United States v. Dante Sheffield

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 20, 2016 Decided August 12, 2016

No. 12-3013

UNITED STATES OF AMERICA,

APPELLEE

v.

DANTE SHEFFIELD,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00213-1)

William Francis Xavier Becker, appointed by the court,

argued the cause and filed the briefs for appellant.

Lauren R. Bates, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Elizabeth

Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: MILLETT, Circuit Judge, and GINSBURG and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

Opinion concurring in part and concurring in the

judgment filed by Senior Circuit Judge SENTELLE.

2

MILLETT, Circuit Judge: A jury convicted Dante

Sheffield of unlawful possession of 100 grams or more of

phencyclidine (PCP) with intent to distribute, in violation of

21 U.S.C. § 841(a) and (b)(1)(B)(iv). Based in part on its

application of a career-offender enhancement, the district

court sentenced Sheffield to 230 months in prison.

Sheffield challenges both his conviction and sentence,

arguing that the district court erred in (i) denying his motion

to suppress the PCP discovered during the search of a car in

which he was a passenger, (ii) refusing to suppress statements

he made following his arrest but before he received his

Miranda warnings, (iii) admitting evidence of a decade-old

drug conviction, (iv) denying his post-trial motion for

independent testing of the drug evidence, and (v) applying the

career-offender enhancement at sentencing. We affirm the

judgment of conviction, but we reverse the district court’s

imposition of the career-offender enhancement, vacate

Sheffield’s sentence, and remand to the district court for

resentencing.

I

A

On the evening of June 8, 2011, Metropolitan Police

Department Detectives Christopher Smith and Michael

Iannacchione, along with two other officers, were driving in

an unmarked police car through the 2300 block of 11th Street,

N.W., in Washington, D.C. Detective Smith spotted Dante

Sheffield, whom he and the other officers recognized from an

earlier PCP investigation in the area. The officers then

observed Sheffield and an unknown male enter a car with

tinted windows. One of the officers told Detective Smith that

“he wanted to at least make a contact just to see who the

[un]identified * * * male was.” Supp. App. 7. Before they

3

did so, however, they witnessed the car “pull[] * * * slightly

forward and ma[ke] a sharp left without using a turn signal

into an alleyway[.]” Id. at 8. The officers followed closely

behind the car, which then made a right turn out of the alley

“without using its signal.” Id. At that point, the officers

initiated a traffic stop.

All four officers approached the vehicle, two on each

side of the car. After asking the occupants to roll down the

windows because of the tinting, Detective Smith observed a

woman, Brande Dudley, in the driver’s seat, Sheffield in the

passenger seat, and the unknown male, Anthony Grant, in the

rear seat. Detective Smith later testified that he had detected a

“faint” but “fresh” smell of marijuana on the passenger side.

Supp. App. 10. In addition, Smith noticed “numerous air

fresheners all [over] the vehicle,” “on the top, the bottom, the

back, the front, all over the car.” Id. After asking for

Dudley’s license, the officers asked the three occupants to get

out of the vehicle.

Officers then searched the inside of the vehicle. Upon

unlocking and opening the armrest console, Detective

Iannacchione was immediately met with “a strong chemical

odor” and found an eight-ounce lemon juice bottle, “which

through [their] investigation was consistent with that of

storing and packaging of PCP in large quantities.” Supp.

App. 11–12. Detective Iannacchione opened the cap and

noticed “a strong chemical [odor] consistent with that of

PCP.” Id. at 12. At that point, the officers placed all three

individuals under arrest.

Sheffield then asked Detective Smith “[w]hat are we

getting arrested for?” Supp. App. 12. Smith responded that

the arrest was for “[w]hat was in the car,” to which Sheffield

responded “[e]verything is mine.” Id. After another detective

4

began speaking privately with Brande Dudley, Sheffield

“became more irritated and started yelling toward their

direction for her not to say nothing, that they didn’t have a

strong case, they got nothing on us, don’t say anything.”

Hearing Tr. 15–16 (Sept. 16, 2011).

When the officers searched Grant incident to his arrest,

they found a plastic bag in his right sock containing

approximately 0.75 grams of marijuana.

B

1

The government indicted Sheffield on one count of

unlawful possession with intent to distribute 100 grams or

more of PCP, 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iv). Before

trial, Sheffield filed motions to suppress the physical evidence

of the PCP and his statements made during his arrest.

The district court denied Sheffield’s motions to suppress.

First, the court held that Dudley’s two turns made without

signaling gave the officers probable cause to believe she had

committed a traffic violation. The court rejected Sheffield’s

argument that the traffic violations were mere pretext for a

stop and search targeted at him because “the officers’

subjective motivations do not render unconstitutional a search

that is otherwise justified by objective circumstances.” J.A.

70.

Second, the district court held that the search of the

vehicle was lawful, citing inter alia “the smell of marijuana

and the unusual number of air fresheners in the car[.]” J.A.

74. The court further held that the officers’ search of the

locked armrest console was proper because there was a “‘fair

probability’ that [the defendant] might have hidden additional

5

drugs not necessary for his current consumption in areas out

of plain sight, including the trunk of a car” or an armrest

console. Id. at 75 (quoting United States v. Turner, 119 F.3d

18, 20 (D.C. Cir. 1997)).

Third, with respect to Sheffield’s statements that

everything in the car “is mine” and that “they [don’t] have a

strong case, they’ve got nothing on us,” the district court ruled

that Miranda warnings were not required for their admission.

The court explained that the statements “were not made in

response to a question posed by the officers, nor did the

officers take any action to which defendant Sheffield’s

response was required or expected.” J.A. 77.

The district court separately granted the government’s

motion to admit a record documenting Sheffield’s conviction

in 2002 for possession with intent to distribute PCP, pursuant

to Federal Rule of Evidence 404(b).

2

At trial, Detectives Smith, Iannacchione, and a third

officer involved in the stop and arrest all testified to the

circumstances of the traffic stop, the discovery of the PCP,

and Sheffield’s statements at the time of his arrest. In

addition, the jury heard testimony from the law enforcement

officials who transported, stored, and tested the PCP found in

the car, including “two arresting officers, who observed and

seized the lemon juice bottle at the scene of the traffic stop;

three other officers who established the chain of custody of

the lemon juice bottle, and detailed their handling, storage,

and documentation of the evidence; and a DEA forensic

chemist, who testified as to his testing of the PCP evidence.”

J.A. 132. The jury learned that photographs were taken of the

lemon juice bottle and that the quantity and weight of the

liquid was measured. Id. In addition, the jury heard that,

6

because a DEA regulation prohibits the agency from

accepting more than 28.35 grams of PCP for testing, Officer

Joseph Abdalla “separated approximately one ounce of the

drug evidence into a vial and gave it to [the DEA chemist]”

for testing. Id. at 133. The remaining PCP was never tested,

though it was introduced at trial. The jury subsequently found

Sheffield guilty of possessing with intent to distribute 100 or

more grams of PCP.

Following trial, Sheffield filed a “motion to test drugs not

submitted to DEA.” J.A. 121. He argued that he wanted the

test “to ensure that the drugs introduced at trial are the same

drugs seized on June 8, 2011, and to ensure that the

measurements performed by the Metropolitan Police are

accurate.” Id. at 123.

Treating it as a motion for a new trial in light of newly

discovered evidence under Federal Rule of Criminal

Procedure 33, the district court denied the motion. The court

explained that testing the remaining liquid would not lead to

new evidence that could produce an acquittal because (i) five

officers “testified as to the smell, seizure, documentation,

field testing, and storage of the drug evidence,” and Sheffield

never argued that such testing was erroneous or that the

witnesses were not credible, J.A. 136–137; (ii) measurement

of the PCP six months after Sheffield’s arrest would

“provide[] minimal probative value” because PCP evaporates

over time, id. at 137; and (iii) testing the remaining PCP

would not address whether the drugs presented at Sheffield’s

trial were the same drugs seized at his arrest, id. at 138.

Sheffield was sentenced to 230 months of imprisonment

and 96 months of supervised release. In calculating that

sentence, the district court applied a career-offender

enhancement under the United States Sentencing Guidelines.

7

II

Sheffield first challenges the admission of the PCP

discovered during the search of the car. We decide de novo

whether the police had probable cause both to stop the car and

to search it. See, e.g., United States v. Burroughs, 810 F.3d

833, 839 (D.C. Cir. 2016). However, we review the district

court’s fact findings for clear error, giving “due weight to

inferences drawn from those facts and to the court’s

determinations of witness credibility.” United States v.

Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (quotation

marks omitted).

A

Given the district court’s factual findings, we hold that

the officers had probable cause to stop the car in which

Sheffield was riding. “As a general matter, the decision to

stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has

occurred.” Whren v. United States, 517 U.S. 806, 810 (1996).

Even minor violations of traffic law may justify a stop. See,

e.g., id. at 808 (turning without signaling and speeding);

United States v. Williams, 773 F.3d 98, 103 (D.C. Cir. 2014)

(failure to wear a seatbelt).

Here, the officers had probable cause to believe that the

driver of the vehicle had violated a mandatory traffic

regulation because the driver twice failed to signal a turn, in

contravention of D.C. Municipal Regulations, Title 18

§ 2204.3. Section 2204.3 provides that “[n]o person shall turn

any vehicle * * * from a direct course or move right or left

upon a roadway without giving an appropriate signal * * * if

any other traffic may be affected by the movement.” In this

case, the district court found that Dudley, the driver of the car

in which Sheffield was riding, first “turn[ed] sharply into an

8

alley without using a turn signal,” and then after leaving the

alley “ma[de] another right turn without a turn signal” when

another car was behind her. J.A. 63, 69. Under Whren, those

violations of D.C. traffic law provided probable cause to stop

the vehicle, see 517 U.S. at 808–809, 819.

Sheffield does not deny that those traffic infractions

occurred, but argues that their use by the police was mere

pretext for the officers’ true motivation, which was to stop

him. That no traffic citation was ever issued, Sheffield

argues, is “clearly indicative of the intent to target Dante

Sheffield via this ever so slight traffic violation.” Pet. Br. 29.

Binding precedent forecloses that argument. The test for

probable cause is an objective one, focusing on whether the

stop was reasonable. See Whren, 517 U.S. at 811–813.

Accordingly, “the constitutional reasonableness of traffic

stops [does not] depend[] on the actual motivations of the

individual officers involved,” even when those motivations

are “admitted.” Id. at 813–814.

That means that, contrary to Sheffield’s argument,

“ulterior motives [cannot] invalidate police conduct that is

justifiable on the basis of probable cause to believe that a

violation of law has occurred.” Whren, 517 U.S. at 811; see

also United States v. Washington, 559 F.3d 573, 575 (D.C.

Cir. 2009) (traffic stop for running a stop sign was reasonable

notwithstanding evidence of “aggressive traffic patrols” that

“use[d] routine traffic stops to try to detect and prevent drug

and gun crimes”). Indeed, in United States v. Bookhardt, 277

F.3d 558 (D.C. Cir. 2002), we upheld a stop even though the

officers did not have probable cause to stop the defendant for

the reason they gave—that the defendant was driving with an

expired license, id. at 564—because the officers as an

objective matter did have probable cause to stop the defendant

9

for a reason they did not give—reckless driving, id. at 565–

566.

Accordingly, the two undisputed signaling violations

committed in front of the officers’ car provided an objectively

reasonable basis for the officers to believe that the driver had

violated the traffic laws, and that in and of itself provided

probable cause to stop Dudley’s car.

B

We likewise hold that, given the district court’s factual

findings, probable cause existed to search the car after the

stop.

1

To begin with, the government argues that Sheffield lacks

Fourth Amendment “standing” to challenge the search of the

vehicle because he was just a passenger in a car that did not

belong to him. But that argument is forfeited because the

government failed to raise it in district court.

To be clear, Fourth Amendment “standing” is not really a

“standing” inquiry at all. Ordinarily in federal cases,

“standing” refers to the jurisdictional requirement that a

plaintiff have a sufficient stake in the outcome of the case to

be entitled to litigate it. See Susan B. Anthony List v.

Driehaus, 134 S. Ct. 2334, 2341 (2014). Standing, in that

context, is a critical component of the Constitution’s case-or-

controversy requirement, and as such may not be waived or

forfeited. See United States v. Cotton, 535 U.S. 625, 630

(2002) (“[D]efects in subject-matter jurisdiction require

correction regardless of whether the error was raised in

district court.”).

10

Fourth Amendment “standing,” by contrast, has nothing

to do with jurisdiction. Fourth Amendment standing instead

limits the assertion of Fourth Amendment rights to those who

have an individualized expectation of privacy in the searched

property: “[S]uppression of the product of a Fourth

Amendment violation can be successfully urged only by those

whose rights were violated by the search itself, not by those

who are aggrieved solely by the introduction of damaging

evidence.” Alderman v. United States, 394 U.S. 165, 171–

172 (1969). In other words, “Fourth Amendment

jurisprudence * * * does not countenance the assertion of

another’s right to be free from unreasonable searches and

seizures.” United States v. Caicedo-Llanos, 960 F.2d 158,

161–162 (D.C. Cir. 1992); see also Plumhoff v. Rickard, 134

S. Ct. 2012, 2022 (2014) (“Fourth Amendment rights are

personal rights which may not be vicariously asserted.”)

(quotation marks and alterations omitted).

So understood, Fourth Amendment standing is merely an

aspect of the substantive merits of a Fourth Amendment

claim, inquiring whether the party invoking the Amendment

has a privacy interest that was invaded. As the Supreme

Court has explained, it would serve no “useful analytical

purpose to consider this principle a matter of standing, distinct

from the merits of a defendant’s Fourth Amendment claim.”

Rakas v. Illinois, 439 U.S. 128, 138–139 (1978); see id. at 140

(The “definition of [Fourth Amendment] rights is more

properly placed within the purview of substantive Fourth

Amendment law than within that of standing.”).

As a non-jurisdictional principle of substantive law,

Fourth Amendment “standing” is subject to ordinary rules of

waiver and forfeiture, as a number of circuits have held. See

United States v. Golson, 743 F.3d 44, 55 n.9 (3d Cir. 2014);

United States v. Moss, 963 F.2d 673, 676 (4th Cir. 1992);

11

United States v. Price, 54 F.3d 342, 345–346 (7th Cir. 1995);

United States v. Dewitt, 946 F.2d 1497, 1499 (10th Cir.

1991); see also United States v. Gonzales, 79 F.3d 413, 419

(5th Cir. 1996) (government forfeits Fourth Amendment

standing argument where defendant provides facts in district

court supporting an inference of standing and government did

not raise the issue); United States v. Noble, 762 F.3d 509,

527–528 (6th Cir. 2014) (government may forfeit Fourth

Amendment standing argument, but appeals court may review

argument for plain error).

Two decades ago, this court indicated otherwise,

allowing the government to raise a Fourth Amendment

standing objection for the first time on appeal. In United

States v. Caicedo-Llanos, this court held that “we are

powerless to rule on Fourth Amendment rights which do not

belong to the parties before us,” 960 F.2d at 162. Two other

circuits also ruled that Fourth Amendment standing could be

raised for the first time on appeal. See United States v.

Bouffard, 917 F.2d 673, 677 (1st Cir. 1990); United States v.

Smith, 621 F.2d 483, 489 n.3 (2d Cir. 1980). 1

Since those decisions, the Supreme Court’s ruling in

Minnesota v. Carter, 525 U.S. 83 (1998), intervened and

“expressly rejected” treating Fourth Amendment standing like

jurisdictional standing, making clear that the question of a

1

The Eleventh Circuit appears to have had conflicting precedent on

the issue. Compare United States v. Gonzalez, 71 F.3d 819, 827

n.18 (11th Cir. 1996) (“[S]ince the government declined to press

this standing issue before the district court, we conclude that this

issue has been waived.”), with United States v. Braithwaite, 709

F.2d 1450, 1453–1454 (11th Cir. 1983) (addressing issue despite

the government’s failure to “challenge [the defendant’s] standing to

assert a violation of his fourth amendment rights at the district court

level”).

12

defendant’s reasonable expectation of privacy must be

analyzed like a substantive merits issue, id. at 87.

Carter thus confirms our jurisdiction to decide this case

on the merits because Fourth Amendment standing is merely

a merits inquiry. Beyond that, the dispute over the

government’s right to raise Sheffield’s “standing” argument

for the first time on appeal is of no practical consequence in

this case. As Caicedo-Llanos recognized, defendants always

bear the burden of establishing that the government violated a

privacy interest that was protected by the Fourth Amendment,

960 F.2d at 162. Here, Sheffield has failed in that task

because probable cause existed for the search. 2

2

While the Fourth Amendment generally requires the

police to obtain a warrant for a search, motor vehicles are

different both because of their mobility and the government’s

extensive regulation of their use. See Pennsylvania v. Labron,

518 U.S. 938, 940 (1996) (noting that an automobile’s “ready

mobility” and its “pervasive regulation” justify an

“automobile exception to the Fourth Amendment’s warrant

requirement”) (quotation marks omitted). Accordingly,

officers generally may search a car if it “is readily mobile and

probable cause exists to believe it contains contraband.”

United States v. Maynard, 615 F.3d 544, 567 (D.C. Cir. 2010)

(quotation marks omitted). “If probable cause justifies the

search of a lawfully stopped vehicle, it justifies the search of

2

One other circuit has continued to hold that the government need

not obey ordinary argument-preservation rules when it comes to

Fourth Amendment standing, but has done so precisely because it is

the defendant’s burden to establish the invasion of a protected

expectation of privacy. See United States v. Paopao, 469 F.3d 760,

764 (9th Cir. 2006).

13

every part of the vehicle and its contents that may conceal the

object of the search.” United States v. Ross, 456 U.S. 798,

825 (1982).

In this case, the smell of marijuana, in conjunction with

other evidence of drug use, provided probable cause to

believe the vehicle contained drug contraband, which in turn

supported a search of the car’s compartments. In United

States v. Turner, 119 F.3d 18 (D.C. Cir. 1997), we held that

“the smell of burnt marijuana emanating from the car, * * *

pieces of torn cigar paper arrayed around [the defendant], and

[a] ziplock bag of green weed material found on the floor

behind [the] seat” justified a search “elsewhere in the car,

including its trunk.” Id. at 20. Such evidence “establish[ed] a

fair probability that [the defendant] might have hidden

additional drugs not necessary for his current consumption in

areas out of plain sight, including the trunk of the car.” Id.

(quotation marks omitted).

In this case, the district court found that one officer

smelled the “faint” scent of “fresh marijuana,” and saw an

abnormally large number of air fresheners throughout the car,

which in the officers’ experience was consistent with efforts

to disguise narcotics odors. J.A. 73. Finding no clear error in

those fact findings, we hold that the officers had probable

cause. See United States v. Ortiz, 669 F.3d 439, 445 (4th Cir.

2012) (holding that “the presence of multiple air fresheners in

[a] vehicle” was a relevant factor in establishing probable

cause to search a vehicle). In addition, that evidence

“establish[ed] a fair probability that [an occupant] might have

hidden additional drugs not necessary for his current

consumption in areas out of plain sight,” Turner, 119 F.3d at

20, justifying the search of the armrest console. The district

court therefore properly admitted the PCP evidence.

14

III

Sheffield next challenges the admission into evidence of

his statement to police officers at the time of his arrest that

“[e]verything is mine” in the car and that “they [don’t] have a

strong case, they’ve got nothing on us.” He argues that those

statements should be suppressed because he had not yet

received his Miranda warnings, see Miranda v. Arizona, 384

U.S. 436 (1966). Because the statements were not made

during an interrogation or in response to any police

questioning, however, the protections of Miranda do not

apply, and the statements were lawfully admitted.

“Miranda warnings are required where a suspect in

custody is subjected to interrogation.” United States v.

Vinton, 594 F.3d 14, 26 (D.C. Cir. 2010) (quotation marks

omitted). Sheffield’s statements, however, were not made in

response to any police “interrogation” within the meaning of

Miranda. “Interrogation” is “either express questioning or its

functional equivalent.” Rhode Island v. Innis, 446 U.S. 291,

300–301 (1980). The functional equivalent of express

questioning is “any words or actions on the part of the police

(other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Id. The words or

coercive pressure must be “above and beyond that inherent in

custody itself.” Id. at 300.

There is no dispute that Sheffield was not being

questioned at the time of the statements. Rather, unrefuted

testimony establishes that Sheffield himself started talking on

his own, asking “[w]hat are we getting arrested for?” Supp.

App. 12. Detective Smith responded not with a question, but

with the matter-of-fact statement: “[w]hat was in the car.”

15

Id. Without anything further from the officers, Sheffield then

declared: “Everything is mine.” Id.

So too for Sheffield’s statement that “they [don’t] have a

strong case.” He made that statement after another officer

spoke to Brande Dudley in a separate conversation to which

Sheffield was not even a party.

Sheffield argues that the officer’s statement to Ms.

Dudley that she would be taken back to the station and that

she might lose her vehicle was intended to elicit a response

from Sheffield. Pet. Br. 34. But such a commonplace

explanation given to a third party, which was not made in a

manner designed for Sheffield to even overhear, cannot

amount to an interrogation of Sheffield. In United States v.

Morton, 391 F.3d 274 (D.C. Cir. 2004), after officers arrested

the defendant and while transporting her to the police station,

the defendant “expressed concern over what would happen to

her vehicle,” id. at 275. Officers said “her vehicle would be

impounded,” that “she had been arrested for a serious

charge,” and that “she might not be getting out as quickly as

she thinks.” Id. In response, the defendant said “her lawyer

would help her beat the charge, and when she did get out, she

would be back down in the same area riding around with

another gun that she kept at her home.” Id. at 276 (quotation

marks omitted). We held that the officers’ statements—about

impounding the vehicle, her arrest on a serious charge, and

that she “might not be released as quickly as she thought—

were directly responsive to what Morton had said and were

not reasonably likely to elicit an incriminating response.” Id.

That same answer applies here, especially where one of

the officer’s statements was not even made to Sheffield.

Instead, in both instances, it was Sheffield who “initiated the

16

conversation * * * and concede[d] that [the officer] did not

ask h[im] any questions.” Morton, 391 F.3d at 276.

For those reasons, the statements were not the product of

a custodial interrogation; no Miranda warnings were required;

and the statements were properly admitted at trial.

IV

Sheffield argues that the district court improperly

allowed the government to admit “other crimes” evidence

under Federal Rule of Evidence 404(b). Specifically, he

objects to the jury being told that, “[i]n February 2002,

Defendant Dante Sheffield was convicted of a possession with

intent to distribute Phencyclidine, PCP in the District of

Columbia Superior Court.” Supp. App. 52. We agree that the

district court erred in admitting that evidence, but the error

was harmless.

We review the district court’s decision to admit evidence

under Rules 403 and 404(b) for an abuse of discretion. See

Henderson v. George Washington University, 449 F.3d 127,

132–133 (D.C. Cir. 2006); United States v. Cassell, 292 F.3d

788, 792 (D.C. Cir. 2002).

“Convictions are supposed to rest on evidence relevant to

the crime charged, not on evidence of other, unrelated bad

acts suggesting nothing more than a tendency or propensity to

engage in criminality.” United States v. McGill, 815 F.3d

846, 878 (D.C. Cir. 2016). Consequently, Rule 404(b)

prohibits the admission of “[e]vidence of a crime, wrong, or

other act * * * to prove a person’s character in order to show

that on a particular occasion the person acted in accordance

with the character.” Fed. R. Evid. 404(b)(1). However, such

evidence may “be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan,

17

knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2).

In addition to Rule 404(b)’s specific limitations on the

admission of evidence of prior bad acts, “Federal Rule of

Evidence 403 permits a court to exclude otherwise-relevant

evidence ‘if its probative value is substantially outweighed by

a danger of unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.’” McGill, 815 F.3d at 880 (quoting

Fed. R. Evid. 403).

When it comes to evidence of prior drug dealings, we

have recognized that “[a] defendant’s hands-on experience in

the drug trade cannot alone prove that he possessed drugs on

any given occasion.” United States v. Crowder, 141 F.3d

1202, 1208 n.5 (D.C. Cir. 1998). But “it can show that he

knew how to get drugs, what they looked like, where to sell

them, and so forth.” Id. Said another way, “[e]vidence of a

defendant’s experience in dealing drugs * * * may be a

‘brick’ in the ‘wall’ of evidence needed to prove possession.”

Id. Thus, the type of evidence the government introduced

here—that of Sheffield’s prior PCP dealing—would generally

be permissible to show that Sheffield had the requisite

knowledge and intent to possess and distribute the PCP the

officers found in the armrest console.

But even general rules have their limits, and “evidence of

a prior conviction is subject to analysis under Rule 403 for

relative probative value and for prejudicial risk of misuse as

propensity evidence,” Old Chief v. United States, 519 U.S.

172, 182 (1997). In this case, the Rule 404(b) evidence was a

conviction that occurred a decade before the offense conduct

at issue in this case. Moreover, by telling the jury only about

the fact of a decade-old conviction, the evidence bore little

18

evidentiary relevance to the question of Sheffield’s

knowledge in 2011 about such matters as how to acquire or to

market PCP. Cf. Crowder, 141 F.3d at 1208 n.5. Under those

circumstances, the staleness of this conviction reduces its

probative value such that it is “substantially outweighed” by

the danger of unfair prejudice already inherent in the

admission of prior-bad-act evidence. See United States v.

Bigesby, 685 F.3d 1060, 1065 (D.C. Cir. 2012) (explaining

that the “gap between [a] conviction and the [offense conduct]

limited the conviction’s probative value”); United States v.

Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008) (noting the risk

of unfair prejudice inherent in “the admission of prior

possession-with-intent-to-distribute evidence”). 3

“Wrongly admitted evidence, however, does not always

compel reversal.” McGill, 815 F.3d at 886. The error is

harmless if we “can say that the error did not affect the jury’s

verdict.” United States v. Watson, 171 F.3d 695, 700 (D.C.

Cir. 1999). While Sheffield has failed to make any argument

regarding harmlessness, the burden here is on the government

to show that its error “should not upset the trial court’s

determination.” Shinseki v. Sanders, 556 U.S. 396, 410

(2009); see also United States v. Olano, 507 U.S. 725, 734

(1993) (in a “harmless error” inquiry, “the Government * * *

bears the burden of persuasion with respect to prejudice”).

3

In a supplemental filing with this Court, the government offered

United States v. McCarson, 527 F.3d 170 (D.C. Cir. 2008), as an

example of a decision upholding the admission of a decade-old

conviction for firearm possession under Rule 404(b). Gov’t 7/5/16

Letter at 2. That opinion did not address the staleness of the

conviction. See Cooper Industries, Inc. v. Aviall Services, Inc., 543

U.S. 157, 170 (2004) (“‘Questions which merely lurk in the record,

neither brought to the attention of the court nor ruled upon, are not

to be considered as having been so decided as to constitute

precedents.’”) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)).

19

Admission of the stale conviction was harmless for three

reasons. First, the bad-act evidence “was neither so dramatic

nor compelling as to rivet the jury’s attention on [Sheffield’s]

bad character[.]” United States v. Brown, 597 F.3d 399, 405

(D.C. Cir. 2010). The evidence instead was a single-sentence

paper admission, without any of details of the prior crime

being aired before the jury.

Second, “the district court took caution to guard the space

between the permissible and impermissible inferences by

instructing the jury to consider the evidence only for its

proper purpose.” United States v. Mitchell, 49 F.3d 769, 777

(D.C. Cir. 1995). Here, the district court instructed the jury

both after the earlier drug conviction was admitted at trial and

during the final jury instructions that:

If you find that Mr. Sheffield was previously

convicted of possession with intent to distribute

PCP, you may use this evidence only for the limited

purpose of determining whether the Government has

proved beyond a reasonable doubt that Mr. Sheffield

intended to possess [the] PCP found in this case

knowingly and on purpose and not by mistake or

accident.

You may not use this evidence for any other

purpose. Mr. Sheffield is only on trial for the crimes

charged. You may not use this evidence to conclude

that Mr. Sheffield has a bad character or that he has a

criminal personality. The law does not allow you to

convict a defendant simply because you believe he

may have done bad things not specifically charged as

crimes in this case.

20

Supp. App. 74–75. And during final jury instructions, the

district court reiterated the purpose of the Rule 404(b)

evidence:

You have heard evidence by way of a stipulation that

Mr. Sheffield was previously convicted of

possession with intent to distribute PCP. * * * You

may use this evidence only for the limited purpose of

determining whether the Government has proved

beyond a reasonable doubt that Dante Sheffield

intended to possess the PCP found in his case

knowingly and on purpose and not by mistake or

accident.

You may not use this evidence for any other

purpose. Dante Sheffield is only on trial for the

crime charged.

You may not use this evidence to conclude that the

defendant has a bad character or that he has a

criminal personality. The law does not allow you to

convict a defendant simply because you believe he

may have done bad things not specifically charged as

crimes in this case.

Id. at 124. Absent evidence to the contrary, the jury is

presumed to have followed that instruction, and Sheffield

offers no such contradictory evidence. Brown, 597 F.3d at

406.

Third and finally, “[t]he most significant factor that

negates the error’s impact is the weight and nature of the

evidence against [the defendant].” United States v. Williams,

212 F.3d 1305, 1311 (D.C. Cir. 2000). Here, the one-

sentence stipulation about an earlier drug crime “formed a

small part of what was otherwise an overwhelming case

21

against” Sheffield, McGill, 815 F.3d at 886, and that amply

evidenced his knowledge and intent. The jury heard (i) the

officers’ testimony that Sheffield was a passenger in a car that

contained PCP, (ii) testimony about Sheffield’s statement that

“[e]verything is mine” in the car, (iii) Dudley’s testimony that

Sheffield had earlier taken her car for 30–45 minutes and that

there was no PCP in her car before then, and (iv) an extensive

recounting of the transportation and testing of the PCP, see

infra Part V. In addition, the jury heard legitimate Rule

404(b) evidence that Sheffield dealt PCP in 2009, the

admission of which Sheffield does not challenge. That Rule

404(b) evidence bore on his motive, intent, and knowledge to

deal in PCP. Taken together, all of that properly admitted

evidence rendered harmless the mistaken admission of the

2002 conviction.

V

Turning to the post-trial stage of the proceedings,

Sheffield challenges the district court’s denial of his motion

for independent testing of the portion of the seized PCP that

was not submitted to the DEA for analysis. The district court

treated that as a motion for a new trial because the motion

sought to challenge the jury finding that Sheffield was guilty

of “unlawfully, knowingly and intentionally possess[ing] with

intent to distribute” PCP in “the amount of * * * 100 grams or

more,” J.A. 12, 120.

We review a district court’s denial of a motion for new

trial for an abuse of discretion. See United States v. Johnson,

519 F.3d 478, 487 (D.C. Cir. 2008). A district court may

grant a new trial on the ground of newly discovered evidence

if (i) the evidence was discovered after the trial; (ii) the

movant was diligent in attempting to procure the evidence;

(iii) the evidence is material and not merely cumulative or

22

impeaching; and (iv) if admitted, the evidence would

probably produce an acquittal. See United States v. Pettiford,

517 F.3d 584, 591 (D.C. Cir. 2008).

The district court reasonably concluded that testing the

remaining liquid in the lemon juice bottle was unlikely to

produce an acquittal. The jury heard ample, detailed, and

unrebutted testimony describing the transportation and testing

procedures that were used for the PCP evidence admitted at

trial, and thus jurors had a full opportunity to evaluate the

reliability of the determination that the bottle contained PCP

and the amount. For example, the jury heard that, after the

search of the car, one detective took photographs of the bottle

of PCP, and another detective then “physically picked up the

lemon juice bottle and placed it in a bag and transported it

back to the narcotic and special investigations division for

processing.” Supp. App. 41. At the police station, that

detective gave the lemon juice bottle to Officer Joseph

Abdalla, “the inhouse officer that processes liquid PCP when

large amounts are seized.” Id. at 42.

The jury also heard Officer Abdalla testify about how he

tested and processed the PCP. He first photographed the

lemon juice bottle and then conducted a field test by sticking

a tester directly into the lemon juice bottle’s liquid, which

came back positive for PCP. Trial Tr. 201–202 (Nov. 29,

2011). Officer Abdalla then weighed the PCP using two

different measurement techniques. Id. at 211–212. He

determined that the lemon juice bottle contained

approximately 195.9–198.7 grams of liquid. Supp. App. 96.

Officer Abdalla next undertook “the remediation process,” in

which he took “a bulk amount of the liquid * * * [and]

remov[ed] one ounce from that bulk substance, plac[ing] it

into a small glass vial and then * * * submitted [it] to the

Drug Enforcement Administration chemist for analysis.” Id.

23

at 85–86. Officer Abdalla explained that extracting out a

single-ounce vial was necessary because the DEA lab would

not “accept any more than a one ounce sample from any

seizure of PCP.” Id. at 87.

After that, the jury heard testimony about the DEA’s

testing process. Officer Abdalla gave the one-ounce vial to a

detective, who placed it in a heat-sealed package for

submission to the DEA lab. The detective placed the vial

“into a secure evidence property box * * * where it [was] then

* * * transported to [the] DEA lab for analysis.” Supp. App.

48. At the DEA, Richard Isaacs, a forensic chemist, tested the

liquid in the vial and determined that the vial contained 25.9

grams of liquid that was 16.9% PCP. Isaacs also testified

that, when he received the vial, the heat seal was intact.

Finally, at the beginning of trial, the remaining PCP was

made available in the courthouse for Sheffield and his

attorney to inspect. The lemon juice bottle was ultimately

admitted into evidence, along with five photographs of the

bottle, its contents, and its weight, all of which were taken the

night of Sheffield’s arrest.

Notably, Sheffield did not challenge any of that

testimony at trial. He never argued, for example, that the

testing process was flawed, that those witnesses were not

credible, or that the chain of custody was interrupted.

The jury, in sum, considered the unrebutted “testimony of

five Metropolitan Police Department officers who testified as

to the smell, seizure, documentation, field testing, and storage

of the drug evidence,” viewed “photographs of the lemon

juice bottle and its contents that were taken shortly after the

evidence was seized” that indicated “the weight of the liquid,

its quantity, and the amount separated for DEA testing,” and

heard “the testimony of the DEA forensic chemist who tested

24

the liquid sample and identified the liquid as PCP.” J.A. 136–

137. Given that extensive trial record addressing the handling

and testing of the liquid found in the lemon juice bottle and

the scientific determinations that it was PCP and of its

amount, the district court did not abuse its discretion in

concluding that further testing of the remaining seven ounces

of PCP had no realistic prospect of producing an acquittal.

Other factors governing motions for a new trial reinforce

the district court’s judgment. To begin with, the evidence

Sheffield’s motion sought could have been obtained before

the district court issued its judgment. Specifically, Sheffield

could have sought independent testing of the PCP before trial,

but he did not. Resp. Br. 48. Furthermore, to the extent that

Sheffield seeks to double check the measurements the various

officers performed, those goals would not be served by testing

the remaining seven ounces of liquid now because it is

undisputed that “some of the remaining seven ounces of PCP

[would have] evaporated over time despite being sealed in a

plastic bottle and a heat-sealed evidence bag.” J.A. 129.

Finally, Sheffield suggests that, under California v.

Trombetta, 467 U.S. 479 (1984), the Due Process Clause

requires that he be allowed to test the remaining PCP to

maintain the “fundamental fairness” of the proceedings.

Sheffield failed to make any due-process argument below, so

we review for plain error. See United States v. Pryce, 938

F.2d 1343, 1350 (D.C. Cir. 1991). And Sheffield has offered

no authority—let alone plain authority—for the proposition

that a defendant has the right under the Due Process Clause to

test drugs after failing to challenge the chain of custody or

testing procedures during trial, or to avail himself of a pre-

trial testing opportunity.

25

For all of those reasons, the district court did not abuse

its discretion when it denied Sheffield’s motion to test the

PCP evidence.

VI

Lastly, Sheffield challenges the district court’s

imposition of a sentence enhancement for being a career

offender. The district court invoked a Sentencing Guidelines

provision to increase Sheffield’s sentence based on a

determination that he “ha[d] at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a). Specifically, the

government introduced evidence that Sheffield had previously

been convicted of possession with intent to distribute PCP and

attempted robbery in the District of Columbia. Applying the

career-offender enhancement increased Sheffield’s Guidelines

offense level from 26 to 37, which in turn moved his original

Guidelines range of 92 to 115 months up to 360 months to life

in prison. The district court ultimately sentenced Sheffield to

230 months in prison.

Sheffield argues that the career-offender enhancement

was erroneously applied because his attempted robbery

conviction does not qualify as a crime of violence under

Sentencing Guideline 4B1.1(a). Although we typically

review de novo a district court’s determination that a

defendant’s “conviction qualified as a crime of violence,” In

re Sealed Case, 548 F.3d 1085, 1090 (D.C. Cir. 2008),

Sheffield did not raise this objection in the trial court. To

prevail, then, Sheffield must demonstrate plain error by

showing that (i) an error occurred; (ii) it was a plain, clear, or

obvious error; (iii) the error affected Sheffield’s substantial

rights; and (iv) the error also seriously affected the fairness,

integrity, or public reputation of judicial proceedings. See

26

Puckett v. United States, 556 U.S. 129, 135 (2009). As the

government now concedes, see Gov’t 7/5/16 Letter at 1, the

district court’s application of the career-offender enhancement

was plain error, and Sheffield is entitled to a new sentencing

free from any such enhancement.

To be considered a career offender, Sheffield’s prior

conviction for attempted robbery in the District of Columbia

had to qualify as a “crime of violence” under the Sentencing

Guidelines. The Guidelines define “crime of violence” as a

state or federal offense that is punishable by imprisonment for

a term exceeding one year, and that: “(1) has as an element

the use, attempted use, or threatened use of physical force

against the person of another, or (2) is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of

physical injury to another.” U.S.S.G. § 4B1.2(a). The first

clause is referred to as the “elements clause.” The “otherwise

involves” portion of the second clause is known as the

“residual clause.” See Welch v. United States, 136 S. Ct.

1257, 1261 (2016).

Unfortunately, the district court never specified which

clause of the “crime of violence” definition it believed applied

to Sheffield’s attempted robbery conviction. Nor did the

Presentence Report or the government’s sentencing

memorandum. See Gov’t Sentencing Mem. ¶ 7. At the

sentencing hearing, the district court stated only that “your

2007 conviction for attempted robbery * * * qualifies you

under the Guidelines as a career offender under the Guideline

Section 4B1.1(b).” Sentencing Tr. 12.

The record, however, leaves only the residual clause as a

possible basis for finding that attempted robbery constituted a

crime of violence. That is because the government “carries

27

the burden of proving any facts that may be relevant in

sentencing.” United States v. Price, 409 F.3d 436, 444 (D.C.

Cir. 2005). The government, however, introduced no

evidence into the district court record providing any basis for

specifically determining that the attempted robbery was a

crime of violence under the elements clause. The sentencing

occurred prior to the Supreme Court’s decision in Descamps

v. United States, 133 S. Ct. 2276 (2013). Accordingly, the

only way the district court could have classified Sheffield’s

conviction for attempted robbery as a crime of violence would

have been by reference to additional documentation—which

the Government admittedly did not submit. See In re Sealed

Case, 548 F.3d at 1089–1090. By default, the only thing left

for the district court to rely on was the residual clause.

The district court committed plain error by concluding

that Sheffield’s attempted robbery conviction supported an

enhanced sentence. In Johnson v. United States, 135 S. Ct.

2551 (2015), the Supreme Court held that the identically

worded residual clause in the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally

vague, 135 S. Ct. at 2563; see also Welch, 136 S. Ct. at 1262–

1263. To be fair to the district court, we note that Johnson

came out after sentencing in this case. But “as long as [an]

error [is] plain as of * * * the time of appellate review * * *

the error is ‘plain’ within the meaning of [Federal Rule of

Criminal Procedure 52(b)].” Henderson v. United States, 133

S. Ct. 1121, 1124–1125 (2013). 4

While this case involves the Sentencing Guidelines rather

than ACCA, the government agrees with Sheffield that

Johnson’s rationale equally requires resentencing in this

4

We accordingly need not decide whether Sheffield’s conviction

would in fact have qualified as a crime of violence at the time of

sentencing.

28

direct appeal. See Gov’t Supp. Br. 4 n.3 (“[T]he government

has consistently conceded that the residual clause of the

career offender guideline is unconstitutionally vague[.]”).

That concession makes ample sense. This court has

repeatedly noted that, because the language of the Guidelines

and ACCA residual clauses are the same, “we apply the

ACCA standard to determine whether an offense qualifies as

a crime of violence under section 4B1.2.” In re Sealed Case,

548 F.3d at 1089. That textual linkage did not change when

the residual clause was held unconstitutional. The “grave

uncertainty about how to estimate the risk posed by a crime”

and the “uncertainty about how much risk it takes for a crime

to qualify as a violent felony,” Johnson, 135 S. Ct. at 2557–

2558, brood just as heavily over the Guidelines’ application as

they did over the statute.

Furthermore, constitutional challenges may be brought

against the Guidelines even though they are only advisory.

See Peugh v. United States, 133 S. Ct. 2072, 2082 (2013).

That is because the Guidelines “impose a series of

requirements on sentencing courts that cabin the exercise of

* * * discretion.” Id. at 2084. “Common sense indicates that

in general, this system will steer district courts to more

within-Guidelines sentences.” Id.

So too with a constitutional vagueness challenge. Where

the Guidelines “exert controlling influence on the sentence

that the court will impose,” Peugh, 133 S. Ct. at 2085, an

unconstitutionally vague Guidelines provision that has the

effect of doubling or tripling a defendant’s sentence is

constitutionally troublesome in its own right. Indeed,

multiple courts of appeals have ruled that the Guidelines’

residual clause, like ACCA’s residual clause, is

unconstitutionally vague, as the government has repeatedly

conceded. See United States v. Pawlak, 822 F.3d 902, 911

29

(6th Cir. 2016) (holding so explicitly); United States v.

Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015) (same); United

States v. Townsend, 638 F. App’x 172, 177–178 (3d Cir.

2015) (same); see also United States v. Fields, 823 F.3d 20,

33 (1st Cir. 2016) (noting the government’s concession);

United States v. Martinez, 821 F.3d 984, 988 (8th Cir. 2016)

(same); United States v. Maldonado, 636 F. App’x 807, 810

(2d Cir. 2016) (same); Ramirez v. United States, 799 F.3d

845, 856 (7th Cir. 2015) (“proceed[ing] on the assumption

that the Supreme Court’s reasoning applies to section 4B1.2

as well”). But see United States v. Matchett, 802 F.3d 1185,

1195 (11th Cir. 2015) (holding Peugh inapplicable to due

process challenges). Given the breadth of authority from both

the Supreme Court and other circuits, combined with the

government’s concession in this case and others, the error was

plain. See In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir.

2009) (error can be plain despite a circuit split on the issue).

Finally, the district court’s plain error unquestionably

affected Sheffield’s substantial rights. See Olano, 507 U.S. at

734. Application of the career-offender enhancement

dramatically increased Sheffield’s sentencing exposure. As

the district court specifically mentioned, “[a]bsent this career

offender adjustment,” Sheffield would have faced “a

sentencing range of 92 to 115 months.” Sentencing Tr. 12. In

other words, because of the enhancement, Sheffield was

sentenced to double the top of the Guidelines range he

otherwise would have faced.

Nor can the increase be sustained on the alternative

ground of relying on the “elements clause.” That clause

requires a conviction to be based on a crime that “has as an

element the use, attempted use, or threatened use of physical

force against the person of another.” U.S.S.G. § 4B1.2(a).

Importantly, “[i]n determining whether [a] crime is a violent

30

felony, we consider the offense generically, that is to say, we

examine it in terms of how the law defines the offense and not

in terms of how an individual offender might have committed

it on a particular occasion.” Begay v. United States, 553 U.S.

137, 141 (2008). “The prior conviction qualifies as an ACCA

predicate only if the statute’s elements are the same as, or

narrower than, those of the generic offense.” Descamps, 133

S. Ct. at 2281.

Under that test, D.C.’s attempted robbery statute is not

categorically a crime that “has as an element the use,

attempted use, or threatened use of physical force against the

person of another,” § 4B1.2. At the time Sheffield was

convicted, D.C.’s “[a]ttempt to commit robbery” provision

read: “Whoever attempts to commit robbery, as defined in

§ 22-2801, by an overt act, shall be imprisoned for not more

than 3 years or be fined not more than $500, or both.” D.C.

Code § 22-2802. The robbery statute, in turn, defines the

offense as: “by force or violence, whether against resistance

or by sudden or stealthy seizure or snatching, or by putting in

fear, * * * tak[ing] from the person or immediate actual

possession of another anything of value[.]” Id. § 22-2801.

As the “stealthy seizure” clause indicates, D.C.’s robbery

statute includes “offenses that fail to qualify as crimes of

violence under section 4B1.2.” In re Sealed Case, 548 F.3d at

1089. By the same token, the attempted robbery statute also

“[is] not categorically [a] crime[] of violence,” as the

government recognizes. Gov’t Supp. Br. 8; see also Mathis v.

United States, 136 S. Ct. 2243, 2248 (2016) (“[I]f the crime of

conviction covers any more conduct than the generic offense,

then it is not an ACCA [offense]—even if the defendant’s

actual conduct (i.e., the facts of the crime) fits within the

generic offense’s boundaries.”).

31

There is just one more wrinkle in this inquiry. The

Supreme Court has allowed for a “modified categorical

approach” to identifying crimes of violence for offenses that

do not categorically satisfy the elements clause in those rare

instances when that statutory offense is “divisible.” A statute

is divisible if it “list[s] potential offense elements in the

alternative, [and thus] renders opaque which element played a

part in the defendant’s conviction.” Descamps, 133 S. Ct. at

2283. Under that modified categorical approach to divisible

statutes, a court can review certain types of documents to

determine whether the particular crime that the defendant

committed necessarily included an element of violence,

within the meaning of ACCA or Guidelines § 4B1.1. See

Descamps, 133 S. Ct. at 2283–2284.

But D.C.’s attempted robbery statute is not divisible—

that is, it does not set out “multiple, alternative versions of the

crime” that include both violent and non-violent elements.

Descamps, 133 S. Ct. at 2284. To be sure, this court has held

that D.C.’s robbery statute is divisible because robbery may

be accomplished “against resistance” or “by putting in fear,”

or alternatively, “by sudden or stealthy seizure or snatching.”

In re Sealed Case, 548 F.3d at 1089 (citing D.C. Code § 22-

2801). 5 That means that a person can be convicted of

committing either the violent version of robbery or the non-

violent, stealthy version of robbery. And if a defendant is

convicted of the violent version, the defendant has committed

a crime that has as an element the use of physical force

against the person of another for purposes of Sentencing

Guideline § 4B1.1.

5

This court’s determination that D.C.’s robbery statute is divisible

preceded the Supreme Court’s recent decision in Mathis v. United

States, 136 S. Ct. 2243 (2016), which cast additional light on when

the modified categorical approach applies.

32

The same cannot be said, though, of D.C.’s attempted

robbery statute. That statute does not include those same

alternative versions of the crime. “The elements of attempted

robbery are that (1) the defendant committed an act which

was reasonably adapted to the commission of the offense of

robbery, (2) at the time the act was committed, the defendant

acted with the specific intent to commit the offense of

robbery, and (3) the act went beyond mere preparation, and

carried the project forward to within dangerous proximity of

the criminal end to be sought.” Robinson v. United States,

608 A.2d 115, 116 (D.C. 1992).

Thus, to convict a defendant of attempted robbery, D.C.

law requires a jury to find beyond a reasonable doubt only

that the defendant committed an act in furtherance of and with

the specific intent to commit generic robbery, not any specific

type of robbery (whether violent or stealthy). Nothing in the

statutory text or case law requires a jury, in convicting a

defendant of attempted robbery, to first find that the defendant

committed one of multiple alternative elements, one of which

is a crime of violence under the elements clause. Quite the

contrary, attempted robbery is a loosely defined crime, with

an expansive overt act requirement that is not tied to any

specific type of robbery—violent or otherwise. Indeed, in

Jones v. United States, 386 A.2d 308 (D.C. 1978), the D.C.

Court of Appeals upheld a conviction for attempted robbery

under D.C. law where the defendant had carefully planned a

bank robbery, had “conducted a dry run,” was armed, “was

proceeding toward the bank according to plan and was no

further than four blocks away, turning back only when he

heard police sirens and concluded that something had gone

wrong.” Id. at 312–313. That conviction required no finding

as an element of how the ultimate robbery might have been

committed in terms of violence or stealth.

33

Because attempted robbery is an indivisible crime, we

may not consult documents—such as the indictment or plea

colloquy—to determine whether Sheffield’s offense qualifies

as a crime of violence. See Mathis, 136 S. Ct. at 2254 (The

modified categorical approach “is not to be repurposed as a

technique for discovering whether a defendant's prior

conviction, even though for a too-broad crime, rested on facts

(or otherwise said, involved means) that also could have

satisfied the elements of a generic offense.”). D.C.’s

attempted robbery statute simply does not qualify as a crime

of violence as a categorical matter. See Descamps, 133 S. Ct.

at 2281–2282.

In sum, the district court’s plain error under the residual

clause affected Sheffield’s substantial rights because his

sentence cannot be saved under the elements clause. The

unlawfulness of his sentence necessarily affects the

fundamental fairness and integrity of his conviction.

Sheffield is entitled to a resentencing without the career-

offender enhancement. 6

VII

We affirm Sheffield’s conviction, but vacate his sentence

and remand for resentencing consistent with this decision.

So ordered.

6

Last month, the Supreme Court granted certiorari in Beckles v.

United States, No. 15-8544, to decide whether Johnson applies to

enhancements under Sentencing Guidelines § 4B1.2. The

government, however, has conceded that Sheffield is entitled to a

new sentencing and has not requested that his case be held pending

Beckles. We agree that disposition is appropriate.

SENTELLE, Senior Circuit Judge, concurring in part and

concurring in the judgment: I concur in the decision of the court,

and in much of what the court’s opinion has to say. On only two

points do I differ from the thinking of the majority. First, I do

not join the majority’s discussion in Part IV, concluding that the

district court “improperly allowed the government to admit

‘other crimes’ evidence under Federal Rule of Evidence

404(b).” Maj. Op. at 16.

As the majority recognizes, “[w]e review the district court’s

decision to admit evidence under Rules 403 and 404(b) for an

abuse of discretion.” Id. (citing Henderson v. George Wash.

Univ., 449 F.3d 127, 132-33 (D.C. Cir. 2006); United States v.

Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002)). I see no abuse in

the present record. As the majority notes,

we have recognized that “[a] defendant’s hands-on

experience in the drug trade cannot alone prove that he

possessed drugs on any given occasion.” United States v.

Crowder, 141 F.3d 1202, 1208 n.5 (D.C. Cir. 1998). But “it

can show that he knew how to get drugs, what they looked

like, where to sell them, and so forth.” Id. Said another

way, “[e]vidence of a defendant’s experience in dealing

drugs * * * may be a ‘brick’ in the ‘wall’ of evidence

needed to prove possession.” Id. Thus, the type of

evidence the government introduced here—that of

Sheffield’s prior PCP dealing—would generally be

permissible to show that Sheffield had the requisite

knowledge and intent to possess and distribute the PCP the

officers found in the armrest console.

Maj. Op. at 17.

By holding that the district court nonetheless erred in

admitting the evidence because, under Rule 403, “the staleness

2

of [Sheffield’s 2002] conviction reduces its probative value such

that it is ‘substantially outweigh[ed]’ by the danger of unfair

prejudice already inherent in the admission of prior-bad-act

evidence,” id. at 18 (citing United States v. Bigesby, 685 F.3d

1060, 1065 (D.C. Cir. 2012)), the majority impermissibly

replaces its judgment for that of the district court. See United

States v. Mathis-Gardner, 783 F.3d 1286, 1288 (D.C. Cir. 2015)

(“Our review for abuse of discretion does not permit us to

‘substitute our judgment’ for that of the trial court, . . . so we

cannot decide the issue by determining whether we would have

reached the same conclusion.”). A Rule 403 balancing is, after

all, an evidentiary resolution. In reviewing a finding of fact, if

the district court’s account of the evidence is plausible in light

of the record viewed in its entirety, the court of appeals may not

reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

I see no reason why any different analysis would apply to the

Rule 403 balancing, indeed the majority itself recognizes that

this question is committed to the discretion of the district judge.

I would add that I not only do not understand how we can

properly reverse a balancing whose resolution is allocated to the

district court on nothing more than our differing opinion as to

the effect of “staleness,” but also do not share the majority’s

view that there is staleness. Therefore, of the four judges who

have viewed the question of the admission of this evidence, two

circuit court judges would, apparently in their discretion, not

have admitted it. The district court judge, charged with the

actual duty of deciding whether or not to admit it, decided to

admit it. And, finally, one of the circuit court judges supposed

to review the issue only for abuse of discretion would also have

admitted it.

3

Differing from the majority, I would find no error at all in

the admission of the evidence and would deem it perfectly

consistent with the exception to Rule 404(b) recognized in such

cases as Crowder and with Rule 403. However, though the

majority perceives an error not apparent to me, they deem it

harmless. With that resolution, I join the majority’s disposition

on Sheffield’s merits appeal.

I also differ from the majority with respect to the analysis

supporting its conclusion that there is plain error in the sentence.

See Maj. Op. at 25-33. As I have stated on a prior occasion, “I

fear that this circuit is drifting toward a jurisprudence in which

there is no distinction between reviewing for ‘plain error’ and

simply reviewing to determine whether the district court erred.”

United States v. Head, 817 F.3d 354, 362 (D.C. Cir. 2016)

(Sentelle, J., dissenting). As the majority notes, “the

government now concedes . . . the district court’s application of

the career-offender enhancement was plain error, and Sheffield

is entitled to a new sentencing free from any such

enhancement.” Maj. Op. at 26. Given the centrality of the

prosecutorial function to the power of the Article II executive,

I would simply accept that concession, vacate the sentence, and

remand. As that is the same result reached by the majority, I

concur in the judgment. However, I do not understand the need

to then proceed to analyze whether there is in fact “plain error”

or not in terms that seem to me to be potentially dangerous as

precedent.

Briefly put, I simply do not see any definition of “plain”

that requires an analysis based on a decision as to a different

statutory scheme–that is the sentencing guidelines as opposed to

the Armed Career Criminal Act–and as to which there was no

consensus among the circuits nor controlling authority from this

court or the Supreme Court.

4

That said, in the end, I agree with the court’s judgment as

to both merits and sentencing issues, and I therefore concur.