United States v. Durham

• Decision Date: 11 February 2023
• Docket Number: 3:21-cr-12-BJB
• Court: U.S. District Court — Western District of Kentucky
• Parties: United States of America v. Nathaniel Durham & Phillip Barnes

United States of America
v.
Nathaniel Durham & Phillip Barnes

No. 3:21-cr-12-BJB

United States District Court, W.D. Kentucky, Louisville Division

February 11, 2023

OPINION

Benjamin Beaton, District Judge United States District Court.

Whether Nathaniel Durham and Phillip Barnes must be sentenced to mandatory 15-year terms of imprisonment turns on whether at least three of their prior convictions were committed on different “occasions” under the Armed Career Criminal Act. See 18 U.S.C. § 924(e)(1). Answering that question raises another inquiry familiar to students of our federal courts: who decides? The Supreme Court's recent decision in Wooden v. United States discussed this determination, but didn't assign it to either a sentencing judge or lay jury. 142 S.Ct. 1063 (2022).

This question arises under the long shadow of mountains of armed-careercriminal jurisprudence. For more than three decades, courts have stacked precedent upon precedent parsing which offenses qualify as “violent felonies” under § 924(e)(1).^[1]In general, that caselaw entrusts the task to sentencing judges. “Now,” following Wooden, “comes the Occasions Clause.” 142 S.Ct. at 1079 (Gorsuch, J., concurring in the judgment). Going forward, many ACCA prosecutions will raise a distinct set of questions regarding whether convictions occurred on “occasions different from one another.” § 924(e)(1). Given all the litigation devoted to reconciling ACCA's qualifying-offense provision with the Fifth and Sixth Amendments, criminal practitioners might've expected courts to follow a similar process for the different-occasions inquiry. See United States v. Hennessee, 932 F.3d 437, 442-43 (6th Cir. 2019) (inferring Congress intended courts to treat the like provisions alike).

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The United States, however, has a different course in mind. It now invites the courts to conjure a new way for juries to answer the different-occasions question while judges continue to resolve the qualifying-offense question under the same statutory subsection. And it does so despite the Government's historical position that the Fifth and Sixth Amendments tolerate limited judicial decisionmaking based on the fact of a prior conviction. See, e.g., United States v. Schumaker, 820 Fed.Appx. 378, 382 (6th Cir. 2020). The Government has adopted this position, moreover, without citing a single judicial decision (either before or since Wooden) in support.

That Supreme Court opinion expressly declined to address the constitutional question the United States suddenly considers foreordained. See 142 S.Ct. at 1068 n.3. The Government's new approach would introduce bifurcated trials, vague instructions, and lay-juror translations of arcane state-court records to ACCA cases. Principles of statutory interpretation, federalism, and evidentiary prejudice all counsel hesitation before striking out on this unmarked path. But the United States is right that the opposite approach raises a serious constitutional question as well: to what extent may judges, consistent with the Fifth and Sixth Amendments, effectively find facts regarding the “who, when, and where” of prior convictions? United States v. King, 853 F.3d 267, 274 (6th Cir. 2017); see generally Apprendi v. New Jersey, 530 U.S. 466 (2000). Those limitations on judicial factfinding are ones that existing ACCA doctrine purports to respect-though some find that approach unpersuasive. Following Wooden, those dissenting views may well prove right. But the United States offers no reason why this Court should (or even may) upend the prevailing practice in run-of-the-mill ACCA cases like this one. And by failing to defend that approach, the Government consigns judges, prosecutors, and defendants alike to continuing uncertainty regarding important federal prosecutions and criminal sentences.

I. Who Decides?

A. Prior Convictions under ACCA and the Fifth and Sixth Amendments before Wooden

ACCA mandates a sentencing enhancement for some repeat felons later convicted for possessing a firearm. The prior convictions must be a “violent felony” or “serious drug” offense, and must have occurred on at least three different occasions. § 924(e)(1). The Fifth and Sixth Amendments, according to the Defendants and the Government, require a jury rather than a judge to determine whether their prior qualifying offenses occurred on different occasions. They point to the Supreme Court's holding in Apprendi 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.” 530 U.S. at 490. But that same decision recognized an exception to this rule for the “fact of a prior conviction,” which needn't be submitted

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to a jury. Id. This exception is widely attributed to the Court's opinion in Almendarez-Torres v. United States: if the mere fact of a prior conviction authorizes a court to enhance a defendant's sentence, then that fact needn't be charged in the indictment or submitted to a jury because it is not an “element” of the offense. 523 U.S. 224, 226-27, 239 (1998).

Courts have grappled with the difficulties of identifying and proving a “violent felony” for years. Congress defined the term to include any felony that “is burglary, arson, or extortion,” or that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” §§ 924(e)(2)(B)(i)-(ii).^[2]

Does this determination require the government to prove more than the mere fact of a conviction to a jury before the enhancement applies? Not according to the Supreme Court, which has held that judges, rather than juries, are responsible for making the often-complex determination whether a prior offense qualifies. See Taylor v. United States, 495 U.S. 575, 602 (1990). Courts may do so by applying the “categorical” and “modified categorical approach”-whose much-maligned details are not necessary to recount here-based on the statute, indictment, and jury instructions to determine whether the prior jury “necessarily had to find” that fact. Id.

In Shepard v. United States, the Supreme Court identified other case-specific documents that a judge may use to determine whether a prior conviction qualifies under ACCA. 544 U.S. 13, 26 (2005) (extending Taylor to guilty pleas as well as jury verdicts). In addition to the charging document and instructions, these include the judgment, plea agreement, a plea-colloquy transcript “in which the factual basis for the plea was confirmed by the defendant,” or “some comparable judicial record.” Id. The Sixth Circuit-even before Shepard-held that judges, not juries, answer the different-occasions question. A district judge's determination “that prior felony convictions exist and were committed on different occasion[s],” the court held, “are so intimately related that the ‘different occasions' requirement of § 924(e) sufficiently comes within the exception in Apprendi for a prior conviction.” United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004). And since Shepard the Sixth Circuit has clarified that the “fact of a prior conviction” reaches beyond the mere elements of the offense to other “aspects of the character of prior convictions.” United States v. Hollingsworth, 414 F.3d 621, 623 (6th Cir. 2005). Those facts “so basic as to be implicit in the fact of a prior conviction” include the date of the offense, the defendant's age on the date of commission, and the date of the conviction. United States v. Johnson, 440 F.3d 832, 848 (6th Cir. 2006) (quotation omitted). These

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decisions have generally addressed the violent-felony rather than different-occasions question under ACCA. They have, however, allowed judges to make different-occasions determinations without running afoul of the Court's Apprendi rulings regarding judicial fact-finding.

But those precedents, like the Defendants' arguments here, implicate a long-running debate regarding the permissible scope of judicial factfinding. Some Justices have insisted, notwithstanding Almendarez-Torres and subsequent precedents, that the Government must establish the ACCA requirements set out by Congress by proving those law-intensive questions to a jury beyond a reasonable doubt. The relationship between the constitutional text and history and this exception for the fact of conviction, they maintain, is questionable at best.^[3] Certainly the decisions in Almendarez-Torres and Apprendi do not grapple with the historical and textual basis for this exception. Why shouldn't all facts that enhance a sentence be submitted to a jury? See, e.g., Mathis v. United States, 579 U.S. 500, 522-23 (2016) (Thomas, J., concurring) (arguing that “the exception in Apprendi was wrong”). And some judges find equally questionable the use of this exception to justify “judicial factfinding involving ACCA's different-occasions requirement.” United States v. Dudley, 5 F.4th 1249, 1275-77 (11th Cir. 2021) (Newsom, J., concurring in part and dissenting in part) (raising questions under the Sixth Amendment).

Those critiques, however persuasive they may be, have yet to carry the day. The Supreme Court has cabined the prior-conviction exception based on constitutional avoidance. See Shepard, 544 U.S. at 16, 25-26 (“limit[ing] the scope of judicial factfinding on the disputed ... character of a prior plea” and rejecting the use of “police reports or complaint applications”). The Court's precedents describe “a pragmatic conclusion about the best way to identify generic convictions . while respecting Congress's adoption of a categorical criterion that avoids subsequent evidentiary enquiries into the factual basis for the earlier conviction.” Id. at 20.

The Sixth Circuit, bound by stare decisis, followed these decisions in holding that judges could consider so-called Shepard documents from prior convictions in making the qualifying-offense determination under ACCA. See United...