                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0127n.06

                                           No. 10-6403

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                          FILED
UNITED STATES OF AMERICA,                                                            Feb 02, 2012
                                                                               LEONARD GREEN, Clerk
       Plaintiff-Appellee,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
ANGILITO SOSA,                                        WESTERN DISTRICT OF TENNESSEE

       Defendant-Appellant.

                                               /



BEFORE:        CLAY, SUTTON, and STRANCH, Circuit Judges.

       CLAY, Circuit Judge. Defendant Angilito Sosa appeals his sentence for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Sosa argues that his prior state

conviction for burglary should not have been counted as a predicate “violent felony” under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). For the reasons set forth below, we

AFFIRM.

                                        BACKGROUND

       On October 27, 2009, a federal grand jury indicted Sosa on two counts of being a felon in

possession of a firearm. Pursuant to a written plea agreement, Sosa pleaded guilty to one count, and

the government dismissed the other. The plea agreement recommended a sentence at the low end

of the Sentencing Guidelines (the “Guidelines” or “USSG”) or the statutory minimum sentence,

whichever was higher.
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        The district court relied on a presentence report (“PSR”) to determine Sosa’s sentencing

range under the Guidelines. The PSR recommended that Sosa receive an enhancement as an armed

career criminal, based on two prior convictions for aggravated robbery and a prior conviction in

Illinois for burglary.

        Sosa objected to the PSR’s calculations, arguing that the burglary conviction should not have

been counted as an ACCA predicate offense. Specifically, Sosa argued that he was a juvenile when

the burglary was committed, and thus the government needed to prove that the offense involved the

use or carrying of a firearm, knife, or destructive device. See 18 U.S.C. § 924(e)(2)(B). The

government contended that § 924(e)(2)(B)’s requirement did not apply, because Sosa had been

sentenced as an adult.

        At the guilty plea and sentencing hearing, Sosa conceded that his argument was meritless if

he was sentenced as an adult. However, Sosa modified his position and instead argued that the

government had not sufficiently proved that he was, in fact, tried and convicted as an adult.

        The district court rejected Sosa’s arguments and held that the burglary conviction qualified

as an ACCA predicate offense. The court found Sosa to be an armed career criminal and sentenced

him to the statutory mandatory minimum of 180 months imprisonment.

        Represented by new counsel, Sosa timely appealed. Original jurisdiction exists pursuant to

18 U.S.C. § 3231. Appellate jurisdiction exists under 28 U.S.C. § 1291.

                                            ANALYSIS

        On appeal, Sosa abandons his earlier arguments and offers a theory that he did not present

to the district court. He now argues that Illinois’ burglary statute embraces both “generic” and “non-


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generic” burglaries and that the documents presented at his federal sentencing did not prove that he

was convicted of a generic burglary. Because only generic burglaries qualify as violent felonies

under the ACCA, he challenges the sufficiency of the evidence supporting the enhancement.

        Typically, this Court reviews a district court’s determination that an offense is a “violent

felony” under the ACCA de novo. United States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011)

(internal citations omitted). However, if a party fails to raise an objection and articulate the grounds

on which it is based before the district court, this Court instead reviews the district court’s judgment

for plain error. United States v. Alexander, 543 F.3d 819, 822 (6th Cir. 2008) (citing United States

v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004)). Because Sosa did not present the current argument

to the district court, the plain error standard applies.

        Reversal for plain error requires the defendant to show (1) that an error occurred in the

district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected the

defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness,

integrity, or public reputation of the judicial proceedings. Johnson v. United States, 520 U.S. 461,

466–67 (1997).

A.      Statutory Framework

        The ACCA mandates a fifteen-year minimum sentence for a defendant convicted under

§ 922(g) when the defendant has three or more prior convictions for a “violent felony” or a “serious

drug offense.” 18 U.S.C. § 924(e)(1). The ACCA further defines a “violent felony” as:

        [A]ny crime punishable by imprisonment for a term exceeding one year . . . that (i)
        has as an element the use, attempted use, or threatened use of physical force against
        the person of another, or (ii) is burglary, arson, or extortion, involves use of


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       explosives, or otherwise involves conduct that presents a serious potential risk of
       physical injury to another.

18 U.S.C. § 924(e)(2)(B). Thus, there are three types of crimes that qualify as violent felonies under

the ACCA: those having an element of physical force under subsection (i); the enumerated offenses

under subsection (ii), and conduct that otherwise presents a “serious potential risk of physical injury

to another” under the “residual clause” of subsection (ii). See United States v. Mansur, 375 F. App’x

458, 463 (6th Cir. 2010) (citing United States v. Young, 580 F.3d 373, 377 (6th Cir. 2009)).

       In order for an offense to be counted under § 924(e)(2)(B)(ii)’s residual clause, the crime

must be “roughly similar, in kind as well as in degree of risk posed,” to the felonies enumerated

under the statute. Begay v. United States, 553 U.S. 137, 143 (2008). Most ACCA qualifying

offenses involve “purposeful, violent, and aggressive conduct.” Id. at 144–45. However, the

Supreme Court recently clarified that an offense may qualify as a “violent felony” by reference to

the risk of harm and the mens rea involved. Sykes v. United States, 131 S. Ct. 2267, 2275 (2011).

       In determining whether a prior conviction meets these standards, we use a two-step analysis.

First, we apply a “categorical approach,” looking to the statutory definition of the offense and not

the particular facts underlying the conviction. Taylor v. United States, 495 U.S. 575, 600 (1990).

If it is possible to violate the statute in a way that would constitute a “violent felony” and in a way

that would not, we apply a “modified categorical approach,” in which we consider the indictment,

guilty plea, or similar documents to determine whether they necessarily establish the nature of the

prior conviction. Shepard v. United States, 544 U.S. 13, 26 (2005); United States v. Gibbs, 626 F.3d

344, 352 (6th Cir. 2010).

       Under Illinois law, a person commits burglary when he:

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        knowingly enters or without authority remains within a building, housetrailer,
        watercraft, aircraft, motor vehicle [as defined in the Illinois Vehicle Code], railroad
        car, or any part thereof, with intent to commit a felony or theft.

720 Ill. Comp. Stat. 5/19-1(a).1

        The ACCA enhancement attaches to burglary only in “the generic sense in which the term

is now used in the criminal codes of most States.” Taylor, 495 U.S. at 598 (internal citations

omitted). The generic form of burglary has “the basic elements of unlawful or unprivileged entry

into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599. By contrast,

the ACCA enhancement does not attach to so-called non-generic burglaries, such as those involving

non-building structures, like boats, vehicles, vending machines, et cetera. Id. In order to determine

whether a defendant was convicted of a generic or a non-generic burglary, we apply the modified

categorical approach. Id. at 602.

B.      Shepard Documents

        Sosa’s conviction must be considered under Taylor’s modified categorical approach because

Illinois’ burglary statute embraces both generic and non-generic burglaries. See United States v.

King, 643 F.3d 1003, 1005 (7th Cir. 2011); United States v. Wilson, 168 F.3d 916, 928 (6th Cir.

1999). Accordingly, we must determine whether the evidence was sufficient for the district court

to find that Sosa pleaded guilty to the burglary of a building. The government is charged with




       1
         Under Illinois law, a Class 2 felony carries a sentence of three to seven years imprisonment,
whereas a Class 1 felony carries a sentence of four to fifteen years imprisonment. See 730 Ill. Comp.
Stat. 5/5-8-1.

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proving the facts supporting the enhancement by a preponderance of the evidence.2 See United

States v. Warwick, 149 F. App’x 464, 467 n.1 (6th Cir. 2005).

       In answering this question, we may only consider: (1) the terms of the charging document,

(2) the terms of a plea agreement, (3) a transcript of colloquy between judge and defendant in which

the factual basis for the plea was confirmed by the defendant, or (4) some comparable judicial record

of this information. Shepard v. United States, 544 U.S. 13, 26 (2005). These so-called Shepard

documents are permissible to establish an ACCA enhancement because they tend to establish what

facts the defendant “necessarily admitted” upon pleading guilty to the prior offense. Id.

       By contrast, we may not reference other supporting documents, such as police reports or

complaint applications. Id. at 21. We refuse to indulge a broader inquiry because doing so risks

introducing unproven, disputed facts in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),

and encourages mini-trials on the nature of the defendant’s prior conviction. Shepard, 544 U.S. at

24–25. Accordingly, we look only to those documents reflecting the jury’s findings (including

charging documents and jury instructions), bench trial findings and rulings, “or the defendant’s own

admissions or accepted findings of fact confirming the factual basis for a valid plea.” Id. at 25.

       Consistent with Shepard’s“comparable judicial record” provision, courts have been cautious

about expanding the range of permissibly considered evidence beyond Shepard’s restricted set of

documents. See United States v. Dancy, 640 F.3d 455, 466 (1st Cir. 2011); United States v. Aguila-


       2
        Sosa attempts to argue that because facts supporting an ACCA enhancement must be
“necessarily” proved under Shepard, the government was required to prove these facts beyond a
reasonable doubt. (Def.’s Br. 18.) This argument is specious; a different quantum of proof applies
to proving the existence of a conviction than is required to prove the facts underlying it. See
Warwick, 149 F. App’x at 467 n.1.

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Montes de Oca, 655 F.3d 915, 938 (9th Cir. 2011) (en banc). For instance, likening a PSR to a

police report, this Court has found that it is improper for a district court to rely on a probation

officer’s description of a prior offense to determine whether an ACCA enhancement applies. See

United States v. Wynn, 579 F.3d 567, 576–77 (6th Cir. 2009). Likewise, we circumscribe our review

of prior indictments only to those facts “essential to the offense.” United States v. Gardner, 649 F.3d

437, 444 (6th Cir. 2011) (citing United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995); United

States v. Armstead, 467 F.3d 943, 949 (6th Cir. 2006)).

C.     Application

       With this framework in mind, we turn to the evidence showing that Sosa’s prior conviction

involved the burglary of a building.

       The government presents several pieces of evidence: (1) the PSR, which describes the offense

as a burglary of a building; (2) statements by defense counsel at the sentencing hearing, in which

counsel conceded that the burglary involved a used car lot and a building; (3) the “Information and

Amended Information,” which described the offense as involving a building; (4) the “Mittimus,”

which showed an adjudication of guilt for “burglary and theft [] as set forth in the charge on file in

this cause;” (5) the order of discharge from probation; and (6) the docket sheet.

       Of this evidence, only the Information, Amended Information, and Mittimus constitute

Shepard-eligible evidence. In Illinois, the Information is a formal charging document made out by

a prosecutor when charging a crime without grand-jury indictment. See Black’s Law Dictionary (9th

ed. 2009). Similarly, the Mittimus functions like an order of detainment after the defendant is

adjudged guilty. Id. Because both a charging document and a judgment are the sorts of documents


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reviewable under Shepard, this evidence may be considered to determine whether Sosa qualified for

an ACCA enhancement.

       The Mittimus does not contain any detail to determine whether Sosa’s burglary involved a

building or some other structure. However, the Information and the Amended Information lay out

the essential elements of the offense as charged, and they specifically charge Sosa with burglarizing

“a building.” Accordingly, these documents were sufficient for the district court to determine, by

a preponderance of the evidence, that Sosa was convicted of a generic burglary.

       By contrast, the PSR, the order of discharge, and the docket sheet are not Shepard-eligible

documents. Pursuant to this Court’s decision in Wynn, the probation officer’s description of the

crime, like a police report, contains potentially disputed factual allegations that need not be proven

for conviction. 579 F.3d at 576–77. To rely on the probation officer’s description risks violating

Apprendi and thus cannot be used to support a later ACCA enhancement. Id. The other documents

are similarly unhelpful.

       Likewise, defense counsel’s extemporaneous statements may not be considered under

Shepard. Again, Wynn is instructive. In Wynn, we held that even if a defendant does not object to

facts as described in the PSR, reference to the report remains inappropriate because Taylor “‘requires

that evidence of a generic conviction be confined to records of the convicting court’ . . . [and] a PSR

prepared for a federal-district-court sentencing can never be a record of a convicting state court.”

Wynn, 579 F.3d at 576–77. Similar reasoning applies here. Defense counsel’s admissions before

the district court were not part of the state convicting court’s record. Relying upon attorney

statements made before the district court encourages later collateral attack and contradicts Shepard’s


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primary directive that we limit our ACCA review to those facts that were “necessarily admitted” by

the defendant upon pleading guilty to the predicate offense. Shepard, 544 U.S. at 26. Just as this

Court refused to extend Shepard-eligibility to PSR recitations sub silentio because of counsel’s

failure to object, we decline to grant Shepard authority to defense counsel’s affirmative statements

at federal sentencing.3

       Nevertheless, because the Shepard-eligible Information and Amended Information provided

adequate proof to find that Sosa’s prior conviction involved a generic burglary, we conclude that

the district court did not err in counting the burglary conviction as a predicate ACCA offense.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM.




       3
         We note, however, that this case concerns spontaneous statements made by counsel before
the district court. We do not express an opinion as to whether counsel may formally stipulate to the
facts of an ACCA predicate offense, for instance, in exchange for securing a charging concession.

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