                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 19a0433n.06

                                             Case No. 18-5309

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                               FILED
                                                                                        Aug 20, 2019
UNITED STATES OF AMERICA,                                  )                        DEBORAH S. HUNT, Clerk
                                                           )
        Plaintiff-Appellee,                                )
                                                           )        ON APPEAL FROM THE UNITED
v.                                                         )        STATES DISTRICT COURT FOR
                                                           )        THE EASTERN DISTRICT OF
CHRIS RAYVON STARKS,                                       )        TENNESSEE
                                                           )
        Defendant-Appellant.                               )
                                                           )
____________________________________/

Before: MERRITT and LARSEN, Circuit Judges.*

        PER CURIAM. The defendant pled guilty to illegally possessing a firearm in violation

of 18 U.S.C. § 922(g). His appeal challenges a sentencing enhancement under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e). The Act is a sentencing regime specifying mandatory

minimum sentences for felons in possession of firearms. The question presented is whether the

District Court erred in relying on facts in documents about defendant’s older crimes to conclude

that the career criminal enhancement applied. We affirm.

        In August of 2016, law enforcement searched Chris Starks’s home in Shelbyville,

Tennessee, and discovered a loaded semi-automatic pistol. Starks pled guilty to the gun charge




*
 The third member of this panel, Judge Damon J. Keith, died on April 28, 2019. This order is entered by a quorum
of the panel. 28 U.S.C. § 46(d).
Case No. 18-5309, United States v. Starks


without a plea agreement. The Presentence Report said that Starks had three convictions for

aggravated robbery in Tennessee. Starks objected to being classified as an armed career criminal.

The government responded to Starks’s objections and submitted three state court judgments and

accompanying indictments from Starks’s prior violent felony convictions. At the sentencing

hearing, the District Court overruled the defendant’s objections and sentenced Starks to the

mandatory minimum of 180 months. The defendant appealed.

       The ACCA punishes recidivists caught possessing firearms. If a defendant meets certain

standards specified by the statute, then he qualifies for a sentencing enhancement:

       In 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 fined under this title and imprisoned not less
       than fifteen years.

18 U.S.C. § 924(e)(1) (emphasis added). The regime is applied in several stages. A sentencing

court must first determine whether the previous convictions are for violent felonies, and then must

determine whether those convictions occurred on occasions different from one another. The

documents a District Court may examine in these stages are called Shepard documents. See Mathis

v. United States, 136 S. Ct. 2243, 2249 (2016); Shepard v. United States, 544 U.S. 13, 26 (2005).

       The defendant points to United States v. King, 853 F.3d 267 (6th Cir. 2017), to argue that

the District Court was only empowered to review the Shepard documents for the elements of the

crimes he committed rather than the dates and times of those crimes. Our recent precedent

forecloses this argument. United States v. Hennessee, No. 18–5786, 2019 WL 3418957, at *4 (6th

Cir. July 30, 2019). Even after King, our court has continued to use Shepard documents to

determine whether the defendant’s prior offenses were committed on different occasions. See

United States v. Pham, 872 F.3d 799, 802 (6th Cir. 2017). The government need only prove to a



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Case No. 18-5309, United States v. Starks


preponderance standard that the offenses were committed on different occasions. Id. at 801. In

this case, the judgments meet the first or the second test under Pham. They show that the defendant

committed aggravated robbery on “9/25/2008,” aggravated robbery on “9/28/2008,” and

aggravated robbery again on “9/30/2008,” respectively. The District Court did not err by relying

on these materials.

       Starks also argues that the “different occasions” inquiry is an element of the ACCA that

must be proven beyond a reasonable doubt by the government or, in the alternative, admitted by

the defendants in a constitutionally protected proceeding (like a state court plea colloquy). Our

precedent forecloses this argument too. United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004).

We conclude, therefore, that the government satisfied its burden in this case and affirm the

defendant’s sentence.




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Case No. 18-5309, United States v. Starks


       MERRITT, Circuit Judge, Concurring in Judgment. As our per curiam in this case

briefly explains, we recently decided the question of the standard to be followed in this case on the

“different occasions” inquiry in United States v. Hennessee, No. 18–5786, 2019 WL 3418957 (6th

Cir. July 30, 2019). We are now bound by the published opinion in this case. Chief Judge Cole

issued a persuasive dissent in Hennessee with which I agree and would follow if not bound by the

majority in Hennessee. In my opinion, as many lawyers and judges have said, the ACCA is a mess

and should be extensively amended or repealed. Cf. Williams v. United States, 927 F.3d 427, 446

(6th Cir. 2019) (Merritt, J., concurring) (quoting Justices Breyer and Alito in calling the Act a

“time-consuming legal tangle” and a “mess,” respectively).




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