Kirkland v. United States

• Citation: 687 F.3d 878
• Decision Date: 24 July 2012
• Docket Number: No. 11–2507.,11–2507.
• Parties: Jeffrey D. KIRKLAND, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

687 F.3d 878

Jeffrey D. KIRKLAND, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 11–2507.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 20, 2012.

Decided July 24, 2012.

David P. Jones, Sean J. Quinn (argued), Attorneys, Newby, Lewis, Kaminski & Jones, LLP, Laporte, IN, for Petitioner–Appellant.

Emily Kathleen Kerkhof (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Respondent–Appellee.

Before FLAUM and ROVNER, Circuit Judges, and CASTILLO, District Judge.^*

CASTILLO, District Judge.

Jeffrey Kirkland was convicted of unlawful possession of a firearm by a felon, and based on a finding that he had five “violent felony” convictions, including two drunk driving offenses, the district court sentenced him as an armed career criminal pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). After the Supreme Court determined that drunk driving is not a “violent felony” as the term is defined in the ACCA, Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), Kirkland filed a petition for relief under 28 U.S.C. § 2255. The district court denied Kirkland's petition. On appeal, we vacated that judgment and remanded the case with directions for the district court to determine whether Kirkland still qualified as a career criminal absent the two convictions for drunk driving. On remand, the district court concluded that an enhancement of Kirkland's sentence under the ACCA was still appropriate based on his three remaining convictions for violent felonies.

Kirkland appeals on two grounds: first, that the district court erred in determining that two of Kirkland's “violent felony” convictions that arose from events on a single day constituted separate predicate offenses under the ACCA, and second, that the district court erred in not admitting Kirkland's testimony and affidavit at his resentencing hearing. We reverse.¹

I. BACKGROUND

On August 15, 2006, a jury found Kirkland guilty of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court adopted the findings of the presentence investigation report (“PSR”), which indicated that Kirkland's criminal history included five “violent felony” convictions: a 1984 conviction for burglary; a 1985 conviction for burglary; a 1985 conviction for aggravated robbery; a 2001 conviction for operating while intoxicated; and a 2003 conviction for operating while intoxicated. Based on the PSR's findings, the district court concluded that Kirkland qualified as an armed career criminal under the ACCA, which increases the penalty for possession of a firearm by a felon when a defendant has three predicate convictions for “violent felon[ies]” as defined in the ACCA that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The district court sentenced Kirkland to the mandatory fifteen-year minimum under the ACCA.

In 2008, the Supreme Court held in Begay that the felony offense of driving under the influence is not a “violent felony” within the meaning of the ACCA. 553 U.S. at 148, 128 S.Ct. 1581. Kirkland subsequently filed a § 2255 petition challenging his sentence, which the district court denied. On appeal, we remanded the case to the district court for further consideration in light of our holding in Welch v. United States, 604 F.3d 408 (7th Cir.2010), that Begay applies retroactively.

On remand, the district court considered whether Kirkland qualified as an armed career criminal based on his three remaining felony convictions—the 1984 burglary conviction and the 1985 burglary and aggravated robbery convictions. The government maintained that Kirkland's enhanced sentence was valid because the three remaining convictions were violent felonies as defined by the ACCA. Kirkland conceded that all three convictions were violent felonies, but argued that the 1985 convictions could not serve as separate predicate felonies under the ACCA because they were not committed on “occasions different from one another,” as required by § 924(e)(1).

The district court conducted a resentencing hearing to resolve this disputed issue. At the hearing, the parties submitted the charging documents, the judgments, and the plea questionnaires from the 1985 convictions. The two charging documents indicate that both the burglary and the robbery occurred on February 6, 1985. The first document, an information for cause number “C 85–104,” charges Kirkland, Johnny Henry Yearley, and Karen Sue Foster with burglary and second degree battery. The information states that Kirkland, Yearley, and Foster committed the burglary in the home of Charles Gabbard, and that Gabbard was the victim of the battery.² It does not provide a time for the offense. The second information, for cause number “C 85–105,” charges the same three defendants with aggravated robbery and theft of property, and indicates that the defendants robbed an unnamed individual and stole cash and pizza that was property of “Dominoe's [sic] Pizza.” ³ The information for cause number “C 85–105” does not indicate the time or location of the robbery and theft.

The judgments and plea questionnaires for the 1985 offenses that were submitted to the district court do not provide further information regarding the offenses. The two judgments are identical except for the cause numbers, the crimes listed, and the sentencing information. The two plea questionnaires are also the same aside from the cause numbers listed at the top of the page. ⁴ Despite the best efforts of the probation officer, no additional records for the 1985 offenses were located.

At the hearing, the parties agreed that under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the district court could only consider the charging documents, the judgments, and the plea questionnaires from the 1985 convictions in determining whether Kirkland's convictions were for offenses that occurred on different occasions. Based on this record, the government conceded that it was possible that the two offenses occurred simultaneously given that Kirkland was convicted of the offenses with two codefendants, and there was no information regarding the time of either offense or the location of the robbery to indicate otherwise. Nevertheless, the government argued that the ACCA enhancement was appropriate because Kirkland could not show that the offenses occurred on the same occasion. Kirkland, in turn, agreed that the ambiguities in the record created a situation in which, at best, the district court was left with “a guess” as to what occurred if it only considered Shepard-approved documents. He accordingly offered an affidavit and testimony regarding the events that led to the 1985 convictions in an effort to show that the offenses occurred on the same occasion, even though he conceded that such evidence was not contemplated by Shepard.

Before determining whether the burglary and robbery convictions resulted from offenses that were committed on separate occasions, the district court concluded that Shepard precluded it from considering Kirkland's affidavit or testimony.⁵ That left, as the district court put it, a “factually sparse” record relevant to determining whether the offenses were “committed on occasions different from one another.” In particular, the district court noted that the record lacked information regarding the timing of the offenses and the location of the robbery. The fact that two co-defendants were involved in both offenses further complicated the inquiry as to the sequence of events. Ultimately, the district court concluded that “based on the limited facts available for review,” Kirkland could not prove by a preponderance of the evidence that the offenses occurred on a single occasion. Accordingly, the district court denied Kirkland's § 2255 petition because the 1985 convictions for burglary and robbery, combined with the undisputed 1984 conviction for burglary, served as the necessary predicates for an enhancement under the ACCA. In an alternative holding, the district court considered Kirkland's testimony and determined that it did not alter its conclusion that the ACCA enhancement was warranted in this case. Following the district court's granting of a certificate of appealability, Kirkland appealed.

II. DISCUSSION

Kirkland challenges the district court's use of his 1985 convictions to enhance his sentence under the ACCA because he contends that the violent felonies were committed on the same occasion. We review de novo the district court's application of the ACCA to Kirkland's sentence. United States v. Foster, 652 F.3d 776, 792 (7th Cir.2011) (citing United States v. Fife, 624 F.3d 441, 445 (7th Cir.2010)). Any factual findings related to Kirkland's prior convictions, however, are reviewed for clear error. Id. (citing United States v. Aljabari, 626 F.3d 940, 950 (7th Cir.2010)).

A. Shepard Source Restriction

Before reaching Kirkland's primary argument on appeal, we first address the preliminary issue of whether the evidentiary restrictions set forth in Shepard v. United States apply to the “different occasion” inquiry under § 924(e)(1). We agree with the district court that Shepard does apply, and though we have indicated as much in prior opinions, see United States v. Ngo, 406 F.3d 839, 843 n. 1 (7th Cir.2005), United States v. Hunter, 418 Fed.Appx. 490, 494 (7th Cir.2011), we briefly explain our reasoning in an attempt to clarify this constantly evolving and “not always very logical” area of the law, United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006).

The ACCA provides that anyone who has “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another” is an armed career criminal and subject to a fifteen-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). In Taylor v. United States, the...