Court improperly relied upon PreSentence Report in determining whether crimes were committed on diff
- Cory Morris
- Nov 19, 2014
- 3 min read
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.”
Issue: "in determining whether crimes were committed “on occasions different from one another,” is 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)?
Facts: The Defendant here was engaged in a string of armed robberies, that of bearing a blade and robbing his victims. The Defendant was charged for the three seperate incidents but counsel argued that some of these incidents were part of the same crime as opposed to three seperate crimes. [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.]
Here the Defendant argues that the Court impermissibly relied sources that is should not have relied upon in determining his sentence. (Shepard v. United States, 544 U.S. 13, 16 (2005))
Standard of Law: 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)).
The Second Circuit reviewed SCOTUS precedent in determining whether the Court could consider these other incidents. Dantzler argues that there are limitations on the sources of which a sentencing Court may refer to determine whether crimes were committed on occasions difference from one another. The Second Circuit reviews the District Court and found that it relied on sources other than those allowed by analogous cases: "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, 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."
Holding: 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.
Conclusion: The Court erred and committed plain error in its reliance on the Presentencing Report. In determining whether crimes were committed on occasions different from one another for ACCA purposes, the sentencing Court is limited to types of materials approved by Supreme Court precedent. Sentence Vacated and Remanded.
The case is United States v. Dantzler, 13-2930-cr (Nov. 14, 2014).
