United States v. James Hennessee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0172p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellant, │

│

> No. 18-5786

v. │

│

│

JAMES HENNESSEE, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Middle District of Tennessee at Columbia.

No. 1:17-cr-00018-1—Aleta Arthur Trauger, District Judge.

Argued: March 19, 2019

Decided and Filed: July 30, 2019

Before: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Cecil W. VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville,

Tennessee, for Appellant. Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,

Tennessee, for Appellee. ON BRIEF: Cecil W. VanDevender, UNITED STATES

ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellant. Michael C. Holley, R. David

Baker, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee.

GIBBONS, J., delivered the opinion of the court in which BOGGS, J., joined. COLE,

C.J. (pp. 13–26), delivered a separate dissenting opinion.

No. 18-5786 United States v. Hennessee Page 2

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. James Hennessee pled guilty to one count of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government

sought an enhanced penalty under § 924(e)(1) based on Hennessee’s three prior convictions for

violent felonies. Hennessee objected on the basis that the government could not prove that two

of his prior offenses were committed on different occasions, as required by the Armed Career

Criminal Act. The district court agreed with Hennessee, finding that our precedent precluded its

review of non-elemental facts in Shepard documents when conducting the different-occasions

analysis. But because a sentencing court may consider non-elemental facts such as times,

locations, and victims in Shepard documents when conducting the different-occasions analysis,

we hold that the district court erred. The facts of Hennessee’s prior convictions—as established

in Shepard-approved documents—indicate that he committed those violent felonies on occasions

different from one another. Thus, the government proved that Hennessee’s prior convictions

qualify him for a sentence enhancement as an armed career criminal. Therefore, we vacate

Hennessee’s sentence and remand to the district court for resentencing with instructions to apply

the enhancement under the Armed Career Criminal Act.

I.

In August 2016, a police officer came across Hennessee in a park in Pulaski, Tennessee.

Hennessee informed the officer that he was on state parole and consented to a search. The

officer searched Hennessee’s person and items nearby on the ground. The officer arrested

Hennessee after finding a digital scale, methamphetamine, hydrocodone pills, and a loaded

handgun. On November 8, 2017, the government charged Hennessee with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Hennessee pled guilty on March

13, 2018.

The Probation Office prepared a presentence investigation report (“PSR”) and

recommended that the district court sentence Hennessee as an armed career criminal based on his

No. 18-5786 United States v. Hennessee Page 3

prior criminal convictions. The PSR identified three prior convictions—one in Limestone

County, Alabama and two in Davidson County, Tennessee—that qualified as violent felonies

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Based on these predicate

offenses, the PSR recommended that the district court impose the mandatory minimum sentence

of fifteen years for a defendant with three predicate violent felonies under the ACCA.

The first predicate offense stemmed from Hennessee’s 2015 convictions for

manufacturing a controlled substance and second-degree assault in Limestone County, Alabama.

Each conviction would independently qualify as an ACCA predicate, but the Probation Office

could not conclusively determine whether the two offenses were “committed on occasions

different from one another,” as required under § 924(e)(1). Consequently, the Probation Office

treated the two Alabama convictions as a single predicate offense.

The second and third ACCA predicates stemmed from Hennessee’s 2006 convictions for

aggravated robbery and attempted aggravated robbery in Davidson County, Tennessee. The

indictment charged Hennessee with committing both offenses on March 3, 2005 in Davidson

County. Hennessee pled guilty to both, and the judgments of conviction were entered on

February 23, 2006. Unlike in the Limestone County case, the Probation Office could discern

facts in the Davidson County record that indicated Hennessee committed the offenses on

different occasions. A review of the transcript reveals that, during Hennessee’s plea colloquy,

the government proffered a factual basis for the guilty plea and described the timing and

locations of the offenses as follows:

[T]he State’s witnesses would be available and the testimony would be that in the

early morning hours, around five o’clock -- four-thirty or five o’clock -- in the

morning of March 3rd, 2005 Mr. Hennessee and his codefendant Mr. Reeves --

first individual approached was the gentleman in Count Two Mr. Alah Basabi

(ph.), who would testify that he was approached by two individuals, that he would

identify as Mr. Hennessee and Mr. Reeves, in the parking lot of his apartment,

which was here in Davidson County, Tennessee (unintelligible) 960 Edmondson

Pike.

...

No. 18-5786 United States v. Hennessee Page 4

And just a few minutes later a Ms. Terry Wainwright was, actually, stopped at a

gas station . . . Mapco Express on Smith Springs Road, getting gas about five-

twenty a.m. when two individuals approached her.

...

Both these events occurred here in Davidson County.

DE 24-3, Davidson County Plea Tr., Page ID 94–95.1 At the end of the government’s summary,

the court asked Hennessee whether the facts as described by the government were true, and

Hennessee said yes.2 Based on Hennessee’s 2006 plea colloquy, the Probation Office concluded

that the two Tennessee offenses were committed on occasions different from one another. Thus,

it recommended that the district court find Hennessee had the requisite three ACCA predicate

offenses to qualify as an armed career criminal.

Hennessee objected, arguing that the government could not show that he committed the

Tennessee offenses on different occasions. Hennessee reasoned that our precedent prohibits

sentencing courts from considering any “features of the prior conviction” other than the

“elements of the prior offense,” and the times and locations on which the government relied were

not elements of his prior offenses under Tennessee law. DE 18, Hennessee Sentencing Position,

Page ID 29. Thus, he argued that the district court could only look to the elements of his

offenses when conducting its different-occasions analysis.

The district court agreed with Hennessee, concluding that Supreme Court and Sixth

Circuit precedent prohibited it from considering any “non-elemental facts”3 when determining

1There are some discrepancies between the victims’ names listed in the indictment and at the plea colloquy.

Count 1 of the indictment charged Hennessee with aggravated robbery of “Jerry Wainwright,” and Count 2 charged

him with attempted aggravated robbery of “Mudhafar J. Aljashami.” DE 24-1, Davidson County Indictment, Page

ID 81–82. We can discern that “Alah Basabi” is the phonetic spelling of Aljashami and that “Jerry” Wainwright and

“Terry” Wainwright are the same individual. Regardless, these spelling errors do not alter our analysis or the fact

that Hennessee pled guilty to each offense charged in the indictment. We are looking at two different victims here:

Aljashami (or Alah Basabi) in the attempted aggravated robbery and Wainwright (Terry or Jerry) in the aggravated

robbery.

2The court specifically asked Hennessee “Are those facts basically true?” DE 24-3, Davidson County Plea

Tr., Page ID 95. We do not read “basically” as qualifying how true the facts were or affecting Hennessee’s

admission of their truth.

3As defined by the Supreme Court, “non-elemental facts” are “amplifying but legally extraneous

circumstances,” as distinct from the elements of a crime. Descamps v. United States, 570 U.S. 254, 270 (2013).

No. 18-5786 United States v. Hennessee Page 5

whether Hennessee’s Tennessee offenses were committed on different occasions. Because the

elements of Hennessee’s aggravated robbery and attempted aggravated robbery convictions are

silent as to the time and location of each offense, the district court concluded that it could not

designate Hennessee as an armed career criminal. The court perceived some tension among

cases in the Sixth Circuit regarding what sources and facts a court may consider when

determining whether prior offenses were committed on different occasions, stating that “at some

point the Sixth Circuit’s going to have to clarify this,” because district courts “need clarification”

on this issue. DE 28, Sentencing Tr., Page ID 128–131.

The district court found that Hennessee was not subject to the penalty enhancement under

the ACCA and sentenced him to 110 months in prison, which both parties agreed was the

appropriate sentence in the absence of an armed-career-criminal designation. The district court

entered its judgment on July 18, 2018. The government timely appealed, arguing that Hennessee

qualifies as an armed career criminal and that the district court erred in declining to consider

non-elemental facts in conducting the different-occasions analysis.

II.

The issues before us are twofold: (1) whether a sentencing court may consider non-

elemental facts in its ACCA different-occasions analysis, and (2) whether Hennessee’s prior

Tennessee offenses were committed on occasions different from one another. We review both

questions of law de novo. United States v. Southers, 866 F.3d 364, 369 (6th Cir. 2017) (“We

review the district court’s decision that Defendant’s offenses were committed on separate

occasions under the ACCA de novo.”); United States v. King, 853 F.3d 267, 270 (6th Cir. 2017)

(“We review de novo the issue of what evidence a court may rely on when deciding whether

prior offenses were ‘committed on occasions different from one another’ as that phrase is used in

the ACCA.”).

Elemental facts are “those constituting elements of the offense” and “the only facts the court can be sure the jury so

found.” Id.

No. 18-5786 United States v. Hennessee Page 6

III.

The ACCA imposes a mandatory minimum of fifteen years for any person who, in

relevant part, “violates section 922(g) of this title and has three previous convictions . . . for a

violent felony . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

This requires two separate inquiries: (1) whether prior convictions qualify as ACCA-predicates,

and (2) whether such offenses were committed on different occasions. The case before us

concerns only the different-occasions analysis.

The district court concluded that Supreme Court and Sixth Circuit precedent prohibited it

from looking to “non-elemental facts”—here, the times and specific locations of Hennessee’s

Tennessee offenses—when determining whether two prior felonies were committed on different

occasions. Under this approach, the district court refused to consider the facts as described

during Hennessee’s plea colloquy. Limiting itself to only elemental facts in Shepard documents,

the district court concluded that the government did not prove that Hennessee committed the

Tennessee offenses on different occasions. The district court thus declined to apply the ACCA

enhancement to Hennessee’s sentence.

The district court implored us to clarify the law of the Sixth Circuit as it pertains to

evidentiary-source limitations in the different-occasions analysis. And with this opinion, we do.

We now clarify that King adopted the Taylor-Shepard evidentiary-source restriction for the

different-occasions analysis and created no limitation on a sentencing court’s consideration of

non-elemental facts contained within Shepard documents. See King, 853 F.3d 267. This reading

of King accords with the approach adopted by the Second, Fourth, Fifth, Seventh, Tenth,

Eleventh, and D.C. Circuits. See, e.g., United States v. Bordeaux, 886 F.3d 189, 196 (2d Cir.

2018); Dantzler, 771 F.3d at 143, 145; United States v. Span, 789 F.3d 320, 326 (4th Cir. 2015);

Kirkland v. United States, 687 F.3d 878, 883 (7th Cir. 2012); United States v. Boykin, 669 F.3d

467, 471 (4th Cir. 2012); United States v. Sneed, 600 F.3d 1326, 1333 (11th Cir. 2010); United

States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009); United States v. Fuller, 453 F.3d 274, 279

(5th Cir. 2006); United States v. Taylor, 413 F.3d 1146, 1157–58 (10th Cir. 2005). These courts

have all previously determined that only Shepard documents may be examined when conducting

No. 18-5786 United States v. Hennessee Page 7

a different-occasions analysis. They have not, however, imported an elemental-facts-only

limitation into the different-occasions analysis, nor do we do so today.

In United States v. King, we adopted the Taylor-Shepard source limitation and applied it

with equal force to the ACCA’s different-occasions analysis. King, 853 F.3d at 269 (adopting

Shepard’s holding that sentencing courts may review only Shepard-approved documents,

including charging document, written plea agreement, transcript of plea colloquy, jury

instructions, judgment of conviction, or other record of comparable findings of fact adopted by

the defendant upon entering a guilty plea, to determine whether a defendant’s prior crimes satisfy

the ACCA) (citing Shepard v. United States, 544 U.S. 13 (2005) and Taylor v. United States,

495 U.S. 575 (1990)). The issue before us in King was as follows: “When a federal district court

is tasked with determining whether a defendant’s prior offenses were ‘committed on occasions

different from one another’ . . . , is the court restricted to using only the evidentiary sources

approved in Taylor and Shepard?” Id. (internal citations omitted). We answered yes and

reversed because the district court reviewed a non-Shepard-approved bill of particulars. Id. at

269, 278. In short, we held in King that a sentencing judge may “identify the who, when, and

where of the prior offenses” in its different-occasions analysis but is constrained to “the

evidentiary sources and information approved by the Supreme Court in Taylor and Shepard.” Id.

at 274–75. In reaching this conclusion, we recognized that the same “legal and policy

rationales” underpinning the source limitation in the ACCA-predicate analysis also applied in the

different-occasions context. Id. By limiting a sentencing court’s repertoire to Shepard

documents, we sought to prevent the judge from finding facts not admitted by the defendant. See

id. at 272 (citing Shepard, 544 U.S. at 25–26). We recognized that, without such evidentiary

restrictions, a sentencing court may “very well abridge the defendant’s Sixth and Fourteenth

Amendment rights.” Id.

The district court interpreted King differently. The district court read King’s reliance on

two post-Shepard cases, Descamps and Mathis, as a signal that sentencing courts are not only

restricted to Shepard documents in the different-occasions analysis, but also limited to elemental

facts inside those documents. In Descamps v. United States, the Court refused to authorize a

modified categorical approach and permit the consideration of extra-statutory evidence—

No. 18-5786 United States v. Hennessee Page 8

Shepard documents—in the ACCA-predicate context when the statute in question is indivisible.

570 U.S. 254, 267–69 (2013). Otherwise, the sentencing court could make its own finding of

fact about the means by which the defendant committed the offense and run afoul of the Sixth

Amendment guarantee. See id. at 269; see also Apprendi, 530 U.S. at 490. In Mathis v. United

States, the Court counseled again that “a judge cannot go beyond identifying the crime of

conviction to explore the manner in which the defendant committed that offense.” 136 S. Ct.

2243, 2252 (2016). To comply with the Sixth Amendment, the sentencing court may not stray

beyond the elements of the prior offense “to determine the means by which [a defendant]

committed his prior crimes.” Id. at 2253. But the district court’s interpretation of King’s

reliance on Descamps and Mathis is flawed. In King, we drew upon the reasoning in Descamps

and Mathis that the Shepard-Taylor source restriction quells constitutional concerns and is

therefore appropriate in the different-occasions analysis. We did not, however, import

Descamps’s and Mathis’s elements-means distinction or elemental-facts restriction to our

different-occasions analysis.

Indeed, in King we recognized that, “because facts relevant to the different-occasions

inquiry, such as the time and location of the prior offense, are most often not elements of the

offense, a proceeding to answer the different-occasions question may well be more extensive

than one to answer the ACCA-predicate question.” King, 853 F.3d at 273 (citing United States v.

Dantzler, 771 F.3d 137, 143–44 (2d Cir. 2014)). This is intuitive. If Congress sought to avoid

mini-trials on ACCA determinations—which it did, see id.—then the sentencing court must be

equipped to answer both the ACCA-predicate inquiry and the different-occasions inquiry.

A sentencing judge can still make the ACCA-predicate determination under both the Shepard-

Taylor source limitation and the elemental-facts-only restriction. A sentencing judge would be

hamstrung, however, in making most different-occasions determinations if he or she were only

allowed to look to elemental facts in Shepard documents which rarely involve date, time, or

location. Such a restriction would not make sense; it would render violent-felony convictions

adjudged together by the same court inseparable in the different-occasions context.

To illustrate, consider a defendant with six prior convictions that qualify as ACCA-

predicate violent felonies: one for aggravated assault and five for aggravated robbery. The

No. 18-5786 United States v. Hennessee Page 9

aggravated assault conviction stands alone, but the five aggravated robberies were charged in the

same indictment, pled guilty to at the same time, and contained in the same judgment of

conviction. Even though this defendant had robbed five different businesses in different cities

across a twelve-hour period, the indictment simply indicated that all five occurred on the same

day in the same county. Assume, however, that during the plea colloquy for the five aggravated

robberies, the defendant admitted to the facts describing the separate locations and times of each

(non-elemental facts). Under Hennessee’s theory, the district court could not consider the

admission of these facts describing locations and times. But this theory reads too many

restrictions into the Shepard-Taylor source limitation and unduly hinders a district court’s ability

to determine whether offenses occurred on different occasions.

Therefore, we find that the district court erred in confining itself to only elemental facts

within Shepard-approved documents when conducting its different-occasions analysis. We hold

that a district court may consider both elemental and non-elemental facts contained in Shepard-

approved documents to determine whether prior felonies were committed on occasions different

from one another for purposes of the ACCA.

IV.

We now turn to the Shepard-approved documents from his Davidson County convictions

to determine whether Hennessee committed the two Tennessee offenses of attempted aggravated

robbery and aggravated robbery on different occasions for purposes of the ACCA. To answer

this question, we employ the well-established Paige test. United States v. Pham, 872 F.3d 799,

802 (6th Cir. 2017) (citing United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011)). Under the

Paige test, two offenses are committed on different occasions if:

(1) “it is possible to discern the point at which the first offense is completed, and

the subsequent point at which the second offense begins”; (2) “it would have been

possible for the offender to cease his criminal conduct after the first offense, and

withdraw without committing the second offense”; or (3) “the offenses are

committed in different residences or business locations.”

Southers, 866 F.3d at 369 (emphasis in original) (quoting United States v. Jones, 673 F.3d 497,

503 (6th Cir. 2012)); see also United States v. Hill, 440 F.3d 292, 297–98 (6th Cir. 2006).

If Hennessee’s prior Tennessee convictions satisfy any one of the three prongs, we can

No. 18-5786 United States v. Hennessee Page 10

conclusively say they were committed on different occasions for purposes of the ACCA. See

Jones, 673 F.3d at 503. Because the facts contained within Shepard documents—namely,

Hennessee’s Davidson County plea colloquy transcript4—satisfy all three prongs of the Paige

test, we hold that Hennessee committed these offenses “on occasions different from one

another.” See 18 U.S.C. § 924(e)(1).

Under the first prong, we can discern the point at which the first offense—attempted

aggravated robbery of Aljashami—was complete and the second offense—aggravated robbery of

Wainwright—began. Hennessee attempted to rob Aljashami in his apartment parking lot at

960 Edmondson Pike sometime between 4:30 and 5:00 a.m. on March 3, 2005. When

Hennessee realized Aljashami did not have any money, Hennessee gave up and left. At that

point, Hennessee’s first offense was complete. Then, around 5:20 a.m., Hennessee approached

Wainwright at a gas station on Smith Springs Road and robbed her at gunpoint. Hennessee’s

departure from Aljashami’s apartment parking lot marked the completion of his first offense, and

his approaching Wainwright at the gas station twenty to fifty minutes later marked the beginning

of his second offense. Thus, we find it “possible to discern the point at which the first offense

[was] completed, and the subsequent point at which the second offense [began].” See Southers,

866 F.3d at 369. The first prong of the Paige test is satisfied.

Under the second prong, we conclude that it would have been possible for Hennessee to

cease his criminal conduct after his failed attempt to rob Aljashami and withdraw without

committing the aggravated robbery of Wainwright. After the attempted robbery of Aljashami in

the apartment parking lot, Hennessee could have stopped and gone home. Instead, he proceeded

to the gas station where he robbed Wainwright. Thus, “it would have been possible for

4On appeal, Hennessee argues that his plea colloquy is insufficient to demonstrate that he committed the

offenses on different occasions because his admission to the government’s factual proffer “did not necessarily

establish” the times or locations at which he committed the offenses. CA6 R. 16, Appellee Br., at 30. We find his

argument unpersuasive. As explained above, a plea colloquy transcript is a Shepard-approved document that the

court may examine in a different-occasions analysis. Hennessee admitted under oath that the factual basis proffered

by the prosecutor was true. In addition, the sentencing judge in the Davidson County case explicitly informed

Hennessee before he admitted the facts or pled guilty that “these convictions today can be used to increase, or

enhance, the punishment of any future felony offenses[.]” DE 24-3, Davidson County Plea Tr., Page ID 91. Thus,

any argument that Hennessee had “no motivation to quibble” or dispute the facts is undercut by the fact that

Hennessee knew the potential implications of that plea hearing.

No. 18-5786 United States v. Hennessee Page 11

[Hennessee] to cease his criminal conduct after the first offense, and withdraw without

committing the second offense.” See id. This is enough to satisfy Paige’s second prong.

Under the third prong, we can easily determine that Hennessee committed these offenses

in different residences or business locations. Hennessee committed the attempted aggravated

robbery of Aljashami at 960 Edmondson Pike in the parking lot of Aljashami’s apartment

building. Hennessee committed the aggravated robbery of Wainwright at a Mapco Express gas

station on Smith Springs Road. Because the apartment parking lot and gas station are clearly

“different residences or business locations,” see id., Hennessee’s offenses satisfy Paige’s third

prong.

We note that there is significant overlap in our analyses of all three prongs: Hennessee’s

first offense and second offense were committed against different victims, in different locations,

and at different times. This redundancy simply fortifies our conclusion that Hennessee

committed these offenses on different occasions. Further, that he committed the attempted

aggravated robbery and aggravated robbery only twenty to fifty minutes apart does nothing to

undermine this conclusion. See United States v. Banner, 518 F. App’x 404, 406 (6th Cir. 2013)

(noting that “the amount of time between the individual offenses is relatively unimportant” as

long as the offenses meet any of the prongs of the Paige test). Similarly, it is irrelevant that

Hennessee committed both offenses in the same city or county when we can discern that he

committed one in an apartment parking lot and one at a gas station. See Paige, 634 F.3d at 873

(finding that five robberies were committed on “different occasions” despite being “close in

location”).

Based on the facts contained within Shepard-approved documents from Hennessee’s

Tennessee convictions, we find all three prongs of the Paige test satisfied.5 We conclude that his

prior offenses were committed on “occasions different from one another,” 18 U.S.C. § 924(e)(1),

and that Hennessee is therefore subject to the sentence enhancement under the ACCA.

5We reiterate, of course, that the facts need only satisfy one prong of the Paige test to establish that

offenses were committed on different occasions.

No. 18-5786 United States v. Hennessee Page 12

V.

For the foregoing reasons, we vacate Hennessee’s sentence and remand to the district

court for resentencing with instructions to apply the enhancement under the Armed Career

Criminal Act.

No. 18-5786 United States v. Hennessee Page 13

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DISSENT

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COLE, Chief Judge, dissenting. In United States v. King, 853 F.3d 267 (6th Cir. 2017),

we placed evidentiary limitations on the ACCA’s different-occasions analysis. Consistent with

Supreme Court precedent, King limited the sources that courts can consider in conducting

judicial factfinding regarding sentencing enhancements. Id. at 273 (citing Mathis v. United

States, 136 S. Ct. 2243 (2016); Descamps v. United States, 570 U.S. 254 (2013); Shepard v.

United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990)). King

established that “Taylor and Shepard’s limitations on the evidentiary sources and information

that a federal district court may consider in determining whether a prior conviction is a predicate

under the ACCA also apply when the court determines whether prior offenses were ‘committed

on occasions different from one another’ under the ACCA.” Id.

King explained that, under this “Taylor-Shepard approach,” sentencing courts are

“restricted to those facts that ‘necessarily’ underlie the prior conviction, i.e., those facts

necessarily determined beyond a reasonable doubt by the trier of fact or necessarily admitted by

the defendant.” Id. (quoting Shepard, 544 U.S. at 20–21). And in applying the Taylor-Shepard

approach, the Supreme Court has rejected the idea that “a factfinder can have ‘necessarily found’

a non-element—that is, a fact that by definition is not necessary to support a conviction.”

Descamps, 570 U.S. at 266 n.3; see id. at 269–70 (“[T]he only facts the court can be sure the jury

so found are those constituting elements of the offense—as distinct from amplifying but legally

extraneous circumstances.”). But today, the majority finds that our holding in King still permits

a sentencing court to “consider non-elemental facts such as times, locations, and victims in

Shepard documents when conducting the different-occasions analysis.” Maj. Op. 2. Because

such a finding contradicts the Supreme Court’s application of Taylor and Shepard, as well as our

own holding in King, I respectfully dissent.

No. 18-5786 United States v. Hennessee Page 14

I.

To explain why I read our holding in King differently from the majority, I first address

the Supreme Court and Sixth Circuit precedent underlying the evidentiary limitations we

imposed in King. Supreme Court precedent prevents courts from conducting judicial factfinding

that impacts a defendant’s sentence, except in limited circumstances. Apprendi v. New Jersey,

530 U.S. 466, 487–90 (2000); Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998).

We have found that one circumstance in which sentencing courts are permitted to make findings

of fact is in determining whether a defendant’s prior offenses took place on different occasions

for the purposes of designating him as a career criminal under the ACCA. United States v.

Burgin, 388 F.3d 177, 186 (6th Cir. 2004). But, until King, we had not yet addressed the

question of which evidentiary sources a sentencing court can use in conducting such judicial

factfinding.

The Supreme Court has taken up that question in a different but related context:

determining whether a prior conviction qualifies as a generic violent felony under the ACCA. In

a series of cases—Taylor, Shepard, Descamps, and Mathis—the Court placed strict limitations

on the evidentiary sources that a sentencing court can consider in conducting judicial factfinding.

The heart of the evidentiary restriction contained in Taylor and its progeny is that sentencing

courts can only consider facts on which the conviction necessarily relied—those that a jury

necessarily found or a defendant necessarily admitted—in enhancing a defendant’s sentence.

See Mathis, 136 S. Ct. at 2255 (“[A]n ACCA penalty may be based only on what a jury

‘necessarily found’ to convict a defendant (or what he necessarily admitted),” and “elements

alone fit that bill; a means, or (as we have called it) ‘non-elemental fact,’ is ‘by definition[ ] not

necessary to support a conviction.’”); Descamps, 570 U.S. at 270, 277 (focusing on whether

prior convictions “require[d] the factfinder (whether jury or judge) to make that determination,”

because sentencing courts cannot consider facts “unnecessary to the crime of conviction”);

Shepard, 544 U.S. at 20–21, 26 (focusing on whether defendant had “necessarily admitted” the

elements of the generic offense such that the “plea had ‘necessarily’ rested on the fact” in

question); Taylor, 495 U.S. at 602 (focusing on whether “jury necessarily had to find” all of the

facts that would be required to convict the defendant of the generic offense). And the Court has

No. 18-5786 United States v. Hennessee Page 15

made clear that “the only facts the court can be sure” are necessary to the conviction “are those

constituting elements of the offense,” as opposed to “non-elemental fact[s].” Descamps,

570 U.S. at 269–70, 277; Mathis, 136 S. Ct. at 2255.

The Court has outlined two justifications behind the elemental-facts restriction that are

relevant in the case before us. The first is that such a restriction “avoids the Sixth Amendment

concerns that would arise from sentencing courts’ making findings of fact that properly belong to

juries,” including facts that increase the defendant’s maximum penalty. Descamps, 570 U.S. at

265, 269. The Court has explained that the same constitutional concern is present in the plea

context: “as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to

a jury determination of only that offense’s elements; whatever he says, or fails to say, about

superfluous facts cannot license a later sentencing court to impose extra punishment.” Id. at 270

(citing Shepard, 544 U.S. at 24–26). The Court found that the elemental-facts restriction

outlined in Taylor and Shepard assuages this constitutional concern, because the existence of a

prior conviction necessitates that the jury or judge found the facts that made up the elements of

that prior conviction. Id. at 269–70. Because the same cannot be said for non-elemental facts,

the Court explained that, under the Taylor-Shepard approach, it is “irrelevant” whether a non-

elemental fact is accurate or whether the defendant ever admitted the fact in question: if the

crime for which the defendant was convicted “does not require the factfinder (whether jury or

judge) to make that determination,” the sentencing court cannot make that determination in

assessing the prior conviction. Id. at 265, 277. Thus, the Descamps Court found that, in

enhancing a defendant’s sentence “based on his supposed acquiescence to a prosecutorial

statement” in a plea colloquy, the sentencing court “did just what we have said it cannot: rely on

its own finding about a non-elemental fact to increase a defendant’s maximum sentence.” Id. at

270.

The second justification is that the elemental-facts restriction “averts ‘the practical

difficulties and potential unfairness of a factual approach.’” Id. at 265. From a practical

standpoint, the consideration of non-elemental facts would require sentencing courts to “expend

resources examining (often aged) documents for evidence that a defendant admitted in a plea

colloquy . . . facts that, although unnecessary to the crime of conviction, satisfy an element of the

No. 18-5786 United States v. Hennessee Page 16

relevant generic offense,” and the “meaning of those documents will often be uncertain.” Id. at

270. And from a fairness perspective, “the statements of fact in [such documents] may be

downright wrong,” especially because a defendant “often has little incentive to contest facts that

are not elements of the charged offense.” Id. at 270–71; see also Mathis, 136 S. Ct. at 2253

(“Statements of ‘non-elemental fact’ in the records of prior convictions are prone to error

precisely because their proof is unnecessary.”). Given these concerns, the Court concluded that

the “ACCA [treats non-elemental] facts as irrelevant: Find them or not, by examining the record

or anything else, a court still may not use them to enhance a sentence,” even where such a

limitation seems “counterintuitive.” Id. at 2251, 2253.

In King, we first addressed the question of which evidentiary sources a sentencing court

can consider for the purposes of the ACCA’s different-occasions analysis. We found that “the

legislative history and constitutional concerns” animating the Court’s decisions in Taylor,

Shepard, Descamps, and Mathis “apply with equal force when a sentencing court undertakes the

different-occasions inquiry.” 853 F.3d at 272–73. For that reason, we reaffirmed Burgin’s rule

that judges can engage in factfinding in conducting the different-occasions analysis, but we

found that, “in identifying those facts, a sentencing judge is constrained to reviewing evidence

approved by Taylor and Shepard.” Id. at 274 (citing Burgin, 388 F.3d at 183). We noted that the

Taylor-Shepard approach applied in the different-occasions analysis because of the previously

articulated constitutional and fairness concerns posed by judicial factfinding that enhances a

defendant’s sentence:

What most convinces us, then, that Taylor and Shepard’s evidentiary restrictions

extend to the different-occasions question is the Supreme Court’s expressed

concern over a judge finding facts that become the basis of an ACCA

enhancement. “Under ACCA, the court’s finding of a predicate offense

indisputably increases the maximum penalty. Accordingly, that finding would (at

the least) raise serious Sixth Amendment concerns if it went beyond merely

identifying a prior conviction.” Descamps, 133 S. Ct. at 2288. Just so with the

different-occasions question: a sentencing court’s finding that prior violent

felonies were “committed on occasions different from one another” can be as

dispositive of an ACCA enhancement as finding that a conviction is a third

ACCA predicate. (Indeed, this is that case.) So if a sentencing judge, in

answering the different-occasions question, became the trier of fact regarding

when and where the prior offenses occurred, that procedure would raise the very

No. 18-5786 United States v. Hennessee Page 17

constitutional concern identified in Shepard and reaffirmed in Descamps and

Mathis.

The Taylor-Shepard approach quells this constitutional concern. Under the

framework of those cases, a judge is restricted to those facts that “necessarily”

underlie the prior conviction, Shepard, 544 U.S. at 20–21, i.e., those facts

necessarily determined beyond a reasonable doubt by the trier of fact or

necessarily admitted by the defendant, see Descamps, 133 S. Ct. at 2288. Thus,

under Taylor and Shepard, a sentencing judge is not finding facts in the first

instance, but merely identifying findings or admissions that were previously made

under constitutional safeguards.

Id. (parallel citations omitted). Accordingly, King concluded that “Taylor and Shepard’s

limitations on the evidentiary sources and information that a federal district court may consider

in determining whether a prior conviction is a predicate under the ACCA also apply when the

court determines whether prior offenses were ‘committed on occasions different from one

another’ under the ACCA.” Id.

And in importing this restriction into the different-occasions analysis, King made

unambiguously clear that we understood that the core of the evidentiary restriction under the

Taylor-Shepard framework is that sentencing courts can only consider facts on which the

conviction necessarily relied. Id. at 272–73 (“The Taylor-Shepard approach quells this

constitutional concern. Under the framework of those cases, a judge is restricted to those facts

that ‘necessarily’ underlie the prior conviction, i.e., those facts necessarily determined beyond a

reasonable doubt by the trier of fact or necessarily admitted by the defendant.”). Accordingly,

I read King to import the elemental-facts restriction into the different-occasions analysis.

II.

Because King adopted the evidentiary limitations imposed by Taylor and its progeny into

the different-occasions analysis, I would find that sentencing courts conducting the different-

occasions analysis can look to Shepard documents and consider facts therein that are “necessary”

to the conviction in determining whether the offenses were committed on different occasions, but

sentencing courts cannot consider any non-elemental facts in applying the ACCA enhancement.

Instead, the majority finds that King intended only to limit sentencing courts’ consideration to

any fact contained within Shepard documents, regardless of whether the fact was necessary to

No. 18-5786 United States v. Hennessee Page 18

the conviction. As the Supreme Court put it in Mathis, “[e]verything this Court has ever said

about ACCA runs counter to the [majority]’s position. That alone is sufficient reason to reject

it[.]” 136 S. Ct. at 2257.

Taylor, Shepard, Descamps, and Mathis confine the sentencing court’s consideration to

certain types of evidence, not certain types of documents. In Shepard, the Court held that, in

determining whether a defendant who pleaded guilty had “necessarily admitted” the elements of

the generic offense, sentencing courts could only consider “the terms of the charging document,

the terms of a plea agreement or transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial

record of this information.” Id. at 26. But these documents cannot be considered wholesale;

rather, they serve as shorthand for the types of permissible evidence that they frequently contain.

Mathis, 136 S. Ct. at 2256–57 (“[S]uch a ‘peek at the [record] documents’ is for ‘the sole and

limited purpose of determining whether [the listed items are] element[s] of the offense.’ (Only if

the answer is yes can the court make further use of the materials[.])”) (internal citation omitted).

The Supreme Court has made abundantly clear that the evidentiary limitation in Taylor

and its progeny require an “elements-only approach,” because “an ACCA penalty may be based

only on what a jury ‘necessarily found’ to convict a defendant (or what he necessarily

admitted),” and a “‘non-elemental fact,’ is ‘by definition[ ] not necessary to support a

conviction.’” Id. at 2254–55 (internal citations omitted) (alteration in original). “Accordingly,

Descamps made clear that when the Court had earlier said (and said and said) ‘elements,’ it

meant just that and nothing else.” Id. at 2255.

King itself also made clear that it was looking to only those facts “necessarily admitted,”

not to the charging documents as a whole. There, the government had argued that, “in limiting a

court applying the ACCA to what King necessarily admitted, we apply Shepard’s restrictions too

strictly.” 853 F.3d at 276. But King noted that “Shepard made clear that the task was to identify

whether a prior conviction ‘necessarily’ rested on the elements of the generic offense,” and “with

a plea-colloquy transcript, the written plea agreement, or a comparable record, ‘a later court

could generally tell whether the plea had ‘necessarily’ rested on the fact identifying the burglary

as generic.’” Id. at 277 (quoting Shepard, 544 U.S. at 20–21, 26). King added:

No. 18-5786 United States v. Hennessee Page 19

But, one might argue, if the Supreme Court had truly wanted to limit courts

making the ACCA-predicate determination to those facts necessarily admitted by

the defendant or necessarily found by a jury, then why reference “charging

documents” generally, rather than the necessary facts or elements within the

charging documents? The answer, we think, lies in the issue presented to the

Court in Shepard. Insofar as a sentencing court’s task is to identify which

elements underlie a prior conviction, the terms of the charging document will

always be appropriate to consider: a conviction necessarily means the elements—

but not “superfluous facts,” Descamps, 133 S.Ct. at 2288—charged in the

indictment were found by a jury or admitted by the defendant.

This understanding of Shepard is not new. We have previously read Shepard to

permit courts to consider only those facts that a defendant necessarily admitted in

pleading guilty. See United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th

Cir. 2009) (“[Shepard] requires a judicial record that identifies the facts a

defendant ‘necessarily admitted’ in entering a guilty plea—as Shepard itself

demonstrates.”).

Id.

The majority correctly notes that its interpretation of King “accords with the approach

adopted by the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits.” Maj. Op. 6.

But these other circuits’ approaches do not conform to the restriction we set out in King. As the

concurring judges explained in United States v. Perry, 908 F.3d 1126 (8th Cir. 2018), the

majority rule runs contrary to the Supreme Court’s approach in Taylor and Shepard, which has

been made only more evident in more recent cases like Descamps and Mathis. Perry, 908 F.3d

at 1134 (Stras, J., concurring) (“Inertia may be part of the explanation. Sometimes courts just

continue along the same well-trodden path even in the face of clear signs to turn around.”); id. at

1137 (Kelly, J., concurring) (“[I]n most cases, properly used Shepard documents would not

assist the district court in its different-occasions determination, because time, place, and overall

substantive continuity are facts, not legal elements, of the prior offenses,” and judicial

factfinding of non-elemental facts appears to “conflict with Supreme Court precedent.”).

In Perry, Judge Stras explained why permitting consideration of non-elemental facts

contained within Shepard documents was constitutionally problematic:

A misunderstanding of the permissible uses of Shepard documents may also

account for the predominant view. Some courts claim that there is no Sixth

Amendment problem as long as courts limit themselves to facts taken from

No. 18-5786 United States v. Hennessee Page 20

charging documents, plea agreements, and comparable materials—more

commonly known as Shepard documents. “[R]epurpos[ing]” Taylor and Shepard

to justify judicial fact-finding, however, turns those decisions on their heads. . . .

Shepard documents . . . serve a specific and narrow function; they are not an

excuse for allowing courts to dig through the record to find facts. To the contrary,

properly used, they do not support fact-finding at all. The Court made that

abundantly clear in Descamps by prohibiting judges from “look[ing] to reliable

materials (the charging document, jury instructions, plea colloquy, and so forth) to

determine what facts [could] confidently be thought to underlie the defendant’s

conviction.” The reason, the Court explained, is that when there is no need to

choose between multiple possible crimes, Shepard documents simply “ha[ve] no

role to play.”

The approach the Court rejected in Descamps is not meaningfully different from

using Shepard documents to make the different-occasions determination. Both

call for sifting through record materials for evidence of what a defendant actually

did, either to determine whether it fits the definition of a violent felony, or to

determine if two or more crimes were committed on different occasions. If one

improperly “convert[s] [the categorical] approach into its opposite,” Descamps,

570 U.S. at 274, so does the other.

Id. at 1135–36 (Stras, J., concurring) (internal citations omitted). Because King held that

sentencing courts could only consider “facts that ‘necessarily’ underlie the prior conviction, i.e.,

those facts necessarily determined beyond a reasonable doubt by the trier of fact or necessarily

admitted by the defendant,” 853 F.3d at 273, the majority rule falls short here for the same

reasons that the judges concurring in Perry explained.

I also part ways with the majority’s interpretation of King regarding the very

constitutional and fairness concerns that King set out to avoid in adopting the Taylor-Shepard

approach. The Supreme Court has repeatedly held that relying on non-elemental facts that a

defendant admitted in a plea colloquy is constitutionally problematic because, “as Shepard

indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination

of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot

license a later sentencing court to impose extra punishment.” Descamps, 570 U.S. at 270. As

the Court explained in Descamps:

A defendant, after all, often has little incentive to contest facts that are not

elements of the charged offense—and may have good reason not to. [D]uring

plea hearings, the defendant may not wish to irk the prosecutor or court by

No. 18-5786 United States v. Hennessee Page 21

squabbling about superfluous factual allegations. In this case, for example,

Descamps may have let the prosecutor’s statement go by because it was irrelevant

to the proceedings. He likely was not thinking about the possibility that his

silence could come back to haunt him in an ACCA sentencing 30 years in the

future.

Id. at 270–71 (internal citations omitted). And in Mathis, the Court made a similar assessment

regarding the unfairness of a sentencing court’s use of non-elemental facts to enhance a

defendant’s sentence:

Statements of “non-elemental fact” in the records of prior convictions are prone to

error precisely because their proof is unnecessary. At trial, and still more at plea

hearings, a defendant may have no incentive to contest what does not matter

under the law; to the contrary, he “may have good reason not to”—or even be

precluded from doing so by the court. When that is true, a prosecutor’s or judge’s

mistake as to means, reflected in the record, is likely to go uncorrected. Such

inaccuracies should not come back to haunt the defendant many years down the

road by triggering a lengthy mandatory sentence.

136 S. Ct. at 2253 (internal citations omitted).

The facts of this case illustrate just how relevant those concerns remain in the context of

the different-occasions analysis. Here, the government asks us to add five years to Hennessee’s

sentence because, after the prosecutor recited a jumbled version of the facts that was inconsistent

with the locations listed in the indictment and that left the timing of the two offenses unclear,

Hennessee summarily agreed those facts were “basically true” in order to facilitate a plea deal.

(Plea Tr., R. 24-3, PageID 94–95.)

Nor are the practical concerns we noted in King avoided by the majority’s interpretation.

Our decision in King noted that many of the practical concerns outlined in Mathis and Descamps

applied in the context of the different-occasions analysis. Id. at 272–73. For example,

“Congress’s desire to avoid mini-trials almost assuredly covers not only proceedings to answer

the ACCA-predicate question but also proceedings to answer the different-occasions question.”

Id. at 273. As we noted in King, the Court’s concerns regarding fact-finding are amplified in the

context of the different-occasions analysis: the majority itself acknowledges that, “because facts

relevant to the different-occasions inquiry, such as the time and location of the prior offense, are

most often not elements of the offense, a proceeding to answer the different-occasions question

No. 18-5786 United States v. Hennessee Page 22

may well be more extensive than one to answer the ACCA-predicate question.” Maj. Op. 8

(quoting King, 853 F.3d at 273).

This case provides an excellent example of the types of mini-trials that would unfold by

permitting district courts to look to non-elemental facts contained within Shepard documents.

The government argues that the Shepard documents straightforwardly demonstrate that the

offenses were committed on different occasions, contending that the plea colloquy demonstrates

the offenses took place at different times and locations, and Hennessee admitted to the facts in

the plea colloquy. But Hennessee resists this characterization of the Shepard documents on three

separate grounds.

First, there are several discrepancies between two different Shepard documents before the

sentencing court—namely, the indictment and the plea colloquy. For example, as the majority

notes, both victims’ names are different across the two documents: changing from “Jerry

Wainwright” to “Ms. Terry Wainwright,” and from “Mudhafar J. Aljashami” to “Mr. Alah

Basabi (ph.).” (Indictment, R. 24-1, PageID 81–82; Plea Tr., R. 24-3, PageID 94). More

critically, the address of the apartment where the government asserted the first robbery occurred

differs in the indictment and the plea colloquy, changing from “4960 Edmondson Pk.” to “960

Edmondson Pike.” (Indictment, R. 24-1, PageID 80; Plea Tr., R. 24-3, PageID 94.) The impact

of this discrepancy is made especially clear in conjunction with the government’s request that we

take judicial notice of the fact that a Mapco Express currently located at 2827 Smith Springs

Road in Nashville, Tennessee, is located roughly 13–14 miles from 960 Edmondson Pike in

Brentwood, Tennessee, based on a present-day Google Maps search. Hennessee opposes this

request, noting that none of the documents surrounding his conviction list an exact address on

Smith Springs Road, and arguing that “[w]hile the government, looking at Google Maps in 2018,

guesses that the incident in 2005 occurred where a Mapco gas station is located on Smith Springs

Road thirteen years after the fact, that is speculation.” (Appellee Br. 37–38 n.3.) Additionally,

Hennessee points out that the plea colloquy transcript indicated that the prosecutor seemed

unsure about the location of the gas station robbery, and he notes that a Mapco gas station also

exists on Edmondson Pike. A second Google Maps search reveals that the Mapco station

No. 18-5786 United States v. Hennessee Page 23

Hennessee references is less than a mile from 4960 Edmondson Pike, the address listed for the

apartment in the indictment.

Even apart from the discrepancies across documents, the prosecutor’s recitation of the

facts within the plea colloquy was muddled, representing that the offenses took place “just a few

minutes” apart, or perhaps twenty minutes apart (5:00 a.m. to 5:20 a.m.), or maybe fifty minutes

apart (4:30 a.m. to 5:20 a.m.). (Plea Tr., R. 24-3, PageID 94–95.) Any of these scenarios would

be a reasonable reading of the prosecutor’s recitation of the facts, yet only the final option is

expressly covered by the case the government cites as support. (Appellant Br. 34 (citing United

States v. Brady, 988 F.2d 664, 665 (6th Cir. 1993) (en banc) (finding that “two armed robberies

of different victims at different locations committed approximately thirty minutes apart were

‘committed on occasions different from one another’”).)

Finally, Hennessee did not present his own version of the facts, nor did he clarify the

timing or location of the offenses at the plea colloquy. Hennessee’s so-called admission was

that, when he was asked to confirm whether the prosecutor’s disjointed recitation of the facts was

“basically true,” he responded, “Yes, sir.” (Plea Tr., R. 24-3, PageID 95.) Because the court

added the qualifier “basically,” a sentencing court could reasonably find that Hennessee would

not have quibbled with details like times or locations, given that he agreed with the basic

elemental facts that he had robbed or attempted to rob each of the victims referenced in the plea

colloquy, which were the only facts essential to the plea. See Descamps, 570 U.S. at 265;

Mathis, 136 S. Ct. at 2253. Given that the robberies were close in both time and location, the

difference between whether the facts as described were “true” or “basically true” may be

outcome determinative.

I raise these disputes not to cast light on which of the parties would prevail, but to

highlight that permitting sentencing courts to review non-elemental facts within Shepard

documents will require courts to resolve the very type of disputes that King and the Supreme

Court sought to avoid. In contrast, the elemental-facts restriction would forbid sentencing courts

from considering these facts and avoid these time-intensive disputes altogether.

No. 18-5786 United States v. Hennessee Page 24

III.

The majority rejects King’s elemental-facts restriction because limiting sentencing courts

to consideration of “elemental facts in Shepard documents which rarely involve date, time, or

location” would leave courts “hamstrung” in “making most different-occasions determinations,”

given that such a restriction “would render violent-felony convictions adjudged together by the

same court inseparable in the different-occasions context.” Maj. Op. 8. The majority says such

an interpretation “would not make sense.” Id. I disagree.

First, King’s evidentiary limitation only impacts the different-occasions analysis in a

specific subset of cases: those in which the relevant prior offenses were charged or pleaded

together. If Hennessee’s prior convictions had been for three aggravated robberies in Davidson

County, Tennessee—one in 2006, one in 2010, and one in 2016—the district court would not

have needed to turn to the Shepard documents to determine whether the offenses were

committed on different occasions.

Second, even within the context of these cases, sentencing courts are only “hamstrung”

by King in the sense that they would not be permitted to consider evidence of non-elemental

facts—they will not have to search for the evidence elsewhere; rather, their inability to consider

non-elemental facts will simply result in fewer findings that offenses committed on the same day

qualify as separate predicate offenses under the ACCA. The majority says that this result “would

not make sense,” as it places too many restrictions on district courts. Maj. Op. 8. However,

I would not determine the applicability of a constitutional safeguard based on whether it would

hamstring a district court, especially where the very purpose of the constitutional protection is to

limit the types of evidence on which courts can rely. For example, a defendant’s right to

confront the witnesses against him also prevents courts from considering all the available

evidence. Yet we would not question whether this constitutional safeguard applies even where

the excluded testimony would otherwise be material to the district court’s analysis.

Third, the majority asserts that it “would not make sense” to preclude courts from

applying an ACCA enhancement based upon multiple offenses committed on the same day. The

majority reasons that, if the elemental-facts restriction were in place, a defendant who “robbed

No. 18-5786 United States v. Hennessee Page 25

five different businesses in different cities across a twelve-hour period” would not qualify as an

armed career criminal if those robberies were charged in the same indictment, pled guilty to at

the same time, and contained in the same judgment of conviction. Maj. Op. 9. But it has not

always been a foregone conclusion that such offenses would or should suffice as separate

predicates. To the contrary, in the years after Congress added the requirement that the three

predicate offenses be “committed on occasions different from one another” to the ACCA, five

judges on this court dissented from that conclusion in one of our en banc decisions, arguing that

counting offenses committed on the same day as separate predicate offenses would effectively

eliminate “the concept of career in the general philosophy behind (not to mention the title of) the

Armed Career Criminal Act” and render the new “committed on occasions different from one

another” language “utterly meaningless.” Brady, 988 F.2d at 675–77 (Jones, J., dissenting) (“In

essence, the majority holds that Brady has had a ‘career’ in less than an hour. It misses logic to

hold that a ‘career’ can comprise the events of a single evening, or more aptly put, less than one

hour, and thereby subject him to fifteen years of incarceration.”). To be sure, neither this court

nor the other circuits adopted this understanding of the different-occasions requirement. But

I am persuaded that such an approach, which garnered the support of five judges on this court,

makes sense, especially if the constitutional concerns identified in Taylor and its progeny compel

such a result.

Fourth, King spoke directly to the majority’s concern that forbidding sentencing courts

from “consider[ing] the admission of these facts describing locations and times . . . reads too

many restrictions into the Shepard-Taylor source limitation and unduly hinders a district court’s

ability to determine whether offenses occurred on different occasions.” Maj. Op. 9. King

contains the following language regarding the continued vitality of the different-occasions

analysis in conjunction with evidentiary limitations imposed by Taylor and Shepard:

The Government also raises a practical argument. It asks, how can a district court

answer the different-occasions question if it is “blinded” to the evidence it needs

to make that determination by Taylor and Shepard’s restrictions?

We recognize that in some cases Taylor and Shepard evidence will not be

sufficient for a district court to determine that prior offenses occurred on different

occasions while a broader swath of evidence would permit the determination. But

a similar practical argument was raised and rejected in Shepard. There, it was

No. 18-5786 United States v. Hennessee Page 26

argued that a police report, “free from any inconsistent, competing evidence,”

would have reliably shown that the defendant had burglarized a building (as the

ACCA’s burglary predicate required), whereas, absent the report, it was (likely)

impossible to identify which of several alternatives was the basis of the prior

conviction. See Shepard, 544 U.S. at 17–18, 22[.] This concern, the Court

explained, was not “sufficient justification for upsetting precedent,” particularly

as Taylor’s evidentiary limitation “was the heart of [that] decision.” See id. at 23.

The Court further noted that “time has enhanced even the usual precedential

force” of Taylor because in the intervening fifteen years, Congress had made no

change to the statute. Id. In reaching our decision based on the same reasoning,

we likewise respect precedent.

853 F.3d at 274–75 (parallel citations omitted).

In this passage, King made clear that its decision to import the evidentiary restriction at

the heart of Taylor limits the breadth of the ACCA’s different-occasions analysis, and it openly

acknowledged that this evidentiary restriction would prevent sentencing courts from considering

otherwise available evidence that would demonstrate that the prior offenses occurred on different

occasions. Still, it found that the fact that these restrictions would hinder sentencing courts was

not sufficient justification to stray from the evidentiary limitation at the heart of Taylor. Id. This

same intuition is reflected in Mathis, where the Supreme Court concluded that sentencing courts

cannot use non-elemental facts to enhance a defendant’s sentence under the ACCA, even in

cases where that restriction seems impractical or “counterintuitive.” 136 S. Ct. at 2251, 2253

(“That rule can seem counterintuitive: In some cases, a sentencing judge knows (or can easily

discover) that the defendant carried out a ‘real’ burglary, even though the crime of conviction

also extends to other conduct. No matter.”).

We cannot, in this case, rewrite King altogether. A straightforward reading of King and

the cases on which it relies makes clear that, “whether for good or for ill, the elements-based

approach remains the law.” Mathis, 136 S. Ct. at 2257.

IV.

For the above reasons, I respectfully dissent.