burglary? If the sentencing court were to conclude, from its own review of the record, that

the defendant actually committed a generic burglary, could the defendant challenge this conclusion

as abridging his right to a jury trial? Also, in cases where the defendant pleaded guilty, there often

is no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty

plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose

a sentence enhancement as if the defendant had pleaded guilty to burglary.

Taylor, 495 U.S. at 601-02.

Nos. 05-6263/6514 United States v. Wells Page 7

document, written plea agreement, transcript of plea 5colloquy, and any explicit factual finding by

the trial judge to which the defendant assented.” Id.

At issue in this appeal is not an attempt to classify an adult conviction as a predicate offense

for armed career criminal purposes, but rather a juvenile adjudication. The government contends

that such juvenile adjudications should be treated differently and should not be subject to the

Taylor-Shepard categorical approach, even though acts of juvenile delinquency must still have “as

an element” the use or threatened use of physical force or present a serious potential risk of

physical injury to another, 18 U.S.C. §§ 924(e)(2)(B)(i) and (ii), in order to be considered

predicates for sentence enhancements. The government notes, however, that qualifying delinquent

acts must additionally “involv[e] the use or carrying of a firearm, knife, or destructive device.”

Because such “use” or “carrying” is not an element of the charged offense, charging instruments

might never mention the presence of such weapons.

Additional difficulties with the application of the categorical approach to juvenile

adjudications were recognized by a sister circuit in United States v. Richardson, 313 F.3d 121 (3d

Cir. 2002). In that case, the court noted:

While the categorical approach prescribed by Taylor is simply stated and relatively

easily applied when considering a defendant’s prior adult convictions, it can become

more difficult when a court must determine whether a juvenile adjudication comes

within the [Armed Career Criminal Act]. For one thing, although the categorical

approach prohibits factual determinations concerning a defendant’s prior

convictions, an “act of juvenile delinquency” introduces an additional wrinkle, for

it will only count as a violent felony if the offense involved “the use or carrying of

a firearm, knife, or destructive device,” 18 U.S.C. § 924(e)(2)(B), a seemingly

paradigmatic factual determination. For another, the documents that the Supreme

Court and the various Courts of Appeals have held that a district court may consider

in the context of an adult conviction – the indictment or information, the jury

charge, and/or plea agreements – may be nonexistent where there has been an

adjudication of juvenile delinquency given that, for starters, there is no right to trial

by jury for juvenile offenses.

Id. at 126.

Nevertheless, in its opinion in Richardson, the Third Circuit concluded that it could

“perceive no basis for saying that the reasons the Taylor Court found as warranting the categorical

as opposed to the factual approach when considering an adult conviction are not equally persuasive

when considering a juvenile adjudication.” Id. That court, therefore, chose to adhere to that

categorical approach, even when considering juvenile adjudications, given “[t]he daunting practical

difficulties and the due process and Sixth Amendment concerns that surface when a sentencing

court makes factual determinations concerning a defendant’s prior convictions.” Id. at 128.

The Third Circuit’s approach bears great appeal when considering the morass that could

slow the wheels of justice unnecessarily should we adopt the government’s position and permit

factual inquiry into the circumstances of juvenile crimes. Abandonment of the Taylor-Shepard

5

In United States v. Jones, 453 F.3d 777, 780 (6th Cir.), cert. denied, 127 S.Ct. 611 (2006), this court ruled that

criminal complaints – sworn documents submitted in furtherance of criminal prosecutions – “bear . . . substantially

greater indicia of reliability than mere police reports.” Thus, we held that such a “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.” Id. Jones, however, involved only the limited inquiry of whether prior offenses constitute a single criminal

episode or multiple episodes, an inquiry especially suited to resolution by reference to a criminal complaint.

Nos. 05-6263/6514 United States v. Wells Page 8

restrictions on evidence of prior crimes would involve sentencing courts in sometimes lengthy

evidentiary presentations and disputes on matters clearly collateral to the crime for which a

defendant then stands convicted. In contrast, by adhering to the principles of Taylor and Shepard,

even in the context of juvenile adjudications, district courts will eliminate the need to examine facts

relating to crimes sometimes committed in the far distant past. For this reason alone, as well as for

the reasons and for the concerns expressed by the Supreme Court in Taylor, see Taylor, 495 U.S.

at 600-01, we opt to follow the Third Circuit’s approach to consideration of prior juvenile

adjudications in the context of sentencing pursuant to the Armed Career Criminal Act.

The government argues that application of a categorical approach in this case would still

allow the district court to consider either Wells’s 1993 attempted robbery adjudication or his 1997

aggravated assault adjudication to enhance his sentence. First, the prosecution points out that the

juvenile court petition in the 1993 adjudication, on its face, averred that Wells “violated T.C.A. 39-

13-402, aggravated robbery, by pointing a handgun at Scott L. Wilson and demanding that he give

them all of his money. This occurred as the victim was delivering pizza at 601 Buckeye Drive in

Knoxville, Knox County, Tn. at approximately 11 p.m. Sept. 18, 1993.” (Emphasis added.) Had

Wells pleaded guilty to a violation of Tennessee’s aggravated robbery statute, the petition’s factual

recitation could well have justified treating this juvenile adjudication as a predicate offense for

armed career criminal purposes. Wells did not plead to the aggravated robbery charge, however,

but rather to the lesser offense of attempted simple robbery, a crime defined as “the intentional or

knowing theft of property from the person of another by violence or putting the person in fear.”

TENN. CODE ANN. § 39-13-401(a). Because Wells thus did not admit to criminal activity that

necessarily or allegedly involved use of a “firearm, knife, or destructive device,” 18 U.S.C.

§ 924(e)(2)(B), we have no way of knowing whether a firearm was indeed involved in the crime.

As we recently held in United States v. Armstead, 467 F.3d 943, 949 (6th Cir. 2006), when a

defendant pleads to a lesser included offense, our examination of the charging papers to determine

whether that defendant previously committed a “crime of violence” is limited “to the elements of

the charges that are essential to defendant’s plea of guilty . . . .” Because use of a firearm is not

essential to the crime of attempted robbery, the 1993 juvenile adjudication could not be used as a

third qualifying conviction for sentencing enhancement purposes.

Similarly, Wells’s 1997 juvenile adjudication cannot satisfy the Taylor-Shepard categorical

approach test. Nothing in the language of Tennessee’s aggravated assault statute, TENN. CODE ANN.

§ 39-13-102(a)(1)(B), indicates that an aggravated assault conviction requires proof of the use or

display of a firearm, knife, or destructive device, as the latter term is defined by 18 U.S.C.

§ 921(a)(4). Furthermore, even though the defendant entered a plea to the petition alleging an

aggravated assault, the factual description of that offense does not mandate a conclusion that Wells

himself was in possession of such a deadly weapon. Indeed, the petition states simply that “on or

about November 14, 1997, [Wells] did intentionally attempt to strike officer C.J. Sramek of the

K.P.D. with the vehicle he was driving during a robbery and shooting.”

In this instance, the potentially qualifying crime to which Wells entered a plea is the

aggravated assault upon Officer Sramek with an automobile, and only that aggravated assault.

What, if anything, Wells (or others) may have been doing prior to attempting to run down Officer

Sramek is thus irrelevant to the charged crime. The fact that Wells, or his accomplice, used a

firearm in a prior robbery does not mean that any such antecedent criminal activity becomes part

of the aggravated assault. Because the specific crime upon which Wells’s 1997 juvenile

delinquency adjudication was based did not, therefore, necessarily “involv[e]” the use or carrying

of a prohibited weapon, and because Wells did not enter any plea to the alleged robbery and

shooting that preceded it, the 1997 adjudication also cannot serve as a third predicate offense to

justify imposition of a sentence under the provisions of the Armed Career Criminal Act. Cf. United

States v. Jones, 332 F.3d 688 (3d Cir. 2003) (enhanced sentencing permissible when defendant was

adjudicated delinquent for commission of three offenses – simple assault, aggravated assault, and

Nos. 05-6263/6514 United States v. Wells Page 9

violation of the Pennsylvania Uniform Firearms Act – that together established his use of a

firearm).

CONCLUSION

For the reasons set out above, we AFFIRM the defendant’s sentence but REMAND the case

for the limited purpose of correcting the district court’s judgment to eliminate the provision of a

commencement date on which service of that sentence was to begin.