Wednesday, September 20, 2006

Court Rejects Fact- and Apprendi-Based Challenges to ACCA Enhancement

United States v. White, No. 05-31048 (5th Cir. Sept. 19, 2006) (per curiam)

White pled guilty to being a felon in possession of a firearm. He had a prior conviction for aggravated battery, and two prior convictions for disributing drugs. The district court found him to be an armed career criminal on the basis of those prior convictions, and imposed a statutory mandatory minimum sentence of 180 months.

White challenged the application of the ACCA enhancement on two grounds: he argued 1) that the two drug convictions should be treated as a single offense, not as two separate offenses, and 2) that application of the ACCA enhancement based on facts that he did not admit violated his Sixth Amendment rights as outlined in the Apprendi line of cases (including Shepard). The court rejected both arguments.

As to the factual question of the separateness of the two drug convictions,
Relying on the assertions of counsel, White claims that on March 12, 1988, a confidential informant approached him and requested to purchase cocaine and marijuana. White immediately supplied the informant with marijuana, but did not have cocaine on his person at time. Thus, he arranged to sell cocaine to the informant five days later, and he returned on March 17 to complete the cocaine transaction. White’s two offenses were charged separately, but tried together.

Slip op. at 4. The court faulted White for not actually offering any evidence to support his counsel's assertions, but it held that even if White's version of the two transactions was accurate, the two offenses were separate. "Ultimately, the critical inquiry when deciding whether separate offenses occurred on ‘occasions different from one another’ for purposes of ACCA is whether the offenses occurred sequentially. This court has long held that crimes that are distinct in time are properly treated as separate criminal transactions for the purposes of § 924(e)." Slip op. at 4-5 (internal quotation marks, citations, and alteration omitted). The court rejected White's argument that, because he agreed to sell the cocaine at the time that he actually sold the marijuana, the sales constituted one offense: "In the instant case, long after he completed his sale of marijuana, White committed the new offense of selling cocaine. White had five days to decide against selling cocaine, but he elected to commit an additional crime."

As for the Sixth Amendment argument, the court essentially held that Shepard did not limit the scope of the Apprendi prior conviction exception, agreeing with the Fourth Circuit that "'[t]he data necessary to determine the ‘separateness’ of [a defendant’s crimes] is [sic] inherent in the fact of prior convictions,' and do not have to be put before a jury." Slip op. at 7 (quoting United States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005)). (Note that the court treats this issue, which is really the most important one in the case, rather perfunctorily. The scope of Apprendi's prior conviction exception in the wake of Shepard is an issue that counsel should continue to litigate and preserve for a possible SCOTUS resolution.)

Finally, the court held that the district court did not run afoul of Shepard in making the findings necessary for the ACCA enhancement:
White did not object to the accuracy of the facts in the PSR; in fact, through his counsel at his sentencing hearing, he admitted that he had sold drugs on March 12 and March 17, 1988, as part of his argument that he only committed a single “serious drug offense,” supra. This court has recently held that “the district court can use all facts admitted by the defendant” in ascertaining the basis of a prior conviction for enhancement purposes. United States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006). Moreover, in addition to the PSR and White’s admissions, the Government also provided the court with Shepard-approved court documents, including the charging instruments used against White. White did not object to them. Thus, the court had ample bases to determine that White’s drug offenses were separate; it did not run afoul of Shepard in finding that White qualified for a sentence enhancement.

Slip op. at 7-8.


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