Friday, April 01, 2016

Sixth Circuit declines to take judicial notice of unclear state court transcript to resolve Johnson issue

         In United States v. Turner, No. 15-3353 (April 1, 2016) (unpublished) (consolidated with United States v. Torres, No. 15-3346), the defendant, Mr. Turner pleaded guilty to being a felon-in-possession of a firearm and being an unlicensed firearms dealer. At sentencing, the government maintained that Mr. Turner had four prior convictions that qualified as predicate offenses under the Armed Career Criminal Act (ACCA). Mr. Turner argued that two of his prior Ohio convictions (one for third degree burglary, and one for robbery) did not qualify as predicate offenses under the ACCA’s “residual clause.” Before Johnson v. United States, 135 S.Ct. 2551 (2015) was decided, the district court sentenced Mr. Turner to the mandatory minimum sentence of 15 years under the ACCA.

          On direct appeal, Mr. Turner again challenged the use of the two Ohio convictions as ACCA predicates. He argued that they were considered “violent felonies” only for purposes of the residual clause which was held to be void for vagueness in Johnson. The government conceded that the burglary conviction was a violent felony under the residual clause and could no longer be used as an ACCA predicate offense. The parties, however, disputed the use of the robbery conviction as an ACCA predicate and they looked to different sections of the Ohio robbery statute to support their positions.

          The government moved the Sixth Circuit under Fed.R.Evid. 201(b) to take judicial notice of the plea and sentencing transcript for the robbery conviction. The Sixth Circuit determined, however, that “the state court documents do not clearly resolve the issue of under what section of the robbery statute Turner was indicted, pled guilty to or was sentenced.” Since the “paper record is not beyond controversy,” the court concluded that Fed.R.Evid. 201(b) “should not be the deciding factor in determining” whether the robbery conviction qualifies as an ACCA predicate.

          The Sixth Circuit vacated Mr. Turner’s 15-year mandatory minimum sentence and remanded the case for reconsideration in light of Johnson. The district court was also required to determine what Ohio offense, if any, qualifies as an offense supporting a 15-year mandatory-minimum sentence.

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