A firearm-related sentence that was enhanced by prior felonies has been affirmed, despite subsequent developments in the law that the defendant argued made his sentence inappropriate.
Steven Dotson’s troubles date back to 2011, when he was indicted for possession of a firearm following a prior felony conviction. His indictment listed six prior felony convictions, three of which the probation office identified as qualifying Dotson for the enhanced mandatory minimum sentence of 15 years’ imprisonment under the Armed Career Criminal Act. He was eventually convicted at a bench trial.
However, Dotson’s pre-sentence report was silent as to whether the other three convictions qualified for the mandatory minimum, and no questions were raised about that issue at sentencing. The district court ultimately sentenced Dotson to 15 years and eight months, and the 7th Circuit affirmed.
When Dotson later sought a reduced sentence, he argued his 1993 burglary conviction no longer qualified as an ACCA predicate. But Dotson did not understand that the Indiana Southern District Court never considered or found that conviction to qualify as a violent felony.
Similarly, in ruling on the motion, the district court started from the express, but mistaken, premise that it had previously “found” at sentencing that Dotson “had three or more prior convictions that qualified as ‘violent felonies’ [or serious drug offenses],” including armed robbery, dealing in cocaine, attempted robbery and burglary.
Later, in an unrelated case, the 7th Circuit Court held that an Indiana conviction for attempted robbery is not a “crime of violence” within the meaning of ACCA in United States v. D.D.B., 903 F.3d 684, 692–93 (7th Cir. 2018). Dotson was granted a certificate of appealability in light of D.D.B.
“Our decision in D.D.B. meant that Dotson’s 2007 Indiana attempted robbery conviction (#3) no longer qualifies as an ACCA predicate,” Circuit Judge Michael Scudder wrote for the 7th Circuit. “From there, however, the government points to our decision in United States v. Perry, 862 F.3d 620 (7th Cir. 2017), where we held that Indiana burglary qualifies as a violent felony under ACCA, and urges us to rely upon — or, more accurately, to substitute — Dotson’s 1993 Indiana burglary conviction (#4) to sustain his sentence as an armed career criminal.”
Then, looking to Light v. Caraway, 761 F.3d 809 (7th Cir. 2014), the 7th Circuit concluded it could not answer in Dotson’s favor the question of whether fundamental unfairness arising from a lack of notice would befall him by allowing his 1993 burglary conviction to sustain his sentence as an armed career criminal.
First, the 7th Circuit noted the indictment had informed Dotson that the government may rely on his burglary conviction to show he had three qualifying ACCA predicates and would, thus, face an enhanced sentence upon a conviction. Then, Dotson submitted at least four filings reflecting the mistaken belief that the district court had counted the burglary conviction as a qualifying ACCA predicate at the original sentencing. Further, Dotson saw his appointed counsel make the same mistake.
“The punchline, then, is that these circumstances are far afield from a scenario where a defendant may be able to make a credible showing of undue surprise from allowing the substitution of a particular felony conviction not relied upon at sentencing to save an ACCA sentence otherwise called into question by subsequent developments in the law. Dotson more than knew of this possibility: he and his counsel represented it as reality in several legal filings in the course of these § 2255 proceedings. In these circumstances, we see no unfairness in leaving intact Dotson’s sentence as an armed career criminal,” the 7th Circuit wrote.
On a final note, the 7th Circuit stated that it, too, has worries about the consequences of a holding that risks producing expansive litigation at sentencing over whether “each and every prior felony in a defendant’s criminal history constitutes a qualifying ACCA predicate.”
“The law in this area, at the risk of great understatement, is dizzyingly complex,” the panel wrote. “The last outcome we want to risk is sentencing hearings turning into full-blown, prolonged, and extraordinarily difficult exercises over questions where the answers may never matter. Judicial resources warrant better investment.”
The case is Steven Dotson v. United States of America, 18-1701.