RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0289p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

L UKE D. P ATTERSON , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 17-3706

Appeal from the United States District Court

for the Northern District of Ohio at Akron. No. 5:14-cr-00289-1—James S. Gwin, District Judge. Decided and Filed: December 20, 2017 Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Claire C. Curtis, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Carmen E. He nderson, UNITED STATES ATTO RNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ SUTTON, Circuit Judge. In a prior appeal by Luke Patters on, we determined that “the district court should have sentenced him as an armed career criminal” because he had three previous convictions for a violent felony. The dist rict court heeded those instructions on remand. We affirm. 

### >No. 17-3706 United States v. Patterson Page 2

In 2014, Akron police officers stopped Patterson ’s car. They found an open container of alcohol and a stolen pistol inside it. The state and federal govern ments filed charges. In state court, Patterson pleaded guilty to receiving stolen property and driving with a suspended license. In federal court, he pleaded guilty to being a felon in possession.
At his federal sentencing hearing, the di strict court treated Patterson’s 2001 Ohio convictions for aggravated robbery with a d eadly weapon as crimes of violence under the Sentencing Guidelines but not under the Armed Ca reer Criminal Act. Patterson appealed, and the government cross-appealed. Patterson argued (1) that the court should have dismissed his federal indictment because it violated the Double Jeopardy Clause and (2) that his Ohio convictions did not qualify as crimes of violen ce under the Sentencing Guidelines. The government argued that the distri ct court erred by not treating hi s state court convictions as crimes of violence under the relevant federal statute: the Armed Ca reer Criminal Act.
We affirmed in part and reversed in part. United States v. Patterson , 853 F.3d 298, 300 (6th Cir. 2017). We rejected Patterson’s double jeop ardy argument because the separatesovereigns doctrine permits such dual prosecutions , and we agreed with the district court that Patterson’s prior convictions we re predicate crimes of violence under the Guidelines. Id. at 301, 306. We disagreed, however, with the district c ourt’s conclusion that those convictions did not establish the requisite predicates for the Armed Career Criminal Act. “Patterson had ‘three previous convictions . . . for a vi olent felony’ under [the Act],” we held, “and the district court should have sentenced him as an armed career criminal.” Id. at 305 (quoting 18 U.S.C. § 924(e)(1)). As a result, we “reverse[d] the ru ling that Patterson did no t have three previous convictions for a violent felony, vacate[d] Patterson’s sentence, and remand[ed] for resentencing.” Id. at 306.
On remand, Patterson continued to argue that he should not be sentenced as an armed career criminal. The government, he said, had not shown that his prior offenses were in fact three separate offenses occurring on three dist inct occasions. The district court doubted its authority to reach this argument: “I read the mandate from the Si xth Circuit to be more narrow” because it “specifically ma[de] a finding that the Defendant should be sentenced as an armed career criminal.” R. 122 at 15. In the altern ative, the court found Patterson’s argument meritlessNo. 17-3706 United States v. Patterson Page 3

because the “logical inference” from the record was that he pleaded guilty to three different offenses. Id. The court sentenced him to the mandato ry minimum of 180 months under the Act.
Patterson appeals again. He insists that the di strict court misinterpr eted the scope of our remand by refusing to consider “any and all availabl e legal arguments.” Br. of Appellant at 14. And he maintains that the government has not s hown that his Ohio convictions were “committed on occasions different from one anot her.” 18 U.S.C. § 924(e)(1).
We interpret the scope of a mandate with fresh eyes. To determine whether we issued a limited remand or a general one, we look to any “limiting language” in the instructions on remand and the broader c ontext of the opinion. United States v. O’Dell , 320 F.3d 674, 679–81 (6th Cir. 2003). Both indicators show that we issued a limited remand.
Our prior opinion states:
For these reasons, we . . . reverse the ru ling that Patterson did not have three previous convictions for a violent fel ony, vacate Patterson’s sentence, and remand for resentencing.

Patterson , 853 F.3d at 306. The proper interpretation of th at sentence, as the district court concluded, is that we “remand[ed] for resentenci ng” because Patterson did, in fact, have “three previous convictions for a violent felony.” That was not an invita tion to start from scratch, and it was not an invitation to conduct a new sentencing hearing.
The language “used in the context of the en tire opinion” supports this conclusion. United States v. Campbell , 168 F.3d 263, 267–68 (6th Cir. 1999). We recognized that Patterson’s “three convictions stemmed from armed robberies” that occurred at three different places: “an insurance agency, a cash advance store, and a cigarette shop.” Patterson , 853 F.3d at 301. Those “prior convictions me[t] the requireme nts of” the Armed Career Criminal Act. Id. at 300. And so, we concluded, “the distri ct court should have sentenced [Patterson] as an armed career criminal.” Id. at 305.
But Patterson faces another problem, separate and apart from the scope of our remand. “[W]here an issue was ripe fo r review at the time of an in itial appeal but was nonetheless foregone, the mandate rule generally prohibits the district court from reopening the issue onNo. 17-3706 United States v. Patterson Page 4

remand.” O’Dell , 320 F.3d at 679 (quoting United States v. Ben Zvi , 242 F.3d 89, 95 (2d Cir. 2001)). Patterson’s separate-occasions argument wa s ripe when he first appealed. He indeed raised the argument at his init ial sentencing, and the court reje cted it. But Patterson never appealed that issue in his firs t trip to this court. That makes the argument “doubly out of bounds” now, Waldman v. Stone , 665 F. App’x 432, 434 (6th Cir. 2016), and that reality by itself resolves this appeal.
That brings us to the third problem with this appeal. In the alternative and out of an abundance of caution, the district court addressed the separate-occa sions argument on the merits. The court found it wanting. And so do we.
The original indictment charged Patterson wi th three counts of aggravated robbery. See Ohio Rev. Code § 2911.01(A)(1), (C). Count 1 occurred at an insurance agency on November 28, 2000. Count 2 occurred at a First American Cash Advance store on December 8, 2000. And Count 3 occurred at a tobacconi st on December 16, 2000. Each charge came with a firearm specification. See id. § 2941.145. Patterson pleade d guilty to Counts 1, 2, and 3 in an “amended indictment,” which included a firearm speci fication only for Count 3. R. 112-3 at 2–3.
The “logical inference” from this sequence of ev ents, as the district court concluded, is that Patterson pleaded to the same three counts li sted in the original indictment, with the firearm specification removed from Counts 1 and 2. R. 122 at 15. The state court’s finding on Patterson’s guilty plea confirms that, as part of the plea, Ohio agreed “to dismiss [the] firearm specifications in [the] indictment as to Counts 1 & 2.” R. 112-3 at 4. Under any of our tests in this area, aggravated robberies occurring at three different loca tions in three different weeks amount to offenses “committed on different occasions.” United States v. Southers , 866 F.3d 364, 369 (6th Cir. 2017).
Patterson objects. He claims that, in light of amendments to the indictment, the original indictment may not be consid ered as approved evidence. See Shepard v. United States , 544 U.S. 13 (2005). Because the amended indictment was never docketed in state court, he adds, the remaining evidence available (the plea finding ) establishes only that Patterson pleaded toNo. 17-3706 United States v. Patterson Page 5

offenses occurring at undisclosed times in undi sclosed places. And so, he concludes, the government failed to show that the offenses occurred on different occasions.

But the evidence considered in this case—th e original indictment and plea finding—falls squarely within the materials approved by Shepard , namely “the terms of the charging document,” a statement of the “factual basis for th e plea,” and “comparable judicial record[s].” 544 U.S. at 26. Because an amended indictment was never docketed and the original indictment was cross-referenced in the plea finding, the dist rict court naturally looked to the original charging document. The district court’s perm issible inferences from these prototypical Shepard documents were fair and reasonable: that Patterson pleaded guilty to three distinct offenses.
United States v. King , 853 F.3d 267 (6th Cir. 2017), is not to the contrary. It refused to consider evidence that appeared in three bills of particulars but not in the corresponding indictments because the defendant “could have pled guilty to the charges in the indictment without requesting the bills of particulars.” Id. at 269, 275–76; see also Southers , 866 F.3d at 370. Nor does it help Patterson to rely on King ’s dicta that the documents must have “necessarily admitted” the fact s at issue. 853 F.3d at 276. Shepard restricted the category of evidence to material from which “a later court could generally tell whether the plea had ‘necessarily’ rested” on the facts at issue. 544 U.S. at 21 (emphasis added). That makes sense, as the government’s long-established burden is to prove by a preponderance of the evidence— not beyond a reasonable doubt—that the prior convi ctions occurred on different occasions. See United States v. Pham , 872 F.3d 799, 801 (6th Cir. 2017).
Making matters easier, Patters on has confirmed what the relevant documents and the relevant sequence of events suggest. When he rais ed this issue at his fi rst sentencing, Patterson admitted through counsel that the predicate offenses occurred on three different days. The trial court and Patterson’s counsel had the following exchange: THE COURT: [D]o you agree that the—the underlying state convictions were . . . for conduct that occurred on November 28th, 2000, December 8th, 2000, and December 16th, 2000? MR. IVEY: Yes, Your Honor . But at the same time, Mr. Patterson wants me to emphasize that although that is true , they were all contained in the same Indictment, in the same case, and sentenced on all of them at the same time.No. 17-3706 United States v. Patterson Page 6

R. 71 at 5 (emphases added). Patterson conceded yesterday what he pres ses today. The mandate rule exists to prevent just these sorts of e fforts to relitigate an issue—to say nothing of sidestepping a prior fo rfeiture and admission.
For these reasons, we affirm.