United States v. McCloud

• Decision Date: 16 March 2016
• Docket Number: No. 14–14547.,14–14547.
• Citation: 818 F.3d 591
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Willie McCLOUD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

818 F.3d 591

UNITED STATES of America, Plaintiff–Appellee,

v.Willie McCLOUD, Defendant–Appellant.

No. 14–14547.

United States Court of Appeals, Eleventh Circuit.

March 16, 2016.

Nicole D. Mariani, Aileen Cannon, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Joaquin E. Padilla, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Before WILSON and JULIE CARNES, Circuit Judges, and HALL,^* District Judge.

WILSON

, Circuit Judge:

Willie McCloud pleaded guilty to being a convicted felon in possession of a firearm that traveled interstate, in violation of 18 U.S.C. § 922(g)(1)

. This conviction, coupled with his three prior convictions for armed robbery, made possible his qualification as an armed career criminal. See 18 U.S.C. § 924(e). The federal crime of possessing a firearm by a convicted felon generally carries no mandatory minimum penalty and the statutory maximum sentence is 10–years imprisonment. See id. § 924(a)(2). However, the Armed Career Criminal Act (ACCA) imposes a mandatory minimum sentence of 15–years imprisonment when a defendant has committed three prior qualifying offenses "on occasions different from one another." See id. § 924(e)(1).

The district court determined that McCloud's three prior armed robbery convictions were committed on separate occasions, thereby rendering McCloud subject to the ACCA's 15–year statutory minimum.¹ See id. The court then imposed a 235–month sentence, which was at the top of the range recommended by the United States Sentencing Guidelines (the Guidelines) and exceeded the Government's request by 40 months. This appeal followed.

We are called upon to determine whether the Government carried its burden in proving McCloud is an armed career criminal under the statute. After thorough review of the parties' briefs and having had the benefit of oral argument, we conclude that the district court erred in determining McCloud's three prior offenses were separate within the meaning of the ACCA.² We therefore vacate the district court's sentencing order and remand for sentencing consistent with this opinion.

I

For a defendant to receive the 15–year minimum sentence under 18 U.S.C. § 924(e)(1)

, the Government must prove by a preponderance of the evidence, using "reliable and specific evidence," see United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir.2012), that the defendant's prior convictions each "arose out of a separate and distinct criminal episode," United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir.2010) (internal quotation marks omitted). To qualify as separate under the ACCA, the predicate crimes must be "successive rather than simultaneous"—in other words, "temporally distinct." See United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir.2013) (per curiam) (internal quotation marks omitted). A crime is "successive" when the defendant had "a meaningful opportunity to desist ... activity before committing the second offense" and "the crimes reflect [ ] distinct aggressions." United States v. Lee, 208 F.3d 1306, 1307 (11th Cir.2000) (per curiam) (first alteration in original) (internal quotation mark omitted). Thus, distinctions in the timing and location of the events in question are central to the determination that they are "separate and distinct criminal episodes." See Sneed, 600 F.3d at 1333 ; Weeks, 711 F.3d at 1261.

To determine the nature of a prior conviction, the district court is "limited to examining the statutory definition [of the offense of the prior conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005)

. These documents are known as "Shepard -approved sources" or "Shepard documents." See, e.g., Weeks, 711 F.3d at 1259–60. Police reports and arrest affidavits may not be used to determine whether ACCA predicate offenses occurred on separate occasions. Sneed, 600 F.3d at 1333. The district court may make findings of fact based on undisputed statements in the PSI, but may not rely on those portions to which the defendant objected "with specificity and clarity," unless the Government establishes the disputed facts by a preponderance of the evidence. United States v. Philidor,

717 F.3d 883, 885 (11th Cir.2013) (per curiam); United States v. Bennett, 472 F.3d 825, 832 (11th Cir.2006) (per curiam).

Both in his objections to the PSI and at sentencing, McCloud argued that the Shepard documents did not support the Government's contention that his prior crimes were separate within the meaning of the ACCA. On appeal, McCloud asks us to review whether the Government failed to carry its burden of proving that the armed robberies were offenses "occurring on occasions different from one another" using Shepard -approved materials. "We review de novo whether crimes were committed on occasions different from one another within the meaning of the ACCA." Weeks, 711 F.3d at 1261

.

II

McCloud contends that the Government failed to meet its burden of proof because the Shepard documents do not state the time and location of his prior convictions, or otherwise indicate that the offenses were "temporally distinct." See id.; Almedina, 686 F.3d at 1315

. The Shepard documents in this case include the charging documents for each armed robbery, the transcript of the plea colloquy, and undisputed statements in the PSI.³ McCloud's arrest affidavits are not Shepard documents. See Sneed, 600 F.3d at 1333 (holding that "courts may not use police reports to determine whether predicate offenses under § 924(e)(1) were committed on ‘occasions different from one another.’ "); cf. United States v. Rosales–Bruno, 676 F.3d 1017, 1022–23 (11th Cir.2012) (explaining that arrest affidavits lack "indicia of reliability sufficient to meet Shepard 's requirements").

We review, in turn, the charging documents, plea colloquy transcript, and undisputed portions of the PSI to determine if these documents provide reliable and specific evidence reflecting that McCloud's prior convictions more likely than not arose out of "separate and distinct criminal episode[s]." See Sneed, 600 F.3d at 1329

(internal quotation marks omitted). When it is equally likely that the crimes were committed simultaneously as it is that they were committed successively, the Government has not met its evidentiary obligation under the preponderance of the evidence standard.

We conclude that, although the charging documents reflect there were three different victims, different items stolen, and three different case numbers, these pieces of information do not make it more likely than not that the crimes were committed successively rather than simultaneously. In addition, although the charging documents reflect the varying participation of McCloud's co-defendants, they do not state in what order the robberies occurred or make it more likely than not that there was a meaningful opportunity to desist the criminal activity. Similarly, the plea colloquy transcript and undisputed paragraph of the PSI indicate—at most—two separate offenses occurred. Thus, whether taken individually or collectively, the Shepard documents do not support the conclusion that the robberies occurred on occasions different from one another.

A. The Charging Documents

The Government concedes that the charging documents do not specify the time or location at which each of the three prior robbery convictions occurred. However, the Government argues, the charging documents do reflect that there were three separate case numbers assigned to McCloud's offenses on August 4, 2008, that McCloud and his fellow perpetrators stole from three differently named individuals that day, that the property stolen was of three different types, and that the offenses were committed with different co-defendants. The Government urges us to conclude from this information that it is more likely than not that the armed robberies were separate within the meaning of the ACCA.

That the charging documents indicate there were unrelated victims and different items stolen does not constitute "reliable and specific evidence" pertaining to the time and location of the offenses, or otherwise indicate that there was a meaningful break between the offenses. We would not consider three temporally and logistically distinct robberies of the same victim to be a single offense. Correlatively, we do not consider—without more evidence—three different victims to indicate that the offenses were temporally or logistically distinct. Similarly, whether the pieces of property stolen were of the same or different types does not indicate the time or place of events. On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets. Thus, that there were different victims and the items stolen were two gold chains, one cell phone, and one wallet provides no indication whether the thefts were committed successively rather than simultaneously. See Weeks, 711 F.3d at 1261

; United States v. Pope, 132 F.3d 684, 692 (11th Cir.1998).

The Government also argues that having three different case numbers in the state court informations provides "reliable and specific evidence" that the offenses were committed separately. However, the individual case numbers themselves do not convey any information pertaining to the time or location of the offenses. It is just as likely that there are three case numbers to reflect the number of victims as it is that there are three case numbers to reflect three separate events. Accordingly, the mere fact that the case numbers are different does not assist the Government in meeting its burden of proving with reliable and specific evidence that the offenses are "separate and distinct criminal...