Opinion
CRIMINAL NO. 11-10038-RWZ.
November 8, 2011
ORDER
Defendant is charged with possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He has moved for a pretrial ruling on whether he would be subject to the enhanced sentencing provisions of the Armed Career Criminal Act ("ACCA") if he is convicted or pleads guilty (Docket # 33). Specifically, I must decide whether his two prior convictions for rape and rape of a child were committed on "occasions different from one another" under the ACCA. 18 U.S.C. § 924(e).
The motion is ALLOWED to the extent that I will consider the issue now and will consult only source material permitted byShepard v. United States, 544 U.S. 13, 16 (2005). See United States v. Gautier, 590 F.Supp.2d 214, 230-32 (D.Mass. 2008). Although the parties have already briefed the issue on the merits, since the issue is in the nature of a sentencing I will decide the merits after a hearing, with defendant present, on December 8, 2011, at 3:00 pm.