                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0254p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 05-5739
          v.
                                                       ,
                                                        >
 CLARENCE JONES, JR.,                                  -
                               Defendant-Appellant. -
                                                      N
                        Appeal from the United States District Court
                      for the Western District of Tennessee at Jackson.
                   No. 04-10045—James D. Todd, Chief District Judge.
                                            Argued: May 12, 2006
                                     Decided and Filed: July 20, 2006
        Before: DAUGHTREY and COOK, Circuit Judges; CARR, Chief District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. James W. Powell,
ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee. ON BRIEF:
M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. James W. Powell, ASSISTANT
UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
       JAMES G. CARR, Chief District Judge. This is a sentencing appeal. Clarence Jones
contends the United States District Court for the Western District of Tennessee improperly applied
the Armed Career Criminal Act (ACCA) to him in determining his term of incarceration.
         Jones filed timely notice of appeal May 9, 2005.
         For the reasons that follow, Jones’s sentence shall be AFFIRMED.


         *
          The Honorable James G. Carr, Chief United States District Judge of the Northern District of Ohio, sitting by
designation.


                                                          1
No. 05-5739           United States v. Jones                                                   Page 2


                                        I. BACKGROUND
      On the evening of November 16, 1998, Jones robbed three different groups of people at
gunpoint. The robberies occurred within a period of two hours.
        Jones was arrested that evening. Though he was charged with four separate counts relating
to the three incidents, his case had one docket number and one disposition. The Madison County,
Tennessee, Circuit Court sentenced Jones to eight years, served concurrently, for all four counts. He
was paroled from that sentence October 28, 2002.
       On November 5, 2004, Jones was arrested for being a felon in possession of a firearm under
18 U.S.C. § 922(g). He entered a plea of guilty on January 7, 2005.
        The Court sentenced Jones on April 29, 2005. In calculating the appropriate penalty, the
District Judge applied the ACCA, 18 U.S.C. § 924(e). Under that statute, if an offender has three
prior convictions for any combination of violent felonies or serious drug offenses, he must receive
a minimum term of incarceration of 180 months for possession of a firearm by a convicted felon.
Id.
        At the sentencing hearing, Jones argued the Court should treat the events of his prior crimes
as only one conviction. He suggested that because Madison County used a single docket number for
his case and adjudicated his case under one disposition, his crimes amount to a “single episode.”
Relying on established Sixth Circuit standards for analyzing criminal conduct under the ACCA, the
Judge rejected Jones’s arguments. In making that ruling, the Judge looked to the pre-sentence report.
Jones did not specifically object to his use of that document.
                                         II. DISCUSSION
        Jones raises two objections on appeal. He contends: 1) a jury, not the judge, should have
determined the factual question of whether Jones’s criminal history constituted one conviction or
three under the ACCA; and 2) even if the judge had the authority to resolve the issue, he relied on
improper materials in doing so - specifically, the pre-sentence report.
              A. A Judge May Properly Determine Whether the ACCA Applies
        Generally, any fact that increases the maximum penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Hill, 440
F.3d at 298 (citing United States v. Booker, 543 U.S. 220, 244 (2005); Apprendi v. New Jersey, 530
U.S. 466, 490 (2000)).
        Nevertheless, exceptions exist to that rule, and the fact of Jones’s prior convictions need not
be submitted to a jury. Hill, at 298; see generally Almendarez-Torres v. United States, 523 U.S. 224
(1998). Jones, however, contends that the nature of his prior convictions, whether they amount to
one criminal episode or three, must be submitted to the jury. The Sixth Circuit specifically rejected
that argument in United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005). Consequently, any
objection to the sentence on these grounds is not well taken.
                                   B. The Pre-Sentence Report
       Jones also argues that the District Judge improperly relied on the pre-sentence report in
determining his prior offenses amounted to three criminal convictions, rather than one, under the
ACCA.
No. 05-5739           United States v. Jones                                                   Page 3


        While the Court, rather than the jury, may determine whether the ACCA applies, it may rely
only on certain information in doing so. Shepard v. United States, — U.S. —; 125 S.Ct. 1254, 1257
(2005). In Shepard, the Supreme Court held that in determining whether a prior offense was a
qualifying predicate offense for ACCA purposes, the sentencing court could look only to “the
statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.” Id. In applying Shepard,
the Sixth Circuit has specifically noted that the pre-sentence report is not among the permissible
sources of factual information. United States v. Sanders, 404 F.3d 980, 989 (6th Cir. 2005) (rejecting
reliance on pre-sentence report to determine if prior offenses were statutory predicates under the
ACCA).
        Neither the Supreme Court nor the Sixth Circuit has yet addressed the question of whether
the restrictions outlined in Shepard apply to a sentencing court’s finding (in addition to its
determination that a prior offense is an ACCA statutory predicate) that prior offenses constitute
single or multiple criminal episodes. Other circuits have, however, applied Shepard to this issue.
United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005) (reversing and remanding for new
sentence where District Court relied on pre-sentence report to determine prior offenses constituted
multiple convictions under the ACCA); United States v. Ngo, 406 F.3d 839, 842 (7th Cir. 2005)
(District Court may rely only on “those findings traceable to a prior judicial record of conclusive
significance” to determine whether prior convictions are related to one another).
        Here, the District Judge had available at the time of sentencing complaint documents filed
in the Tennessee state court proceedings. An affidavit of complaint is a type of record that a district
court can properly rely on in determining the nature of predicate offenses, consistent with the
standards of Shepard. United States v. Kappell, 418 F.3d 550, 560 (6th Cir. 2005). Complaints are
judicial documents, filed under oath and submitted in furtherance of formal prosecution. They bear,
accordingly, substantially greater indicia of reliability than mere police reports, which are not filed
in court, are not sworn to, and are developed for an investigatory purpose.
        The relevant complaint documents were filed for each incident that were part of the robbery
spree. Complaint 98M.3337 charges two counts of aggravated robbery and identifies two victims
near their residence at 68B Westwood Gardens; it preceded formal indictment on a count of
aggravated robbery for the first victim and a count of attempted aggravated robbery for the second.
Complaint 98M.3339 charges a single count of aggravated robbery and identifies a single victim
emerging from her car at 631 Old Humboldt Road, corresponding to count four of the indictment.
The third affidavit of complaint, 98M.3340, charges a single count of aggravated robbery and alleges
a single victim emerging from her car at 732 Walker Rd., corresponding to count three of the
indictment. All three complaints involved use of a gun in the course of the robberies or attempted
robbery.
        Those complaints allege separate victims and separate locations, even though all of the
robberies took place within two hours. They amply support the District Judge’s determination that
the incidents constituted distinct and separate offenses. Further, they provided a reasonable basis
for the court's determination that the defendant had three prior convictions for a “violent felony.”
18 U.S.C. § 924(e)(2)(B). The district court’s determination, accordingly, was not based on
improper evidence and Jones’ objection to his sentence is without merit. That sentence, therefore,
is AFFIRMED.
