# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 60877

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Darius D. Wright,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:19

- CR

- 94

- 2

Before **Jolly, Willett,** and **Engelhardt,** Circuit Judges

**. Per Curiam**  **:** * Darius D. Wright was arrested for being a felon in possession of a firearm after an officer discovered a shotgun in his car during a traffic stop. Wright filed a motion to suppress all evidence obtained during the traffic stop, arguing that the stop violat ed his Fourth Amendment rights. The district court denied that motion. Afterwards, Wright entered an

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 16, 2022

Lyle W. Cayce Clerk Case: 21-60877 Document: 00516433909 Page: 1 Date Filed: 08/16/2022No. 21

- 60877

2 unconditional guilty plea, reserving no issues to raise on appeal. At sentencing, the district court found that Wright qualified as a “armed career crimina l” within the meaning of the Armed C areer Criminal Act ( **ACCA** ) , meaning that Wright faced an imprisonment range of 15 years to life. The district court sentenced Wright to 204 months’ imprisonment, which was 16 months above the Guidelines range. On appeal, the parties raise three issues: (1) Whether the district court erred by denying Wright’s motion to suppress; (2) Whether the district court erred in finding that Wright was a career offender under **ACCA** ; and (3) Whether Wright’s above

- guidelines sentence wa s substantively unreasonable. The first issue is, as Wright concedes, waived. Wright entered a voluntary and unconditional guilty plea, which waive d “ all nonjurisdictional defects in the prior proceedings. ” United States v. Wise , 179 F.3d 184, 186 (5th Cir. 1999) (citing McMann v. Richardson , 397 U.S. 759, 766 (1970 ) and Busby v. Holman , 356 F.2d 75, 77 & n.3 (5th Cir. 1966) ). As for the second issue, the parties focus on whether the district court properly concluded that Wright had three or more convictions that occurred on “occasions different from one another,” as required by **ACCA**

. 18 U.S.C. § 924(e)(1). Wright says he didn’t because his two prior burglary convictions occurred on the same day , and that the **PSR** ’s statement that the second burglary occurred four days later is impossible because he was already in jail on that date

. Because the burglaries were committed on the sam e night with the same co

- defendant, and because the two properties were only .7 miles apart, Wright argues that the burglaries were not committed on different occasions, citing the Court’s recent decision in Wooden v. United States , 142 S. Ct. 1063 (2022)

. The Government responds that even if Wright is correct that the **PSR** contains a “scrivener’s error ” and the burglaries occurred on Case: 21-60877 Document: 00516433909 Page: 2 Date Filed: 08/16/2022No. 21

- 60877

3 the same day, the offenses still qualified as “ separate occasions ” as defined by Wooden

. Both parties overlook a more fundamental issue : T he district court relied on the **PSR**

— and only the **PSR**

— to find that Wright had the three requisite convictions. The Supreme Court held in Shepard v. United States , 142 S. Ct. 1063 (2022) , that district courts applying **ACCA** may only rely o n

“ the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” United States v. Fuller , 453 F.3d 274, 279 (5th Cir. 2006), abrogated on other grounds by Wooden , 142 S. Ct. 1063 ; see also United States v. Young , 809 F. App ’ x 203, 210 (5th Cir. 2020) (per curiam) (same). “ Thus, under Shepard , a district court is not permitted to rely on the **PSR** ’s characterization of a defendant’s prior o ffense for enhancement purposes.” United States v. Garza

- Lopez , 410 F.3d 268, 274 (5th Cir. 2005). We have examined the record, and nothing in the charging document nor the plea colloquy speak to this issue. Because no Shepard

- approved documents are conclusive as to whether the predicate **ACCA** offenses occurred on separate occasions, Wilson’ s sentence must be vacated. See Fuller , 453 F.3d
at 279

– 80 (vacating the defendant’s conviction because the Shepard

approved materials were inconclusive); Young , 809 F. App ’ x at 210 , 213 (same). 1

* * * Wright’s conviction is **AFFIRMED** . We **VACATE** the sentence and **REMAND** for resentencing.

1 Because we hold that the Government failed to proffer cognizable evidence proving that Wilson’s prior convictions occurred on separate occasions, we need n ot reach the issue of whether the above

- guidelines sentence was substantively unreasonable. Case: 21-60877 Document: 00516433909 Page: 3 Date Filed: 08/16/2022