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United States v. Dantzler



## In the

**United States Court of Appeals**

**For the Second Circuit**

________

A UGUST T ERM 2013

No. 13

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U NITED S TATES OF A MERICA

, Appellee,

v.

Z EPHANIAH D ANTZLER

, Defendant

‐ Appellant

,

________ Appeal from the United States District Court

for the Eastern District of New York.

No. 12 CR 568

‐ 1 (NGG)

― Nicholas G. Garaufis, Judge

.

________ S UBMITTED : J UNE 27, 2014

D ECIDED : N OVEMBER 14, 2014

________

Before: C ABRANES

, C ARNEY

, and D RONEY

, Circuit Judges

.

________ The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),

imposes a 15

‐ year mandatory minimum sentence on violators who

have three previous convictions for a violent felony or a serious

drug offense “committed on occasions different from one another.”

The question presented is whether, in determining whether crimes2 No. 13

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‐ cr

were committed “on occasions different from one another,” a court

at sentencing is limited to examining only materials approved by the

Supreme Court in Taylor v. United States

, 495 U.S. 575 (1990), and

Shepard v. United States

, 544 U.S. 13, 16 (2005).

We hold that, in determining whether crimes were committed

“on occasions different from one another” for purposes of applying

the ACCA, a court is limited to examining only materials approved

by the Supreme Court in Taylor and Shepard

. We also hold that a

court may not rely upon a Presentence Report (“PSR”) in

determining whether crimes were committed “on occasions different

from one another” for purposes of applying the ACCA, where the

relevant facts described in the PSR were not derived from sources

determined to be consistent with Taylor and Shepard

.

Accordingly, we VACATE the sentence of the United States

District Court for the Eastern District of New York (Nicholas G.

Garaufis, Judge ) and REMAND for resentencing in accordance with

this opinion.

________

D AVID A. L EWIS

, Federal Defenders of New York,

Inc., New York, NY, for Appellant Zephaniah

Dantzler

.

J O A NN M. N AVICKAS (Kevin M. Trowel, on the

brief ), Assistant United States Attorneys, for

Loretta E. Lynch, United States Attorney for the

Eastern District of New York, Brooklyn, NY, for

Appellee United States of America

.3 No. 13

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________

J OSÉ A. C ABRANES

, Circuit Judge :

The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),

imposes a 15

‐ year mandatory minimum sentence on violators who

have three previous convictions for a violent felony or a serious

drug offense “committed on occasions different from one another.”

The question presented is whether, in determining whether crimes

were committed “on occasions different from one another,” a court

at sentencing is limited to examining only materials approved by the

Supreme Court in Taylor v. United States

, 495 U.S. 575 (1990), and

Shepard v. United States

, 544 U.S. 13, 16 (2005).

We hold that, in determining whether crimes were committed

“on occasions different from one another” for purposes of applying

the ACCA, a court is limited to examining only materials approved

by the Supreme Court in Taylor and Shepard

. We also hold that a

court may not rely upon a Presentence Report (“PSR”) in

determining whether crimes were committed “on occasions different

from one another” for purposes of applying the ACCA, where the

relevant facts described in the PSR were not derived from sources

determined to be consistent with Taylor and Shepard

.

Accordingly, we VACATE the sentence of the District Court

and REMAND for resentencing in accordance with this opinion.4 No. 13

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BACKGROUND

Defendant

‐ appellant Zephaniah Dantzler (“Dantzler”) was

convicted, in the United States District Court for the Eastern District

of New York (Nicholas G. Garaufis, Judge ), upon his plea of guilty,

of one count of possession of a firearm as a felon in violation of 18

U.S.C. § 922(g)(1).

At Dantzler’s plea colloquy in the District Court, the

Government stated that it would seek to prove at trial that he had

been previously convicted of three violent felonies committed on

three different occasions, as required by the ACCA, 18 U.S.C.

§ 924(e), and Dantzler expressly waived the right to a jury trial on

the issue of his “prior felony convictions.” Appellant’s App. 33.

Section 924(e)(1) states, in relevant part, that “ [i]n the case of a

person who violates [the substantive provision] of this title and has

three previous convictions by any court

. . . for a violent felony or a

serious drug offense, or both, committed on occasions different from

one another, such person shall be fined under this title and

imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).

The PSR prepared for sentencing found that, in 2006, at the

age of 18, Dantzler had been convicted of three robberies that

rendered him an armed career criminal subject to a mandatory

minimum sentence of 15 years’ imprisonment pursuant to the

ACCA. The three predicate convictions described in the PSR were as

follows: (1) a conviction in the New York State Supreme Court in

Brooklyn for a robbery committed on February 18, 2006 in Brooklyn,5 No. 13

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at 11:00 a.m., in which Dantzler and a co

‐ defendant stole a debit card

from the victim using a box cutter; (2) a conviction in the New York

State Supreme Court in Manhattan for a robbery committed on the

subway in Manhattan on February 19, 2006, together with two co

‐

defendants, using a box cutter and a bladed knife; and (3) a

conviction in the New York State Supreme Court in Queens for a

robbery also committed on February 19, 2006, on the subway in

Queens, with two unnamed individuals, using a box cutter and a

bladed knife. Dantzler was arrested for the February 19, 2006

subway robbery that took place in Manhattan on the day it occurred.

While under pretrial detention at the correctional facility on Rikers

Island, New York, Dantzler was arrested on March 2, 2006 for the

February 19, 2006 robbery that took place in Queens. While still in

custody, he was arrested on August 17, 2006 for the February 18,

2006 robbery that took place in Brooklyn.

In a letter addressed to Judge Garaufis, dated July 16, 2013,

counsel for Dantzler objected to the PSR’s characterization of the

second and third offenses as crimes committed ”on occasions

different from one another,” and argued that the two February 19,

2006 robberies “represent a single criminal episode .” Appellant’s

App. 83 (emphasis supplied). The letter also provided the following

additional information, which was not included in the PSR, taken

from the New York criminal complaints, which were attached:

In Mr. Dantzler’s case, he was arrested on February 19,

2006 at 3:30 a.m. at the Manhattan City Hall subway

station for a robbery that took place on a number 66 No. 13

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subway train about 10 minutes earlier. While he was in

pretrial detention for that offense, he was arrested at

Rikers Island on March 2, 2006, for another robbery that

also took place on February 19, 2006, at 1:45 a.m. on an

eastbound number 7 train in Queens.

. . . Although the

offenses involved different victims, both robberies were

committed by Mr. Dantzler and the same two co

‐

defendants, both robberies took place in the New York

City subway system, and both robberies took place

approximately an hour and a half apart. As noted in the

Presentence Report, the modus operandi was the same for

both robberies. There also does not appear to have been

any interruption in the criminal activity the three

undertook for the night.

Appellant’s App. 83

‐ 84. The Government responded in a letter dated

July 23, 2013. Both letters relied upon the case of United States v.

Rideout

, 3 F.3d 32 (2d Cir. 1993). In Rideout

, we were faced with the

same question—whether two offenses, which formed two of the

three predicates required for consideration as an armed career

criminal under the ACCA, occurred on separate occasions. In that

case, we concluded that “ offenses committed against different

victims separated by at least twenty to thirty minutes and twelve to

thirteen miles qualify as offenses ‘committed on occasions different

from one another.’” Id

. at 35 (quoting the ACCA, § 924(e)).

At the sentencing hearing on July 25, 2013, Judge Garaufis, an

experienced and careful adjudicator, began by noting the materials

he reviewed for purposes of sentencing: the original PSR and two

addenda to the PSR, the second of which responded to Dantzler’s7 No. 13

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objections in his July 16, 2013 letter to Judge Garaufis and its three

attachments, one of which included the New York criminal

complaints sworn to by attesting police officers for the two February

19, 2006 subway robberies; a July 16, 2013 letter of the defense to the

probation officer objecting to the PSR and attaching the same New

York criminal complaints; and the Government’s July 23, 2013

response letter with three exhibits attached. Dantzler raised no

objection to the Court’s consideration of any of these materials.

During her statement at sentencing, Dantzler’s counsel reiterated

many of the facts contained in Dantzler’s sentencing submission.

Agreeing with the Government that Rideout was “on all fours”

with the facts before it, the District Court first held that, pursuant to

Rideout ’s teaching, Dantzler’s offenses were committed “on

occasions different from one another” such that the ACCA was

triggered. Appellant’s App. 44. The District Court then stated that

the applicable Sentencing Guidelines range for Dantzler’s offense

was 168 to 210 months, but was subject to the ACCA statutory

minimum of 180 months. The District Court then sentenced him,

principally, to 180 months’ imprisonment and 5 years of supervised

release. Had Dantzler not been subject to a Guidelines enhancement

as an armed career criminal under § 924(e), his total offense level

would have been 23, rather than 30 under the ACCA, see PSR ¶ 17,

which would have made the applicable sentencing range 92

‐ 115

months’ imprisonment.

This timely appeal followed.8 No. 13

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DISCUSSION

On appeal, Dantzler argues that, in determining whether

crimes were committed “on occasions different from one another”

for purposes of applying the ACCA, a court is limited to examining

only sources approved by the Supreme Court in Shepard v. United

States

, 544 U.S. 13, 16 (2005)—namely, the charging document,

written plea agreement, transcript of plea colloquy, or analogous

materials

. Because the District Court’s conclusion in this case rested

upon sources not allowable under Shepard

, and, Dantzler asserts,

without those inappropriate sources there was insufficient proof that

his convictions occurred on “occasions different from one another,”

he argues that his sentence should be vacated and the case

remanded for resentencing based solely upon Shepard

‐ approved

sources.

Dantzler concedes that he did not raise this claim in the

District Court, and accordingly, we review for plain error. “This

standard is met when ‘(1) there is an error; (2) the error is clear or

obvious, rather than subject to reasonable dispute; (3) the error

affected the appellant’s substantial rights, which in the ordinary case

means it affected the outcome of the district court proceedings; and

(4) the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Vilar

, 729 F.3d

62, 70 (2d Cir. 2013) (quoting United States v. Marcus

, 560 U.S. 258

(2010)).9 No. 13

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A.

Dantzler argues that two decisions of the Supreme Court

establish considerable restrictions on the materials that a sentencing

court may consider in determining whether three predicate offenses

under the ACCA were committed “on occasions different from one

another.” In Taylor v. United States

, 495 U.S. 575, 577

‐ 79 (1990), the

defendant challenged the sentencing court’s determination that two

of his predicate offenses for burglary under Missouri law constituted

“violent felonies” for purposes of the ACCA. Taylor argued that he

would have committed a “violent felony” for purposes of the ACCA

only if he had committed “generic burglary” of a building or

dwelling. The Missouri statute, however, criminalized a significantly

broader range of activity, including the “non

‐ generic” burglarizing

of boats, tents, and other non

‐ buildings. Id

. at 599.

The question before the Supreme Court was “whether the

sentencing court in applying § 924(e) must look only to the statutory

definitions of the prior offenses, or whether the court may consider

other evidence concerning the defendant’s prior crimes.” Id. at 600.

The Court rejected an approach that required the sentencing court

“to engage in an elaborate factfinding process regarding the

defendant’s prior offenses,” id

. at 601, and instead held that, in

determining whether a prior conviction was for a “violent felony”

under the ACCA, a sentencing court should look only to: (1) the fact

of conviction; (2) the statutory definition of the prior offense; and, in

cases where the defendant was convicted by a jury, to (3) the10 No. 13

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criminal indictment or information, together with (4) the jury

instructions. Id

. at 602.

In a later case, Shepard v. United States

, the Supreme Court was

faced with the question of how to apply Taylor when the predicate

offenses for sentencing under the ACCA stemmed from a guilty plea

rather than a jury verdict. 544 U.S. 13, 19 (2005). The predicate

offenses at issue there, as in Taylor

, were for burglary in a state

where the burglary statute encompassed both “generic” and “non

‐

generic” burglary, and the sentencing court was required to

determine if Shepard’s burglary convictions were “violent

felon[ies]” under the ACCA. Id. at 15

‐ 16. In particular, the Shepard

Court addressed whether a sentencing court could look to police

reports or complaint applications in determining whether Shepard’s

guilty pleas for burglary had been based upon conduct that would

constitute “generic burglary,” in which case they could be properly

considered as ACCA predicate offenses. Id. at 16.

The Shepard Court first held, as a threshold matter, that “guilty

pleas may establish ACCA predicate offenses.” Id

. at 19. It then

concluded that “ a later court determining the character of an

admitted burglary [for purposes of sentencing under the ACCA] is

generally limited to examining 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.” Id. at 16. This was based upon the same “pragmatic”

concerns expressed in Taylor

, namely, a sentencing court’s need to

identify ACCA predicate offenses while “avoid[ing] subsequent11 No. 13

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evidentiary enquiries into the factual basis for the earlier

conviction.” Id. at 20.

Justice Souter, writing for a plurality of the Shepard Court, 1

also placed the decision within the line of cases preceding Shepard

that greatly diminished the scope of a court’s factfinding authority at

sentencing. Id

. at 24. He noted that the Court’s opinion in Taylor

“anticipated the very rule later imposed for the sake of preserving

the Sixth Amendment right, that any fact other than a prior

conviction sufficient to raise the limit of the possible federal sentence

must be found by a jury, in the absence of any waiver of rights by

the defendant.” Shepard

, 544 U.S. at 24 (referring to the rule

announced by Jones v. United States

, 526 U.S. 227 (1999), and Apprendi

v. New Jersey

, 530 U.S. 466 (2000)). The Court explicitly excluded

from this limitation the fact of a defendant’s prior conviction,

pursuant to its earlier decision in Almendarez

‐ Torres v. United States

,

523 U.S. 224 (1998). More recently, in Alleyne v. United States

, the

Court held that “[a]ny fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found

beyond a reasonable doubt.” 133 S. Ct. 2151, 2155 (2013).

1 Justice Souter authored the Court’s opinion with respect to its primary holding

that, for purposes of sentencing under the ACCA, a court is generally limited to

examining 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. However, Justice Souter’s discussion contextualizing the holding

within the Court’s recent sentencing jurisprudence, described above, was written only on

behalf of a plurality of the Court.12 No. 13

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B.

Dantzler’s primary argument on appeal is that the Shepard

limitations on sources to be consulted in determining the character

of an offense should also apply to district court inquiries into

whether crimes were committed “on occasions different from one

another.” We agree. Although Taylor and Shepard involved the

question of whether predicate offenses under the ACCA were

“violent felonies,” the reasoning underlying those decisions applies

with equal force to the analysis of whether the offenses were

committed “on occasions different from one another.” 18 U.S.C.

§ 924(e)(1).

First, as a matter of statutory interpretation, there is nothing in

the statute’s construction to suggest that Congress intended to limit

the “violent felony” inquiry for predicate offenses, but not to limit a

court’s inquiry with respect to whether offenses were committed on

“occasions different from one another.” Nor is there any indication

by the Court in Shepard that its conclusion was informed by a unique

characteristic of the “violent felony” analysis that would not apply

to the parallel “on occasions different from one another” inquiry.

Furthermore, the majority in Shepard reiterated its

commitment, first expressed in Taylor

, to “respect[ ] Congress’s

adoption of a categorical criterion that avoids subsequent

evidentiary enquiries into the factual basis for the earlier

conviction.” 544 U.S. at 20. The Court in Taylor explicitly determined

that, in enacting the ACCA, Congress had not meant “to adopt an13 No. 13

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approach that would require the sentencing court to engage in an

elaborate factfinding process regarding the defendant’s prior

offenses.” 495 U.S. at 601. Indeed, “the Shepard Court was apparently

concerned about the prospect of a sentencing court

making any factual finding not necessarily implied by the prior

conviction—irrespective of how clearly the factual finding was

established.” United States v. Rosa

, 507 F.3d 142, 153 (2d Cir. 2007).

The Shepard Court explicitly rejected the Government’s desire for a

“wider evidentiary cast” that would include police reports and

“documents submitted to lower courts even prior to charges.” 544

U.S. at 21.

The same concerns expressed by the Court in Shepard with

regard to “violent felonies” are implicated when the inquiry

concerns the separateness of the predicate crimes. Indeed, these

concerns are perhaps even more salient here because the facts relied

upon in determining whether offenses are committed on “different

occasions”—the date, time, victim identity, or location of the

offense—are rarely elements required for conviction, and hence,

might not be included in jury instructions or placed before the court

(much less admitted by a defendant) during a plea colloquy. Absent

reliance on Taylor

‐ or Shepard

‐ approved sources, such as a charging

paper, 2 jury instruction, or plea colloquy, a sentencing judge would

2 We note that, although Shepard used the words “charging documents” in listing

materials acceptable for a sentencing court to rely upon, 544 U.S. at 16, in this Circuit, a

document’s mere characterization as a “charging document” does not end the inquiry.

For example, where the predicate offense is a state offense to which the defendant

pleaded guilty, the defendant may not have specifically admitted all of the factual14 No. 13

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necessarily have to reconstruct the conduct underlying a conviction,

which might require in

‐ depth examination of the trial record for

each predicate offense, or a similarly broad evidentiary inquiry that

Taylor and Shepard have decidedly foreclosed. See, e.g

., Taylor

, 495

U.S. at 601.

Additionally, limiting the “on occasions different from one

another” analysis to Taylor and Shepard materials avoids potential

constitutional problems associated with affording broad factfinding

powers to a sentencing court in evaluating ACCA predicate

offenses. In Shepard

, the plurality noted:

[T]he dispute raises the concern underlying Jones and

Apprendi : the Sixth and Fourteenth Amendments

guarantee a jury standing between a defendant and the

power of the State, and they guarantee a jury’s finding of

any disputed fact essential to increase the ceiling of a

potential sentence.

. . . The rule of reading statutes to avoid

serious risks of unconstitutionality therefore counsels us to

limit the scope of judicial factfinding on the disputed

generic character of a prior plea, just as Taylor constrained

judicial findings about the generic implication of a jury’s

verdict.

544 U.S. at 25

‐ 26 (internal citation omitted).

allegations contained in a “charging document” such as a Bill of Particulars. See Rosa

, 507

F.3d at 155 (“ [W]e do not think that every document properly classified as a charging

document in a state case to which a defendant pleads guilty is ipso facto probative on the

issue of whether the defendant necessarily pleaded guilty to” the facts therein.)

.15 No. 13

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Indeed, our precedent makes clear that a sentencing judge’s

determination of whether ACCA predicate offenses were committed

“on occasions different from one another” is no different, as a

constitutional matter, from determining the fact of those convictions.

In United States v. Santiago

, the defendant argued that, pursuant to

Apprendi

, any fact relevant to imposition of the ACCA mandatory

minimum—namely, convictions for three violent felonies or drug

offenses committed on occasions different from one another—must

be charged in the indictment and found by a jury in order to be

considered by a sentencing court. 268 F.3d 151, 153 (2d Cir. 2001). He

also tried to distinguish the fact of conviction from the “different

occasions” analysis, arguing that, even if a sentencing judge could

permissibly determine the fact of conviction, a jury must decide the

“different occasions” question. We rejected that argument, holding

that “the separateness of the convictions is not a fact which is

different in kind from the types of facts already left to the sentencing

judge by Almendarez

‐ Torres and Apprendi

. . . . In short, we

read Apprendi as leaving to the judge, consistent with due process,

the task of finding not only the mere fact of previous convictions but

other related issues as well.” Id

. at 156.

In other words, we held in Santiago that the question of the

separateness of predicate offenses is intertwined with the fact of

conviction, and because a sentencing judge was authorized to find

the fact of conviction under Almendarez

‐ Torres and Apprendi

, he

could also find that such convictions were separate. Here, we take

the logical next step and hold that because, after Shepard

, the fact16 No. 13

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that a crime constituted a “violent felony” may be established only

through Shepard

‐ approved materials, so too the question of whether

the convictions were for three separate offenses may also be

answered by looking only to Shepard

‐ approved materials.

Accordingly, we hold that, in determining whether offenses

were committed “on occasions different from one another” for

purposes of sentencing under the ACCA, a sentencing court is

bound by the source limitations established by Taylor and Shepard

. 3

3 This holding is consistent with that of many of our sister Circuits. See, e.g.

, United States v. Boykin

, 669 F.3d 467, 470

‐ 71 (4th Cir. 2012) (finding plain error in the

district court’s “reli[ance] on the PSR’s factual details of Boykin’s 1980 shootings to make

the judicial finding that the two shootings occurred on separate occasions for ACCA

purposes” because “there is no indication in the PSR itself that the information therein

came from Shepard

‐ approved sources,” and “the factual details of the encounter are not

typically found in Shepard

‐ approved sources”); United States v. Sneed

, 600 F.3d 1326, 1332

(11th Cir. 2010) (“Based on Shepard, there is simply no distinction left between the scope

of permissible evidence that can be used to determine if the prior convictions are violent

felonies or serious drug offenses or if they were committed on different occasions under

§ 924(e)(1).”); United States v. Thomas

, 572 F.3d 945, 950 (D.C. Cir. 2009) (“[T]he district

court erred in concluding the Government presented insufficient evidence that the two

predicate drug offenses were ‘committed on occasions different from one another’

[because] [t]he two indictments offered in the second sentencing satisfied the evidentiary

requirements set out in Taylor and Shepard. ” (internal citation omitted)); United States v.

Fuller

, 453 F.3d 274, 279 (5th Cir. 2006) (“ To determine whether two offenses occurred on

different occasions, a court is permitted to examine only 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.” (internal quotation

marks omitted)); United States v. Ngo

, 406 F.3d 839, 843 (7th Cir. 2005) (“The finding that

[defendant’s] crimes were not consolidated falls within the narrow parameters permitted

by Shepard, i.e., those findings that can be made by resorting only to information with the

conclusive significance of a prior judicial record.” (internal quotation marks omitted));

United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005) (remanding for resentencing

because the court could not “determine whether the district court reviewed judicial

records consistent with Shepard ” in conducting the “occasions different” analysis).17 No. 13

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In so holding, we acknowledge that, for what is likely a

relatively small number of cases, such as the one before us, in which

the dates of the predicate offenses are not dispositive in determining

whether they were committed “on occasions different from one

another,” the sentencing court’s ability to impose the ACCA

mandatory minimum will depend upon whether the Taylor

‐ and

Shepard

‐ approved materials also contain other facts necessary for

such a determination. Here, where two of the predicate offenses

occurred on the same date, the District Judge was compelled to look

to facts such as the identities of the victims and the times and

locations of the offenses—which, under our clear precedent in

Rideout are precisely the factors rightly considered—in determining

whether the crimes occurred on “occasions different from one

another.” In such a case, it is only if these particular facts are

included in Taylor

‐ and Shepard

‐ approved materials that a sentencing

judge can make the requisite determination. And, as we have held

with regard to the determination of whether predicate offenses were

“violent felonies,” “if such [ Shepard

‐ approved] evidence is not

available, then the government has not met its burden” of

establishing the predicate crimes for the purpose of sentencing

under the ACCA. Rosa

, 507 F.3d at 153.

Our acknowledgment echoes the concern animating Justice

O’Connor’s dissent in Shepard

, in which she noted that “[a]

defendant’s sentence will now depend

. . . on whether those States’

record retention policies happen to preserve the musty written plea

agreements and recordings of ‘plea colloquies’ ancillary to long

‐ past18 No. 13

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convictions.” Shepard

, 544 U.S. at 36

‐ 37 (O’Connor, J., dissenting)

(alterations and internal quotation marks omitted). But we are

bound by the Court’s opinions in Taylor and Shepard regarding the

sources that may be consulted for purposes of sentencing under the

ACCA, even if it is unclear whether, in the narrow array of cases

that would require a more in

‐ depth factual inquiry, those sources

will contain the requisite information. 4

C.

Having established that, in determining whether offenses

were committed “on occasions different from one another” for

purposes of sentencing under the ACCA, a court may only utilize

4 For example, the Seventh Circuit faced such a circumstance in Kirkland v. United

States

, where the sentencing court consulted only Shepard

‐ approved materials—“ the

charging documents, the judgments, and the plea questionnaires”—to determine

whether a robbery and burglary that occurred on the same date were indeed separate

offenses for purposes of the ACCA. 687 F.3d 878, 881 (7th Cir. 2012). The Court of

Appeals noted generally that, “ in practice, this means that if the Shepard

‐ approved

documents before a district court are equivocal as to whether the offenses occurred on

the same occasion, the ACCA does not apply.” Id

. at 889. And indeed, the Court

concluded that the case before it was one of the “exceptional cases,” id. at 891, in which

“‘the factually sparse’ record sheds little light on whether the 1985 offenses occurred on

the same occasion” and therefore those convictions could not support a sentence

imposed under the ACCA, id

. at 887. See also Fuller

, 453 F.3d at 279

‐ 80 (vacating

defendant’s sentence with regard to the ACCA enhancement, for which two predicate

offenses occurred on the same day, because, “[b]ased on the indictments alone

. . . we

cannot determine as a matter of law that the burglaries occurred on different occasions”

and “the record does not contain the written plea agreement, the plea colloquy, or

other Shepard

‐ approved material that might resolve this question”).19 No. 13

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sources consistent with Taylor and Shepard

, we now turn to our

consideration of Dantzler’s particular sentence. 5

There does not appear to be any dispute that the District

Court relied upon materials that were not of the type specifically

condoned by Taylor or Shepard in making its determination that

Dantzler’s two February 19, 2006 subway robbery convictions were

committed “on occasions different from one another” for purposes

of the ACCA. As we held above, this reliance was error.

The error was also plain. The District Court underscored its

reliance on the PSR, which, when discussing Dantzler’s previous

offenses, explicitly drew upon “[c]ourt records,” “parole records,”

“local presentence report[s],” and “arrest report[s],” PSR ¶¶ 23

‐ 25. 6

The District Court also clearly relied upon Dantzler’s sentencing

5 The Government argues that Dantzler has waived the challenge we consider

here, as his counsel relied upon the PSR and criminal complaints in making its argument

to the District Court. However, this argument was not waived. The Supreme Court has

described waiver as the “intentional relinquishment or abandonment of a known right,”

United States v. Olano

, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst

, 304 U.S. 458, 464

(1938)), and courts applying waiver doctrine have focused on strategic, deliberate

decisions that litigants consciously make. Here, there is nothing in the record suggesting

that this was a strategic, calculated decision by Dantzler to introduce facts taken from the

complaints and PSR, and then when it backfired, to seek to “undo” that decision. The

applicability of Shepard was never mentioned in the District Court, nor was there any

discussion of proper and improper materials for the Court to consult; there is no

indication that either side invoked Shepard ’s implications in this context, and accordingly,

we cannot conclude that Dantzler waived this argument.

6 We have previously held that state PSRs are not necessarily consistent with

Taylor and Shepard

, and the relevant inquiry is whether the facts contained in the state

PSR were “explicitly adopted by the trial judge” or assented to by the defendant when

pleading guilty. Rosa

, 507 F.3d at 157 & n.13.20 No. 13

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submission, which both discussed and attached the New York

criminal complaints sworn to by attesting police officers, as did the

Government’s submission in response. Reference to these materials

was not specifically condoned by the Court in Taylor or Shepard

, and

there is no suggestion that these materials were themselves derived

from materials approved by Taylor or Shepard or that they are

analogs of the types of materials approved by Taylor or Shepard

.

Our conclusion that the District Court’s reliance on materials

not permitted by Taylor and Shepard was plain error is intentionally a

limited one. In so holding, we intimate no view as to the

applicability of Taylor and Shepard to cases in which a sentencing

court relied upon a PSR that was derived in whole, or in large part,

from Taylor

‐ or Shepard

‐ approved materials. For example, another

Court of Appeals has held that a “ trial judge was entitled to rely

upon the PSR” where it “b[ore] the earmarks of derivation

from Shepard

‐ approved sources such as the indictments and state

‐

court judgments from his prior convictions.” United States v.

Thompson

, 421 F.3d 278, 285 (4th Cir. 2005). 7

Relatedly, we recognize the possibility that some of the

materials provided as part of the parties’ sentencing submissions or

incorporated into the PSR, which referenced inter alia certain

unidentified “court records,” may in fact be considered analogous to

7 In Thompson

, the Fourth Circuit also appeared to rely in part on the fact that the

defendant lodged no objection to use of the PSR, see 421 F.3d at 285, but, as discussed

below, we accord less weight to that circumstance.21 No. 13

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those approved by Taylor and Shepard or may be otherwise

consistent with Taylor and Shepard

. At present, we are not in a

position to decide this issue definitively because neither party has

presented this argument on appeal, nor is the record sufficient for us

to determine whether the documents were permissible pursuant to

Taylor and Shepard

. 8 Accordingly, we leave this question to the

determination in the first instance by the District Court on remand,

and emphasize that this opinion should not be construed as

foreclosing an argument by the Government that some of the

materials already in the record are in fact consistent with the

limitations of Taylor and Shepard

. Any such determination must be

guided by the Supreme Court’s limitation of reference materials to

“the terms of the charging document, the terms of a plea agreement

or transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or

. . .

some comparable judicial record of this information,” Shepard

, 544

U.S. at 26—or, in other words, “conclusive records made or used in

adjudicating guilt,” id. at 21. By contrast, reliance on materials akin

to police reports and “documents submitted to lower courts even

prior to charges” has already been explicitly proscribed by the

Supreme Court. Id. at 21

‐ 23. Even though we do not reach the

question of whether all of the materials relied upon by the District

Court in this instance were impermissible, there is no doubt that at

8 As discussed above, the Government chose instead to present arguments that

Taylor and Shepard do not apply to the determination of whether predicate offenses were

committed on separate occasions, and that Dantzler waived this argument by providing

the District Court with some of these materials, both of which we have rejected here.22 No. 13

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least some of those materials fall outside the limited set sanctioned

by Taylor and Shepard

, and therefore the District Court’s use thereof

constitutes plain error.

This error also affected Dantzler’s substantial rights. The

District Court explicitly derived from these non

‐ Shepard approved

materials the facts it used to determine that the two February 19,

2006 robberies were committed “on occasions different from one

another,” for the purposes of the ACCA. Judge Garaufis stated at

sentencing, “[i]f [Dantzler] had gone from car to car of the No. 6

train and robbed a bunch of people, all right, that I could consider [ ]

one incident but he decided to travel on different subway lines at

different times the same night and that’s really the problem is that

[ Rideout ] seems to tie my hands.” Appellant’s App. 44

‐ 45. This

factual determination in turn triggered the enhancement in

Dantzler’s applicable Guidelines imprisonment range from 92

‐ 115

months to 168

‐ 210 months, as well as the 15

‐ year (180

‐ month)

mandatory minimum sentence under the ACCA. Judge Garaufis

acknowledged the severity of the enhanced ACCA sentence, noting

“I’m not enthusiastic about this construction, all right? Personally, in

the interest of justice. But

. . . I’m compelled to follow Rideout

. . . .”

Id

. at 46.

Finally, the error affects the fairness, integrity, or public

reputation of judicial proceedings within the meaning of the

Supreme Court’s plain error jurisprudence. As the Fourth Circuit

has held in a similar circumstance, “[s]uch improper factfinding as

occurred here strikes at the core of our judicial system’s protections23 No. 13

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for criminal defendants.” Boykin

, 669 F.3d at 472. Holding otherwise

would allow to stand a 15

‐ year sentence—predicated on error—that

far exceeds the 115

‐ month maximum sentence that would otherwise

have been recommended by the Guidelines.

The error is not mitigated, as the Government contends, by

Dantzler’s having invoked the very facts relied upon by the District

Court in defendant’s submission to the Court in advance of

sentencing. In United States v. Reyes

, the PSR identified the defendant

as a career offender under United States Sentencing Guidelines §

4B1.1 based upon its determination that he had several convictions

“involving a crime of violence and a controlled substance offense.”

691 F.3d 453, 455 (2d Cir. 2012). The defendant did not object to any

of the facts in the PSR, including its description of the conduct that

resulted in his conviction for one of the predicate offenses;

moreover, defense counsel in Reyes affirmatively represented at the

sentencing hearing that the defense had “no objections to the facts or

the Guidelines calculations” stated in the PSR. Id. at 456 (internal

alterations omitted). In the absence of any objection, Reyes was

sentenced in accordance with the enhancement for career offenders.

Id

.

On appeal in Reyes

, we were faced with the question of

whether “the district court was [ ] entitled to rely on the PSR’s

uncontested description of [defendant’s] pre

‐ arrest conduct that

resulted in his conviction for battery of a law enforcement officer to

determine whether the battery was a ‘crime of violence’” for

sentencing purposes. Id

. at 456. Relying on Shepard

, we held that “a24 No. 13

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sentencing court may not rely on a PSR’s description of a

defendant’s pre

‐ arrest conduct that resulted in a prior conviction to

determine that the prior offense constitutes a ‘crime of violence’

under U.S.S.G. § 4B1.2(a)(1)

, 9 even where the defendant does not

object to the PSR’s description,” and that doing so was plain error.

Id

. at 459 (emphasis supplied).

We are persuaded that a similar holding applies here, even

where Dantzler not only failed to object to the facts in the PSR, but

supplemented them by providing the New York criminal

complaints, and relied upon them in his sentencing argument. In

Reyes

, we reasoned that defendant’s failure to object did not cure the

Government’s failure to submit the proper evidence, nor did it

render the PSR’s description more reliable in establishing the

requisite ACCA predicate. Id. at 458

‐ 60. The same is true here. The

absence of an objection will not relieve the Government of its burden

of proving through Taylor

‐ and Shepard

‐ approved sources that the

ACCA enhancement applies.

Accordingly, because there is no suggestion that the materials

relied upon by the District Court at sentencing were of the type

approved by Taylor or Shepard

, it was plain error for the District

Court to have relied upon them in making its determination that

Dantzler’s two February 19, 2006 robbery convictions occurred “on

occasions different from one another,” and we are thus required to

9 Although Reyes involved an enhancement under the Sentencing Guidelines

rather than the ACCA, its reliance on Shepard

, Taylor

, and Rosa

, all ACCA cases, make it

applicable to the instant case.25 No. 13

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remand for resentencing. Upon remand, if the Government renews

its request to the District Court that it apply the mandatory

minimum sentence prescribed by the ACCA, it must submit

materials consistent with Taylor and Shepard to demonstrate that

Dantzler’s two robbery convictions were committed on separate

occasions.

CONCLUSION

To summarize, we hold that:

(1) In determining whether crimes were committed “on

occasions different from one another” for purposes of

applying the ACCA, a court is limited to examining only the

types of materials approved by the Supreme Court in Taylor v.

United States

, 495 U.S. 575, 577

‐ 79 (1990), and Shepard v. United

States

, 544 U.S. 13, 16 (2005).

(2) For cases in which the dates of the predicate offenses do not

conclusively support a determination that they were

committed “on occasions different from one another,” the

sentencing court’s ability to impose the ACCA mandatory

minimum will depend upon whether the Taylor

‐ and Shepard

‐

approved materials contain other facts necessary for such a

decision.

(3) In determining that ACCA predicate offenses were committed

on separate occasions, it is plain error for the sentencing court

to draw relevant facts from materials that were neither26 No. 13

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condoned by the Court in Taylor or Shepard nor determined to

be either derived from approved materials or analogs of

approved materials.

(4) Where the relevant facts described in a PSR were not derived

from sources consistent with Taylor and Shepard

, a sentencing

court may not rely upon the PSR in determining whether

crimes were committed “on occasions different from one

another,” even where a defendant does not object to the PSR’s

factual content about the ACCA predicate offenses, or relies

upon such facts in his submissions and argument to the

sentencing court.

For the reasons set out above, we VACATE the sentence and

REMAND to the District Court for resentencing in accordance with

this opinion.