                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0194n.06

                                       Case No. 13-5495

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                            Mar 11, 2015
UNITED STATES OF AMERICA,                         )                     DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE
v.                                                )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE EASTERN
CHRISTOPHER AMOS,                                 )       DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )
                                                  )
____________________________________/             )


Before: KEITH, COOK, and DONALD, Circuit Judges.

       DAMON J. KEITH, Circuit Judge.

       Defendant Christopher Amos pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), which imposes a ten-year maximum sentence. See 18 U.S.C.

§ 924(a)(2). The district court determined that Amos qualified for an enhanced penalty under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The ACCA prescribes an enhanced

fifteen-year mandatory minimum sentence for armed career criminals, i.e., felons in possession

of a firearm who have three or more prior violent felonies committed on separate occasions. See

id. § 924(e)(1).

       Amos appealed. Amos argues that the district court erred in determining that he was an

armed career criminal and that, consequently, his fifteen-year minimum sentence exceeds the
Case No. 13-5495
United States v. Amos

otherwise applicable ten-year statutory maximum. The United States moved to dismiss on the

ground that Amos’s plea agreement has an appeal waiver barring his appeal. For the following

reasons, we DENY AS MOOT the United States’ motion to dismiss and AFFIRM the district

court’s judgment.

I.      FACTUAL AND PROCEDURAL BACKGROUND

        In September 2010, Amos entered into a plea agreement by which he pleaded guilty to

being a felon in possession of a firearm. See R. at 229.1 The plea agreement provides that Amos

would face a mandatory minimum sentence of fifteen years to life if the district court determined

him to be an armed career criminal. By contrast, the plea agreement states that Amos would face

a sentence of up to ten years if the district court did not determine him to be an armed career

criminal.

        The plea agreement has an appeal waiver. Pertinently, the appeal waiver states:

        In consideration of the concessions made by the United States in this agreement, .
        . . the defendant agrees not to file a direct appeal of the defendant’s convictions(s)
        or sentence except the defendant retains the right to appeal a sentence imposed
        above . . . any applicable mandatory minimum sentence . . . determined by the
        district court.

R. at 234–35.

        On September 28, 2010, the district court held a plea colloquy under Rule 11 of the

Federal Rules of Criminal Procedure. During the plea colloquy, the district judge asked Amos if

he understood that he was waiving his right to appeal, and Amos responded affirmatively. R. at

626–27. The district judge further informed Amos that he would not be able to determine an

appropriate sentence until receiving the presentence report. R. at 632.



1
 “R.” designates citations to the paginated record of the proceedings below. Thus, “R. at 234” refers to
PageID 234, “R. at 235” refers to PageID 235, and so on.
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United States v. Amos

       The probation officer prepared the presentence report. In the report, the probation officer

found that Amos was an armed career criminal under § 924(e) based on three qualifying prior

violent felonies and recommended the fifteen-year statutory minimum. In relevant part, § 924(e)

provides that

       [i]n the case of a person who violates section 922(g) of this title and has three
       previous convictions by any court referred to in section 922(g)(1) of this title for a
       violent felony or a serious drug offense, or both, committed on occasions different
       from one another, such person shall be . . . imprisoned not less than fifteen
       years[.]

18 U.S.C. § 924(e)(1).

       The presentence report outlined Amos’s qualifying prior violent felonies. According to

the report, Amos was arrested on May 30, 1997 and, based on this arrest, pleaded no contest in

Florida state court to “resisting an officer with violence.” United States v. Amos, 496 F. App’x

517, 519 (6th Cir. 2012). The report further stated that Amos was arrested on December 15,

1997. In connection with this arrest, Amos pleaded nolo contendere in the same court to, among

other offenses, (1) aggravated assault and (2) “aggravated assault on a law-enforcement officer.”

Id. The report concluded that the three abovementioned offenses constituted violent felonies

under § 924(e). Id. at 520.

       Amos objected to the determination that the two offenses stemming from his December

15 arrest were qualifying violent felonies. Amos asserted that there was no factual basis for the

determination that he committed these two violent felonies on “occasions different from one

another” as required for an ACCA enhancement to apply. Id. In Amos’s estimation, there was no

factual basis to determine that he committed these two felonies on separate occasions because the

only potential basis for this determination was the probable cause affidavit that provided the




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United States v. Amos

factual foundation for his plea of nolo contendere in state court. Id. But, according to Amos, the

district court could not consider the probable cause affidavit in sentencing him.

          Amos based this argument on the Supreme Court’s decision in Shepard v. United States,

544 U.S. 13 (2005). In Shepard, a plurality of the Court generally held that courts may consider

only certain documents to determine whether prior felonies qualify under the ACCA. See id. at

26 (plurality opinion); Amos, 496 F. App’x at 520. These documents typically include “the

statutory definition [of the offense], charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Amos, 496 F. App’x at 522 (internal quotation marks omitted) (citing Shepard, 544

U.S. at 16).2 The district court agreed with Amos that the probable cause affidavit was not a

Shepard-approved document. Id. at 521. Accordingly, in March 2011, the district court

sentenced Amos to 105 months in prison, fewer than the 120-month, or ten-year, statutory

maximum for unenhanced felon-in-possession convictions. See R. at 316.

          The United States appealed this decision. We held that the probable cause affidavit

qualified as a Shepard document. Amos, 496 F. App’x at 523–26. In so holding, we noted that

Shepard plainly authorized transcripts of plea colloquies and “any explicit factual finding by the

trial judge to which the defendant assented.” Id. at 526. We reasoned that these definitions

applied to the probable cause affidavit because Amos stipulated to its facts during the Florida

plea colloquy. See id. at 524–26. Thus, we reversed the district court’s judgment and remanded

for resentencing. See id. at 526.

          In April 2013, the district court held a resentencing hearing at which it considered the

probable cause affidavit. According to the affidavit, on December 15, 1997, Amos stole a pickup


2
    Courts generally refer to these documents as “Shepard-approved documents” or “Shepard documents.”
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United States v. Amos

truck while possessing a shotgun. R. at 273; see also Amos, 496 F. App’x at 519. Amos drove to

a McDonalds parking lot and pointed his shotgun at Joe King, placing King in fear of his life. R.

at 273. Deputy Sheriff Kelly Boone attempted to stop Amos, but Amos fled to a nearby RV park

and got stuck in the mud. Id. Then, Amos displayed his shotgun to Boone, causing Boone to take

cover. Id. Amos freed his vehicle from the mud and regained the roadway. Id. Sheriff Sergeant

Clyde Nichols attempted to deploy stop sticks, but had to take cover when Amos recklessly fired

the shotgun out of his window from twenty-five feet away. Id. Amos’s vehicle came to a rest in a

nearby wooded area, where he was apprehended after a five-hour standoff. R. at 273–74.

        At the resentencing hearing, Amos argued that these undisputed facts failed to show that

he committed the offenses against King (aggravated assault), Boone (resisting an officer with

violence), and Clyde (aggravated assault on a law enforcement officer) on separate occasions for

ACCA purposes. Rather, Amos argued that he committed these felonies during a single criminal

episode. The district court rejected this argument and held that Amos committed these three

offenses “on occasions different from one another” under § 924(e). R. at 599–604. Accordingly,

the district court sentenced Amos to the ACCA’s mandatory minimum fifteen-year term. R. at

549.3



3
 The district court held that three of Amos’s convictions stemming from the December 15 arrest qualified
as prior violent felonies under the ACCA (aggravated assault, resisting an officer with violence, and
aggravated assault on a law enforcement officer). By contrast, the presentence report concluded that only
two of the convictions based on the December 15 arrest were qualifying prior violent felonies (aggravated
assault and aggravated assault on a law enforcement officer). This difference is immaterial to our
analysis. Although Amos disputes whether he committed the offenses stemming from the December 15
arrest “on occasions different from one another” for ACCA purposes, Amos does not dispute that these
offenses constitute predicate “violent felonies” within the meaning of § 924(e). Likewise, Amos does not
dispute that his conviction for resisting an officer with violence based on the May 30 arrest qualifies as a
predicate violent felony, or that he committed it on a different occasion from the December 15 offenses.
Additionally, as further explained below, the undisputed facts in the probable cause affidavit show that
Amos committed at least the offenses against King (aggravated assault) and Clyde (aggravated assault on
a law enforcement officer) on separate occasions under the ACCA. Therefore, irrespective of whether
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Case No. 13-5495
United States v. Amos

       Amos appealed again. The United States filed a motion to dismiss based on the plea

agreement’s appeal waiver. The motion to dismiss was referred to the merits panel. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

II.    ANALYSIS

       Criminal defendants may waive the right to appeal. “Any right, even a constitutional

right, may be surrendered in a plea agreement if that waiver was made knowingly and

voluntarily.” United States v. Ashe, 47 F.3d 770, 775–76 (6th Cir. 1995) (citations omitted).

Thus, “[c]riminal defendants may waive their right to appeal as part of a plea agreement so long

as the waiver is made knowingly and voluntarily.” United States v. Swanberg, 370 F.3d 622, 625

(6th Cir. 2004) (citation omitted). To determine whether an appeal waiver is knowing and

voluntary, we consider both the appeal waiver and the plea colloquy. See United States v.

Apodaca, 512 F. App’x 509, 516 (6th Cir. 2013) (citations omitted). We review “whether a

defendant waived his right to appeal his sentence in a valid plea agreement de novo.” United

States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005) (citation omitted).

       Rule 11 of the Federal Rules of Criminal Procedure sets forth the basic requirements for

an appeal waiver to be knowing and voluntary. Under Rule 11, before accepting a plea of guilty

or nolo contendere, the district court “must address the defendant personally in open court . . .

[and] determine that the defendant understands . . . the terms of any plea-agreement provision

waiving the right to appeal . . . .” Fed. R. Crim. P. 11(b)(1), (N). The district court may satisfy

this standard by (1) expressly informing the defendant that he waives his right to appeal by

pleading guilty, (2) ensuring that the defendant understands this consequence by his




Amos committed two or three qualifying prior violent felonies on December 15, the record establishes
that Amos committed at least the required three prior violent felonies under § 924(e).
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United States v. Amos

acknowledgement thereof, and (3) confirming that the defendant still desires to plead guilty. See

United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).

       Because they are terms of plea agreements, courts interpret appeal waivers under contract

law principles. United States v. Mathews, 534 F. App’x 418, 424 (6th Cir. 2013) (citing United

States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011)). Thus, as a general rule, we “give effect to

the intent of the parties as expressed by the plain language in the [appeal waiver].” United States

v. Beals, 698 F.3d 248, 256 (6th Cir. 2012) (citation omitted). Nevertheless, appeal waivers must

be “interpreted strictly, with ambiguities construed against the government.” See United States v.

Caruthers, 458 F.3d 459, 470 (6th Cir. 2006) (citing cases). This strict construction reflects plea

agreements’—and, by extension, appeal waivers’—“constitutional and supervisory implications”

and the concerns appeal waivers raise “over and above those present in the traditional contract

context.” United States v. Freeman, 640 F.3d 180, 194 (6th Cir. 2011) (citation omitted) (internal

quotation marks omitted).

       Consistent with this supervisory responsibility, we have held that appeal waivers do not

bar defendants from appealing a sentence above the statutory maximum for the underlying

offense. Caruthers, 458 F.3d at 471 (citing cases). However, we have yet to settle whether a

district court’s error in determining a defendant to be an armed career criminal results in a

supramaximal sentence, thereby barring an appeal waiver. See id. at 472; see also United States

v. Stark, 307 F. App’x 935, 938 (6th Cir. 2009).

       There are two basic views concerning this question. The first view proposes that appeal

waivers do not bar a defendant from arguing on appeal that the district court erroneously

determined him to be an armed career criminal, thus causing him to receive a sentence above the

otherwise applicable ten-year statutory maximum. See Caruthers, 458 F.3d at 472. This view


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United States v. Amos

presupposes that convictions for being a felon in possession of a firearm and ACCA

enhancements are different offenses. Id. at 472. A ten-year statutory maximum applies to felon-

in-possession convictions under § 922(g)(1). See 18 U.S.C. § 924(a)(2). However, the ACCA

imposes an enhanced fifteen-year mandatory minimum for armed career criminals. Id.

§ 924(e)(1). Consequently, if a district court erroneously determines that a defendant is an armed

career criminal, the minimum fifteen-year sentence would exceed the ten-year maximum for

felons in possession of a firearm.

       The second view, by contrast, proposes that erroneous ACCA enhancements of felon-in-

possession convictions do not bar appeal waivers unless the district court imposes a sentence

above life imprisonment. See Caruthers, 458 F.3d at 472. This view presupposes that “being a

felon in possession of a firearm and being an armed career criminal in possession of a firearm are

not two separate offenses, but simply recidivism-contingent variants of the same offense.” Id.;

see also United States v. McMurray, 653 F.3d 367, 371 (6th Cir. 2011) (citing cases) (“That the

ACCA is a sentence enhancement rather than a separate offense is well established.”). Thus,

under the second view, the “statutory maximum for purposes of the waiver inquiry is the life-

imprisonment maximum for being an armed career criminal in possession of a firearm[.]”

Caruthers, 458 F.3d at 472 (citations omitted).

       Here, we assume, without deciding, that the first view is correct. Therefore, we decide

Amos’s claims on the merits. See id.; Stark, 307 F. App’x at 938–39.

       Amos argues that the appeal waiver is unenforceable for two reasons. First, Amos

contends that a Supreme Court decision decided after his resentencing proposes that courts may

not use probable cause affidavits to determine whether defendants committed violent felonies on

separate occasions for ACCA purposes. See generally Descamps v. United States, 133 S. Ct.


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United States v. Amos

2276 (2013). Alternatively, Amos argues that, even if the district court could use the probable

cause affidavit, it misapplied the applicable test in concluding that he committed the felonies

stemming from the December 15 arrest on separate occasions within the meaning of the ACCA.

See generally United States v. Hill, 440 F.3d 292 (6th Cir. 2006). This alleged error, according to

Amos, caused him to receive a sentence that exceeded the 10-year statutory maximum that he

otherwise would have received and below which he was originally sentenced.

       Amos’s first argument fails because Descamps lacks relevance to the issue at hand. The

Descamps Court did not address what documents courts may use to decide if the defendant

committed offenses on separate occasions for ACCA purposes. Rather, the issue in Descamps

was whether the lower courts applied the proper test when determining that a burglary conviction

under an indivisible burglary statute (i.e., one not containing alternative elements) was a “violent

felony” under the ACCA. See 18 U.S.C. § 924(e)(1), (2)(B); see also Descamps, 133 S. Ct. at

2281. In this case, however, Amos does not dispute that his prior offenses are violent felonies

under the ACCA. Amos, 496 F. App’x at 520 n.3. Amos counters that, even if Descamps did not

explicitly address whether courts may use Shepard documents to determine whether the

defendant committed offenses on separate occasions, its reasoning supports the inference that

they may not. But such a broad reading would seemingly preclude courts from considering any

category of documents to determine whether prior offenses are violent felonies under the ACCA.

It also bears emphasis that we indicated in our prior opinion that courts may use Shepard

documents in determining whether “two or more prior offenses occurred on occasions different

from one another under the ACCA.” Id. at 521 n.4 (citation omitted). Therefore, Amos’s first

argument lacks merit.




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United States v. Amos

        We dispense with Amos’s second argument summarily. The parties agree that the

disjunctive test we outlined in Hill governs the district court’s determination that Amos

committed the at-issue felonies on separate occasions. Under Hill:

        First, two offenses are “committed on occasions different from one another”
        under the ACCA, if it is possible to discern the point at which the first offense is
        completed, and the subsequent point at which the second offense begins. . . .
        Second, two offenses are committed for ACCA purposes if it would have been
        possible for the offender to cease his criminal conduct after the first offense, and
        withdraw without committing the second offense. . . . Finally, separate offenses
        are committed if the offenses are committed in different residences or business
        locations.

440 F.3d at 297–98; see also United States v. Jones, 673 F.3d 497, 503 (6th Cir. 2012) (citation

omitted) (“Offenses are separate if they meet any of these three tests.”).

        Judging the undisputed facts in the probable cause affidavit against this test, see supra pp.

4–5, we find no error in the district court’s conclusion that Amos committed the offenses in

question on separate occasions for ACCA purposes.4

III.    CONCLUSION

        For the foregoing reasons, we DENY AS MOOT the United States’ motion to dismiss

and AFFIRM the district court’s judgment.




4
 We criticized Hill’s disjunctive test in a recent opinion. See United States v. Mann, 552 F. App’x 464,
468 (6th Cir. 2014). However, Amos does not dispute that Hill applies in this case. Therefore, we have no
occasion to revisit the Hill test.



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