Dotson v. United States, 18-1701

• Decision Date: 03 February 2020
• Docket Number: No. 18-1701,18-1701
• Citation: 949 F.3d 317
• Parties: Steven DOTSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

949 F.3d 317

Steven DOTSON, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-1701

United States Court of Appeals, Seventh Circuit.

Argued October 3, 2019

Decided February 3, 2020

Rehearing and Rehearing En Banc Denied April 7, 2020

Donald Larry Ray Goodson, Attorney, Jones Day, New York, NY, for Petitioner - Appellant.

Steven Dotson, Adelanto, CA, Pro Se

Jackson Taylor Kirklin, Attorney, Office of the United States Attorney, Indianapolis, IN, for Respondent - Appellee.

Before Wood, Chief Judge, and Barrett and Scudder, Circuit Judges.

Scudder, Circuit Judge.

The Presentence Investigation Report on Steven Dotson listed six prior felony convictions, three of which the Probation Office identified as qualifying him for the enhanced mandatory minimum sentence of 15 years' imprisonment under the Armed Career Criminal Act. The PSR was silent on whether any of Dotson's other three convictions so qualified, and nobody raised the question at sentencing. The district court agreed with the Probation Office and sentenced Dotson as a career offender to 188 months (15 years and 8 months).

In recent years, federal courts have seen a floodtide of litigation over what qualifies as an ACCA predicate. Dotson, too, has watched these developments, and he reacted by pursuing post-conviction relief under 28 U.S.C. § 2255. The district court denied relief, determining that Dotson has four qualifying ACCA predicates—the three originally designated as such in the PSR and one additional for burglary under Indiana law. Since the district court's decision, the law has continued to evolve and has since knocked out one of the three predicates the Probation Office originally determined qualified Dotson as an armed career criminal. The question presented is whether the government can save the enhanced sentence by substituting another of Dotson's convictions—one listed in the PSR as part of Dotson's criminal history but not designated as or found by the district court to be an ACCA predicate at sentencing.

In the circumstances before us, the answer is yes, owing not only to the substituted conviction being included in the indictment and later the PSR, but also to Dotson himself recognizing in legal filings and apparently believing (although mistakenly) that his Indiana burglary conviction had served as an ACCA predicate at his original sentencing. So, while we affirm, our decision is narrow and limited. The record leaves us no doubt Dotson believed his Indiana burglary conviction could serve to support and preserve his enhanced sentence.

I

In March 2011, a grand jury indicted Dotson for possessing a firearm following a prior felony conviction, a violation of 18 U.S.C. § 922(g). The indictment listed six prior felony convictions and likewise alleged that Dotson qualified for the minimum sentence Congress mandated in the Armed Career Criminal Act. See 18 U.S.C. § 924(e) (requiring a 15-year minimum sentence for anyone who violates § 922(g) and has three prior convictions for "a violent felony or a serious drug offense").

Following Dotson's conviction at a bench trial, the case proceeded to sentencing. The PSR recommended finding that Dotson qualified as an armed career criminal on the basis of these three convictions:

1. Armed Robbery (Indiana 1992)

2. Dealing in Cocaine (Indiana 1993)

3. Attempted Robbery (Indiana 2007)

A separate portion of the PSR recounted Dotson's full criminal history by listing these same three felonies and the three others contained in the indictment:

4. Burglary (Indiana 1993)

5. Possession of Marijuana (Indiana 2000)

6. Theft and Receipt of Stolen Property (Indiana 2001)

In the end, the PSR came to a recommended guidelines range of 235 to 293 months—driven largely by Dotson qualifying as an armed career criminal. See U.S.S.G. § 4B1.4.

At sentencing neither party objected to the PSR's account of Dotson's criminal history or determination that he qualified as an armed career criminal for both statutory and guidelines purposes. Following its application of the factors in 18 U.S.C. § 3553(a) and mindful of the 15-year mandatory minimum Congress prescribed in ACCA, the district court sentenced Dotson to 188 months. We affirmed on direct review. See United States v. Dotson , 712 F.3d 369 (7th Cir. 2013).

In October 2014, Dotson invoked 28 U.S.C. § 2255 and sought a reduced sentence. Pointing to the Supreme Court's decision in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), he argued that his 1993 Indiana burglary conviction (#4 in our list above) no longer qualified as an ACCA predicate. That position reflected a misunderstanding on Dotson's part, for the district court at sentencing never considered or found that the Indiana burglary qualified as a violent felony. In a supplemental filing, Dotson also questioned whether his Indiana dealing in cocaine offense (#2) was an ACCA predicate.

The district court responded to Dotson's motion by appointing counsel. Dotson's counsel then repeated the same mistake in an amended § 2255 motion, arguing that neither the 1993 Indiana burglary conviction (#4) nor the 2007 Indiana attempted robbery conviction (#3) qualified as violent felony predicates. Nobody caught that the 1993 Indiana burglary conviction (#4) was not part of the basis on which the sentencing judge found Dotson to be an armed career criminal.

For its part, the district court likewise committed the same mistake, denying Dotson's § 2255 motion because, even if the 1993 Indiana dealing in cocaine conviction (#2) somehow did not constitute a serious drug offense within the meaning of § 924(e), his 1992 Indiana armed robbery (#1), 2007 Indiana attempted robbery (#3), and 1993 Indiana burglary (#4) convictions remained ACCA predicates. Put another way, in ruling on Dotson's § 2255 motion, the district court started from the express (but mistaken) premise that it previously "found" at sentencing that Dotson "had three or more prior convictions that qualified as ‘violent felonies’ [or serious drug offenses]," including offenses #1 (armed robbery), #2 (dealing in cocaine), #3 (attempted robbery), and #4 (burglary). Nobody caught the mistake.

After the district court's denial of Dotson's § 2255 motion and request for a certificate of appealability, this court held that an Indiana conviction for attempted robbery is not a "crime of violence" within the meaning of ACCA. See United States v. D.D.B. , 903 F.3d 684, 692–93 (7th Cir. 2018). Dotson then sought, and we granted, a certificate of appealability in light of D.D.B.

II

What happened during Dotson's present appeal frames the issue now before us. Our decision in D.D.B. meant that Dotson's 2007 Indiana attempted robbery conviction (#3) no longer qualifies as an ACCA predicate. From there, however, the government points to our decision in United States v. Perry , 862 F.3d 620 (7th Cir. 2017), where we held that Indiana burglary qualifies as a violent felony under ACCA, and urges us to rely upon—or, more accurately, to substitute—Dotson's 1993 Indiana burglary conviction (#4) to sustain his sentence as an armed career criminal. The government's requests and reasoning are straightforward: with the Indiana attempted robbery conviction (#3) out because of D.D.B. but the burglary conviction (#4) remaining a violent felony, Dotson still has three qualifying predicates (#1, #2, and #4) and remains an armed career criminal.

Not before now have we considered whether the government can substitute ACCA predicates after sentencing to save an enhanced sentence. We came the closest to the issue in Light v. Caraway , 761 F.3d 809 (7th Cir. 2014), and take some direction from our approach there.

Augustus Light had at least four adult felony convictions, three of which the PSR identified as ACCA predicates. See id. at 811. At sentencing, and without expressly stating which convictions qualified as ACCA predicates, the district court followed the Probation Office's recommendation and sentenced Light as a career offender. The Supreme Court then decided several cases addressing what did and did not qualify as ACCA predicates. The Court's decision in Begay v. United States , 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), had the effect of showing that Light's prior conviction for criminal vehicular operation under Minnesota law was not a qualifying violent felony under ACCA. But three years later came Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), which had the opposite effect for Light. Sykes made clear that Light's conviction under Minnesota law for fleeing in a car from a police officer—an offense that was not an ACCA predicate under the law in place at the time of Light's sentencing—did constitute a violent felony within the meaning of § 924(e). Light , 761 F.3d at 814.

The "net change" of these legal developments, we determined, was "zero." Id. This meant Light remained an armed career criminal: "Through intervening changes in the law, one of his prior predicate offenses for the ACCA enhancement no longer qualifies, but one that was not previously a qualifying predicate offense has become eligible." Id. More to it, we failed to "see why Light is entitled to a one-way ratchet, subject...