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 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LUKE D. PATTERSON, 

Defendant-Appellant. 

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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. Henderson, UNITED STATES ATTORNEY’S OFFICE, Cleveland, 

Ohio, for Appellee. 

_________________ 

OPINION 

_________________ 

 SUTTON, Circuit Judge. In a prior appeal by Luke Patterson, 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 district 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 governments 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 district court treated Patterson’s 2001 Ohio 

convictions for aggravated robbery with a deadly weapon as crimes of violence under the 

Sentencing Guidelines but not under the Armed Career 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 violence under the Sentencing Guidelines. The 

government argued that the district court erred by not treating his state court convictions as 

crimes of violence under the relevant federal statute: the Armed Career 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 jeopardy argument because the separatesovereigns doctrine permits such dual prosecutions, and we agreed with the district court that 

Patterson’s prior convictions were predicate crimes of violence under the Guidelines. Id. at 301, 

306. We disagreed, however, with the district court’s conclusion that those convictions did not 

establish the requisite predicates for the Armed Career Criminal Act. “Patterson had ‘three 

previous convictions . . . for a violent 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 ruling that Patterson did not 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 distinct occasions. The district court doubted its 

authority to reach this argument: “I read the mandate from the Sixth 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 alternative, the court found Patterson’s argument meritless 
No. 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 mandatory minimum of 180 months under the Act. 

 Patterson appeals again. He insists that the district court misinterpreted the scope of our 

remand by refusing to consider “any and all available legal arguments.” Br. of Appellant at 14. 

And he maintains that the government has not shown that his Ohio convictions were “committed 

on occasions different from one another.” 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 context 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 ruling that Patterson did not have three 

previous convictions for a violent felony, vacate Patterson’s sentence, and remand 

for resentencing. 

Patterson, 853 F.3d at 306. The proper interpretation of that sentence, as the district court 

concluded, is that we “remand[ed] for resentencing” because Patterson did, in fact, have “three 

previous convictions for a violent felony.” That was not an invitation to start from scratch, and it 

was not an invitation to conduct a new sentencing hearing.

 The language “used in the context of the entire 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 requirements of” the Armed Career Criminal Act. Id. at 300. 

And so, we concluded, “the district 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 for review at the time of an initial appeal but was nonetheless 

foregone, the mandate rule generally prohibits the district court from reopening the issue on 
No. 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 was ripe when he first appealed. He indeed 

raised the argument at his initial sentencing, and the court rejected it. But Patterson never 

appealed that issue in his first 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-occasions argument on the merits. 

The court found it wanting. And so do we. 

The original indictment charged Patterson with 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 tobacconist on December 16, 2000. Each charge came with a firearm 

specification. See id. § 2941.145. Patterson pleaded guilty to Counts 1, 2, and 3 in an “amended 

indictment,” which included a firearm specification only for Count 3. R. 112-3 at 2–3. 

The “logical inference” from this sequence of events, as the district court concluded, is 

that Patterson pleaded to the same three counts listed 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 locations 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 considered 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 to 
No. 17-3706 United States v. Patterson Page 5

offenses occurring at undisclosed times in undisclosed places. And so, he concludes, the 

government failed to show that the offenses occurred on different occasions. 

But the evidence considered in this case—the 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 the 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 district court naturally looked to the original 

charging document. The district court’s permissible 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 facts 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 convictions occurred on different occasions. See 

United States v. Pham, 872 F.3d 799, 801 (6th Cir. 2017).

Making matters easier, Patterson has confirmed what the relevant documents and the 

relevant sequence of events suggest. When he raised this issue at his first 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 presses today. The mandate 

rule exists to prevent just these sorts of efforts to relitigate an issue—to say nothing of 

sidestepping a prior forfeiture and admission. 

For these reasons, we affirm.