Petition for Writ of Certiorari — Marc Dutch, Petitioner v. United States

Supreme Court briefMar 12, 2019

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No. ______

In the

SUPREME COURT OF THE UNITED STATES

MARC DUTCH, Petitioner

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Tenth Circuit

Petition for Writ of Certiorari

STEPHEN P. MCCUE

Federal Public Defender

BRIAN A. PORI*

Assistant Federal Public Defender

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: brian_pori@fd.org

Attorneys for the Petitioner

* Counsel of Record

Questions Presented for Review

Given that the Sixth Amendment and Apprendi prohibit a sentencing judge

from finding facts about a prior conviction, does 18 U.S.C. § 924(e)(1)’s

requirement that prior convictions be “committed on occasions different

from one another,” require such facts to be alleged in the indictment and

proved to the jury or admitted by the defendant?

Table of Contents

Questions Presented for Review..................................................................... i

Table of Authorities ...................................................................................... iv

Opinions Below ............................................................................................. 1

Statement of Jurisdiction .............................................................................. 1

Pertinent Constitutional & Statutory Provisions........................................... 2

Statement of the Case .................................................................................... 2

Reasons for Granting the Writ ...................................................................... 3

Review is necessary to address whether Mr. Dutch’s sentence

enhancement under the ACCA conflicts with Apprendi’s requirement to

prove that he had three previous convictions for offenses “committed

on occasions different from one another.” ............................................... 3

A. The exception to Apprendi for the “fact of a prior conviction”

applies to the simple fact of a prior conviction not facts about a

prior conviction. ............................................................................. 5

B. The determination whether previous convictions were for

offenses “committed on occasions different from one another”

requires finding facts about prior convictions, not the simple fact

of a prior conviction. ...................................................................... 7

1. The plain language of the ACCA shows these facts are subject to

the rule of Apprendi. .................................................................... 8

2. Cases that have interpreted the phrase “committed on

occasions different from on another” confirm its highly factspecific nature............................................................................ 10

3. The Tenth Circuit’s reliance on Michel is problematic as it is

contrary to intervening precedent from this Court. ..................... 13

C. This Court should reverse the Tenth Circuit’s decision to remand

for resentencing...............................................................................17

Conclusion ................................................................................................. 18

iii

Table of Authorities

Cases

Apprendi v. New Jersey

530 U.S. 466 (2000) .................................. 4, 5, 6, 7, 8, 10, 12, 13, 14, 15, 17

Descamps v. United States

133 S.Ct. 2276 (2013) .................................................. 6, 9, 12, 13, 15, 16, 17

Hayes v. United States

555 U.S. 415 (2009) ...................................................................... 6, 7, 9, 12

Johnson v. United States

135 S.Ct. 2551 (2015) ................................................................................. 9

Mathis v. United States

__ U.S. __, 136 S.Ct. 2243 (2016) ........4, 5, 6, 7, 9, 12, 13, 14, 15, 16, 17, 18

Nijhawan v. Holder

557 U.S. 29 (2009).................................................................. 6, 7, 9, 10, 12

Shepard v. United States

544 U.S. 13 (2005) ......................................................................... 15, 17, 18

Taylor v. United States

495 U.S. 575 (1990) ............................................................................. 9, 12

United States v. Brooks

751 F.3d 1204 (10th Cir. 2014)................................................................. 13

United States v. Harris

447 F.3d 1300 (10th Cir. 2006) ............................................................... 13

United States v. McElyea

158 F.3d 1016 (9th Cir. 1998) ............................................................. 11, 12

United States v. Michel

446 F.3d 1122 (10th Cir. 2006) ..................................................... 13, 14, 16

Table of Authorities (continued)

Cases

United States v. Petty

798 F.2d 1157, vacated 481 U.S. 1034, 107 S.Ct. 1968, on remand, 828

F.2d 2 (8th Cir. 1987) ......................................................................... 11, 12

United States v. Thompson

421 F.3d 278 (4th Cir. 2005) ................................................................... 14

United States v. Tisdale

921 F.2d 1095 (10th Cir. 1990) ........................................................... 10, 12

Federal Statutes

18 U.S.C. § 2 .................................................................................................. 3

18 U.S.C. § 2113(a) ......................................................................................... 3

18 U.S.C. § 922(g)(1) ..................................................................................... 3

18 U.S.C. § 924 .............................................................................................. 2

18 U.S.C. § 924(e)(1).......................................................................... 3, 7, 8, 9

28 U.S.C. § 1254(1) ........................................................................................ 2

State Statutes

California Penal Code § 459 .........................................................................17

In the

SUPREME COURT OF THE UNITED STATES

MARC DUTCH, Petitioner

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari

Marc Dutch petitions for a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the Tenth Circuit in

his case.

Opinions Below

The Tenth Circuit issued an unpublished decision to reverse the

district court’s sentence in United States v. Marc Dutch, Case No. 172219. 1 Mr. Dutch filed a petition for rehearing en banc which the court

denied. 2

Statement of Jurisdiction

On November 1, 2018, the Tenth Circuit reversed the district court’s

1 App. 1a-6a (Tenth Circuit Order); App. 7a-22a (transcript of District

Court’s oral ruling at sentencing). “App.” refers to the attached appendix.

“Doc.” refers to the number of the document on the district court criminal

docket sheet in No. 16-CR-01424-MV.

2 App. 23a.

decision not to impose an enhanced sentence under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). 3 On December 18, 2018, the

circuit court denied Mr. Dutch’s petition for rehearing en banc.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). According

to this Court’s Rules 13.1 and 13.3 and 28 U.S.C. § 2101(c), this petition is

timely filed on or before March 18, 2019.

Pertinent Constitutional & Statutory Provisions

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.

18 U.S.C. § 924(e)(1):

In the case of a person who violates section 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1) of

this title for a violent felony ... committed on occasions different from one

another, such person shall be ... imprisoned not less than fifteen years,

and, notwithstanding any other provision of law, the court shall not

suspend the sentence of, or grant a probationary sentence to, such

person with respect to the conviction under section 922(g).

Statement of the Case

Mr. Dutch pled guilty to a one-count indictment handed down by a

3 App. 7a-22a

federal grand jury in the District of New Mexico which charged him with

violating 18 U.S.C. § 922(g)(1), possessing a firearm after having been

convicted of a felony. The probation office and the government contended

Mr. Dutch was subject to the Armed Career Criminal Act (ACCA) based on

Mr. Dutch’s 2006 convictions for three counts of bank robbery in violation

of 18 U.S.C. § 2113(a), and aiding and abetting, in violation of 18 U.S.C. § 2,

all charged in one indictment. The government proffered only the

indictment, a plea agreement that contained no dates, and the judgment in

the 2006 case. Mr. Dutch objected, arguing the ACCA did not apply to him

because the government did not prove the bank robberies were committed

on different occasions as required by 18 U.S.C. § 924(e)(1).

The district court, exercising jurisdiction under 18 U.S.C. § 3231,

determined the government had not proven Mr. Dutch’s 2006 convictions

were for offenses committed on different occasions. The Government

appealed. Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. §

1291, the Tenth Circuit Court reversed.

Reasons for Granting the Writ

Review is necessary to address whether Mr. Dutch’s sentence

enhancement under the ACCA conflicts with Apprendi’s

requirement to prove that he had three previous convictions for

offenses “committed on occasions different from one another.”

Marc Dutch’s sentence enhancement under 18 U.S.C. § 924(e)(1)

conflicts with this Court’s recent holding in Mathis v. United States, __

U.S. __, 136 S.Ct. 2243 (2016). To avoid running afoul of the Sixth

Amendment and Apprendi, 4 Mathis clarified that a federal sentencing

judge cannot find facts about a prior conviction and should do no more

than “determine what crime, with what elements, the defendant was

convicted of.” Mathis, 136 S.Ct. at 2252. Because determining whether

prior convictions were for offenses “committed on occasions different from

one another” would require a judge to do more, these factual

determinations fall within Apprendi, rather than its “prior conviction”

exception. 530 U.S. at 490 (“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”) Therefore, per Apprendi, these facts must be alleged in the

indictment and proved to the jury or admitted by the defendant. Because in

this case they were not, Mr. Dutch’s 15-year sentence enhancement is

unlawful.

In its Order and Judgment, the Tenth Circuit did not discuss Mathis’

holding, and only cited it to cursorily dismiss Mr. Dutch’s contention that

the Armed Career Criminal Act (ACCA) enhancement runs afoul of the

4 Apprendi v. New Jersey, 530 U.S. 466 (2000)

Sixth Amendment. The panel relied on cases predating Mathis which

permitted judicial fact finding for prior offenses occurring on different

occasions, but entirely disregarded Mathis’ subsequent impact. Because

this Court’s subsequent Sixth Amendment jurisprudence eroded those

cases, review of the Tenth Circuit’s decision is appropriate.

A. The exception to Apprendi for the “fact of a prior

conviction” applies to the simple fact of a prior conviction

not facts about a prior conviction.

The Fifth and Sixth Amendments to the U.S. Constitution require any

fact that increases the statutory maximum or minimum penalty for a crime

to be charged in the indictment, submitted to a jury, and proved beyond a

reasonable doubt. Apprendi, 530 U.S. at 490. One “narrow” exception

allows a sentencing court to find “the fact of a prior conviction.” Apprendi,

530 U.S. at 490.

To fit within this narrow exception, the prior conviction must have

been obtained in proceedings which afforded the right to a jury trial and

proof beyond a reasonable doubt. Apprendi, 530 U.S. at 488, 496.

Significantly, the features of the prior conviction triggering the increased

penalty must have been elements of the prior offense—that is, facts the jury

had to find beyond a reasonable doubt to sustain the conviction. See

Mathis, 133 S.Ct. at 2248, 2252 (noting Sixth Amendment concerns). When

utilizing Apprendi’s exception, the sentencing judge cannot find facts about

the prior conviction and is limited to determining “what crime, with what

elements, the defendant was convicted of.” Id. at 2252; see also Descamps

v. United States, 133 S.Ct. 2276, 2288 (2013) (“the 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”).

However, if features of the prior convictions triggering the increased

sentence are not “the simple fact of a prior conviction,” but include

circumstances requiring the judge to “explore the manner in which the

defendant committed that offense,” Apprendi’s exception does not apply.

Mathis, 136 S.Ct. at 2252. Under the Constitution, the general rule of

Apprendi applies, not its exception. Id.; see also Nijhawan v. Holder, 557

U.S. 29, 40 (2009) (whether prior fraud conviction caused loss to victim

exceeding $10,000 is fact about a prior conviction that must, in a criminal

case, be proved to jury beyond a reasonable doubt); cf. Hayes v. United

States, 555 U.S. 415, 426 (2009) (whether prior crime of violence was

committed against a victim with a specified domestic relationship to

defendant is a fact about a prior conviction that must be proved to jury

beyond a reasonable doubt). To permit a judge to make such

determinations would permit the judge to go beyond the fact of a prior

conviction, to find facts about that conviction. The Fifth and Sixth

Amendments prohibit this. Mathis, 133 S.Ct. at 2252; Nijhawan, 557 U.S.

at 40; Hayes, 555 U.S. at 426.

B. The determination whether previous convictions were for

offenses “committed on occasions different from one

another” requires finding facts about prior convictions,

not the simple fact of a prior conviction.

The ACCA mandates a 15-year mandatory minimum sentence if a

defendant is convicted of being a felon in possession after sustaining three

previous convictions for a “violent felony” or “serious drug offense,” where

the offenses were “committed on occasions different from one another.” 18

U.S.C. § 924(e). This Court has held that the issue of whether a previous

conviction qualifies as a “violent felony” or a “serious drug offense” is a fact

which falls within Apprendi’s narrow exception, reasoning that if the

categorical approach is applied properly, the sentencing court determines

no more than “what crime, with what elements, the defendant was

convicted of.” Mathis, 136 S.Ct. at 2252.

But this Court has never held that whether previous convictions were

for offenses “committed on occasions different from one another” is a fact

that falls within the narrow exception. It does not. Whether offenses were

committed on different occasions is not a “simple fact of a prior conviction”

that a court can determine, using the categorical approach, consistent with

Apprendi. Instead, this secondary determination calls for wide-ranging

factual findings about the convictions that will rarely be elements of the

prior offense. Therefore, these temporal facts fit within the rule of Apprendi

rather than its exception. They must be charged in the indictment and

proved to a jury beyond a reasonable doubt. The plain language of the

statute, the manner in which it has been interpreted, and recent precedent

from this Court emphasizing the constitutional underpinnings of the

categorical approach, all lead to this conclusion.

1. The plain language of the ACCA shows these facts are

subject to the rule of Apprendi.

In determining the meaning of a statute, this Court looks first to the

text and plain meaning of the statute. United States v. Temple, 105 U.S.

97, 99 (1881). Section 924(e)(1) provides:

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

of this title and has three previous convictions by

any court . . . for a violent felony or a serious drug

offense, or both, committed on occasions different

from one another, such person shall be fined

under this title and imprisoned not less than

fifteen years. . . .

(emphasis added). Because the statute expressly requires a showing that

the offenses have been committed in a specific way—on occasions different

from one another—the plain language of the statute describes not the fact

of a prior conviction, but facts about the prior offenses, facts that are

neither susceptible to a categorical analysis nor subject to Apprendi’s prior

conviction exception.

The use of the word “committed”—as opposed to convicted—is

significant. In Taylor v. United States, 495 U.S. 575 (1990), this Court

grounded the categorical approach in the specific language of § 924(e)(1).

The Court noted that the portion of the statute at issue there “refers to ‘a

person who . . . has three previous convictions’ for—not a person who

committed—three previous violent felonies or drug offenses.” Id. at 600.

The statute’s reference to a defendant’s convictions mandated the inquiry

be limited to whether the statutory definition of the prior convictions

placed the prior convictions categorically within the definitions for violent

felony or serious drug offense. Id. This Court has returned to this

distinction between conviction and commission in determining whether a

statute’s reference to features of a prior conviction calls for a categorical or

a circumstance-specific approach. See, e.g., Mathis, 136 S.Ct. at 2252

(convicted means categorical); Johnson v. United States, 135 S.Ct. 2551,

2562 (2015) (convicted means categorical); Descamps, 133 S.Ct. at 2287-88

(convicted means categorical); Nijhawan, 557 U.S. at 37-38 (committed

means circumstance-specific); Hayes, 555 U.S. at 426 (committed means

circumstance-specific).

Here, § 924(e)(1) refers not to convictions for specified categories of

offenses, but to offenses “committed on occasions different from one

another.” The use of the word committed was intentional and indicates

the factfinder may consider not only the elements of the crime of which

Mr. Dutch was convicted but his actual conduct. As such, the application of

the circumstance-specific approach places the facts at issue squarely

within the rule of, rather than the exception to, Apprendi. Nijhawan,

557 U.S. at 40.

2. Cases that have interpreted the phrase “committed on

occasions different from on another” confirm its highly

fact-specific nature.

The plain-language, circumstance-specific meaning conveyed by the

statute’s use of the word “committed” is reinforced by cases interpreting

the requirement that offenses be “committed on occasions different from

one another.” For example, in United States v. Tisdale, 921 F.2d 1095

(10th Cir. 1990), decided prior to Apprendi, the 10th Circuit Court looked

to the specific circumstances of how the defendant committed his

previous offenses to determine whether they were committed on

occasions different from one another. In Tisdale, the Court held three

burglary convictions could be counted separately despite the fact they

occurred one the same day, inside one shopping mall. This Court held that

because the offenses took place inside three separate establishments and

were not committed simultaneously, they constituted “separate and

distinct criminal episodes.” 953 F.2d at 497-98, 499. Tisdale

distinguished its outcome from an Eighth Circuit case, United States v.

Petty, 798 F.2d 1157, vacated 481 U.S. 1034, 107 S.Ct. 1968, on remand,

828 F.2d 2 (8th Cir. 1987). There, the Court held that Petty’s six prior

robbery convictions could not be counted separately because the offenses

arose out of an incident during which he simultaneously robbed six

different people in one location. In yet another case out of the Ninth

Circuit, United States v. McElyea, 158 F.3d 1016 (9th Cir. 1998), the

Court held that two prior burglary convictions could not be counted

separately because the offenses were committed against two adjacent

establishments in a strip mall, and the second offense was committed by

chopping a hole in the wall between them. 158 F.3d at 1018. Because the

record did not contain sufficient information about how the offenses were

committed—including the amount of time McElyea spent in each store or

whether he stayed in one store while his accomplice entered the other—

this Court could not say that the burglaries were “separate and distinct

criminal episodes.” Id. at 1021.

These cases illustrate that a Court’s interpretation of whether crimes

are “committed on occasions different from one another” has been highly

fact-specific. In McElyea, the convictions were not for offenses committed

on occasions different from one another because they were for burglaries

of adjoining stores, whereas the Court in Tisdale reached the opposite

conclusion where the burglaries occurred at different businesses inside one

mall. The Petty Court considered additional factors, and held simultaneity

affected the analysis. These are not differences based on the “fact of a prior

conviction.” Rather, they are differences based on facts about the prior

offenses. Apprendi mandates such facts must be submitted to a jury.

Nijhawan, 557 U.S. at 40; Hayes, 555 U.S. at 426.

The conclusion that these facts are subject to Apprendi’s rule is

confirmed by this Court’s recent decisions in Mathis and Descamps, which

have emphasized the Sixth Amendment underpinnings of Taylor’s

categorical approach. “The Sixth Amendment contemplates that a jury—

not a sentencing court—will find [sentence-enhancing] facts, unanimously

and beyond a reasonable doubt.” Descamps, 133 S.Ct. at 2288. “And the

only facts the court can be sure [a prior] jury found are those constituting

elements of the offense—as distinct from amplifying but legally extraneous

circumstances.” Id. When utilizing the Apprendi exception for the “simple

fact of a prior conviction,” the federal sentencing judge “can do no more,

consistent with the Sixth Amendment, than determine what crime, with

what elements, the defendant was convicted of.” Mathis,136 S.Ct. at 2252.

Because the issue of whether three previous convictions were committed

on occasions different from one another will rarely, if ever, be elements of

the prior offenses of conviction, these facts are subject to the rule of

Apprendi, not its exception.

3. The Tenth Circuit’s reliance on Michel is

problematic as it is contrary to intervening

precedent from this Court.

In its decision, the Tenth Circuit Court contended that United States

v. Michel, 446 F.3d 1122 (10th Cir. 2006),5 permits courts rather than

juries to find the sequence of prior offenses, and therefore that this

information falls within Apprendi’s narrow exception, not its rule. This

reading of Michel is “contrary” to Mathis, 135 S.Ct. at 2252, and

Descamps, 133 S.Ct. at 2288. United States v. Brooks, 751 F.3d 1204, 1209

(10th Cir. 2014) (rule preventing one panel of this court from overruling an

earlier panel’s decision does not apply when this Court issues an

intervening decision that is “contrary to” or “invalidates” previous

analysis). Therefore, Michel is not controlling.

In Michel, this Court held the government was not required to plead

5 The Court also cites to United States v. Harris, 447 F.3d 1300 (10th Cir.

2006), a case that relied on Michel to reach an identical holding. Because

Michel contains the controlling precedent, arguments herein address the

fallacies of that case in particular while the analysis extends to its progeny.

and prove beyond a reasonable doubt the sequence of an ACCA

defendant’s prior burglary convictions. Michel, 488 F.3d at 1132-1133.

This Court rejected Michel’s argument that the date of an offense fell

outside Apprendi’s prior-conviction exception. Id. Rather, this Court held

the determination of whether prior convictions “occurred on occasions

different from one another” was a factual issue “inherent in the convictions

themselves, and thus…not among the kind of facts extraneous to a

conviction” requiring a jury finding. Id. (quoting United States v.

Thompson, 421 F.3d 278 (4th Cir. 2005)). This Court held the date on

which a defendant committed the offense was part of the “fact of a prior

conviction” that could be found by the sentencing judge to increase the

statutory maximum term.

Intervening authority from this Court undercuts the extent Michel

can be read to allow a federal sentencing judge to find offenses underlying

previous convictions were “committed on occasions different from one

another.” In Mathis, this Court held the federal sentencing judge “can do

no more, consistent with the Sixth Amendment, than determine what

crime, with what elements, the defendant was convicted of.” Mathis, 136

S.Ct. at 2252. “Elements” are “the ‘constituent parts of a crime’s legal

definition—the things the ‘prosecution must prove to sustain a

conviction.’” Mathis, 136 S.Ct. at 2248 (quoting Black’s Law Dictionary

634 (10th ed. 2014)). “At a trial, they are what the jury must find beyond a

reasonable doubt to convict the defendant; and at a plea hearing they are

what the defendant necessarily admits when he pleads guilty.” Mathis, 136

S.Ct. at 2248 (internal citations omitted). “Facts, by contrast, are mere

real-world things—extraneous to the crime’s legal requirements.” Id.

This Court explained Apprendi required this limitation that “only a

jury, and a not a judge, may find facts that increase a maximum penalty,

except for the simple fact of a prior conviction.” Mathis, 136 S.Ct. at 2252

(citing Apprendi, 530 U.S. at 490). It explained Apprendi’s requirement

“means a judge cannot go beyond identifying the crime of conviction to

explore the manner in which the defendant committed the offense.”

Mathis, 136 S.Ct. at 2252 (citation omitted). “He is prohibited from

conducting such an inquiry himself; and so too he is barred from making a

disputed determination about ‘what the defendant and state judge must

have understood to be the factual basis of the prior plea’ or ‘what the jury

in a prior trial must have accepted as the theory of the crime.’” Mathis, 136

S.Ct. at 2252 (quoting Shepard v. United States, 544 U.S. 13, 25 (2005);

Descamps, 133 S.Ct. at 2288).

Under Mathis, the date of an offense, or whether specific

circumstances of several offenses show they were separate and distinct

criminal episodes, are not elements of a prior conviction that the Sixth

Amendment permits a sentencing judge to determine. The “committed on

occasions different from one another” inquiry does not ask “what crime,

with what elements, the defendant was convicted of.” Mathis, 136 S.Ct. at

2252. It does not describe something “the prosecution must prove to

sustain a conviction.” Id. at 2248. It asks about more than “the simple fact

of a prior conviction.” Id. at 2252. It asks about a “real-world thing,” and to

resolve the issue the court must “go beyond identifying the crime of

conviction to explore the manner in which the defendant committed the

offense.” Id. at 2248, 2252. To the extent Michel held otherwise, it cannot

be reconciled with Mathis.

Likewise, in Descamps, this Court specifically and forcefully

rejected the Ninth Circuit Court’s prior approach to the ACCA, which

allowed a sentencing court to find facts about a prior conviction that were

not elements of the prior offense. Descamps, 133 S.Ct. at 2288-2289.

Emphasizing the Sixth Amendment underpinnings of the categorical

approach, this Court reiterated “that ‘[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.’” Id. at 2288 (quoting Apprendi, 530 U.S. at

490). By finding the defendant’s prior conviction for burglary under

California Penal Code § 459 involved an unlawful entry, even though that

was not an element of the offense of conviction, the district “court did just

what [this Court] ha[d] said it cannot: rely on its own finding about a nonelemental fact to increase a defendant’s maximum sentence.” Descamps,

133 S.Ct. at 2289.

The only facts the federal sentencing court can be sure a prior jury

found are those facts that constitute elements of the prior offense of

conviction. Mathis, 136 S.Ct. at 2248, 2252; Descamps, 133 S.Ct. at 2288.

Whether prior offenses were “committed on occasions different from one

another,” will rarely, if ever, be elements a prior jury will have found

unanimously beyond a reasonable doubt. Because these facts are not

susceptible to the categorical approach, they are not subject to Apprendi’s

narrow exception. If there were doubt on this issue, the statute must be

interpreted to avoid the constitutional question. Shepard, 544 U.S. at 2526.

C. This Court should reverse the Tenth Circuit’s decision to

remand for resentencing.

While Mr. Dutch’s 2005 indictment refers vaguely to three separate

dates of robberies by alleging that they were committed “on or about” a

certain day, the plea failed to specify that Mr. Dutch had three prior

convictions for offenses “committed on occasions different from one

another.” (Doc. 34-1) The 2016 indictment references a singular bank

robbery, but provides no other details. (Doc. 2) There is no indication that

he ever affirmatively admitted the factors used to increase his sentence at

the prior sentencing hearing, and as such, the evidence was insufficient to

support the 15-year ACCA sentence. The district court properly exercised

restraint as instructed by Mathis and Decamps and did not go beyond

identifying the crime of conviction to explore the manner in which the

defendant committed the offense. The judge appropriately refrained from

conducting an inquiry about what the defendant and the plea-judge must

have understood as the factual basis of the prior plea. See Shepard, 544

U.S. at 25-26 (2005) (“The rule of reading statutes to avoid serious risks of

unconstitutionality… counsels us to limit the scope of judicial factfinding on

the disputed generic character of a prior plea[.]”) To avoid a constitutional

infirmity, this Court should reverse the Tenth Circuit’s decision.

Conclusion

This Court should grant its writ of certiorari to protect the

constitutional principles enshrined in the Sixth Amendment and Apprendi.

Because determining whether prior offenses were “committed on occasions

different from another” under ACCA is a fact-intensive inquiry, tallying

prior offenses should be a task assigned to a properly-instructed jury.

Respectfully submitted,

STEPHEN MCCUE

Federal Defender

DATED: March 12, 2019

s/ Brian A. Pori

BRIAN A. PORI

Attorney for the Petitioner &

Counsel of Record

Office of the Federal Public Defender

District of New Mexico

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: brian_pori@fd.org

APPENDIX

UNITED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

November 1, 2018

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

MARC DUTCH,

No. 17-2219

(D.C. No. 1:16-CR-01424-MV-1)

(D.N.M)

Defendant - Appellee.

ORDER AND JUDGMENT*

Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.

The government appeals the sentence of Marc Dutch. It contends the district

court erred in refusing to apply the Armed Career Criminal Act (“ACCA”). We

agree with the government that the ACCA governs because Dutch’s prior crimes

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

Exercising jurisdiction under 18 U.S.C. § 3742(b), we reverse and remand for

resentencing.

This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appendix 1a

In 2016, Dutch was arrested after fleeing the scene of a traffic accident.

Officers discovered a loaded revolver and ammunition in a subsequent search. Dutch

pled guilty to being a felon in possession of a firearm and ammunition in violation of 18

U.S.C. § 922(g)(1), without the benefit of a plea agreement.

Dutch’s Presentence Investigation Report recommended that he be subject to

the ACCA based on three prior bank robbery convictions. In 2006, Dutch pled guilty

to three counts of bank robbery and aiding and abetting in violation of 18 U.S.C.

§§ 2113(a) and 2. The government offered the indictment, Dutch’s plea agreement,

and the judgment from that case. According to the indictment, the bank robberies

occurred on or about: (1) November 12, 2005, at First Financial Credit Union, 2700

San Mateo Boulevard NE, Albuquerque, NM; (2) November 25, 2005, at Ironstone

Bank, 7300 Jefferson NE, Albuquerque, NM; and (3) November 26, 2005, at Sandia

Laboratory Federal Credit Union, 3707 Juan Tabo Blvd., Albuquerque, NM.

The district court concluded that the government had not met its burden to

establish the ACCA applied because the record did not indicate whether Dutch’s

crimes occurred on different occasions or as part of one continuous drug-fueled

enterprise. It noted that Dutch’s long history of substance abuse and mental illness

likely deprived him of a meaningful opportunity to cease his criminal conduct.

Dutch was sentenced to 60 months. The government timely appealed.

Appendix 2a

We review the district court’s decision whether to apply the ACCA de novo.

United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). A defendant is

subject to an enhanced sentence under the ACCA if he has three prior violent felony or

serious drug offense convictions that were “committed on occasions different from one

another.” § 924(e)(1). The government must prove by a preponderance of the evidence

that prior offenses occurred on different occasions. Delossantos, 680 F.3d

at 1219.

This court has repeatedly held that predicate offenses occurred on different

occasions for the purposes of § 924(e)(1) when the offenses took place at different

times or locations. See United States v. Harris, 447 F.3d 1300, 1305 n.2 (10th Cir.

2006) (“Separateness under the ACCA turns on when and where the crimes were

committed.”); United States v. Michel, 446 F.3d 1122, 1134 (10th Cir. 2006)

(enhancement applied because defendant “committed three successive criminal incidents

at three separate locations against three different victims”); United States v.

Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (“[O]ffenses committed at distinct,

different times will be treated as separate predicate offenses for purposes of

§ 924(e)(1).” (quotation omitted)); United States v. Tisdale, 921 F.2d 1095, 1099

(10th Cir. 1990) (considering whether prior offenses were “distinct in time” and

“committed at different locations”). In determining the time and place of prior

offenses, sentencing courts may consult certain records, including charging

documents. See Harris, 447 F.3d at 1305 (citing Shepard v. United States, 544 U.S.

Appendix 3a

13, 20-21 (2005)). “The time, place, and substance of the prior convictions can

ordinarily be ascertained from court records associated with those convictions . . . .” Id.

at 1304.

Dutch’s prior indictment demonstrates that his three bank robberies occurred

at different times and places, and involved different banks. This information satisfies

the government’s burden of proving by a preponderance of the evidence that the

offenses were “committed on occasions different from one another.” § 924(e)(1).

Although two of the robberies occurred within a day of one another, we have held

that even crimes occurring in quick succession qualify as separate. See Michel, 446

F.3d at 1134 (three separate crimes “all occurred within a short period of time”); Tisdale,

921 F.2d at 1099 (defendant’s three burglaries at three separate businesses in

same shopping mall on same night were separate for the purpose of § 924(e)(1)).

In ruling otherwise, the district court relied heavily on Dutch’s argument that

his drug use rendered him unable to halt his criminal activities. Dutch is correct that

we do sometimes consider whether a defendant had the opportunity to cease his

conduct in applying § 924(e)(1). But we do so to help determine whether the

offenses were in fact distinct in time, rather than as a separate inquiry into the

defendant’s state of mind. See Michel, 446 F.3d at 1134 (considering the fact that

defendant “had the opportunity after assaulting the first officer simply to flee the scene

rather than attempting to rob the convenience store and assaulting the second officer”);

Tisdale, 921 F.2d at 1098-99 (noting that “[a]fter the defendant successfully completed

burglarizing one business, he was free to leave” (quotation omitted)).

Appendix 4a

Moreover, Dutch necessarily admitted that he possessed the requisite mens rea as

to each independent robbery by pleading guilty to three separate counts. His voluntary

intoxication does not mean that he was denied a meaningful opportunity to cease his

conduct. See United States v. Taylor, 454 F.3d 1075, 1081 (10th Cir. 2006) (noting that

§ 2113(a) is a general intent crime); United States v. Williams, 403 F.3d 1188, 1194

(10th Cir. 2005) (voluntary intoxication is not a defense to general intent crimes).

We also reject Dutch’s argument that he did not admit to aiding and abetting

the bank robberies on different occasions. Regardless of the facts underlying Dutch’s

aiding and abetting, the government offered proof that Dutch pled guilty to three

counts of substantive bank robbery in violation of 18 U.S.C. § 2113(a). And as

explained supra, the indictment demonstrates that the three bank robberies occurred

on different dates and at different locations.

Dutch raises two alternative issues that are foreclosed by circuit precedent.

See United States v. White, 782 F.3d 1118, 1126-27 (10th Cir. 2015) (“One panel of

this court cannot overrule the judgment of another panel absent en banc consideration

or an intervening Supreme Court decision that is contrary to or invalidates our

previous analysis.” (quotation omitted)). We have held that judges may find prior

offenses occurred on different occasions without violating the Sixth Amendment.

Harris, 447 F.3d at 1305; Michel, 446 F.3d at 1132-33. Subsequent decisions

addressing how courts may determine the elements of a prior offense, see, e.g.,

Mathis v. United States, 136 S. Ct. 2243 (2016), have not undermined that holding.

Appendix 5a

This court has also already held that bank robbery in violation of § 2113(a) is a

violent felony. United States v. McCranie, 889 F.3d 677, 677-78 (10th Cir. 2018).

III

We REVERSE the district court’s conclusion that the ACCA does not apply

and REMAND with instructions to VACATE Dutch’s sentence and resentence him

consistent with this order and judgment.

Entered for the Court

Carlos F. Lucero

Circuit Judge

Appendix 6a

Case 1:16-cr-01424-MV Document 42 Filed 11/06/17 Page 7 of 27 Appellate

Case: 17-2219

Document: 01019968589 Date Filed: 04/02/2018 Page: 30

Mr. Dutch when he returns to Hobbs once the writ is discharged.

THE DEFENDANT:

I'd like to add, too, that the first

initial BOP sentence that I served, I went to USP Terre Haute and

completed the Challenge Program, which is -- they don't offer the

RDAP program in the custody level that I fall in.

But they do

offer a residential program that was completed.

It did help, but

when I got out that time, my dad committed suicide, and it threw

me into a relapse.

MR. PORI:

Hence, the second prison sentence.

The only other thing I'm going to add is

Mr. Herring, who wrote that letter to the Court, sent some advice

for Mr. Dutch, and that advice is:

custody clean.

has the opportunity to use drugs or alcohol in prison, but if he's

serious about not having another relapse in him, he needs to do

every day of whatever sentence is imposed clean.

Do every day of your time in

And that's vitally important for Mr. Dutch.

MR. KRAEHE:

And, Your Honor, I just mentioned -- I just

brought that up in order to preserve my objection on that.

think, actually, Mr. Pori may be right as to the concurrent

sentence so...

that.

sentence is not appropriate in this case if the Armed Career

Criminal Act clearly applies, and that a 15-year sentence should

be imposed.

But I just wanted to preserve any objection to

But our position, anyway, Your Honor, is that a guideline

THE COURT:

Mr. Dutch is before the Court for sentencing

in case number 16-CR-1424-001.

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 7a

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Pursuant to Booker, this Court must consider the advisory

Sentencing Guidelines, as well as each of the additional factors

stated in 18 U.S.C. Section 3553(a), in imposing a reasonable

sentence that is sufficient but not greater than necessary to

comply with the purposes set forth in Section 3553(a).

The United States did not object to the Presentence Report,

but Mr. Dutch objected to paragraphs 31, 48 and 55 of the report.

Paragraph 31 states that Mr. Dutch is an armed career criminal and

is subject to an enhanced sentence under 18 U.S.C. 924(e), because

each of the three counts of bank robbery he pled guilty to in case

number 5-CR-2769-002-JC is a separate crime committed at a

different time.

robberies.

Mr. Dutch is an armed career criminal, and, therefore, the

criminal history category shall be the greatest of the criminal

history category applicable under Sentencing Guideline Sections

4B1.4(c)(1), (2), or (3), which in this case is V.

Paragraph 48 states details of those three bank

Paragraph 55 of the Presentence Report states that

The Court overrules Mr. Dutch's objection to paragraph 48 as

that paragraph appears to accurately describe the details of the

three robberies at issue.

With respect to paragraphs 31 and 55 of the Presentence

Investigation Report, the Government bears the burden of proving

by a preponderance of the evidence that an enhancement is

appropriate.

Circuit 1997.

United States v. Johnson, 130 F.3d 1420, 1430, Tenth

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 8a

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Furthermore, it bears the burden of proving that prior

offenses occurred on different occasions.

States, 544 U.S. 13, 2005.

878, 891 to 93, Seventh Circuit, 2012.

Shepard v. United

Kirkland v. United States, 687 F.3d

If the Government fails to show that the three prior

convictions arose out of separate and distinct criminal episodes,

then the ACCA enhancement will not apply.

600 F.3d 1326, at 1329 to 32, Eleventh Circuit, 2010.

United States v. Sneed,

When, as in this case, the Court must determine whether a

prior conviction resulting from a guilty plea is a violent felony

for the purpose of the ACCA, the Court is limited to an

examination of the language of the conviction, the terms of the

charging document, the terms of a plea agreement or transcript of

colloquy between judge and defendant, or to some comparable

judicial record of this information.

States v. Taylor at 413 F.3d 1146, at 1157, Tenth Circuit, 2005,

citing Shepard at 544 U.S. at 24.

And I'm quoting from United

Here, with respect to the prior bank robbery convictions, the

Indictment charged Mr. Dutch and two co-defendants with ten counts

of violation of 18 U.S.C. 2113(a) and Section 2, for bank

robberies that occurred on November 12th, 14th, 18th, 21, 22, 25,

26, 28th, 29th and 30th.

alleged conduct or role each defendant played in the robberies.

It contained no language amplifying the

The plea agreement stated that Mr. Dutch agreed to plead

guilty to Counts 1, 6 and 7 -- which were the November 12th, 25th

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 9a

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and 26th robberies -- but provided no detail about his actual role

in the robberies.

Mr. Dutch pled guilty to Counts 1, 6 and 7, but included no

further information about the offenses.

the sentencing hearing or plea colloquy, nor does the Sentencing

Minute Sheet set out any details of the robberies.

The judgment in the case indicated that

There is no transcript of

The Court concludes that the Government has failed to meet

its burden under Shepard of providing the reliable evidence that

the prior offense occurred on occasions different from one

another, rather than as part of an ongoing drug-fueled criminal

offense.

Moreover, the fundamental aspect of the framework for

determining whether prior offenses occurred on separate occasions

is whether the Defendant had an opportunity between offenses to

cease from the criminal activity.

United States v. Tisdale, 921 F.2d 1095 at 1098 and 99, Tenth

Circuit, 1990, the Tenth Circuit stated that Congress' use of the

phrase, quote, "committed on occasions different from one

another," end quote, was intended to reach multiple criminal

episodes distinct in time.

Kirkland 687 F.3d at 891.

In United States v. Delossantos, 680 F.3d 1217, a 2012 Tenth

Circuit decision, the Tenth Circuit upheld the district court's

decision that the defendant's sale of controlled substances on

three separate dates were criminal episodes distinct in time, even

though the offenses were part of the same course of conduct or

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 10a

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criminal scheme or plan.

between each of the drug offenses, defendant had a meaningful

opportunity to cease his illegal conduct."

In doing so, the Court stated:

"In

This is at 1220.

In this case, it is clear from the Presentence Investigation

Reports in both the bank robbery case and in this case, the

evaluation performed by Dr. Marshall, and the letters sent by

individuals who know Mr. Dutch, that:

extraordinarily long history of drug addiction starting at the age

of nine, which has been largely untreated.

addicted to, methamphetamine and crack cocaine, are extremely

difficult to withdraw from.

of treatment for his addiction or substance abuse counseling at

the time of the bank robberies.

methamphetamine and crack cocaine very heavily at the time of the

robberies.

to buy more drugs.

One, he has an

Two, the drugs he is

Three, he was not undergoing any kind

Four, he was using

Lastly, he was participating in the robberies in order

Given these facts, the Court cannot conclude that in between

each of these robberies, Mr. Dutch had a meaningful opportunity to

cease his conduct.

Finally, as its name suggests, the Armed Career Criminal Act

is aimed at identifying and selectively incapacitating criminals

who are unresponsive to rehabilitative treatment or deterrence,

denying them the opportunity to commit crimes by locking them up

for long periods of time.

possession of firearms by any felon who has three previous

It does this by criminalizing

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 11a

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convictions by any court for a violent felony or serious drug

offense, or both, quote, "committed on occasions different from

one another," end quote.

Mr. Dutch is a drug addict.

When sober, he has been a

law-abiding, productive citizen who has excelled in his job, who

has been given promotions, who has been able to supervise others.

But his addiction has gone largely untreated.

robberies were all committed within an approximately two-week

period of time when he was high on drugs.

believe, based on the facts of this case, that Mr. Dutch is the

type recidivist criminal the Act was intended to target.

And the bank

The Court does not

Accordingly, the Court grants Mr. Dutch's objections to

paragraphs 31 and 55 of the Presentence Report and concludes that

he is not an armed career criminal under the Armed Career Criminal

Act pursuant to 18 U.S.C. 924(e).

Mr. Dutch pled guilty to violation of 18 U.S.C. Section

922(g)(1), felon in possession of a firearm and ammunition.

On January 27th, 2016, Mr. Dutch crashed his vehicle at the

intersection of Comanche and Camino De La Sierra in Albuquerque,

and then he fled from the scene.

near the scene of the accident and ordered him to remove his hands

from his pockets.

was taken into custody.

Responding officers located him

He was initially noncompliant but ultimately he

Officers found a .22 caliber revolver and ammunition, as well

as methamphetamine, on his person.

Vol. III

Mr. Dutch appeared to be

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

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intoxicated on an unknown substance.

He was transported to the

Foothills Substation to complete a DWI investigation.

substation, he was read the New Mexico Implied Consent Advisory

and refused to subject himself to a breath or blood test.

Officers verified Mr. Dutch was on active probation and parole

with the New Mexico Probation and Parole Department, and an arrest

and hold was issued.

leaving the scene of an accident; probation and parole violation;

possession of methamphetamine; and felon in possession of a

firearm.

At the

Mr. Dutch was charged with aggravated DWI;

ATF officers subsequently test fired the firearm, which

functioned as designed, and determined that the firearm and

ammunition traveled in/or affected foreign commerce.

confirmed fingerprint impressions matched with Mr. Dutch's

previous felony convictions.

They

The firearm was not reported stolen.

Mr. Dutch committed the instant offense subsequent to his

convictions for the following felony convictions:

Aggravated

assault with a deadly weapon, Bernalillo County District Court,

Albuquerque, New Mexico, Case No. D-202-CR-2004-04358; bank

robbery, three counts:

Mexico, Case No. 1:05-CR-2769-002; conspiracy to commit robbery,

Bernalillo County District Court, Albuquerque, New Mexico, Case

No. D-202-CR-2010-03474; embezzlement of a motor vehicle and

burglary (automobile), Bernalillo County District Court,

D-202-CR-2013-01126.

U.S. District Court, District of New

Mr. Dutch was a prohibited person from

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 13a

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possessing a firearm.

The offense level in this case is 21, and the criminal

history category is V.

therefore, 70 to 87 months.

The guideline imprisonment range is,

In addition to the advisory Sentencing Guidelines, this Court

also considers other factors set forth in Section 3553(a).

section requires the Court to consider the nature and

circumstances of the offense, and the history and characteristics

of Mr. Dutch.

that complies with the purposes of sentencing, which include

retribution, deterrence, incapacitation and rehabilitation.

satisfying these purposes, the Court is obligated to consider each

of the factors outlined in Section 3553(a).

so.

This

It also requires the Court to impose a sentence

This Court has done

As for the history and characteristics of Mr. Dutch, he had a

tumultuous and troubled childhood.

Dutch, was an alcoholic and drank heavily.

that, at an early age, his older brother was caught taking a beer

out of the refrigerator.

As punishment, their father made both

boys drink several beers.

Mr. Dutch became sick and vomited.

Mr. Dutch's father would physically abuse his mother, Joanne

Ownbey, when he was drinking.

she relocated from Albuquerque to Danville, Illinois, and

remarried.

His father, Mark Anthony

Mr. Dutch recalls

His parents divorced in '94, and

After that, his mother became an alcoholic and his father

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

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began to use crack cocaine.

Mr. Dutch bounced around between

Danville and Albuquerque.

While in Albuquerque, he obtained a

paper route and gave the money he made from it to his father to

support his crack cocaine addiction.

cocaine but began smoking marijuana and drinking alcohol during

this time period.

bought a car with money his grandmother had given him and drove

from Danville to Albuquerque.

briefly attended Central New Mexico Community College.

vocational training in carpentry.

Mr. Dutch did not use crack

When he was 14, he dropped out of school and

He's never married.

He eventually obtained his GED and

He has no children.

He has

His father

committed suicide in 2010.

who lives in Texas; a stepbrother and two stepsisters; and a

younger paternal half sister, Symphony Bassett, who lives in

Albuquerque.

siblings.

He has an older brother, Jason Dutch,

He no longer maintains close relationships with his

Mr. Dutch has attempted suicide at least twice in the past.

He reports suffering from post traumatic stress disorder as a

result of being involved in a prison riot while he was an inmate

in Terre Haute, Indiana, during his previous federal

incarceration.

Mr. Dutch has a long history of substance abuse.

He began

drinking alcohol at the age of 8, using marijuana at the age of 9

or 10, and using crack cocaine when he was about 15.

using methamphetamine when he was 17, and continued until his

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

He began

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arrest for this offense.

from January 2015 to January 2016, but relapsed after that.

Mr. Dutch also has a history of gambling addiction, and it has

been a contributing factor to his relapse and use of

methamphetamine before the instant offense.

He was clean from illegal substances

With respect to the need for the sentence imposed to reflect

the seriousness of the offense, the offense in this case was

serious.

the law enforcement officers at risk of injury or death.

Court notes, however, that Mr. Dutch admitted and accepted his

responsibility for his actions.

Mr. Dutch, by his offense conduct, put the public and

The

With respect to deterrence, the Court believes that a

combination of an appropriate period of imprisonment, combined

with proper drug and mental health treatment, should help

Mr. Dutch avoid future criminal behavior.

With respect to public safety, as the Court noted, Mr. Dutch

endangered the safety and lives of the public and the police

officers.

With respect to providing the Defendant with needed

treatment, Mr. Dutch has a serious drug addiction and suffers from

mental illness.

addiction -- both during his time in prison and after his

release -- and for mental health treatment to address the very

difficult issues of his youth.

He is desperately in need of treatment for his

Although Mr. Dutch has an extensive criminal history, most of

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

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it appears to have been related to his serious drug addiction,

compounded by his mental illness.

Considering the factors set forth in 18 U.S.C. 3553(a),

including his very difficult and painful childhood, his drug

addiction and his mental illness, the Court finds that a downward

variance is appropriate in this case.

reflect the seriousness of the behavior of the offense, while

recognizing that Mr. Dutch's drug abuse has greatly contributed to

his criminal behavior.

Such a sentence would

As to the charge in the Indictment in 16-CR-1424, Mr. Dutch

is committed to the custody of the Bureau of Prisons for a term of

60 months.

The Court recommends that Mr. Dutch participate in the Bureau

of Prisons 500 hour drug and alcohol program.

The Court also orders that this run concurrently with state

D-202-CR-2013-01126, and designates a state facility as the

primary custodian for the sentence in this case.

The Court recommends that Mr. -- the Court orders that

Mr. Dutch be placed on supervised release for a term of three

years as to the charge in the Indictment.

Mr. Dutch must comply with the mandatory and standard

conditions of supervised release.

following special conditions:

He must also comply with the

You must reside in a residential re-entry center for a period

of up to six months and must follow the rules and regulations of

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

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the center.

You must participate in an inpatient substance abuse

treatment program to be followed by an outpatient substance abuse

treatment program when you are released.

will supervise your participation in the program such as the

provider, location, modality, et cetera.

pay for a portion of the cost of the program.

inpatient when you are released, followed by outpatient to be

completed while you are living at a residential halfway house.

You must participate -- oh.

Your probation officer

You may be required to

So we're talking

You must participate in an AA or

NA -- and, I'm sorry, I forgot to include that as a condition for

Ms. Sarracino, and since you're still here, Ms. Sarracino, I do

strongly believe in AA program as well.

So I am going to want to include that as a condition for

Ms. Sarracino as well.

I want that signed, so that I know that you're going.

I've had many successes.

That is, 90 days of participation in AA.

Getting back to you, I do want you to participate in either

AA or NA.

I'll leave that up to you depending on which program

you find.

You must obtain a sponsor for the program and follow

the rules and regulations of the program.

officer's going to supervise your participation in the program.

Your probation

You're going to have to submit to substance abuse testing to

determine if you've used a prohibited substance.

testing will include urine testing, the wearing of a sweat patch,

a remote alcohol testing system, an alcohol monitoring technology

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

As you know,

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program, and/or any form of prohibited substance screening or

testing.

and you could be required to pay for a portion of the cost of the

testing.

You can't obstruct or tamper with the testing methods

You must not use or possess alcohol.

You must not knowingly purchase, possess, distribute,

administer or otherwise use any psychoactive substance such as

synthetic marijuana or bath salts that impair your physical or

mental functioning, whether or not intended for human consumption.

You must not possess, sell, offer for sale, transport, cause

to be transported, cause to affect interstate commerce, import or

export any drug paraphernalia as defined in 21 U.S.C. Section

863(d).

You must submit to a search of your person, property,

residence, vehicle, papers, computers, other electronic

communications or office under your control.

officer may conduct a search but only when reasonable suspicion

exists, always in a reasonable manner, and at a reasonable time,

and it is for the purpose of detecting drugs, drug paraphernalia,

and any other illegal contraband.

you live know that you are subject to this search condition.

The probation

You must let people with whom

I want you to be working or going to school, but you have to

be doing something.

participate in an educational or vocational program.

So if you're not employed, then you must

Obviously, no gambling.

And that includes lotteries, online

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

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wagering, sports betting, et cetera.

allowed to enter any casino or other establishment where gambling

is the primary purpose.

off-track betting establishments.

You're not going to be

This includes horse race tracks,

You must participate in a gambling addiction program and

follow the rules and regulations of that program.

officer will supervise that as well.

Your probation

I also want you to participate in a mental health treatment

program and follow the rules and regulations of that program, and

your probation officer will also supervise your participation.

I want you to take mental health medications that are

prescribed by your physician, and you're going to be required to

take whatever is prescribed.

not -- if it's causing bad side effects you have to take it.

means that I want you to report bad side effects to your doctor,

so that you can take something that is working for you and

something that is helping you.

That doesn't mean that if it's

That

There will not be a fine, Mr. Dutch, based on your lack of

financial resources.

There is a mandatory assessment of $100, which is payable to

the United States District Court Clerk's office.

I will recommend the Granville, Illinois, facility, which is

closest to your family, so that you may have some family support.

I like the idea of you going back to work with your family.

The letters that I received were very impressive.

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

They were from

Appendix 20a

Case 1:16-cr-01424-MV Document 42 Filed 11/06/17 Page 25 of 27

Appellate Case: 17-2219 Document: 01019968589 Date Filed: 04/02/2018 Page: 44

people that know you and people that aren't writing nice things

just because you are a family member.

for whom you have established yourself as someone that can be

reliable, that has a strong work ethic and has proven yourself.

I have great faith in you.

They are written by people

I believe that you can do this.

And I believe that the resources that our national probation

offices have are just what you need.

characteristics to do this, and I have great faith that you will.

I'm just sorry I won't get to work with you, because I know we

will transfer your jurisdiction, so that you can finally go home.

I'm very glad that you have a family farm, because I know that it

will succeed with you at its helm.

THE DEFENDANT:

THE COURT:

You have the personal

Thank you.

You've got 14 days to appeal the final

sentence of this Court, and you can appeal in forma pauperis if

you're unable to pay for the cost of an appeal.

happy to assist you with that.

Don't give up, Mr. Dutch.

MR. PORI:

Mr. Pori will be

I know that you will do well.

Your Honor, can I make one correction to the

record?

I think the Court's -- in calculating the offense level

outside of the Armed Career Criminal Act, the Court said it was an

offense level of 21 and a criminal history --

THE COURT:

Yes.

MR. PORI:

I think, though, it's an offense of 28, minus

3 for acceptance, is 25, because it was a 24 plus 4 for possessing

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 21a

the firearm in connection with another offense.

the record to reflect that even if the offense level was 25, I

presume and will not speak for the Court, that the Court would

still depart for the reasons set forth in the judgment.

referring to paragraphs 26 and -- 25 and 26 of the Presentence

Report.

THE COURT:

Okay.

Let's see.

And I just want

And I'm

It appears that you're

correct.

Did you have something, Mr. Kraehe?

MR. KRAEHE:

Your Honor, I believe I probably have done

enough to preserve error on appeal on the ACCA question, but I did

want to object to the sentencing and to the judgment of the Court

as to the applicability of the ACCA just for purposes of

preserving appeal.

THE COURT:

All right.

Yes, I think you have.

Thank you very much.

I think that's it.

MR. PORI:

Your Honor, thank you very much.

THE COURT:

Yes.

(Court in recess at 1:08 p.m.)

May we be

excused?

Thank you.

USA v. MARK DUTCH

16-CR-1424 MV

October 12, 2017

Appendix 22a

Appellate Case: 17-2219

Document: 010110099660

Date Filed: 12/18/2018

LSS

UNITED STATES COURT OF APPEAL

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

December 18, 2018

UNITED STATES OF AMERICA,

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellant,

No. 17-2219

MARC DUTCH,

Defendant - Appellee.

ORDER

Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.

This matter is before the court on Appellant’s petition for rehearing en banc.

The petition for rehearing en banc was transmitted to all of the judges of the court

who are in regular active service. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, that petition for rehearing en

banc is denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

Appendix 23a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.