By Taylor Ey
On June 8, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Span. The United States prosecuted Defendant Gary Span in the United States District Court for the Western District of North Carolina, and Span was sentenced to a mandatory minimum sentence of fifteen years in prison pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). Span appealed the decision, and the Fourth Circuit vacated and remanded for resentencing.
Facts of the Felony Charge and the Sentencing Hearing
Span was indicted and charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty. At the sentencing hearing, the government argued for enhanced sentencing for this conviction under the ACCA. According to the government, Span’s criminal record included several previous convictions, all violent felonies committed on separate occasions, and thus enhanced sentencing was warranted. Span challenged the government’s argument that he was an armed career criminal, stating that the documents upon which the government was relying to show his previous convictions were ambiguous, the ambiguity was to be construed in his favor, and the sentencing enhancement should not be applied. The district court sided with the government, finding that three of Span’s previous robbery convictions supported the enhancement. Even though two of the robberies occurred at the same location and involved the same corporate victim, each offense involved a different individual victim who was in danger according to the district court.
Enhanced Sentencing Under the ACCA Requires Three Previous Convictions “Committed on Occasions Different from One Another”
The government must show by preponderant evidence that the defendant committed three previous violent felonies or serious drug offenses on separate occasions for enhanced sentencing of the defendant under the ACCA.
Mixed Question of Law and Fact
The Court reviewed the district court’s legal conclusions de novo and its factual findings for clear error. The legal conclusions, according to the Court, were whether Span’s qualifying convictions were committed on occasions separate from one another. The Court looked to the district court’s factual findings that supported its legal conclusions and found that they were in clear error, and thus could not hold, as a matter of law, that the robbery offenses were “committed on occasions different from one another.”
The Judicial Factfinding at Sentencing Was Not Properly Limited in the Sources of Evidence and Was Clear Error
A sentencing judge may examine a limited number of resources in cases involving prior guilty pleas, including the charging document, plea agreement, and the plea transcript between judge and defendant or comparable document. In this case, there was a question of when Span’s three previous robberies occurred, and the sentencing judge was limited to the approved documents. According to the Fourth Circuit, the sentencing judge clearly erred in finding that the documents proved by preponderant evidence that the three offenses were committed on separate dates.
The Previous Crimes Did Not Arise Out of Separate and Distinct Criminal Episodes
The Court looked to the same limited resources for facts applicable to a multi-factor test to determine whether the previous crimes arose out of separate and distinct criminal episodes. The factors examined by the Court were “(1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense.” Because the weight of the factors did not demonstrate that Span’s previous robbery convictions were separate and distinct criminal episodes, the district court erred in applying the ACCA enhancement to Span’s sentence.
The Fourth Circuit Vacated and Remanded for Resentencing
Because the United States government failed to prove by preponderant evidence that Span’s prior felonies were separate and distinct episodes for purposes of evoking the mandatory sentencing under the ACCA, the Fourth Circuit vacated the district court decision and remanded the case.
One Judge Dissenting
In this case, the dissenting judge disagreed with the majority, noting that the district court properly found sufficient facts in the evidence presented to it by the United States government. The district court’s factual findings are afforded great deference under the applicable standard of review, and therefore, according to the dissenter, the district court’s findings must be upheld because they were plainly permissible. While the district court’s findings may admittedly appear unjust, the district court applied the proper standard according to precedent: a preponderance of the evidence. Because the district court was not in clear error when it found that the three prior incidents occurred on separate dates by a preponderance of the evidence, the dissenter could not agree with the majority’s decision.