Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication). Panel of Judges Boggs, Gilman, and Donald.
Issue:
Can dist ct consider probable-cause affidavit incorporated by reference during a prior sentencing?
Conclusion:
Yes, b/c defendant stipulated to the facts in the affidavit.
Procedural History:
* Felon-in-possession case.
* There were a number of prior offenses. PSR scored defendant under ACCA.
* Defendant objected. He argued that two of his prior convictions should not be counted as separate offenses. He argued the dist ct could not conclude that that the priors had occurred on occasions different from one another, as required by the ACCA. The dist ct had to turn to the probable-cause affidavit the state sentencing ct had used as the factual basis for the prior no-contest plea.
* Dist ct concluded the D did not qualify for ACCA treatment.
* Gov appealed.
* COA reversed the dist ct and remanded for resentencing.
COA Opinion:
* The D had stipulated to the facts in the probable-cause affidavit.
* The state judge who sentenced the D on the prior stated he was using the affidavit as the factual basis for the plea.
* If a defendant stipulates to the accuracy of a document describing the facts of an offense, and that stipulation falls into a Shepard source (eg the defendant stipulates during the plea colloquy), then that document the defendant stipulated to is acceptable under Shepard.
Additional Points of Interest:
* Footnote 4: SCOTUS and 6th Cir have left open the issue of whether Shepard even applies in the context of determining whether prior offenses occurred on separate occasions. Does Shepard just apply to determine whether a prior qualifies as a violent felony? COA does not decide here b/c probable-cause affidavit here "became a Shepard-approved document when incorporated by reference in the plea colloquy."
* It appears from the discussion in Amos that a defense attorney's stipulation is enough---the defendant need not actually stipulate on the record. But this issue may be one to challenge. There's room for argument.
There's been a lot of interesting case law recently! I'm trying to keep up! I'll try to post more soon!
(Just b/c it's pretty!)
