Sentencing; Armed Career Criminal Act (ACCA); Career criminal enhancement under 18 USC § 924(e)(1); Establishing whether previous felonies occurred on “different occasions” for purposes of the enhancement by considering “non-elemental facts” contained in Shepard documents; Shepard v. United States; United States v. Taylor; United States v. King; United States v. Bordeaux (2d Cir.); United States v. Dantzler (2d Cir.); United States v. Span (4th Cir); Kirkland v. United States (7th Cir.); United States v. Boykin (4th Cir.); United States v. Sneed (11th Cir.); United States v. Thomas (DC Cir.); United States v. Fuller (5th Cir.); Descamps v. United States; Mathis v. United States; Whether defendant’s two prior convictions were committed on different occasions; United States v. Paige; United States v. Pham; United States v. Southers; United States v. Jones; United States v. Hill; United States v. Banner (Unpub. 6th Cir.)

The court clarified its position and held that “a sentencing court may consider non-elemental facts such as times, locations, and victims in Shepard documents when conducting the different-occasions analysis” to apply the ACCA’s career criminal sentencing enhancement. Defendant-Hennessee pled guilty to felon in possession of a firearm. The government sought a sentencing enhancement under § 924(e)(1) based on his three prior convictions for violent felonies. He argued that the enhancement was improper because the government failed to show that two of his convictions occurred on different occasions. The district court agreed, ruling that when conducting the different-occasions analysis, it was precluded from reviewing non-elemental facts in Shepard documents. Shepard documents include “charging document, written plea agreement, transcript of plea colloquy, jury instructions, judgment of conviction, or other record of comparable findings of fact adopted by the defendant upon entering a guilty plea . . . .” When making its ruling, the district court noted the confusion surrounding the Taylor-Shepard evidentiary-source restriction for the different-occasions analysis. The court clarified that King “created no limitation on a sentencing court’s consideration of non-elemental facts contained within Shepard documents.” It concluded that the district court erred by “confining itself to only elemental facts within Shepard-approved documents . . . .” It held that “a district court may consider both elemental and non-elemental facts contained in Shepard-approved documents to determine whether prior felonies were committed on occasions different from one another for purposes of the ACCA.” The court also determined that Hennessee’s plea colloquy transcript satisfied “all three prongs of the Paige test . . . .” Thus, the court held that he committed the offenses “on ‘occasions different from one another,’” and he was subject to the ACCA sentencing enhancement. Remanded for resentencing.