source: Caselaw Access Project

author: STEPHEN A. HIGGINSON, Circuit Judge:

license: Public Domain

text:
    Carlos E. MOORE, Plaintiff-Appellant v. Governor Dewey Phillip BRYANT, In his Official Capacity, Defendant-Appellee
    No. 16-60616
    United States Court of Appeals, Fifth Circuit.
    FILED March 31, 2017

      Carlos Eugene Moore, Esq., Moore Law Office, P.L.L.C., Grenada, MS, Michael T. Scott, Reed Smith, L.L.P., Philadelphia, PA, for Plaintiff-Appellant.
    Douglas T. Miracle, Assistant Attorney General, Office of the Attorney General, Jackson, MS, for Defendant-Appellee.
    Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

The upper, left-hand corner of the Mississippi state flag depicts the Confederate battle flag. Plaintiff-Appellant, an African-American, Mississippi lawyer, sued Defendant-Appellee, the Governor of Mississippi, claiming that the Mississippi flag violates his rights under the Equal Protection Clause of the Constitution. The district court sua sponte ordered the parties to brief standing and the political question doctrine. In response, Defendant moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff responded and additionally submitted a sworn declaration in support of his standing. Thereafter, Plaintiff moved to amend, seeking to file a Fourth Amended Complaint asserting an equal protection claim on behalf of his daughter. The district court held a hearing on the motion to dismiss. At the hearing, the parties agreed that Plaintiff could testify about his alleged injuries and that his testimony would be accepted as true for the purposes of the motion to dismiss. The district court dismissed for lack of standing and denied the motion to amend because any amendment would be futile. We AFFIRM.

I

This Court reviews a dismissal for lack of standing de novo. Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). “It is well settled in this circuit that ‘[t]he district court ... has the power to dismiss [pursuant to Rule 12(b)(1) ] on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’ ” Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (quoting Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989)). In this case, the district court decided the motion to dismiss based on undisputed facts, “[therefore, our review is limited to determining whether the district court’s application of the law is correct and ... whether those facts are indeed undisputed.” Id.

The requirement that a litigant have standing derives from Article III of the Constitution, which confínes federal courts to “adjudicating actual ‘cases’ and ‘controversies.’ ” Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002) (quoting U.S. Const, art. Ill, § 2, cl. 1). “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.]” Id. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Id. (internal quotation marks and citations omitted). “Third, it must be likely,- as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561, 112 S.Ct. 2130 (internal quotation marks and citation omitted).

II

The district court found that Plaintiff failed adequately to plead injury in fact, the first element of standing. On appeal, Plaintiff puts forward three injury-in-fact theories. We find each unavailing.

1. Stigmatic Injury

Plaintiff first alleges that he is unavoidably exposed to the state flag and that the flag’s message is “painful, threatening, and offensive” to him, makes him “feel like a second-class citizen,” and causes him both physical and emotional injuries.” At its core, Plaintiffs injury theory is that the Mississippi state flag stigmatizes him.

Stigmatic injury “accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct[.]” Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Heckler v. Mathews, 465 U.S. 728, 739-40, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984)), abrogated in part on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). Accordingly, to plead stigmatic-injury standing, Plaintiff must plead that he was personally subjected to discriminatory treatment. See Carroll v. Nakatani, 342 F.3d 934, 946 (9th Cir. 2003) (“Being subjected to a racial classification differs materially from having personally been denied equal treatment. ... [Plaintiff] does not cite, and we do not find, any authority supporting the proposition that racial classification alone amounts to a showing of individualized harm.”); see also Miller v. Albright, 523 U.S. 420, 451, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O’Connor, J., concurring); Binno v. Am. Bar Assoc., 826 F.3d 338, 351 (6th Cir. 2016); Rainbow/PUSH Coal. v. F.C.C., 396 F.3d 1235, 1241 n.6 (D.C. Cir. 2005); Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir. 1996); Kurtz v. Baker, 829 F.2d 1133, 1141 (D.C. Cir. 1987). He has not done so and thus, fails to plead injury.

Plaintiff resists this conclusion in three ways. First, drawing on Establishment Clause cases, which were not presented to the district court, Plaintiff argues that exposure to unavoidable and deleterious Government speech is sufficient to confer standing. Second, Plaintiff argues that Allen is factually inapplicable. Third, Plaintiff argues that if Allen applies, then symbolic, government, hate speech will be insulated from review. We disagree with each argument.

First, the Establishment Clause case law, though vital for its purpose and settled as doctrine, is inapplicable. In an Establishment Clause case, a plaintiff adequately alleges standing by alleging direct and unwelcome exposure to a religious display. See Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494, 497 (5th Cir. 2007) (en banc) (“The question is whether there is proof in the record that Doe or his sons were exposed to, and may thus claim to have been injured by, invocations given at any Tangipahoa Parish School Board meeting.”); Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991); see also Catholic League for Religious & Civil Rights v. City & Cty. of S.F., 624 F.3d 1043, 1072-73 (9th Cir. 2010) (en banc) (Graber, J., concurring in part, dissenting in part) (collecting eases). But Allen and its progeny make clear that those same types of injuries are not a basis for standing under the Equal Protection Clause — that is, exposure to a discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead injury in an equal protection case. Allen, 468 U.S. at 755, 104 S.Ct. 3315. Indeed, other courts have rejected attempts to cross-pollinate Equal Protection Clause standing jurisprudence with Establishment Clause cases. See, e.g., Nat’l Ass’n for the Advancement of Colored People v. Home, 626 Fed.Appx. 200, 201 (9th Cir. 2015) (unpublished) (“Plaintiffs have not alleged that their members were personally denied equal treatment under Allen, as stigmatic injury caused by being a target of official discrimination is not itself a personal denial of equal treatment.”).

Plaintiff argues that the test for Equal Protection Clause standing must mirror the test for Establishment Clause standing because there is no “hierarchy of constitutional values” warranting a “sliding scale of standing.” True enough, but standing “often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The reason that Equal Protection and Establishment Clause cases call for different injury-in-fact analyses is that the injuries protected against under the Clauses are different. The Establishment Clause prohibits the Government from endorsing a religion, and thus directly regulates Government speech if that speech endorses religion. See Pleasant Grove City v. Summum, 555 U.S. 460, 468, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (“[Government speech must comport with the Establishment Clause.”). Accordingly, Establishment Clause injury can occur when a person encounters the Government’s endorsement of religion. See Murray, 947 F.2d at 151. The same is not true under the Equal Protection Clause: the gravamen of an equal protection claim is differential governmental treatment, not differential governmental messaging. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”); Allen, 468 U.S. at 757 n.22, 104 S.Ct. 3315 (“The stigmatic injury thus requires identification of some concrete interest with respect to which respondents are personally subject to discriminatory treatment. That interest must independently satisfy the causation requirement of standing doctrine.”); Bowlby v. City of Aberdeen, 681 F.3d 215, 227 (5th Cir. 2012) (noting that an equal protection claim requires proof of unequal treatment).

Second, Plaintiff argues that Allen is inapplicable. On Plaintiffs reading, Allen does not apply because “the allegation here is that the State has itself acted with a discriminatory purpose in the design of its state flag, that Plaintiff is unavoidably, and frequently, and personally exposed to the state’s demeaning and discriminatory message, and that it has impacted him personally in a variety of ways.” However, Plaintiffs reading does not comport with Allen’s text or its subsequent interpretation. Allen held that when plaintiffs ground their equal protection injuries in stigmatic harm, they only have standing if they also allege discriminatory treatment. Allen, 468 U.S. at 755, 104 S.Ct. 3315. That Plaintiff alleges that he personally and deeply feels the impact of Mississippi’s state flag, however sincere those allegations are, is irrelevant to Allen’s, standing analysis unless Plaintiff alleges discriminatory treatment. See, e.g., Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 822 (7th Cir. 2014) (holding that the Allen inquiry is unchanged when plaintiffs claimed to be part of small group facing discrimination); In re U.S. Catholic Conference, 885 F.2d 1020, 1026 (2d Cir. 1989) (finding that under Allen clergy do not have special standing status based on the sincerity of their beliefs); Mehdi v. U.S. Postal Serv., 988 F.Supp. 721, 731 (S.D.N.Y. 1997) (“Plaintiffs in this case have not alleged a personal denial of equal treatment, and thus any claim that the Postal Service has denied the plaintiffs equal protection by refusing to put up the Muslim Crescent and Star must be dismissed for want of standing.”).

Third, Plaintiff contends that if he does not have standing to challenge Mississippi’s flag then no plaintiff would ever have standing to challenge discriminatory government speech. Preliminarily, in cases where the Government engages in discriminatory speech, that speech likely will be coupled with discriminatory treatment. See, e.g., Allen, 468 U.S. at 755, 104 S.Ct. 3315 (distinguishing Heckler because there the stigmatic speech was coupled with discriminatory treatment). In any event, “[t]he assumption that if [Plaintiff has] no standing to sue, no one would have standing, is not a reason to find standing.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Schlesinger v. Reservists Comm, to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)).

2. Hostile Workplace and Physical Injury

Plaintiff next argues, in an analogy not presented to the district court, that he has standing because he encounters the flag in his work as a prosecutor and “[i]t is well established that the presence of a Confederate flag even in a place of private employment, and even less than continuously, can create or contribute to an actionable ‘hostile work environment.’ ” He also contends that, as a result of his exposure to the Mississippi flag, he suffers various physical injuries.

Both arguments suffer the same defect as Plaintiffs stigmatic-injury claim. Plaintiff’s exposure to the Mississippi flag in courtrooms where he practices and his alleged physical injuries resulting from that exposure demonstrate that he strongly feels the stigmatic harm flowing from the flag. Allen recognized that “[t]here can be no doubt that [stigma] is one of the most serious consequences of discriminatory government action....” Allen, 468 U.S. at 755, 104 S.Ct. 3315. Nonetheless, Allen found that stigma alone was insufficient to satisfy the injury-in-fact requirement. Id. Accordingly, under Allen and its progeny, stigmatic injury does not transform into injury in fact just because the source of the stigmatic injury is frequently confronted or the stigmatic harm is strongly, sincerely, and severely felt. See, e.g., Newdow v. Lefevre, 598 F.3d 638, 643 (9th Cir. 2010) (applying Allen even when the Plaintiff argued that he personally suffered harm as a result of the Government’s stigmatizing speech); Harris v. United States, 447 F.Supp.2d 208, 212 (D. Conn. 2005) (“However, it is not the seriousness of the harm but its generality that determines whether a federal court is the proper forum for addressing it.”). Moreover, analogizing Plaintiffs equal protection claim to a hostile work environment claim fails for the same reason that the Establishment Clause analogy fails: under Title VII, 42 U.S.C. § 2000e et seq., exposure to a hostile work environment alone is the injury; under the Equal Protection Clause it is not. Compare Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (noting that Title VII “is not limited to economic or tangible discrimination ... [but also] includes requiring people to work in a discriminatorily hostile or abusive environment” (internal quotation marks and citations omitted)), with Allen, 468 U.S. at 755, 104 S.Ct. 3315 (equal protection standing requires more than stigma alone). Accordingly, we conclude that Plaintiffs hostile workplace and physical injury theories are insufficient to plead injury in fact.

3. Harm to Plaintiffs Daughter

Last, Plaintiff alleges in his proposed Fourth Amended Complaint that his daughter is harmed by two Mississippi statutes, which require her to be exposed to the Mississippi flag in school. Section 37-13-5 requires that the Mississippi flag be flown in close proximity to all public schools and that “there shall be given a course of study concerning ... the flag of the State of Mississippi. The course of study shall include the history of [the] flag and what [it] represents] and the proper respect therefor.” Miss. Code § 37-13-5(1), (3). Section 37-13-7 requires that “[t]he pledge of allegiance to the Mississippi flag shall be taught in the public schools of this state[.]” Miss. Code § 37-13-7(2). Plaintiff does not allege that either statute has yet violated his daughter’s rights; instead, he claims that when she begins school she will “be forced to learn, adopt, utter or communicate speech which she finds objectionable” in violation of the First Amendment.

The district court rejected this standing theory. It reasoned that Section 37-13-5 does not facially violate the Constitution because it merely requires “children to be taught about the history of the Mississippi flag” and that Section 37-13-7 does not facially violate the Constitution because it “does not require any student to recite the Mississippi pledge.” Finding that Plaintiff failed to plead that either statute clearly risked violating his daughter’s constitutional rights, the district court concluded that Plaintiff could not show injury. We agree.

The district court properly construed both Mississippi statutes. As always, statutory interpretation begins “with the plain language and structure of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 350 F.3d 482, 486 (5th Cir. 2003). Section 37-13-5 requires that Mississippi students be “given a course of study” concerning the Mississippi flag and be taught “proper respect” for the flag. Miss. Code § 37-13-5(3). Plaintiff argues that the statute mandates that his daughter be taught to “respect” the flag “no matter its origins, no matter the malicious intent of the State in adopting it, and no matter the destructive and demoralizing impact on young minds.” We do not agree that the statute requires so much. Instead, the statute demands that children be taught “proper respect” for the flag. “Proper” means “correct” or “marked by suitability, rightness, or appropriateness.” Merriam-Webster’s Collegiate Dictionary 932 (10th ed. 2002). The words “correct” or “suitable” imply neither a positive nor a negative level of respect; under a plain reading of the statute all that is required to be taught is the history of the flag and the respect that it is due, whatever that may be. Likewise, Section 37-13-7 does not require that students pledge allegiance to the Mississippi flag. Instead, the statute only requires that the Mississippi pledge be taught in public schools, without mandating that schools teach a particular viewpoint about the pledge. See Miss. Code § 37-13-7(2). Accordingly, neither statute requires anything more than that students be taught about the flag and the pledge. The statutes do not facially violate the Constitution. See, e.g., Freiler v. Tangipahoa Par. Bd. of Educ., 185 F.3d 337, 342 (5th Cir. 1999) (absent constitutional violation, states “have the right to prescribe the academic curricula of their public school systems”).

Because neither statute compels the violation of Plaintiffs daughter’s rights, Plaintiffs claim boils down to an assertion that Mississippi could, but need not, apply its law in an unconstitutional way. This assertion is too speculative to support standing. See, e.g., Henderson, 287 F.3d at 380 (finding that plaintiffs did not have standing to bring a facial challenge when plaintiffs’ alleged injury was that a newly created state council might violate the Establishment Clause).

III

We agree with the district court that Plaintiff failed adequately to plead injury in fact and therefore failed to establish standing. See Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 2001) (en banc) (“If any one of these three elements ... is absent, plaintiffs have no standing in federal court[J”). Accordingly, we need not reach causation, redressability, or- the political question doctrine.

AFFIRMED.

      . Plaintiff raised additional standing theories before the district court including a Thirteenth Amendment claim and a claim that the Mississippi flag incited racial violence. He has abandoned those theories here.

      . Dismissals for lack of Constitutional standing are granted pursuant to Rule 12(b)(1). See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011).

      . In Home, the plaintiffs argued that Establishment Clause cases were relevant to show standing. See Br. for Appellants, Nat’l Ass’n for the Advancement of Colored People v. Home, at 23 n.5, 626 Fed.Appx. 200 (9th Cir. 2015) (No. 13-17247), 2014 WL 1153838 (arguing that Establishment Clause cases could demonstrate stigmatic injury standing in an equal protection case). Nonetheless, without citation to Establishment Clause cases, the Ninth Circuit straightforwardly applied Allen.

      . Moreover, discriminatory government speech would certainly be useful in proving a discriminatory treatment claim, because it loudly speaks to discriminatory purpose.


text:
    Thomas Bartlett WHITAKER, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
    No. 16-70013
    United States Court of Appeals, Fifth Circuit.
    FILED April 4, 2017

      James Gregory Rytting, Philip Harlan Hilder, Hilder & Associates, P.C., Houston, TX, for Petitioner-Appellant.
    Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General, Matthew Dennis Ottoway, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent-Appellee.
    Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Petitioner-Appellant Thomas Bartlett Whitaker appeals the district court’s grant of summary judgment on his federal habe-as claims. Whitaker v. Stephens, 2015 WL 1282182 (S.D. Tex. 2015). Based on our review of the briefs, the applicable law, oral argument before us, and the full record, we AFFIRM the judgment of the district court denying relief on Whitaker’s due process claim for the reasons stated in its forty-nine page opinion entered on March 20, 2015. We deny Whitaker’s request for a certificate of appealability alleging ineffective assistance of counsel because he fails to show the district court’s resolution of that claim against him is debatable among reasoned jurists. 28 U.S.C. § 2253(c). And we write separately to elaborate analysis of the prosecutorial misconduct issue for which the district court granted Whitaker a certificate of appeala-bility (“COA”).

As the district court noted, there is no dispute about the facts of Whitaker’s crime, which the Texas Court of Criminal Appeals (“TCCA”) summarized as follows:

The evidence shows that [Mr. .Whitaker] led his family to believe that he was enrolled in college and was about to graduate. None of this was true. On December 10, 2003, [Mr. Whitaker] and his father, mother and younger brother went out to dinner to celebrate [Mr.Whitakerfs “graduation.” When they arrived home, [Mr. Whitaker]’s roommate ([Christopher] Brashear) was inside, and he shot and killed [Mr. Whitaker]’s mother and brother and wounded [Mr. Whitaker]’s father as they entered the home. [Mr. Whitaker] knew that Brashear was waiting inside the home intending to murder [Mr. Whitaker’s entire family. He knew that another individual ([Steven] Champagne) was waiting outside in a getaway car. Since at least 2000, [Mr. Whitaker] had planned with several other individuals, at different times, to murder his family. He made at least one unsuccessful attempt to murder his family prior to December 10, 2003. His motive was money.
In June 2004, as the police investigation focused on [Mr. Whitaker], [Mr. Whitaker] stole $10,000 from his father and fled to Mexico where he was apprehended about 15 months later.
At the punishment phase, [Mr. Whitaker]’s mitigation case was, among other things, that [Mr. Whitaker] was sorry and that neither his father nor members of his mother’s side of the family wanted him to be sentenced to death and that these family members had to bear the ordeal of a trial because the State would not accept [Mr. Whitaker]’s offer to plead guilty in exchange for ... two consecutive life sentences. Emphasizing that the State did not seek the death penalty against the shooter (Brashear), the defense also seemed to suggest that the prosecution unfairly sought the death penalty, against [Mr. Whitaker] over issues related to [a] proffer [of guilt made during plea negotiations].

Whitaker v. Stephens, 2015 WL 1282182, *1 (quoting Whitaker v. State, 286 S.W.3d 355, 357-58 (Tex. Crim. App. 2009) (footnotes omitted)).

A Texas jury convicted Whitaker of capital murder on March 5, 2007, and he was sentenced to death. The TCCA affirmed on direct appeal. Whitaker v. State, 286 S.W.3d 355. Subsequently, the state trial court and the TCCA denied state habeas claims. See Ex parte Whitaker, No. WR-73421-01, 2010 WL 2617806 (Tex Crim. App. June 30, 2010). Whitaker then filed his original federal habeas petition, which he amended once, on October 14, 2011. As noted, the district court granted summary judgment in favor of Respondent-Appellee Lorie Davis, denying Whitaker a COA on all claims except for his claim of prosecuto-rial misconduct. '

Whitaker’s assertion of prosecutorial misconduct relates to references at trial and during Whitaker’s penalty phase to a plea discussion proffer. The question is whether the TCCA decision denying relief on this ground was contrary to, or an unreasonable application of, clearly established federal law under 28 U.S.C. § 2254(d)(1).

I. Relevant Background

A. The Plea Discussion Proffer

Taking the facts as asserted by Whitaker in his federal habeas filing, the district court summarized the background and trial use of the plea discussion proffer as follows:

According to Mr. Whitaker, plea negotiations began when Mr. Whitaker’s original trial attorneys, Dan Cogdell and James Ardoin, ran into Mr. Felcman at a local store. According to Mr. Cogdell and Mr. Ardoin, Mr. Felcman stated that he would consider not seeking the death penalty if Mr. Whitaker gave a written statement limited to the facts of the case, with no expressions of remorse or contrition. See Cogdell Affidavit, Amended Petition (“Am.Pet.”), Exh. A at 2; Ardoin Affidavit, Am. Pet., Exh. B at 2. Mr. Ardoin drafted a proffer and presented it to Mr. Felcman. According to Mr. Ardoin, Mr. Felcman then rejected the proffer because it did not contain any expressions of remorse. Ardoin Affidavit, Am. Pet., Exh. B at 2.
The proffer was discussed in front of the jury at least three times during the course of Mr. Whitaker’s trial. First, Mr. Whitaker contends that Mr. Felcman baited his father, Kent Whitaker (“K.Whitaker”), into mentioning the proffer during the guilt-innocence phase by asking him to confirm that Mr. Whitaker never confessed to the murders. 25 Tr. at 104-05. When-Mr. K. Whitaker brought up the proffer in his answer, Mr. Felcman proceeded to characterize the proffer as “legal maneuvering on your son’s part” that did not express “repentance.” Id. at 104-06.
Second, Mr. Felcman used the proffer to cross-examine Mr. Whitaker during the penalty phase. After Mr. Felcman handed the proffer to Mr. Whitaker and asked him if it was true, the following exchange took place:
A. I did not write that.
Q: You didn’t write it?
A. No. I — I wanted to write the proffer. That was some confusion between me and Mr. Cogdell at the time when initially — I guess it was your office that suggested that if we wrote the proffer, we could all end this. It was my impression that I would write this admission of guilt.
Q. It wasn’t my suggestion.
A. I’m sorry.
Q. Your father poured his heart out to me, and I saw no remorse on your part.
A. I didn’t actually write that. The one that I wrote was in my cell, and it did have remorse. It was really how I felt at the time, and I didn’t — I was under the impression that I was going to be giving that copy to Mr. Cogdell, and then I find out — I guess I didn’t see him for a few weeks. I found out the next time that I talked to him that a proffer had been rejected. I was very confused, because it was my understanding that I would be writing it myself.
Q. The proffer that presented — that you didn’t even have anything to do with. You understand how insulting that is to somebody that has to listen to the father plea, and I see no remorse on the Defendant?
A. Yes, extremely insulting. I knew it would be, if it had been done that way. I wouldn’t have agreed to that at all. I was very upset about that. 31 T.R. at 257-58.
Third, Mr. Felcman’s second chair, Mr. Strange, invoked the proffer during the State’s closing in the penalty phase. Mr. Strange argued to the jury that Mr. Whitaker’s actions throughout the case and trial — including the proffer — were “manipulation” and “gamemanship.” 32 T.R. at 31-32.

Whitaker v. Stephens, 2015 WL 1282182, *3-6.

B. District Court Assessment of the Proffer

The district court correctly set forth disputed issues of fact relating to the plea discussion process and then confirmed it would consider Whitaker’s federal habeas argument “in light of the facts alleged in [Whitaker’s pretrial defense counsel] Mr. Cogdell’s and Mr. Ardoin’s affidavits.” Id. *5. The district court understood Whitaker’s argument that the TCCA’s denial of habeas relief violated federal law as determined by Supreme Court law to include Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), and United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995). The district court noted “critical distinctions” with Santobello, notably that “[bjecause Mr. Felcman’s offer did not induce Mr. Whitaker to plead guilty, Santobello provides no basis for habeas relief.” Id. at *6-7. The district court continued its analysis by observing that

Town of Newton v. Rumery concerns the propriety of prosecutor-instigated ‘release-dismissal agreements’ — an issue not present in or invoked by Mr. Whitaker’s case. See 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987). [Finally,] United States v. Mezzanatto resolves that the protections of Federal Rule of Evidence 410 are waivable, see 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), but sheds no light on the constitutional implications of prosecutorial use of evidence covered by the rule in the absence of waiver.

Id. at *7 (footnote omitted).

II. AEDPA, Standard of Review, and Procedural Default

Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), federal ha-beas relief based upon claims that were adjudicated on the merits by the state courts, as here, cannot be granted unless the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

We review de novo a district court’s ruling granting summary judgment denying a state petitioner’s request for habeas relief. See Goodrum v. Quarterman, 547 F.3d 249, 255 (5th Cir. 2008).

Texas makes the threshold argument that because the TCCA on direct appeal held that Whitaker had procedurally defaulted his prosecutorial misconduct claim by failing to object when the proffer came up, federal habeas review is barred altogether. Procedural default, however, is inapplicable because Texas did not argue in the district court that Whitaker’s due process claim was defaulted. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992) (“To invoke the procedural bar.. .the government must raise it in the district court.”); Randall v. Collins, 5 F.3d 1494, *1 n.1 (5th Cir. 1993).

III. Analysis

We affirm the district court’s analysis and holding, summarized above, that the TCCA’s resolution of Whitaker’s allegation of prosecutorial misconduct was not contrary to, or an unreasonable application of, clearly established federal law.

At trial, the plea discussion proffer came up once briefly during Whitaker’s father’s testimony. No objection was made. The proffer was not read to the jury nor introduced into evidence, and the government drew no attention to it in closing or rebuttal closing arguments. Defense counsel highlighted that Whitaker did not forcefully contest guilt at trial, stating to the jury in closing: “No one, no one has come in here and told you Bart Whitaker is not guilty. We didn’t even plead not guilty.... You listened to all those facts last week. I listened to all those facts last week. Factually, factually, he’s guilty.” Indeed, the district court confirmed the “overwhelming” proof of guilt. Whitaker v. Stephens, 2015 WL 1282182, *8 n.8. We hold that any improper passing reference at trial to the proffer (or omissions in it) was harmless. No clearly established federal law suggests otherwise.

By contrast, Whitaker’s guilty plea overtures featured prominently during the penalty phase. Defense counsel highlighted that Whitaker repeatedly had tried to communicate his desire to plead guilty even to multiple life sentences. Neither government witness testified about the pretrial proffer. Consistent with Whitaker’s mitigation opening, however, each of the three defense witnesses — the defendant’s uncle, the defendant’s father, and then the defendant himself — testified forcefully that pretrial guilty plea overtures and offers were made to the prosecution. Whitaker himself began his direct testimony by stating to the jury he was unsurprised to have been “convicted of capital murder” because he had instructed defense counsel throughout to confer with the prosecution to plead guilty to “[a]s many life sentences as they wanted.” His counsel then finished direct examination with two admonitions to Whitaker, anticipating cross-examination: “Q. You know [the prosecutor] is going to come up here and talk about all the ways that you’ve manipulated people or told lies and all that stuff. You’ve admitted that?” “A. Yes sir.”

Texas then did seek to elicit that Whitaker’s guilty plea overtures were insincere and that his motivation was never remorse, with one example being the pretrial proffer. Whitaker rejected the negative characterization of him as remorseless, both in his direct examination, and in answer to cross-examination, but, nonetheless, drawing inference from the entirety of Whitaker’s familicide, and subsequent actions, including his Christmas card to the prosecutor, Texas urged in closing argument that the jury perceive “manipulation” and “gamesmanship.”

Preliminarily, we agree with the district court that the competing inferences drawn at the punishment phase from Whitaker’s pretrial guilty plea overtures, including the defense proffer — Whitaker suggesting favorably that he sought to acknowledge guilt; Texas, perceiving instead manipulation — are not inconsistent with Texas Rule of Evidence 401, which, like its federal counterpart, contemplates admission of plea bargaining statements when, in fairness, other statements made during the same discussions are admitted. After the defense opening emphasized that Whitaker repeatedly had sought to plead guilty, the jury then heard corroborating testimony of the victim father, the uncle, and then Whitaker himself, all concertedly insisting that Whitaker had made guilty plea overtures to the prosecution from the start. Cf. Whitaker v. State, 286 S.W.3d 355, 362 (“Appellant’s complaint about the testimony referring to the proffer and to the plea negotiations is difficult to understand since it appears that this information formed a significant part of his mitigation case.”).

Nevertheless, Whitaker contends that impeachment of him using the proffer was misconduct and contrary to “principles” from Santobello and equivalent to an involuntary confession because the prosecutor’s direction to leave out remorse came with the implied promise not then to use lack of remorse against him. On appeal, Whitaker continues to argue that Santobello applies, especially as cited in United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974). He also now relies on the due process line of authority announced in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). And third, he cites New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), and Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), for the proposition that references to the proffer equated to use of an involuntary confession. Whitaker’s overarching due process argument is less that impeachment occurred of his guilty plea overtures, and more that impeachment using the proffer was improper because it was premised on sentiment he contends his attorneys were told to remove.

Santobello’s due process rule that a guilty plea requires fulfillment of terms agreed to by the government is inapposite because Whitaker did not plead guilty. Notably, also, our reference to Santobello in Ross was simply to the important observation that “plea bargaining is an essential component of justice and, properly administered, it is to be encouraged.... ” Ross, 493 F.2d at 775. Regardless, even if our decisions could be the source of clearly established federal law for AEDPA purposes, contra Renico v. Lett, 559 U.S. 766, 778-779, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010), Ross was a straightforward prohibition against the direct introduction of plea bargaining discussions, and did not address the situation here involving the prosecution’s use of such discussions after the defense presented them.

The Supreme Court due process decision in Giglio — or as further condemned in Napue, when withheld evidence is compounded by trial proof elicited that would be contradicted by that evidence — also is distinguishable because no evidence was kept from Whitaker. Defense counsel engaged in plea discussions, sending the proffer in question to the prosecution with the scope delimitation they allege they were given, i.e. crime facts only, no sentiment about remorse. The suppression or withholding of evidence determinative for Giglio and Napue claims did not occur, therefore.

Finally, Whitaker contends that denial of habeas relief is inconsistent with the Supreme Court’s due process prohibition against use of a defendant’s involuntary confession, as stated in New Jersey v. Portash, supra, and Mincey v. Arizona, supra. Whitaker’s proffer is distinct from these cases, however, because his attorneys initiated the plea discussion and gave the proffer to the prosecution voluntarily, hoping to have life imprisonment considered instead of the death penalty. There is no suggestion the proffer was submitted involuntarily, by government threat or coercion. In fact, the district court noted the record consistency, including the defense counsel affidavits, that Whitaker “made a proffer of evidence in exchange for the prosecutor’s promise to consider not seeking the death penalty,” and that finding 'is not clearly erroneous. Whitaker offers no caselaw that extends New Jersey v. Portash and Mincey v. Arizona involuntary confession caselaw to apply to his allegation here, where a defendant initiates a plea overture, then defense counsel submit a proffer conforming to a scope delimitation, and upon cross-examination about omitted remorse,' the defendant has full “opportunity to testify on his own behalf and explain that he did not personally write or approve the proffer, and to express his own feelings about his crime.” Whitaker v. Stephens, 2015 WL 1282182, *8 n.8. Any misleading impression intimated by Texas’s cross-examination taking the proffer out of the context of its alleged terms did not circumscribe Whitaker’s right to answer as he did, with supporting testimony from his father and uncle, to develop the mitigation argument that he repeatedly made overtures acknowledging his guilt.

Conclusion

Because Whitaker identifies no pertinent authority showing the TCCA’s resolution of his allegation of misconduct was contrary to, or an unreasonable application of, clearly established federal law, and for the reasons stated by the district' court, we AFFIRM the judgment of the district court denying relief on his due process claim. We also deny Whitaker’s request for a certificate of appealability as to his allegation of ineffective assistance of counsel for the reasons stated by the district court, which Whitaker fails to show are debatable among reasoned jurists.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Jesus GUZMAN-REYES, Defendant-Appellant
    No. 16-10387
    United States Court of Appeals, Fifth Circuit.
    Filed April 5, 2017

      Thomas E. Booth, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Seth Kretzer, Law Offices of Seth Kret-zer, Houston, TX, Frank Anthony Perez, Law Offices of Frank Perez, Dallas, TX, for Defendant-Appellant.
    Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Jesus Guzman-Reyes appeals his sentence for possession with intent to distribute methamphetamine and illegal reentry into the United States. Specifically, Guzman challenges the district court’s assessment of the U.S.S.G. § 2Dl.l(b)(12) enhancement for maintaining a premises for the purpose of drug distribution, as well as the § 3Bl.l(c) enhancement for Guzman’s aggravating role in the offense. We affirm.

I.

In August 2015, the Fort Worth Police Department received information from a confidential source that Guzman planned to deliver a large quantity of methamphetamine to a location in Arlington, Texas. Officers located Guzman’s car and began surveillance, following him to an auto shop. Police observed Guzman exiting his car and making a phone call. Shortly thereafter, a second person — later identified as John Campbell — arrived at the shop. Campbell greeted Guzman and unlocked the front door of the shop. The two then entered the building together. Guzman soon left the shop with a large bag, which he placed in his car, and then drove away. After officers initiated a traffic stop, a search of Guzman and his car revealed $3,600 in cash, several cellphones, a pistol, and multiple bags containing approximately 2,035.7 grams of methamphetamine. The officers learned that Guzman was from Mexico and that he had entered the United States illegally after a 2012 deportation, which itself followed convictions for illegal reentry and possession of a controlled substance.

Officers later returned to the auto shop to question Campbell, who stated that he was the owner of the shop and admitted that methamphetamine and firearms were stored inside. Campbell directed officers to the bottom desk drawer in his office, where they found a Tupperware container holding approximately 547.15 grams of methamphetamine. Officers located an additional 70.87 grams of methamphetamine in a second Tupperware container on a shelf above the desk. Officers also discovered eleven firearms in the shop, three of which had been reported stolen, and a large supply of ammunition. Campbell admitted that he stored methamphetamine for Guzman at the shop over the span of three months in exchange for about one ounce of methamphetamine per month, a value of approximately $1,000. According to Campbell, Guzman did not have keys to the shop, but contacted Campbell whenever he needed access.

In November 2015, Guzman pleaded guilty, without a plea agreement, to one count of possession with intent to distribute methamphetamine and one count of illegal reentry into the United States. For his methamphetamine conviction, the Pre-sentence Report (PSR) applied a two-level enhancement under U.S.S.G. § 2Dl.l(b)(12) for maintaining a premises for the purpose of distributing methamphetamine and a two-level enhancement under § 3B 1.1(c) for Guzman’s aggravating role in the offense. Guzman objected to both enhancements. The district court overruled both objections and sentenced Guzman to a total of 360 months of imprisonment, based on consecutive imprisonment terms of 240 months on the methamphetamine conviction and 120 months on the illegal-reentry conviction, the statutory máximums for each offense. The district court also imposed three years of supervised release. Guzman now appeals the district court’s application of the two sentencing enhancements.

II.

Guzman first argues that the district court erred in applying the § 2Dl.l(b)(12) enhancement for maintaining a premises for drug distribution. “A district court’s application of § 2Dl.l(b)(12) is a factual finding reviewed for clear error.” United States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). Thus, the question before us is whether the district court’s determination “is plausible in light of the record read as a whole.” See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

Section 2Dl.l(b)(12) provides a two-level enhancement of a defendant’s offense level if the defendant “knowingly maintains a premises (i.e., a building, room, or enclosure) for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled, substance for the purpose of distribution.” § 2D1.1 cmt. n.17 (emphasis added). “Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises.” Id.

Guzman used the auto shop for “storage of a controlled substance for the purpose of distribution” and that purpose was his “primary or principal use[ ] for the premises.” Guzman insists, however, that he did not “maintain” the premises within the meaning of § 2Dl.l(b)(12). Although the term “maintains” is not expressly defined in the Guideline, the application note for § 2Dl.l(b)(12) explains that “[a]mong the factors the court should consider in determining whether the defendant ‘maintained’ the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.” § 2D1.1 cmt. n.17.

For further interpretive guidance of the term “maintain,” many of our sister circuits have drawn on parallel caselaw examining a similar statutory provision, 21 U.S.C. § 856 (commonly known as the “stash house” statute), which makes it unlawful to “knowingly ... maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance[.]” See, e.g., United States v. Carter, 834 F.3d 259, 261-63 (3d Cir. 2016); United States v. Flores-Olague, 717 F.3d 526, 531-32 (7th Cir. 2013); United States v. Johnson, 737 F.3d 444, 446-47 (6th Cir. 2013); United States v. Miller, 698 F.3d 699, 705-06 (8th Cir. 2012). This approach makes good sense, because § 2Dl.l(b)(12) was based in large part on § 856.

In the § 856 context, we have explained that “whether a defendant has ‘maintained’ a place is necessarily a fact-intensive issue that must be resolved on a case-by-case basis.” United States v. Morgan, 117 F.3d 849, 857 (5th Cir. 1997). Similar to interpreting § 2D 1.1, we “typically consider whether a defendant (1) has an ownership or leasehold interest in the premises, (2) was in charge of the premises, or (3) exercised ‘supervisory control’ over the premises.” United States v. Barnes, 803 F.3d 209, 216 (5th Cir. 2015) (citing United States v. Soto-Silva, 129 F.3d 340, 346 (5th Cir. 1997)). These factors are not necessarily determinative alone, but should be considered together. See United States v. Chagoya, 510 Fed. Appx. 327, 328 (5th Cir. 2013). We have also suggested that “not just any showing of dominion and control will suffice to support a maintenance finding” under § 856. Morgan, 117 F.3d at 856. Instead, the evidence should support “that the defendant exercised ‘sufficient dominion and control’ over” the premises, or else “dominion and control may fall short of maintenance.” Id. (quoting United States v. Roberts, 913 F.2d 211, 221 (5th Cir. 1990)).

Applying these concepts to this case, we cannot say that the district court clearly erred in its finding that Guzman “maintained” a premises within the meaning of § 2Dl.l(b)(12). Guzman paid Campbell, the owner of the shop, $1,000-worth of methamphetamine per month in exchange. for use of the premises for the sole purpose of storing his drug supply there. Although Guzman’s name may not have been on a formal lease agreement or ownership documents, we agree with the First Circuit that “it would defy reason for a drug dealer to be able to evade application of the enhancement by the simple expedient of maintaining his stash house under someone else’s name.” United States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015); see also Carter, 834 F.3d at 261-63 (rejecting the defendant’s argument that “he lacked the possessory interest necessary to have ‘maintained’ the properties because he was not the owner or renter” and noting that “the absence of his name on a deed or lease is insufficient to preclude the enhancement’s application”); United States v. Rodney, 532 Fed.Appx. 465, 472-73 (5th Cir. 2013) (upholding the enhancement when, although the defendant did not own or rent the shed where he stored his drug supply, he nonetheless had unimpeded access to the shed, controlled the drug activities there, and used it solely to store crack cocaine for the purpose of distribution).

Further, the facts contained in the PSR support a finding that Guzman had unrestricted access to the premises through Campbell, who not only provided Guzman a physical storage space in exchange for a monthly payment, but also on-call entry. See, e.g., Carter, 834 F.3d at 262 (“Neither the Guidelines commentary [for § 2Dl.l(b)(12) ] nor the case law interpreting § 856 requires that the defendant be physically present or involved on a daily basis to maintain a premises for the purpose of the enhancement. Rather, the enhancement is flexible and adaptable to a variety of factual scenarios.” (internal citations and quotation marks omitted)). This level of access, dominion, and control “sufficed to support a maintenance finding” under the deferential clear error standard. See Morgan, 117 F.3d at 856.

Based on the evidence in the record, the district court’s finding that Guzman maintained the premises for the purpose of storing methamphetamine was not clearly erroneous considering the record as a whole, and the court’s application of § 2Dl.l(b)(12) was not otherwise in error. See Haines, 803 F.3d at 744-45.

III.

Next, Guzman claims that the district court erred in assessing the aggravating-role enhancement under U.S.S.G. § 3Bl.l(c). Specifically, he argues that the evidence was insufficient to support the enhancement because it was not clear what criminal undertaking Campbell performed under the recruitment and direction of Guzman'. “Whether a defendant exercised an aggravating role as an organizer, leader, manager, or supervisor for purposes of an adjustment under U.S.S.G. § 3Bl.l(c) is a finding of fact reviewed for clear error.” United States v. Ochoa-Gomez, 111 F.3d 278, 281 (5th Cir. 2015). “A defendant’s role in the criminal activity for the purpose of applying [§ ] 3B1.1 may be deduced inferentially from available facts.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).

The PSR contained facts supporting a determination that Guzman recruited Campbell to be an accomplice in his methamphetamine-trafficking scheme and planned and organized the criminal operation. See U.S.S.G. § 3B1.1 cmt. n.4 (noting that the defendant’s “recruitment of accomplices” and “degree of participation in planning or organizing the offense” are factors courts should consider when determining application of the enhancement). At Guzman’s direction, Campbell stored methamphetamine that Guzman intended to distribute, and Guzman exercised control and authority over Campbell by paying him for the storage and directing Campbell to provide him access to the methamphetamine when he needed it. Thus, the district court did not clearly err in finding § 3Bl.l(c) applicable. See United States v. Turner, 319 F.3d 716, 725 (5th Cir. 2003).

Guzman also argues that the district court’s application of the § 3B1.1 enhancement was procedurally improper because the court relied exclusively on the PSR to resolve the issue, failed to explain its reasons for overruling Guzman’s objection to the enhancement, and determined Guzman’s Guidelines range by having an off-the-record discussion with probation officers. These arguments are subject to plain error review, because Guzman did not object to the § 3Bl.l(c) enhancement on these grounds in the district court. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (recognizing that a party has not preserved a claim of procedural error if the party did not raise it in a manner sufficient to alert the district court to the specific error). To show plain error, Guzman must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes such a showing, this court has the discretion to correct the error, but only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

“A presentence report generally bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) (internal quotation marks and citation omitted). The defendant bears the burden of presenting evidence to show that the facts contained in the PSR are inaccurate or materially untrue. See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013). In the absence of rebuttal evidence, a sentencing court may properly rely on the PSR and adopt the PSR’s factual findings as its own. Id. Guzman did not present any evidence to rebut the PSR’s findings. Thus, the district court did not commit plain error by relying on the PSR’s factual findings. See id.

Further, the district court implicitly provided reasons for overruling Guzman’s objection when it adopted the PSR’s factual findings and application of the § 3Bl.l(c) enhancement. See United States v. Ahders, 622 F.3d 115, 119 (2d Cir. 2010) (“A district court need not specifically recite all the facts relevant to its Guidelines calculation; rather, it is sufficient for the district court to adopt the findings in the presentence report^/ those findings are adequate to support the sentence imposed.”). And, although he complains of the- district court’s brief explanation in passing, Guzman has not described why the district court’s actions constituted reversible plain error. Finally, Guzman’s contention that the district court had an improper, off-the-record discussion with probation officers is speculative at best, given that the contents of the discussion are not in the record. This unsupported, speculative contention does not demonstrate reversible plain error. See United States v. Castaneda-Lozoya, 812 F.3d 457, 460 (5th Cir. 2016) (“[A defendant’s] speculation does not support a finding of reversible plain error.”).

IV.

For the foregoing reasons, we AFFIRM the district court’s judgment.

      . Although the primary use of the auto shop may not have been drug storage or distribution, as the Seventh Circuit has explained, "the commentary to § 2D 1.1 specifically directs sentencing courts to consider the defendant’s 'primary or principal uses for the premises' and how often the defendant used the premises for drug trafficking rather than lawful purposes.” United States v. Evans, 826 F.3d 934, 938 (7th Cir. 2016) (quoting U.S.S.G. § 2D1.1 cmt. n.17). Here, even if the auto shop's primary use was a lawful business, Guzman’s primary use of the space was drug storage for distribution.

      . Congress directed the Sentencing Commission to add the two-level enhancement if "the defendant maintained an establishment for the manufacture or distribution of a controlled substance, as generally described in section 416 of the Controlled Substances Act (21 U.S.C. 856).” Miller, 698 F.3d at 705 (quoting Pub. L. No. 111-220, § 6(2), 124 Stat. 2372, 2373 (2010)).


author: MICHELSON, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Errol Dontes KING, Defendant-Appellant.
    No. 15-4192
    United States Court of Appeals, Sixth Circuit.
    Argued: July 28, 2016
    Decided and Filed: March 30, 2017

      ARGUED: Nathan A. Ray, BURDON & MERLITTI, LPA, Akron, Ohio, for Appellant. Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Nathan A. Ray, BURDON & MERLITTI, LPA, Akron, Ohio, for Appellant. Matthew J. Cronin, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Ap-pellee.
    Before: WHITE and STRANCH, Circuit Judges; MICHELSON, District Judge.

       The Honorable Laurie J. Michelson, United States District Judge for the Eastern District of Michigan, sitting by designation.

   OPINION

MICHELSON, District Judge.

Defendant Errol King pleaded guilty to being a felon in possession of a firearm and, based on King’s prior convictions, the Government sought and obtained an enhanced sentence under the Armed Career Criminal Act. On appeal, King maintains that the ACCA’s fifteen-year mandatory minimum does not apply to him. He makes this claim not by arguing that he has fewer than three prior convictions for violent felonies, but by arguing that the Government cannot show that his prior offenses were committed on different occasions. In assessing King’s claim, we must answer the following question: When a federal district court is tasked with determining whether a defendant’s prior offenses were “committed on occasions different from one another” as that phrase is used in the ACCA, is the court restricted to using only the evi-dentiary sources approved in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2148, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)? We think both the legal and policy rationales behind Taylor and Shepard’s evidentiary restrictions compel an affirmative answer. This conclusion, coupled with our finding that the district court sentenced King under the ACCA using evidence not approved by Taylor and Shepard, requires us to VACATE the district court’s judgment and REMAND for resentencing.

I.

A.

In 2002, King was convicted in Ohio courts for committing a number of similar crimes on the same day.

Three indictments led to King’s convictions. One asserted that King (and another) had robbed and kidnapped one Arthur Lundberg “on or about” February 18, 2002. A second said that King (and another) had robbed and kidnapped one David Mariano — also on or about February 18, 2002. And the third indictment charged that King (along with three others) had committed aggravated robbery against five victims — again on or about February 18, 2002. None of the indictments alleged the times or locations of the offenses.

But three bills of particulars did. The one filed in the Lundberg case stated, in relevant part, “the Prosecuting Attorney says that the State of Ohio will prove [at trial], the following: That on or about February 18, 2002 at approximately 1900 hours, and at the location of 740 Euclid Avenue, in the City of Cleveland, Ohio,” King had kidnapped and robbed Lundberg (or tried to). Similarly, the bill of particulars filed in the Mariano case asserted that Ohio would prove that King’s criminal conduct had occurred “on or about February 18, 2002, at approximately 7:27 p.m., and at the location of 1000 Barn Court, in the City of Cleveland, Ohio.” And in the case charging King with five counts of aggravated robbery, the bill claimed that Ohio would prove that the offenses had occurred “on or about February 18, 2002 at approximately 7:50 p.m., and at the location of East 21st and Euclid, in the City of Cleveland, Ohio.” In short, together, the bills of particulars indicate that the offenses charged in each of the three indictments occurred about 25 minutes apart and that King committed them at different locations in Cleveland.

King eventually pleaded guilty to some charges (or amended charges). Apparently due to Ohio’s record-keeping practices, transcripts of King’s plea colloquies are no longer available. And while each guilty plea was memorialized in a “Journal Entry,” like the indictments, none of the journal entries provide the alleged times or locations of King’s offenses.

B.

About twelve years later, in February 2015, King pleaded guilty in federal district court to possessing a firearm with a felony conviction in violation of 18 U.S.C. § 922(g)(1). Although that conviction carries a maximum sentence of ten years in prison, see 18 U.S.C. § 924(a)(2), given King’s 2002 convictions, the Government sought a fifteen-year mandatory minimum under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The ACCA states in relevant part, “In the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony ... committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).

King disputed the Government’s claim that he was subject to the ACCA’s enhancement. Although conceding that his 2002 convictions were “violent felon[ies]” under the- ACCA, King claimed that the tests established by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), excluded the bills of particulars from the evidence the court was permitted to rely on in determining whether his 2002 offenses were “committed on occasions different from one another.” And, argued King, reviewing the appropriate documents revealed only that his prior offenses took place on the same day, and the Government thus failed to show that his felonies were committed on different occasions.

The Government’s argument to the district court was three tiered. The Government first took the position that Taylor and Shepard’s restrictions on the evidence that a sentencing court may consider apply only when the court determines whether the elements of a prior conviction match the elements of an ACCA predicate. In support of this position, the Government relied ón a footnote in United States v. Thomas, where we indicated that Taylor’s evidentiary limitations (Shepard had not yet been decided) did not apply to the .different-occasions inquiry. See 211 F.3d 316, 318 n.3 (6th Cir. 2000). The Government next argued that even if the eviden-tiary restrictions of Taylor and Shepard extend to the different-occasions inquiry, the bills of particulars filed in the 2002 cases came within those restrictions. Lastly, as an (admittedly weaker) alternative, the Government asserted that based on only the indictments and journal entries, it was still more likely than not that King’s prior offenses had occurred on different occasions.

The district court agreed with the Government’s first argument and so it did not reach the other two. In particular, although recognizing that we previously questioned Thomas’s viability given Shepard, see United States v. Barbour, 750 F.3d 535, 543 n.l (6th Cir. 2014), the district court believed that Thomas remained binding precedent. It thus relied on the bills of particulars, concluded that King’s 2002 offenses were “committed on occasions different from one another,” and sentenced King to fifteen years and eight months in prison under the ACCA. Regarding the evidence that may be considered in making the different-occasions determination, the district court remarked, “the issue is absolutely teed up for the Sixth Circuit. And now it’s a matter that the Sixth Circuit has to decide.”

II.

We review de novo the issue of what evidence a court may rely on when deciding whether prior offenses were “committed on occasions different from one another” as that phrase is used in the ACCA. See United States v. Singer, 782 F.3d 270, 279 (6th Cir. 2015); United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997).

III.

A.

King first claims that a district court, in deciding whether a defendant’s prior offenses were “committed on occasions different from one another,” may consult only the evidentiary sources approved by the Supreme Court in Taylor and Shepard. We think that the reasoning of those decisions, especially in light of subsequent Supreme Court decisions, shows that King is correct.

In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court set out the approach that courts must use in determining whether a prior conviction qualifies as an ACCA predicate, such as “burglary, arson, or extortion.” The Court said that federal district courts are generally to employ a “formal categorical approach”: ask whether ‘the elements of the prior offense match the elements of the “generic” version of the crime listed in the ACCA. Id. at 600, 110 S.Ct. 2143. The Court noted, however, that it may be permissible for a sentencing court to consider information beyond the statutory definition of the prior offense where that definition has alternative elements and, if the defendant was convicted of one alternative, the conviction would count as an ACCA predicate, but if another, it would not. See id. at 602, 110 S.Ct. 2143. “For example,” hypothesized the Court, because generic burglary in the ACCA covered only entry into a building, if a prior conviction was for violating’ a burglary statute covering entry into a building or a vehicle, a court applying the ACCA could look to the “indictment or information and jury instructions” filed in the prior case to see if “the jury necessarily had to find an entry of a building to convict.” Id. This method of consulting limited evidence to determine which of several alternative elements underlies a prior conviction is now known as the “modified categorical approach.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013).

More important to resolving this appeal is why the Supreme Court thought that a categorical approach, permitting a sentencing court to at most determine what “the jury necessarily had to find ... to convict,” Taylor, 495 U.S. at 602, 110 S.Ct. 2143, was proper. One reason, the Court explained, was the legislative history of the ACCA: “If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant’s prior offenses, surely this would have been mentioned somewhere in the legislative history.” Id. at 601, 110 S.Ct. 2143. Another reason for not allowing sentencing courts to engage in a factual inquiry was the text of the ACCA: by referring to the defendant’s “previous convictions” for violent felonies instead of, say, the defendant’s “previous commission” of violent felonies, Congress had indicated that it was not the conduct leading to the conviction but the conviction itself that mattered to the ACCA-predicate determination. Id. at 600,110 S.Ct. 2143.

In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court adhered to these rationales. At issue was whether a prior conviction for violating a state law criminalizing burglary of a “building, ship, vessel, or vehicle” matched the ACCA’s generic-burglary predicate. Id. at 16, 125 S.Ct. 1254; id. at 31, 125 S.Ct. 1254 (O’Connor, J., dissenting). Because the defendant’s prior state conviction was the result of a plea, a court deciding if the ACCA applied could not (as Taylor had suggested) consult jury instructions in the state case to see if the defendant had been convicted of entry into a building as generic burglary requires. See id. at 17, 125 S.Ct. 1254 (majority opinion). The Government took the position that the federal sentencing court could look to an uncontroverted police report alleging that the defendant had entered a building. Id. Although the report was reliable, the Supreme Court rejected that position, explaining that the Government’s “wider evidentiary cast,” id. at 21, 125 S.Ct. 1254, was a call to “ease away” from Taylor and its respect for “congressional intent and avoidance of collateral trials,” id. at 23, 125 S.Ct. 1254. The Court instead held that, where a prior conviction for violating a statute with alternative elements was the result of a plea, a court answering the ACCA-predicate question could attempt to identify the element underlying the conviction by consulting the plea-colloquy transcript, the written plea agreement, or “a record of comparable findings of fact adopted by the defendant upon entering the plea.” Id. at 20, 125 S.Ct. 1254. With this information, the Court explained, “a later court could generally tell whether the plea had ‘necessarily’ rested on the fact identifying the burglary” as generic burglary, “just as” jury instructions would do in a tried case or a “charging document would do in any sort of case.” Id. at 21, 125 S.Ct. 1254 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

A four-justice plurality thought that the Constitution provided an additional reason for requiring that the ambiguous element underlying a prior conviction in a pleaded case be clarified by a defendant through admission rather than determined by a judge applying the ACCA. Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254. The plurality noted that since Taylor, the Court had held in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the Constitution requires a jury, not a judge, to find any fact subjecting the defendant to a greater statutory penalty (with the exception that a judge could find the fact of conviction). See Shepard, 544 U.S. at 24, 125 S.Ct. 1254. The plurality was concerned that if a court answered the ACCA-predicate question by finding facts not admitted by the defendant, the court might very well abridge the defendant’s Sixth and Fourteenth Amendment rights. See id. at 25-26, 125 S.Ct. 1254; cf. id. at 28, 125 S.Ct. 1254 (Thomas, J., concurring in part and in the judgment) (explaining that “broadening the evidence judges may consider when finding facts under Taylor ... would not give rise to constitutional doubt, as the plurality believes,” but instead “constitutional error”).

Since Shepard, a majority of the Supreme Court has recognized this constitutional concern. In Descamps v. United States, the Court explained that if a sentencing court were to answer the ACCA-predicate question by “try[ing] to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct,” there would be friction with the Sixth Amendment’s promise that “a jury— not a sentencing court — will find such facts, unanimously and beyond a reasonable doubt.” — U.S. -, 133 S.Ct. 2276, 2288, 186 L.Ed.2d 438 (2013). And just last year the Court reiterated, “a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense.... He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2252, 195 L.Ed.2d 604 (2016).

In sum, the Supreme Court has restricted federal district courts tasked with answering the ACCA-predicate question to first the statutory definition of the prior offense, and, if that definition is phrased in the alternative, to limited evidence, because of the ACCA’s text and legislative history and because of likely conflict with the Constitution were the evidentiary restrictions absent.

We think that the legislative history and constitutional concerns apply with equal force when a sentencing court undertakes the different-occasions inquiry. Congress’s desire to avoid mini-trials almost assuredly covers not only proceedings to answer the ACCA-predicate question but also proceedings to answer the different-occasions question. Indeed, because facts relevant to the different-occasions inquiry, such as the time and location of the prior offense, are most often not elements of the offense, a proceeding to answer the different-occasions question may well be more extensive than one to answer the ACCA-predicate question. See United States v. Dantzler, 771 F.3d 137, 143-44 (2d Cir. 2014). Notwithstanding this practical concern, we acknowledge that there is some tension between the text and the legislative history. We do not here have the textual hook that Taylor used. As opposed to the ACCA’s language pertaining to the predicate question, its different-occasions language does focus on the defendant’s conduct: it asks courts to determine whether prior offenses were “committed” on different occasions. See 18 U.S.C. § 924(e)(1).

What most convinces us, then, that Taylor and Shepard’s, evidentiary restrictions extend to the different-occasions question is the Supreme Court’s expressed concern over a judge finding facts that become the basis of an ACCA enhancement. “Under ACCA, the court’s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction.” Des-camps, 133 S.Ct. at 2288. Just so with the different-occasions question: a sentencing court’s finding that prior violent felonies were “committed on occasions different from one another” can be as dispositive of an ACCA enhancement as finding that a conviction is a third ACCA predicate. (Indeed, this is that case.) So if a sentencing judge, in answering the different-occasions question, became the trier of fact regarding when and where the prior offenses occurred, that procedure would raise the very constitutional concern identified in Shepard and reaffirmed in Descamps and Mathis.

The Taylor-Shepard approach quells this constitutional concern. Under the framework of those cases, a judge is restricted to those facts that “necessarily” underlie the prior conviction, Shepard, 544 U.S. at 20-21, 125 S.Ct. 1254, i.e., those facts necessarily determined beyond a reasonable doubt by the trier of fact or necessarily admitted by the defendant, see Des-camps, 133 S.Ct. at 2288. Thus, under Taylor and Shepard, a sentencing judge is not finding facts in the first instance, but merely identifying findings or admissions that were previously made under constitutional safeguards.

Accordingly, we hold that Taylor and Shepard’s limitations on the evidentia-ry sources and information that a federal district court may consider in determining whether a prior conviction is a predicate under the ACCA also apply when the court determines whether prior offenses were “committed on occasions different from one another” under the ACCA.

Not only does Supreme Court precedent compel this conclusion, but our holding is consistent with that of our sister circuits (save, perhaps, one). See United States v. Dantzler, 771 F.3d 137, 139 (2d Cir. 2014); Kirkland v. United States, 687 F.3d 878, 886 & n.9 (7th Cir. 2012); United States v. Boykin, 669 F.3d 467, 472 (4th Cir. 2012); United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010); United States v. Thomas, 572 F.3d 945, 950 (D.C. Cir. 2009); United States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006); United States v. Harris, 447 F.3d 1300, 1305 (10th Cir. 2006); United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir. 2005). But see United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (“[W]e have rejected similar Sixth Amendment arguments challenging the information the district court considers when determining the specific dates on which the offenses occurred.” (citing United States v. Richardson, 483 Fed.Appx. 302, 305 (8th Cir. 2012))); Richardson, 483 Fed.Appx. at 305 & n.3 (explaining that Shepard’s evidentiary restrictions are not applicable in determining whether offenses were committed on different occasions).

The Government, citing United States v. Thomas, 211 F.3d 316 (6th Cir. 2000), and United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), argues that our published precedents are contrary to what we have just concluded. We disagree. It is true that in Thomas we (foot)noted that Taylor's framework did not extend to the different-occasions question. See 211 F.3d at 318 n.3. And it is also true that published precedent generally binds later panels. United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) abrogated on other grounds by Bedeles v. United States, — U.S. -, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017).

But we do not adhere to published precedent when “an intervening decision of the United States Supreme Court requires modification of our prior decision.” Id. And Shepard fits the bill. That post-Thomas decision did more than extend Taylor’s categorical approach to situations where prior convictions rested on guilty pleas. When read in light of Descamps (and Mathis), Shepard harnessed Apprendi to back Taylor’s categorical approach. Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254 (plurality opinion); Descamps, 133 S.Ct. at 2288 (discussing constitutional implications of non-categorical approach and relying on Shepard plurality opinion). Indeed, we have previously suggested that Thomas was “appropriate for reconsideration” given “Shepard and its progeny.” United States v. Barbour, 750 F.3d 535, 543 n.1 (6th Cir. 2014). Taking our prior advice, we find that, to the extent Thomas conflicts with the limitations Shepard sets on determining an ACCA enhancement — whether on the predicate-conviction or different-occasions question — Thomas is abrogated by Supreme Court precedent.

As for Burgin, which also predated Shepard, there we answered a related but different question than the one presented here. In Burgin we held that, consistent with Apprendi, a sentencing judge may answer the question of whether prior offenses were “committed on occasions different from one another.” See 388 F.3d at 183 (“[T]he issue before the Court is whether this ‘different occasions’ language is a fact, ‘other than the fact of a prior conviction,’ which is subject to the protections outlined in Apprendi.”); see also id. at 184, 186. And to the extent that answering the different-occasions question requires a sentencing judge to identify the who, when, and where of the prior offenses, nothing we say here precludes a judge from doing so. We only hold that in identifying those facts, a sentencing judge is constrained to reviewing evidence approved by Taylor and Shepard.

The Government also argues that the “different[-]occasions inquiry requires an analysis of facts” while the “sole” purpose of the Taylor-Shepard framework is to determine elements of the prior offense.

We agree with the Government that the function of the categorical approach and its modified helper is to determine which elements, not which facts, underlie a prior conviction. But identifying the function of the categorical approach does not answer the critical question: why has the Supreme Court prohibited courts applying the ACCA from considering all but a limited class of documents when identifying elements? As we have explained, a substantial part of the answer lies in the need to avoid mini-trials, with the attendant logistical concerns and constitutional risks. And, as we have said, that concern also warrants limiting district courts answering the different-occasions question to those sources approved by Taylor and Shepard.

The Government also raises a practical argument. It asks, how can a district court answer the different-occasions question if it is “blinded” to the evidence it needs to make that determination by Taylor and Shepard’s restrictions?

We recognize that in some cases Taylor and Shepard evidence will not be sufficient for a district court to determine that prior offenses occurred on different occasions while a broader swath of evidence would permit the determination. But a similar practical argument was raised and rejected in Shepard. There, it was argued that a police report, “free from any inconsistent, competing evidence,” would have reliably shown that the defendant had burglarized a building (as the ACCA’s burglary predicate required), whereas, absent the report, it was (likely) impossible to identify which of several alternatives was the basis of the prior conviction. See Shepard, 544 U.S. at 17-18, 22, 125 S.Ct. 1254; United States v. Medina-Almaguer, 559 F.3d 420, 425 (6th Cir. 2009). This concern, the Court explained, was not “sufficient justification for upsetting precedent,” particularly as Tay-lors evidentiary limitation “was the heart of [that] decision.” See id. at 23, 125 S.Ct. 1254. The Court further noted that “time has enhanced even the usual precedential force” of Taylor because in the intervening fifteen years, Congress had made no change to the statute. Id. In reaching our decision based on the same reasoning, we likewise respect precedent.

Finally, at oral argument, the Government relied heavily on Nijhawan v. Holder, 577 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), to argue that it would be improper to extend Taylor and Shepard’s restrictions to the different-occasions inquiry.

Nijhawan sheds little light on the issue before us. There, the Supreme Court found that an immigration judge was not limited to Taylor1 s categorical approach in determining that an alien had a prior felony conviction involving fraud or deceit causing a $10,000 or more loss. Id. at 32, 129 S.Ct. 2294. But, significantly, “a deportation proceeding is á civil proceeding,” id. at 42, 129 S.Ct. 2294, §o the Sixth and Fourteenth Amendment concerns that animate our decision were not present in Nijhawan. Indeed, in response to the argument that Taylor and Shepard should apply because the immigration judge’s loss-amount determination could lead to an increased sentence in a later criminal proceeding, the Government conceded that it would have to prove the loss amount beyond a reasonable doubt in the later criminal case. Id. at 40,129 S.Ct. 2294. And that concession “eliminat[ed] any constitutional concern.” Id.

In short, we find that in determining whether prior offenses were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1), a sentencing court may only rely on the evidentiary sources and information approved by the Supreme Court in Taylor and Shepard.

B.

Remaining is to apply this rule to the facts of this case: are the times and locations recited in the bills of particulars filed in King’s 2002 cases within the scope of information and sources approved by the Supreme Court in Taylor and ShepardP. We think not.

To start with, the documents at issue are not in the list of Shepard-approved materials unless they are properly considered “charging documents” or “comparable judicial sources” as those terms are used in Shepard, 544 U.S. at 26, 125 S.Ct. 1254. We can also employ the constitutional concerns espoused in Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, to guide our analysis of whether the Ohio bills of particulars are properly considered Shepard-approved evidence. As we explained, if a sentencing judge were the first to determine that allegations by the state prosecutor in the three bills of particulars were facts, the very constitutional concern identified in Shepard, Descamps, and Mathis would arise. So we need only decide whether King necessarily admitted the times or locations alleged in the bills (thereby eliminating the constitutional concern).

It is improper to infer that King necessarily admitted the when and where of the 2002 offenses as set forth in the bills of particulars when he pleaded guilty. To start, there are no transcripts of King’s plea colloquies or copies of written plea agreements reflecting any such admissions. And the time and place of King’s robberies or attempted robberies were not elements of those offenses. The statutory language corresponding to King’s convictions makes this apparent. See Ohio Rev. Code § 2911.02(a)(1) (West 2002) (“No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall ... [h]ave a deadly weapon on or about the offender’s person or under the offender’s control.”); Id. § 2911.02(a)(3) (“No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall ... [u]se or threaten the immediate use of force against another.”). Notably, too, none of the three indictments recite the time and place of the offenses, and no one disputes that King could have pled guilty to the charges in the indictments without requesting the bills of particulars. It is thus improper to infer that King necessarily admitted the time or place of his 2002 offenses. Descamps, 133 S.Ct. at 2288 (“[T]he only facts [a sentencing] court can be sure the jury [found unanimously and beyond a reasonable doubt] are those constituting elements of the offense — as distinct from amplifying but legally extraneous circumstances.”); see also Mathis, 136 S.Ct. at 2248. That finding, coupled with today’s holding, leads to the conclusion that the alleged times and locations as recited in the bills of particulars were not information the district court was permitted to consider in enhancing King’s sentence under the ACCA. See Descamps, 133 S.Ct. at 2288 (“[A]s Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.”).

The Government implies that, in limiting a court applying the ACCA to what King necessarily admitted, we apply Shepard’s restrictions too strictly. It stresses that in Shepard, the Supreme Court stated that courts making the ACCA-predicate determination may consider “the terms of the charging document” (which, says the Government, includes bills of particulars).

The Government is correct about what Shepard said. See 544 U.S. at 26, 125 S.Ct. 1254. But to hold that a court answering the different-occasions question can consider anything that might be classified as a charging document would be to unmoor Shepard’s reference to “charging documents” from its reasoning. The list of approved documents was compiled with a focus on what the defendant “necessarily” admitted in pleading guilty — not the other way around. Indeed, Shepard made clear that the task was to identify whether a prior conviction “necessarily” rested on the elements of the generic offense:

We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.

544 U.S. at 26, 125 S.Ct. 1254 (emphases added); see also id. at 20-21, 125 S.Ct. 1254 (explaining that with a plea-colloquy transcript, the written plea agreement, or a comparable record, “a later court could generally tell whether the plea had ‘necessarily rested on the fact identifying the burglary as generic”).

But, one might argue, if the Supreme Court had truly wanted to limit courts making the ACCA-predicate determination to those facts necessarily admitted by the defendant or necessarily found by a jury, then why reference “charging documents” generally, rather than the necessary facts or elements within the charging documents? The answer, we think, lies in the issue presented to the Court in Shepard. Insofar as a sentencing court’s task is to identify which elements underlie a prior conviction, the terms of the charging document will always be appropriate to consider: a conviction necessarily means the elements — but not “superfluous facts,” Descamps, 133 S.Ct. at 2288 — charged in the indictment were found by a jury or admitted by the defendant.

This understanding of Shepard is not new. We have previously read Shepard to permit courts to consider only those facts that a defendant necessarily admitted in pleading guilty. See United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th Cir. 2009) (“[Shepard] requires a judicial record that identifies the facts a defendant ‘necessarily admitted’ in entering a guilty plea — as Shepard itself demonstrates.”). And the Second Circuit also read Shepard this way in finding that a bill of particulars is not Shepard-approved evidence. See United States v. Rosa, 507 F.3d 142, 154 (2d Cir. 2007) (“We are not convinced, notwithstanding the Shepard Court’s reference to ‘charging document[s]’ as potentially reliable indicia of the nature of prior convictions, that the Bill is therefore ‘Shepard evidence’ for our purposes.” (alteration in original)).

The Government implies that we interpreted Shepard differently in United States v. Jones, 453 F.3d 777 (6th Cir. 2006). It is true that in Jones we emphasized the “reliability” of the document: “Complaints are judicial documents, filed under oath and submitted in furtherance of formal prosecution. They bear, accordingly, substantially greater indicia of reliability than mere police reports, which are not filed in court, are not sworn to, and are developed for an investigatory purpose.” Id. at 780.

To the extent that Jones might be read as making the reliability of the complaint dispositive of whether it was a Shepard-approved source, other circuits disagree. See Rosa, 507 F.3d at 155 (“[W]e do not think, as the Jones court seemed to indicate, that the question before us is whether the unsworn Bill of Particulars bears indicia of reliability. The dispositive question is whether the plea necessarily rested on the fact that the crime to which [the defendant] pleaded involved the use or carrying of a firearm.” (alterations, internal quotation marks, and citation omitted)).

We read Jones differently. Jones relied on our decision in United States v. Kappell, 418 F.3d 550, 560 (6th Cir. 2005), to conclude that a complaint may be considered under the Shepard framework. Jones, 453 F.3d at 780. This is significant because the defendant in Kappell had “stipulated that the facts recited in the complaint were correct for purposes of entering his plea.” 418 F.3d at 558. Thus, Kappell, and therefore Jones, suggests that a district court answering the different-occasions question may rely on facts in a complaint — if those facts were later admitted by the defendant. Here, there are no such admissions in the record as to the times or locations of the offenses.

Further, Jones does not answer the question before us because Jones found that a Tennessee criminal complaint is a Shepard-approved source, whereas this case involves Ohio bills of particulars. The distinction matters at least because the Government has previously conceded that an Ohio bill of particulars is not proper for consideration under Shepard. See United States v. Stafford, 721 F.3d 380, 397 (6th Cir. 2013).

In sum, King did not necessarily admit the times and locations asserted in the three bills of particulars when he pleaded guilty in 2002. As such, we find that the district court erred in considering the times and locations asserted in the bills in determining that King’s prior offenses were' committed on occasions different from one another.

c.

This leaves what the Government has indicated is its weakest argument: that even when limited to the information in the indictments and the journal entries, it is more likely than not that King’s offenses were committed on different occasions. Given that King’s convictions involve seven victims (Lundberg, Mariano, and five from the aggravated-robbery case), the Government argues as follows: “[njothing in the record in any way suggests that King robbed all [seven] victims simultaneously, attempting and failing with some, succeeding with others, working alongside different accomplices depending on the victim, and using a deadly weapon only against [five] of them.” Thus, the Government concludes, “[i]t strains credulity and defies common sense to read even the limited version of the record in that manner.”

We disagree. The Government’s argument ignores the fact that the indictments in the Lundberg and the Mariano cases charged the same two defendants with committing the same two offenses on the same day. In other words, those two indictments are indistinguishable save for the victim. And King was not charged and convicted of the Lundberg and the Mariano offenses in two different venues, a fact that might indicate that those offenses occurred separately. See State v. Hampton, 134 Ohio St.3d 447, 983 N.E.2d 324, 328-29 (2012) (providing that, under Ohio law, venue must be proven beyond a reasonable doubt). Thus, even if the Government is correct that the offenses charged in the five-victim case occurred on an occasion different from the Lundberg .and Mariano offenses, nothing that can be considered under Shepard permits the Lundberg and Mariano offenses to be deemed separate. See Kirkland, 687 F.3d at 887 (“[W]e agree with the district court that the ‘factually sparse’ record sheds little light on whether the 1985 offenses occurred on the same occasion. The charging informations for the burglary and robbery establish that Kirkland and his co-defendants committed both offenses on the same day, but there is no information as to the timing or sequence of events.”). Similarly, no Shepard-approved evidence shows that the offenses charged in the five-victim case did not happen at the same time in the same place. At most then, the Government can show that, on February 18, 2002, King committed violent felonies on two different occasions. The ACCA’s enhancement, however, requires three. See 18 U.S.C. § 924(e)(1).

IV.

For the foregoing reasons, we hold that a federal district court deciding whether prior offenses were “committed on occasions different from one another” as that phrase is used in the Armed Career Criminal Act is limited to Shepard-approved evi-dentiary sources that contain facts necessarily found beyond a reasonable doubt by the trier of fact or necessarily admitted by the defendant. Under that rule, it was error for the district court to consider the times and locations alleged in King’s bills of particulars. And the Government failed to otherwise meet its burden to show that the offenses were committed on different occasions. We thus VACATE the district court’s judgment and REMAND for resen-tencing consistent with this opinion.

      . In attempting to put distance between Jones and the cases before them involving a predicate-offense determination, the panels in United States v. Wells, 473 F.3d 640, 647 n.5 (6th Cir. 2007), and Medina-Almaguer, 559 F.3d at 424, confined Jones to the different-occasions inquiry without explaining why the constitutional concerns present in making the predicate-offense determination would not apply to the different-occasions inquiry.