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Posted: November 28, 2014

Court Erred in Relying on Presentencing Report in Determining Whether Defendant Was Subject to Armed Career Criminal Act

On November 14, 2014, the Second Circuit issued a decision in United States v. Dantzler, 13-2930-CR, holding that “a court may not rely upon a Presentence Report in determining whether crimes were committed “on occasions different from one another” for purposes of applying the Armed Career Criminal Act (“ACCA”), where the relevant facts described in the PSR were not derived from sources determined to be consistent with” the Supreme court’s decision in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13, 16 (2005). 

In Dantzler, the EDNY sentenced the defendant to a 15-year mandatory minimum sentence under the ACCA because the defendant’s Presentence Report indicated that he had “three previous convictions for a violent felony or a serious drug offense ‘committed on occasions different from one another.'” The defendant argued on appeal that under the Supreme Court’s decisions in Taylor and Shepard, the EDNY was not allowed to rely on the Presentence Report. The Second Circuit agreed and reversed, explaining:

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.”

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.
  
. . .

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, jury instruction, or plea colloquy, a sentencing judge would 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.

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. . . . .

[W]e 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 fact 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.

(Internal quotations and citations omitted).

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