United States v. Dudley

• Decision Date: 22 July 2021
• Docket Number: No. 19-10267,19-10267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua Reshi DUDLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

5 F.4th 1249

UNITED STATES of America, Plaintiff-Appellee,

v.Joshua Reshi DUDLEY, Defendant-Appellant.

No. 19-10267

United States Court of Appeals, Eleventh Circuit.

July 22, 2021

Michael B. Billingsley, Praveen S. Krishna, U.S. Attorney Service - Northern District of Alabama, U.S. Attorney's Office, Birmingham, AL, for Plaintiff-Appellee.

Allison Case, Kevin L. Butler, Robin P. Robertson, Tobie John Smith, Federal Public Defender, Birmingham, AL, for Defendant-Appellant.

Before NEWSOM and BRANCH, Circuit Judges, and RAY,^* District Judge.

BRANCH, Circuit Judge, delivered the opinion of the Court, in which RAY, District Judge, joined, and NEWSOM, Circuit Judge, joined in all but Part III.A.

NEWSOM, Circuit Judge, filed a dissenting opinion.

BRANCH, Circuit Judge:

Joshua Dudley pleaded guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). The district court imposed the Armed Career Criminal Act's ("ACCA") sentencing enhancement.¹ Dudley contested the application of the ACCA enhancement, arguing that there was insufficient evidence to establish that his prior felony offenses were committed on different occasions from one another. The district court disagreed, relying on the prosecutor's factual proffer from Dudley's state plea colloquy concerning the prior offenses. Dudley argues on appeal that the district court improperly relied on the unconfirmed factual proffer from his state plea colloquy to determine that the offenses were committed on different occasions. Dudley also argues for the first time on appeal that the Supreme Court's decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), necessitates vacating his guilty plea to being a felon in possession of a firearm. After careful consideration and with the benefit of oral argument, we conclude that the district court did not err in considering the prosecutor's factual proffer from Dudley's state plea colloquy concerning the dates of his prior offenses when conducting the ACCA's different-occasions inquiry because Dudley implicitly confirmed the factual basis for his plea. We also conclude that Dudley is not entitled to relief on his Rehaif -based challenge. Accordingly, we affirm.

I. Background

In 2018, Dudley was charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).² The indictment noted that Dudley had several prior Alabama felony convictions. Dudley did not object to the indictment. Dudley subsequently pleaded guilty. In the written plea agreement, Dudley admitted that he possessed a firearm during a gas station robbery after being convicted previously of several Alabama felonies. The plea agreement did not include the dates or any other details of Dudley's prior felony convictions.

Prior to Dudley's sentencing, the United States Probation Office prepared a presentence investigation report ("PSI"), which indicated that Dudley had at least three prior Alabama convictions that qualified as violent felonies for purposes of the ACCA and were committed on different occasions from one another. Specifically, the PSI detailed that Dudley was convicted on December 31, 2013, in Alabama of two counts of second-degree assault in case no. 11-2012; three counts of second-degree assault in case no. 11-2610; and one count of second-degree assault in case no. 11-2366. According to the PSI, Dudley's plea colloquy from the Alabama combined plea proceeding indicated that the assaults in case no. 11-2012 occurred on May 8, 2011,³ the assaults in case no. 11-2610 occurred on July 13, 2011, and the assault in case no. 11-2366 occurred on July 26, 2011. Dudley's resulting guidelines range was 188 to 235 months’ imprisonment. As a result of the ACCA enhancement, Dudley faced a statutory minimum term of 15 years’ imprisonment and a maximum term of life imprisonment.⁴

Dudley objected to the PSI, arguing, in relevant part, that the record was insufficient for the court to determine that his prior Alabama convictions were for offenses committed on occasions different from one another. Specifically, Dudley contended that the state indictments did not include the dates of the offenses,⁵ and under Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the district court could rely only on statements from his Alabama plea colloquy that he had expressly confirmed during the colloquy. Thus, although the dates of the Alabama offenses were discussed during his 2013 plea colloquy as part of the state's factual proffer, because Dudley was never asked whether he agreed with the factual proffer, he maintained that the district court could not rely on this information when conducting the different-occasions inquiry.

In response, the government acknowledged that the state indictments for the Alabama offenses did not reference the dates of the crimes but argued that it could demonstrate the dates via the 2013 Alabama plea colloquy. And the 2013 plea colloquy established that Dudley did not object to the state's factual proffer that the offenses in question occurred on three different dates. The government maintained that Dudley misread Shepard , and Shepard does not require that a defendant assent to a factual proffer in the plea colloquy before the factual proffer may be used to prove a fact of a prior conviction.⁶

In support of its position, the government attached the transcript of Dudley's 2013 Alabama plea colloquy. At the plea colloquy, Dudley was represented by counsel and, after explaining to Dudley the rights he would be giving up if he pleaded guilty, the state trial court asked the state prosecutor to explain the factual basis for the pleas.⁷ The prosecutor stated that with regard to case no. 11-2012, on or about May 8, 2011, while in the county jail, Dudley, with the intent to cause physical injury to another person, caused physical injury to another inmate by means of a spoon, and he also punched Detention Officer Hall in the face. With regard to case no. 11-2366, on or about July 26, 2011, Dudley assaulted Detention Officer Gandy when Gandy was delivering breakfast to the pod in which Dudley was housed. With regard to case no. 11-2610, on July 13, 2011, Dudley assaulted Detention Officers Gandy, Chanell, and Little, when the officers came to check on an inmate in the pod who was bleeding.

Following the initial factual proffer that included the dates of the offenses, the state prosecutor asked "[d]id I miss anything" and Dudley's counsel stated "That's it. You did cover jail credit?" The state court asked whether "[t]hese were all separate incidents" and the prosecutor confirmed that they were. Dudley did not object to this assertion. The state court then asked Dudley what his plea was as to each respective case, and Dudley responded "guilty" three times, once for each case. He also confirmed that he was pleading guilty because he was in fact guilty. The trial court then found Dudley guilty and asked him whether he had "anything to say before the [c]ourt pronounce[d] sentence," and Dudley responded, "No, sir." Additionally, following pronouncement of sentence, the state court asked if there was anything further, and Dudley's counsel responded "Nothing further. Just for transcript purposes, if you will—we can note on the record that that jail credit applies to each and every case and every count."

In reply to the government's assertion that it could prove that his prior offenses were committed on different occasions based on his 2013 Alabama plea colloquy, Dudley reiterated his position that the record was insufficient to establish that his prior convictions were committed on different occasions because the state trial court never asked him whether he agreed with the factual proffer and never instructed Dudley to say whether he disagreed with anything said during the plea colloquy.

At the federal sentencing hearing, Dudley reaffirmed his objection to the ACCA enhancement. In particular, Dudley argued that his guilty plea to the state offenses was an admission of the elements of the offenses, but not the dates of the offenses, as dates are non-elemental facts about which the defendant has little incentive to object and the district court was not permitted to rely on non-elemental facts. The district court recognized that this case presented "a close call," but it concluded that the record supported the conclusion that the state offenses were "separate occurrences." The district court noted that Dudley had not objected during the 2013 Alabama plea colloquy, and the indictments were separate and "the grand jury took them up and true billed them." Following consideration of additional sentencing-related arguments, the district court imposed a within-guidelines 215-month sentence. This appeal followed.

II. Standards of Review

We review de novo whether prior offenses meet the ACCA's different-occasions requirement. United States v. Carter , 969 F.3d 1239, 1242 (11th Cir. 2020). "We may affirm on any ground supported by the record." Id. (quoting Castillo v. United States , 816 F.3d 1300, 1303 (11th Cir. 2016) ).

Dudley's Rehaif -based challenge to his conviction, however, which he raises for the first time on appeal, is reviewed only for plain error. United States v. Reed , 941 F.3d 1018, 1021 (11th Cir. 2019). To establish plain error, a defendant must show: (1) an error; (2) that was obvious; (3) that affected the defendant's substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings.

United States v. Olano , 507 U.S. 725, 734–37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "[W]e may consult the whole record when considering the effect of any error on [Dudley's] substantial rights." Reed , 941 F.3d at 1021 (quoting United States v. Vonn , 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) ).

III. Discussion

A. ACCA Challenge

Under the ACCA, a defendant convicted of possession of a firearm by a...