In United States v. Dudley, No. 19-10267 (July 22, 2021) (Newsom, Branch, Ray (N.D. Ga.)), the Court affirmed the defendant’s ACCA-enhanced sentence.  Judge Branch delivered the opinion of the Court, in which Judge Ray joined, and Judge Newsom joined in all but Part III.A.

On appeal, defendant argued that he was not ACCA because there was insufficient evidence to establish that his prior Alabama felony convictions were for offenses committed on occasions different from one another.  He also argued, for the first time on appeal, that Rehaif necessitated vacatur of his guilty plea to being a felon in possession of a firearm.

The Court noted that the different-occasions inquiry necessarily requires looking at the facts underlying the prior convictions, but that courts are limited to Shepard-approved sources, as only information found in such conclusive judicial records has gone through a validation process that comports with the Sixth Amendment.  The Court also noted that in determining whether a defendant’s prior convictions were committed on different occasions from one another, a district court may rely on non-elemental facts contained in the Shepard-approved sources.  Finally, the Court 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, finding itself bound by its opinion in Almendarez-Torres.

With the above in mind, the Court found the district court’s reliance on dates proffered by the state prosecutor during the plea colloquy for the Alabama offenses proper because, although the defendant did not state expressly during the Alabama plea colloquy that he agreed with the prosecutor’s factual proffer, he did not object.  The Court held that, consistent with Shepard, where there is evidence of confirmation of the factual basis for the plea by the defendant–be it express or implicit confirmation–a federal sentencing court is permitted to rely on those facts to conduct the different-occasions inquiry.

The Court also rejected the defendant’s challenge to his guilty plea as foreclosed by binding precedent.

Judge Newsom concurred in part and dissented in part.  He dissented from Part III.A. of the Court’s opinion, rejecting the defendant’s challenge to the ACCA enhancement, because, in his view, a federal court may consider a plea-colloquy transcript in determining whether a defendant’s prior offenses were committed on different occasions only when the factual basis for the plea was expressly confirmed by the defendant.