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United States v. Dantzler

United States Court of Appeals, Second Circuit

November 14, 2014

UNITED STATES OF AMERICA, Appellee,
v.
ZEPHANIAH DANTZLER, Defendant-Appellant,

Submitted: June 27, 2014,

Page 138

Appeal from the United States District Court for the Eastern District of New York. No. 12 CR 568-1 (NGG) -- Nicholas G. Garaufis, Judge.

The Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e), imposes a 15-year mandatory minimum sentence on violators who have three previous convictions for a violent felony or a serious drug offense " committed on occasions different from one another." The question presented is whether, in determining whether crimes were committed " on occasions different from one another," a court at sentencing is limited to examining only materials approved by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We hold that, in determining whether crimes were committed " on occasions different from one another" for purposes of applying the ACCA, a court is limited to examining only materials approved by the Supreme Court in Taylor and Shepard. We also hold that a court may not rely upon a Presentence Report (" PSR" ) in determining whether crimes were committed " on occasions different from one another" for purposes of applying the ACCA, where the relevant facts described in the PSR were not derived from sources determined to be consistent with Taylor and Shepard. Accordingly, we VACATE the sentence of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) and REMAND for resentencing in accordance with this opinion.

DAVID A. LEWIS, Federal Defenders of New York, Inc., New York, NY, for Appellant Zephaniah Dantzler.

JO ANN M. NAVICKAS (Kevin M. Trowel, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee United States of America.

Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.

OPINION

Page 139

José A. Cabranes, Circuit Judge :

The Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e), imposes a 15-year mandatory minimum sentence on violators who have three previous convictions for a violent felony or a serious drug offense " committed on occasions different from one another." The question presented is whether, in determining whether crimes were committed " on occasions different from one another," a court at sentencing is limited to examining only materials approved by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

We hold that, in determining whether crimes were committed " on occasions different from one another" for purposes of applying the ACCA, a court is limited to examining only materials approved by the Supreme Court in Taylor and Shepard. We also hold that a court may not rely upon a Presentence Report (" PSR" ) in determining whether crimes were committed " on occasions different from one another" for purposes of applying the ACCA, where the relevant facts described in the PSR were not derived from sources determined to be consistent with Taylor and Shepard.

Accordingly, we VACATE the sentence of the District Court and REMAND for resentencing in accordance with this opinion.

BACKGROUND

Defendant-appellant Zephaniah Dantzler (" Dantzler" ) was convicted, in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge ), upon his plea of guilty, of one count of possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).

At Dantzler's plea colloquy in the District Court, the Government stated that it would seek to prove at trial that he had been previously convicted of three violent felonies committed on three different occasions, as required by the ACCA, 18 U.S.C. § 924(e), and Dantzler expressly waived the right to a jury trial on the issue of his " prior felony convictions." Appellant's App. 33. Section 924(e)(1) states, in relevant part, that " [i]n the case of a person who violates [the substantive provision] of this title and has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1).

The PSR prepared for sentencing found that, in 2006, at the age of 18, Dantzler had been convicted of three robberies that rendered him an armed career criminal subject to a mandatory minimum sentence of 15 years' imprisonment pursuant to the ACCA. The three predicate convictions described in the PSR were as follows: (1) a conviction in the New York State Supreme Court in Brooklyn for a robbery committed

Page 140

on February 18, 2006 in Brooklyn, at 11:00 a.m., in which Dantzler and a co-defendant stole a debit card from the victim using a box cutter; (2) a conviction in the New York State Supreme Court in Manhattan for a robbery committed on the subway in Manhattan on February 19, 2006, together with two co-defendants, using a box cutter and a bladed knife; and (3) a conviction in the New York State Supreme Court in Queens for a robbery also committed on February 19, 2006, on the subway in Queens, with two unnamed individuals, using a box cutter and a bladed knife. Dantzler was arrested for the February 19, 2006 subway robbery that took place in Manhattan on the day it occurred. While under pretrial detention at the correctional facility on Rikers Island, New York, Dantzler was arrested on March 2, 2006 for the February 19, 2006 robbery that took place in Queens. While still in custody, he was arrested on August 17, 2006 for the February 18, 2006 robbery that took place in Brooklyn.

In a letter addressed to Judge Garaufis, dated July 16, 2013, counsel for Dantzler objected to the PSR's characterization of the second and third offenses as crimes committed " on occasions different from one another," and argued that the two February 19, 2006 robberies " represent a single criminal episode." Appellant's App. 83 (emphasis supplied). The letter also provided the following additional information, which was not included in the PSR, taken from the New York criminal complaints, which were attached:

In Mr. Dantzler's case, he was arrested on February 19, 2006 at 3:30 a.m. at the Manhattan City Hall subway station for a robbery that took place on a number 6 subway train about 10 minutes earlier. While he was in pretrial detention for that offense, he was arrested at Rikers Island on March 2, 2006, for another robbery that also took place on February 19, 2006, at 1:45 a.m. on an eastbound number 7 train in Queens. . . . Although the offenses involved different victims, both robberies were committed by Mr. Dantzler and the same two co-defendants, both robberies took place in the New York City subway system, and both robberies took place approximately an hour and a half apart. As noted in the Presentence Report, the modus operandi was the same for both robberies. There also does not appear to have been any interruption in the criminal activity the three undertook for the night.

Appellant's App. 83-84. The Government responded in a letter dated July 23, 2013. Both letters relied upon the case of United States v. Rideout, 3 F.3d 32 (2d Cir. 1993). In Rideout, we were faced with the same question--whether two offenses, which formed two of the three predicates required for consideration as an armed career criminal under the ACCA, occurred on separate occasions. In that case, we concluded that " offenses committed against different victims separated by at least twenty to thirty minutes and twelve to thirteen miles qualify as offenses 'committed on occasions different from one another.'" Id. at 35 (quoting the ACCA, § 924(e)).

At the sentencing hearing on July 25, 2013, Judge Garaufis, an experienced and careful adjudicator, began by noting the materials he reviewed for purposes of sentencing: the original PSR and two addenda to the PSR, the second of which responded to Dantzler's objections in his July 16, 2013 letter to Judge Garaufis and its three attachments, one of which included the New York criminal complaints sworn to by attesting police officers for the two February 19, 2006 subway robberies; a July 16, 2013 letter of the defense to the probation officer objecting to the PSR and attaching the same New York criminal

Page 141

complaints; and the Government's July 23, 2013 response letter with three exhibits attached. Dantzler raised no objection to the Court's consideration of any of these materials. During her statement at sentencing, Dantzler's counsel reiterated many of the facts contained in Dantzler's sentencing submission.

Agreeing with the Government that Rideout was " on all fours" with the facts before it, the District Court first held that, pursuant to Rideout's teaching, Dantzler's offenses were committed " on occasions different from one another" such that the ACCA was triggered. Appellant's App. 44. The District Court then stated that the applicable Sentencing Guidelines range for Dantzler's offense was 168 to 210 months, but was subject to the ACCA statutory minimum of 180 months. The District Court then sentenced him, principally, to 180 months' imprisonment and 5 years of supervised release. Had Dantzler not been subject to a Guidelines enhancement as an armed career criminal under ยง 924(e), his total ...


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