US v. Sneed

• Decision Date: 24 March 2010
• Docket Number: No. 09-13195.,09-13195.
• Citation: 600 F.3d 1326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Earl SNEED, a.k.a. Evan Sneed, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

600 F.3d 1326

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Earl SNEED, a.k.a. Evan Sneed, Defendant-Appellant.

No. 09-13195.

United States Court of Appeals, Eleventh Circuit.

March 24, 2010.

Kevin L. Butler, Fed. Pub. Def., Montgomery, AL, for Defendant-Appellant.

Michael John Petersen, Fed. Pub. Def., Montgomery, AL, Matthew W. Shepherd, Montgomery, AL, for Plaintiff-Appellee.

Before HULL, WILSON and FARRIS,^* Circuit Judges.

HULL, Circuit Judge:

Kevin Earl Sneed appeals his 180-month sentence for possession of a firearm by a convicted felon and possession of marijuana. On appeal, Sneed argues that his sentence was improperly enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), because the district court used police reports to determine whether Sneed's prior drug convictions were committed on different occasions and thus qualified as predicate felonies for the § 924(e) enhancement. After review, we conclude the district court erred in relying on non-Shepard approved records and thus vacate Sneed's sentence.

I. BACKGROUND FACTS

A. Indictment and Guilty Plea

While responding to a burglary call, officers spotted Sneed, who matched the description of the suspect, walking down the road. When officers attempted to stop Sneed to talk to him, he ran and was apprehended when he fell. Underneath Sneed's body, officers found a loaded handgun and a clear plastic bag containing a green leafy substance that later tested positive for marijuana.

Sneed was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 1), and possession of marijuana, in violation of 21 U.S.C. § 844(a) (Count 2). As enhancements to the firearm offense in Count 1, the indictment charged that Sneed had these three prior felony drug convictions: "January 27, 2003, Distribution of a Controlled Substance, (3 counts), case numbers CC 2002-000301, CC 2002-000302, CC 2002-000303, in the Circuit Court of Pike County, Alabama."¹

Sneed pled guilty to both counts of the indictment. The plea agreement stated the factual basis for the plea, and listed the same three prior felony drug convictions: "June 18, 2001, Unlawful Distribution of a Controlled Substance (three counts), case number CC 2002-000301; CC 2002-000302; and CC 2002-000303, in the Circuit Court of Pike County, Alabama." Sneed waived his right to appeal his sentence except for his right to appeal the application of the ACCA.

B. Presentence Investigation Report

The Presentence Investigation Report ("PSI") stated that Sneed's base offense level was 20. However, the PSI also concluded that Sneed qualified as an armed career criminal under § 924(e)(1) because he had "three prior convictions in Pike County, Alabama, case numbers CC02-301, 302, and 303." Thus, the PSI concluded that Sneed had a base offense level of 33, pursuant to U.S.S.G. § 4B1.4(b)(3)(B), and was subject to § 924(e)(1)'s mandatory minimum fifteen-year sentence. With a three-level reduction for acceptance of responsibility, the PSI calculated a total offense level of 30.

Based on Sneed's three drug convictions and other prior convictions, the PSI calculated nine criminal history points, resulting in a criminal history category of IV. Paragraph 34 of the PSI listed the three drug convictions and described the date, location, and time of the offenses as follows:

The defendant was represented by counsel. Details of count one reveal that on September 26, 2001, at 5:04 p.m., a confidential informant working with the Troy Police Department purchased.07 grams of crack cocaine from Sneed. The transaction was caught on video surveillance. Details of count 2 reveal that on September 26, 2001, at 5:43 p.m., a confidential informant purchased .12 grams of crack cocaine from the defendant. The transaction was observed by a Pike County Sheriff's Deputy who positively identified the subject as Kevin Sneed. Details of count three reveal that on October 11, 2001, at 5:29 p.m., a confidential informant purchased .12 grams of crack cocaine from the defendant. This transaction was video taped. All of these sales occurred within a three mile radius of a public housing project owned by a housing authority.

A criminal history category of IV and a total offense level of 30 yielded an advisory guidelines range of 135 to 168 months' imprisonment. Due to the fifteen-year statutory mandatory minimum, the PSI advised that the advisory guidelines range was 180 months, pursuant to U.S.S.G. § 5G1.1(b).

C. State Indictment and Police Reports

In his written objections to the PSI, Sneed contended that he did not qualify as an armed career criminal under the ACCA and its corresponding guideline, U.S.S.G. § 4B1.4(a). Sneed did not deny that he had the three prior drug convictions. Rather, Sneed argued that "the offenses listed in paragraph 34 of the PSI did not occur on different occasions" and that the PSI's "finding that the offenses occurred on different occasions is not reflected in the state indictment, indeed, the indictment merely reflects three counts and provided neither the day or the time." Sneed also objected "to the inclusion of the details in paragraph 34, as it `exceeds that allowed by the U.S. Supreme Court's opinion in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). ..."

In response, the government filed a sentencing memorandum and attached a copy of the state indictment that charged Sneed with the three drug convictions. Specifically, each count of the state indictment contained the exact same language and alleged that Sneed "did unlawfully sell, furnish, give away, manufacture, deliver or distribute a controlled substance, to wit: COCAINE, in violation of Section 13A-12-211 of the Code of Alabama, while the said KEVIN SNEED, was within a three mile radius of a public housing project owned by a housing authority, did sell a controlled substance, to wit: COCAINE, in violation of Section 13A-12-270 of the Code of Alabama, Against the Peace and Dignity of the State of Alabama." None of the counts contained dates, times or locations for the charged offenses.

In addition, the government attached copies of police reports for each state offense. These reports indicate that each of the three offenses was the result of a controlled buy using a confidential informant. The first state offense occurred on September 26, 2001, at 5:04 p.m., in a trailer park beside the housing project in Spring Hill. On this occasion, the confidential informant purchased .07 grams of crack cocaine from Sneed for $20.00. The second state offense occurred less than an hour later, at 5:43 p.m, when the same confidential informant returned to the same trailer park and purchased .12 grams of crack cocaine from Sneed for $20.00.² The third offense occurred on October 11, 2001 in the Spring Hill housing project when a confidential informant purchased .12 grams of crack cocaine from Sneed for $20.00.

The government argued that: (1) under this Court's binding precedent in United States v. Richardson, 230 F.3d 1297 (11th Cir.2000), the district court could examine police reports to determine whether qualifying predicate felonies were separate for purposes of the ACCA; and, (2) here, those reports showed that the three state offenses were separate because they were temporally distinct drug sales.

D. Sentencing

At sentencing, Sneed reasserted his objections to application of the ACCA, including use of the police reports to determine whether he had the predicate prior felony offenses to trigger the § 924(e) enhancement. Sneed argued that Richardson was abrogated by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The district court overruled Sneed's objections and, after considering the police reports, concluded that Sneed was convicted of three separate drug offenses.³ The district court adopted the PSI's facts and found that Sneed's advisory guidelines range was the mandatory statutory minimum of 180 months' imprisonment.⁴ The district court sentenced Sneed to an 180-month term on Count 1 and a concurrent 36-month term on Count 2. Sneed filed this appeal.

II. DISCUSSION

A. Section 924(e)'s Distinct Offenses Requirement

Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject to § 924(e)(1)'s mandatory minimum sentence of fifteen years if the defendant has "three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another. ..." 18 U.S.C. § 924(e)(1) (emphasis added). Sneed does not dispute that his three prior state drug convictions are serious drug offenses within the meaning of the ACCA. Rather, Sneed contends that the district court erred in finding that the three offenses were committed on different occasions as expressly required by § 924(e)(1).

Section 924(e)(1) does not require separate indictments, but it does require that the three previous convictions "be committed on occasions different from one another." 18 U.S.C. § 924(e)(1). This Court has said that to be different the three convictions must be "`for crimes that are temporally distinct.'" United States v. Sweeting, 933 F.2d 962, 967 (11th Cir.1991) (quoting United States v. Howard, 918 F.2d 1529, 1538 (11th Cir.1990)). The government must show "the three previous convictions arose out of a separate and distinct `criminal episode.'" United States v. Pope, 132 F.3d 684, 689 (11th Cir.1998).⁵

"Mere temporal proximity is ordinarily insufficient to merge multiple offenses into a single criminal episode. Distinctions in time and place are usually sufficient to separate criminal episodes from one another even when the gaps are small." Id. at 690. Two offenses are distinct if "some temporal `break' occurs between them." Id.

The issue in this case is what can a sentencing court consider in determining whether Sneed's prior drug convictions were committed on occasions different from...