Jeffrey Kirkland v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2507

JEFFREY D. K IRKLAND,

Petitioner-Appellant,

v.

U NITED S TATES OF A MERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:09-CV-335—Jon E. DeGuilio, Judge.

A RGUED JANUARY 20, 2012—D ECIDED JULY 24, 2012

Before F LAUM and R OVNER, Circuit Judges, and

C ASTILLO, District Judge.Œ

C ASTILLO, District Judge. Jeffrey Kirkland was con-

victed of unlawful possession of a firearm by a felon, and

based on a finding that he had five “violent felony”

convictions, including two drunk driving offenses, the

Œ

The Honorable Ruben Castillo, United States District Court

for the Northern District of Illinois, sitting by designation.

2 No. 11-2507

district court sentenced him as an armed career criminal

pursuant to the Armed Career Criminal Act, 18 U.S.C.

§ 924(e) (“ACCA”). After the Supreme Court deter-

mined that drunk driving is not a “violent felony” as the

term is defined in the ACCA, Begay v. United States,

553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008),

Kirkland filed a petition for relief under 28 U.S.C. § 2255.

The district court denied Kirkland’s petition. On appeal,

we vacated that judgment and remanded the case with

directions for the district court to determine whether

Kirkland still qualified as a career criminal absent

the two convictions for drunk driving. On remand, the

district court concluded that an enhancement of Kirk-

land’s sentence under the ACCA was still appropriate

based on his three remaining convictions for violent

felonies.

Kirkland appeals on two grounds: first, that the

district court erred in determining that two of Kirkland’s

“violent felony” convictions that arose from events on a

single day constituted separate predicate offenses under

the ACCA, and second, that the district court erred in

not admitting Kirkland’s testimony and affidavit at his

resentencing hearing. We reverse.1

1

This opinion has been circulated to the full court pursuant

to Circuit Rule 40(e). No judge in active service requested to

hear this case en banc.

No. 11-2507 3

I. BACKGROUND

On August 15, 2006, a jury found Kirkland guilty of

unlawful possession of a firearm by a felon in violation

of 18 U.S.C. § 922(g)(1). At sentencing, the district court

adopted the findings of the presentence investigation

report (“PSR”), which indicated that Kirkland’s crim-

inal history included five “violent felony” convictions:

a 1984 conviction for burglary; a 1985 conviction for

burglary; a 1985 conviction for aggravated robbery;

a 2001 conviction for operating while intoxicated; and a

2003 conviction for operating while intoxicated. Based on

the PSR’s findings, the district court concluded that

Kirkland qualified as an armed career criminal under

the ACCA, which increases the penalty for possession of

a firearm by a felon when a defendant has three

predicate convictions for “violent felon[ies]” as defined in

the ACCA that were “committed on occasions different

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

court sentenced Kirkland to the mandatory fifteen-year

minimum under the ACCA.

In 2008, the Supreme Court held in Begay that the

felony offense of driving under the influence is not a

“violent felony” within the meaning of the ACCA. 553

U.S. at 148, 128 S.Ct. 1581. Kirkland subsequently filed a

§ 2255 petition challenging his sentence, which the

district court denied. On appeal, we remanded the case

to the district court for further consideration in light of

our holding in Welch v. United States, 604 F.3d 408 (7th

Cir. 2010), that Begay applies retroactively.

On remand, the district court considered whether

Kirkland qualified as an armed career criminal based on

4 No. 11-2507

his three remaining felony convictions—the 1984 bur-

glary conviction and the 1985 burglary and aggravated

robbery convictions. The government maintained that

Kirkland’s enhanced sentence was valid because the

three remaining convictions were violent felonies as

defined by the ACCA. Kirkland conceded that all three

convictions were violent felonies, but argued that the

1985 convictions could not serve as separate predicate

felonies under the ACCA because they were not com-

mitted on “occasions different from one another,” as

required by § 924(e)(1).

The district court conducted a resentencing hearing to

resolve this disputed issue. At the hearing, the parties

submitted the charging documents, the judgments, and

the plea questionnaires from the 1985 convictions. The

two charging documents indicate that both the burglary

and the robbery occurred on February 6, 1985. The

first document, an information for cause number “C 85-

104,” charges Kirkland, Johnny Henry Yearley, and Karen

Sue Foster with burglary and second degree battery.

The information states that Kirkland, Yearley, and Foster

committed the burglary in the home of Charles Gabbard,

and that Gabbard was the victim of the battery.2 It does

2

Specifically, the “C 85-104” information states that:

Johnny Henry Yearley, Jeffrey Dean Kirkland & Karen Sue

Foster in said Washington County, State of Arkansas, on or

about the 6th day of February, 1985, did unlawfully,

feloniously and with the purpose of committing an offense

(continued...)

No. 11-2507 5

not provide a time for the offense. The second informa-

tion, for cause number “C 85-105,” charges the same

three defendants with aggravated robbery and theft of

property, and indicates that the defendants robbed an

unnamed individual and stole cash and pizza that was

property of “Dominoe’s [sic] Pizza.” 3 The information

for cause number “C 85-105” does not indicate the

time or location of the robbery and theft.

2

(...continued)

punishable by imprisonment, enter or remain in the resi-

dence of Charles Gabbard, an occupiable structure in

violation of Ark. Stats. Ann. § 41-2002; and,

did unlawfully, feloniously and with the purpose of causing

physical injury to another person, cause physical injury

to Charles Gabbard, in violation of Ark. Stats. Ann. § 41-

1602.

3

The “C 85-105" information states that:

Johnny Henry Yearley, Jeffrey Dean Kirkland & Karen Sue

Foster in said Washington County, State of Arkansas, on or

about the 6th day of February, 1985, did unlawfully,

feloniously and with the purpose of committing a theft, or

resisting apprehension immediately thereafter, employ or

threaten to immediately employ physical force upon

another person, while armed with a deadly weapon, or

representation that he was so armed, in violation of

Ark. Stats. Ann. § 41-2102; and,

did unlawfully and with the purpose of depriving the

owner of its property, knowingly take or exercise unautho-

rized control over cash and pizza, such being the property

of Dominoe’s [sic] Pizza, in violation of Ark. Stats. Ann.

§ 41-2203.

6 No. 11-2507

The judgments and plea questionnaires for the 1985

offenses that were submitted to the district court do

not provide further information regarding the offenses.

The two judgments are identical except for the cause

numbers, the crimes listed, and the sentencing informa-

tion. The two plea questionnaires are also the same

aside from the cause numbers listed at the top of the

page.4 Despite the best efforts of the probation officer,

no additional records for the 1985 offenses were located.

At the hearing, the parties agreed that under Shepard

v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d

205 (2005), the district court could only consider the

charging documents, the judgments, and the plea ques-

tionnaires from the 1985 convictions in determining

whether Kirkland’s convictions were for offenses that

occurred on different occasions. Based on this record,

the government conceded that it was possible that the

two offenses occurred simultaneously given that

Kirkland was convicted of the offenses with two co-

defendants, and there was no information regarding

the time of either offense or the location of the robbery

to indicate otherwise. Nevertheless, the government

argued that the ACCA enhancement was appropriate

because Kirkland could not show that the offenses oc-

curred on the same occasion. Kirkland, in turn, agreed

4

In fact, the plea questionnaires appear to be copies of the

same document with one cause number scratched out and

replaced by the other cause number. Both plea questionnaires

therefore list all four offenses—aggravated robbery, theft of

property, burglary, and battery.

No. 11-2507 7

that the ambiguities in the record created a situation

in which, at best, the district court was left with “a guess”

as to what occurred if it only considered Shepard-

approved documents. He accordingly offered an

affidavit and testimony regarding the events that led to

the 1985 convictions in an effort to show that the

offenses occurred on the same occasion, even though

he conceded that such evidence was not contemplated

by Shepard.

Before determining whether the burglary and robbery

convictions resulted from offenses that were committed

on separate occasions, the district court concluded

that Shepard precluded it from considering Kirkland’s

affidavit or testimony.5 That left, as the district court

put it, a “factually sparse” record relevant to deter-

mining whether the offenses were “committed on occa-

sions different from one another.” In particular, the

district court noted that the record lacked information

regarding the timing of the offenses and the location

of the robbery. The fact that two co-defendants were

involved in both offenses further complicated the

inquiry as to the sequence of events. Ultimately, the

district court concluded that “based on the limited facts

available for review,” Kirkland could not prove by a

preponderance of the evidence that the offenses

5

The government also submitted a Department of Correction

admissions record, but the district court declined to consider

it. The district court also declined to consider portions of

the PSR that were not based on Shepard-approved sources.

8 No. 11-2507

occurred on a single occasion. Accordingly, the district

court denied Kirkland’s § 2255 petition because the

1985 convictions for burglary and robbery, combined

with the undisputed 1984 conviction for burglary,

served as the necessary predicates for an enhance-

ment under the ACCA. In an alternative holding, the

district court considered Kirkland’s testimony and deter-

mined that it did not alter its conclusion that the ACCA

enhancement was warranted in this case. Following

the district court’s granting of a certificate of appeal-

ability, Kirkland appealed.

II. DISCUSSION

Kirkland challenges the district court’s use of his 1985

convictions to enhance his sentence under the ACCA

because he contends that the violent felonies were com-

mitted on the same occasion. We review de novo the

district court’s application of the ACCA to Kirkland’s

sentence. United States v. Foster, 652 F.3d 776, 792 (7th

Cir. 2011) (citing United States v. Fife, 624 F.3d 441,

445 (7th Cir. 2010)). Any factual findings related to

Kirkland’s prior convictions, however, are reviewed for

clear error. Id. (citing United States v. Aljabari, 626 F.3d 940,

950 (7th Cir. 2010)).

A. Shepard Source Restriction

Before reaching Kirkland’s primary argument on

appeal, we first address the preliminary issue of whether

the evidentiary restrictions set forth in Shepard v. United

No. 11-2507 9

States apply to the “different occasion” inquiry under

§ 924(e)(1). We agree with the district court that Shepard

does apply, and though we have indicated as much in

prior opinions, see United States v. Ngo, 406 F.3d 839, 843

n.1 (7th Cir. 2005), United States v. Hunter, 418 Fed.

Appx. 490, 494 (7th Cir. 2011), we briefly explain our

reasoning in an attempt to clarify this constantly

evolving and “not always very logical” area of the law,

United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006).

The ACCA provides that anyone who has “three previ-

ous convictions . . . for a violent felony or a serious drug

offense, or both, committed on occasions different from

one another” is an armed career criminal and subject to

a fifteen-year mandatory minimum sentence. 18 U.S.C.

§ 924(e)(1). In Taylor v. United States, the Supreme

Court addressed how a district court may determine

whether a prior conviction qualifies as a “violent felony”

as defined under § 924(e)(1). 495 U.S. 575, 110 S.Ct.

2143, 109 L.Ed.2d 607 (1990). The defendant in Taylor

pleaded guilty to possession of a firearm by a felon in

violation of § 922(g)(1), and the government sought a

sentencing enhancement under § 924(e) based on his

criminal history that included burglary convictions. Id.

at 578-59, 110 S.Ct. 2143. The defendant argued that

although “burglary” is one of the “violent felon[ies]”

identified in § 924(e)(2)(B), his prior convictions for

burglary could not be predicate offenses because they

did not involve conduct presenting “a serious potential

risk of physical injury to another” as required by

10 No. 11-2507

§ 924(e)(2)(B)(ii). Id. at 579, 110 S.Ct. 2143.6 The Court

first determined that the “generic” meaning of burglary

was the proper definition of “burglary” under § 924(e),

meaning that if a defendant’s prior conviction involved

a crime with the basic elements of “generic burglary,”

regardless of the label of the conviction, the conviction

counts as a predicate offense for purposes of § 924(e). Id.

at 599, 110 S.Ct. 2143.

The Court next addressed the question of how to deter-

mine if a defendant’s prior conviction for burglary

qualifies as a conviction for “generic burglary” where

the state statute under which the defendant is convicted

6

18 U.S.C. § 924(e) provides:

(1) In the case of a person who violates section 922(g) . . .

and has three previous convictions by any court . . . for a

violent felony or a serious drug offense, or both . . . such

person shall be fined not more than $25,000 and impris-

oned not less than fifteen years.

(2) As used in this subsection— . . .

(B) the term “violent felony” means any crime punish-

able by imprisonment for a term exceeding one

year . . . that—

(i) has an element the use, attempted use, or

threatened use of physical force against the

person of another; or

(ii) is burglary, arson, or extortion, involves use

of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another.

No. 11-2507 11

varies from the “generic definition.” Id. at 599, 110 S.Ct.

2143. The Court concluded that the plain language of

the ACCA, its legislative history, and practical consider-

ations require “a formal categorical approach” to this

inquiry that permits the trial court to look only to “the

fact of conviction and the statutory definition of the

prior offense” and “not to the facts underlying the

prior conviction.” Id. at 600-02, 110 S.Ct. 2143. The

Court acknowledged an exception in cases in which

the statutory definition of an offense encompasses

conduct that would qualify as a “violent felony” and other

conduct that would not. Id. at 602. In this “narrow range

of cases,” the district court can look to the charging

document and jury instructions to determine if the de-

fendant was “necessarily” convicted of conduct that

qualifies as a “violent felony.” Id.

In United States v. Hudspeth, a majority of this court

held that the source restriction outlined in Taylor for the

determination of whether an offense qualifies as a

“violent felony” did not apply when deciding whether

multiple offenses occurred on one or more “occasions.” 42

F.3d 1015, 1018 n.3 (7th Cir. 1994) (en banc). The majority

reasoned that “[a]s a practical matter, a district court

frequently must look beyond the charging papers and

judgment of conviction for these documents alone

rarely provide the district court with the detailed infor-

mation necessary (i.e., time, victim, location) to deter-

mine whether multiple offenses occurred on one or more

‘occasions.’ ” Id. Accordingly, under Hudspeth, a district

court could rely on documents such as police reports

that were not permissible under Taylor to examine the

12 No. 11-2507

factual underpinnings of a defendant’s prior convic-

tions. Id.

In 2005, the Supreme Court revisited the issue of what

materials a sentencing court may consider in deter-

mining the nature of a defendant’s prior felony convic-

tions for purposes of § 924(e)(1) in Shepard. 544 U.S. at 16,

125 S.Ct. 1254. Shepard, like Taylor, involved a prior bur-

glary conviction in a state in which the burglary

statute covered a broader range of conduct than the

“generic burglary” needed for an ACCA enhancement

as a “violent felony.” The defendant’s burglary conviction

in Shepard, however, resulted from a guilty plea and not

a jury trial, and because there were no jury instructions,

the government urged the district court to consider

police reports and complaint applications in deter-

mining whether the defendant’s convictions were for

“generic burglaries.” 544 U.S. at 17-18, 125 S.Ct. 1254. The

district court declined to consider this evidence, and

did not apply the ACCA enhancement because it “found

that the Government had failed to carry its burden

to demonstrate that Shepard had pleaded to three

generic burglaries.” Id. at 18-19, 125 S.Ct. 1254. The First

Circuit vacated the sentence and remanded for

resentencing “[a]fter observing that Shepard never ‘seri-

ously disputed’ that he did in fact” commit the acts

described in the police reports and complaint applica-

tions. Id. at 19, 125 S.Ct. 1254 (citation omitted).

The Supreme Court reversed. Because there was no

reason “to ease away from the Taylor conclusion,” the

Court rejected the government’s arguments for a “wider

No. 11-2507 13

evidentiary cast” and concluded that a district court

may not consider police reports or complaint ap-

plications in determining whether a prior burglary con-

viction that resulted from a guilty plea was a “violent

felony.” Id. at 21-23; 125 S.Ct. 1254. Instead, the Court

held, a district court may only examine “the terms of the

charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by

the defendant, or to some comparable judicial record of

this information.” Id. at 26, 125 S.Ct. 1254. Like jury in-

structions in a jury case, or “the details of a generically

limited charging document . . . in any sort of case,” docu-

ments stating the facts to which the defendant

admitted in entering the plea will generally inform a

later court on the crucial question: “whether the plea

had ‘necessarily’ rested on the fact identifying the

burglary as generic.” Id. at 21, 125 S.Ct. 1254 (citing

Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

A plurality of the Court in Shepard also noted that

developments since Taylor—particularly Jones v. United

States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),

and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000)—provided further reason to adhere

to the limited evidentiary inquiry permitted under Tay-

lor. Id. at 24, 125 S.Ct. 1254. Specifically, the plurality

pointed to the rule imposed in Jones and Apprendi that “any

fact other than a prior conviction sufficient to raise the

limit of the possible federal sentence must be found by

a jury, in the absence of any waiver of rights by the de-

fendant.” Id. (citing Jones, 526 U.S. at 243 n.6, 119 S.Ct. 1215,

and Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). While

14 No. 11-2507

recognizing the exception to this rule for prior convic-

tions established in Almendarez-Torres v. United States,

523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the

plurality concluded that the disputed fact in Shepard—

whether a prior conviction was for “generic” bur-

glary—was “too removed from the conclusive sig-

nificance of a prior judicial record, and too much like

the findings subject to Jones and Apprendi, to say that

Almendarez-Torres clearly authorizes a judge to resolve

the dispute.” Id. at 25, 125 S.Ct. 1254.7 The Sixth Amend-

ment concerns underpinning Jones and Apprendi there-

fore provided further support for limiting “the scope

of judicial factfinding on the disputed generic character

of a prior plea, just as Taylor constrained judicial

findings about the generic implications of a jury’s ver-

dict.” Id. at 25-26, 125 S.Ct. 1254.

We addressed the impact of Shepard on judicial

factfinding regarding the application of the career

offender provision of the then-mandatory Sentencing

Guidelines in Ngo, 406 F.3d at 842. The career offender

provision of the Guidelines at the time provided that

“[p]rior sentences imposed in unrelated cases are to be

counted separately” and “[p]rior sentences imposed in

related cases are to be treated as one sentence.” Id. at 841

(quoting U.S.S.G. § 4A1.2(a)(2)). The district court in Ngo

7

This part of the opinion did not command a majority because

Justice Thomas, as he explained in his concurrence, wanted to

go even further than the plurality and overrule Almendarez-

Torres. 544 U.S. at 27-28, 125 S.Ct. 1254 (Thomas, J., concurring

in part and concurring in the judgment).

No. 11-2507 15

sentenced the defendant as a career offender based on

two prior armed robbery convictions that it concluded

were not related because they were not consolidated

for sentencing or part of a common scheme or plan. Id.

On appeal, the defendant argued that the district court’s

conclusion that he was a career offender “entailed

finding facts beyond the ‘fact of prior conviction,’ namely,

that his prior convictions were not consolidated for

sentencing or part of a common scheme or plan,” which

violated Almendarez-Torres as interpreted by Apprendi and

Shepard. Id. at 842. We agreed with the defendant, noting

that the Shepard plurality’s narrowing of the Almendarez-

Torres exception for prior convictions “suggests that

the recidivism exception exempts only those findings

traceable to a prior judicial record of ‘conclusive signifi-

cance.’ ” Id. We therefore concluded that the district

court’s finding that the defendant’s crimes were not part

of a common scheme or plan, which “was determined

by resorting to sources of information without the ‘con-

clusive significance’ of a prior judicial record, was not

‘clearly authorized’ by Almendarez-Torres.” Id. at 842-43.

Because this finding was used to increase the de-

fendant’s guideline range, his sentence violated the Sixth

Amendment. Id. at 843; see also United States v. McGee,

408 F.3d 966, 988-89 (7th Cir. 2005) (remanding career

offender sentence because of sentencing court’s possible

reliance on a police report to determine that two offenses

were not related).8

8

Regarding the district court’s finding that the defendant’s

crimes were not consolidated, we concluded that there was no

(continued...)

16 No. 11-2507

Relying on Taylor, Shepard, and Ngo, the district court

in this case concluded in its thorough and well-reasoned

opinion that it was limited to considering “the terms of

the charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by

the defendant, or to some comparable judicial record of

this information,” Shepard, 544 U.S. 13 at 26, 125 S.Ct. 1254,

for the different occasions inquiry. We agree that the

reasoning behind these decisions clearly applies to the

determination of whether prior offenses occurred on

“occasions different from one another.” 9 Indeed, in Ngo

we noted that while the advisory nature of the Guide-

lines after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005), resolved the Sixth Amendment

implications of judicial factfinding regarding the career

offender provision of the Guidelines, “no such cure

exists with respect to statutory enhancements—such as

[the ACCA]—which mandate higher sentences and leave

no discretion to the judge.” Ngo, 406 F.3d at 843 n.1; see

8

(...continued)

Sixth Amendment problem because our precedent already

limited the district court to considering sources that have

the “conclusive significance of a prior judicial record” as

required by Shepard when deciding a disputed consolidation

question. Id.

9

This conclusion, of course, means that the portion of Hudspeth

distinguishing Taylor and permitting the consideration of

police reports for the different occasion inquiry, 42 F.3d at

1019 n.3, is no longer good law.

No. 11-2507 17

also Hunter, 418 Fed. Appx. at 494 (applying the Shepard

source restriction to the different occasions inquiry,

but also noting that courts may also rely on undisputed

sections of a PSR to determine whether prior offenses

were committed on different occasions). This conclusion

also accords with our sister circuits, many of which

have also decided that the Shepard source restriction

applies to the determination of whether prior offenses

occurred on “occasions different from one another” under

§ 924(e)(1). See United States v. Thomas, 572 F.3d 945, 950-51

(D.C. Cir. 2009) (recognizing that the Shepard source

restriction applies to the different occasions inquiry);

United States v. Thompson, 421 F.3d 278, 285-86 (4th Cir.

2005) (upholding the district court’s reliance on the PSR

to find that three burglaries occurred on different

occasions where that information was derived from

Shepard-approved sources); United States v. Fuller, 453 F.3d

274, 279-80 (5th Cir. 2006) (applying Shepard to the

different occasions inquiry and vacating sentence be-

cause the Shepard-approved documents did not establish

that the offenses occurred on different occasions); United

States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2006)

(vacating a sentence enhanced by the ACCA and remand-

ing because it was unclear whether the district court

limited itself to Shepard-approved sources in determining

that the defendant’s prior crimes were committed on

different occasions); United States v. Sneed, 600 F.3d 1326,

1332-33 (11th Cir. 2010) (vacating an ACCA-enhanced

sentence and remanding where the district court relied

on police reports, which are not Shepard-approved, in

determining that the defendant’s prior convictions were

18 No. 11-2507

committed on different occasions). Accordingly, as

the district court properly concluded here, courts may

only consider Shepard-approved sources in determining

whether prior offenses occurred on separate occasions

under § 924(e)(1).

B. Different Occasions Inquiry

We turn now to the primary question on appeal of

whether Kirkland’s 1985 convictions were for offenses

“committed on occasions different from one another” as

required by § 924(e)(1). Although we and other circuit

courts have grappled with the meaning of “occasions

different from one another,” the majority of this court set

forth a framework for making the determination re-

quired by § 924(e)(1) in Hudspeth. 42 F.3d at 1019. Hudspeth

emphasized that the key issue for purposes of the statutory

enhancement is not whether the prior offenses are “re-

lated,” but whether each arose out of a “ ‘separate and

distinct criminal episode.’” Id. (quoting United States v.

Schieman, 894 F.2d 909, 911 (7th Cir. 1990)). Hudspeth

indicated that the primary question relevant to this deter-

mination “is simple: were the crimes simultaneous or were

they sequential?” Id. at 1021. This means that “one crime

hard on the heels of another can be a ‘separate and distinct

criminal episode[.]’ ” United States v. Godinez, 998 F.2d 471,

472 (7th Cir. 1993); United States v. Morris, 293 F.3d 1010,

1014 (7th Cir. 2002). The majority in Hudspeth reasoned

that an individual who has an opportunity to withdraw

from his criminal activity, but who chooses to commit

additional crimes, should be punished more harshly

No. 11-2507 19

than an individual who commits simultaneous crimes

and “has no opportunity to turn back and abandon his

criminal conduct.” 42 F.3d at 1021. Accordingly, under

this inquiry, courts consider the “nature of the crimes,

the identities of the victims, and the locations” of the

offenses, and whether the “perpetrator had the opportu-

nity to cease and desist from his criminal actions at

any time.” Id. at 1019; Morris, 293 F.3d at 1013.

Applying these factors here, we agree with the district

court that the “factually sparse” record sheds little light

on whether the 1985 offenses occurred on the same occa-

sion. The charging informations for the burglary and

robbery establish that Kirkland and his co-defendants

committed both offenses on the same day, but there is

no information as to the timing or sequence of events.

Regarding the location of the offenses, we know the

burglary occurred in the residence of Charles Gabbard,

but we do not know the location of the robbery. In terms

of the victims of the offenses, the information makes

clear that Gabbard was the victim of the burglary. For

the robbery, the district court found that the victim was

a Domino’s Pizza delivery person. On appeal, Kirkland

argues that this finding was in error because the rob-

bery and theft counts listed in the information for

cause number “C 85-105” are separate counts, and “noth-

ing” in the information indicates that the robbery was of

a Domino’s Pizza delivery person. Instead, Kirkland

suggests, the “logical inference” from the evidence is

that the victim of the robbery was Gabbard.

We need not decide whether the district court’s

finding that the unnamed individual identified in the

20 No. 11-2507

robbery count was an employee of Domino’s Pizza was

a permissible inference for the district court to make;

even with this finding of fact and the different nature

of the offenses, we cannot conclude that the offenses

occurred on separate occasions. As the burglary and

robbery happened on the same day, Kirkland was

charged with co-defendants for both offenses, and the

record lacks key information such as the timing and

location of the offenses, we do not know if the offenses

occurred simultaneously or sequentially. The govern-

ment conceded at Kirkland’s resentencing hearing that

Kirkland could have committed one offense while his co-

defendants committed the other offense.1 0 Neverthe-

less, the government urges us to affirm the ACCA en-

hancement despite the ambiguities in the record because

once the government provided evidence of three prior

“violent felony” convictions, it was Kirkland’s burden

to prove that the offenses occurred on the same occasion.

Given the sparse record, the government argues, Kirkland

cannot meet that burden.

It was on this basis that the district court applied

the ACCA enhancement; it did not conclude that the

Shepard-approved sources established that the 1985 of-

fenses occurred “on occasions different from one an-

other,” but rather that Kirkland could not prove any-

10

Based on the government’s representations at the resen-

tencing hearing and in its sentencing memo, we assume

without deciding that Kirkland could have been convicted

of both offenses under such a scenario under Arkansas law

at the time.

No. 11-2507 21

thing to the contrary given the state of the record. The

source of this burden shifting scheme upon which the

government’s argument rests is a footnote in Hudspeth, in

which the majority of this court outlined the burden

of proof for the separate occasions inquiry as follows:

[U]nder § 924(e)(1), the government must

establish that a defendant has three prior

violent felony convictions. A certified

record of conviction or a [PSR], if not chal-

lenged, will normally satisfy this show-

ing. . . . The burden then shifts to the de-

fendant to establish by a preponderance

of the evidence that the prior convictions

occurred on a single “occasion,” and thus

cannot be the basis for the sentence enhance-

ment under § 924(e)(1).

Hudspeth, 42 F.3d at 1019 n.6 (internal citations omitted).

On appeal, Kirkland argues that this burden allocation

combined with the Shepard source restriction means

that the ACCA enhancement is automatic when there

are few Shepard-approved documents and they are incon-

clusive as to the separate occasions inquiry. We agree

that the landscape of the law involving sentencing en-

hancements such as the ACCA has changed dramatically

since Hudspeth. When Hudspeth was decided, we as-

sumed that district courts had free reign to develop a

factual record regarding the crime of conviction to

support an ACCA enhancement, and could rely upon

a wide variety of sources to make factual findings.

Hudspeth, 42 F.3d at 1019 n.3. That is clearly not the

22 No. 11-2507

case anymore. As discussed above, although Shepard

involved the “violent felony” issue, its logic extends to

the “different occasions” issue, and its notions that

“certainty of record” is required for an ACCA enhance-

ment and that “collateral trials” regarding past convic-

tions should be avoided clearly conflict with Hudspeth’s

approval of an extensive factual inquiry at sentencing

regarding prior convictions. See Shepard, 544 U.S. at 23 n.4,

125 S.Ct. 1254 (“Taylor is clear that any enquiry beyond

statute and charging document must be narrowly re-

stricted to implement the object of the statute and avoid

evidentiary disputes.”).

When properly viewed in this post-Shepard context,

we believe that the burden shifting scheme set forth in

Hudspeth is no longer tenable because it essentially

requires an ACCA enhancement even if the available

Shepard-approved documents—the only evidence a sen-

tencing court may consider—is inconclusive as to

whether the offenses occurred on separate occasions.

After thorough consideration of our prior precedent, the

nature of proof for the different occasions inquiry, and

the opinions of our sister circuits, we conclude that the

more appropriate burden allocation for the separate

occasions inquiry requires the government to establish

by the preponderance of the evidence—using Shepard-

approved sources—that the prior convictions used for the

ACCA enhancement were “committed on occasions

different from one another.” In practice, this means that

if the Shepard-approved documents before a district court

are equivocal as to whether the offenses occurred on

the same occasion, the ACCA does not apply.

No. 11-2507 23

This conclusion follows our well-established precedent.

A review of our cases considering the separate occasions

requirement before and after Hudspeth shows that we

have only affirmed ACCA enhancements after con-

cluding that the underlying record indicated that the prior

offenses were committed sequentially. See, e.g., United

States v. Nigg, 667 F.3d 929, 936 (7th Cir. 2012) (“Nigg’s

crimes were obviously committed in sequential fashion,

as it is physically impossible for one person to commit

three armed robberies simultaneously at three different

locations against three different victims on three different

dates.”); Morris, 293 F.3d at 1013 (“[T]he two offenses

committed by Morris, although close in time and loca-

tion, involved distinct criminal aggressions from which he

had an opportunity to cease and withdraw.”); United

States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000) (“In

this case, the two sales of crack cocaine on March 27 were

two separate and distinct episodes. While Cardenas sold

the crack cocaine to the same people, the sales were

separated by forty-five minutes and a half a block.

Cardenas had plenty of time to change his mind, to cease

and desist, and to refuse to sell to the informants.”);

Godinez, 998 F.2d at 473 (“Godinez . . . committed his

crimes against different victims, in different places,

more than an hour apart. It would strain language con-

siderably, without serving any purpose plausibly attrib-

uted to Congress, to treat the kidnapping and the robbery

as a single ‘occasion.’ ”); Schieman, 894 F.2d at 913

(“Schieman had successfully completed the burglary of

Jenny’s Cake Fair and safely escaped from the premises

before committing the subsequent offense.”). In fact, we

24 No. 11-2507

have not cited the portion of the Hudspeth burden

shifting scheme that requires the defendant to prove

that the prior offenses occurred on separate occasions

since Hudspeth, and even then, it was not at issue.

Instead, whenever we have had doubts as to whether

the record indicated that the offenses occurred on

separate occasions, we have declined to use the offense as

a predicate conviction for the ACCA enhancement or

remanded the case to the district court for further fact-

finding. The first time we considered whether the de-

fendant in Hudspeth was appropriately determined to be

an armed career criminal, the district court had relied

upon three burglary convictions the defendant had re-

ceived in 1983 as the predicates for the ACCA enhance-

ment. United States v. Hudspeth, No. 91-3786, 974 F.2d

1340, 1992 WL 205666, at *2 (7th Cir. 1992) (unpublished).

The only information we had regarding the burglaries

on appeal, however, was that the defendant and two co-

defendants “had entered Homestyle Cleaners, Melocreme

Donut, and Farmer’s Insurance Company located in

Springfield, Illinois.” Id. We concluded that this “brief

description” did not provide us with “sufficient infor-

mation to discern whether the 1983 burglaries were part

of the same or separate and distinct criminal episodes,”

and we therefore “[could not] decide whether Hudspeth’s

sentence was properly enhanced under § 924(e).” Id.

(citation omitted). We vacated the defendant’s sentence

and remanded the case to the district court for further

factual development. Id. After the district court inquired

into the facts surrounding the three burglaries on

remand, the majority of this court affirmed the ACCA

No. 11-2507 25

enhancement because the facts revealed that “Hudspeth

committed three separate crimes, at three separate

times, against three separate victims, in three separate

locations,” and that “[e]ntry into each successive

business reflected a clear and deliberate choice to commit

a ‘distinct aggression.’ ” Hudspeth, 42 F.3d at 1022-23

(citation omitted).11

In a post-Hudspeth case, United States v. Thomas, we

were again faced with an ambiguous record regarding a

defendant’s prior convictions. 280 F.3d 1149, 1159-60

(7th Cir. 2002). The defendant had three prior robbery

convictions, and while we concluded that at least two

of the convictions occurred on different occasions, we

noted that “[i]t is unclear from the record whether the

third robbery, which was committed on the same day as

one of the others, was also committed on a different

occasion because we do not know the time of day that

the robbery occurred nor do we have any facts (other

than the identity of the victim and the amount of money

taken) surrounding the robbery.” Id. at 1159 n.3. This

ambiguity proved inconsequential in Taylor because

the defendant had an additional conviction that served

as the third predicate offense for the ACCA enhancement.

Id. at 1160. Nevertheless, it shows that we have not en-

dorsed the government’s position that proof of prior

“violent felony” convictions plus an ambiguous record

11

As noted above, in Hudspeth the majority relied upon

sources for this conclusion that can no longer be considered

after Shepard.

26 No. 11-2507

regarding the separate occasions inquiry is sufficient

to support an ACCA enhancement.

Unlike with other questions for which the defendant

bears the burden of proof at sentencing, requiring the

government to prove by the preponderance of the

evidence that the prior offenses occurred on separate

occasions is not an onerous burden. Under § 924(e)(1), the

government already has the burden of proving three

predicate convictions for “violent felon[ies],” and after

Shepard, the evidence used to determine that offenses

occurred on separate occasions is the same evidence

used to determine if the prior convictions were for

“violent felon[ies].” See Sneed, 600 F.3d at 1332

(“[T]here is simply no distinction left between the scope

of permissible evidence that can be used to determine if

the prior convictions are violent felonies . . . or if they

were committed on different occasions[.]”); Thompson,

421 F.3d at 286 (The “ACCA’s use of the term ‘occasion’

requires recourse only to data normally found in con-

clusive judicial records, such as the date and location of

an offense, upon which Taylor and Shepard say we may

rely.”). Indeed, in rejecting arguments after Apprendi

that the separate occasions determination falls outside

the Almendarez-Torres exception, we and other circuits

have gone to great lengths to explain that the facts

related to whether prior convictions occurred on dif-

ferent occasions cannot be easily distinguished from the

facts related to the existence of the prior convictions. See,

e.g., Morris, 293 F.3d at 1012 (concluding that the dif-

ferent occasions determination falls within the Apprendi

exception); United States v. Santiago, 268 F.3d 151, 156-57

No. 11-2507 27

(2d Cir. 2001) (“[W]e are satisfied . . . that § 924(e)’s ‘differ-

ent occasions’ requirement falls safely within the range

of facts traditionally found by judges at sentencing and

is sufficiently interwoven with the facts of the prior

crimes that Apprendi does not require different fact-

finders and different burdens of proof for Section 924(e)’s

various requirements.”); Thompson, 421 F.3d at 285-86 (“The

data necessary to determine the ‘separateness’ of the

occasions is inherent in the fact of the prior convictions.”);

United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004)

(“[T]he ‘different occasions’ requirement of § 924(e) cannot

be significantly distinguished from ‘the fact of a prior

conviction.’ ”); United States v. Harris, 447 F.3d 1300, 1304

(10th Cir. 2006) (“Like the number of prior crimes and

whether they are violent felonies, separateness is an

‘inquiry intimately related to whether a prior convic-

tion exists.’ ”) (citation omitted).

Requiring the government to prove that the prior of-

fenses occurred on separate occasions is also not an

onerous burden because, as discussed above, a funda-

mental aspect of the framework we have adopted for

the separate occasions inquiry is whether the de-

fendant had an opportunity between offenses to cease

from the criminal activity. Thus, if the Shepard-approved

documents show that the offenses occurred on different

days, or, in other words, were committed sequentially

rather than simultaneously, the government will presum-

ably meet its burden. Or if the documents show that the

offenses occurred on the same day, but the nature of the

offenses is such that they could not have occurred

without giving the defendant an opportunity to recon-

28 No. 11-2507

sider his or her conduct and refuse to commit the

second crime, the government will likely meet its bur-

den. It is only in exceptional cases such as this one,

which have factually sparse records and factors that

complicate the determination of whether the offenses

occurred simultaneously or sequentially, that the gov-

ernment will find it difficult to meet its burden.

The Supreme Court has recently acknowledged, how-

ever, that the “absence of records will often frustrate

application of the modified categorical approach,” used

to determine whether a prior offense qualifies as a

“violent felony.” Johnson v. United States, ___ U.S. ___,

130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010). We do not

think that the lack of available records shedding light

on the different occasions inquiry should lead to a dif-

ferent result.

The government’s ease of access to proof for the

separate occasions requirement stands in contrast to its

access to proof for questions regarding the invalidity of

a defendant’s prior conviction, which the defendant

bears the burden of proving when challenging the use of

a prior conviction under the ACCA. See, e.g., United

States v. Gallman, 907 F.2d 639, 643 (7th Cir. 1990) (“For

purposes of section 924(e)(1), we believe that once the

government has shown that a defendant has three

prior ‘violent felony’ convictions, the burden rests with

the defendant to show that the conviction was uncon-

stitutional.”) (citations omitted). We and other circuits

have required defendants to bear this burden because

“[a]ny given conviction might suffer any of a myriad

of constitutional defects” and “[i]t would approach

No. 11-2507 29

the absurd to require the government to undertake to

prove guilt all over again in every predicate conviction.”

United States v. Ruo, 943 F.2d 1274, 1276 (11th Cir. 1991)

(adopting the Gallman standard for challenges to the

validity of prior convictions).1 2 Similarly, we have

required defendants to bear the burden of proving by

the preponderance of the evidence that their civil rights

have been restored when challenging the use of a prior

conviction under the “anti-mousetrapping” provision of

18 U.S.C. § 921(a)(20). See United States v. Gant, 627 F.3d

677, 682 (7th Cir. 2010); United States v. Vitrano, 405 F.3d

506, 509 (7th Cir. 2005). This is because “[i]t is certainly

much easier for criminal defendants to raise the issue

of whether their prior convictions have been nullified or

their civil rights otherwise restored” than for the gov-

ernment “to refute every possibility that criminal defen-

dants have had their prior convictions nullified or their

civil rights restored.” United States v. Bartelho, 72 F.3d

436, 440 (1st Cir. 1995); see also Foster, 652 F.3d at 791

(“Requiring [the government to prove beyond a rea-

sonable doubt that the defendant’s civil rights have not

been restored] ‘would impose an onerous burden,’ seeing

that a defendant ‘ordinarily will be much better able to

raise the issue of whether his . . . civil rights have been

restored.’ ”) (quoting United States v. Flower, 29 F.3d 530,

535 (10th Cir. 1994)). The same can be said of the career

12

After Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128

L.Ed.2d 517 (1994), a defendant may only collaterally attack a

prior state conviction obtained in violation of the right to

counsel.

30 No. 11-2507

offender provision of the Sentencing Guidelines. See, e.g.,

United States v. Joy, 192 F.3d 761, 771 (7th Cir. 1999)

(“Because the defendant is in the best position to know

whether he jointly planned two or more crimes and is the

beneficiary of any reduction in his sentence, he has the

burden of showing that his prior offenses were part of a

single scheme or plan [under the career offender pro-

vision of the Sentencing Guidelines.]”) (citations omit-

ted). By contrast, in the vast majority of cases, proving

that a defendant’s prior convictions were “committed on

occasions different from one another” will impose no

greater burden on the government than the govern-

ment already has in proving the existence of three

prior “violent felony” convictions.

Our conclusion that the government must prove

both the existence of the prior convictions for violent

felonies and that the prior convictions occurred on differ-

ent occasions is bolstered by our sister circuits’ treat-

ment of the different occasions inquiry, which also indi-

cates that the burden for the different occasions

inquiry properly belongs with the government. For exam-

ple, in United States v. Boykin, the Fourth Circuit recently

vacated an ACCA enhancement where the district court

improperly considered a PSR that did not “bear the

earmarks of derivation from Shepard-approved sources” for

the separate occasions inquiry. 669 F.3d 467, 469-471

(4th Cir. 2012). Without the PSR, the only information

applicable to the different occasions inquiry found in

Shepard-approved sources was the fact that the defendant

was convicted of two violent felonies—one for second-

degree murder and the other for assault with a deadly

No. 11-2507 31

weapon inflicting serious injury—on the same day. Id. at

471-72. The Fourth Circuit concluded that the “ACCA

cannot apply on such a meager factual basis,” reasoning

that “[i]t cannot be said that simply because two crimes

have been committed they necessarily occurred on dif-

ferent occasions; such an interpretation would nullify

the different-occasions language in § 924(e).” Id. at 472;

see also United States v. Russell, 402 Fed. Appx. 772, 773

(4th Cir. 2010) (“If the government can demonstrate,

based upon Shepard-approved documents . . . that the

[prior] convictions were committed on occasions

different from one another, then the district court can

apply the ACCA enhancement.”) (internal citations

omitted).

Similarly, in Sneed, the Eleventh Circuit was faced

with an appeal from an ACCA enhancement in which

the district court had considered police reports—a non-

Shepard-approved source—in determining that the de-

fendant’s prior felony convictions were committed on

different occasions. 600 F.3d at 1329. The state court

indictment, which was the only Shepard-approved docu-

ment produced by the government, contained the same

language for each of the defendant’s three drug

offenses and did “not specify a date or time, much less

different dates or different times on the same date.” Id. at

1333. Because the “government must show ‘the three

previous convictions arose out of a separate and

distinct ‘criminal episode,’ ” and the government had

not submitted any other Shepard-approved material, the

Eleventh Circuit vacated the defendant’s sentence and

remanded the case for resentencing. Id. at 1332-33; see also

32 No. 11-2507

United States v. Morejon, 437 Fed. Appx. 795, 798-99

(11th Cir. 2011) (vacating sentence where the sources in

support of the government’s assertion that the crimes

occurred on different occasions were arrest reports,

which are not Shepard-approved, and the state court

judgments did not include the date, time, or any facts

about the offenses).

Other circuits have also suggested that the govern-

ment bears the burden of proof under the different occa-

sions inquiry or that an ambiguous record is insufficient

to sustain an ACCA enhancement. See United States v.

Gillies, 851 F.2d 492, 497 (1st Cir. 1988) (“[Because the

defendant also had two convictions for robberies,] even

if . . . the two burglary convictions stemmed from one

‘episode’ . . . the government still proved three ‘violent

felony’ convictions as required by § 924(e).”); United

States v. Rideout, 3 F.3d 32, 35 (2d Cir. 1993) (“[W]e

reject Rideout’s claim that the Government presented

insufficient evidence to demonstrate that the triggering

offenses were distinct. The District Court had the

certified records of the prior state convictions, and the

Government introduced evidence of the distance and

travel time between the two homes.”); United States

v. Brown, 241 Fed. Appx. 890, 894-95 (3d Cir. 2007) (re-

manding ACCA-enhanced sentence due to the govern-

ment’s failure to meet “its burden under the ACCA to

prove that Brown has been convicted of three serious

drug offenses or violent felonies committed on separate

occasions” because “[b]ased on the record as it stands, it

is impossible to conclude that Brown was convicted of

three offenses ‘committed on occasions different from

No. 11-2507 33

one another . . .”); United States v. DeRoo, 13 Fed. Appx.

436, 438 (8th Cir. 2001) (vacating ACCA-enhanced sentence

and remanding case for further examination of prior

convictions because the record did not reveal “whether

there were separate burglaries in 1989 or whether they

were part of a continuous course of criminal conduct”);

Taylor, 413 F.3d at 1157-58 (remanding case where

district court may have relied upon non-Shepard-

approved sources to determine that offenses were com-

mitted on separate occasions so that the district court

could “determine whether the government can provide

evidence regarding Taylor’s prior violent crime convic-

tions consistent with Shepard . . .”); Thomas, 572 F.3d at

950 (“[E]ven assuming it was permitted to revisit

Thomas’s ACCA status, the district court erred in con-

cluding the Government presented insufficient evidence

that the two predicate drug offenses were ‘committed

on occasions different from one another’ . . . . The two

indictments offered in the second sentencing satisfied

the evidentiary requirements set out in Taylor and

Shepard.”) (internal citation omitted).

Only the Fifth and Ninth Circuits have cited the

burden shifting scheme set forth in Hudspeth, United

States v. Bookman, 263 Fed. Appx. 398, 400 n.1 (5th Cir.

2008); United States v. Taylor, 263 Fed. Appx. 402, 404 n.1

(5th Cir. 2008); United States v. Phillips, 149 F.3d 1026, 1033

(9th Cir. 1998), yet neither circuit has applied it as the

government asks us to in this case. Rather than placing

the burden on the defendant to put forth evidence that

the prior offense occurred on the same occasion, both

circuits have indicated that the government must

34 No. 11-2507

provide evidence that the offenses occurred on different

occasions, and the defendant then bears the burden of

challenging that evidence. See Phillips, 149 F.3d at 1033

(“The government carried its burden of proving by a

preponderance of the evidence that Phillips committed

three predicate offenses ‘on occasions different from one

another.’ It did so by submitting unchallenged, certified

records of conviction and other clearly reliable evi-

dence. . . . The burden then shifted to Phillips to challenge

the government’s evidence.”) (internal citations omitted).

In Bookman, for example, the government submitted

Shepard-approved documents that indicated that the

defendant’s prior convictions were for offenses com-

mitted on different dates and involved different victims.

263 Fed. Appx. at 399. The defendant argued, however,

that the “documents provided by the Government did

not sufficiently establish that his prior burglaries had

been committed on different dates because the indict-

ments alleged only that the offenses occurred ‘on or

about’ certain dates, not on any specific dates.” Id. The

Fifth Circuit rejected the defendant’s “attempt[] to intro-

duce uncertainty as to the date of the offenses,” and

concluded that the defendant had not met his burden

because he “provided no evidence that his burglaries

occurred simultaneously[.]” Id. at 401.1 3 Thus, the ACCA

13

We note that in discussing whether the defendant met his

burden regarding the different occasions inquiry, the Bookman

opinion repeatedly references United States v. Barlow, a case in

which the Fifth Circuit held that once the government estab-

(continued...)

No. 11-2507 35

enhancement was appropriate because the defendant did

not refute the government’s evidence indicating that

the offenses occurred on different occasions. Id.; see also

Taylor, 263 Fed. Appx. at 404-05 (affirming ACCA enhance-

ment where the indictments and judgments for the

two burglary convictions challenged by the defendant

established that the two offenses took place nine months

apart and the defendant did not put forth any evidence

that the offenses occurred simultaneously). Similarly,

in Phillips, the Ninth Circuit concluded that the ACCA

enhancement was appropriate because the government

had submitted reliable evidence that the defendant had

committed robberies involving two different victims

(in addition to a third prior felony conviction), and the

defendant failed to submit evidence challenging the

government’s evidence. 149 F.3d at 1032.1 4

(...continued)

lishes the fact of a prior conviction, the defendant must prove

the invalidity of the conviction by the preponderance of the

evidence. 17 F.3d 85, 89 (5th Cir. 1994) (citing Parke v. Raley, 506

U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)). As explained

above, while we agree that the defendant bears the burden

of proving the invalidity of prior convictions, which are pre-

sumptively valid, Parke, 506 U.S. at 29-30, 113 S.Ct. 517, we

believe that the burden of proof for the different occasions

requirement is a different matter.

14

Our recent opinion in United States v. Sims, No. 11-3550, slip

op. at 3-5, 2012 WL 2370107, at *1-2 (7th Cir. June 25, 2012),

accords with the different occasions inquiry as applied in

Bookman, Taylor, and Philips. In Sims, the government submitted

(continued...)

36 No. 11-2507

Despite having cited the burden shifting scheme set

forth in Hudspeth, both the Fifth and the Ninth circuits

have declined to apply the ACCA enhancement when

faced with an inconclusive record. See Fuller, 453 F.3d

at 279; United States v. McElyea, 158 F.3d 1016 (9th Cir.

1998). In Fuller, the defendant argued that his two prior

burglary convictions from the same day were not com-

mitted on separate occasions because he and an ac-

complice had entered the two buildings simultaneously.

Id. at 278. Based on the state court indictments—the

only Shepard-approved evidence in the record—the Fifth

Circuit held that it could not “determine as a matter of

law that the burglaries occurred on different occasions.”

Id. at 279. The Fifth Circuit noted that the defendant

may have been convicted “even if he was only a party to

the crime,” and “[b]ecause the record [did] not contain

the written plea agreement, the plea colloquy, or other

Shepard-approved material that might resolve this ques-

tion,” it vacated the defendant’s sentence with respect

to the ACCA enhancement. Id. at 279-80.

As in Fuller, the defendant in McElyea had two

prior burglary convictions that the district court used as

14

(...continued)

evidence establishing that the defendant’s two prior felony

convictions at issue were for offenses separated by a week,

and the defendant did not challenge that evidence or submit

any evidence that would support a finding that the offenses

occurred on the same occasion. Id. Given this record, we

concluded that it was appropriate for the district court to

treat the two offenses as separate. Id.

No. 11-2507 37

predicate felonies for the ACCA enhancement. 158 F.3d

at 1018. The defendant argued, though, that the convic-

tions were not “committed on occasions different from

one another.” Id. The record indicated that the de-

fendant and an accomplice broke into a store that was

part of a strip mall, and that a hole was cut in the wall

shared with another store, and items were stolen from

both stores, resulting in the defendant’s two convictions

for burglary. Id. The Ninth Circuit, in a split decision,

noted that “the record . . . [did] not contain any infor-

mation regarding the amount of time [the defendant]

spent in each store or whether he stayed in one store

while his accomplice entered the other store.” Id. at 1021.

The Ninth Circuit concluded that the district court erred

in applying the ACCA enhancement because “we

cannot say that the burglaries committed by [the defen-

dant] were ‘separate criminal episodes[.]’ ” Id. Thus,

although the Fifth and Ninth Circuits have cited the

burden shifting scheme set forth in the Hudspeth footnote,

we believe that the conclusion we reach today is in line

with both circuit’s precedent regarding the different

occasions inquiry.

In holding that the government bears the burden of

proving by the preponderance of the evidence that a

defendant’s prior convictions were “committed on occa-

sions different from one another” under § 924(e)(1), we

affirm that “[a] defendant who has the opportunity to

cease and desist or withdraw from his criminal activity

at any time, but who chooses to commit additional crimes,

deserves harsher punishment than the criminal who

commits multiple crimes simultaneously.” Hudspeth,

38 No. 11-2507

42 F.3d at 1021. Nevertheless, we believe that an ambigu-

ous record regarding whether a defendant actually had the

opportunity “to cease and desist or withdraw from

his criminal activity” does not suffice to support the

ACCA enhancement.1 5

III. CONCLUSION

For the foregoing reasons, we R EVERSE the judgment of

the district court and R EMAND the case for resentencing

in accordance with this opinion.

15

Because we conclude that the burden shifting scheme from

Hudspeth upon which the district court’s decision relied is no

longer tenable, we need not reach Kirkland’s second argument

on appeal that the district court erred in denying admission

of his affidavit and testimony.

7-24-12