Opinion
CAUSE NO. 3:20-CR-113 DRL
2023-01-05
UNITED STATES of America, Plaintiff, v. Michael WILLIAMS, Defendant.
Molly E. Donnelly, Frank E. Schaffer, Government Attorneys, U.S. Attorney's Office, South Bend, IN, for Plaintiff. Scott J. Frankel, Public Defender, Federal Community Defenders Inc., South Bend, IN, for Defendant.
Molly E. Donnelly, Frank E. Schaffer, Government Attorneys, U.S. Attorney's Office, South Bend, IN, for Plaintiff. Scott J. Frankel, Public Defender, Federal Community Defenders Inc., South Bend, IN, for Defendant.
OPINION AND ORDER
Damon R. Leichty, Judge
Michael Williams received five firearms and cash in exchange for a Suzuki motorcycle. One firearm was later used by a gang member to commit murder. Mr. Williams pleaded guilty to a one-count indictment for unlawfully possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1).
At his request, his sentence pended the ruling in Wooden v. United States, 595 U.S. 360, 142 S. Ct. 1063, 212 L.Ed.2d 187 (2022). The presentence report thereafter classified him as an armed career criminal. With Wooden in hand, he objected. His classification under the Armed Career Criminal Act (ACCA) would alter his statutory maximum sentence of ten years to a minimum fifteen years. This enhanced sentence applies when a person violates § 922(g) and has three previous convictions for "a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1).
Under the Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313 (2022), the increased statutory maximum within 18 U.S.C. § 924(a)(8) for § 922(g)(1) crimes, effective June 25, 2022, would not apply to Mr. Williams. See U.S. Const. art. 1, § 9, cl. 3; Peugh v. United States, 569 U.S. 530, 538-39, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013); Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Thus, he remained subject to a ten-year maximum sentence, unless ACCA applied.
"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The "very existence of a conviction" poses a question of fact, though this fact proves an "unusual" and "arguable" exception to this Sixth Amendment rule that otherwise requires a jury to find a fact that increases a crime's penalty beyond its statutory maximum. Pereida v. Wilkinson, — U.S. —, 141 S. Ct. 754, 765, 209 L.Ed.2d 47 (2021). Absent a divisible statute, the court may identify predicate offenses through the categorical approach—examining the offense's elements alone to determine whether an offense qualifies under ACCA. See Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
Mr. Williams concedes he has three qualifying convictions for burglary under Indiana law. See United States v. Perry, 862 F.3d 620, 624 (7th Cir. 2017). He challenges only whether these predicate offenses occurred on different occasions. See 18 U.S.C. § 924(e)(1). He says the court cannot make this determination—only a jury can—because it involves factfinding that takes his maximum sentence higher. Mr. Williams calls any factfinding by the court about the means or manner of how the prior crimes were committed an Apprendi problem. Today the government pivots from its original position to join in the request for the court to convene a sentencing jury.
To date, ACCA has been viewed as a sentencing enhancement built on recidivist concerns. See McNeill v. United States, 563 U.S. 816, 819, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011); Almendarez-Torres v. United States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). A defendant's recidivism is a sentencing factor that may be found by the sentencing judge, not an element of an offense that must be found by a jury beyond a reasonable doubt, even when recidivism increases the statutory maximum penalty. See Almendarez-Torres, 523 U.S. at 239, 243-46, 118 S.Ct. 1219. As one example of this principle, the Supreme Court has cited ACCA in saying that the prior commission of a serious crime is "as typical a sentencing factor as one might imagine." Id. at 230, 118 S.Ct. 1219.
Say what one might, given the ongoing discourse on this subject, but Almendarez-Torres has ostensibly held fast though the Supreme Court in later decisions "has recognized a defendant's right to a jury finding on other factors that expose the defendant to a longer sentence." United States v. Elliott, 703 F.3d 378, 381 (7th Cir. 2012); cf. Mathis, 579 U.S. at 511, 136 S.Ct. 2243 ("only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction"); Descamps v. United States, 570 U.S. 254, 259, 277-78, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (reversing judge-made, non-elemental finding about the nature of the offense); see also Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (reaffirming Apprendi).
Mr. Williams recognizes that his argument erects a challenge to Almendarez-Torres. He says Descamps and Mathis confined Almendarez-Torres to the fact of a prior conviction as opposed to the nature or sequence of a defendant's prior crimes. His argument would seem to bear some intellectual weight. See, e.g., United States v. Perry, 908 F.3d 1126, 1134-36 (8th Cir. 2018) (Stras, J., concurring).
For instance, Descamps, 570 U.S. at 259, 277-78, 133 S.Ct. 2276, reversed an ACCA enhancement that was based on a judge-made, non-elemental finding that the defendant's prior conviction involved breaking and entering (an ACCA predicate) rather than shoplifting (which was not). The Supreme Court viewed this inquiry into which offense the defendant committed as an impermissible quest for facts "superfluous" to the conviction. Id. at 270, 133 S.Ct. 2276. "The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt." Id. at 269, 133 S.Ct. 2276.
Similarly, Mathis, 579 U.S. at 507, 136 S.Ct. 2243, involved an ACCA enhancement based on a prior conviction under a statute that identified alternative means of committing a single element—breaking into a "building, structure, [or] land, water, or air vehicle"—some of which would qualify as an ACCA predicate offense and some of which would not. The Supreme Court held that a sentencing judge could not consider documents—what have become known as Shepard documents, see Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)—to determine the means by which the defendant committed the offense because "alternative factual scenarios remain just that—and so remain off-limits to judges imposing ACCA enhancements." Mathis, 579 U.S. at 512, 136 S.Ct. 2243. "That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense." Id. at 511, 136 S.Ct. 2243.
A guidepost thus has been that a sentencing court may find the fact of a prior conviction, but not a fact about a prior conviction. See, e.g., Descamps, 570 U.S. at 270, 133 S.Ct. 2276. Enter then Wooden—a case now focused on the "different occasions" language within ACCA. Wooden favored a "multi-factored" analysis, with a "range of circumstances" that might be "relevant to identifying episodes of criminal activity," including the timing of offenses, the proximity of location, and the character and relationship of the offenses. Wooden, 142 S. Ct. at 1070-71. Employing this analysis, the Supreme Court held that a defendant who had burglarized ten storage units in one building on a single night had committed burglary on one occasion, not on different occasions under ACCA. See id. at 1074; 18 U.S.C. § 924(e)(1).
Given Wooden, the court declines to convene a jury for several reasons. First, no matter whether the parties agree to a jury at sentencing, and no matter the court's views on the Sixth Amendment, the court remains duty bound to the law as announced in this circuit. The law says the court may decide this issue of different occasions, see Elliott, 703 F.3d at 382, and this view has been reaffirmed since Descamps and Mathis, see United States v. Haney, 840 F.3d 472, 476 (7th Cir. 2016); see also Wooden, 142 S. Ct. at 1071; United States v. Ramsey, 840 F. Appx. 23, 24 (7th Cir. 2021) (citing Elliott); United States v. Anderson, 766 F. Appx. 377, 379-80 (7th Cir. 2019) (citing Elliott). Unless this changes, the court stays the course.
At least two cases currently pend before the court of appeals that address this same issue, see United States v. Crockett, No. 20-3025 (7th Cir. 2020) (oral argument set for January 25, 2023); United States v. Hatley, No. 21-2534 (7th Cir. 2022) (oral argument held September 13, 2022), though for certain reasons unique to the plea agreement or factual record there, these appeals may or may not wrestle the constitutional question reserved by Wooden. The court of appeals recently decided United States v. Rodriguez, 2022 WL 17883607, 2-3, 2022 U.S. App. LEXIS 35558, 5-6 (7th Cir. Dec. 23, 2022), and held that the lack of a jury for an ACCA enhancement was harmless because, even if a jury were constitutionally required, the record would necessarily convince a reasonable jury that the defendant committed his prior offenses on different occasions.
Second, no one yet has held that Elliott's underpinning has been undone. Elliott said this court is "empowered to determine whether [a defendant] committed the [predicate offenses] on occasions different from another," Elliott, 703 F.3d at 381, relying on Almendarez-Torres, 523 U.S. at 239, 243-46, 118 S.Ct. 1219. Elliott forecasted that, "unless and until the Supreme Court overrules Almendarez-Torres or confines its holding solely to the fact of a prior conviction, as opposed to the nature [or] sequence of a defendant's prior crimes, a district judge properly may make the findings required by the ACCA." Elliott, 703 F.3d at 383. It isn't this court's province to declare when a Supreme Court case has overruled another, or that one has overruled the court of appeals—that's above its pay grade.
Third, at least to date, nothing seems to have overruled or confined Almendarez-Torres expressly. Instead, courts continue to give it a nod or call for its reconsideration—certain justices as well—suggesting that they view the subject as still very much alive. See, e.g., United States v. Haymond, — U.S. —, 139 S. Ct. 2369, 2377 n.3, 204 L.Ed.2d 897 (2019) (Gorsuch, J., plurality) (noting two exceptions to Apprendi, including Almendarez-Torres); Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254 (recognizing Almendarez-Torres and considering whether case fell within the "conclusive significance of a prior judicial record"); Mathis, 579 U.S. at 522, 136 S.Ct. 2243 (Thomas, J., concurring); United States v. Morris, 293 F.3d 1010, 1012 (7th Cir. 2002) (noting that Apprendi suggested that Almendarez-Torres might not survive Apprendi's logic but explicitly carving out exception for recidivism).
Fourth, that Wooden declined to address the Sixth Amendment question raised today means that no intervening higher authority has abrogated this circuit's precedent. See Wooden, 142 S. Ct. at 1068 n.3. To be sure, the court sees the tension, but it won't read the tea leaves here to find implicit what has not been made explicit at this point. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Levine v. Heffernan, 864 F.2d 457, 461 (7th Cir. 1988); Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 741 (7th Cir. 1986); see, e.g., United States v. Sperberg, 432 F.3d 706, 707 (7th Cir. 2005) ("must follow Almendarez-Torres unless the Justices direct otherwise").
Fifth, all courts of appeal that have addressed this question since Wooden have held fast to the view that sentencing courts may find facts to determine whether offenses occurred on different occasions. See United States v. Reed, 39 F.4th 1285, 1294-96 (10th Cir. 2022); United States v. Belcher, 40 F.4th 430, 432 (6th Cir. 2022); United States v. Barrera, 2022 WL 1239052, 2, 2022 U.S. App. LEXIS 11418, 5 (9th Cir. Apr. 27, 2022); see also United States v. Moon, 31 F.4th 259, 264 (4th Cir. 2022) (noting post-Wooden that requiring a § 924(e) enhancement to be proven to a jury has been "uniformly rejected" and that the Supreme Court has repeatedly called § 924(e) an enhancement rather than an offense); cf. United States v. Stowell, 40 F.4th 882, 885-86 (8th Cir. 2022) (same view), vacated and reh'g granted en banc, 2022 WL 16942355, 2022 U.S. App. LEXIS 31598 (8th Cir. Nov. 15, 2022). Again, the Supreme Court might change this view, but that isn't the world today.
Sixth, though mindful of the maxim "do as one says, not as one does," the court adheres to not just what the Supreme Court has said but what it has done. The high court unquestionably reserved the Sixth Amendment question, see Wooden, 142 S. Ct. at 1068 n.3 (Kagan, J., majority); see also id. at 1087 n.12 (Gorsuch, J., concurring), but it engaged in the very factfinding that the defendant says this court cannot do today, see id. at 1071. Rather than call the separate occasion question multifactored in Wooden and then remand to the district court to apply that standard—leaving open to the lower court whether it would procedurally do so through its own factfinding or with a jury—the Supreme Court instead applied the standard on appeal. That is, a court found the facts on ACCA's question of different occasions, not a jury. For instance, the Wooden majority found that the crimes "all took place at one location," that each offense "was essentially identical," that they "were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means." Id. at 1071. This analysis covered the crime's features and means. See id. And the majority conducted this analysis by considering more than just the elements of the offense, but by also examining the indictment and statements at the state court plea hearing. See id. at 1067. The court today is doing nothing more than what the Supreme Court has done.
This isn't the first time the Supreme Court has approved a court finding facts to determine whether criminal offenses arise from the same continuous and uninterrupted course of conduct. See Oregon v. Ice, 555 U.S. 160, 165, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). Sometimes called a second exception to Apprendi, see Haymond, 139 S. Ct. at 2377 n.3 (plurality), and though Almendarez-Torres often receives more attention, Ice permitted a court (there a state judge) to find that two burglaries were "separate incidents" and that each sexual assault charge, based on several touchings of the victim's genitals, displayed a "willingness to commit more than one . . . offense" to order consecutive rather than concurrent sentences. Ice, 555 U.S. at 166, 129 S.Ct. 711. In reversing the Oregon Supreme Court, which applied Apprendi, the Supreme Court noted that Apprendi had been applied to decisions involving sentencing for a discrete crime, not as here for "multiple offenses different in character or committed at different times" Id. at 167, 129 S.Ct. 711. The Supreme Court declined to extend Apprendi "to the imposition of sentences for discrete crimes." Id. at 168, 129 S.Ct. 711. Of course to note, Ice involved a decision between consecutive and concurrent sentences, not an increase to a statutory maximum sentence.
That said, the court turns to the facts here. Though charged in the same information and convicted by plea the same day, Mr. Williams committed three burglaries over a span of nine days. The presentence report establishes, and Mr. Williams does not contest, that the first burglary (count one) occurred on March 3, 2012, the second (count three) occurred on March 6, 2012, and the third (count two) occurred on March 12, 2012. The court may rely on these unchallenged facts within the presentence report to determine whether predicate offenses under ACCA exist. See United States v. Thornton, 463 F.3d 693, 700-01 (7th Cir. 2006).
Though a multifactored analysis, courts "have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart." Wooden, 142 S. Ct. at 1071. Mr. Williams' conscious decisions, informed by several intervening nights of sleep, to burgle again and again underscore their separateness. There is no dispute of fact for a jury to resolve here to understand clearly that these burglaries occurred on separate occasions within § 924(e)'s meaning. See also Elliott, 703 F.3d at 387-88 (collecting cases where one-day separation reflected different occasions); United States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000) (two drug sales to same buyer on the same day, just 45 minutes apart, and on the same block, were separate events).
Mindful of the multiple factors, the court must determine what other facts (and sources of facts) it might consider. The court may consider Shepard documents. See, e.g., Wooden, 142 S. Ct. at 1067; Haney, 840 F.3d at 476; Kirkland v. United States, 687 F.3d 878, 887 (7th Cir. 2012). The court considers the information, sentencing order, and state court plea colloquy [Exs. A, C, D], but not the probable cause affidavit [Ex. B], given only these three documents have the "conclusive significance of a prior judicial record." Shepard, 544 U.S. at 21-23, 25, 125 S.Ct. 1254 (district court was correct not to review police reports or complaint applications); United States v. Lewis, 405 F.3d 511, 514-15 (7th Cir. 2005) (excluding affidavits).
Once again, rather than raise a dispute over key facts that would drive this different-occasions question, these Shepard documents establish that Mr. Williams committed three burglaries on separate occasions. He admitted—under oath—key facts to this point. At his plea hearing, for example, he said he committed three separate burglaries, on three separate dates (days apart), against three separate victims, involving separate property—in some instances, twice admitted [Ex. D, ECF 45-1 at 7-8, 10-12]. Neither then nor now has he said he did so perjuriously, apathetically, or to protect someone else. See Mathis, 579 U.S. at 512, 136 S.Ct. 2243. He instead acknowledged that he was admitting to the truth of "material facts" [Ex. D at 8]. In addition, the state court treated these burglaries as separate—explicitly noting at sentencing that his conduct involved "not just one event" [Ex. C].
Notably a key procedural safeguard that existed in Almendarez-Torres exists here. The defendant has not challenged the accuracy of certain key "facts"—here, the separate days, victims, and subjects of his three predicate offenses. See Apprendi, 530 U.S. at 488, 120 S.Ct. 2348 (observing the same about Almendarez-Torres); see also Descamps, 570 U.S. at 269, 133 S.Ct. 2276 (prohibiting a sentencing court only from making a "disputed" finding of fact about what was the factual basis of prior plea); Elliott, 703 F.3d at 382. "On this record, such material differences in timing, proximity, and character render the offenses separate." Rodriguez, 2022 WL 17883607 at 2, 2022 U.S. App. LEXIS 35558 at 5-6.
Mr. Williams next argues the rule of lenity. The rule of lenity construes penal laws strictly and ensures fair notice to ordinary people of the law's demands, "ensuring that an individual's liberty always prevails over ambiguous laws." Wooden, 142 S. Ct. at 1082 (Gorsuch, J., concurring). But this rule "applies only when, after consulting traditional canons of statutory construction, [the court is] left with an ambiguous statute." Shular v. United States, — U.S. —, 140 S. Ct. 779, 787, 206 L.Ed.2d 81 (2020). The word "occasion" carries its ordinary meaning, see Wooden, 142 S.Ct. at 1069, and this isn't a doubtful case where the rule of lenity should operate. Instead, applying the plain meaning of the word "occasion," and looking only to Shepard documents, including Mr. Williams' steadfast admissions under oath, this is a case that yields one conclusive result: each burglary occurred on a different occasion. See id. at 1070.
That leaves then an argument about constitutional vagueness. Under this doctrine, a statute is unconstitutionally vague and violates due process if it "(1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or (2) fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the statute." United States v. Plummer, 581 F.3d 484, 488 (7th Cir. 2009) (citation omitted). The Fifth Amendment says no person shall be deprived of life, liberty, or property, without due process of law. The government "violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States, 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (citations omitted).
Though a criminal statute must "have a core of understandable meaning," "[s]ome uncertainty at the margins does not condemn a statute." Trs. of Indiana Univ. v. Curry, 918 F.3d 537, 540 (7th Cir. 2019). The "legal system offers a way to work out the uncertainties that lurk at every statute's periphery: the judiciary." Id. at 541. To hold otherwise would require a court to declare a law unconstitutional "every time [it] needs to decide a tough question about just how far a statute reaches." Id. Thus the existence of a "core of meaning is enough to reject a vagueness challenge, leaving to future adjudication the inevitable questions at the statutory margin." Id. Like Wooden, this isn't a case that sits at the periphery. Wooden, 142 S. Ct. at 1071 n.4. These burglaries occurred on different occasions.
In supplemental briefing, Mr. Williams argues that convening a jury—even now at sentencing—would not solve the government's problem that the indictment omits any reference to ACCA such that he lacked notice when he pleaded guilty. Notice in the indictment isn't required. See White v. United States, 8 F.4th 547, 553 (7th Cir. 2021) ("To be sure, a pretrial § 924(e) notice is not required."); United States v. Hardy, 52 F.3d 147, 150 (7th Cir. 1995) ("only notice necessary to satisfy constitutional requirements [of due process] must be given"). The presentence report provided Mr. Williams notice of ACCA's application, and he had over a year to wrestle with this issue as the court stayed his sentencing until Wooden was decided. The court also provided reasonable opportunities to object and be heard on this recidivism enhancement through briefing and oral argument.
Still, neither the government nor defendant on this record anticipated ACCA's application at the time of the plea hearing. Rule 11 requires the court to inform the defendant of "any mandatory minimum penalty." Fed. R. Crim. P. 11(b)(1)(I). Because that wasn't done, the court will give Mr. Williams the opportunity within 14 days either to file a notice (countersigned by him) that he understands that the ACCA enhancement applies and he wishes to proceed consistent with his current plea to sentencing with that understanding, or to file a motion to withdraw his guilty plea under Rule 11(d)(2). See, e.g., United States v. Rodriquez, 553 U.S. 377, 383-84, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008).
Accordingly, the court OVERRULES the defendant's objection to the ACCA enhancement and ORDERS him to file the requisite notice or motion by January 19, 2023.
SO ORDERED.