U.S. v. Boykin, No. 11-4061
Decided Feb. 28, 2012
Walter Lee Boykin, Jr. pawned a rifle at a gun shop in Greensboro, North Carolina. When he later tried twice to redeem the firearm, he lied on the ATF form by asserting that he had never been convicted of a felony. He was arrested and pleaded guilty to one count of being a felon in possession of a firearm and two counts of making false statements to a firearms dealer. His sentence range would have been 37–46 months but the district court used information on the presentence report (PSR) to find he had committed previous violent felonies and was subject to a sentence enhancement under the Armed Career Criminal Act (ACCA).
One previous conviction for second-degree murder was uncontested. However, a later conviction for second-degree murder and assault with a deadly weapon were listed on the PSR as occurring on separate occasions, allowing them to be counted as separate ACCA predicate offenses. The facts of the offenses, however, demonstrated that they occurred during the same criminal act. As a result of applying the ACCA, Boykin’s sentence was increased to 180 months.
On appeal, the Fourth Circuit vacated the sentence and remanded for further proceedings. The court recognized that Boykin had failed to properly object to using the PSR to determine his sentence. Nonetheless, using the PSR’s statement of facts regarding the second incident to determine they constituted separate offenses was plain error. While using a PSR to find ACCA predicate offenses is not error, doing so without ensuring that the report used “the earmarks of derivation from Shepard-approved sources” constituted a plain error that resulted in a “miscarriage of justice.”
-C. Alexander Cable