UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4253

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DWANE EDWARD CHERRY,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR03-316-DKC)

Argued: May 26, 2006 Decided: August 9, 2006

Before NIEMEYER and TRAXLER, Circuit Judges, and Joseph R. GOODWIN,

United States District Judge for the Southern District of West

Virginia, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Greenbelt, Maryland, for Appellant. Barbara Suzanne Skalla,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,

Federal Public Defender, Denise Barrett, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Greenbelt, Maryland, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
3

PER CURIAM:

Dwane Cherry appeals from a 188-month sentence imposed on him

in the District of Maryland following a bench trial where he was

found guilty of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g), and possession of a controlled

substance, in violation of 21 U.S.C. § 844(a). Cherry contends the

sentencing court committed Sixth Amendment error by relying on

inconclusive facts about a disputed juvenile adjudication. Cherry

also contends the sentencing court erred in its statutory analysis

of the Armed Career Criminal Act (ACCA) and by giving the U.S.

Sentencing Guidelines mandatory effect. We find the court

erroneously relied on disputed facts to enhance Cherry’s sentence

and thus committed Sixth Amendment error. We therefore vacate

Cherry’s sentence and remand for further proceedings.

I.

On December 18, 2003, the district court found Cherry guilty

of (1) being a felon in possession of a handgun and (2) possessing

a controlled substance. The court subsequently applied an ACCA

sentence enhancement pursuant to 18 U.S.C. § 924(e). Pursuant to

the ACCA, a defendant convicted under § 922(g) who has three

previous convictions for violent felonies or serious drug offenses

is considered an Armed Career Criminal and is subject to enhanced

penalties. 
4

The presentence report stated that Cherry was an Armed Career

Criminal because of a 1991 conviction for distribution of cocaine,

a 1991 conviction for conspiracy to commit robbery with a deadly

weapon, and a 1985 juvenile adjudication for attempted murder and

use of a handgun. Cherry disputes the sentencing court’s findings

related to the 1985 juvenile adjudication. 

A juvenile adjudication satisfies the ACCA’s "violent felony"

standard if it involves "the use or carrying of a firearm, knife,

or destructive device" and involves force, a threat of force, or a

potential risk of physical injury to another. 18 U.S.C. §

924(e)(2)(B) (2000). The district court examined the following

documents to determine whether Cherry’s juvenile adjudication

qualifies as a predicate offense: (1) a Maryland juvenile docket

sheet stating Cherry was "involved" in attempted murder and use of

a handgun; (2) a Maryland adult court indictment charging eleven

criminal counts against Cherry and Tyrone A. Davis; (3) a statement

of charges filed against Davis; (4) an application for a statement

of charges against Davis; (5) and Davis’s police report. Relying

on those documents, the court found that Cherry was indicted with

Davis for an attempted murder involving the use of a handgun and

that this incident served as the basis of the juvenile

adjudication. The court accordingly held that Cherry was an Armed

Career Criminal under § 924(e), which enhanced Cherry’s guideline
5

range from 92-115 months to 188-235 months. The court imposed a

sentence of 188 months.

II.

We resolve Cherry’s appeal based on his Sixth Amendment claim.

In the court below, Cherry challenged the determination that he was

an Armed Career Criminal. He failed, however, to raise a Sixth

Amendment challenge. Cherry’s claim that the district court

violated his Sixth Amendment rights is therefore reviewed for plain

error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

To demonstrate plain error, Cherry must prove that: (1) error

occurred, (2) it was plain, and (3) it affected his substantial

rights. Id. at 547–48. If Cherry establishes these requirements,

the court’s "discretion is appropriately exercised only [if]

failure to do so would result in a miscarriage of justice . . . ."

Id. at 555.

III.

In Taylor v. United States, 495 U.S. 575 (1990), the Supreme

Court considered whether a sentencing court could consider facts

beyond statutory definitions when applying a § 924 enhancement

after a jury trial. The Court explained that a sentencing court

must use a categorical approach when applying § 924 enhancements,

which "generally requires the trial court to look only to the fact
6

of conviction and the statutory definition of the prior offense."

Id. at 602. The Court held, however, that sentencing courts may

look beyond the statutory definition in a narrow range of cases and

consider charging papers and jury instructions. Id. 

In Shepard v. United States, 544 U.S. 13 (2005), the Court

examined the breadth of Taylor. Similar to Cherry, Shepard pleaded

guilty to being a felon in possession of a handgun under §

922(g)(1), and the government sought to enhance his sentence under

the ACCA. The government asserted that Shepard’s prior generic

burglary conviction constituted a "violent felony" and thus served

as a predicate offense. Id. at 17-18. The government urged the

district court to consider police reports and complaint

applications as proof of the character of Shepard’s burglary

conviction. Id. at 17. 

The Court explained that its "pragmatic conclusion" in Taylor

about the manner in which sentencing courts should undertake

evidentiary inquiries into the factual basis of prior convictions

did not preclude the use of "adequate judicial record evidence."

Id. at 20. The Court cautioned, however, that inquiries beyond

statutes and charging documents "must be narrowly restricted to

implement the object of the statute and avoid evidentiary

disputes." Id. at 24 n.4 (citing Taylor, 495 U.S. at 602). The

Court held that sentencing courts are "generally limited to

examining the statutory definition, charging document, written plea
1We found in United States v. Simms, 441 F.3d 313, 317 (4th

Cir. 2006), however, that a sentencing court can properly consider

an application for a statement of charges that has been "expressly

incorporated" into a charging document.

7

agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented." Id.

at 16. Because police reports and complaint applications generally

are not "conclusive records made or used in adjudicating guilt,"

the Court found that sentencing courts cannot rely on those

documents to enhance sentences.1 Id. at 16. 

 In United States v. Washington, 404 F.3d 834, 840 (4th Cir.

2005), we interpreted Taylor and Shepard as holding that a

sentencing court considering a sentence enhancement "cannot

consider items from the record of a prior conviction that were not

conclusively validated in the earlier proceeding." 

We have not previously examined whether docket sheets in

general rise to the level of documents "conclusively validated" in

prior proceedings. Other circuits, however, have examined the

issue and found that clerical documents such as docket sheets are

unreliable and cannot be used for sentence enhancement. See United

States v. Gutierrez-Ramirez, 405 F.3d 352, 357–58 (5th Cir. 2005)

(finding a sentencing court could not rely on an abstract of

judgment—a clerical document containing a summary of court

proceedings—to determine whether a prior conviction qualifies to

enhance a sentence); United States v. Navidad-Marcos, 367 F.3d 903,
8

908–09 (9th Cir. 2004) (holding an abstract of judgment did not

"unequivocally" establish that a defendant entered a guilty plea);

see also United States. v. Price, 409 F.3d 436, 445 (D.C. Cir.

2005) (explaining that a docket sheet is not a reliable source of

information). Nonetheless, this case does not require us to

address the reliability of docket sheets in general because even if

Cherry’s docket sheet is considered, there is insufficient evidence

to establish that he committed a "violent felony" as defined in the

ACCA.

IV.

 We first examine the docket sheet itself. The only reference

to the contested charges on the docket sheet is found in a March 8,

1985 entry stating "Find – Involved Ct. 1 – Attempted Murder; Count

13 Use of handgun." J.A. 332. This entry fails to explain how, or

if, the attempted murder and use of a handgun charges are related.

Absent a link between the disputed charges on the face of the

docket sheet, we cannot infer that Cherry used a handgun while

attempting murder.

The government contends the entries on the docket sheet should

be considered with documents from the adult criminal proceedings

brought against Cherry and Davis. The government argues that these

documents sufficiently link the disputed charges when considered

together. 
9

As Cherry argues, however, the adult court documents and the

juvenile docket sheet are inconsistent and cannot be linked. The

most obvious inconsistency is that the adult court indictment

contains only 11 counts, while the juvenile docket sheet lists

Cherry’s "use of a handgun" charge as Count 13. Further, the

juvenile docket sheet does not indicate that Cherry’s juvenile

proceeding was transferred from an adult criminal court or, for

that matter, that it was in any way related to the charges alleged

in the adult court indictment. 

Based on the scant record of the juvenile proceedings provided

by the government and the inconsistencies between the docket sheet

and the adult court documents, the district court could not

properly find that the events alleged in the adult court

proceedings were the same as the events that resulted in the

disputed juvenile charges. Accordingly, we find the district court

improperly relied on disputed facts, and therefore, committed Sixth

Amendment error. 

V.

We also find the imposition of Cherry’s sentence was plain

error under United States v. Booker, 543 U.S. 220 (2005), and

Shepard. To demonstrate plain error, Cherry must establish that:

(1) error occurred, (2) it was plain, and (3) it affected his

substantial rights. Hughes, 401 F.3d at 547–49. If Cherry
10

establishes these requirements, the court’s "discretion is

appropriately exercised only [if] failure to do so would result in

miscarriage of justice . . . ." Id. at 555. We find that error

occurred. In addition, even though Booker and Shepard were

rendered after Cherry was sentenced, the error was "plain" at the

time of our review. See Johnson v. United States, 520 U.S. 461,

468 (1997) (finding error plain "where the law at the time of trial

was settled and clearly contrary to the law at the time of

appeal"). We also find that the error affected Cherry’s

substantial rights because the court imposed a longer sentence than

the term of imprisonment the district court should have imposed had

the court considered only the facts found beyond a reasonable

doubt. See Hughes, 401 F.3d at 548. Finally, our discretion is

exercised appropriately because our failure to do so would result

in a miscarriage of justice. Accordingly, we find the sentencing

court’s imposition of an enhanced sentence was plain error.
2Because there is Sixth Amendment error that needs to be

corrected on remand, it is unnecessary to address Cherry’s

remaining claims that he was sentenced improperly under the

mandatory guideline scheme and that the district court erred in its

ACCA statutory analysis. See Hughes, 401 F.3d at 556 n.15.

Although the Sentencing Guidelines are no longer mandatory, Booker

makes clear that a sentencing court must still "consult [the]

Guidelines and take them into account when sentencing." 543 U.S.

at 264. On remand, the district court first should determine the

appropriate sentencing range under the Guidelines, including

whether Cherry is an Armed Career Criminal, making all appropriate

factual findings. Hughes, 401 F.3d at 546. The court should

consider this sentencing range along with other factors described

in 18 U.S.C. § 3553(a), and then impose a sentence. Id. The

sentence must be "within the statutorily prescribed range and . .

. reasonable." Id. at 547.

11

 We vacate Cherry’s sentence and remand for resentencing.2

VACATED AND REMANDED