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United States v. Span

United States Court of Appeals, Fourth Circuit

June 8, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GARY VINCENT SPAN, Defendant - Appellant

Argued April 8, 2015.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:12-cr-00234-MOC-DSC-1).

ARGUED:

Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.

Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

ON BRIEF:

Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior Circuit Judge. Senior Judge Davis wrote the opinion, in which Judge Gregory joined. Judge Motz wrote a dissenting opinion.

OPINION

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DAVIS, Senior Circuit Judge:

The district court sentenced Defendant Gary Span to a mandatory minimum fifteen-year term of imprisonment pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (" ACCA" ). Span appeals his sentence, arguing that the Shepard-approved documents upon which the district court relied for the ACCA enhancement are fatally ambiguous as to whether he committed his predicate armed robbery offenses on different occasions. In the alternative, Span argues that the Fifth and Sixth Amendments prohibit a district court from making the " different occasions" assessment. We agree that the patent internal inconsistencies infecting the underlying state court documents as to the dates when the robberies occurred means, and we so hold, that the Government has failed to prove by a preponderance of the evidence that Span's prior felonies were separate and distinct criminal episodes for purposes of the ACCA. Accordingly, we vacate the district court's application of the ACCA enhancement and remand for resentencing. We need not, and accordingly do not, resolve Span's constitutional claim.

I.

Gary Span pleaded guilty to an indictment charging him with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At Span's Rule 11 plea hearing, the Government asserted that the punishment for the offense was a prison term of ten years, a $250,000 fine, and a period of supervised release. The Government did not believe that Span was an armed career criminal under the ACCA, but stated that, should the United States Probation Office determine that he was, Span would be subject to a mandatory 15-year term of imprisonment. The draft presentence investigation report (" PSR" ) did not recommend the ACCA enhancement and the Government did not object to that determination. Lacking objections from the Government and Span, the final PSR issued on July 22, 2013.

The Government later filed an objection to the final PSR, arguing that Span was indeed an armed career criminal because his criminal record included four previous North Carolina convictions from October 2000 for robbery with a dangerous weapon, all of which were violent felonies that were committed on different occasions. The Government acknowledged, however, that the underlying state court documents evidencing his convictions listed contradictory offense dates. The Government argued that, no matter the inconsistency across the documents, the offenses were separate and distinct episodes because they involved different locations and different victims. As a result, the Government sought an increase in Span's base offense level from 17 to 33. After a three-point reduction for acceptance of responsibility, Span's base offense level reduced to 30.

The Probation Officer revised the PSR to reflect: (1) Span's armed career criminal status; (2) an increased base offense level and criminal history category (level 30 and category IV); and (3) a 15-year mandatory minimum sentence. With the revisions, Span faced an increase in the Guidelines range from between 30 and 37 months to 180 months.

Span objected to his designation as an armed career criminal and argued that the facts in the PSR could not support the ACCA enhancement because they were not alleged in the federal indictment, admitted as part of his guilty plea, or proven to a jury beyond a reasonable doubt. Span argued that, to allow an increased sentence above the statutory maximum on disputed facts beyond the mere existence of his prior convictions, would be a violation

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of his Fifth and Sixth Amendment rights.

At sentencing on October 21, 2013, Span renewed his objections to the revised PSR. The court permitted Span and the Government additional time to brief the issues, and the sentencing hearing was continued until July 16, 2014. At the continued hearing, the court heard argument from Span and the Government as to whether Span should be classified as an armed career criminal. Span maintained his argument that the state court indictments, plea transcript, and judgment were ambiguous as to when the robberies were actually committed, and that the court could not resolve the ambiguity by engaging in fact-finding and looking beyond those documents. The solution, Span asserted, was to view the ambiguity in his favor and decline to apply the ACCA enhancement.

The district court disagreed and relied on three of Span's robbery convictions to support the ACCA enhancement.[1] The court reasoned that the indictments and plea transcript listed consistent dates for the three convictions, while the judgment, which listed a different date, likely contained a transcription error.[2] The district court then reasoned that the robberies were separate criminal episodes. It noted that two of the three armed robberies occurred at the same location and involved the same corporate victim, but each offense involved a different individual victim who was put in danger. The district court found that Span had an opportunity after committing the first robbery to make a conscious decision to engage in the next one because, " after you've committed one, and you wait some days and you commit another one, you had a little time to think." J.A. 66.

The court concluded that " each of these offenses was a distinctly separate offense" and application of the ACCA enhancement was appropriate, resulting in a sentence of 180-months' imprisonment. J.A. 65.

Span has timely appealed and we possess jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

A defendant who has violated 18 U.S.C. § 922(g) qualifies for an enhanced sentence under the ACCA if the defendant has three previous convictions for a violent felony or serious drug offense, or both, and those offenses were " committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The Government bears the burden of proving the elements necessary to support the ACCA enhancement by a preponderance of the evidence. United States v. Archie, 771 F.3d 217, 223 (4th Cir. 2014).

The parties do not dispute that Span's predicate North Carolina convictions for robbery with a dangerous weapon are violent felonies under the ACCA. Our analysis thus centers on the district court's conclusion that the robbery offenses were committed on different occasions and the

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factual findings supporting that ...


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