United States 6th Circuit Court of Appeals Reports
U.S. v. WELLS, 05-6263 (6th Cir. 1-9-2007) UNITED STATES OF
AMERICA, Plaintiff-Appellee/Cross-Appellant, v. ALMON D.
WELLS, Defendant-Appellant/Cross-Appellee. Nos. 05-6263,
05-6514. United States Court of Appeals, Sixth Circuit.
Argued: November 28, 2006. Decided and Filed: January 9,
2007. Pursuant to Sixth Circuit Rule 206.
Appeal from the United States District Court for the
Eastern District of Tennessee at Knoxville. No. 04-00020
— R. Leon Jordan, District Judge.
ARGUED: Kim A. Tollison, FEDERAL DEFENDER SERVICES,
Knoxville, Tennessee, for Appellant.
Steve H. Cook, ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee.
ON BRIEF: Kim A. Tollison, FEDERAL DEFENDER SERVICES,
Knoxville, Tennessee, for Appellant.
Steve H. Cook, ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee.
Before: DAUGHTREY and GIBBONS, Circuit Judges; EDMUNDS,
District Judge.[fn*]
[fn*] The Honorable Nancy G. Edmunds, United States District
Judge for the Eastern District of Michigan, sitting by
designation.
OPINION
MARTHA CRAIG DAUGHTREY, Circuit Judge.
The appeal in this case presents a question of first
impression in this circuit: whether for purposes of
recidivist sentencing under the Armed Career Criminal Act,
18 U.S.C. § 924(e), a prior adjudication of juvenile
delinquency is subject to characterization under the
“categorical approach” mandated for the review of prior
adult convictions by Taylor v. United States, 495 U.S. 575
(1990), and Shepard v. United States, 544 U.S. 13 (2005).
We hold that it is.
The defendant, Almon Wells, pleaded guilty to one charge of
being a felon in possession of ammunition and to a second
charge of being a felon in possession of a firearm, based
on his arrest in two separate shooting incidents. After the
district court sentenced him to consecutive prison terms of
120 months and 80 months, he appealed, contending that the
200-month sentence is unreasonable.[fn1] The United States
also filed an appeal and now contends that the district
judge erred both in designating the date on which Wells’s
sentence was to begin and in failing to find the defendant
to be an armed career criminal for sentencing purposes.
We conclude that the defendant’s sentence was reasonable
and that the district judge did not err in concluding that
the defendant did not have the three necessary predicate
convictions to justify sentencing under the Armed Career
Criminal Act. We therefore sustain the 200-month sentence.
However, we also conclude that the district court erred in
designating a commencement date for Wells’s sentence and
find it necessary to order a remand for the limited purpose
of deleting from the sentencing order the statement “This
sentence is effective as of August 11, 2005.”
FACTUAL AND PROCEDURAL BACKGROUND
At Wells’s guilty plea hearing, the government established
on the record that the defendant had pulled a gun during a
fight at a Knoxville club on April 27, 2003, and that he
had fired numerous shots from a semiautomatic pistol at a
Knoxville police officer on January 15, 2004, when that
officer approached the defendant in a city housing project.
The prosecutor also established that the weapons and
ammunition involved in the two incidents were manufactured
outside Tennessee and that Wells had, in 1999, been
convicted of prior felony offenses. Although the defense
would “not agree with those facts,” Wells’s counsel did
state in open court, “We will agree that on the first date
we possessed the ammunition. We will admit that on the
second date we possessed the weapon. We do admit we were
[sic] a convicted felon, and we do admit the interstate
nexus.”
Based upon those representations, the district court
accepted Wells’s guilty plea on April 22, 2004. The
sentencing hearing was not held, however, until August 11,
2005, well after the issuance of the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005).
At that time, the district judge recognized that
application of the sentencing guidelines to this matter
would yield a range of 140-175 months. Nevertheless, in
light of “the seriousness of the offense,” “to protect the
public from further crimes of this defendant,” and to
“deter others from engaging in this type of
life-threatening behavior,” the court imposed consecutive
sentences of 120 months on count one of the indictment and
80 months on count two. The district judge further denied
the government’s request to sentence Wells as an armed
career criminal and granted the defendant’s request to
declare the date of sentencing as the commencement date of
Wells’s federal prison term. Both Wells and the government
appealed from portions of the district court’s orders.
DISCUSSION
The Defendant’s Appeal
After Booker, we review sentences to determine whether they
are “reasonable,” both procedurally and substantively. See
United States v. Collington, 461 F.3d 805, 807-08 (6th Cir.
2006). Wells does not argue that the sentencing process was
unreasonable in this matter; instead, he contends that a
sentence within the guideline range of 140-175 months would
have been sufficient to satisfy the statutory sentencing
considerations. Specifically, he argues that the 200-month
sentence was substantively unreasonable because the
district court failed to recognize that the reasons given
for departing upward from the guideline range were already
taken into consideration by the various guideline factors
that had been utilized to calculate the guidelines range. As
a result, he argues, the district court gave “an
unreasonable amount of weight to” certain sentencing
factors. See United States v. Webb, 403 F.3d 373, 385 (6th
Cir. 2005) (footnote omitted), cert. denied, 126 S.Ct. 1110
( 2006).
In imposing punishment upon Wells, the district judge
stated:
First, considering the nature and circumstances of the
offenses charged, I make the following findings: the
defendant has been charged with and has pled guilty to two
violations of 18 U.S.C. section 922(g)(1). In this case,
the facts and circumstances giving rise to these two
charges are some of the most egregious in my experience.
I find that the government has satisfied its burden of
proving by a preponderance of the evidence that the
firearm possessed by Mr. Wells was stolen. The firearm was
reported stolen by Jimmy Henson in 2002, as evidenced by
the police report that’s been filed in this case.
When Officer Willis attempted to stop Mr. Wells after
receiving a report of shots fired, Mr. Wells, instead of
responding appropriately or instead of running away and
discarding the gun, stopped, he assumed a firing position,
and using the stolen firearm, fired four or five times at
Officer Willis and then engaged in a gun fight with
Officer Mattina.
Based on these facts, I find by a preponderance of the
evidence that the stolen firearm was used in connection
with another felony, the attempted first degree murder of
Officer Willis. What Mr. Wells did was clearly intentional
and premeditated. He had an opportunity to flee, he had
an opportunity to throw away the firearm; he turned, he
pointed the gun at Officer Willis and fired at him.
The proof also shows that Officer Willis was in uniform,
as were the other officers, and that he arrived at the
scene in his marked police cruiser. . . .
Concerning the history and characteristics of Mr. Wells,
I find that he has a noteworthy criminal history. He is 25
years old, but he has already earned a criminal history
category of six involving much violence. He clearly needs
anger management treatment. I’m going to make that a
recommendation to the Bureau of Prisons and also a
condition of his supervised release.
I further find that a sentence of 200 months is
necessary to reflect the seriousness of the offense and
to protect the public from further crimes of this
defendant. I would also like to think that this sentence
will deter others from engaging in this type of
life-threatening behavior. . . .
This term reflects an enhancement from the upper end of
the guideline range. It is felt the sentence will afford
adequate deterrence and will provide just punishment.
In reviewing this sentence to determine whether it is
substantively reasonable, we start with a “presumption of
reasonableness” “[w]hen the district court issues a
within-guidelines sentence.” United States v. Davis, 458
F.3d 491, 496 (6th Cir. 2006), pet. for cert. filed, (U.S.
Nov. 13, 2006) (No. 06-7784). Of course, this “does not mean
that a sentence outside of the Guidelines range —
either higher or lower — is presumptively
unreasonable. It is not.” United States v. Foreman, 436
F.3d 638, 644, (6th Cir. 2006). But, “when the district
court independently chooses to deviate from the advisory
guidelines range (whether above or below it), we apply a
form of proportionality review: ‘the farther the judge’s
sentence departs from the guidelines sentence . . . the
more compelling the justification based on factors in
section 3553(a)’ must be.” Davis, 458 F.3d at 496.
In this case, the district judge imposed an effective
sentence that required the defendant to serve less than 17
years for shooting and wounding one individual in an
after-hours club, and for repeatedly firing another weapon
at point blank range toward a uniformed police officer.
Such egregious actions, coupled with the lengthy history of
escalating violent behavior by the defendant in his
relatively short life,[fn2] highlight the need for the
sentence of incarceration to reflect the seriousness of the
offense and to protect the public from further crimes of
this defendant. See 18 U.S.C. §§ 3553(a)(2)(A)
and (C). In light of all relevant circumstances, therefore,
the sentencing decision by the district judge involves a
relatively minor deviation from the applicable guidelines
range and is both justified and reasonable.
The Government’s Appeal
The government’s first issue on cross-appeal concerns the
wording of the district court’s final judgment. At the
conclusion of the sentencing hearing, defense counsel asked
the district judge “to give a start date for the sentence .
. . because Mr. Wells is here on a writ [of habeas corpus
ad prosequendum]. If you don’t give a start date, he’s
going to go back to the state. He’ll do his state time, and
then he’ll do whatever time he has to do on this.” The
district judge acceded to the defendant’s request, a ruling
that the United States now asserts was in error.
As the prosecution argued before the district court,
however, 18 U.S.C. § 3585(a) clearly provides that
“[a] sentence to a term of imprisonment commences on the
date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence
service of sentence at, the official detention facility at
which the sentence is to be served.” Because the Bureau of
Prisons is usually the governmental entity that can confirm
that a defendant has been taken into “custody awaiting
transportation to” a federal detention facility, courts
have stated that “after a defendant is sentenced, it falls
to BOP, not the district judge, to determine when a
sentence is deemed to ‘commence.'” United States v.
Pineyro, 112 F.3d 43, 45 (2d Cir. 1997). Accord Doan v.
LaManna, No. 01-3013, 2001 WL 1299260, at *2 (6th Cir. Aug.
10, 2001) (“[T]he BOP has the authority to determine when a
sentence commences.”).
In this case, Wells was brought before the district court
from state custody, a federal sentence was imposed, and the
defendant was then returned to the custody of the State of
Tennessee. Consequently, because Wells was not in custody
awaiting transport to a federal prison on the date his
sentence was imposed, the district judge had no statutory
authority to order that the defendant’s federal sentence
should “commence” on that date. This matter must,
therefore, be remanded to the district court so that the
language indicating that Wells’s federal sentence commenced
on August 11, 2005, can be stricken.
Next, in the most significant issue raised by this appeal,
the government contends that the district judge erred in
refusing to sentence Wells pursuant to the armed career
criminal provisions of 18 U.S.C. § 924(e). In
relevant part, that statutory subsection provides:
(1) In the case of a person who violates [the
felon-in-possession provisions of the Code] and has three
previous convictions by any court . . . for a violent
felony . . ., committed on occasions different from one
another, such person shall be fined under this title and
imprisoned not less than fifteen years. . . .
(2)(B) [T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year,
or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if
committed by an adult, that —
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another. . .
.
Both the United States and Wells agree that the defendant
has previously been convicted of at least two offenses that
would qualify as “violent felonies.” First, Wells conceded
that he was found delinquent at age 16 after he “shot at
Torriand L. Thomas in the parking lot at 300 Mulvany,
Knoxville, Tennessee.” Such an aggravated assault
conviction clearly would have resulted in incarceration in
excess of one year had the defendant been convicted of the
offense as an adult. See TENN. CODE ANN. §§
39-13-102(a)(1) (defining aggravated assault to be an
intentional assault using a deadly weapon); 39-13-102(d)(1)
(classifying aggravated assault as a Class C felony);
40-35-111(b)(3) (authorizing incarceration of 3-15 years
upon conviction for a Class C felony). Furthermore, Wells’s
admission of guilt in that matter included his recognition
that a firearm was used in the crime and that physical
force was used against the person of another.
Second, Wells also admitted before the district court his
guilt of four drive-by shootings committed on a single day
in 1998, when the defendant was 18 years old. Wells was
sentenced to concurrent five-year prison terms for each of
those four offenses, crimes that clearly involved use of a
firearm and use of physical force against other
individuals.[fn3]
The government insists that two other prior adjudications
of juvenile delinquency against Wells should also be
considered “violent felonies” so as to justify sentencing
the defendant as an armed career criminal. In advancing
that argument, the United States references Wells’s 1993
adjudication of delinquency based upon a plea to the charge
of attempted robbery and a 1997 adjudication based upon a
charge of aggravated assault. Because the 1993 attempted
robbery of a pizza delivery person allegedly involved
“pointing a handgun” at the victim, and because the 1997
aggravated assault petition alleged that Wells
“intentionally attempted to strike Officer C.J. Sramek of
the Knoxville Police Department with the vehicle [the
defendant] was driving during an alleged robbery and
shooting,” the government asserts that both acts
“involv[ed] the use or carrying of a firearm” so as to bring
the activities within the parameters of the Armed Career
Criminal Act.
In denying the requested sentencing enhancement, the
district court evaluated only the 1993 attempted robbery
adjudication and applied the “categorical approach”
mandated in Taylor v. United States, 495 U.S. 575 (1990),
and Shepard v. United States, 544 U.S. 13 (2005). Doing so,
the court found that the adjudication “did not necessarily
involve ‘the use or carrying of a firearm, knife, or
destructive device,’ and cannot be used as [a] predicate
offense to enhance the defendant’s status to armed career
criminal.”
In Taylor, the Supreme Court addressed the question of
“whether the sentencing court in applying § 924(e)
must look only to the statutory definitions of the prior
offenses, or whether the court may consider other evidence
concerning the defendant’s prior crimes.” Taylor, 495 U.S.
at 600. Relying upon the language of § 924(e)
itself, the legislative history surrounding the statute,
and “the practical difficulties and potential unfairness of
a factual approach,”[fn4] id. at 601, the Court found
persuasive those lower court cases holding “that §
924(e) mandates a formal categorical approach, looking only
to the statutory definitions of the prior offenses, and not
to the particular facts underlying those convictions.” Id.
at 600. In a narrow range of cases, however, the Court
recognized that this “categorical approach” would allow a
sentencing court to examine “the charging paper and jury
instructions” to determine whether all the elements of the
alleged crime were, in fact, committed. Id. at 602.
For example, in a State whose burglary statutes include
entry of an automobile as well as a building [thus
encompassing crimes not included within the generic
definition of “burglary”], if the indictment or
information and jury instructions show that the defendant
was charged only with a burglary of a building, and that
the jury necessarily had to find an entry of a building
to convict, then the Government should be allowed to use
the conviction for enhancement.
Id.
In Shepard, the Court was asked to expand upon the ruling
in Taylor and consider “whether a sentencing court can look
to police reports or complaint applications to determine
whether an earlier guilty plea necessarily admitted, and
supported a conviction for, generic burglary.” Shepard, 544
U.S. at 16. Declining to do so, the majority of the Court
clearly and explicitly stated that sentencing courts
evaluating the nature of prior convictions for purposes of
applying the armed career criminal statute are “generally
limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Id.[fn5]
At issue in this appeal is not an attempt to classify an
adult conviction as a predicate offense for armed career
criminal purposes, but rather a juvenile adjudication. The
government contends that such juvenile adjudications should
be treated differently and should not be subject to the
Taylor-Shepard categorical approach, even though acts of
juvenile delinquency must still have “as an element” the use
or threatened use of physical force or present a serious
potential risk of physical injury to another, 18 U.S.C.
§§ 924(e)(2)(B)(i) and (ii), in order to be
considered predicates for sentence enhancements. The
government notes, however, that qualifying delinquent acts
must additionally “involv[e] the use or carrying of a
firearm, knife, or destructive device.” Because such “use”
or “carrying” is not an element of the charged offense,
charging instruments might never mention the presence of
such weapons.
Additional difficulties with the application of the
categorical approach to juvenile adjudications were
recognized by a sister circuit in United States v.
Richardson, 313 F.3d 121 (3d Cir. 2002). In that case, the
court noted:
While the categorical approach prescribed by Taylor is
simply stated and relatively easily applied when
considering a defendant’s prior adult convictions, it can
become more difficult when a court must determine whether
a juvenile adjudication comes within the [Armed Career
Criminal Act]. For one thing, although the categorical
approach prohibits factual determinations concerning a
defendant’s prior convictions, an “act of juvenile
delinquency” introduces an additional wrinkle, for it
will only count as a violent felony if the offense
involved “the use or carrying of a firearm, knife, or
destructive device,” 18 U.S.C. § 924(e)(2)(B), a
seemingly paradigmatic factual determination. For another,
the documents that the Supreme Court and the various
Courts of Appeals have held that a district court may
consider in the context of an adult conviction —
the indictment or information, the jury charge, and/or
plea agreements — may be nonexistent where there
has been an adjudication of juvenile delinquency given
that, for starters, there is no right to trial by jury for
juvenile offenses.
Id. at 126.
Nevertheless, in its opinion in Richardson, the Third
Circuit concluded that it could “perceive no basis for
saying that the reasons the Taylor Court found as
warranting the categorical as opposed to the factual
approach when considering an adult conviction are not
equally persuasive when considering a juvenile
adjudication.” Id. That court, therefore, chose to adhere
to that categorical approach, even when considering
juvenile adjudications, given “[t]he daunting practical
difficulties and the due process and Sixth Amendment
concerns that surface when a sentencing court makes factual
determinations concerning a defendant’s prior convictions.”
Id. at 128.
The Third Circuit’s approach bears great appeal when
considering the morass that could slow the wheels of
justice unnecessarily should we adopt the government’s
position and permit factual inquiry into the circumstances
of juvenile crimes. Abandonment of the Taylor-Shepard
restrictions on evidence of prior crimes would involve
sentencing courts in sometimes lengthy evidentiary
presentations and disputes on matters clearly collateral to
the crime for which a defendant then stands convicted. In
contrast, by adhering to the principles of Taylor and
Shepard, even in the context of juvenile adjudications,
district courts will eliminate the need to examine facts
relating to crimes sometimes committed in the far distant
past. For this reason alone, as well as for the reasons and
for the concerns expressed by the Supreme Court in Taylor,
see Taylor, 495 U.S. at 600-01, we opt to follow the Third
Circuit’s approach to consideration of prior juvenile
adjudications in the context of sentencing pursuant to the
Armed Career Criminal Act.
The government argues that application of a categorical
approach in this case would still allow the district court
to consider either Wells’s 1993 attempted robbery
adjudication or his 1997 aggravated assault adjudication to
enhance his sentence. First, the prosecution points out
that the juvenile court petition in the 1993 adjudication,
on its face, averred that Wells “violated T.C.A. 39-13-402,
aggravated robbery, by pointing a handgun at Scott L.
Wilson and demanding that he give them all of his money.
This occurred as the victim was delivering pizza at 601
Buckeye Drive in Knoxville, Knox County, Tn. at
approximately 11 p.m. Sept. 18, 1993.” (Emphasis added.) Had
Wells pleaded guilty to a violation of Tennessee’s
aggravated robbery statute, the petition’s factual
recitation could well have justified treating this juvenile
adjudication as a predicate offense for armed career
criminal purposes. Wells did not plead to the aggravated
robbery charge, however, but rather to the lesser offense
of attempted simple robbery, a crime defined as “the
intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” TENN.
CODE ANN. § 39-13-401(a). Because Wells thus did not
admit to criminal activity that necessarily or allegedly
involved use of a “firearm, knife, or destructive device,”
18 U.S.C. § 924(e)(2)(B), we have no way of knowing
whether a firearm was indeed involved in the crime. As we
recently held in United States v. Armstead, 467 F.3d 943,
949 (6th Cir. 2006), when a defendant pleads to a lesser
included offense, our examination of the charging papers to
determine whether that defendant previously committed a
“crime of violence” is limited “to the elements of the
charges that are essential to defendant’s plea of guilty. .
. .” Because use of a firearm is not essential to the crime
of attempted robbery, the 1993 juvenile adjudication could
not be used as a third qualifying conviction for sentencing
enhancement purposes.
Similarly, Wells’s 1997 juvenile adjudication cannot
satisfy the Taylor-Shepard categorical approach test.
Nothing in the language of Tennessee’s aggravated assault
statute, TENN. CODE ANN. § 39-13-102(a)(1)(B),
indicates that an aggravated assault conviction requires
proof of the use or display of a firearm, knife, or
destructive device, as the latter term is defined by 18
U.S.C. § 921(a)(4). Furthermore, even though the
defendant entered a plea to the petition alleging an
aggravated assault, the factual description of that offense
does not mandate a conclusion that Wells himself was in
possession of such a deadly weapon. Indeed, the petition
states simply that “on or about November 14, 1997, [Wells]
did intentionally attempt to strike officer C.J. Sramek of
the K.P.D. with the vehicle he was driving during a robbery
and shooting.”
In this instance, the potentially qualifying crime to which
Wells entered a plea is the aggravated assault upon Officer
Sramek with an automobile, and only that aggravated
assault. What, if anything, Wells (or others) may have been
doing prior to attempting to run down Officer Sramek is
thus irrelevant to the charged crime. The fact that Wells,
or his accomplice, used a firearm in a prior robbery does
not mean that any such antecedent criminal activity becomes
part of the aggravated assault. Because the specific crime
upon which Wells’s 1997 juvenile delinquency adjudication
was based did not, therefore, necessarily “involv[e]” the
use or carrying of a prohibited weapon, and because Wells
did not enter any plea to the alleged robbery and shooting
that preceded it, the 1997 adjudication also cannot serve
as a third predicate offense to justify imposition of a
sentence under the provisions of the Armed Career Criminal
Act. Cf. United States v. Jones, 332 F.3d 688 (3d Cir.
2003) (enhanced sentencing permissible when defendant was
adjudicated delinquent for commission of three offenses
— simple assault, aggravated assault, and violation
of the Pennsylvania Uniform Firearms Act — that
together established his use of a firearm).
CONCLUSION
For the reasons set out above, we AFFIRM the defendant’s
sentence but REMAND the case for the limited purpose of
correcting the district court’s judgment to eliminate the
provision of a commencement date on which service of that
sentence was to begin.
[fn1] The defendant also challenged the sentence as a
violation of the Ex Post Facto Clause. Because the district
court imposed sentence in compliance with the Supreme
Court’s remedial opinion in United States v. Booker, 543
U.S. 220 (2005), Wells argued that he was pleading to
offenses that occurred prior to the release of that opinion
and would have received a lesser punishment under the
pre-Booker mandatory sentencing scheme than under
post-Booker discretionary sentencing. At oral argument,
counsel conceded that recent Sixth Circuit case law holds
to the contrary. See, e.g., United States v. Barton, 455
F.3d 649, 652-57 (6th Cir.) cert. denied, ___ S.Ct. ___,
2006 WL 3192536 (U.S. Dec. 4, 2006) (No. 06-7576); United
States v. Shepherd, 453 F.3d 702, 705-06 (6th Cir. 2006).
Recognizing that we are bound by those prior decisions,
counsel wisely abandoned this issue.
[fn2] The presentence report prepared in this matter lists,
among other offenses, the following violent actions by
defendant Wells: 1) attempted robbery of a pizza delivery
person when Wells was only 13 years old; 2) attempting to
punch and kick a police officer when apprehended for
receiving and concealing a stolen vehicle when Wells was 15
years old; 3) shooting at a victim in a parking lot when
the defendant was 16 years old; 4) attempting to strike a
police officer with a vehicle when Wells was 17 years old;
5) shooting at four individuals on the same day when the
defendant was 18 years old; 6) firing the pistol inside the
after-hours club; 7) attempted murder of Officer Willis; and
8) repeatedly jumping from a table onto two other inmates
lying on the floor during an altercation while Wells was
incarcerated in a Tennessee correctional facility.
[fn3] The government concedes that the four convictions were
properly considered to be only one conviction for purposes
of 18 U.S.C. § 924(e) when the defendant fired
multiple gunshots into a crowd.
[fn4] In addressing these “practical difficulties,” the
Court explained:
In all cases where the Government alleges that the
defendant’s actual conduct would fit the generic
definition of burglary, the trial court would have to
determine what that conduct was. In some cases, the
indictment or other charging paper might reveal the theory
or theories of the case presented to the jury. In other
cases, however, only the Government’s actual proof at
trial would indicate whether the defendant’s conduct
constituted generic burglary. Would the Government be
permitted to introduce the trial transcript before the
sentencing court, or if no transcript is available,
present the testimony of witnesses? Could the defense
present witnesses of its own and argue that the jury might
have returned a guilty verdict on some theory that did
not require a finding that the defendant committed generic
burglary? If the sentencing court were to conclude, from
its own review of the record, that the defendant actually
committed a generic burglary, could the defendant
challenge this conclusion as abridging his right to a
jury trial? Also, in cases where the defendant pleaded
guilty, there often is no record of the underlying facts.
Even if the Government were able to prove those facts, if
a guilty plea to a lesser, nonburglary offense was the
result of a plea bargain, it would seem unfair to impose
a sentence enhancement as if the defendant had pleaded
guilty to burglary.
Taylor, 495 U.S. at 601-02.
[fn5] In United States v. Jones, 453 F.3d 777, 780 (6th
Cir.), cert. denied, 127 S.Ct. 611 (2006), this court ruled
that criminal complaints — sworn documents submitted
in furtherance of criminal prosecutions — “bear . .
. substantially greater indicia of reliability than mere
police reports.” Thus, we held that such a “complaint is a
type of record that a district court can properly rely on
in determining the nature of predicate offenses, consistent
with the standards of Shepard.” Id. Jones, however,
involved only the limited inquiry of whether prior offenses
constitute a single criminal episode or multiple episodes,
an inquiry especially suited to resolution by reference to
a criminal complaint.