Opinion
Case No. 1:22-cr-20468-KMM-1
2023-11-14
UNITED STATES of America, v. Sean Donovan BRYANT, Defendant.
Jeremy Thompson, DOJ-USAO, Miami, FL, Sterling Paulson, U.S. Attorney's Office, Miami, FL, William T. Zloch, United States Attorney's Office, West Palm Beach, FL, for United States of America.
Jeremy Thompson, DOJ-USAO, Miami, FL, Sterling Paulson, U.S. Attorney's Office, Miami, FL, William T. Zloch, United
States Attorney's Office, West Palm Beach, FL, for United States of America.
ORDER
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.
THIS CAUSE came before the Court upon Defendant Sean Donovan Bryant's ("Defendant") Objections to the Presentence Investigation Report, ("Objections") (ECF Nos. 33, 47, 52), the Government's Notice Regarding Armed Career Criminal Act Enhancement and Motion to Withdraw Response to PSI Objections, ("Motion to Withdraw") (ECF No. 42), and the Government's Motion to Strike the Government's Response to PSI Objections, ("Motion to Strike") (ECF No. 46). Sentencing in this case was initially set for September 28, 2023. During the brief hearing held on that date, however, the Government took the position that Defendant was not eligible for a sentence enhancement under the Armed Career Criminal Act ("ACCA"). The Court therefore continued the hearing until November 2, 2023. This Order memorializes but does not modify the rulings made in open court at the sentencing hearing on November 2, 2023.
I. BACKGROUND
On September 27, 2022, a federal grand jury in the Southern District of Florida indicted Defendant for one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). See (ECF No. 1).
On July 12, 2023, Defendant pled guilty to the sole count of the Indictment pursuant to a written plea agreement. See (ECF Nos. 25, 26). At the change of plea hearing, Defendant was advised that the maximum sentence that may be imposed is a sentence of 10 years' imprisonment. (ECF No. 28) at 2. Defendant was further advised that if the Court finds that he qualifies as an armed career criminal pursuant to 18 U.S.C. § 924(e), the Court must impose a statutory mandatory minimum term of imprisonment of 15 years and up to life imprisonment. Id. Defendant acknowledged that he understood the possible maximum penalties that could be imposed in the case. Id.
The United States Probation Office ("Probation") prepared a Presentence Investigation Report. ("PSI") (ECF No. 51). Probation determined that Defendant qualified as an armed career criminal under 18 U.S.C. § 924(e) because he had at least three prior convictions for violent felonies or serious drug offenses, including: (1) a 2013 Florida conviction for delivery of cocaine; (2) a 2017 Florida conviction for resisting an officer with violence; and (3) a 2022 Florida conviction for strong-armed robbery. Id. ¶¶ 17, 34, 43, 44, 48.
Defendant filed written objections to the PSI. See (ECF No. 33). Defendant objected to his designation under the ACCA, the resulting 15-year to life statutory sentencing range, and the guideline range under the ACCA guideline. Id. at 1. Specifically, Defendant argued that an ACCA designation would violate his Fifth and Sixth Amendment rights because "[he] did not make an admission—in the factual proffer or otherwise—that these crimes were committed on occasions different from one another. Nor did a jury find that these crimes were committed on occasions different from one another." Id. at 2.
On September 22, 2023, the Government filed its Response in opposition to Defendant's Objections. See (ECF No. 38). Citing to recent Eleventh Circuit case law, the Government took the position that "Bryant was not required to admit, nor was a jury required to find, that these convictions were committed on different occasions for the purpose of ACCA designation" and that "[t]his Court accordingly
can, and should, determine that each of these three convictions involve different occasions, and that each conviction accordingly qualifies as a separate predicate conviction for the purpose of Bryant's ACCA designation." Id. at 3-4. The Government also attached Shepard documents for Defendant's three prior convictions which "establish that he was convicted of violent felonies or serious drug offenses committed on three separate occasions prior to the instant offense." Id. at 1; see also (ECF Nos. 38-1, 38-2, 38-3).
However, the evening before sentencing, the Government changed course and filed a "Notice Regarding Armed Career Criminal Enhancement and Motion to Withdraw Response to PSI Objections." (ECF No. 42). Therein, the Government moved to withdraw its Response and the corresponding Shepard documents, stating:
[The Government] concedes that, under Wooden v. United States, 595 U.S. 360, 142 S. Ct. 1063, 212 L.Ed.2d 187 (2022), the Defendant is not subject to an enhanced sentence under Title 18, United States Code, Section 924(e), because the Defendant has not admitted that his predicate offenses were committed on occasions different from one another, nor has a jury so found beyond a reasonable doubt.
Id. at 1.
At the sentencing hearing held on September 28, 2023, the Parties informed the Court that they agreed that Defendant was not eligible for a sentencing enhancement under the ACCA. The Assistant United States Attorney ("AUSA") stated that the positions previously set forth in the Government's Response were an accurate reflection of the case law. However, the AUSA had since been apprised that, in the Justice Department's view, Wooden requires the different occasions question to be determined by a jury or admitted by the defendant. In light of the Government's eleventh-hour change in position, the Court continued the sentencing hearing until November 2, 2023. See (ECF Nos. 43, 44).
Now before the Court are Defendant's Objections to the PSI (ECF Nos. 33, 47, 52), the Government's Motion to Withdraw (ECF No. 42), and the Government's Motion to Strike (ECF No. 46).
II. DISCUSSION
Defendant objects to his designation as an armed career criminal and the accompanying 15-year mandatory minimum. See (ECF No. 33) at 1. Defendant makes three main arguments for why an ACCA enhancement should not apply in this case. First, Defendant argues that under the Fifth and Sixth Amendments a jury must find, or a defendant must admit, that two offenses occurred on separate occasions. Id. at 2. Second, Defendant argues that an ACCA enhancement cannot be applied because the Government no longer seeks such an enhancement. See (ECF Nos. 47, 52). Third, Defendant argues that the Government has not presented evidence to support an ACCA designation, and that the Court may not rely on Shepard documents attached to the PSI by Probation. See (ECF Nos. 47, 52).
A. The Court Is Permitted Conduct the Different Occasions Inquiry
The ACCA mandates a minimum term of imprisonment of 15 years for "a person who violates section 922(g) ... and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1) (emphasis added). "To qualify as offenses committed on different occasions from one another under the ACCA, the offenses must be 'temporally distinct' and arise from 'separate and distinct criminal episode[s].'"
United States v. Dudley, 5 F.4th 1249, 1259 (11th Cir. 2021) (quoting United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010)). "Several factors may be relevant to that determination: the amount of time between offenses, the proximity of the locations where the offenses occurred, and whether the offenses are part of the same scheme or achieve the same objective." United States v. Penn, 63 F.4th 1305, 1318 (11th Cir. 2023) (citing Wooden, 142 S. Ct. at 1070-71).
But "[i]n many cases, a single factor—especially of time or place—can decisively differentiate occasions." Wooden, 142 S. Ct. at 1071. For example, courts "have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a 'significant distance.'" Id. "Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events." Id. "As long as a court limits itself to Shepard-approved sources, the court may determine both the existence of prior convictions and the factual nature of those convictions, including whether they were committed on different occasions, based on its own factual findings." Dudley, 5 F.4th at 1259-60 (emphasis added).
The Parties, however, appear to disagree. Defendant contends that under the Fifth and Sixth Amendments a jury must find, or a defendant must admit, that two offenses occurred on separate occasions. See (ECF No. 47) at 2. The Government initially agreed that "[the] court may determine whether the prior conviction offenses in question were committed on different occasions for the purpose of ACCA based on the Shepard documents." (ECF No. 38) at 3. But the Government now claims that "under Wooden v. United States, 595 U.S. 360, 142 S. Ct. 1063, 212 L.Ed.2d 187 (2022), the Defendant is not subject to an enhanced sentence under Title 18, United States Code, Section 924(e), because the Defendant has not admitted that his predicate offenses were committed o occasions different from one another, nor has a jury so found beyond a reasonable doubt." (ECF No. 42) at 1.
Despite the Parties' arguments to the contrary, neither the Supreme Court nor the Eleventh Circuit has adopted the position they espouse. In Wooden, the Supreme Court clarified that the different occasions analysis is a "multi-factored" inquiry that may depend on "a range of circumstances." Wooden, 142 S. Ct. at 1070-71. However, the Supreme Court explicitly declined to address the issue raised here. See id. at 1068 n.3 ("Two amici curiae have briefed another question arising from ACCA's occasions clause: whether the Sixth Amendment requires that a jury, rather than a judge, resolve whether prior crimes occurred on a single occasion. We do not address that issue because Wooden did not raise it."). Indeed, the Eleventh Circuit has uniformly held that Wooden did nothing to alter its pre-2022 precedent, which "repeatedly rejected the argument that judicially determining whether prior convictions were committed on different occasions from one another for purposes of the ACCA violates a defendant's Fifth and Sixth Amendment rights." United States v. Turner, No. 22-10454, 2023 WL 4199180, at *3 (11th Cir. June 26, 2023) (quoting Dudley, 5 F.4th at 1260); see also United States v. McRae, No. 21-13905, 2023 WL 5091799, at *6 (11th Cir. Aug. 8, 2023) ("[T]here is no precedent from the Supreme Court or us holding that a sentencing court cannot perform the different occasions analysis.").
The Parties have offered no basis upon which the Court is persuaded to depart from the settled, well-reasoned precedent
of this Circuit. While the higher courts may address the question at some point, for now, the Court must follow precedent. For these same reasons, the Court concludes that the Government's Motion to Withdraw (ECF No. 42) and Motion to Strike (ECF No. 46) are based on an erroneous interpretation of Supreme Court and Eleventh Circuit precedent and are not supported by the law. The Court therefore denies both motions.
B. The ACCA Enhancement Is Mandatory
Turning to the second objection, Defendant contends that "[i]f the Court decides to apply the enhancement based on its own investigation, the Court will violate the principle of party presentation. This would be an abuse of discretion." (ECF No. 52) at 2. Defendant further argues that "an ACCA designation here will violate the doctrine of separation of powers" because "[i]t is the executive branch's—here the prosecution's—exclusive role and burden to prove a sentencing enhancement." Id. at 2-3.
The Eleventh Circuit has repeatedly held that when a defendant qualifies as an armed career criminal, "[t]he district court is required to impose [the] minimum sentence regardless of whether the government seeks application of the enhancement." United States v. Sharp, 21 F.4th 1282, 1285 (11th Cir. 2021) (emphasis added); see also United States v. Paulk, 509 F. App'x 880, 881 (11th Cir. 2013) ("[T]he ACCA requires district courts to impose an enhanced sentence 'regardless of whether the Government affirmatively seeks such enhancement.'"); United States v. Cobia, 41 F.3d 1473, 1475 (11th Cir. 1995) ("Because the statute clearly indicates that the intent of Congress was to require mandatory enhancement, we hold that sentence enhancement pursuant to § 924(e) should automatically be applied by the courts regardless of whether the Government affirmatively seeks such enhancement.").
The Eleventh Circuit's decision in United States v. Symington, 781 F.3d 1308 (11th Cir. 2015), is instructive. In that case, the defendant entered into a written plea agreement with the government that "explicitly stated that his prior convictions did not qualify as predicate offenses for an enhanced." Id. at 1312. The PSI, however, determined that Symington qualified as an armed career criminal based on three of his prior convictions. Id. at 1311. The district court agreed and sentenced him to a 15-year mandatory minimum sentence. Id. at 1312. Symington appealed on the grounds that the district court "lacked the authority to sentence him beyond the ten-year maximum sentence agreed to in his written plea agreement." Id. The Eleventh Circuit rejected the argument and held that "the district court did not err in sentencing Symington in accordance with the ACCA because the ACCA is mandatory, and the district court lacked the authority to impose the unlawful sentence contained in the plea agreement." Id. at 1313 (emphasis added).
In light of the foregoing, the Court has little trouble concluding that it is permitted —and, in fact, required—to sentence Defendant under the ACCA if he qualifies as an armed career criminal.
C. Evidence of Defendant's Prior Convictions
Finally, Defendant argues that the Court "cannot apply" an ACCA enhancement because "the government bears the burden of proving any sentencing enhancement" and "has not and will not attempt to present any such evidence." (ECF No. 47) at 2. Defendant also objects to the Court relying on the Shepard documents attached
to the PSI by Probation. (ECF 52) at 1.
As an initial matter, the Court finds that the Government has satisfied its "burden of proving by a preponderance of the evidence that the prior convictions 'more likely than not arose out of separate and distinct criminal episodes.'" Dudley, 5 F.4th at 1259 (quoting United States v. McCloud, 818 F.3d 591, 596 (11th Cir. 2016)). Specifically, the Government provided Shepard documents for Defendant's three prior convictions which, according to the Government, "establish that he was convicted of violent felonies or serious drug offenses committed on three separate occasions prior to the instant offense." (ECF No. 38) at 2; see also (ECF Nos. 38-1, 38-2, 38-3). Moreover, the Court agrees that the Shepard documents establish that "[e]ach of these three convictions involve different periods of time, different charged offenses, different forms of offense conduct, and the involvement of different sets of individuals. The convictions were obtained at different points in time as a result of separate prosecutions. And perhaps most tellingly, there is no overlap in the dates of the offense conduct." Id. at 4.
In any event, the Court reaches the same conclusion based on the identical Shepard documents attached to the Fifth Addendum to the PSI. See (ECF Nos. 51-6, 51-7, 51-8). Defendant cites no authority for his claim that the Court is precluded from "rely[ing] on the documents provided by Probation to prove the ACCA enhancement." (ECF No. 52). To the contrary, the Eleventh Circuit has rejected the idea that "a sentencing court may rely only on documents filed by the Government" when analyzing a defendant's ACCA-qualifying prior convictions. United States v. Ortiz, 413 F. App'x 114, 120 (11th Cir. 2011) ("[T]he district court did not err in relying on the uncertified copies of the state court charging documents and judgments provided by the probation officer."). In short, there is more than sufficient evidence for the Court to conclude that Defendant qualifies as an armed career criminal.
III. CONCLUSION
Accordingly, UPON CONSIDERATION of the Objections, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant's Objections (ECF Nos. 33, 47, 52) are OVERRULED, the Government's Motion to Withdraw (ECF No. 42) is DENIED, and the Government's Motion to Strike (ECF No. 46) is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of November, 2023.