Petition for Writ of Certiorari — Quentin Perry, Petitioner v. United States

NO. ____________

IN THE

Supreme Court of the United States

QUENTIN L. PERRY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RACHEL K. PAULOSE

Counsel of Record

UNIVERSITY OF ST. THOMAS

SCHOOL OF LAW

1000 LASALLE AVENUE

MINNEAPOLIS, MN 55403

651.962.4823

rachel.paulose@stthomas.edu

Counsel for Petitioner

QUESTIONS PRESENTED

1. Does the judicial determination of crimes “committed

on occasions different from one another” under the

Armed Career Criminal Act violate the Sixth

Amendment right to a trial by jury and the Fifth

Amendment right to due process?

2.

Is the Armed Career Criminal Act provision

regarding determination of crimes “committed on

occasions different from one another” void for

vagueness?

I

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................... I

OPINIONS BELOW ...................................................... 1

JURISDICTION ............................................................ 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............................................ 2

STATEMENT OF THE CASE ...................................... 3

REASONS FOR GRANTING THE PETITION ............ 8

I.

A Jury Must Decide The ACCA’s

“Committed On Occasions Different From

One Another” Issue. ................................................ 8

A. The Constitution Requires Juries to

Find Facts Beyond a Reasonable Doubt

Which Increase the Statutory Maximum

or Mandatory Minimum. .................................. 8

B. The Prior Conviction Exception is

Narrow............................................................. 10

C. Shepard Documents May Not Be Used

to Find Facts Under the ACCA. ..................... 16

II. This Court Should Adopt the Single

Operative Episode Test. ........................................ 18

A. The ACCA’s Plain Language, Purpose,

and History Support a Single Operative

Episode Test. ................................................... 19

III. The ACCA Is Void For Vagueness. ....................... 23

CONCLUSION ............................................................ 27

II

TABLE OF AUTHORITIES

CASES

Alleyne v. United States,

570 U.S. 99 (2013) ............................................ 7, 9, 10

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ................................ 10, 11, 15, 16

Apprendi v. New Jersey,

530 U.S. 466 (2000) .......................................... 7, 9, 10

Descamps v. United States,

570 U.S. 254 (2013) .......................................... passim

In re Winship,

397 U.S. 358 (1970) .................................................. 18

Johnson v. United States,

135 U.S. 2551 (2015) .................................... 23, 24, 26

Jones v. U.S.,

526 U.S. 227 (1999) ........................................ 9, 10, 12

Mathis v. United States,

136 S. Ct. 2243 (2016) ...................................... passim

Shepard v. United States,

544 U.S. 13 (2005) .................................. 11, 13, 16, 17

Sykes v. United States,

564 U.S. 1 (2011) ................................................ 23, 24

Taylor v. United States,

495 U.S. 575 (1990) ................................ 10, 13, 16, 17

United States v. Booker,

543 U.S. 220 (2005) ...................................... 10, 15, 16

United States v. Brady,

988 F.2d 664 (6th Cir. 1993) .............................. 24, 25

III

TABLE OF AUTHORITIES

United States v. Browning,

436 F.3d 780 (7th Cir. 2006) .............................. 15, 16

United States v. Dutch,

753 Fed. Appx. 632 (10th Cir. 2018)........................ 15

United States v. Farrad,

895 F.3d 859 (6th Cir. 2018) .................................... 15

United States v. Graves,

60 F.3d 1183 (6th Cir. 1995) .................................... 18

United States v. Holston,

735 Fed. Appx. 222 (8th Cir. 2018).......................... 17

United States v. Hudspeth,

42 F.3d 1015 (7th Cir. 1994) .................................... 25

United States v. Jurbala,

198 Fed. Appx. 236 (3d Cir. 2006) ........................... 15

United States v. McElyea,

158 F.3d 1016 (9th Cir. 1998) .................................. 25

United States v. Murphy,

107 F.3d 1199 (6th Cir. 1997) .................................. 18

United States v. Perry,

908 F.3d 1126 (8th Cir. 2018) .......................... passim

United States v. Petty,

798 F.2d 1157 (8th Cir. 1986) ............................ 19, 20

United States v. Petty,

828 F.2d 2 (8th Cir. 1987) ............................ 19, 20, 24

United States v. Santiago,

268 F.3d 151 (2d Cir. 2001) ..................................... 15

United States v. Sweeting, 933 F.2d 962 (11th Cir.

1991) ......................................................................... 18

IV

TABLE OF AUTHORITIES

United States v. Thomas,

572 F.3d 945 (D.C. Cir. 2009) .................................. 15

United States v. Thompson,

421 F.3d 278 (4th Cir. 2005) .................................... 15

United States v. Weeks,

711 F.3d 1255 (11th Cir. 2013) ................................ 15

United States v. White,

465 F.3d 250 (5th Cir. 2006) .................................... 15

CONSTITUTION

U.S. Const. amend. V................................................. 2, 8

U.S. Const. amend. VI ............................................... 2, 8

STATUTES

18 U.S.C. § 924(a)(2) .................................................. 2, 8

18 U.S.C. § 924(e)(1) .......................................... 2, 4, 8, 9

OTHER AUTHORITIES

134 Cong. Rec. S17,370 (daily ed. Nov. 10,

1988)……………………………………….……20, 21, 22

Armed Career Criminal Act:

Hearing on H.R. 1627 and S. 52 Before the

Subcomm. on Crime of the H. Comm. on the

Judiciary, 98th Cong. 12-13 (1984) ......................... 22

S. Rep. No. 97-585 (1982) ............................................ 23

Sup. Ct. R. 10(c) ........................................................... 10

Transcript of Oral Argument,

United States v. Stitt, 139 S. Ct. 399 (2018) No. 17765 ............................................................................ 26

V

IN THE

Supreme Court of the United States

QUENTIN L. PERRY,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Quentin L. Perry respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1a-18a) is reported at 908 F.3d 1126. The denial of

petitioner’s petition for rehearing en banc is unreported

(App., infra, 19a). The district court’s order denying

petitioner’s motion is unreported (App., infra, 20a-26a).

1

JURISDICTION

The court of appeals entered judgment in a threeway panel split on November 15, 2018. The court of

appeals denied a petition for rehearing en banc on

February 20, 2019. Five of the eleven judges of the court

of appeals voted to grant the petition for rehearing en

banc. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in relevant part:

No person shall be … deprived of life,

liberty, or property, without due process of

law.

U.S. Const. amend. V.

The Sixth Amendment to the United States

Constitution provides in relevant part:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury.

U.S. Const. amend. VI.

18 U.S.C. § 924(a)(2) and (e)(1) provide in

relevant part:

Whoever knowingly violates subsection

(a)(6), (d), (g), (h), (i), (j), or (o) of section

922 shall be fined as provided in this title,

imprisoned not more than 10 years, or

both.

....

2

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 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.

STATEMENT OF THE CASE

Two

predicate

crimes

unfolded

nearly

instantaneously, by all accounts, when petitioner

robbed a gas station and fired a warning shot at a

vigilante who used his vehicle to chase down petitioner.

See DCD 103 (Sentencing Hr’g Tr.), Gov’t Ex. 1, at 1213; DCD 103, at 31 (government witnesses and counsel

recounting events unfolding seriatim).

The Presentence Report (“PSR”) described the

rapidly unfolding scene thus:

According to the complaint, the defendant

pointed a Colt .357-caliber revolver at the

cashier (R.P.) of a gas station in Red Wing,

Minnesota; reached into the cash register

to take money; and then fled from the gas

station on foot. A witness (E.L.) observed

the defendant running from the gas

station while brandishing the firearm, and

E.L. followed the defendant in a vehicle

(also occupied by E.L.’s wife, child, and

friend). The defendant then discharged a

round towards E.L.’s vehicle, and E.L.

3

reported hearing a bullet ‘zing’ over his

vehicle and smelling gun powder.

DCD 84 (PSR), at ¶33. See also DCD 103, at 9-10

(standby counsel asserting crimes “happening

simultaneously, they are happening in the same

locations,”).

Petitioner represented himself pro se at trial and

sentencing with standby counsel. He was convicted by

a jury as a felon in possession of firearms and

ammunition. DCD 84, at ¶¶ 1-2.

The PSR classified petitioner as an armed career

criminal. Id. at ¶¶ 15, 24. The Armed Career Criminal

Act (“ACCA”) mandates a minimum fifteen year

sentence for felons in possession who possess three

predicate convictions “committed on occasions different

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

objected to the PSR’s computation of his ACCA

classification, arguing the predicate felonies were not

“committed on occasions different from one another.”

Petitioner took to the podium in a rather

extraordinary exchange with the sentencing court to

describe the incident leading to his contested ACCA

status:

On the date of July 19, 2004, Freedom Gas

Station off of Highway 61 in Red Wing,

Minnesota, was in fact robbed with a gun

present by the defendant, myself. The

defendant made no commands rather

purchased several items once the cashier

opened the till to give the defendant the

change for his purchase, the defendant

without word or warning reached over the

4

counter into the till and took uncertain

amount of bills. The defendant then exited

the establishment without word or

contact.

As the defendant attempted, myself being

the defendant, attempted to flee the scene

on foot with the large gun still in hand, a

civilian approached who tried to prevent

myself, the defendant, from escaping. I

know that there’s a movie theater

connected to a mall directly across the

parking lot from the station that was

robbed by myself. Behind that theater is a

wildlife plant nursery and an apartment

complex. The distance from the Freedom

Station to the plant nursery behind the

mall is not greater than one city block.

While still on the lot of the establishment,

the defendant, myself, ran away from the

car due to grass still connected to the

establishment. The civilian attempted to

cut me off, the defendant, by blocking the

parallel road with the grass field. At this

point, with gun still in hand, I raised my

arm in the air and let off a single warning

shot in the sky. However, E.L., the victim,

he was driving a dropped out Mustang

with his family with him, and he assumed

that the shot went over his head, which is

understandable because there are two

brick buildings right there that echoed off

of each other, so it appeared to the victim

5

that I was shooting at him when in fact I

shot a single shot into the sky as a warning

shot.

At this point, this victim slammed on the

brakes and went into reverse. After he

went into reverse, I fled down a pavement

off of the property of the Freedom Station

and down the road towards the nursery.

Once I got to the nursery, that was the

first opportunity that I had to put the gun

in the nursery.

The significance of me elaborating on a

2004 offense, which I was convicted of in

March of 2005, is to show the continuance

of a single course of conduct in a matter of

moments, not minutes or hours. I stole

money from the establishment without the

intent to harm or exert force on to any of

the victims. In fact, I didn’t even make

contact with anyone at all.

DCD 103, at 17-18. Without offering elaboration, the

district court found the robbery “distinct” from the

warning shot petitioner fired as he fled the scene. DCD

103, at 45-46. The federal district court classified

petitioner as an armed career criminal and sentenced

him to the ACCA mandatory minimum term of fifteen

years. DCD 90 (Sentencing J.)

Petitioner appealed his ACCA classification,

among other issues, to the federal appellate court. A

sharply divided panel of the United States Court of

Appeals for the Eighth Circuit affirmed petitioner’s

ACCA conviction for predicate crimes “committed on

6

occasions different from one another,” with all three

panel judges writing separate opinions. Perry, 908 F.3d

1126, 1132 (8th Cir. 2018). Two of the three panel

judges agreed the district court judge violated

petitioner’s Sixth Amendment rights by judicially

determining the different-occasions question, but both

also described themselves as bound by errant Eighth

Circuit precedent.

Judge Stras concurred “reluctantly” and wrote

separately to express his concern about the “erosion of

the jury-trial right” and “departure from fundamental

Sixth Amendment principles,” the Eighth Circuit

perpetuated in this case by allowing judges rather than

juries to decide the different-occasions question. Id. at

1134, 1136 (Stras, J., concurring).

Judge Kelly dissented in part and concurred in

part only to submit to Eighth Circuit precedent, which

she described as flawed:

I agree with the concurrence that judicial

determination of facts that increase the

penalty for a crime beyond the prescribed

statutory maximum would appear to

conflict with Supreme Court precedent.

See Mathis, 136 S. Ct. at 2252; Descamps,

570 U.S. at 268-69; Alleyne, 570 U.S. at

103; Apprendi, 530 U.S. at 490. But that’s

just our case law requires, at least until

the Supreme Court, or this court sitting en

banc, takes up the issue.

Id. at 1137 (Kelly, J., dissenting in part, concurring in

part). The Eighth Circuit denied petitioner’s petition

for rehearing en banc. See id. Chief Judge Smith,

7

Judge Kelly, Judge Erickson, Judge Stras, and Judge

Kobes voted to grant the petition for rehearing en banc.

REASONS FOR GRANTING THE PETITION

I.

A Jury Must Decide The ACCA’s “Committed On

Occasions Different From One Another” Issue.

A.

The Constitution Requires Juries to Find

Facts Beyond a Reasonable Doubt Which

Increase the Statutory Maximum or

Mandatory Minimum.

Where, as here, the facts of a prior conviction

must be re-litigated to impose a mandatory minimum

sentence which exceeds the statutory maximum

otherwise applicable, the Fifth and Sixth Amendments

require those facts to be submitted to a jury,

adjudicated beyond a reasonable doubt, and governed

by due process. See Mathis v. United States, 136 S. Ct.

2243, 2252-53 (2016). See also U.S. Const. amend. V

(“No person shall … be deprived of life, liberty, or

property, without due process of law.”), amend. VI (“In

all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial

jury,”).

The ACCA removes an otherwise applicable ten

year sentencing ceiling and imposes a fifteen year floor

for certain firearms crimes. See 18 U.S.C. § 924(a)(2),

(e)(1). Of relevance here, the ACCA may be imposed

only when three prior crimes of violence are “committed

8

on occasions different from one another.”1 See 18 U.S.C.

§ 924(e)(1).

The Constitution requires that “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.” Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000) (reversing state statute

allowing for doubling of statutory maximum in absence

of jury finding). See also Alleyne v. United States, 570

U.S. 99, 103 (2013) (applying Apprendi to statutory

mandatory minimum).

This Court has urged lower courts to be mindful

of the potential Constitutional gravity of judicial

factfinding under the guise of applying “sentencing

factors” which raise either the sentencing floor or the

ceiling, which in fact are elements of the offense. See

Apprendi, 530 U.S. at 478; Alleyne, 570 U.S. at 113-14.

The fact bound inquiry necessary to determine the

ACCA different-occasions clause is an element of the

offense which a jury must determine; it is not a

sentencing factor left to the discretion of the district

court judge. See Jones v. U.S., 526 U.S. 227, 252 (1999).

The district court’s factfinding in this case inflated both

the floor and ceiling of Mr. Perry’s sentence, thereby

violating the Constitution.

The Eighth Circuit’s decision in this case

therefore stands in disregard of a long line of this

“Different-occasions,” see United States v. Perry, 908

F.3d 1126, 1137 n.4 (8th Cir. 2018) (Kelly, J., dissenting in

part, concurring in part) (coining “different-occasions” term

in reference to 18 U.S.C. § 924(e)(1) inquiry).

1

9

Court’s Sixth Amendment jurisprudence, including

Taylor v. United States, 495 U.S. 575, 601 (1990);

Apprendi, 530 U.S. at 490; United States v. Booker, 543

U.S. 220, 244 (2005); Descamps v. United States, 570

U.S. 254, 269 (2013); Mathis, 136 S. Ct. at 2252. The

judgment below should be reversed, and the

constitutional question should be settled by this Court.

See Sup. Ct. R. 10(c).

B.

The Prior Conviction Exception is Narrow.

This Court grants an exception to the Apprendi

rule for the simple fact of a prior conviction. Apprendi,

530 U.S. at 476 (citing Jones, 526 U.S. 227);

Almendarez-Torres v. United States, 523 U.S. 224, 248

(1998). But the scope of that exception is narrow.

Alleyne, 570 U.S. at 111 n.1 (finding Sixth Amendment

violation when judge determined means of firearm

possession, increasing mandatory minimum). Indeed,

Alleyne and Almendarez-Torres explicitly left open the

issue of when the determination of a prior conviction

could violate the Sixth Amendment. See Alleyne, 570

U.S. at 111 n.1; Almendarez-Torres, 523 U.S. at 248.

Almendarez-Torres itself rests on shaky ground in the

wake of Apprendi.

Almendarez-Torres represents at best an

exceptional departure from the historic

practice that we have described. . . . [I]t is

arguable that Almendarez-Torres was

incorrectly decided, and that a logical

application of our reasoning today should

apply if the recidivist issue were contested.

Apprendi, 530 U.S. at 487-90 (internal citations

10

omitted).

In the developing case law, “The Supreme Court

has all but announced that an expansive view of the

prior conviction exception is inconsistent with the Sixth

Amendment.” Perry, 908 F.3d at 1135 (Stras, J.,

dissenting). See also Mathis, 136 S. Ct. at 2259

(Thomas, J., concurring, urging reconsideration of

Almendarez-Torres); Shepard v. United States, 544

U.S. 13, 28 (2005) (“Innumerable criminal defendants

have been unconstitutionally sentenced under the

flawed

rule

of Almendarez–Torres, despite

the

fundamental imperative that the Court maintain

absolute fidelity to the protections of the individual

afforded by the notice, trial by jury, and beyond-areasonable-doubt

requirements.”)

(Thomas,

J.,

concurring in part). Inquiry beyond the simple fact of a

prior conviction transforms a prior crime into an

element of the offense which the government must

charge and prove beyond a reasonable doubt.

A construction of ACCA allowing a

sentencing judge to go any further would

raise serious Sixth Amendment concerns.

This Court has held that only a jury, and

not a judge, may find facts that increase a

maximum penalty, except for the simple

fact of a prior conviction. That means a

judge cannot go beyond identifying the

crime of conviction to explore the manner

in which the defendant committed that

offense. He is prohibited from conducting

such an inquiry himself; and so too he is

barred

from

making

a

disputed

determination about ‘what the defendant

11

and state judge must have understood as

the factual basis of the prior plea’ or ‘what

the jury in a prior trial must have accepted

as the theory of the crime.’ He 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 (internal citations omitted)

(emphasis added).

The rationale for allowing a prior conviction to be

used to extend sentencing ranges is that a “prior

conviction must itself have been established through

procedures satisfying the fair notice, reasonable doubt,

and jury trial guarantees.” Jones, 526 U.S. at 249. That

rationale does not apply where, as here, the court is no

longer looking at the simple fact of a conviction, but

rather unearthing and deciding in the first instance

facts that were not relevant for the imposition of the

underlying conviction, e.g., the time lapse, proximity,

and continuity between the back-to-back offenses in

this case. See Descamps, 570 U.S. at 269; Perry, 908

F.3d at 1131. In this case, as in so many others like it,

those time, place, and continuity facts were hotly

contested at sentencing.

Unlike other recidivist

statutory clauses, the ACCA different-occasions clause

demands a resolution of underlying facts of prior

convictions, not legal elements. Cf. Mathis, 136 S. Ct.

at 2252. Juries, not judges, must determine the

existence of facts which impose steeply higher

sentences.

12

This Court discourages recidivist factfinding as

potentially unconstitutional under the ACCA. 2 See

Taylor, 495 U.S. at 600-01 (holding Congress intended

sentencing courts avoid “elaborate factfinding process

regarding the defendant’s prior offenses,” and look only

to simple facts of prior convictions to avoid

“unfairness”). The Court in Descamps, 570 U.S. at 267,

refused to allow the courts to review Shepard

documents, see Shepard, 544 U.S. at 26, to ascertain

factual details in determining whether a prior

conviction constituted an ACCA predicate crime when

the indivisible elements of the crime flunked the

categorical test. To do so, said this Court, would too far

extend “judicial factfinding beyond the recognition of a

prior conviction.” Descamps, 570 U.S. at 269.

More recently in Mathis, 136 S. Ct. at 2248, the

Court held that courts must compare the generic

elements of any ACCA crime with the elements, not the

facts, of a defendant’s potential predicate crime. The

Supreme Court reversed the Eighth Circuit for applying

the modified categorical approach to determine the

facts under which the defendant burgled a place which

Iowa defined by alternative locational means. Id. at

2250-51. This Court emphasized its ACCA “mantra,”

id. at 2251:

ACCA refers to predicate offenses in terms

not of prior conduct but of prior convictions

This Court offers three grounds for its fact-phobic

approach to the ACCA, all of which underscore the

Constitutional infirmities of petitioner’s sentence: statutory

text and history; Sixth Amendment concerns; and potential

unfairness. See Descamps, 570 U.S. at 267.

2

13

and the elements of crimes. We have

avoided any inquiry into the underlying

facts of the defendant’s particular offense,

and have looked solely to the elements of

burglary as defined by state law. We

consider only the elements of the offense,

without inquiring into the specific conduct

of this particular offender. And most

recently (and tersely) in Descamps: The

key under ACCA is elements, not facts.

Id. at 2252 (internal citations omitted) (emphasis in

original).

Mischaracterizing a fact bound recidivism

finding as a mere sentencing factor, as opposed to an

element of the crime, has led courts into error:

Indeed, if all facts having some

relationship to recidivism were exempt

from the Sixth Amendment, then the

leading ACCA cases would not contain the

reasoning that they do. In Mathis, the fact

at issue was whether the location of a

previous burglary was a building or a

vehicle; in Descamps, it was whether the

defendant had entered a store legally or

illegally.

Those facts were no less

‘recidivism-related’ than whether Perry

committed his back-to-back crimes on

different occasions. Yet the opinions in

both cases emphasized that letting a court

find them ‘would raise serious Sixth

Amendment concerns.’

14

Perry, 908 F.3d at 1135 (Stras, J., concurring) (internal

citations omitted).

In spite of this Court’s warnings, federal

appellate courts have cast a wary eye upon

constitutional objections to the different-occasions issue

but have invited this Court to clarify the standard to be

utilized. See, e.g., United States v. Farrad, 895 F.3d

859, 888 (6th Cir. 2018) (citing circuit’s “binding

precedent” as basis to reject constitutional argument

“until the Supreme Court explicitly overrules it”);

United States v. Dutch, 753 Fed. Appx. 632, 635 (10th

Cir. 2018) (circuit precedent foreclosed Sixth

Amendment challenge); United States v. Weeks, 711

F.3d 1255, 1259 (11th Cir. 2013) (“Almendarez-Torres

remains binding until it is overruled by the Supreme

Court”); United States v. Thomas, 572 F.3d 945, 952

(D.C. Cir. 2009) (Sixth Amendment challenge to

different-occasions issue “is more difficult than the

court lets on,”) (Ginsburg, J., concurring in part);

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

2006) (“We are not authorized to disregard the Court’s

decisions even when it is apparent that they are

doomed,”); United States v. Jurbala, 198 Fed. Appx.

236, 237 (3d Cir. 2006); United States v. White, 465

F.3d 250, 254 (5th Cir. 2006) (per curiam); United

States v. Thompson, 421 F.3d 278, 283 (4th Cir. 2005);

United States v. Santiago, 268 F.3d 151, 156-57 (2d Cir.

2001). Only a decision from this Court will rectify the

Constitutional infirmity of the ACCA’s differentoccasion question.

Judge Posner asked this Court to confront the

ongoing implications of Booker in considering the Sixth

Amendment challenge to the scope of the prior

15

conviction exception in the context of the differentoccasion clause:

Almendarez-Torres is vulnerable to being

overruled not because of Shepard but

because of United States v. Booker, 543

U.S. 220 (2005). Booker holds that there

is a right to a jury trial and to the

reasonable-doubt standard in a sentencing

proceeding (that is, the Sixth Amendment

is applicable) if the judge’s findings dictate

an

increase

in

the

maximum

penalty. Id. at 756. Findings made under

the Armed Career Criminal Act do that.

So if logic rules, those findings too are

subject to the Sixth Amendment. . . . The

continued

authority

of AlmendarezTorres is not for us to decide.

Browning, 436 F.3d at 781-82 (noting Justice Thomas’s

repeated exhortations to overrule Almendarez-Torres

on Sixth Amendment grounds).

C.

Shepard Documents May Not Be Used to

Find Facts Under the ACCA.

Time and again, this Court has rejected lower

courts’ factfinding excursions under the ACCA and

other statutes which enlarge imprisonment terms. See

Taylor, 495 U.S. at 602. The lesson from these cases is

that facts regarding the who, what, when, where, and

how of a prior conviction far exceed the scope of a

“narrow” prior conviction finding. See Mathis, 136 S.

Ct. at 2252; Descamps, 570 U.S. at 269. Therefore, the

practice of using Shepard documents to engage in

factfinding to resolve the different-occasions analysis

16

also violates the Constitution and this Court’s mantra

to avoid factfinding under the ACCA. Mathis, 136 S. Ct.

at 2251. Yet courts in the Eighth Circuit and around

the country continue to unearth decades-old documents

to resolve the different-occasions matter under the

ACCA. See, e.g., United States v. Holston, 735 Fed.

Appx. 222, 223-24 (8th Cir. 2018) (per curiam) (allowing

broad review of documents beyond Shepard to find facts

under ACCA).

“‘Re-purposing’ Taylor and Shepard to justify

judicial fact-finding, … turns those decisions on their

heads.” Perry, 908 F.3d at 1136 (Stras, J., concurring).

The very purpose of a Shepard inquiry is to avoid

making ACCA determinations based on the specific

facts of any crime. This Court has never endorsed, and

indeed has repudiated their use to determine actual

facts. See Mathis, 136 S. Ct. at 2253-54. A Shepard

review allows a district court to review limited

documents to determine the actual offense of conviction

when a statute defines more than one offense; it is “not

an excuse for allowing courts to dig through the record

to find facts.” Perry, 908 F.3d at 1136 (Stras, J.,

concurring). Moreover, “in this case, as in most cases,

properly used Shepard documents would not assist the

district court in its different-occasions determination,

because time, place, and overall substantive continuity

are facts, not legal elements, of the prior offenses.” Id.

at 1137 (Kelly, J., dissenting in part, concurring in

part). No longer should this Court allow a Shepard

review to be used to determine facts, including facts

never adjudicated in any forum, under the ACCA.

17

As interpreted by the Eighth Circuit, the ACCA

demands a fact-intensive analysis of the second-bysecond details of a prior conviction. The Constitution

demands that such factfinding be determined by a jury

beyond a reasonable doubt. See In re Winship, 397 U.S.

358, 364 (1970) (“We explicitly hold that the Due

Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is

charged.”).

II.

This Court Should Adopt the Single Operative

Episode Test.

Mr. Perry respectfully requests this Court adopt

the single criminal episode test to guide juries in

factfinding. For example in United States v. Graves, 60

F.3d 1183, 1187 (6th Cir. 1995), the court found a single

course of conduct where the defendant burgled a house,

hid in the woods, and then threatened a pursuing officer

with a gun before fleeing. The court determined there

was but one operative episode because the defendant

had not safely escaped, allowed significant time to

lapse, or departed the general vicinity of the original

crime. Id. See also United States v. Murphy, 107 F.3d

1199, 1210 (6th Cir. 1997) (merging two robberies in

different locations in rapid succession; number of

victims not dispositive under Petty);United States v.

Sweeting, 933 F.2d 962, 967 (11th Cir. 1991), (merging

seven separate crimes arising out of defendant’s

burglary of one home, invasion of another, and

attempted escape from police).

As in Graves, Murphy, and Sweeting, Mr. Perry

never left the general vicinity of the original robbery,

18

ceased his course of conduct, or expeditiously escaped

before the second crime occurred. In adopting a single

criminal episode standard, this Court could fashion a

more coherent standard while allowing juries to avoid

the mistakes of United States v. Petty, 798 F.2d 1157

(8th Cir. 1986) (“Petty I”), cert. granted, judgment

vacated, 481 U.S. 1034, reversed on remand, 828 F.2d 2

(8th Cir. 1987) (“Petty II”).

A.

The ACCA’s Plain Language, Purpose, and

History Support a Single Operative

Episode Test.

The single operative episode test is consistent

with guidance all three branches of government issued

regarding the ACCA’s plain language, intent, and

history. By contrast, the Eighth Circuit’s decision

limits Petty II to its facts. This Court’s intervention is

needed to pronounce the proper Constitutional

standard.

Ironically, the failure to recognize the distinction

between criminals who cycle through the revolving door

of the penitentiary versus those who commit multiple

crimes in just one day led the Eighth Circuit to its first

error, subsequently corrected by this Court, over three

decades ago in undertaking the different-occasions

analysis in Petty I.

In Petty I, the Eighth Circuit affirmed the ACCA

conviction of a criminal who committed six armed

robberies on the same day in a New York restaurant.

Petty I, 798 F.2d at 1160. However, the United States

Solicitor General confessed error in his petition for a

writ of certiorari, and “noted that the legislative history

19

strongly supports the conclusion that the statute was

intended to reach multiple criminal episodes that were

distinct in time, not multiple felony convictions arising

out of a single criminal episode.” Petty II, 828 F.2d at

3. This Court remanded, and the Eighth Circuit

reversed and remanded for resentencing without

imposing the ACCA. Id.

On both sides of the aisle, Congress expressed

displeasure with the Eighth Circuit’s decision in Petty

I. In 1988, Congress amended the ACCA in direct

response to Petty I. Then-Senator Joseph Biden

commented:

Section 7056 clarifies the armed career

criminal statute, 18 U.S.C. 924(e), by

inserting

language

describing

the

requisite type of prior convictions that

trigger the law's mandatory minimum

sentencing provisions. Presently, section

924(e) provides that a person found in

possession of a firearm shall be sentenced

to a mandatory minimum prison term of

not less than fifteen years if such person

‘has three previous convictions . . . for a

violent felony or a serious drug offense’ (as

those terms are defined in the law).

Recently, a court of appeals held that the

‘three previous convictions’ requirement

was met by a conviction on six counts for

armed robbery in New York State in which

the defendant was convicted for having

robbed six different people at a restaurant

at the same time. United States v. Petty,

798 F.2d 1157 (8th Cir. 1986).

20

On petition for a writ of certiorari, the

Solicitor General on behalf of the United

States confessed error, pointing out that,

while the armed career criminal statute

lacked descriptive language found in other

similar federal statutes to the effect that

the convictions be for ‘offenses committed

on occasions different from one another,’

see 18 U.S.C. 3575(e)(1), 21 U.S.C.

849(e)(1),

the

legislative

history

nevertheless made clear that a similar

interpretation was intended here. The

Supreme Court reversed and remanded

the case to the court of appeals for

consideration of the Solicitor General's

views. __ U.S. __ (No. 86-6263) (May 4,

1987).

The proposed amendment clarifies the

armed career criminal statute to reflect

the Solicitor General's construction and to

bring the statute in conformity with the

other enhanced penalty provisions cited

above. Under the amendment, the three

previous convictions would have to be for

offenses

‘committed

[on]

occasions

different from one another.’ Thus, a single

multi-count conviction could still qualify

where the counts related to crimes

committed on different occasions, but a

robbery

of

multiple

victims

simultaneously (as in Petty) would count

as only one conviction. This interpretation

plainly expresses that concept of what is

meant by a ‘career criminal,’ that is, a

21

person who over the course of time

commits three or more of the enumerated

kinds of felonies and is convicted therefor.

It is appropriate to clarify the statute in

this regard, both to avoid future litigation

and to insure that its rigorous sentencing

provisions apply only as intended in cases

meriting such strict punishment.

134 Cong. Rec. S17,370 (daily ed. Nov. 10, 1988)

(statement of Sen. Joseph Biden).

Senator Arlen Specter warned that the ACCA

was promulgated to punish habitual offenders. See

Armed Career Criminal Act: Hearing on H.R. 1627 and

S. 52 Before the Subcomm. on Crime of the H. Comm.

on the Judiciary, 98th Cong. 12-13 (1984) (statement of

Sen. Arlen Specter).

At a Congressional hearing, then-Assistant

Attorney General Stephen Trott, now Judge Trott,

testified as to the ACCA’s intended targets:

These are people who have demonstrated,

by virtue of their definition, that locking

them up and letting them go doesn’t do any

good. They go on again, you lock them up,

you let them go, it doesn’t do any good,

they are back for a third time. At that

juncture, we should say, ‘That’s it; time

out; it is all over. We, as responsible

people, will never give you the opportunity

to do this again.’

See id. at 64 (statement of Stephen Trott, Assistant

Att’y Gen. of the United States) (emphasis added).

22

Trott made clear the statutory intent was to focus on

individuals who continued committing crimes after

being convicted and serving time in prison with an

intervening conviction, i.e., criminals who made a

career of crime.

Even the original ACCA was “very narrowly

aimed at the hard core of career criminals with long

records for robbery and burglary offenses who now have

‘graduated’ to the point of dangerousness and

recklessness that they are using firearms to commit

further robberies and burglaries,” according to the

Senate Report. See generally S. Rep. No. 97-585, at 6263 (1982).

The Eighth Circuit’s current standard does not

even require an intervening arrest, which arguably

would give the defendant notice he is about to be subject

to a fifteen year mandatory minimum sentence, and it

prompts rule of lenity concerns. This standard does not

comport with the text of the ACCA, specifically

amended in response to prior error from the Eighth

Circuit on precisely the same issue of how to count

predicate crimes.

III.

The ACCA Is Void For Vagueness.

Alternatively, the ACCA is a “drafting failure”

and should be declared void for vagueness. See Sykes

v. United States, 564 U.S. 1, 28 (2011) (Scalia, J.,

dissenting as to ACCA’s residual clause), overruled by

Johnson v. United States, 135 U.S. 2551, 2563 (2015).

The federal courts have wrestled mightily with the

meaning of the different-occasions clause, a “contextspecific balancing test that we still struggle to put into

23

words,” Perry, 908 F.3d at 1134 (Stras, J., concurring).

This case bears the same hallmarks of vagueness

this Court found so troubling in Johnson. The differentoccasions clause neither offers a legitimate standard

nor discourages arbitrary enforcement. See Johnson,

135 S. Ct. at 2557-58. No less than the residual clause

struck down as Constitutionally infirm in Johnson,

“repeated attempts and repeated failures to craft a

principled and objective standard,” id. at 2558, out of

the different-occasions clause, “confirm its hopeless

indeterminacy.” Id.

The only “standard” that has withstood the test

of time is that the virtually simultaneous robbery of six

people in a restaurant does not involve crimes

“committed on occasions different from one another.”

Petty II, 828 F.2d at 3. This “Delphic … clause,” see

Sykes, 564 U.S. at 28 (Scalia, J., dissenting), and its

convoluted

history

demonstrate

“the

utter

impracticability of requiring a sentencing court to

reconstruct, long after the original conviction, the

conduct underlying that conviction.” Johnson, 135 S.

Ct. at 2562; see also Perry, 908 F.3d at 1137 n.4 (Kelly,

J., dissenting in part, concurring in part, describing

“difficulty of performing the different-occasions

analysis”).

Leading jurists around the country have

questioned the inability to define a different-occasions

standard:

Courts have, unfortunately, moved

alarmingly close to the original Eighth

Circuit position announced in Petty.

Seemingly, the courts have allowed a

24

defendant to be subject to the ACCA in

every situation except where there is a

true “simultaneous” criminal episode. In

coming back to the original Petty

rationale, the courts have made the

holding in Petty so narrow that it now

exists only as a nebulous concept. Petty,

as it relates to temporal concepts, remains

good law only where a fortuitous

defendant commits his crimes at the same

precise time. Any lapse at all, even if for a

minimal amount of time, will hurtle the

defendant into the clutches of the ACCA.

Regrettably, courts, including this court

today, have done this despite legislative

history relating to both the current and

previous ACCA statutes, the Solicitor

General's comments in Petty, and the

underlying meaning in Petty to the

contrary. The federal judiciary has come

full circle.

United States v. Brady, 988 F.2d 664, 674 (6th Cir.

1993) (Jones, J., dissenting) (en banc) (internal citations

omitted).

The circuits are split on the interpretation of the

different-occasions test. The interpretation of seven

words in the ACCA has led to widely disparate results

for factually similar crimes. Cf. United States v.

Hudspeth, 42 F.3d 1015, 1021 (7th Cir. 1994) (applying

ACCA for three burglaries committed by chopping

through mall walls because defendant had made “a

career out of criminal activity,” in thirty-six minutes)

with United States v. McElyea, 158 F.3d 1016, 1021

25

(9th Cir. 1998) (refusing to apply ACCA for two

burglaries committed by chopping through mall walls

in single night spree because defendant did “not meet

the profile of a career criminal envisioned by Congress”;

describing circuit split). “Invoking so shapeless a

provision to condemn someone to prison for fifteen years

to life does not comport with the Constitution’s

guarantee of due process.” Johnson, 135 S. Ct. at 2560.

The ACCA has proven a minefield of problems

over the last decade requiring the recurrent attention of

this Court to decipher “one royal mess.” Transcript of

Oral Argument at 26, United States v. Stitt, 139 S. Ct.

399 (2018) No. 17-765 (Alito, J.). Vague statutory

language renders impossible the courts’ responsibility

to consistently adjudicate the different-occasions

clause.

The ACCA offers a narrow gate through which

prior convictions may pass traveling a straight path,

carefully delineated in Supreme Court precedent. The

broad way followed by the Eighth Circuit and its sister

circuits, bound by aged and errant circuit precedent

now repudiated by this Court, transgresses the

Constitution. This Court alone possesses the power to

order a nationwide constitutional correction of course.

26

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully Submitted,

RACHEL K. PAULOSE

Counsel of Record

UNIVERSITY OF ST. THOMAS

SCHOOL OF LAW

1000 LASALLE AVENUE

MINNEAPOLIS, MN 55403

651.962.4823

rachel.paulose@stthomas.edu

Counsel for Petitioner

May 16, 2019

27