                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          April 11, 2006
                                    TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff – Appellee,
 v.
                                                        No. 05-6302
                                                  (D.C. No. CR-03-198-HE)
 MARSHELL CANTRELL TAYLOR,
                                                         (W.D. Okla)
 also known as MARSHALL C.
 TAYLOR,

          Defendant – Appellant..


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.



      Marshell Taylor appeals his sentence for being a felon in possession of a

firearm. Because the district court did not err in its decision to admit evidence at

Taylor’s sentencing hearing and because his claim is barred by directly applicable

precedent, we AFFIRM the district court’s sentencing order.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      We discussed the underlying facts of this case when we first heard it on

appeal. United States v. Taylor, 413 F.3d 1146, 1150-51 (10th Cir. 2005). Taylor

pled guilty to being a felon in possession of a firearm and pursuant to a plea

agreement, waived his right to appeal. The district court found that Taylor had

previously committed three violent felonies. As such, under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), Taylor was subject to a fifteen-year

mandatory minimum sentence. The district court then sentenced Taylor to a

prison term of 230 months.

      Taylor appealed, arguing that: (1) his waiver of appellate rights pursuant to

his plea bargain permitted challenges based on changes in the law reflected in

Tenth Circuit or Supreme Court cases that have retroactive effect; and (2) the

Supreme Court’s decision in Shepard v. United States, 544 U.S. 13, 125 S. Ct.

1254 (2005) rendered the district court’s decision unconstitutional because there

was insufficient evidence to demonstrate that his previous convictions arose from

different criminal episodes. 1 In Shepard, the Supreme Court held that courts can

look only to certain prescribed sources of information to determine whether a

previous offense qualified as a violent felony under ACCA. Shepard, 125 S. Ct.

at 1263. The district court did not explain what records it relied on to determine



      1
        Taylor also raised a challenge under United States v. Booker, 543 U.S.
220, (2005), which we found had no merit. Taylor, 413 F.3d at 1153-55.

                                         -2-
whether Taylor qualified as an armed career criminal. As such, it was impossible

to determine whether the sentence was consistent with Shepard. Taylor, 413 F.3d

at 1157-58. We ordered a limited remand for the district court:

      1) to determine whether the government can provide evidence
      regarding Taylor’s prior violent crime convictions consistent with
      Shepard; and

      2) in the event the government cannot provide such evidence, to
      resentence Taylor consistent with this opinion and Shepard.


Id. at 1158. On remand, the district court held a sentencing hearing. The

government introduced evidence of the defendant’s prior convictions, and the

district court overruled Taylor’s objection that no new evidence should have been

introduced on resentencing. The district court held that the evidence was

sufficient under Shepard for Taylor to qualify as an armed career criminal and

resentenced Taylor to 230 months’ imprisonment.

      Taylor now appeals this decision, claiming that it was improper for new

evidence to be introduced on resentencing, that the evidence relied upon by the

district court was not consistent with Shepard, and that it was unconstitutional for

a judge to determine whether previous felony convictions qualify a defendant for




                                        -3-
the armed career criminal enhancement under evolving Sixth Amendment

jurisprudence. 2

      The district court did not err when it permitted the government to introduce

new evidence at the resentencing hearing. We review a district court’s decision

regarding the admission or exclusion of evidence for abuse of discretion. United

States v. McIntosh, 124 F.3d 1330, 1338 (10th Cir. 1997). We ordered a limited

remand that specifically required the district court “to determine whether the

government can provide evidence regarding Taylor’s prior violent crime

convictions.” On remand, this is exactly what the district court did: it permitted

the government to introduce evidence consistent with the Supreme Court’s

opinion in Shepard. The district court did not err – it simply read our order and

followed it.

      Further, the documents that the government introduced at resentencing were

the charging documents and the judgment and sentence for Taylor’s three prior

violent felonies. The district court’s reliance on these documents was clearly

proper under Shepard. 125 S. Ct. at 1263.

      Taylor’s other argument – that ACCA is unconstitutional because it permits

judges to determine as a matter of fact whether a defendant has previously


      2
         The government argues that the appeal waiver Taylor signed as part of
his plea bargain bars this appeal. As we noted in Taylor, 413 F.3d at 1151-53,
Taylor’s appeal fits within one of the exceptions to the waiver.

                                        -4-
committed violent felonies – has no merit. We considered an identical argument

in United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) and held that a

defendant may have his sentence enhanced under ACCA without the fact of his

previous sentence being charged in the indictment. Taylor does not distinguish

his case in any way from Moore and hence his claim fails.

         For the reasons stated above, we AFFIRM the district court’s sentencing

order.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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