United States v. Joshua Dudley (11th Cir. July 2021)

The Federal Docket

August 18, 2021

Sentencing – Statements from the Government’s factual basis during a prior guilty plea hearing are implicitly adopted by the defendant and require no confirmation to be sufficient for purposes of ACCA enhancement.

Joshua Dudley pleaded guilty under 18 U.S.C. § 922(g) to possessing a firearm as a convicted felon. His written plea agreement contained no details regarding his past felony convictions. Dudley had previously pleaded guilty to several unrelated felony offenses under Alabama law on the same day. The presentence investigation report (“PSR”) relied solely on the information from the factual proffer made at the Alabama plea colloquy to find that Dudley had at least three prior violent felony convictions from three different occasions and was thus subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).

At his sentencing hearing, Dudley objected to the PSR, arguing that the record did not contain sufficient information to establish that his prior convictions had in fact occurred on occasions different from one another. As is common in Alabama, the indictments from his charges did not allege specific dates. The only source for those specific dates was the Government’s unconfirmed statements from the proffer, and there was nothing to indicate that Dudley ever expressly agreed to the factual proffer in the Alabama colloquy.

The District Court followed the recommendations of the PSR over Dudley’s objection and sentenced him to 215 months in prison—which was within the guideline range based on the ACCA enhancement.

Reviewing the case de novo, the 11th Circuit upheld Dudley’s sentence. Accepting arguendo Dudley’s interpretation of Shepard that statements from a plea colloquy must be confirmed by the defendant for them to be useable in the context of the ACCA—the Court nevertheless found Dudley’s Alabama plea colloquy acceptable. Sentencing courts can determine the existence, nature, and timeline of prior convictions based on their own factual findings. The Court concluded that Dudley’s failure to object or add to the facts in the proffer indicates implicit agreement with them and held that implicit confirmation is consistent with Shepard.

Dudley also argued that his conviction should be overturned entirely under Rehaif. The 11th Circuit reviewed that claim for plain error and found none. Reheif defects are non-jurisdictional. Dudley made no claim that he would not have pleaded guilty had he known that the Government would have had to prove knowledge of his status as a felon, but the Court held that the Government would have easily been able to do so based on the evidence in the record.

Judge Newsom joined the opinion in part but dissented to the key holding—that “implicit” confirmation is sufficient under Shepard.

Appeal from the Northern District of Alabama
Opinion by Branch, joined by Ray (by designation from the Northern District of Georgia), joined in part by Newsom
Dissent by Newsom

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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