                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 15a0143n.06

                                           No. 14-5666


                          UNITED STATES COURTS OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                 )                      FILED
                                                          )                Feb 24, 2015
       Plaintiff-Appellee,                                )            DEBORAH S. HUNT, Clerk
                                                          )
v.                                                        )       ON APPEAL FROM THE
                                                          )       UNITED STATES DISTRICT
ODELL ANDRE HOLDER,                                       )       COURT FOR THE WESTERN
                                                          )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                               )
                                                          )
                                                          )



BEFORE:        SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. When Odell Holder pled guilty to being a felon in possession

of a firearm, the district court applied a sentencing enhancement for having three prior felony

convictions for crimes committed on separate occasions. Holder’s appeal concerns whether two

of those crimes—attempted aggravated robbery and evading arrest—occurred on separate

occasions. First, he argues that in admitting affidavits of complaint and maps showing locations

identified in the affidavits, the district court relied on improper sources of evidence in deciding

whether the felonies occurred on separate occasions. Second, he argues that even assuming that

the court properly relied on these sources, there was insufficient evidence to find that the felonies

occurred on separate occasions. Sixth Circuit precedent expressly permits the use of affidavits of

complaint in this inquiry, and the use of the maps reflected permissible judicial notice.
No. 14-5666, United States v. Odell Holder


Moreover, the affidavits of complaint establish that Holder committed his felonies on separate

occasions. Therefore, Holder’s enhanced sentence must be upheld.

       On October 21, 2013, Odell Holder was indicted on counts of being a felon in possession

of a firearm and being a felon in possession of ammunition. On December 11, 2013, Holder pled

guilty to both counts. The probation office filed a presentence report finding that Holder had

committed three violent felonies, which meant that Holder faced a statutory minimum of 15

years pursuant to 18 U.S.C. § 924(e). Two of the felony convictions are at issue here, for

attempted aggravated robbery and evading arrest.

       The details of the conduct leading to Holder’s convictions for attempted aggravated

robbery and evading arrest come from the affidavits of complaint accompanying the indictments

for those crimes. On January 25, 2003, Holder and two others attempted to rob and fired shots at

a Jessie Tharpe. Tharpe escaped on foot and called 911, reporting his location as the corner of

Buena Vista Rd. and Cotton Ln., Carroll County, Tennessee. On the same day, police officers

seeking suspects in the robbery chased Holder on multiple highways in Carroll and Henry

Counties.   During the chase, Holder drove recklessly and violated traffic laws, eventually

crashing his car in Henry County. At that point, Holder fled on foot and was eventually

captured.

       Holder objected to the presentence report, arguing that the convictions for attempted

aggravated robbery and evading arrest resulting from the above conduct were for conduct that

took place on the same occasion, and thus do not count as multiple violent felonies under

18 U.S.C. § 924(e). Following the publication of United States v. Barbour, 750 F.3d 535 (6th

Cir. 2014), and the probation office’s response, Holder filed an addendum to his objection




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No. 14-5666, United States v. Odell Holder


arguing that the probation office’s description of the conduct underlying the two convictions was

based on sources which are not admissible under Shepard v. United States, 544 U.S. 13 (2005).

       At the sentencing hearing on June 2, 2014, the Government again relied on the affidavits

of complaint, and also presented maps obtained from the online search engine Bing depicting the

approximate locations of the attempted robbery and Holder’s flight from police. Holder objected

to the admission of the maps, in addition to maintaining his objections to the use of the affidavits

and the imposition of the 15-year statutory minimum. The district court did not explicitly rule on

the admissibility of the maps, but had them marked as an exhibit and referred to them in its

ruling from the bench. The district court overruled Holder’s objection to the use of affidavits of

complaint, and found that the attempted aggravated robbery and evading arrest had occurred on

separate occasions. The district court relied on Sixth Circuit precedent to rule that it could

consider the affidavits. The district court also held that the attempted robbery and evasion of

arrest occurred on separate occasions. The court first reasoned that the offenses took place on

different occasions if any of three conditions were met: 1) there was a clear ending point to the

first offense prior to a clear starting point for the second offense; 2) the defendant could have

chosen not to commit the second offense after completing the first; or 3) the offenses took place

in different locations. The court found that Holder’s offenses met all three conditions and

applied the 15-year minimum sentence along with other penalties.             Holder preserved his

objections and timely appealed.

       First, the district court’s use of affidavits of complaint to determine whether Holder’s

crimes occurred on separate occasions was proper. Binding precedent clearly permits the court

to take into account affidavits of complaint in this context. We have held that, in deciding

whether criminal convictions occurred on separate occasions for purposes of 18 U.S.C. § 924(e),



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No. 14-5666, United States v. Odell Holder


a district court may, consistently with Shepard v. United States, 544 U.S. 13 (2005), consider the

affidavits of complaint preceding those convictions. United States v. Jones, 453 F.3d 777, 780

(6th Cir. 2006).

       Holder acknowledges that the district court’s decision to admit the affidavits of complaint

was consistent with precedent, but requests that the panel “reconsider” that precedent. Because

Jones post-dates and applies Shepard, we are bound to follow Jones. Jones is controlling here:

in both cases, the district court found that multiple convictions were based on criminal conduct

occurring on different occasions by relying on allegations in affidavits of complaint for those

convictions. Because there is no basis for distinguishing the present case, the district court

properly considered the affidavits of complaint to take judicial notice of the locations of

addresses identified in the affidavits of complaint.

       Second, the district court properly used the Bing maps presented by the government to

take judicial notice of the locations of addresses identified in the affidavits of complaint. Even

though maps are not explicitly referenced by the Shepard decision, it is proper to use maps to

identify the locations of addresses and geographical features contained in documents properly

before a sentencing court. Taking judicial notice of a fact (including a location) is proper under

the Federal Rules of Evidence so long as the fact “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.”          Fed. R. Evid. 201(b). Holder

conceded at sentencing and does not now contest that the accuracy of the Bing maps (that is,

their ability to correctly identify the location of a given address) cannot be questioned. Instead,

Holder argues that judicial notice based on non-Shepard sources such as maps is inappropriate in

this context.




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No. 14-5666, United States v. Odell Holder


       It is clear that if the district court relied on the maps at all, it used the maps only to

determine that the two addresses identified in the two affidavits of complaint identified different

locations. In analyzing the judicial documents properly before a court in an ACCA inquiry, the

court must “draw reasonable inferences.” United States v. Foster, 663 F.3d 291, 295 (4th Cir.

2011). After all, judicial documents rarely state precisely the conclusion that is relevant to the

ACCA inquiry. For example, if the available evidence shows that the defendant committed two

crimes at two addresses, a court must infer that the addresses identify different locations in order

to find that the defendant committed the crimes in different locations. It is appropriate to take

judicial notice of maps in drawing such inferences.

       At any rate, the record does not make it entirely clear that the court relied on the maps at

all in concluding that the street highway names mentioned in the two affidavits of complaint

identified different locations for the two crimes.      The court’s only reference to the maps

indicated only what conclusions it was not drawing from them: “I’m not suggesting that the

Exhibit 5 [the maps] . . . references what type of time or how much distance there is [between the

two crimes committed by Holder].” Even without maps, it would be easy to infer that the

highways in the affidavit of complaint for the evading arrest charge identify locations that are not

the same as the corner of Buena Vista Rd. and Cotton Ln., the location identified in the

attempted aggravated burglary affidavit. Ultimately, the locations of the two crimes are not

determinative in answering whether the crimes were committed on separate occasions.

        Third, the affidavits of complaint provide sufficient evidence to conclude that Holder’s

two prior felonies were committed on different occasions. The affidavits clearly indicate that

Holder’s second felony began after his first felony had ended. It is also clear that the felonies

were committed at different locations. Because Holder’s attempted aggravated robbery and



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No. 14-5666, United States v. Odell Holder


evading police were clearly distinct episodes, they were crimes committed on different occasions

for purposes of 18 U.S.C. § 924(e). Although we have indicated that offenses are separate if

they meet any one of the three tests identified in United States v. Hill, 440 F.3d 292, 297–98 (6th

Cir. 2006), all three are met here. See United States v. Jones, 673 F.3d 497, 503 (6th Cir. 2012).

The three tests are: 1) “if it is possible to discern the point at which the first offense is completed,

and the subsequent point at which the second offense begins”; 2) “if it would have been possible

for the offender to cease his criminal conduct after the first offense, and withdraw without

committing the second offense”; and 3) “if the offenses are committed in different residences or

business locations.” 440 F.3d at 297–98.

        The district court was correct to conclude that Holder’s attempted aggravated robbery

was over when Tharpe dialed 911, that Holder’s evasion of arrest did not begin until officers

attempted to arrest him, and that the former must have preceded the latter. Tharpe’s 911 call, as

described in the affidavit of complaint, suggests that, so far as Tharpe was aware, Holder and his

associates were no longer attempting to rob Tharpe. Once a defendant has ceased to attempt to

commit a crime, the attempt is over.

        Even if Holder anticipated that he might be pursued by police and began fleeing with the

intention of avoiding being caught as soon as he stopped attempting to rob Tharpe, he did not

actually begin evading arrest under Tennessee law until the police encountered him and

attempted to arrest him. Under the Tennessee statute under which Holder was charged, an

officer’s presence (and instruction to stop) is a prerequisite to the crime: “It is unlawful for any

person, while operating a motor vehicle on any street, road, alley or highway in this state, to

intentionally flee or attempt to elude any law enforcement officer, after having received any

signal from the officer to bring the vehicle to a stop.” 39 Tenn. C. Ann. § 39-16-603(b)



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No. 14-5666, United States v. Odell Holder


(emphasis added). Thus Holder’s second crime—evading arrest—could only have begun after

police encountered him on Highway 70 East.

       The affidavits also make it clear that Holder had stopped attempting to rob Tharpe some

time before police encountered him. The affidavit of complaint for evading arrest notes that

police were “in pursuit of robbery suspects.” It is safe to infer that police were seeking robbery

suspects (and found Holder) because of Tharpe’s call regarding an attempted robbery by Holder.

In that case, police began seeking robbery suspects only after Holder had stopped attempting to

rob Tharpe, meaning that Holder’s first crime ended at a distinct point before the starting point of

his second crime. When, as here, “it is possible to identify an endpoint between the two

offenses,” the offenses are separate. United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002).

The only possible exception to the rule, which does not apply here, is a fact pattern like the one

in United States v. Graves where the second offense followed immediately upon the first at the

same location. 60 F.3d 1183, 1185 (6th Cir. 1995).

       Additionally, in the period after his robbery attempt failed but before police apprehended

him, Holder could have decided to cease his criminal conduct and not flee from police. Having

earlier attempted to rob someone in no way obligated Holder to flee from police when they

approached him. The decision of how to respond to police is completely distinct from the

decision to rob, and it is unlikely that Holder irrevocably made both decisions at once when he

attempted to rob first and then, after a short pause, encountered the police. Thus, even a

relatively small time gap between separate and distinct criminal acts is enough to suggest that the

defendant made two separate decisions about whether to commit crime. We have noted, for

instance, that in less than half an hour between criminal acts the defendant “could have decided”

that one crime was enough. United States v. Brady, 988 F.2d 664, 669 (6th Cir. 1993) (en banc).



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No. 14-5666, United States v. Odell Holder


       These considerations are sufficient to establish that Holder’s crimes occurred on separate

occasions; had Holder waited idly at the scene of his attempted robbery until the police arrived,

his completed crime of attempted robbery would still be a criminal episode distinct from his

subsequent flight. Moreover, the affidavits in any event also establish that the attempted robbery

and evasion of arrest took place in separate locations.       The attempted aggravated robbery

affidavit establishes the location from where Tharpe called 911; this is near to but not exactly the

location where the attempted robbery took place, since Tharpe fled on foot. The evading arrest

affidavit establishes Holder’s route while fleeing arrest. Judicial notice of Bing maps (or any

other maps) shows that no part of this route is close enough to the location from which Tharpe

called 911 to be the location at which Holder attempted to rob Tharpe.

       The cases relied on by Holder are distinguishable. First, in United States v. Thomas, the

defendant, along with an accomplice, raped two women in a car, forcing them to drive to a

different location between the two rapes. 211 F.3d 316, 318 (6th Cir. 2000). Although this

conduct could be interpreted as two distinct acts of illegal intercourse, we concluded otherwise:

       [I]t is the absence of a completion or definable endpoint of the first crime before
       the second crime was begun that [suggests the offenses were not separate]. . . .
       [T]he crime encompassed more than sexual penetration. . . . [The defendant and
       his accomplice] kept both women under their control throughout the duration of
       this incident. There was no conclusion of [the defendant’s] criminal activity
       against the first woman when he began raping the second woman.

Id. at 321. The offense, in the court’s analysis, included more than sexual penetration, and thus it

had no clear endpoint.

       United States v. Graves is also distinguishable. In that case, a burglar assaulted police

when they encountered him in a forest where he had hidden items he had just stolen from an

adjacent home. 60 F.3d 1183, 1185 (6th Cir. 1995). We assumed that the crime had ended when

he had finished hiding the stolen items, as it noted that he assaulted the police officer within

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No. 14-5666, United States v. Odell Holder


“moments of the burglary,” and also noted the defendant’s proximity to the scene of the crime.

Id. at 1187. In other words, it was essential for the Graves court that it was at least possible that

the defendant encountered and assaulted the police immediately upon completing the burglary,

without any time gap.

       The instant case is also different from United States v. Barbour. In Barbour, a defendant

and his associates robbed a motorist at a convenience store and also robbed the convenience

store. 750 F.3d 535, 538. We held that the Government had not carried its burden of showing

that the offenses occurred on separate occasions, because it was impossible to tell whether the

two robberies overlapped in time—for example, whether or not the robbers had continued to

detain the motorist while robbing the convenience store. Id. at 540–41.

       In this case, however, there was a clear time gap between Holder’s first and second

offenses, consisting at least of the time it took for the police to respond to Tharpe’s call and find

Holder. The only connection between the attempted robbery and the evasion of arrest is that the

police’s arrest attempt was motivated by Holder’s prior attempted robbery, and that the two

occurred on the same day. But these considerations are not sufficient in any precedents. Instead,

under Hill and the cases it analyzes, Holder committed the two felonies on different occasions.

       Our disposition of this case is not affected by Holder’s Rule 28(j) letter requesting

consideration of the Supreme Court’s recent order setting Johnson v. United States for

reargument on the issue of whether the residual clause of the ACCA, 18 U.S.C.

§ 924(e)(2)(B)(ii), is unconstitutionally vague. See Johnson v. United States, No. 13-7120, 2015

WL 132524, at *1 (Jan. 9, 2015). Even assuming that the vagueness claim has been properly

preserved by Holder, we have held that the residual clause is not vague. United States v. Taylor,

696 F.3d 628, 633 (6th Cir. 2012). Unless and until the Supreme Court rules otherwise, we are



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bound by that holding. See United States v. Fallins, No. 14-5153, 2015 WL 264627 at *6 (6th

Cir. Jan. 22, 2015).

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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