                                 PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                                No. 14-4655


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

GARY VINCENT SPAN,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00234-MOC-DSC-1)


Argued:   April 8, 2015                           Decided:    June 8, 2015


Before MOTZ and      GREGORY,    Circuit     Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by published opinion.  Senior Judge Davis
wrote the opinion, in which Judge Gregory joined.   Judge Motz
wrote a dissenting opinion.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.    ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.         Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:

       The     district    court       sentenced      Defendant        Gary     Span    to    a

mandatory minimum fifteen-year term of imprisonment pursuant to

the    Armed    Career     Criminal      Act,    18     U.S.C.    §    924(e)     (“ACCA”).

Span    appeals      his   sentence,      arguing       that     the    Shepard-approved

documents      upon    which     the    district      court     relied      for   the    ACCA

enhancement are fatally ambiguous as to whether he committed his

predicate armed robbery offenses on different occasions.                               In the

alternative, Span argues that the Fifth and Sixth Amendments

prohibit a district court from making the “different occasions”

assessment.          We agree that the patent internal inconsistencies

infecting the underlying state court documents as to the dates

when the robberies occurred means, and we so hold, that the

Government       has    failed     to    prove     by    a     preponderance       of     the

evidence that Span’s prior felonies were separate and distinct

criminal episodes for purposes of the ACCA.                             Accordingly, we

vacate the district court’s application of the ACCA enhancement

and remand for resentencing.                We need not, and accordingly do

not, resolve Span’s constitutional claim.

                                           I.

       Gary Span pleaded guilty to an indictment charging him with

one    count    of     being   a   felon    in     possession          of   a   firearm      in

violation of 18 U.S.C. § 922(g)(1).                       At Span’s Rule 11 plea

hearing, the Government asserted that the punishment for the

                                            2
offense was a prison term of ten years, a $250,000 fine, and a

period of supervised release.                             The Government did not believe

that    Span     was      an     armed     career         criminal     under   the     ACCA,       but

stated that, should the United States Probation Office determine

that he was, Span would be subject to a mandatory 15-year term

of    imprisonment.               The    draft     presentence          investigation     report

(“PSR”)        did     not        recommend        the          ACCA   enhancement      and    the

Government       did        not    object        to       that     determination.        Lacking

objections from the Government and Span, the final PSR issued on

July 22, 2013.

       The Government later filed an objection to the final PSR,

arguing that Span was indeed an armed career criminal because

his     criminal          record        included          four    previous     North    Carolina

convictions          from      October      2000          for    robbery    with   a   dangerous

weapon, all of which were violent felonies that were committed

on different occasions.                    The Government acknowledged, however,

that     the     underlying             state     court          documents     evidencing      his

convictions listed contradictory offense dates.                                 The Government

argued that, no matter the inconsistency across the documents,

the offenses were separate and distinct episodes because they

involved       different          locations           and       different    victims.         As    a

result, the Government sought an increase in Span’s base offense

level    from        17     to    33.       After           a    three-point    reduction      for



                                                      3
acceptance of responsibility, Span’s base offense level reduced

to 30.

      The    Probation        Officer         revised     the     PSR       to     reflect:       (1)

Span’s     armed     career     criminal        status;         (2)    an     increased          base

offense      level    and     criminal         history     category           (level       30    and

category     IV);     and    (3)    a    15-year       mandatory        minimum        sentence.

With the revisions, Span faced an increase in the Guidelines

range from between 30 and 37 months to 180 months.

      Span     objected       to    his       designation         as     an      armed      career

criminal and argued that the facts in the PSR could not support

the   ACCA    enhancement          because      they      were    not       alleged        in     the

federal     indictment,       admitted         as   part    of    his       guilty     plea,      or

proven to a jury beyond a reasonable doubt.                             Span argued that,

to allow an increased sentence above the statutory maximum on

disputed      facts      beyond         the     mere      existence           of     his        prior

convictions,         would    be    a    violation         of    his     Fifth       and        Sixth

Amendment rights.

      At     sentencing       on    October         21,    2013,        Span       renewed        his

objections to the revised PSR.                  The court permitted Span and the

Government      additional         time        to   brief       the     issues,        and        the

sentencing hearing was continued until July 16, 2014.                                      At the

continued hearing, the court heard argument from Span and the

Government as to whether Span should be classified as an armed

career criminal.             Span maintained his argument that the state

                                                4
court indictments, plea transcript, and judgment were ambiguous

as to when the robberies were actually committed, and that the

court      could   not    resolve   the   ambiguity   by   engaging   in    fact-

finding and looking beyond those documents.                The solution, Span

asserted, was to view the ambiguity in his favor and decline to

apply the ACCA enhancement.

     The district court disagreed and relied on three of Span’s

robbery convictions to support the ACCA enhancement. 1                The court

reasoned      that       the   indictments    and   plea   transcript      listed

consistent dates for the three convictions, while the judgment,

which listed a different date, likely contained a transcription

error. 2     The district court then reasoned that the robberies were

separate criminal episodes.               It noted that two of the three

armed robberies occurred at the same location and involved the

same corporate victim, but each offense involved a different



     1
       The convictions supporting the ACCA enhancement have the
following file numbers: 00-CRS-002827 (“2827”), 00-CRS-002829
(“2829”), and 00-CRS-002830 (“2830”).      The district court
omitted a fourth armed robbery conviction, file number 00-CRS-
002834 (“2834”), from consideration.
     2
       Notably, under North Carolina practice and jargon, a “plea
transcript” is not what most federal practitioners would
understand the term to suggest. It is not a verbatim account of
a guilty plea colloquy among the court, counsel, and the
defendant. Rather, it is a form document filled out by the
participants in the course of the guilty plea proceedings
containing information about the charges, the rights waived by
the defendant, and other pertinent information.


                                          5
individual victim who was put in danger.                      The district court

found that Span had an opportunity after committing the first

robbery to make a conscious decision to engage in the next one

because, “after you’ve committed one, and you wait some days and

you commit another one, you had a little time to think.”                            J.A.

66.

      The   court     concluded    that    “each     of    these     offenses      was   a

distinctly        separate     offense”    and     application        of     the    ACCA

enhancement was appropriate, resulting in a sentence of 180-

months’ imprisonment.          J.A. 65.

      Span has timely appealed and we possess jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                          II.

      A defendant who has violated 18 U.S.C. § 922(g) qualifies

for an enhanced sentence under the ACCA if the defendant has

three previous convictions for a violent felony or serious drug

offense,     or     both,    and   those        offenses     were     “committed         on

occasions different from one another.”                    18 U.S.C. § 924(e)(1).

The   Government       bears     the   burden       of     proving     the    elements

necessary to support the ACCA enhancement by a preponderance of

the evidence.        United States v. Archie, 771 F.3d 217, 223 (4th

Cir. 2014).

      The   parties     do   not   dispute       that     Span’s    predicate      North

Carolina convictions for robbery with a dangerous weapon are

                                           6
violent felonies under the ACCA.                     Our analysis thus centers on

the district court’s conclusion that the robbery offenses were

committed    on    different          occasions       and    the      factual        findings

supporting that determination.

                                              A.

      We review de novo the district court’s “legal conclusion”

that three of Span’s qualifying convictions were committed on

occasions different from one another.                       United States v. Hobbs,

136 F.3d 384, 387 (4th Cir. 1998).                          However, we review the

district court’s factual findings, and its judgment regarding

factual disputes, for clear error.                   Archie, 771 F.3d at 224; see

also Hobbs, 136 F.3d at 387 n.5 (applying clear error review to

the district court’s factual findings that the defendant’s three

predicate burglaries occurred within an hour of each other).

      The clear error standard requires “a reviewing court [to]

ask   whether     ‘on    the    entire       evidence,’      it    is      ‘left     with    the

definite     and    firm        conviction          that     a    mistake          has      been

committed.’”       Easley       v.    Cromartie,       532     U.S.     234,    242      (2001)

(quoting United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948)).          We “will not reverse a lower court’s finding

of    fact   simply       because       we     would       have    decided         the      case

differently,”       id.     (citation          and     internal         quotation        marks

omitted),    but    we     may       find    clear     error      “where       the    factual

determinations            are         not          supported          by        substantial

                                              7
evidence.”         United States v. Martinez-Melgar, 591 F.3d 733, 738

(4th    Cir.       2010)     (citations       and    internal       quotation    marks

omitted).      In other words, “clear error occurs when a district

court’s factual findings ‘are against the clear weight of the

evidence considered as a whole.’”                   Id. (quoting Miller v. Mercy

Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983)).

                                            B.

       In   view     of    the   evidence     before    the   district      court,   we

conclude that its factual finding that Span’s three predicate

robbery offenses were committed on separate dates was clearly

erroneous.         By extension, we cannot hold that, as a matter of

law,    Span’s      predicate       robbery      offenses     were    “committed     on

occasions different from one another” under the ACCA.

                                            1.

       To   satisfy        its   burden   under      the    ACCA,    the    Government

introduced three sources: (1) the North Carolina judgment for

the four robbery convictions, (2) four bills of indictment (one

for each conviction), and (3) a plea transcript.                        The judgment

provides Span’s name and the file number for each offense.                           It

indicates that Span committed three of the robberies, identified

by file numbers 2827, 2829, and 2830, on the same day, January

18, 2000, and one robbery, file number 2834, on January 11,

2000.       Each    indictment      provides     the   case      caption,   “State   of

North   Carolina      v.     Gary   Vincent      Span,”    the    accompanying     file

                                            8
number, the date the indictment issued (February 7, 2000), and a

paragraph of factual allegations supporting the charge.                                 The

indictments corresponding to file numbers 2827, 2830, and 2834

indicate       that,    on    December     30,     1999,    December     14,    1999,   and

January 11, 2000, respectively, Span used a firearm to rob Pawn

Mart,     Inc.   (“Pawn       Mart”),     at     which     time   he    stole   currency,

personal property, and other items of value in the presence of a

named victim.          The indictment for file number 2829 states that,

on November 17, 1999, Span did the same at Cash America Pawn.

      The final source, the plea transcript, identifies the file

numbers for the four robbery convictions and describes the terms

of Span’s plea agreement.               An attachment to the transcript lists

the   offense         dates   for   each       conviction.        For    three     of   the

convictions       —     2827,     2829,     and      2830     —   the    offense    dates

correspond to the dates in the indictments, but those dates are

handwritten above a different, illegible date, which was at some

point stricken through. 3            The fourth conviction, 2834, provides

an offense date of December 14, 1999.                        It is unclear when the

dates     in    the    plea     transcript         were    altered     and   whether    the

alterations were made with Span’s knowledge or consent.


      3
       The district court believed that the original date in the
attachment to the plea transcript was January 11, 2000.     Span
contends that the original date was January 18, 2000. We cannot
discern which date, if either, is correct.



                                               9
       No single offense date for any predicate robbery conviction

is consistent across all three sources. 4

                                                  2.

       The       Supreme   Court          has    carved   out     a    “prior    conviction”

exception to judicial factfinding at sentencing.                                 In general,

the jury requirements of the Sixth Amendment and the Due Process

Clause together require that “each element of a crime be proved

to   the        jury   beyond    a    reasonable       doubt.”         Alleyne    v.   United

States, 133 S. Ct. 2151, 2156 (2013).                            However, in Almendarez-

Torres v. United States, 523 U.S. 224 (1998), the Supreme Court

held that the fact of a prior conviction is not an element that

must       be    alleged    in       an    indictment       in     order    to    enhance     a

defendant’s sentence.                Facts, “[o]ther than the fact of a prior

conviction,” which “increase[] the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.”                          Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (emphasis added).                            Accord United States

v. Booker, 543 U.S. 220, 244 (2005); Blakely v. Washington, 542

U.S. 296, 301 (2004).

       A    sentencing      judge          may    consult   only       a   limited     set   of

sources when determining the nature of a prior conviction for

       4
        For ease of reference, the offense dates and their
corresponding sources are listed in the table attached as
Appendix A.



                                                  10
the purpose of applying the ACCA enhancement.                                   See Shepard v.

United States, 544 U.S. 13 (2005) (plurality opinion). In cases

involving prior guilty pleas, a sentencing judge may examine the

charging document, plea agreement, plea transcript between the

judge and the defendant “in which the factual basis for the plea

was confirmed by the defendant, or to some comparable judicial

record      of    this   information.”              Id.      at   26. 5     These          “Shepard-

approved”        sources,      unlike       police      reports,      properly            limit      the

inquiry      of    sentencing     courts          to    “conclusive         .    .    .    judicial

record[s].”          Id. at 25.       Such records serve a dual purpose: they

avoid       “collateral        trials”       on        the    underlying         facts          of    a

defendant’s prior conviction, and they abate “a ‘concern that a

wider inquiry would violate the Sixth Amendment right to trial

by jury.’”        United States v. Alston, 611 F.3d 219, 226 (4th Cir.

2010) (quoting United States v. Dean, 604 F.3d 169, 175 (4th

Cir.    2010)),       abrogated    on       other      grounds      by     United         States     v.

Royal, 731 F.3d 333 (4th Cir. 2013).

       We     have    held     that     a    sentencing           judge     is       not    limited

to         Shepard-approved           sources           when         merely          determining

the existence of an ACCA-qualifying offense.                               See United States

v.     Washington,       629     F.3d       403     (4th      Cir.        2011).           In     that


       5
       Cf. supra, n.2, for the North Carolina use of the term
“plea transcript.”



                                               11
circumstance, a district court faced with inconsistent record

evidence may look to secondary sources, such as printouts of

computerized records, to engage in “fact-finding in a routine

and   conscientious     sense.”    Washington,    629   F.3d   at   414-15.

Discrepancies in these records, “such as different dates of the

same offense, ‘do not upend the trial court’s sound conclusion’

when there is additional evidence to ‘indicate the erroneous

date is likely a scrivener’s error.’”           Archie, 771 F.3d at 225

(quoting Washington, 629 F.3d at 413) (alterations omitted).

      There is no question as to the existence of Span’s four

ACCA-qualifying   predicate       convictions    for    robbery     with   a

dangerous weapon.       The Government’s evidence surely meets the

preponderance standard on that score.            However, what remains

unclear is when Span committed the robberies.           The nature of the

predicate offenses is therefore the subject of our inquiry and

the district court properly looked no further than the Shepard-

approved documents. 6




      6
       Accordingly, we reject Span’s argument that the district
court looked to non-Shepard-approved documents in applying the
ACCA enhancement. While the district court stated before recess
that it had “some other documents [it was] looking at,” J.A. 59,
the court made clear before announcing its sentence that it
looked only to the judgment, plea transcript, and indictments.
“That’s what I’m using. Those appear to be the documents that
have been offered.” J.A. 59.



                                    12
      The    documents        in   this   case      raise    more    questions      than

answers.      The indictments list unique offense dates, but those

dates are directly contradicted by the judgment, which states

that three of the predicate offenses occurred on the same day,

January 18, 2000.             The district court viewed the judgment as

“obviously” containing a transcription error, but the offense

dates   in    the    judgment      were   typewritten         and    nothing   in    the

document     suggests     human     error.       The   plea    transcript,     on    the

other hand, raises several concerns, not the least of which is

that the original handwritten offense dates for three of the

convictions were altered at a point unknown and now match the

dates in three of the indictments.                  If anything, the attachment

to the plea transcript, riddled with strikethroughs, bespeaks of

transcription error and unreliability.

      In finding that the three predicate armed robbery offenses

occurred on separate dates, the district court necessarily had

to   disregard      the   offense    dates     in    the    judgment.       Given    the

discrepancies in the state court documents, the district court’s

reliance on the indictments and plea transcript in place of the

judgment     is     not   a    “permissible      view[]      of     the   evidence    of

record.”     Anderson v. City of Bessemer City, N.C., 470 U.S. 564

(1985).      Accordingly, we must conclude that the district court

clearly erred in finding that the offenses were committed on

separate dates.

                                          13
                                             3.

           Having concluded that the district court clearly erred by

finding      that    the   predicate        convictions        occurred    on    separate

dates, we now turn to the legal question of whether the offenses

were committed on occasions different from one another. 7

       Offenses are deemed to have been committed on different

occasions under the ACCA “when they arise out of a ‘separate and

distinct criminal episode.’”                United States v. Boykin, 669 F.3d

467, 470 (4th Cir. 2012) (emphasis in original) (quoting United

States v. Carr, 592 F.3d 636, 640 (4th Cir. 2010)).                              Offenses

committed on the same day, or even in the span of a few hours

may nevertheless be considered “separate and distinct” criminal

episodes      if    they   do   not    “arise     from    a    continuous       course   of

criminal conduct.”          United States v. Letterlough, 63 F.3d 332,

337    (4th    Cir.    1995).         The   ACCA       extends   only     to    predicate

offenses “that can be isolated with a beginning and an end —

ones that constitute an occurrence unto themselves.”                               Id. at

335.

       We    listed    several    factors         in    Letterlough     to     guide     the

determination         of   whether      offenses        have     been     committed      on

occasions different from one another.                   We consider:

       7
       While the district court omitted consideration of the
fourth robbery conviction from its analysis, file number 2834,
we include it as part of our de novo assessment.



                                             14
       (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.

Carr, 592 F.3d at 644 (enumerating factors); Letterlough, 63

F.3d    at       335-36.         These      factors    can     be   viewed     “together    or

independently” and any one factor with a “strong presence . . .

can dispositively segregate an extended criminal episode into a

series of separate and distinct episodes.”                              Carr, 592 F.3d at

644 (quoting Letterlough, 63 F.3d at 336).

       We    have           declined   to    sanction        application       of   the   ACCA

enhancement            where    the    Government      has     failed    to    “definitively

establish[]” any of the Letterlough factors indicating that the

predicate               offenses          were         committed          on        different

occasions.            United States v. Tucker, 603 F.3d 260, 266 (4th Cir.

2010).           In    Tucker,    we     vacated      the    district    court’s     judgment

where       it        was    unclear     from    the        underlying    South      Carolina

judgments and indictments whether the defendant committed two

prior second-degree burglaries of four different storage units

on separate occasions.                  Three of the Letterlough factors — the

nature and objective of the offenses and the lack of information

regarding whether there had been different victims — suggested

that the burglaries occurred on the same occasion.                              Id. at 265.

                                                 15
However, under South Carolina law, the defendant could have been

held criminally responsible for the acts of his accomplice, and

the    underlying      Shepard-approved            documents         did     not    make       clear

that the defendant sequentially committed the two burglaries,

rather than simultaneously with the aid of his accomplice.

       Moreover,       the   Government        could          not    establish          from    the

approved sources that the defendant himself entered more than

one storage unit and thus, the two remaining Letterlough factors

—     whether    the     offenses       had        been       committed        in       different

locations, and whether the defendant had an opportunity to make

a conscious decision to engage in more than one burglary — did

not weigh in favor of multiple criminal episodes.                                  Id. at 266.

As a result, we were constrained to regard the two burglary

convictions as one for the purposes of the ACCA.                             Id.

       And in Boykin, we held that it was plain error for the

district court to rely on facts recited in the defendant’s PSR

to support the ACCA enhancement because there was no indication

that the facts in the PSR derived from Shepard-approved sources.

669    F.3d     at   472.       Given    that           the    defendant’s          convictions

resulted      from   a   jury    verdict,          no    plea       colloquy       or    judicial

factfinding existed to support the PSR’s narrative.                                 Id. at 471.

Absent    the    factual     details     from        the      PSR,     the    only       reliable

information remaining was that the defendant was convicted of

two violent felonies committed on the same day in 1980. That

                                              16
information was too “meager” to determine whether the offenses

occurred      on        different     occasions,           rendering     the   Letterlough

factors “nearly useless.”                  Id. at 472.

       A weighing of the Letterlough factors in this case does not

lead    us    to    the       conclusion      that    each     robbery    occurred      on   a

separate occasion.              First, the indictments indicate that, of the

four burglaries, three were committed at the same location, Pawn

Mart.     Span committed one robbery at Cash America Pawn, which

suggests,          at     most,      two     separate        criminal     episodes,      not

four.        See    Carr,      592   F.3d     at    645    (reasoning     that   different

locations      of       thirteen     separate        storage    units     suggested     that

their burglaries were separate episodes).                          Second, the nature

and criminal objectives of the robberies remained the same; at

each robbery, Span used a gun to steal money and property from a

pawn shop.          See Hobbs, 136 F.3d at 389 (stating that offenses

with the same nature bolster the conclusion that the offenses

occurred      on        the   same   occasion,        if    that   conclusion     is    also

supported by other facts).

       Given that we cannot conclude, with any confidence, what

date the offenses occurred, and, if they were committed on the

same day, whether they occurred in quick succession as part of a

continuous         course       of    conduct,       we     hesitate     to    assign    any

significant weight to the Letterlough factor assessing whether

Span had an opportunity to make a conscious and knowing decision

                                               17
to engage in one offense after the other.                                 Span could have

committed the robberies at Pawn Mart all at once, or within a

short period of time.             We lack reliable information from the

Government to make the distinction between the former scenario

and    the    latter.       The   fact       that    two    robberies           occurred      in

separate      locations      would     ordinarily          indicate        at       least    two

separate criminal episodes because Span cannot be in two places

at once; however, as discussed below, Span could have acted with

an accomplice.          Therefore, it remains entirely possible that

Span was responsible for the robberies at one location and his

accomplice      was     responsible         for     the    robbery        at    a     separate

location.       This degree of uncertainty precludes the weight of

this factor from aiding the Government.

       The    only     persuasive      factor       leaning          in   favor      of     four

separate      criminal      episodes     is       that    each       indictment       named    a

different individual victim.                This factor can “decisively tip[]

the    scale”    and     dispositively         segregate         a    crime     spree       into

separate occasions.           Hobbs, 136 F.3d at 390.                     We do not find

this factor dispositive, however, in light of the weight of the

other factors in the aggregate.

       The Government counters by advancing a speculative theory

that    the     offenses      occurred        on     separate         occasions.             The

Government asserts that, under North Carolina law, armed robbery

requires      both    the   taking     of     property      and      a    life-threatening

                                             18
assault, and “where a defendant takes the property of only a

business but does so in the presence of multiple employees, even

if threatening the life of both employees, only a single armed

robbery is committed.”             Gov’t Br. 25 (citing State v. Beaty, 293

S.E.2d   760,    764    (N.C.      1982)).       Because     the   three     Pawn   Mart

robberies    each      involved      a    different     employee      and    different

property of the business, they necessarily must have occurred on

different occasions because they could not have been charged in

separate    indictments       otherwise.          To    accept     the   Government’s

theory as true, we must first find that the named victims were

employees of Pawn Mart and that only the property of Pawn Mart

was stolen.      We have no way of firmly making that determination

from mere allegations found only in the indictments.

     Casting further doubt on the Government’s theory is the

plea transcript, which indicates that Span may have acted with

an   accomplice,       as     it    recommends      “restitution         jointly    and

severally with co-defendant.”                J.A. 196.       Under North Carolina

law, a defendant may be charged with robbery with a dangerous

weapon if he aids or abets another in the commission of the

offense.        See    N.C.   Gen.       Stat.   Ann.    §   14-87.         However,   a

defendant’s acting in concert with another is not an essential

element of robbery with a dangerous weapon and need not appear

in the indictment.            See State v. Small, 400 S.E.2d 413, 416

(N.C. 1991) (describing the elements of robbery with a dangerous

                                           19
weapon    as     “(1)       the    unlawful      taking       or     an    attempt       to   take

personal property from the person or in the presence of another

(2) by use or threatened use of a firearm or other dangerous

weapon    (3)     whereby         the    life    of    a    person        is    endangered       or

threatened”).

     If Span did, in fact, commit three of the robberies on the

same day, January 18, 2000, it remains entirely plausible that

he did not act alone.                    As described earlier, he could have

robbed Pawn Mart while an accomplice simultaneously robbed Cash

America Pawn.          See Tucker, 603 F.3d at 266; cf. United States v.

Fuller,     453       F.3d    275,       279    (5th       Cir.     2006)       (vacating       the

defendant’s       ACCA        enhancement         because          the    court       could     not

determine from the indictment whether the defendant committed

the burglaries as an accomplice or acted alone).

     In   sum,        we     decline      to    conclude       that       each    offense       was

committed        on     a    separate          occasion       because          application       of

the Letterlough factors does not lead us to that conclusion.                                     We

cannot,     in        good    conscience,            affirm        the    district       court’s

application       of    the       ACCA   enhancement          on    this       record,    and    we

reverse the district court and remand for resentencing.

                                               III.

     Span      raises        an   alternative         argument       that       the   Fifth     and

Sixth Amendments prohibit a sentencing court from determining

whether a defendant’s predicate convictions were committed on

                                                20
different occasions.        He draws support from the Supreme Court’s

recent admonition in Descamps v. United States, 133 S. Ct. 2276

(2013),    against    a   sentencing      court’s      consideration       of   facts

extraneous to the elements of an underlying prior conviction for

the purpose of applying the ACCA enhancement.                       Span contends

that our decision in United States v. Thompson, 421 F.3d 278

(4th Cir. 2005), which approved a sentencing court’s finding of

“operative facts” inherent in the fact of a prior conviction, is

in conflict with Descamps and should be overturned.                       We do not

view Descamps to be as far-reaching as Span suggests, and we

will   not    revisit     Thompson      absent     a   contrary     Supreme     Court

opinion because we lack the authority to overrule another panel

decision, see McMellon v. United States, 387 F.3d 329 (4th Cir.

2004) (en banc).

       The defendant in Descamps had previously been convicted of

burglary in California, an offense that the state defined rather

broadly by not requiring the entry to have been unlawful.                          At

sentencing,     the     district     court    reasoned      that    the     modified

categorical     approach       permitted      it       to   consult       documents,

including    the   transcript      of   the   plea     colloquy,     to    determine

whether the defendant had admitted the traditional elements of

burglary, such as breaking or entering.                 Having determined that

the defendant’s conviction qualified as “a generic burglary” and

thus   a   violent    felony    under     the    ACCA,      the    district     court

                                         21
enhanced the defendant’s sentence.                 The Ninth Circuit affirmed

the     district     court     and     approved    an     interpretation    of    the

modified categorical approach in which sentencing judges were

permitted to examine conclusive court documents to determine the

factual basis of a prior conviction where the defendant had been

convicted under a statute “that is categorically broader than

the generic offense.”          133 S. Ct. at 2283.

      The    Supreme     Court   was     chiefly     concerned    with    the    Ninth

Circuit’s expansive view and held that, where a defendant has a

prior conviction under an indivisible statute, i.e., one that

does not list alternative elements, the sentencing court may not

turn to the modified categorical approach to determine whether

that prior conviction qualifies as a violent felony under the

ACCA.       The Court reiterated that the limited purpose of the

modified     categorical       approach     is     “to     identify,     from    among

several alternatives, the crime of conviction so that the court

can compare it to the generic offense.”                  Id. at 2285.      A statute

that does not contain alternative elements of proof, but merely

defines      the     offense     “overbroadly,”          does   not    warrant    the

sentencing court’s reference to other documents.                  Id. at 2286.

      Most salient for purposes of our analysis were the Court’s

statements         regarding     the     Sixth     Amendment      roots     of     the

categorical        and   modified      categorical      approaches.       The    Ninth

Circuit’s efforts to “discern what a trial showed, or a plea

                                           22
proceeding revealed, about the defendant's underlying conduct”

offended the Sixth Amendment because a jury must find such facts

beyond a reasonable doubt.                 Id. at 2288.              The only facts that a

sentencing      court       can       be     sure        a     jury     found          are    those

“constituting        the    elements        of     the       offense.”           Id.         When    a

defendant pleads guilty, he is waiving his right to a jury trial

only on the elements of the offense, and other extraneous facts,

whether admitted or not, cannot be used at sentencing to enhance

his punishment.         Id.       The majority warned that extraneous facts

in   aged    court    documents         could    very         well    be    incorrect,         as    a

defendant “often has little incentive to contest facts that are

not elements of the charged offense — and may have good reason

not to.”     Id. at 2289.

      Span    seizes       on    this   language         to     call    into      question      the

reasoning of our decision in Thompson.                              There, a divided panel

rejected     the     defendant’s           argument          that    the    Sixth       Amendment

prohibited his ACCA-enhanced sentence because the jury did not

find, nor did he admit, that his predicate convictions were for

violent felonies committed on different occasions.                                 Recognizing

that a defendant’s prior conviction is not a fact that a jury

must find, the majority explained that data inherent in the fact

of a prior conviction includes “operative facts, such as the

statute       which             was        violated            and         the         date         of

conviction.”         Thompson, 421 F.3d at 282.                        The court concluded

                                              23
that    the       defendant’s             North     Carolina       predicate      breaking   and

entering      convictions                qualified    as    violent      felonies    under   the

ACCA as a matter of law.                         Id. at 284.        And the Court reasoned

that    the        information             necessary        to     determine      whether    the

convictions            had        been     committed       on     different    occasions     was

inherent in the convictions themselves.                             “To take notice of the

different dates or locations of burglaries — something inherent

in the conviction — is to take notice of different occasions of

burglary as a matter of law.”                       Id. at 286.

       The tension between Descamps and Thompson, which has been

described as an “outlier,” United States v. Aviles–Solarzano,

623 F.3d 470, 474 (7th Cir. 2010), is apparent.                                   Our precedent

permits       a        sentencing           court’s        dive     into      Shepard-approved

documents         to    sort       out     the    facts    of    the    underlying    predicate

conviction, not just its elements.                          Descamps intimates that this

analysis exceeds a sentencing court’s proper role.                                  Ultimately,

we are persuaded, however, that the Supreme Court’s statements

in Descamps, while foreboding, will most likely be confined to

identification               of     a     violent     felony       under    the     categorical

approach to the ACCA.                       The question of whether a defendant’s

predicate         convictions             were     committed       on   different     occasions

under   the        ACCA       more        likely    involves       an   altogether     separate

assessment outside of the strictures of the Descamps rationale.



                                                     24
We leave to another case on another day the continued viability

of Thompson.

                                    IV.

    We   respect   our   esteemed    dissenting   colleague’s   contrary

view of the proper analysis and outcome in this case, but we

remain unshaken in our view that the Government’s evidence was

insufficient to satisfy the Government’s burden and thus the

district court’s finding here was clearly erroneous. Under the

dissent’s view, if some other district judge had found, as we

conclude as a matter of law, that the Government’s evidence was

insufficient to sustain its burden of proof, then the dissent

would also affirm that judgment as resting on findings that were

not “clearly erroneous.” 8 Consequently, the arbitrary, if not


    8
       It is clear that the experienced judge in this case took
no pleasure in imposing the sentence that he did:

    And so these sentences are just -- I mean we [federal
    judges] sort of give them out like they’re M&Ms or
    something and then go off the bench . . . .

     I mean, you know, you’re putting people away. Some
     people need to be warehoused and if you’re in the
     opinion that he should be warehoused, that’s fine and
     I can respect that. I can see that off of this that
     there would be disagreements about if he’s reached the
     “let’s warehouse him and lock him away forever stage,”
     and I can respect that. But sentences that we give out
     are real. These are real years, and 15 years is a long
     time . . . .

     Now, understand that I’m not sentencing -- if I was
     sentencing him for the armed robberies you could bring
(Continued)
                                    25
freakish,      imposition    of      federal     criminal    sentences,      to     say

nothing of mandatory minimum recidivist sentences, based on a

sentencing judge’s strained ability and willingness to parse for

“plausible”     meaning     highly      unreliable    state    court     documents,

would hold sway. But such a regime flies in the face of the

entire remedial      thrust       of   the   Sentencing     Reform     Act   of   1984

(SRA).   The    collection      of     Shepard   documents     in     this   case   is

anything but the “conclusive . . . judicial record,” Shepard,

544 U.S. at 25, necessary to ensure proper respect for the Sixth

Amendment.      If it is not the role of federal appellate judges to

normalize the achievement of Shepard’s and the SRA’s laudable

goals of rational determinant sentencing, then we do not know

what our role is expected to be.

                                          V.

     “Good      enough    for     government       work”    has     never    been    a

legitimate critique of the important processes that turn the

wheels   of    our   constitutional          democracy.     Nowhere    is    it   less



     those victims in and I could hear what those victims
     say. I’m sentencing him for what happened that day
     that he got caught. I’m not sentencing him for the
     armed robberies. Now he’s paying a price for having
     done those again . . . . He paid a price and then he’s
     paying another price today for having done that. I’m
     sentencing him for being a felon in possession of a
     firearm . . . .

J.A. 75-77.



                                          26
legitimate than in the requirement that prosecutors establish by

a preponderance of the available evidence the facts necessary to

justify a federal district court’s imposition of a mandatory

minimum recidivist sentence of a decade and a half based on

dated   and   marked-up   state   court   documents   of   questionable

reliability. Accordingly, for the reasons set forth, we vacate

the judgment and remand this case for further proceedings not

inconsistent with this opinion.



                                                 VACATED AND REMANDED




                                  27
                                APPENDIX A



Case Number     Indictment         Plea            Judgment
                                   Transcript *
00-CRS-002827   Offense Date:      Offense Date:   Offense Date:

Pawn Mart,      12/30/1999         12/30/1999*     1/18/2000
Inc.
00-CRS-002829   Offense Date:      Offense Date:   Offense Date:

Cash America    11/17/1999         11/17/1999*     1/18/2000
Pawn
00-CRS-002830   Offense Date:      Offense Date:   Offense Date:

Pawn Mart,      12/14/1999         12/14/1999*     1/18/2000
Inc.
00-CRS-002834   Offense Date:      Offense Date:   Offense Date:

Pawn Mart,      1/11/2000          12/14/1999      1/11/2000
Inc.




     *
       For the dates in this column with an asterisk, the plea
transcript contained an illegible offense date, which was
stricken through and replaced with the dates listed.    Span’s
initials do not appear by the strikethroughs and it is unclear
when the offense dates were altered and whether Span agreed to
the alterations.



                                    28
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

     With respect, I dissent.              The majority seems to me to be

correct, except on one point.             That point, unfortunately, makes

all the difference.

     When the district court sentenced Gary Span under the Armed

Career Criminal Act, it determined that he had committed three

predicate    state     crimes       “on    occasions           different        from   one

another.”      18    U.S.C.    §    924(e)(1).             The     majority     correctly

recognizes    that    the    district      court          relied    only   on    Shepard-

approved    state    court    documents        in    making      this    determination.

The majority is also correct that, before the district court

decided      that     Span         committed             the     state     crimes       on

different occasions -- a legal conclusion -- it made a factual

finding that Span committed the crimes on different dates.                             And

the majority correctly acknowledges that we must affirm this

finding of fact unless it is clearly erroneous. 1

     Where    the    majority       falters         is    in   concluding       that   the

district court clearly erred in its key factual finding -- that

Span committed the three predicate state crimes on different

dates.     The majority reasons that the district court’s reliance


     1
       And if we do so, then we must also affirm Span’s sentence
because offenses committed on different dates necessarily were
committed on different occasions.        See United States v.
Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).



                                          29
on the indictments and plea transcript to resolve conflicting

dates in the state court documents was “not a ‘permissible view

of the evidence.’”          Op. at 13 (quoting Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985)).                I cannot agree.

Given the evidence before the district court and the deference

we must afford facts found by that court, the district court’s

determination here was plainly “permissible.”

     When      sentencing       courts     engage        in    fact   finding,

“[p]reponderance of the evidence is the appropriate standard of

proof.”     United States v. Grubbs, 585 F.3d 793, 803 (4th Cir.

2009).      As the Supreme Court has explained, “[t]he burden of

showing   something   by    a    preponderance      of   the   evidence   . . .

simply requires the trier of fact to believe that the existence

of a fact is more probable than its nonexistence.”                    Concrete

Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust

for S. Cal., 508 U.S. 602, 622 (1993) (internal quotation marks

and citation omitted).          All the district court needed to find,

therefore, was that it was more probable than not that Span

committed the three predicate robberies on different dates.

     For us to overturn that finding requires a good deal more.

Only when we are “left with the definite and firm conviction

that a mistake has been committed” may we reverse a district

court’s finding of fact.         Easley v. Cromartie, 532 U.S. 234, 242

(2001) (internal quotation marks and citation omitted).                As long

                                      30
as “the district court’s account of the evidence is plausible in

light of the record viewed in its entirety,” we must affirm,

even if we are “convinced that . . . [we] would have weighed the

evidence differently” as the trier of fact.                  Anderson, 470 U.S.

at 573-74 (emphasis added).

     I do not see how the district court’s determination that

Span committed the three predicate crimes on three different

days is anything less than plausible.                  Two of the three sets

of Shepard-approved documents introduced at sentencing indicate

that Span committed the three state crimes at issue here on

different days.         The indictments state that Span robbed Cash

America Pawn on November 17, 1999; Pawn Mart on December 14,

1999;   and   Pawn   Mart      again   on   December   30,    2000.    The      plea

transcript     confirms        those   dates.     To    be    sure,    the      plea

transcript also contains three crossed-out dates.                   But the only

dates   now   legible     on    that   document   match      the   dates   on    the

indictments.     Certainly it is at least plausible that the plea

transcript was edited to correct an error, not introduce one.

     The dates in the indictments and the plea transcript do

conflict with the dates in the judgment, which states that all

three robberies at issue here occurred on January 18, 2000.                      But

the fact that there was a discrepancy among the Shepard-approved

documents did not prohibit the district court from resolving it.

Making factual findings in the face of conflicting testimony,

                                        31
documents, or other evidence is a district court’s bread and

butter.

     Anderson,     on   which     the    majority     relies,       is      particularly

instructive on this point.               There, a unanimous Supreme Court

reversed this court, concluding that we had “misapprehended and

misapplied the clearly-erroneous standard” when we overturned a

district   court’s      factual    findings.          470    U.S.      at     566.     The

Supreme    Court   explained      that    the   clearly       erroneous         standard

applies “even when the district court’s findings do not rest on

credibility      determinations,         but    are    based,”         as      here,    on

“documentary evidence.”           Id. at 574.          That is because “[t]he

trial judge’s major role is the determination of fact, and with

experience in fulfilling that role comes expertise.”                            Id.    The

Court has never retreated from these guidelines, and we are not

free to deviate from them.

     Here, the district court acknowledged that the dates on the

judgment contradicted the dates on the indictments and the plea

transcript, but concluded that this was “an error” on the face

of the judgment.        In reaching that conclusion, the court fairly

relied on the fact that two-thirds of the available evidence

supported its finding.            Perhaps both the indictments and the

edited    plea   transcript       are   inaccurate,         but   it     is    certainly

“plausible” that they are both correct.                 See Anderson, 470 U.S.

at 574.    The majority provides no additional reasons, beyond the

                                         32
conflicting dates in the judgment and the fact that the plea

transcript was edited, to suggest otherwise. 2

      I too am troubled that the length of Span’s sentence hinged

on   the    district       court’s   parsing     of    inconsistent      state   court

documents.           In     nearly   every      other    instance       in    which     a

defendant’s sentence jumps from a Guidelines maximum of thirty-

seven      months    to    a   mandatory     minimum    of    fifteen    years,       the

Constitution would require a jury to find the fact triggering

that increased sentence beyond a reasonable doubt.                       See Alleyne

v. United States, 133 S. Ct. 2151, 2155 (2013).                          But to the

extent the district court’s decision seems unjust, it is because

binding precedent tied the court’s hands.                     See United States v.

Archie,     771     F.3d    217,   223   (4th   Cir.    2014);    see    also    United

States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005).                                 In

resolving     a     close      factual   question,      the   district       court    was

      2
       In response to this dissent, the majority suggests that I
would also affirm if the district court had found the
“government’s evidence was insufficient to sustain its burden of
proof.”    Op. at 25.     It seems to me that our role as an
appellate court, not empowered to find facts, would require
exactly that result.    Notably, in Anderson, the Supreme Court
concluded that “[b]ased on [its] own reading of the record,” it
could   not   determine   that   either  the   district   court’s
“interpretation of the facts” or the Fourth Circuit’s contrary
interpretation was “illogical or implausible.” 470 U.S. at 577.
This conclusion, however, did not justify the Fourth Circuit’s
reversal of the district court given “the appropriately
deferential”   standard  of   review.    Id.     The   majority’s
willingness to reverse here erases the “clear” from the “clear
error” standard of review.



                                           33
required   to   apply   a    relatively   low   standard   of   proof   --

preponderance of the evidence.       Any injustice here is the result

of that standard, not a clear error on the part of the district

court in applying it.       Accordingly, I dissent.




                                    34
