Incapacitating Dangerous Repeat Offenders (or Not): Evidentiary Restrictions on Armed Career Criminal Act Sentencing in United States v. King

Boston College Law Review, Apr 2018

On March 30, 2017, in United States v. King, the United States Court of Appeals for the Sixth Circuit held that a sentencing court may not rely on information in bills of particulars for the Armed Career Criminal Act’s different-occasions inquiry. In so doing, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing courts deciding the different-occasions question may rely only on the evidentiary sources that the United States Supreme Court approved in Taylor v. United States in 1990 and Shepard v. United States in 2005. In contrast, on January 2, 2014, the United States Court of Appeals for the Eighth Circuit in United States v. Evans suggested that the Taylor- and Shepard-evidentiary restrictions might not apply to the different-occasions inquiry. This Comment argues that the Sixth Circuit decided correctly in King, but also that the court’s decision conflicts with congressional intent, and thus Congress should amend the act to resolve this conflict.

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Incapacitating Dangerous Repeat Offenders (or Not): Evidentiary Restrictions on Armed Career Criminal Act Sentencing in United States v. King

Incapacitating Dangerous Repeat Ofe nders (or Not): Evidentiar y Restrictions on Armed Career Criminal Act Sentencing in United States v. King Kayleigh E. McGlynn 0 1 0 Thi s Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Boston College Law School Part of the Criminal Law Commons; Evidence Commons; and the Legislation Commons - of Appeals for the Sixth Circuit held that a sentencing court may not rely on i nformation in bills of particulars for the Armed Career Criminal Act’s differentoccasions inquiry. In so doing, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits i n holding that sentencing courts deciding the different -occasions question may rely only on the evidentiary sources that the United States Supreme Court approved in Taylor v. United States in 1990 and Shepard v. United States in 2005. In contrast, on Janua ry 2, 2014, the United States Court of Appeals for the Eighth Circuit in United States v. Evans suggested that the Taylor- and Shepard-evidentiary restrictions might not apply to the different-occasions inquiry. This Comment argues that the Sixth Circuit d ecided correctly in King, but also that the court’s decision conflicts with congressional intent, and thus Congress should amend the act to resolve this conflict. INTRODUCTION The Armed Career Criminal Act (“ACCA”) imposes a fifteen -year mandatory minimum sentence on any felon possessing a firearm who previously committed three violent felony or serious drug offenses on different oac-c sions.1 By imposing a lengthy mandatory minimum sentence, the ACCA is intended to help law enforcement reduce the number of dangerous habitual 1 Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012). The felon in possession of a firearm statute is 18 U.S.C. § 922(g), which makes it unlawful for any person convicted of a crimepunishable by a prison sentence greater than one year to ship, transport, possess, or receive a firearm in interstate or foreign commerce. Id. § 922(g). To be sentenced under the ArmedCar eer CriminalAct( “ACCA”), a defendant must not only violate§ 922(g) but also have three prior violent felony or serious drug offenses that qualify as predicate offenses under the ACCA. Id. § 924(e). The ACCA defines “serious drug offense” as “an offense under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or chapter 705 of title 46,” with a maximum sentence of ten or more years, or a state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)),” with a maximum sentence of ten or more years. 18 U.S.C. § 924(e)(2)(A)(i)–(ii). The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that” either includes an element of “use, attempted use, or threatened use of physical force against [another person] ” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). criminals in society. 2 A sentencing court, however, may apply the ACCA only if there is sufficient evidence that the defendant committed the three predicate offenses on different occasions. 3 Congress did not enumerate in the text of the ACCA the types of evidence that courts may rely upon for this differ-ent occasions inquiry, so sentencing courts accordingly rely on prior judicial inte rpretation for guidance.4 In 2017, in United States v. King , the United States Court of Appeals for the Sixth Circuit held that a sentencing court cannot rely on a bill of particulars, a list of the charges brought against the defendant, to decide the different 2 Taylor v. United States, 495 U.S. 575, 581 (1990) (stating that “[t]he [ACCA] was intended to supplement the States ’ law enforcement efforts against ‘career’ criminals”); H.R. REP. NO. 98-1073, at 1 (1984), as reprinted in 1984 U.S.C.C.A.N. 3661, 3661 (noting that “[t]his bill is designed to i ncrease the participation of the federal law enforcement system in efforts to curb armed, habitual (career) criminals”); James G. Levine, Note, The Armed Career Criminal Act and the U.S. Sentencing Guidelines: Moving Toward Consistency , 46 HARV. J. ON LEGIS. 537,545–46 (2009)(explainingthat the ACCA intends to help law enforcement incapacitatedangerousrepeatoffenders);BrettT.Runyon, Comment, ACCA Residual Clause: Strike Four? The Court ’s Missed Opportunity to Create a Worka ble Residual Clause Violent Felony Test, 51 WASHBURN L.J. 447, 450 (2012) (noting that the ACCA’s purpose is to assist law enforcement efforts to stop career criminals from reoffending); see also H.R. REP. NO. 98-1073, at 2 (noting that “[b]oth Congress and local prosecutors around the nation have recognized the importance of incapacitating [the small group of] repeat offenders [who are responsible for a large number of crimes] ”). This Comment uses the terms “career criminal,” “habitual criminal,” “repeat offender,” and “recidivist” synonymously. 3 18 U.S.C. § 924(e). The government carries the burden of proving at sentencing by a preponderance of the evidence that the defendant committed the prior offenses on different occasions. See, e.g., United States v. Linney, 819 F.3d 747, 751 (4th Cir. 2016). 4 See 18 U.S.C. § 924(e) (not enumerating the types of evidence allowed under the differen-t occasions inquiry). See generally United States v. King, 853 F.3d 267, 271–73 (6th Cir. 2017) (explaining the Supreme Court’s reasoning in Taylor v. United States and United States v. Shepard and that the same concerns apply to the interpretation of the different -occasions question); United States v. Dantzler, 771 F.3d 137, 143, 145 (2d Cir. 2014) (explaining that the Supreme Court’s reasoning in Taylor and Shepard applies to the different-occasions inquiry); Kirkland v. United States, 687 F.3d 878, 883 (7th Cir. 2012) (noting that Shepard’s evidentiary restrictions apply to determining whether a defendant committed prior offenses on different occasions); United States v. Boykin, 669 F.3d467, 471 (4th Cir. 2012) (stating that a sentencing court deciding the different -occasions questioncanco nsult evidentiary sources approved in Shepard); United States v. Sneed,600 F.3d1326,1333 (11thCir. 2010) (holding that sentencing courts determining whether a defendant committed prior offenses on different occasions may not rely on police reports because Shepard did not approve police reports as an evidentiary source); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009) (explaining that the sentencing court should have relied on two indictments and concluded that the defendant commi tted the prior offenses on different occasions because charging documents are one of the evidentiary sources that Taylor and Shepard approved); United States v. Fuller, 453 F.3d 274,279 (5thCir.2006) (explaining that a sentencing court deciding the different -occasions question can rely on only Shepard-approved evidentiary sources); United States v. Harris, 447 F.3d 1300, 1305 (10th Cir. 2006) (noting that a sentencing court can rely on a presentence report ( “PSR”) for the purposes of thediffe rent-occasions question only if the PSR complies withShepard); United States v. Taylor, 413 F.3d 1146, 1157–58 (10th Cir. 2005) (explaining that a sentencing court deciding the different -occasions question can rely on only evidentiary sources that comply with Shepard). occasions question.5 In so doing, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing courts may consider only the evidentiary sources that the United States uSpreme Court approved in Taylor v. United States in 1990 and in Shepard v. United States in 2005.6 The Eighth Circuit, however, suggested in 2014 in United States v. Evans that the Taylor- and Shepard-evidentiary restrictions do not apply to the different-occasions inquiry.7 This Comment argues that the Sixth Circuit decided correctly in King that a sentencing court may not rely on bills of particulars to determine whether a defendant committed prior offenses on different occasions8. This Comment also examines Justice O’Connor’s dissent in Shepard, however, and argues that evidentiary restrictions on the different -occasions inquiry can lead to an absurd result in cases like King.9 Further, this Comment recommends that Congress amend the ACCA to enumerate the evidentiary sources allowed for the different-occasions inquiry.10 Part I of this Comment provides an overview of the history of theACCA, the Supreme Court’s decisions in Taylor and Shepard, and the facts and proc edural posture of King.11 Part II examines and discusses the circuit split regar ding whether the Taylor- and Shepard-evidentiary restrictions apply to the A CCA’s different-occasions inquiry. 12 Finally, Part IIIargues that the Sixth Circuit decided correctly in King, but also that Congress should amend the ACCA to enumerate approved evidentiary sources and thus resolve the conflict between Supreme Court precedent and Congressional intent.13 5 King, 853 F.3d at 275–78. A bill of particulars, also called a statement of particulars, is“[a] formal, detailed statement of the claims or charges brought by a plaintiff or a prosecutor, usu[ally] filed in response to the defendan’st request for a more specific complain”t.Bill of Particulars, BLACK’S LAW DICTIONARY (10th ed. 2014). Bills of particulars are governed by Federal Rule of Criminal Procedure 7(f). FED. R. CRIM. P. 7(f); Bill of Particulars, supra. 6 King, 853 F.3d at 273–74; Dantzler, 771 F.3d at 139;Kirkland, 687 F.3d at 886, 886 n.9; Boykin, 669 F.3d at 472; Sneed, 600 F.3d at 1332–33; Thomas, 572 F.3d at 950; Fuller, 453 F.3d at 279; Harris, 447 F.3d at 1305; Taylor, 413 F.3d at 1157. 7 See United States v. Evans, 738 F.3d 935, 936 –37 (8th Cir. 2014) (per curiam) (noting that the court has previously rejected Sixth Amendment challenges to the type of evidence that the district court relies upon for the different-occasions question, and rejecting similar challenges in this case). 8 See infra notes 102–106 and accompanying text. 9 See infra notes 107–121 and accompanying text. 10 See infra notes 126–128 and accompanying text. 11 See infra notes 14–81 and accompanying text. 12 See infra notes 82–98 and accompanying text. 13 See infra notes 99–128 and accompanying text. I. UNITED STATES V. KING AND THE HISTORY OF THE ARMED CAREER CRIMINAL ACT Congress enacted the ACCA in 1984 and subsequently has amended the statute three times. 14 Congress’ intent in enacting the ACCA was to reduce the number of armed career criminals in society because these dangerous repeat offenders are responsible for a significant portion of violent and serious offenses.15 In Taylor and Shepard, the Supreme Court enumerated the sources that a sentencing court can rely on to determine whether a defendant’s prior offenses qualify as ACCApredicates. 16 These approved evidentiary sources are statutory definitions, charging documents, jury instructions, written plea agreements, transcripts of plea colloquies, and trial judges’ factual findings to which the defendant agreed. 17 In King, the defendant, Errol Dontes King, pled 14 Anti-Drug Abuse Act of 1988, Pub. L. No . 100-690,§ 7056,102 Stat.4181,4402 (1988)(cod ified at 18 U.S.C. §924(e)(1)); Career Criminals Amendment Act of 1986, Pub. L. No.9-9570, § 1402, 100 Stat. 3207, 3207–39 (1986) (codified as amended at 18 U.S.C. § 924); Firearms Owners ’ Protection Act, Pub. L. No. 99-308, § 104, 100 Stat. 449 (1986) (codified as amended at 18 U.S.C. § 921); Armed Career Criminal Act of 1984, ch. 18, 98 Stat. 1837 (1984) (codified at 18 U.S.C. § 1202(a), repealed by Firearms Owners’ Protection Act § 104(b)). 15 Taylor, 495 U.S. at 581; H.R. REP. NO. 98-1073, at 1–2; James E. Hooper, Note, Bright Lines, Dark Deeds: Counting Convictions Under the Armed Career Criminal Act, 89 MICH. L. REV. 1951, 1952 (1991); Krystle Lamprecht, Comment, Formal, Categorical, but Incomplete: The Need for a New Standard in Evaluating Prior Convictions Under the Armed Career Criminal Act ,98 J. CRIM. L. & CRIMINOLOGY 1407, 1411 (2008); Levine, supra note 2, at 545– 46; Emily Marano, Comment, The Need for Sneed: A Loophole in the Armed Career Criminal Act, 52 B.C. L. REV. E. SUPP. 175, 175 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss6/15; Nick Poli, Comment, Three Strikesand You’re Out . . . Maybe: “Violent Felonies” and the Armed Career Criminal Act in United States v. Vann, 54 B.C. L. REV. E. SUPP. 201, 203 ( 2013),http://lawdigitalcommons.bc.edu/bclr/vol54/iss6/16; Runyon, supra note 2, at 450. 16 United States v. Shepard, 544 U.S. 13, 26 (2005); Taylor, 495 U.S. at 602. 17 Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602. A charging instrument, also called an acc usatory instrument, is “[a]ny of three formal legal documents by which a person can be officially charged with a crime: an indictment, information, or presentment.” Charging Instrument, BLACK’S LAW DICTIONARY (10th ed. 2014). The three types of charging instruments are indictments, informations, and presentments. Id. An indictment is “[t]he formal writtenaccusationofa crime,madebya grand jury and presented to a court for prosecution against the accused person. ” Indictment, BLACK’S LAW DICTIONARY (10th ed. 2014). An information is “[a] formal criminal charge madebya prosecutor without a grand-jury indictment.” Information, BLACK’S LAW DICTIONARY (10th ed. 2014). Indictments and informations are governed by Federal Rule of Criminal Procedure Rule 7F.ED. R. CRIM. P. 7; Charging Instrument, supra. A presentment is “[a] formal written accusation returned bya grand jury on its own initiative, without a prosecutor’s previous indictment request.” Presentment, BLACK’S LAW DICTIONARY (10th ed. 2014). Presentments, however, are obsolete in federal courts. Id. A colloquy is “[a]ny formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” Colloquy, BLACK’S LAW DICTIONARY (10th ed. 2014). A plea colloquy, specifically, is “[a]n open-court dialogue between the judge and a criminal defendant, usu[ally] just before the defendant enters a plea, to establish that the defendant understands the consequences of the plea”. Plea Colloquy, BLACK’S LAW DICTIONARY (10th ed. 2014). guilty to being a felon in possession of a firearm, but he argued that the ACCA did not apply to him. 18 Although King’s prior robbery convictions qualified as ACCA predicates, he argued that there was insufficient evidence to prove that he committed the robberies on different occasions for the ACCA.19 A. The History of the Armed Career Criminal Act Congress enacted the first version of the ACCA in 1984, codifying the statute at 18 U.S.C. App. § 1202(a).20 According to the House Report acco mpanying the ACCA, the purpose of the Act is to assist law enforcement in r educing the number of armed, career criminal s.21 The House Report cited seve ral recidivism studies demonstrating that a limited number of habitual criminals commit a high percentage of all homicides, rapes, robberies, burglaries, and other violent serious offenses. 22 TheACCA’s mandatory minimum fifte en-year sentence is directed at separating these dangerous repeat offenders from civ ilized society for a significant period of time, thus protecting society from their harms.23 In 1986, Congress enacted the Firearms Owners’ Protection Act, which amended the ACCA and recodified the statute at 18 U.S.C. § 924(e)2.4 This amendment only slightly adjusted the statute’s definition of burglary, but five months later, Congress made more significant changes to the ACCA when it enacted the Career Criminals Amendment Act of 1986 (“CCAA2”5).This amendment changed the ACCA in three ways; most notably, it changed the definition of predicate offense to “a violent felony or a serious drug offense,” 2018] thus capturing many more offenses than the original definition, which included only “robbery and burglary.” 26 According to the legislative history, Congress believed that the original 1984 version of the ACCA was successful, and in 1986, Congress wanted to broaden the predicate offenses so that the ACCA would reach even more repeat offenders.27 In 1988, Congress amended the ACCA for a third time when it enacted the Anti-Drug Abuse Act of 1988. 28 This amendment added the phrase “co mmitted on occasions different from one another,” which is the subject of King and this Comment.29 Congress intended only to clarify ambiguous language, however, not to substantively change the statute. 30 This clarificationresponded to the United States Court of Appeals for the Eighth Circuit’s decision in 1986 in United States v. Petty .31 In Petty, the court coun ted the defendant’s convi ction for robbing six people at the same time as six separate convictions, and thus held that the defendant satisfied the ACCA’s three prior convictions requirement.32 According to then-Senator Joseph Biden, by “career criminal,” Congress meant a person who commits at least three predicate offenses over a period of time, so simultaneously robbing multiple people is only one convi ction for the ACCA. 33 The clarification reflects this understanding of a “career criminal.”34 B. The Supreme Court Enumerates Evidentiary Sources for the ACCA-Predicate Question in Taylor v. United States and Shepard v. United States In Taylor and Shepard, the Supreme Court enumerated the evidentiary sources that a sentencing court may rely on to determine whether a prior offense qualifies as a violent felony or serious drug offense under the ACCA35. Each case involved a defendant who was previously convicted of burglary under a state statute, and each Court had to decide whether the prior burglary offense was anACCApredicate. 36 “Burglary” is a violent felony that qualifies as a pre dicate offense under theACCA. 37 TheACCAhas not defined the term “burglary” since 1986, however, when the CCAA removed the definition of “burglary” from the statute. 38 Moreover, state statutes’definitions of “burglary” vary signi ficantly, so there is not one common meaning of “burglary” that courts agree on.39 Furthermore, the ACCA’s text does not explain which, if any, of these many definitions of “burglary” Congress intended to qualify as a predicate offense under the ACCA.40 Consequently, in Taylor, the Court had to determine which state burglary convictions qualify as ACCA-predicate offenses.41 The Taylor Court concluded that Congress intended for “burglary” to have the generic, contemporary meaning that is consistent with how most state 2018] statutes define “burglary.” 42 At a minimum, the generic, contemporary mea ning of “burglary” includes the following elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”43 Therefore, a defendant’s prior burglary conviction is an ACCA-predicate offense if the statute’s definition of burglary contains at least these elements.44 Next, the Taylor Court addressed the evidentiary sources a sentencing court can rely on to determine whether a defendant’s prior burglary conviction satisfies the generic burglary definition.45 The Court had to choose between two approaches—a formal categorical approach or a factual approach. 46 Under a formal categorical approach, a sentencing court may consider only the fact of conviction and the statutory definition of the prior offens4e7. A factual approach, however, allows a sentencing court to consider the facts underlying the prior conviction.48 The Court concluded that a formal categorical approach is consistent with the ACCA’s text and legislative history as well as the Court’s concerns about the practicality and fairness of a factual approach.49 Under a categorical ap42 Taylor, 495 U.S. at 598. 43 Id. at 599. 44 Id. 45 Id. 46 Id. at 600. Prior to Taylor, the Fourth, Fifth, and Ninth Circuits held in favor of a formal cat egorical approach over a factual approach, and the Taylor Court agreed with these courts’ reasoning. Id.; see United States v. Chatman, 869 F.2d 525, 529 (9th Cir. 1989) (adopting a categorical approach, which avoids sentencing courts conducting “ad hoc mini- trials”), abrogated by Taylor,495 U.S.575; United States v. Sherbondy, 865 F.2d 996, 1006 –10 (9th Cir. 1988) (adopting the approach of consi dering only an offense’ s elements and not underlying facts); United States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988) (adopting the approach that, to determine whether an offense is a violent felony under the ACCA, the court looks to the statutory definition of the offense); United States v. Headspeth, 852 F.2d 753, 758 –59 (4th Cir. 1988) (adopting the approach of analyzing only prior offenses ’ statutory definitions, not specific facts), abrogated by Taylor, 495 U.S. 575. 47 See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2245 –46 (2016) (applying the formal cat egorical approach and comparing the elements of the defendant’s state burglaryoffense to the elements of the generic burglary offense); Descamps v. United States, 570 U.S. 254, 257 –60 (2013) (applying the formal categorical approach and comparing the elements of the defendant ’s state burglary offense to the elements of the generic burglary offense). 48 Taylor, 495 U.S. at 600; see, e.g., Chatman, 869 F.2d at 529 (rejecting the government ’s argument that the court should apply a factual approach, which would have required the court to consider the facts underlying the defendant’s conviction, specifically that the defendant was armed when he committed burglary). 49 Taylor, 495 U.S. at 600–02. First, there are two sections of the ACCA where Congress chose language that supports that a sentencing court should consider only the fact that the defendant was convicted of a crime, not the particular facts underlying the crime. Id. at600.In18 U.S.C. § 924(e)(1), Congress chose the language “a person who . . . has three previous convictions ” for violent felonies or serious drug offenses, rather than referring to a person who has committed violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1); Taylor, 495 U.S. at 600. Also, in 18 U.S.C. § 924(e)(2)(B)(i), the definition of “violent felony” refers to a c rime that “has as an element ” the use or threat of force, rather than a crime that involves the use or threat of force. 18 U.S.C. § 924(e)(2)(B)(i); Taylor, 495 proach, a sentencing court deciding whether a defendant’s prior offense is an ACCA-predicate can consider the prior offense’s statutory definition5.0 The Taylor Court also left open the possibility of what is now called a modified categorical approach, where a sentencing court can consider charging documents and jury instructions as well.51 In contrast to Taylor, the defendant in Shepard had pled guilty to all four of his prior burglary convictions, rather than being convicted by a jury at trial.52 The statutory definition of the defendant’s state burglary offense was broader than the definition of generic burglary, and because the defendant did not have a jury trial, there were no jury instructions available for the senten cing court to consult. 53 Thus, the Supreme Court had to determine whether Taylor allows sentencing courts to consider additional evidentiary sources when determining whether an offense that the defendant pled guiltyto qualifies as an ACCA predicate.54 In Shepard, the Court expanded the group of evidentiary sources to in clude written plea agreements, transcripts of plea colloquies, and trial judges’factual findings that the defendant agreed to. 55 The Shepard Court concluded that a sentencing court cannot consider police reports or complaint applications.56 Taken together, Taylor and Shepard dictate that a sentencing court deci ding whether a prior offense qualifies as a violent felony or serious drug convi ction under the ACCAmay consider statutory definitions, charging documents, jury instructions, written plea agreements, transcripts of plea colloquies, and trial judges’ factual findings to which the defendant agreed. 57 U.S. at 600. Second, the legislative history supports a categorical approach because, despite s ignificant debate over predicate offenses, there is no discussion about a fact -finding process for predicate offenses. Taylor, 495 U.S. at 601. Third, a factual approach would present practicaldifficulties for the sentencing court trying to determine the facts of the defendant ’s conduct, and this approach could be unfair to defendants who pleaded guilty. Id. at 601–02. 50 Taylor, 495 U.S. at 600, 602. 51 Id. at 602; King, 853 F.3d at271 (citing Descamps,570 U.S.at260– 62) (explainingthat “[t]his method of consulting limited evidence to determine which of several alternative elements underlies a prior conviction is now known as the ‘modified categorical approach’”); see, e.g., United States v. Henderson, 841 F.3d 623, 625–26 (3d Cir. 2016) (applying the modified categorical approach and examining charging instruments to compare the elements of the defendant ’s prior offenses to the generic offenses and find that the defendant’s prior convictions qualify as serious drug offenses under the ACCA). 52 Shepard, 544 U.S. at 16. 53 Id. at 17. 54 Id. at 18. 55 Id. at 16, 26. 56 Id. at 16. 57 Id. at 26; Taylor, 495 U.S. at 602. C. The Sixth Circuit Applies Taylor and Shepard to the ACCA’s Different-Occasions Inquiry in United States v. King On August 11, 2014, two Cleveland Police Department officers arrested Errol Dontes King for firearm -related offenses following a violent altercation between King and the two officers5.8 On February 18, 2015, in the United States District Court for the Northern District of Ohio, King pled guilty to one count of violating 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm. 59 King had three prior robbery convictions that qualified as predicate offenses under the ACCA.60 All three of the offenses occurred on the same d—ay February 18, 2002.61 The issue on appeal to the Sixth Circuit was whether King committed the offenses on different occasions for the purpose of theA CCA.62 If King commi tted the offenses on different occasions, then theACCA’s mandatory minimum fifteen-year sentence would apply to him.63 A majority of courts have held that whether multiple previous convictions were committed on the same or different occasions depends on whether the underlying offenses arose from the same criminal episode or separate criminal episodes.64 Courts consider several relevant factors in determining whether 58 Brief of Plaintiff -Appellee, supra note 18, at 4 –6. King was at a gas station standing next to the open driver’s side door of his vehicle, which was playing music loud enough to violate local noise ordinances. Id. at 4. Officers Aaron Reese and Vu Nguyen approached King and askedfor his driver ’s license. Id. In response, King moved toward the open door of his vehicle, and the officers feared that he was reaching for a weapon. Id. The officers approached King, and King fought Officer Nguyen. Id. at 4–5. During the fight, King twice reached into his front waistband, causing the officers to fear that he was reaching for a weapon. Id. Despite Officer Reese’s commands for him to stop, King continued to fight Officer Nguyen. Id. at 5. Officer Reese tased King for a single fives-econd cycle, and the officers were able to subdue and handcuff King. Id. When the officers searched King and his vehicle, they found one plastic bag of crack cocaine, one plastic bag of marijuana, and cash on King’ s person, and a loaded semi-automatic weapon in his vehicle. Id. 59 King, 853 F.3d at 268–69; Brief of Appellant, Errol King, supra note 18, at 5. On September 16, 2014, a federal grand jury indicted King with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Brief of Appellant, Errol King, supra note 18, at 5. Originally, at his arraignment, King pled not guilty to this count, but, on February 18, 2015, he withdrew his plea of not guilty and entered a plea of guilty. Id. 60 King, 853 F.3d at 269; Brief of Plaintiff -Appellee, supra note 18, at6.AccordingtothePretrial Services and Probation Department in its PSR, King had three convictions—(1) attempted robbery, (2) robbery, and (3) two counts of robbery and one count of attempted robbery—which qualified as predicate offenses for the purposes of the ACCA. Brief of Plaintif-fAppellee, supra note 18, at 6; Brief of Appellant, Errol King, supra note 18, at 6–7. A PSR, or presentence investigation report, is “[a] probation officer ’s detailed account of a convicted defendant ’s educational, criminal,family,and social background, conducted at the cour’ts request as an aid in passing sentence”. PresentenceInvestigation Report, BLACK’S LAW DICTIONARY (10th ed. 2014). 61 King, 853 F.3d at 269; Brief of Plaintiff-Appellee, supra note 18, at 6–8. 62 King, 853 F.3d at 268. 63 Id. 64 Linney, 819 F.3d at 751 (stating that “[t]o prove that each offense was committed on a different occasion, the government must show that each offense arose out of a ‘separate and distinct criminal episode’” (quoting Boykin, 669 F.3d at 470)); Jondavid S. DeLong, Annotation,What Constitutes offenses arose from the same or distinct criminal episodes. 65 These factors i nclude the location and time of each offense, whether the offenses share the same victims, collaboration with other criminals, mode of operation, criminal objective, type of offense, and firearm use. 66 When considering these factors, various evidentiary sources may be available for the sentencing court to rely upon.67 In King’s case, the evidentiary sources potentially available for consult ation were: indictments, transcripts of plea colloquies, journal entries memoria lizing guilty pleas, and bills of particular6s8. Each of the three indictments named the victim(s) and the date of the robbery6.9 None of the three indictments described when and where the offenses occurred.70 King’s plea colloquies might have included the times and locations of the offenses, but the tra nscripts were no longer available. 71 Three bills of particulars, however, did contain the times and locations of the offenses, and they indicated that the three offenses occurred approximately twenty-five minutes apart from each other and at different locations in the same city.72 In sentencing King, the United States District Court for the Northern Di strict of Ohio relied on these three bills of particulars containing the times and locations of the offenses.73 Through this evidence, the court determined that Three Previous Convictions for Offenses Committed on Occasions Different from One Another for Purpose of Sentence Enhancement Under Armed Career Criminal Act, 18 U.S.C.A. §924(e), 123 A.L.R. Fed. 397 (1995). 65 DeLong, supra note 64. 66 Id. For example, courts have held that defendants ’ three prior convictions were distinct crim inal episodes because they were committed on three different days, even though the convictions were for the same type of offense.See, e.g., United States v. Medina-Gutierrez, 980 F.2d 980 (5th Cir. 1992); United States v. Bolton, 905 F.2d 319 (10th Cir. 1990). 67 See King, 853 F.3d at 269 (explaining information contained in several available evidentiary sources). 68 Id.; Brief of Plaintiff-Appellee, supra note 18, at 6–10; Brief of Appellant, Errol King, supra note 18, at 7. A colloquy is “[a]ny formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant’s understanding of the proceedings and of the defendant ’s rights.” Colloquy, supra note17. A plea colloquy, specifically, is “[a]n open-court dialogue between the judge and a criminal defendant, usu[ally] just before the defendant enters a plea, to establish that the defendant understands thecons equences of the plea.” Plea Colloquy, supra note 17. 69 King, 853 F.3d at 269; Brief of Appellant, Errol King, supra note 18, at 7–8. 70 King, 853 F.3d at 269; Brief of Appellant, Errol King, supra note 18, at 7–8. 71 King, 853 F.3d at 269. Even though the journal entries memorializing King’ s guiltypleaswere available, they did not include the times or locations of the offenses. Id. 72 Id. All three robberies took place on February 18, 2002, in Cleveland, Ohio. Id. The three bills of particulars stated that the first robbery happened at approximately 7:00 PM at 740 Euclid Avenue, the second robbery occurred at approximately 7:27 PM at 1000 Barn Court,andthethirdrobberytook place at approximately 7:50 PM at East 21st and Euclid. Id. 73 Id. at 270. The district court adopted the government ’s argument that the Taylor- and Shepardevidentiary restrictions did not apply to the differen-toccasions inquiry based on a footnote in the Sixth Circuit’s decision in United States v. Thomas in 2000 stating that the evidentiary restrictions in King committed his three predicate offenses on different occasions, and thus the ACCA applied to him.74 The district court sentenced King under the ACCA, and King appealed to the Sixth Circuit, arguing that no Taylor-Shepardapproved evidence supported that his prior offenses were committed on diffe rent occasions.75 King based his appeal on the fact that the bills of particulars were the only documents containing the times and locations of the offenses, and neither Taylor nor Shepard approved a bill of particulars as an evidentiary source.76 Further, the evidence that the court could properly consider did not contain suff icient information to demonstrate that his offenses were committed on different occasions.77 In response, the government argued, first, that the Taylor-Shepard evidentiary restrictions apply only to the ACCA -predicate question.78 Second, the government argued that, even if the restrictions apply, the bills of partic ulars fall within the enumerated classes of evidence.79 Alternatively, the government argued that, even if the sentencing court could not rely on the bills of particulars, the indictments and journal entries supported the finding that King committed his prior offenses on different occasions. 80 Even though the district court agreed with the government’ s primary argument that the evidentiary r estrictions do not apply to the ACCA-predicate question, the Sixth Circuit rejected all three of the government’s arguments.81 II. CIRCUITS IN CONFLICT OVER EVIDENTIARY SOURCES RELIED UPON TO ANSWER THE ACCA’S DIFFERENT-OCCASIONS QUESTION In United States v. King, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that the United States v. Taylor and Shepard v. United States evidentiary restrictions apply to the different-occasions inquiry. 82 Consequently, in King, the Sixth Circuit held that a sentencing court answering the different -occasions question cannot rely on bills of particulars, which were not approved in either Taylor or Shepard.83 In contrast, the Eighth Circuit introduced the possibility of a circuit split when, in a per curiam decision in United States v. Evans, it followed an earlier dec ision allowing a sentencing court to rely on a presentence report (“PSR”) for the different-occasions inquiry.84 A. Second, Fourth, Fifth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits Hold in Favor of Only Taylor-Shepard-Approved Evidentiary Sources In King, the Sixth Circuit extended the Supreme Court’s Taylor-Shepard evidentiary restrictions on the ACC A-predicate question to the differe-nt occasions inquiry.85 In so doing, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits, all of which had previously reached the same conclusion that the Taylor-Shepard evidentiary limitations apply to the different -occasions question. 86 In King, the Sixth Circuit held that a sentencing court cannot rely on bills of particulars in deciding the different occasions question because neither Taylor nor Shepard approved them.87 In King, the Sixth Circuit reasoned that the Taylor Court’s analysis of the ACCA’s legislative history and the Shepard Court’s constitutional concerns r eFuller, 453 F.3d 274, 279 (5th Cir. 2006); United States v. Harris, 447 F.3d 1300, 1305 (10th Cir. 2006); United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005). 83 King, 853 F.3d at 275. 84 See United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (following United Statesv.Richardson in rejecting Sixth Amendment challenges to the district court ’s determination of the different occasions question); United States v. Richardson, 483 F.App’x 304, 305, 305 n.3 (8th Cir. 2012) (affirming the district court’s reliance on a PSR to determine that the defendant committed his prior offenses on different occasions, and footnoting that United States v. Shepard does not apply to the different-occasions question). 85 King, 853 F.3d at 273. 86 Id. at 273–74; see, e.g., Dantzler, 771 F.3d at 139 (holding that a sentencing court cannot rely on a PSR for the purposes of the differen-otccasions inquiry because it is not aTaylor v. United States-Shepard-approved evidentiary source); Kirkland, 687 F.3d at 886, 886 n.9 (holding that sentencing courts deciding the different-occasions question can rely upon only evidentiary sources approved in Taylor and Shepard); Boykin, 669 F.3d at 472 (holding that the sentencing court erred when it relied on a PSR for the purposes of the different -occasions inquiry without first determining that the PSR derived from evidentiary sources approved in Shepard); Sneed, 600 F.3d at 1332–33 (holding that sentencing courts cannot rely on police reports to answer the different -occasions question because Shepard did not approve police reports as an evidentiary source); Thomas, 572 F.3d at 950 (holding that sentencing courts cannot rely on PSRs with potentially unreliable information in order to determine whether a defendant committed prior offenses on different occasions and that the sentencing court should have relied on two available indictments because indictments are one of the evidentiary sources that Taylor and Shepard approved); Fuller, 453 F.3d at 279 (holding that a sentencing court deciding the different-occasions question can rely on only Shepard-approved evidentiary sources); Harris, 447 F.3d at 1305 (noting that sentencing courts cannot rely on PSRs for the diff-erent occasions inquiry if the PSRs do not comply withShepard); Taylor, 413 F.3d at 1157 (noting that sentencing courts deciding the different-occasions question must comply with Shepard). 87 King, 853 F.3d at 275. gardingtheACCA -predicate question alsoapplytothe different -occasions question.88 First, holding a (likely extensive) proceeding to answer the differen-t occasions question would amount to a “mini -trial,” that,accordingtothelegisl ative history, Congress sought to avoid. 89 Second,and more importantly, the Sixth Circuit agreed with the Supreme Court’s concerns about the defendant’s Sixth Amendment right to a jury trial.90 The Shepard Court was concerned that, if a judge found facts beyond the mere fact of a prior conviction, basing an ACCA sentence enhancement on this factual finding would violate theSixth Amendment.91 The Supreme Court reaffirmed this concern in 2013 inDescamps v. United States and again in 2016 in Mathis v. United States.92 In King, the Sixth Circuit explained that this concern applies to the differento-ccasions question also—if a judge were the factfinder regarding dates, times,andlocationsof prior offenses, this would raise the same Sixth Amendment concerns.93 B. Eighth Circuit Potentially Creates a Split by Suggesting in United States v. Evans That Taylor and Shepard’s Evidentiary Restrictions Do Not Apply to the Different-Occasions Inquiry In 2014, in a per curiam decision in Evans, the Eighth Circuit held that the United States District Court for the Western District of Missouri did not violate the Sixth Amendment when it concluded that the defendant committed his prior offenses on different occasions.94 In so deciding, the Eighth Circuit followed its per curiam decision in United States v. Ramsey in 2013.95 In its Evans decision, the Eighth Circuit also followed its dec ision in United States v. Richardson in 2012, where it held that the United States District Court for the Eastern District of Missouri’s reliance on a PSR for the differen-toccasions inquiry did not violate the Sixth Amendment. 96 In Richardson, the Eighth C ircuit footnoted that Shepard’s restrictions on evidentiary sources do not apply to the different -occasions question. 97 In relying on Richardson, the Eighth Ci rcuit in Evans did not clearly hold, but at least strongly suggested, that, in this circuit, sentencing courts are not restricted to relying only Shoenpardapproved evidentiary sources when deciding the differe-notccasions question.98 III. CONGRESS SHOULD AMEND THE ACCA TO RESOLVE THE CONFLICT BETWEEN SUPREME COURT CASE LAW AND CONGRESSIONAL INTENT The Sixth Circuit decided correctly in United States v. King because it properly followed the Supreme Court’s precedent set forth in United States v. Moreover, [Shepard], which Richardson cites, is not applicable here. In Shepard, the Supreme Court limited the materials that a district court could consider to determine whether a defendant who had been convicted under an overinclusive statute had been convicted of a predicate offense. Richardson has not alleged that the drug distribution and sales statutes under which he was convicted are overinclusive or that those prior convictions were for something other than a serious drug offense. Id. The defendant argued that no Shepard-approved documents contained information supporting that he committed his prior offenses on different occasions, and thus, when the district court concluded that he committed his prior offenses on different occasions, it violated the Sixth Amendment. Id. at 305. Therefore, when the Eighth Circuit states in the footnote that Shepard “is not applicable here,” the court means that Shepard does not apply to the ACCA ’s different-occasionsinquiry. See id. at305 & n.3 (explaining that Shepard is not applicable “here,” meaning in this case, where the defendant argues that the court cannot sentence him under the ACCA because noShepard-approved sources contain sufficient evidence to prove that he committed his prior offenses on different occasions). 98 See Evans, 738 F.3 d at 936 (explaining that the Eighth Circuit has allowed at least one senten cing court to rely on a PSR to determine that a defendant committed prior offenses on different occ asions); Richardson, 483 F. App’x at 305, 305 n.3 (affirming the sentencing court ’s reliance on a PSR to conclude that the defendant committed prior offenses on different occasions and should be sentenced under the ACCA). Moreover, in Richardson, the Eighth Circuit affirmed the district court’s judgment that the defendant committed his prior offenses on different occasions, and thus the ACCA applied to him. Richardson, 483 F. App’x at 303– 05. The district court ’s conclusion that the defendant committed his prior offenses on different occasions relied on the PSR. Id. at 305. Thus, in allowing sentencing courts to rely on PSRs for the different-occasions inquiry, the Eighth Circuit is allowing sentencing courts to rely on an evidentiary source not approved in either Taylor or Shepard. See Shepard v. United States, 544 U.S. 13, 26 (2005) (listing charging documents, plea agreements, and coll oquy transcripts, and not listing PSRs, as the evidentiary sources allowed for the ACCApr-edicate question); Taylor v. United States, 495 U.S. 575, 602 (1990) (listing statutory definitions, charging papers, and jury instructions, and not listing PSRs, as the evidentiary sources sentencing courts can rely upon to decide whether a prior offense is an ACCA predicate); Richardson, 483 F. App’x at 305 (affirming the sentencing court’s reliance on a PSR to conclude that the defendant committed prior offenses on different occasions). Taylor and Shepard v. United States .99 In the context of the ACCA’s different occasions question in King, howe ver, the Taylor-Shepard reasoning leads to an absurd result that conflicts with Congressional intent.100 To resolve this conflict, Congress should amend the ACCA to enumerate the evidentiary sources that sentencing courts can rely on for the different-occasions inquiry.101 In King, the Sixth Circuit had to decide which evidentiary sources a se ntencing court can rely on for the different -occasions question because the A CCA’s text does not enumerate these sources. 102 In Taylor and Shepard, the Supreme Court had tomake the same decision with respect to the ACC-A predicate question because the ACCA’s text does not enumerate these sources either.103 Even though the questions are different, in 2014, in United States v. Dantzler, the Second Circuit noted that the Supreme Court’s reasoning in Taylor and Shepard controls a court’s interpretation of the ACCA’s differe-nt occasions question.104 Thus, in King, the Sixth Circuit was correct to follow 99 See United States v. Dantzler, 771 F.3d 137, 145–46 (2d Cir. 2014) (holding that sentencing courts deciding the ACCA different-occasions question must follow the evidentiary restrictions in United States v. Taylor and Shepard v. United States). 100 See Shepard v. United States, 544 U.S. 13, 30, 35– 36 (2005) (O ’Connor, J., dissenting) (arg uing that the majority ’s restrictions on evidentiary sources make sentencing under the ACCA arbitrary and dependent on states’ “record retention policies” and “lead[] . . . not only to an absurd result, but also to a result that Congress plainly hoped to avoid”). 101 See Shepard, 544 U.S. at 35 –36 (O’Connor, J., dissenting) (arguingthatthe majority’sevidentiary restrictions on the ACCA-predicate question conflict with Congress’s intent for the ACCA to “incapacitat[e] repeat violent offenders ” and “lead[] . . . to an absurd result . . . that Congress plainly hoped to avoid”); Levine, supra note 2, at 549 (arguing that Congress should amend the ACCA to “bring[] it into conformity with the Sentencing Guidelines promulgated by the U.S. SentencingCommission”); Marano, supra note 15, at 183 (arguing that Congress should amend the ACCA to define “occasions different from one another ” so that sentencing courtsdonothavetoanalyzeprioroffenses ’ underlying facts); Poli, supra note 15, at 212 (arguing that the best solution to courts applying the ACCA residual clause inconsistently is for Congressto amend the ACCA to“enumerat[e] which crimes are violent felonies”). 102 See Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012) (not enumerating the types of evidence allowed under the different -occasions inquiry); United Statesv. King,853F.3d267, 270–73 (6th Cir. 2017) (analyzing Supreme Court precedent, legislative history, and constitutional concerns and holding that theTaylor and Shepard evidentiary restrictions apply to the ACCA’s differentoccasions inquiry). 103 See 18 U.S.C. § 924(e) (not enumerating the types of evidence allowed under the ACCApredicate question). See generally Shepard, 544 U.S. 13 (holding that a sentencing court deciding whether a burglary offense is an ACCA -predicate cannot rely on police reports and is limited to “examining the statutory definition, charging document, written plea agreement, transcript of plea coll oquy, and any explicit factual finding by the trial judge to which the defendant assented”); Taylor v. United States, 495 U.S. 575 (1990) (holding that a sentencing court deciding whether a burglary offense is an ACCA -predicate can relyon the statutory definition,chargingpaper,andjuryinstructions). 104 Dantzler, 771 F.3d at 143, 146. When deciding which evidentiary sources a sentencing court can relyon to answer the different -occasions question in United States v. Dantzler , the Eighth Circuit explained: “Although Taylor and Shepard involved the question of whether predicate offenses under the ACCA were ‘violent felonies,’ the reasoning underlying those decisions applies with equal force to the analysis of whether the offenses were committed ‘on occasions different from oneanother. ’” Id. the Taylor-Shepard reasoning.105 Furthermore, the Sixth Circuit followed the Supreme Court’s reasoning precisely and accurately to reach its conclusion that the Taylor-Shepard evidentiary source restrictions apply to the different occasions question.106 Nevertheless, the Sixth Circuit’s conclusion is inconsistent with congre ssional intent underlying theACCA. 107 Congress intended for the ACCA to assist law enforcement in reducing the number of armed career criminals because these repeat offenders are highly dangerous to society. 108 Dissenting in Shepard, Justice O’Connor argued that the Taylor-Shepard evidentiary restrictions on the ACCA-predicate question risk that some of these dangerous habitual criminals will not be sentenced under the ACCA. 109 Rather than depending on whether defendants actually committed their prior defenses on different occ asions, sentencing will hinge on whether state courts preserve records of approved evidentiary sources. 110 When a defendant who should be sentenced u nder the ACCA does not receive the ACCA’s mandatory minimum fifteen-year at 143. Again, the court noted, “we are bound by the Court ’s opinions in Taylor and Shepard regarding the sources that may be consulted for purposes of sentencing under the ACCA.” Id. at 146. 105 See King, 853 F.3d at 271– 73 (determining the types of evidence allowed for the ACCA di fferent-occasions question by analyzing Taylor and Shepard); Dantzler, 771 F.3d at 145 –46 (holding that sentencing courts deciding the ACCA different-occasions question must follow the evidentiary restrictions in Taylor and Shepard). 106 See King, 853 F.3d at 271 –73 (following the Taylor Court’s analysis of legislativehistoryand the Shepard Court’s analysis of constitutional concerns). 107 See Shepard, 544 U.S. at 35–36 (O’Connor, J., dissenting) (arguing that evidentiaryerstrictions on the ACCA -predicate question conflict with Congress’s intent for theACCA to “incapacitat[e] repeat violent offenders”). 108 Taylor, 495 U.S. at 581 (stating that “[t]he [ACCA] was intended to supplement the States’ law enforcement efforts against ‘career’ criminals”); H.R. REP. NO. 98–1073,at1(1984), asreprinted in 1984 U.S.C.C.A.N. 3661, 3661 (stating that “[t]his bill is designed to increase the participation of the federal law enforcement system in efforts to curb armed, habitual (career) criminals”); Hooper, supra note 15, at 1952 –53 (stating that the ACCA inten ds “to help state authorities more effectively prosecute ‘career criminals’”); Lamprecht, supra note 15, at 1411 (noting that the ACCA intends to reduce habitual criminals’ crimes); Levine, supra note 2, at 545–46 (explaining that the ACCA’s purpose is to help law enforcement incapacitate dangerous repeat offenders); Marano, supra note 15, at 175 (stating that the ACCA intends to “reduce crimes committedbyarmed,careercriminals ”);Poli, supra note 15, at 203 (noting that the ACCA’s purpose is “to protect society from violent habitual criminals” and “to aid law enforcement efforts against [these] criminals ”); Runyon, supra note 2, at 450 (explaining that the ACCA ’s purpose is to assist law enforcement efforts to stop career criminals from reoffending); see also H.R. REP. NO. 98–1073, at 2 (stating that “[b]othCongress andlocal prosecutors around the nation have recognized the importance of incapacitating[thesmall group of] repeat offenders [who are responsible for a large number of crimes]”). 109 Shepard, 544 U.S. at 30, 36–37 (O’Connor, J., dissenting). 110 Id. at 36–37 (“[T]he majority opinion today injects a new element of arbitrariness into the ACCA: A defendant ’s sentence will now depend not only on the peculiarities of thestatutes particular States use to prosecute generic burglary, but also on whether those States’ record retention policies happen to preserve the musty ‘written plea agreement[s] ’ and recordings of ‘plea colloquy[ies]’ ancillary to long-past convictions.”). sentence merely because of the evidentiary restrictions, this is an absurd result that is inconsistent with Congress’s intent and that Congress wanted to avoid.111 Errol Dontes King exemplifies Justice O’Connor’s concerns.112 King is one of the armed habitual criminals that Congress wanted to remove from s ociety because he embodies all of the concerns about dangerous repeat offen ders that Congress raised in the ACCA’s legislative history. 113 First, King prev iously committed three robberies.114 Second, he committed these offenses on different occasions because the robberies happened at different times and loc ations.115 Also, King possessed a firearm—specifically, a semi-automatic pistol.116 Moreover, he continued to pose a danger to society, not only by possessing a firearm, but also by resisting arrest and fighting police officers.117 Despite all of this, King was not sentenced under the ACCA because the approved evidentiary sources did not contain sufficient details to conclude that he committed his prior offenses on different occasions1.18 Had the state courts 111 See id. at30,35 –37 (arguing that the majority ’s restrictions on evidentiary sources make se ntencing under the ACCA arbitrary and dependent on states ’ “record retention policies ” and “lead[] . . . not only to an absurd result, but also to a result that Congress plainly hoped to avoid”). 112 See id. (arguing that evidentiary restrictions on the ACCA-predicate question make ACCA sentencing arbitrary and do not fulfill the ACCA ’s goal of “incapacitating repeat violent offenders ”). See generally King, 853 F.3d 267 (holding that a sentencing court deciding the ACCA differe-nt occasions inquiry could not rely on bills of particulars, which were the only documents showing that the defendant—who was a felon in possession of a firearm—committed his three prior robbery offenses on different occasions); Brief of Plaintiff -Appellee, supra note 18 (describing the defendant ’s three prior robbery offenses and his violent altercation with police officers, where he appeared to reach for a loaded semi-automatic weapon in his vehicle). 113 See H.R. REP. NO. 98–1073, at 2 (noting that “[b]oth Congress and local prosecutors around the nation have recognized the importance of incapacitating [the small group of] repeat offenders [who are responsible for a large number of crimes] ”); Brief of Plaintiff-Appellee, supra note18,at4– 6 (describing King’s altercation with police and his possession of illicit drugs and a semi-automatic weapon); Levine, supra note 2, 545–46 (explaining that the ACCA ’s purpose is to help law enforc ement incapacitate dangerous repeat offenders); Poli, supra note 15, at 203 (explaining that the ACCA’s purpose is “to protect society from violent habitual criminals”). 114 King, 853 F.3d at 269; Brief of Plaintiff-Appellee, supra note 18, at 6. 115 See King, 853 F.3d at 269 (describing the defendant’s three prior robbery offenses, which occurred 25 minutes apart and at different locations in Cleveland, Ohio). 116 Brief of Plaintiff-Appellee, supra note 18, at 5. At the time of his arrest, King had a loaded semi-automatic pistol in his vehicle. Id. 117 See Brief of Plaintiff -Appellee, supra note 18, at 4– 6 (describing King’ s altercation with p olice). During King’ s altercation with the two police officers, theofficers feared that King was reaching for a weapon in his vehicle and in his waistbandI.d. at 4–5. The loaded semi-automatic pistol in King’s vehicle was located near the driver’s seat, where King was reaching.Id. at 5. Furthermore, after his arrest, King told the police officers he would have a gun on him anytime they see him. Id. at 6 (noting that King stated “if you ever see my face, I will have a gun on me. You know how it is out there. I know the consequence.”). 118 King, 853 F.3d at 269. Bills of particulars contained the times and locations of King’ s offenses, but bills of particulars are not a Taylor-Shepard-approved evidentiary source. Id. at269,275,278. Indictments are a Taylor-Shepard-approved evidentiary source, but King’ s three indictments did not contain the times or locations of his offenses. Id. at 269, 271. kept better records, King might have been sentenced under theACCA. 119 Thus, evidentiary restrictions on the ACCA’s different -occasions inquiry make sentencing under the ACCA arbitrary.120 That King was not sentenced under the ACCA conflicts with Congress’s intent and is an absurd result.121 The Supreme Court could grant certiorari to resolve the circuit split as well as the conflict between case law and legislative intent1.22 The Supreme Court could allow sentencing courts more flexibility to rely upon different ev identiary sources for the differen-toccasions inquiry to achieve results that comply with congressional intent.123 Allowing sentencing courts to rely on a greater variety of evidentiary sources would avoid the King result where sentencing is arbitrary an d depends on whether the approved evidentiary sources 119 See id. at 269 (explaining that transcripts of King’ s plea colloquies were no longer available due to Ohio state courts’ record-keeping practices). 120 See Shepard, 544 U.S. at 36–37 (O’Connor, J., dissenting) (arguing that evidentiaryerstrictions on the ACCA -predicate question make sentencing under the ACCA arbitrary because sentencing will depend on whether state courts ’ “record retention policiespreservethe[approved evide ntiary sources, which are] ancillary to long-past convictions”). 121 See id. at 30, 35 –36 (stating that the ACCA ’s goal is to “incapacitat[e] repeat offenders, ” and arguing that evidentiary restrictions on the ACCA-predicate question make ACCA sentencing arbitrary and “lead[] . . . to an absurd result . . . that Congress plainly hoped to avoid” ); H.R. REP. NO. 98– 1073, at1– 2 (stating that the purpose of the ACCA is to incapacitate armed repeat offenders); Hooper, supra note 15, at 1952 –53 (stating that the ACCA intends “to help state authorities more effectively prosecute ‘career criminals’”); Lamprecht, supra note 15, at 1411 (noting that the ACCA intends to reduce habitual criminals’ crimes); Levine, supra note 2, 545–46 (explaining that the ACCA’s purpose is to help law enforcement incapacitate dangerous repeat offenders); Marano, supra note 15, at 175 (stating that the ACCA intends to “reduce crimes committed by armed, career criminals ”); Poli, supra note 15, at 203 (stating that the ACCA intends “to protect society from violent habitual crim inals” and “to aid law enforcement efforts against [these] criminals”); Runyon, supra note 2, at 450 (explaining that the ACCA ’s purpose is to assist law enforcement efforts tostop career criminals from reoffending). 122 See STEPHEN M. SHAPIRO, KENNETH S. GELLER, TIMOTHY S. BISHOP, EDWARD A. HARTNETT & DAN HIMMELFARB, SUPREME COURT PRACTICE: FOR PRACTICEINTHE SUPREME COURTOF THE UNITED STATES 243 (10th ed. 2013) (“The Supreme Court often, but not always , will grant certiorari where the decision of a federal court of appeals, as to which review is sought, is in direct conflict with a decision of another court of appeals on the same matter of federal law or on the same matter of general law as to which federal courts can exercise independent judgments.”); see, e.g., Shepard,544 U.S. at 19 (granting certiorari to resolve conflict among Courts of Appeals regarding the application of the Supreme Court’s decision in Taylor to cases where the defendant pleaded guilty to the prior convictions that co uld be ACCA predicate offenses); Taylor, 495 U.S. at 579 –80 (granting certiorari to address Courts of Appeals’ conflicting decisions regarding the definition of theterm“burglary ” for purposes of the ACCA). 123 See Shepard, 544 U.S. at 30, 35–37 (O’Connor, J., dissenting) (arguing that the majority’s evidentiary restrictions on the ACCA -predicate question conflictwithcongressionalintentunderlying the ACCA and lead to an absurd result, and, instead, the Court should adopt a rule that is consistent with the ACCA’s goal of “incapacitating repeat violent offenders”); Marano, supra note 15, at 183 (arguing that Congress should amend the ACCA to define “occasions different from one an other” so that sentencing courts do not have to analyze prior offenses’ underlying facts). are still available and sufficiently detailed. 124 This result would allow the Court to maintain its Taylor and Shepard precedents regarding the ACCA -predicate question and create a new analysis for the di fferent-occasions question.125 Alternatively, Congress should amend the ACCAto enumerate which e videntiary sources sentencing courts can rely upon for the different-occasions inquiry.126 Congress could also use this opportunity to enumerate the evide ntiary so urces for the ACCA -predicate question as well. 127 Given that the goal is for sentencing courts to apply the ACCA consistent with Congress’s intent, Congress is in the best position to reshape the ACCA to function as Congress intends.128 124 See Shepard, 544 U.S. at 30, 35–37 (O’Connor, J., dissenting) (arguing that the majority’s evidentiary restrictions on the ACCA -predicate question conflictwithcongressional intent underlying the ACCA and lead to an absurd result, and, instead, the Court should adopt a rule that is consistent with the ACCA’s goal of “incapacitating repeat violent offenders”); Marano, supra note 15, at 183 (arguing that Congress should amend the ACCA to define “occasions different from one another ” so that sentencing courts do not have to analyze prior offenses’ underlying facts). 125 See Shepard, 544 U.S. at 30, 35–37 (O’Connor, J., dissenting) (arguing that the majority’s evidentiary restrictions on the ACCA -predicate question conflictwithcongressionalintentunderlying the ACCA and lead to an absurd result, and, instead, the Court should adopt a rule that is consistent with the ACCA’s goal of “incapacitating repeat violent offenders”); Marano, supra note 15, at 183 (arguing that Congress should amend the ACCA to define “occasions different from one another ” so that sentencing courts do not have to analyze prior offenses’ underlying facts). 126 See Shepard, 544 U.S. at 35 –36 (O’Connor, J., dissenting) (arguingthatthemajority ’sevidentiary restrictions on the ACCA-predicate question conflict with congressional intent underlying the ACCA and lead to an absurd result, and, instead, the Court should adopt a rule that is consi stent with the ACCA’s goal of “incapacitating repeat violent offenders ”); Levine, supra note 2, at 549 (arguing that Congress should amend the ACCA to “bring[] it into conformity with the Sentencing Guidelines promulgated by the U.S. Sentencing Commission” ); Marano, supra note15,at183 (arguingthatCongress should amend the ACCA to define “occasions different from one another” so that sentencing courts do not have to analyze prior offenses’ underlying facts); Poli, supra note 15, at 212 (arguing that the best solution to courts applying the ACCA residual clause inconsistently is for Congress to amend the ACCA to “enumerat[e] which crimes are violent felonies”). 127 See Shepard, 544 U.S. at 35 –36 (O’Connor, J., dissenting) (arguingthatthemajority ’sevidentiary restrictions on the ACCA-predicate question conflict with congressional intent underlying the ACCA and lead to an absurd result, and, instead, the Court should adopt a rule that is consistent with the ACCA’s goal of “incapacitating repeat violent of fenders”); Levine, supra note 2, at 549 (arguing that Congress should amend the ACCA to “bring[] it into conformity with the Sentencing Guidelines promulgated by the U.S. Sentencing Commission” ); Marano, supra note15,at183 (arguingthatCongress should amend the ACCA to define “occasions different from one another” so that sentencing courts do not have to analyze prior offenses’ underlying facts); Poli, supra note 15, at 212 (arguing that the best solution to courts applying the ACCA residual clause inconsistently is for Congress to amend the ACCA to “enumerat[e] which crimes are violent felonies”). 128 See Levine, supra note 2, at 549 (arguing that Congress should amendtheACCAto “bring[] it into conformity with the Sentencing Guidelines promulgated by the U.S. Sentencing Commission” ); Marano, supra note 15, at 183 (arguing that Congress should amend the ACCA to define “occasions different from one another ” so that sentencing courts do not haveto analyze prior offenses ’ underlying facts); Poli, supra note 15, at 212 (arguing that the best solution to courts applying theACCA residual clause inconsistently is for Congress to amend the ACCA to “enumerat[e] which crimes are violent felonies”). CONCLUSION TheACCAimp oses a lengthy fifteen -year mandatory minimum sentence on armed career criminals in order to reduce the number of these dangerous offenders in society. For theACCAto apply, the defendant must have commi tted three prior violent felony or serious drug offe nses on different occasions. In King, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that a sentencing court determining whether a defendant’s prior convictions were committed on different occasions can consider only the evidentiary sources that the Supreme Court approved in Taylor and Shepard—statutory definitions, charging documents, jury instructions, written plea agreements, transcripts of plea colloquies, and trial judges’factual findings that the defendant agreed to. The Sixth Circuit decided correctly in King that a sentencing court may not rely on bills of particulars in answering the ACCA’s different -occasions question because neither Taylor nor Shepard approved them. Nevertheless, the Taylor-Shepard-evidentiary restrictions resulted in King—who had three convictions for robbery and attempted robbery—not being sentenced under the ACCA, which is an absurd result that conflicts with Congress’s intent for theACCAto incapacitate dangerous rep eat offenders. To resolve the conflict between Supreme Court precedent and Co ngressional intent, Congress should amend the ACCA to enumerate which ev identiary sources a sentencing court may rely upon for the different -occasions inquiry. KAYLEIGH E. MCGLYNN 18 King, 853 F.3d at 268- 69; Brief of Plaintiff -Appellee at 6 , King , 853 F.3d 267 (No. 15 - 4192); Brief of Appellant, Errol King at 5 , King , 853 F.3d 267 (No. 15 - 4192 ). 19 King, 853 F.3d at 268-69; Brief of Plaintiff-Appellee, supra note 18 , at 6. 20 Armed Career Criminal Act of 1984 § 1202 (a). 21 Taylor, 495 U.S. at 581; H.R. REP . NO. 98 - 1073 , at 1 (stating “[t] hisbillisdesigned toincrease the participation of the federal law enforcement system in efforts to curb armed, habitual (career) criminals” ); Hooper, supra note 15, at 1952; Lamprecht, supra note 15, at 1411;Levine, supra note2, at 545-46; Marano, supra note 15, at 175; Poli, supra note 15, at 203; Runyon, supra note 2, at 450. 22 Taylor, 495 U.S. at 581; H.R. REP . NO. 98 - 1073 , at 1-2. 23 Hooper, supra note 15, at 1953; Levine, supra note 2, at 545; Poli, supra note 15, at 203; see H.R. REP . NO. 98 - 1073 , at 2 (stating that “both Congress and localpro secutorsaroundthe nationhave recognized the importance of incapacitating these repeat offenders,” referring to career criminals). Congress's intent to separate armed career criminals from society is consistentwiththeincapacitation theory of punishment . See Dawinder Sidhu, Moneyball Sentencing , 56 B.C. L. REV . 671 , 678 - 79 ( 2015 ) (stating that the theory of incapacitation is“premised on . . . separat[ing] the offender from others”). There are four primary theories of punishment -retribution, deterrence, incapacitation, and rehabilitation . Id. at677-78 . Under the theory of incapacitation, offenders are separatedfromsociety, thus preventing future harm and protecting society . Id. at 678. 24 Firearms Owners ' Protection Act § 104 . 25 Anti-Drug Abuse Act of 1986 § 1402; Firearms Owners ' Protection Act § 104 ; Taylor, 495 U.S. at 582. The Career Criminals Amendment Act of 1986 ( “CCAA”) is § 1402 of Section I of the Anti-Drug Abuse Act of 1986. Anti-Drug Abuse Act of 1986 § 1402 . 26 Anti-Drug Abuse Act of 1986 § 1402; Taylor, 495 U.S. at 582. The other two changes were to classify burglary as one of these violent felonies and the removal of the definitionof “burglary .” AntiDrug Abuse Act of 1986 § 1402; Taylor, 495 U.S. at 582. The legislative history suggests, however, that Congress may have accidentally deleted the definition of“burglary,” rather than this being a planned amendment . Taylor , 495 U.S. at 589-90. 27 Taylor, 495 U.S. at 583 ; 132 CONG. REC. 7697 ( 1986 ) (statement of S en . Arlen Specter) ; see Armed Career Criminal Legislation: Hearing on H .R. 4639 and H.R. 4768 Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 99th Cong., 2d Sess. 1 -2 ( 1986 ) (explainingthatthepurpose of the hearing was for the House of Representatives to discuss whether to expand the ACCA 's predicate offenses); Armed Career CriminalActAmendments:HearingonS .2312BeforetheSubcomm. on Criminal Law of the S. Comm. on the Judiciary, 99th Cong., 2d Sess . 1 ( 1986 ) (opening statement by Sen. Arlen Specter stating that “[he] think[s] the experience in the past year with the [ACCA] has been excellent,” and it is “time . . . to expand the [ACCA] to include other offenses, which S. 2312 seeks to do”). 28 Anti-Drug Abuse Act of 1988 § 7056 . 29 Id. See generally King , 853 F.3d 267 ( deciding whether a sentencing court is permitted to rely upon bills of particulars for the ACCA's different-occasions inquiry). 30 See Anti-Drug Abuse Act of 1988 § 7056 (describing the amendment as a“clarification of predicate offense requirements for [ACAA] ”); 134 CONG . REC. 32702 ( 1988 ) (remarksofSen .Joseph Biden) (describing § 7056 as clarifying the ACCA) . 31 134 CONG . REC. 32702 (remarks of Sen. Joseph Biden) ; see United States v . Petty , 798 F.2d 1157 , 1159 - 60 ( 8th Cir . 1986 ),vacated 481 U.S. 1034 ( 1987 ), rev'd, 828 F.2d 2 ( 8th Cir . 1987 ); Hooper, supra note 15, at 1965- 66 ; Levine, supra note 2, at 548; Marano, supra note 15, at 177. 32 Petty, 798 F.2d at 1159 -60. 33 134 CONG . REC. 32702 ( 1988 ) (remarks of Sen . Joseph Biden); Hooper,supra note 15, at 1966 . 34 134 CONG . REC. 32702 ( 1988 ) (remarks of Sen . Joseph Biden); Hooper,supra note 15, at 1966 . 35 Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602. 37 Armed Career Criminal Act , 18 U.S.C. § 924 ( e)(2)(B)(ii ) ( 2012 ). 38 See id. § 924 (e) (not enumerating the definition of “burglary”); Anti-Drug Abuse Act of 1986 § 1402 (not enumerating the definition of “burglary”); Taylor, 495 U.S. at582 (statingthattheCCAA removed the definition of “burglary” from the ACCA) . 39 Taylor, 495 U.S. at 580; United States v. Hill , 863 F.2d 1575 , 1582 , 1582 n. 5 ( 11th Cir . 1989 ) (surveying several burglary statutes). 40 Taylor, 495 U.S. at 580. 41 18 U.S.C. § 924 (e); Taylor, 495 U.S. at 598. 88 Id. at 272-73. 89 Id. at 273. 90 Id. 91 Id. 92 Id. See generally Mathis v . United States , 136 S. Ct . 2243 ( 2016 ) (explaining that a sentencing court deciding whether a prior offense is an ACCA predicate can look to the elements of the offense but not the underlying facts); Descamps v . United States , 570 U.S. 254 ( 2013 ) (explaining that a sentencing court deciding the ACCA -predicate question must use a categorical approach, comparing the elements of the offense, not a factual approach). 93 King, 853 F.3d at 273. 94 Evans, 738 F. 3d at 936 (rejecting the defendant 's Sixth Amendment argument that the district court should not have decided the ACCA different -occasions question because it is a factual determ ination on the basis that the court has previously rejected similar arguments). The phrase “percuriam” means “[b]y the court as a whole.” Per Curiam, BLACK'S LAW DICTIONARY (10th ed. 2014 ). A per curiam opinion is “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Opinion, BLACK'S LAW DICTIONARY (10th ed. 2014 ). 95 Evans, 738 F.3d at 936. See generally United States v . Ramsey , 498 F. App 'x 653 (8th Cir . 2013 ) (per curiam) (holding that a judge' s decision that a defendant 's prior offenses were committed on different occasions for the purposes of the ACCA does not violate the defendant 's Sixth Amendment right to a jury trial). 96 Evans, 738 F. 3d at 936 (finding that “[m]oreover, we have rejected similar Sixth Amendment arguments challenging the information th e district court considers when determining the specific dates on which the offenses occurred ”); Richardson, 483 F. App 'x at 305 . 97 Richardson, 483 F. App 'x at 305 n.3 . In Richardson, the Eighth Circuit explained:


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Kayleigh E. McGlynn. Incapacitating Dangerous Repeat Offenders (or Not): Evidentiary Restrictions on Armed Career Criminal Act Sentencing in United States v. King, Boston College Law Review, 2018,