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Cases No. 5:03cr40-Rh/GRJ and 5:15cv132-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 5:03cr40-RH/GRJ

5:16cv132-RH/GRJ

KENNETH LESTER BAXLEY,

Defendant.

______________________________/

ORDER ALLOWING THE GOVERNMENT TO

FILE SHEPARD-APPROVED DOCUMENTS

The issue is whether the defendant’s Georgia battery convictions are violent 

felonies within the meaning of the armed career criminal statute, 18 U.S.C. 

§ 924(e). This order gives the government an opportunity to present materials on 

this issue.

I

The defendant Kenneth Lester Baxley pleaded guilty to possessing a firearm 

as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The maximum sentence 

for violating § 922(g)(1) is ordinarily 10 years in prison. See id. § 924(a)(2). But if

the defendant is an armed career criminal—that is, if the defendant has three 
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Cases No. 5:03cr40-Rh/GRJ and 5:15cv132-RH/GRJ

previous convictions “for a violent felony or a serious drug offense, or both, 

committed on occasions different from one another”—the minimum sentence is 15 

years, and the maximum is life. See id. § 924(e).

Under the law of the circuit as in effect when Mr. Baxley was sentenced, he

was an armed career criminal. The minimum mandatory sentence was 15 years. 

Mr. Baxley was sentenced to 189 months.

II

Mr. Baxley has filed a motion under 28 U.S.C. § 2255 for relief from the

sentence based on Johnson v. United States, 135 S. Ct. 2551 (2015), which 

significantly narrowed the category of convictions qualifying as violent felonies. 

Johnson is retroactively applicable on collateral review. See Welch v. United 

States, 136 S. Ct. 1257 (2016). The § 2255 motion is before the court on the 

magistrate judge’s report and recommendation and Mr. Baxley’s objections. 

Mr. Baxley had numerous prior convictions for burglary in Florida. Each 

was a qualifying “violent felony” under the law of the circuit when Mr. Baxley was 

sentenced. But under the law as it has developed, those are not qualifying violent 

felonies. Mr. Baxley is now an armed career criminal only if his two prior Georgia

burglary convictions are violent felonies. 

At the time of those convictions, the relevant Georgia burglary statute 

applied to entering, without authority and with intent to commit a felony, any of 
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Cases No. 5:03cr40-Rh/GRJ and 5:15cv132-RH/GRJ

these: “(1) dwelling house, or (2) building, vehicle, railroad car, watercraft, or 

other such structure designed for use as a dwelling, or (3) any other building, 

railroad car, aircraft, or any room or any part thereof.” United States v. Gundy, 842 

F.3d 1156, 1165 (11th Cir. 2016). A conviction under this statute is a qualifying 

“violent felony” under § 924(e) if based on the first alternative—a dwelling 

house—and apparently if based on entering a building described in the second or 

third alternatives. But a conviction is not a qualifying violent felony if based on 

entering a vehicle, railroad car, watercraft, or other structure of that kind, even 

though designed for use as a dwelling. 

III

Under Gundy, the question whether Mr. Baxley’s Georgia burglary 

convictions were for entering a dwelling house or building, not just a vehicle or 

other such structure, is properly determined under the “modified categorical 

approach” outlined in Shepard v. United States, 544 U.S. 13, 26 (2005). See 

Gundy, 842 F.3d at 1168. This allows a court “to look to ‘a limited class of 

documents (for example, the indictment, jury instructions or plea agreement and 

colloquy) to determine what crime, with what elements, a defendant was convicted 

of.’ ” Id. (quoting Shepard, 544 U.S. at 26). These are sometimes referred to as 

“Shepard-approved documents.”
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Cases No. 5:03cr40-Rh/GRJ and 5:15cv132-RH/GRJ

This record includes no Shepard-approved documents establishing the basis 

of Mr. Baxley’s Georgia battery convictions. This order gives the government an 

opportunity to supply such documents, if they exist.

IV

In taking this course, I have not overlooked the government’s assertion, 

accepted in the report and recommendation, that the presentence report obviates 

any need for Shepard-approved documents. In describing the Georgia burglary 

convictions, the presentence report says Mr. Baxley “entered the dwellings of two 

different individuals.” ECF No. 35 at 16, ¶ 45. Mr. Baxley did not object to this 

statement. 

As an original matter, one might well question whether a statement of this 

kind in a presentence report should inform a later application of the modified 

categorical approach. What matters is the charge and resulting conviction, not the 

actual facts underlying the charge and conviction. This is the whole point of the 

categorical and modified-categorical approaches. The statement in Mr. Baxley’s 

presentence report was a statement of the underlying facts, not a statement of what 

Mr. Baxley was actually charged with. Moreover, Mr. Baxley would have had no 

reason to object at that time to any error in stating the facts, let alone to any 

inference that this statement of the facts accurately matched up with the charge. 
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Cases No. 5:03cr40-Rh/GRJ and 5:15cv132-RH/GRJ

Under the law of the circuit at that time, the presentence report’s statement of the 

facts underlying the Georgia convictions made no difference at all.

A sentencing court applying the modified categorical approach may rely on 

a statement of the underlying facts in a presentence report, in the absence of an 

objection. See United States v. Ramirez-Flores, 743 F.3d 816, 823 (11th Cir. 2014) 

(citing United States v. Bennett, 472 F.3d 825, 834 (11th Cir. 2006)) (“[W]e have 

held that a sentencing court applying the modified categorical approach may 

consider undisputed facts contained in the [presentence report].”). But it is far from 

clear that the same should be true on collateral review after a change in the law that 

first makes consequential the presentence report’s statement of the underlying 

facts. See In re Rogers, 825 F.3d 1335, 1339 n.7 (11th Cir. 2016) (noting that the 

“sentencing court” may rely on the presentence report’s undisputed facts, but that 

when deciding whether to authorize a successive § 2255 motion based on Johnson, 

“[w]e cannot simply look directly to [the presentence report] to determine whether, 

under the facts contained therein, the elements or enumerated crimes clause is 

applicable”). Those of us who frequently preside over sentencings would take no 

comfort in an approach that encouraged defendants to object to seemingly 

inconsequential statements in a presentence report just because some day the 

statements might matter. 
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Cases No. 5:03cr40-Rh/GRJ and 5:15cv132-RH/GRJ

In any event, the statement of facts in this presentence report does not speak 

to the critical issue: whether Mr. Baxley entered a house or other building (and so 

committed a “violent felony”) or entered only a vehicle or other such structure that 

was being used as a dwelling (and so did not commit a “violent felony”). Under the

Georgia statute, a “dwelling” could be either of these. The presentence report 

refers only to a “dwelling”; it does not refer to a “house” or “apartment” or use 

another term unambiguously denoting a building.

V

For these reasons, 

IT IS ORDERED:

1. The government may file Shepard-approved documents by July 13, 2017. 

The government also may file by that date any further memorandum, not 

exceeding 3,200 words, addressing this issue.

2. Mr. Baxley may file by August 3, 2017, a response to any materials filed 

by the government.

SO ORDERED on June 21, 2017.

s/Robert L. Hinkle

United States District Judge