     Case: 15-11045        Document: 00514679565       Page: 1    Date Filed: 10/12/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                      No. 15-11045                      October 12, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


           Plaintiff - Appellee

v.

DAMONI OWENS,

           Defendant - Appellant




                     Appeal from the United States District Court
                          for the Northern District of Texas
                               USDC No. 4:15-CR-37-1


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       This case concerns the enhancement of Damoni Owens’ sentence under
the Armed Career Criminal Act (ACCA) following his conviction for possession
of a firearm as a felon. At sentencing, the district court concluded that Owens
was an “armed career criminal” subject to a mandatory sentence enhancement
under the ACCA. We consider whether the district court properly




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-11045
circumscribed the sources on which it relied to apply the enhancement. We
conclude it did not. We vacate the sentence and remand for resentencing.
                                             I.
       On August 20, 2014, the Fort Worth Police Department received
information indicating that Damoni Owens, wanted on an outstanding
warrant, was at the Knights Inn motel in Fort Worth, Texas. After officers
converged on the motel and detained Owens, they received consent from his
girlfriend to search the couple’s room. There police found a Glock 17 nine-
millimeter pistol, which Owens admitted to possessing. A database check
indicated that Owens had been previously convicted of felony offenses. Owens
was charged with possession of a firearm as a felon, and eventually entered a
guilty plea, preserving his right to appeal.
       Before sentencing Owens, the district court ordered the U.S. Probation
and Pretrial Service to prepare a pre-sentence report (PSR). The PSR filed with
the district court in April 2015 and a Second Addendum filed in October 2015
recommended enhancement of Owens’ sentence under the ACCA, based on
Owens’ prior convictions for aggravated assault with a deadly weapon and
burglary. 1 The Probation Service clarified that Owens had two burglary
convictions arising from separate acts committed on the same day, July 6,
2009. A 2009 indictment charged Owens with burglary of a habitation,
describing that on July 6, 2009, Owens entered the habitation of Sheila Powers
without her consent and there attempted or committed theft. Another
indictment, also from 2009, charged Owens with burglary of a building,
describing that on July 6, 2009, Owens entered a building without the


       1The original PSR listed a 2011 burglary as the third predicate offense, however, this
was later removed, and replaced with the second burglary conviction from July 2009. In the
Addendum, the Probation Service included the additional burglary conviction, which had
been “erroneously missing” from the original Report.

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                                     No. 15-11045
permission of its owner, V.G., and there attempted or committed theft. 2 The
Government produced Owens’ judicial confessions to the facts described in
these indictments.
      The PSR also summarized an offense report associated with the
indictment for burglary of a habitation. According to this summary, on July 6,
2009, officers stopped Owens for traffic violations, and found stolen goods in
his car. The goods belonged to an unnamed female employed at the police
station, whose apartment had been recently broken into. When police
inspected the woman’s apartment at the Cobblestone Apartments complex,
they observed that the door had been kicked in. Residents at the complex had
observed a male fitting Owens’ description (including a description of his
tattoos) going door to door asking for a friend. When questioned, Owens told
police that the stolen goods were already in the car when he borrowed it from
a friend, whom Owens was unable to name. Owens claimed that he borrowed
the car in order to meet another friend—whom he was also unable to name—
at the Cobblestone Apartments complex.
      Owens objected to the PSR’s recommendation of ACCA enhancement,
arguing that the two July 6, 2009 burglaries “did not occur on occasions
different from one another,” and could count only as one predicate offense for
ACCA purposes. The Government disagreed, arguing that “state-court
documents” established that Owens “was convicted of burglarizing a building
owned by ‘VG’ and burglarizing SP’s habitation . . . two burglaries on the same
day . . . involving different places and different victims.”




      2 Owens’ initial brief claims that this indictment was never introduced before the
sentencing court. However, the record indicates that the Government attached the
indictment to an objection to the PSR filed with the district court on September 15, 2015.

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                                No. 15-11045
     During the sentencing hearing, Owens attempted to address the issue.
The Government argues that his admissions are germane to our inquiry:
  DEFENDANT:           . . . . I understand that you already made the
                      decision based off of the armed career. I know I
                      brought it to my attorney Michael’s attention about
                      the statute, and, you know, he recently explained to
                      me somewhat that, you know, because they are
                      basing it off of there being two victims, and from
                      what my understanding was under the statute of
                      924(e) was that they had to have three prior
                      convictions on separate occasions from one another.

  COURT:              The separate occasions doesn’t mean different days.
                      It doesn’t have to be on different days.

  DEFENDANT:          I understand, Your Honor, and that’s kind of what
                      he explained to me. And I don’t know if you have
                      received my letter or not explaining to you what
                      happened that day.

  COURT:              I have.

  DEFENDANT:          But pretty much in the letter I pretty much stated
                      that, you know, I did commit the crimes. And the
                      second one, under the burglary of the building, it
                      really should have been a criminal trespass because
                      I knew the building was empty, but I went through
                      that particular building because of the people that
                      was outside, and I honestly didn’t want any
                      confrontation with them to the point where it would

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                                        No. 15-11045
                              have been anything physical as far as me or
                              another person getting harmed, and I thought
                              that’s what it would have been. I ended up taking a
                              plea agreement based off of the burglary of the
                              habitation. I just wanted to get that on the record.

      The district court overruled Owens’ objection, imposed the ACCA
enhancement, and sentenced Owens to 180 months with four years’ supervised
release. Owens appealed.
                                               II.
      Owens challenges the district court’s application of the ACCA on three
grounds. First, he argues the Government failed to establish that his two
predicate burglary convictions arose from separate criminal transactions. For
this reason, the convictions cannot count as two predicate violent felonies for
ACCA purposes. Second, he argues his Texas aggravated assault conviction
cannot be a predicate for enhancement, because it does not qualify as a “violent
felony” under the ACCA. Third, he argues that his Texas burglary convictions
cannot be predicates for enhancement, because this offense does not qualify as
a violent felony under the ACCA and this court’s precedent.
      We resolve this case on the first ground, and do not reach Owens’ second
and third arguments. We review the legal conclusions underlying the district
court’s application of the ACCA de novo. 3
                                               A.
      The ACCA mandates a minimum fifteen-year sentence where a
defendant with three previous convictions for violent felonies or serious drug




      3   United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006).

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                                         No. 15-11045
offenses is convicted of the unlawful possession of a firearm. 4 The Act defines
a violent felony as “any 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 explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 5
Past convictions must have been “committed on occasions different from one
another” to qualify as predicates for an ACCA enhancement. 6 The Government
bears the burden of establishing prior convictions by a preponderance of the
evidence, 7 what is described as a Barlow burden. 8 Once the Government has
proved the predicate convictions, the burden shifts to the defendant to disprove
the basis of an enhancement, also by a preponderance of the evidence. 9
       The ACCA’s enhancement provision sets a floor on the length of a
sentence, without creating a separate offense. 10 For this reason, the “data
necessary to determine the separateness” of predicate convictions can be
determined by the sentencing court without a jury. 11 In the absence of a jury,
however, the district court must limit the data it evaluates to avoid a collateral
trial on the defendant’s past criminal conduct. 12 In Fuller v. United States, we


       4   18 U.S.C. § 924(e).
       5   Id. § 924(e)(2)(B).
       6   Id. § 924(e)(1).
       7 United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994) (citing Parke v. Raley, 506
U.S. 20, 34–35 (1992)).
       8   United States v. Taylor, 263 F.App’x 402, 404 (5th Cir. 2008).
       9   Barlow, 17 F.3d at 89.
       10   United States v. White, 465 F.3d 250, 254 (5th Cir. 2006).
       11   Id. (quoting United States v. Thompson, 421 F.3d 278, 285 (4th Cir.2005)).
       12   Shepard v. United States, 544 U.S. 13, 23-26 (2005).

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                                         No. 15-11045
defined the boundaries of acceptable data in this context. There, the district
court had enhanced defendant Fuller’s sentence under the ACCA, predicated
on, among others, two Texas burglary convictions. 13 Challenging the
enhancement, Fuller argued that the record did not establish that his two
burglary convictions arose from separate occasions. 14 We held that the district
court was permitted to examine only “Shepard-approved materials,” as defined
in the Supreme Court’s decision in Shepard v. United States: 15 the statutory
definition of the offenses, the charging documents, written plea agreements,
transcripts of plea colloquy, and any explicit factual finding by the trial judge
to which the defendant assented. 16 In Fuller, the only Shepard documents
before the sentencing court were indictments that could not exclude the
possibility that Fuller’s two burglary convictions arose from a single criminal
transaction. 17 On this basis, the court could not determine as a matter of law
that the burglaries occurred on separate occasions, 18 and so the ACCA
enhancement was invalid. 19
      Further defining Shepard documents, we have held that the sentencing
court cannot rely on a PSR’s characterization of predicate offenses for
enhancement purposes. In United States v. Garza-Lopez, after the defendant
was convicted of illegal reentry, 20 a PSR filed with the court characterized one


      13   Fuller, 453 F.3d at 276.
      14   Id. at 278.
      15   Id. at 279 (citing Shepard, 544 U.S. at 16).
      16   Id.
      17 For example, the indictment could not rule out the possibility that one conviction
arose from the same transaction under the law of parties. Id.
      18   Id.
      19   Id. at 279-80.
      20   410 F.3d 268, 271 (5th Cir. 2005).

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                                    No. 15-11045
of the defendant’s previous convictions as a drug-trafficking offense. 21 The
district court relied upon the PSR’s characterization when it applied a
Guidelines enhancement for prior drug-trafficking convictions. 22 On appeal, we
vacated the sentence, 23 holding that the district court erred: “a district court is
not permitted to rely on a PSR’s characterization of a defendant’s prior offense
for enhancement purposes.” 24
      We have more recently held in United States v. Mendoza-Sanchez and
United States v. White that, in addition to Shepard documents, the sentencing
court may consider a defendants’ admissions before the sentencing court when
evaluating ACCA enhancement. 25
                                          B.
      Owens argues that the Government did not carry its Barlow burden on
the basis of the Shepard documents before the district court, here the
indictments and judicial confessions. He argues that the PSR’s summary of an
offense report and Owens’ admissions in the sentencing court were out of
bounds under Fuller. For these reasons, he argues we should find the
enhancement invalid. The Government, on the other hand, argues that all of
these sources are cognizable. Considering these data together, the district
court could find that “Owens could not have entered into S.P.’s apartment at
precisely the same time he entered V.G.’s building.” Thus, the Government
argues we should affirm the sentence.



      21   Id.
      22   Id.
      23   Id. at 276.
      24   Id. at 275.
      25 United States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir.2006); White, 465
F.3d at 254.

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                                      No. 15-11045
         The parties do not dispute that the district court properly considered the
indictments and confessions associated with Owens’ June 2009 burglary
convictions. We agree with Owens, however, that these documents standing
alone do not establish that his two burglary convictions arose from separate
criminal transactions. The documents establish that Owens’ two convictions
arose from acts against different victims, Sheila Powers and V.G., but do not
exclude the possibility that one criminal transaction simultaneously infringed
two victims’ interests. The Government insists the two indictments establish
that Owens’ convictions involved different structures—an apartment and a
building—and that the underlying criminal acts could not have been
concurrent. But these documents do not allow the court to understand how
Sheila Powers’ habitation related to V.G.’s building, nor how Owens’ actions
related to both. Our inquiry therefore turns on the two other sources: the PSR’s
summary of an offense report and Owens’ admissions before the sentencing
court.
         The PSR’s summary of the offense report entails a non-Shepard source
within a non-Shepard document, 26 and therefore the district court erred in
considering it. Moreover, a close look at its contents reveals that, even if it were
cognizable, the summary does not provide useful information that would aid in
carrying the Barlow burden. The summary never states that the female police
employee was Sheila Powers, nor that the break-in described was the criminal
transaction underlying Owens’ conviction for burglary of a habitation. The
summary does not even specify when the described break-in occurred, nor that
Owens committed it. It remains conceivable that the apartment break-in



         See Garza-Lopez, 410 F.3d at 274 (“[A] district court is not permitted to rely on a
         26

PSR’s characterization of a defendant’s prior offenses for enhancement purposes.”); Shepard,
544 U.S. at 16, 26 (holding that the sentencing court could not consider police reports in
evaluating predicate convictions for ACCA enhancement).

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                                        No. 15-11045
occurred before July 6, 2009, and that it was perpetrated by another individual,
such that it was a criminal transaction unrelated to Owens’ July 2009
burglaries.
      Owens’ admissions before the district court similarly add insufficient
information to aid in carrying the Barlow burden. Owens objects to reliance on
these admissions as a legal matter, arguing that Mendoza-Sanchez and White
were wrongly decided. We need not reach that issue, however, because his
admissions are unhelpful to the enhancement inquiry in any event. In
referring to “what happened that day”—July 6, 2009—Owens refers to two
“crimes,” agreeing that he committed both. But there is ambiguity as to
whether “crimes” connotes the two convictions arising out of a single criminal
transaction or two separate criminal transactions. Nothing in the admissions
clarifies his meaning. The second of the crimes, “under the burglary of the
building,” involved passage through a building that Owens understood to be
empty. But the place and even the identity of this building relative to the
habitation he entered remains undefined. The admissions do not specify that
these were separate structures, nor how Owens’ entrances into them were
temporally or spatially related. In short, Owens’ testimony adds no value
relative to the Shepard documents.
      If the Barlow burden had already shifted to Owens, we would agree with
the Government that Owens’ ambiguous references to a second crime would
not help his cause. But that is not the situation we face: the Government has
proved only two—and not three—predicate violent felonies, and so the Barlow
burden remains unmoved. An ACCA sentence enhancement cannot be applied
on this basis. The proper remedy in this scenario is to vacate the entire
sentence and remand for the district court to construct a new sentence. 27


      27   See United States v. Aguirre, 926 F.2d 409, 410 (5th Cir. 1991).
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                           No. 15-11045
                                III.
  We VACATE the sentence, and REMAND for resentencing.




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