     Case: 17-30688      Document: 00515378706         Page: 1    Date Filed: 04/10/2020




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

                                      No. 17-30688
                                                                                Fifth Circuit

                                                                              FILED
                                                                          April 10, 2020

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

RECHARD YOUNG, also known as Rechard Youg, also known as Richard
Young,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-11300


Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Appellant Rechard Young, a federal prisoner, appeals from the district
court’s denial of his 28 U.S.C. § 2255 motion. We REVERSE the district court’s
judgment, VACATE Young’s entire sentence, and REMAND for resentencing.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30688
                                BACKGROUND
      In 2008, Young pled guilty to possessing a firearm after a felony
conviction pursuant to 18 U.S.C. § 922(g)(1). The statutory maximum term of
imprisonment for possessing a firearm after a felony conviction is generally 10
years of imprisonment. See 18 U.S.C. § 924(a)(2). However, the Armed Career
Criminal Act (“ACCA”) increases the punishment range to 15 years to life
imprisonment if the defendant has had three prior convictions for “a violent
felony or a serious drug offense, or both, committed on occasions different from
one another[.]” § 924(e)(1).
      The superseding information to which Young pled guilty listed four prior
felony convictions as the basis for the charge against him. Specifically, the
information noted a 1997 Louisiana conviction for aggravated assault with a
firearm, and three 1997 Louisiana convictions on serious drug offenses.
Notably, the second and third serious drug offenses occurred on the same day
(November 1, 1996); the first serious drug offense occurred on a different day
from the other two offenses (October 31, 1996). The district court sentenced
Young under § 922(g)(1) and enhanced Young’s sentence under the ACCA to
the mandatory minimum term of 15 years in prison. Young filed no direct
appeal.
      In 2016, Young moved to correct his sentence pursuant to 28 U.S.C. §
2255, arguing that his enhanced sentence under the ACCA is unconstitutional
because he does not have at least three qualifying prior convictions for a violent
felony, a serious drug offense, or both. First, Young argued that his motion is
timely pursuant to § 2255(f) because it was filed within one year of the
Supreme Court’s decision in Johnson v. United States, which held that the




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ACCA’s residual clause 1 is unconstitutionally vague. 135 S. Ct. 2251 (2015).
Second, Young argued that his underlying conviction for aggravated assault
with a firearm is not a qualifying violent felony conviction under the ACCA’s
force clause.         Third, and finally, Young argued that his second and third
underlying serious drug offense convictions were part of the same offense and,
thus, he has only two, rather than three, qualifying serious drug offense
convictions under the ACCA.
         The district court determined that Young’s § 2255 motion is timely but
denied the motion, concluding that (1) Young’s conviction for aggravated
assault with a firearm is a qualifying violent felony conviction under the
ACCA’s force clause and (2) at least two of Young’s three serious drug offense
convictions are qualifying convictions under the ACCA.                     The district court,
however, did not decide whether Young had two or three qualifying serious
drug offense convictions under the ACCA.
         Young timely appealed. Although the district court denied Young a
certificate of appealability, this court granted him one, concluding that
reasonable jurists could disagree on whether (1) Louisiana aggravated assault
with a firearm constituted a violent felony under the ACCA and (2) Young had
two or three qualifying prior serious drug offense convictions under the ACCA.
                                   STANDARD OF REVIEW
         The court reviews a “district court’s factual findings relating to a § 2255
motion for clear error and its conclusions of law de novo.” United States v.
Redd, 562 F.3d 309, 311 (5th Cir. 2009) (italics omitted).




         1   The ACCA’s residual and force clauses, which are relevant to this appeal, are defined
infra.
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                                      DISCUSSION
       On appeal, the parties dispute whether (1) a Louisiana aggravated
assault with a firearm conviction—specifically, Louisiana Revised Statutes
Annotated § 14:37.2 (1996) 2—constitutes a prior violent felony conviction
under the ACCA and (2) Young had two or three qualifying prior serious drug
offense convictions under the ACCA. 3 We address each issue in turn.
       First, Young’s Louisiana aggravated assault with a firearm conviction is
not a qualifying violent felony conviction under the ACCA. The ACCA defines
a violent felony as a crime punishable by more than one year in prison that (1)
“has as an element the use, attempted use, or threatened use of physical force
against the person of another” (the force clause), (2) is the enumerated offense
of “burglary, arson, or extortion, or involves the use of explosives” (the
enumerated offenses clause), or (3) “otherwise involves conduct that presents
a serious potential risk of physical injury to another” (the residual clause).
§ 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017).
The force clause is the only relevant clause here.
       In Johnson, the Court held that the residual clause is unconstitutionally
vague and that an enhanced sentence imposed under the clause is therefore
unconstitutional. 135 S. Ct. at 2557, 2563. 4 Thus, Young’s aggravated assault
with a firearm conviction cannot stand under the residual clause. Nor can


       2 Notably, the operative law at the time of Young’s conviction has since been amended.
Compare LA. REV. STAT. ANN. § 14:37.2 (1996) with LA. REV. STAT. ANN. § 14:37.4 (2012).
       3 For Young to succeed on appeal, we must conclude that (1) Young’s Louisiana

aggravated assault with a firearm conviction does not constitute a prior violent felony
conviction under the ACCA and (2) the record is inconclusive as to whether Young has two
or three qualifying prior serious drug offense convictions under the ACCA or the second and
third serious drug offenses occurred simultaneously. If we make one but not both
conclusions, then Young will still have three qualifying prior convictions under the ACCA
and his ACCA sentencing enhancement will stand.
       4 Johnson has no effect on the force or enumerated offenses clauses. 135 S. Ct. at

2563. And Johnson applies retroactively to cases on collateral review. Welch v. United States,
136 S. Ct. 1257, 1265 (2016).
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Young’s conviction stand under the enumerated offenses clause: the conviction
is not for one of the enumerated offenses and does not involve the use of
explosives. Accordingly, Young’s conviction does not qualify as a violent felony
under the ACCA unless it “has as an element the use, attempted use, or
threatened use of physical force against the person of another” pursuant to the
force clause. § 924(e)(2)(B)(i).
      Generally, this court uses the categorical approach to determine whether
a prior offense satisfies the ACCA’s force clause, looking “only to the statutory
definitions of the prior offenses, and not to the particular facts underlying those
convictions.” United States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005)
(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). In other words,
under this approach, we would “look solely to the statutory elements [of
aggravated assault with a firearm] to ascertain whether [the] conviction
satisfies the Force Clause.” Id. at 486. But where the underlying statute of
conviction describes separate offenses with distinct elements, the court applies
the modified categorical approach to narrow the offense of conviction,
consulting a limited class of documents to determine which offense formed the
basis of the defendant’s conviction. See Descamps v. United States, 570 U.S.
254, 257 (2013).
      At the time of Young’s conviction, Louisiana law defined aggravated
assault with a firearm as “an assault committed by the discharge of a firearm
as the dangerous weapon.” 5 LA. REV. STAT. ANN. § 14:37.2 (1996). Louisiana
law defined assault as, “an attempt to commit a battery, or the intentional
placing of another in reasonable apprehension of receiving a battery.” LA. REV.
STAT. ANN. § 14:36 (1996).         And Louisiana law defined battery as “the



      5 Louisiana law now defines aggravated assault with a firearm as “an assault
committed with a firearm.” LA. REV. STAT. ANN. § 14:37.4 (2012).
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                                  No. 17-30688
intentional use of force or violence upon the person of another; or the
intentional administration of a poison or other noxious liquid or substance to
another.” LA. REV. STAT. ANN. § 14:33 (1996).
      “[I]f a statute lists means of committing a single offense, it is indivisible
and must be taken as a whole instead of using the facts of the offense to narrow
the statute.” United States v. Reyes-Contreras, 910 F.3d 169, 174 (5th Cir.
2018) (en banc). Among other things, courts may look to jury instructions to
determine whether listed items in a statute are means of committing the same
offense or separate offenses with distinct elements. See Mathis v. United
States, 136 S. Ct. 2243, 2256–57 (2015). The Louisiana jury instructions for
the current, similarly-phrased aggravated assault with a firearm statute treat
the statute as containing a single offense involving alternate means rather
than as containing more than one distinct offense. 17 La. Civ. L. Treatise,
Criminal Jury Instructions (3d ed. 2015) § 10:37 (providing a single instruction
for aggravated assault with a firearm, which may be committed by discharging
a firearm and either attempting to use force or violence on the victim with a
firearm or intentionally placing the victim in reasonable apprehension of
receiving a battery with a firearm). The parties agree, and the district court
concluded, that the applicable Louisiana aggravated assault with a firearm
statute here is indivisible and subject to the categorical approach. See Mathis,
136 S. Ct. at 2256.     Applying the categorical approach, we ask whether
Louisiana aggravated assault with a firearm satisfies § 924(e)’s force clause.
It does not.
      The parties agree that negligent uses of force do not satisfy the ACCA’s
force clause. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (concluding that the
phrase “use . . . of physical force against the person or property of another” in
18 U.S.C. § 16’s force clause—which is similar to the force clause in question
here—“most naturally suggests a higher degree of intent than negligent or
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                                 No. 17-30688
merely accidental conduct”).     Young contends that Louisiana employs an
“exceptionally broad” definition of intent for aggravated assault with a firearm,
so that the offense may be committed without a subjective desire to discharge
the firearm, such as through the negligent discharge of a firearm. See Dane S.
Ciolino, The Mental Element of Louisiana Crimes: It Doesn’t Matter What You
Think, 70 TUL. L. REV. 855, 857 (1996) (“[G]eneral intent . . . can be proved in
Louisiana with evidence of mere negligence.”). The government, however,
argues that aggravated assault with a firearm can be committed “volitionally”
only.
        While the Louisiana Supreme Court has not addressed whether
Louisiana aggravated assault with a firearm can be committed negligently,
Louisiana appellate court decisions support Young’s position. In Louisiana v.
Julien, Louisiana’s Third Circuit Court of Appeal held that a jury need “only
[find] that the prohibited result[, i.e., discharging the firearm,] would
reasonably be expected to follow from [the defendant’s] voluntary act of
introducing the gun into the situation.” 34 So. 3d 494, 499 (La. Ct. App. 2010)
(internal quotation marks omitted). This was true “whether such discharge
occurred as a result of his intent to discharge, or from his negligence.” Id.
(emphasis added). Further, in Louisiana v. Qualls, Louisiana’s Second Circuit
Court of Appeal concluded that, by discharging a firearm, the defendant
committed the offense of aggravated assault with a firearm regardless of
whether he “was actually trying to hit the victim.” 921 So. 2d 226, 237 (La. Ct.
App. 2006).
        The government’s reliance on United States v. Valle-Ramirez is
misplaced. 908 F.3d 981 (5th Cir. 2018). There, this court determined that a
Georgia aggravated assault statute met the use of force requirement in 18
U.S.C. § 16(a). Id. at 985–86. The court reasoned, “to commit the relevant
assault under Georgia law, the defendant must intend to commit the act that
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causes the victim to feel reasonable apprehension of immediate violent injury,
though the defendant need not intend to cause the apprehension itself.” Id. at
986. But the Louisiana statute here criminalizes a defendant’s negligence in
committing the act that accomplishes an assault. See Julien, 34 So. 3d at 499.
      Nonetheless, the district court concluded that “[f]iring a gun in the
presence of another person, whether intentional or reckless, clearly constitutes
the use, attempted use, or threatened use of violent, physical force.” The
district court relied on Voisine v. United States, which—in the context of 18
U.S.C. § 921(a)(33)(A)’s force clause—concluded that the word “use” in the
phrase “use of physical force” “does not demand that the person applying force
have the purpose or practical certainty that it will cause harm, as compared
with the understanding that it is substantially likely to do so.” 136 S. Ct. 2272,
2279 (2016). In other words, the word “use” is “indifferent as to whether the
actor has the mental state of intention, knowledge, or recklessness with respect
to the harmful consequences of his volitional conduct.” Id. Voisine, however,
did not consider negligent conduct.         See id.   In other words, Voisine is
unavailing to the government.
      In an earlier case—Leocal—the Court examined 18 U.S.C. § 16’s force
clause, which states that a crime of violence means “an offense that has an
element the use, attempted use, or threatened use of physical force against the
person or property of another[.]” 543 U.S. at 5 (quoting § 16(a)). Section 16’s
force clause is similar to § 924(e)’s force clause, which, again, states that a
qualifying violent felony “has as an element the use, attempted use, or
threatened use of physical force against another[.]” § 924(e)(2)(B)(i). The
Leocal court stated:
      The critical aspect of § 16(a) is that a crime of violence is one
      involving the “use . . . of physical force against the person or
      property of another.” As we said in a similar context . . . , “use”
      requires active employment. While one may, in theory, actively
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       employ something in an accidental manner, it is much less natural
       to say that a person actively employs physical force against
       another person by accident. Thus, a person would “use . . . physical
       force against” another when pushing him; however, we would not
       ordinarily say a person “use[s] . . . physical force against” another
       by stumbling and falling into him. When interpreting a statute,
       we must give words their ordinary or natural meaning. The key
       phrase in § 16(a)—the “use . . . of physical force against the person
       or property of another”—most naturally suggests a higher degree
       of intent than negligent or merely accidental conduct.
543 U.S. at 9 (internal quotation marks, citations, and parenthetical omitted)
(emphasis in original); see also United States v. Castleman, 572 U.S. 157, 171
(2014) (recognizing Leocal’s holding that “use” requires more than negligent or
accidental conduct); United States v. Chan-Xool, 716 F. App’x 274, 278 (5th Cir.
2017) (unpublished) (“Because [the state statute] can apply to merely negligent
conduct, it cannot qualify as an element involving a use of force that must be
at least reckless.”). 6     Indeed, “Voisine reminds us that Leocal held use of
physical force against another’s person or property excludes merely accidental


       6  Although the Court decided Leocal before Sessions v. Dimaya held the residual
clause of § 16(b) to be unconstitutionally vague, Dimaya does not disturb Leocal’s analysis of
the force clause. See 138 S. Ct. 1204, 1215–16 (2018) (holding only that § 16(b) is
unconstitutional and not discussing Leocal’s analysis of § 16(a)). Several other federal circuit
courts have also applied, post-Dimaya, Leocal’s distinction between accidental or negligent
conduct and intentional conduct in a use of force analysis. See United States v. Simmons,
917 F.3d 312, 321 (4th Cir. 2019), as amended (Mar. 6, 2019) (concluding that any of the
forms of North Carolina assault may be established with negligence and therefore lack the
requisite “use” of force under Leocal); United States v. Bong, 913 F.3d 1252, 1260–61 (10th
Cir. 2019) (noting that “[t]he term ‘use,’ as employed in the ACCA’s [force] clause, requires
active employment rather than negligent or merely accidental conduct [under Leocal].”)
(internal quotation marks and citation omitted); United States v. Vasquez-Gonzalez, 901 F.3d
1060, 1066–67 (9th Cir. 2018) (noting that Leocal held that § 16(a) encompasses crimes with
a higher level of intent than negligence or accident); Lassend v. United States, 898 F.3d 115,
131 (1st Cir. 2018) (noting Leocal’s requirement of intent greater than accident or negligence,
finding the requirement met where the state offense required active and intentional
engagement in the offense, and citing for this proposition Stuckey v. United States, 878 F.3d
62 (2d Cir. 2017), cert. denied, 139 S. Ct. 161 (2018)), cert. denied, 139 S. Ct. 1300 (2019);
Greer v. United States, 749 F. App’x 887, 894 n.7 (11th Cir. 2018) (noting that Leocal
interpreted “crime of violence” to generally exclude offenses which include accidental or
negligent conduct).
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conduct.” United States v. Mendez-Henriquez, 847 F.3d 214, 220 (5th Cir.)
(internal quotation marks and citation omitted), cert. denied, 137 S. Ct. 2177
(2017); see also Voisine, 136 S. Ct. at 2279 (noting that Leocal addressed
accidental but not reckless conduct).
      Because Louisiana aggravated assault with a firearm can be achieved
through negligent conduct, it does not constitute a violent felony under §
924(e).
      Second, the record is inconclusive as to whether Young’s three prior
convictions for serious drug offenses constitute three separate drug
transactions under § 924(e)(1). Notably, Young does not argue that the district
court improperly determined that Young’s first drug offense constitutes a
separate transaction from the second and third offenses. We address whether
Young’s second and third offenses constitute separate transactions or the same
transaction under § 924(e)(1).
      The ACCA requires that, to be counted separately, qualifying predicate
offenses must “be committed on occasions different from one another.”           §
924(e)(1). “The critical inquiry” in determining whether criminal transactions
occurred on different occasions is “whether the offenses occurred sequentially.”
United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). Offenses occur
sequentially if they are “distinct in time” from one another. United States v.
White, 465 F.3d 250, 253 (5th Cir. 2006) (internal quotation marks and
citations omitted). Two prior offenses may be distinct in time even if they occur
within minutes of one another. Fuller, 453 F.3d at 278–79. This court looks
to whether the first offense was completed before the second began and
whether the perpetrator “was free to cease and desist from further criminal
activity” but instead “chose to initiate a new course of action and commit a
separate offense.” See United States v. Ressler, 54 F.3d 257, 260 (5th Cir. 1995)
(internal quotation marks omitted).
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      Following Shepard v. Unites States, to determine whether two offenses
occurred on different occasions, a court is permitted to examine only “the
statutory definition, charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” 544 U.S. 13, 16 (2005); Fuller, 453 F.3d at 279 (same).
In addition to Shepard-approved documents, a court may consider a
defendant’s admissions. United States v. Mendoza-Sanchez, 456 F.3d 479, 483
(5th Cir. 2006). However, a court cannot rely on a presentence investigation
report’s characterization of predicate offenses. United States v. Garza-Lopez,
410 F.3d 268, 273–74 (5th Cir. 2005). Nor can a court rely on police reports.
Shepard, 544 U.S. at 16.
      When Shepard-approved documents in a record are inconclusive as to
whether predicate ACCA offenses occurred on separate occasions, this court
has declined to affirm an ACCA enhancement. See Fuller, 453 F.3d at 279–80.
Here, the charging document to which Young pled guilty is the only relevant
Shepard-approved material. This document shows that Young was charged
with three counts of distribution of cocaine: the first count for conduct on
October 31, 1996; the second count for conduct on November 1, 1996; and the
third count also for conduct on November 1, 1996.
      Relying on Fuller, the government argues that, on its face, the charging
document supports a finding that Young committed the drug transactions
sequentially. Fuller is unavailing to the government. There, the court vacated
the defendant’s ACCA sentencing enhancement, which was based in part on
two state convictions for burglary of a building on the same date. Fuller, 453
F.3d at 275–76, 279–80. The defendant argued that the enhancement was
improper because the two burglary offenses were part of the same transaction.
Id. at 278. The court stated that the indictments for each of the burglaries
“charged Fuller with entering another person’s trailer without the owner’s
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consent. No other Shepard-approved material appears in the PSR with respect
to the . . . burglaries.” Id. at 279. The court concluded that, “[o]n their face,
the indictments support the district court’s conclusion that [the defendant]
committed the burglaries sequentially.”       Id.   However, “[b]ased on the
indictments alone,” the court could not “determine as a matter of law that the
burglaries occurred on different occasions.” Id. Accordingly, the court held:
“Because the record does not contain the written plea agreement, the plea
colloquy, or other Shepard-approved material that might resolve this question,
we must vacate [the defendant’s] sentence with respect to the ACCA
enhancement.” Id. at 279–80. Fuller, then, is contrary to the government’s
position.
      Nonetheless, the government argues that “Young has not pointed to
anything in the state charging document that would contradict a finding that
the drug convictions were separate transactions, nor has he sought to introduce
additional approved documents.”      However, as in Fuller, the court cannot
properly determine that the drug transactions occurred on separate occasions
based on the Shepard-approved evidence in the record.
      Notably, the government’s argument appears to invoke the “Barlow
burden.” In Barlow, Barlow did not contest the separateness of his predicate
ACCA offenses, and the court did not address this specific question.         See
generally United States v. Barlow, 17 F.3d 85 (5th Cir. 1994). Instead, Barlow
contended that one of his prior predicate ACCA convictions suffered from a
“constitutional infirmity.” Id. at 89. Specifically, Barlow claimed that the
prosecutor induced his guilty plea by promising that the government would not
seek the death penalty; however, the government broke its promise and did
just that. Id. The Barlow court applied this standard, which some courts refer
to as the Barlow burden: “Once the government establishes the fact of a prior
conviction based upon a guilty plea, the defendant must prove the invalidity of
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the conviction by a preponderance of the evidence.” Id.; see also United States
v. Williams, 20 F.3d 125, 132–33 & n.8 (5th Cir. 1994) (applying the Barlow
burden to a claim that predicate ACCA convictions were constitutionally
invalid because of involuntary and unintelligently-given guilty pleas); United
States v. Owens, 753 Fed. App’x 209, 213 (5th Cir. 2008) (unpublished)
(referring to the standard outlined in Barlow as the “Barlow burden”).
      While we do not and need not apply the Barlow burden to the
separateness inquiry here, we note that several of our unpublished opinions
have applied the burden. See Owens, 753 Fed. App’x at 213; United States v.
Taylor, 263 Fed. App’x 402, 404 (5th Cir. 2008) (unpublished); United States v.
Bookman, 263 Fed. App’x 398, 400 (5th Cir. 2008) (unpublished); United States
v. Garcia, 329 Fed. App’x 528, 529 (5th Cir. 2009) (unpublished); United States
v. Welk, 379 Fed. App’x 411, 412 (5th Cir. 2010) (unpublished); United States
v. Martin, 447 Fed. App’x 546, 548 (5th Cir. 2011) (unpublished); see also 5TH
CIR. R. 47.5.4 (“Unpublished opinions issued on or after January 1, 1996, are
not precedent, except [in limited circumstances such as] under the doctrine of
res judicata[.]”) (asterisk omitted); Light-Age, Inc. v. Ashcroft-Smith, 922 F.3d
320, 322 n.1 (5th Cir. 2019) (concluding that, while an unpublished opinion
issued after January 1, 1996, is not binding precedent, “we may consider [such
an] opinion as persuasive authority”). Each of these opinions is consistent with
Fuller’s holding: when Shepard-approved documents in a record are
inconclusive as to whether predicate ACCA offenses occurred on separate
occasions, the defendant’s sentence should be vacated.
      Bookman and Taylor are illustrative. Both apply the Barlow burden and
cite out-of-circuit opinions that they state “place the onus on the defendants to
prove that prior offenses are not separate.” Bookman, 263 Fed. App’x at 400
n.1; Taylor, 263 Fed. App’x at 404 n.1. For example, in United States v.
Hudspeth, the Seventh Circuit stated that “the government must establish
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                                  No. 17-30688
that a defendant has three prior violent felony convictions” under § 924(e)(1)
and can establish this through an unchallenged certified record of conviction
or presentence investigation report. 42 F.3d 1015, 1019 n.6 (7th Cir. 1994).
Then, the burden shifts “to the defendant to establish by a preponderance of
the evidence that the prior convictions occurred on a single ‘occasion,’ and thus
cannot be the basis for the sentence enhancement under § 924(e)(1).” Id.
Hudspeth “essentially requires an ACCA enhancement even if the available
Shepard-approved documents . . . [are] inconclusive as to whether the offenses
occurred on the same occasion[.]” Kirkland v. United States, 687 F.3d 878,
888–89 (7th Cir. 2012).
      The Seventh Circuit and other circuits no longer take the approach set
out in Hudspeth. Id. at 888–89 (“When properly viewed in [the] post-Shepard
context, we believe that the burden shifting scheme set forth in Hudspeth is no
longer tenable[.]”); see also id. at 888–95 (explaining why requiring defendants
to bear the burden of proof when they claim the invalidity of a prior conviction
is tenable whereas requiring defendants to bear the burden to prove the
separateness of offenses is not); id. at 895 (“[W]e believe that an ambiguous
record regarding whether a defendant actually had the opportunity ‘to cease
and desist or withdraw from his criminal activity’ does not suffice to support
the ACCA enhancement.”); United States v. Barbour, 750 F.3d 535, 543–46
(6th Cir. 2014) (“We are convinced that placing the burden on the government
[for the purposes of a separate-offense inquiry] is the view shared by all our
sister circuits that have squarely addressed the issue[.]”) (collecting cases).
      While the Bookman and Taylor courts ostensibly applied the Barlow
burden and cited Hudspeth, they did not “place[] the burden on the defendant
to put forth evidence that the prior offense occurred on the same occasion[.]”
Kirkland, 687 F.3d at 894 (discussing Bookman in detail but also citing
Taylor); Bookman, 263 Fed. App’x at 399–401; Taylor, 263 Fed. App’x at 404–
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05. Instead, the Bookman and Taylor courts “indicated that the government
must provide evidence that the offenses occurred on different occasions, and
the defendant then bears the burden of challenging that evidence.” Kirkland,
687 F.3d at 894; see Bookman, 263 Fed. App’x at 399–401 (affirming ACCA
enhancement where (1) the government submitted Shepard-approved
documents indicating that Bookman’s predicate ACCA offenses were
committed on different dates and (2) the defendant did not submit any evidence
that his predicate offenses occurred simultaneously); Taylor, 263 Fed. App’x at
404–05 (affirming ACCA enhancement where (1) the indictments and
judgments for the predicate ACCA offenses established that the offenses
occurred on separate occasions and (2) the defendant did not submit any
evidence contradicting the Shepard-approved documents); see also Barbour,
750 F.3d at 544–546 (agreeing with the Kirkland court’s interpretation of
Bookman). In Owens, we more explicitly did this, stating that the government
did not carry its Barlow burden based on the Shepard-approved documents in
the record, specifically, indictments and judicial confessions. Owens, 753 Fed.
App’x at 214–15. While Owens referred to committing two “crimes,” “there is
ambiguity as to whether ‘crimes’ connotes the two convictions arising out of a
single criminal transaction or two separate criminal transactions.” Id. at 215.
The Owens court explained:
      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.
Id. at 215.
      The Seventh Circuit also noted that placing the initial burden on the
government is consistent with Fuller. Kirkland, 687 F.3d at 895 (“Despite [the
Bookman court] having cited the burden shifting scheme set forth in Hudspeth,
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                                 No. 17-30688
[the Fifth Circuit] has declined to apply the ACCA enhancement when faced
with an inconclusive record.”) (citing Fuller, 453 F.3d at 279); see also id. at
889 (“[W]henever we have had doubts as to whether the record indicated that
the offenses occurred on separate occasions, we have declined to use the offense
as a predicate conviction for the ACCA enhancement or remanded the case to
the district court for further factfinding.”); Owens, 753 Fed. App’x at 213–14
(interpreting Fuller the same as the Kirkland court). Nonetheless, the Taylor
court stated that, “though the Fuller court never addressed the Barlow
standard,” “the Fuller court implicitly found that Fuller had carried his burden
of proof by supplying some evidence that his offenses did not occur on different
occasions.” Taylor, 263 Fed. App’x at 405. This a misstatement. It is true that
“Fuller testified [at his sentencing hearing] that he and a friend entered into
different buildings (or trailers) simultaneously.” Fuller, 453 F.3d at 278. But
the Fuller court stated:
      The district court found that Fuller[’s testimony] was not credible
      and that the robberies had occurred at least minutes apart. Fuller
      argues on appeal that nothing in the record supports the district
      court’s determination that the burglaries occurred on different
      occasions.
Id. (emphasis added). The Fuller court did not rely on or mention again
Fuller’s testimony.   Instead, the Fuller court looked only at the Shepard-
approved indictments for the predicate ACCA burglaries and stated that,
“[b]ased on the indictments alone, . . . we cannot determine as a matter of law
that the burglaries occurred on different occasions.” Id. at 279. For this
reason, the Fuller court vacated Fuller’s sentence. Id. at 279–80. In any case,
as discussed above, even the Taylor court placed the burden on the government
to prove that the offenses occurred on separate occasions; it simply found that
the government had met this burden and that the burden therefore shifted to



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                                No. 17-30688
the defendant to contradict the government. See Taylor, 263 Fed. App’x at
404–05.
      All told, we see no reason to apply the Barlow burden here. We need
only rely on our binding precedent in Fuller to conclude that the ACCA
enhancement was improperly applied here. Nor are our opinions applying
Barlow inconsistent with Fuller.
      Ultimately, the Shepard-approved documents in the record are
inconclusive as to whether Young’s prior serious drug offense convictions
constitute three separate transactions under § 924(e).
                               CONCLUSION
      Because Louisiana aggravated assault with a firearm can be achieved
through negligent conduct, it does not constitute a violent felony under §
924(e). Further, the record does not support a finding that Young’s second and
third serious drug offenses were “committed on occasions different from one
another[.]” § 924(e). Accordingly, based on the record, Young does not have
three qualifying prior convictions under the ACCA. The court REVERSES the
district court’s denial of Young’s § 2255 motion, VACATES Young’s entire
sentence, and REMANDS for resentencing.




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