Shepard Documents and Forfeiture in Career-Offender Sentencing: United States v. Payo

Introduction

This commentary examines the Third Circuit’s decision in United States v. David Payo (No. 19-1631, April 28, 2025), which clarifies two critical points in career-offender Guidelines practice: (1) district courts must confine themselves to Shepard documents when using the modified categorical approach, and (2) courts may not resurrect or adopt forfeited arguments or rely on non-Shepard materials to impose sentencing enhancements. The case arose from Payo’s guilty plea to two federal bank‐robbery counts, followed by a sentencing enhancement under U.S.S.G. § 4B1.1 based on three prior robbery convictions. Payo challenged whether two Pennsylvania convictions qualified as “crimes of violence.” The Third Circuit vacated his sentence and remanded.

Summary of the Judgment

The District Court applied a career-offender enhancement based on three prior robberies—2001 federal, 2008 Pennsylvania, and 2010 Pennsylvania convictions.
Payo argued the 2008 and 2010 convictions did not qualify as “crimes of violence.”
The District Court allowed the Government several opportunities to produce sentencing materials, then relied on a state‐court docket sheet (not a Shepard document) to classify the 2008 conviction under § 3701(a)(1)(ii), and on a new argument for the 2010 conviction under the enumerated‐offenses clause.
The Third Circuit held the court had no authority to consider non‐Shepard materials and improperly excused the Government’s forfeitures of key arguments.
The court vacated the sentence and remanded for a fresh determination—using only the Shepard documents the Government had originally produced—whether the 2008 conviction falls under § 3701(a)(1)(i) or (ii).

Analysis

Precedents Cited

Shepard v. United States (544 U.S. 13, 2005): Restricted materials to determine which statutory element supported a prior conviction to a narrow set of judicial records (charging papers, plea agreement, plea colloquy transcript, explicit judicial findings).
Mathis v. United States (579 U.S. 500, 2016): Emphasized the “demand for certainty” in categorical analyses; Shepard documents must “speak plainly.”
United States v. Ramos (892 F.3d 599, 3d Cir. 2018): Outlined the three-step framework—(1) divisibility, (2) modified categorical approach, (3) categorical match.
United States v. Henderson (80 F.4th 207, 3d Cir. 2023): Held that Pennsylvania robbery under § 3701(a)(1)(ii) qualifies under the Sentencing Guidelines’ elements clause.
United States v. Dowdell (70 F.4th 134, 3d Cir. 2023): Warned against district courts rescuing forfeited prosecutorial arguments—“forfeiture has greater consequences for appellants than for appellees,” and courts must respect the party-presentation principle and separation of powers.
United States v. Dickler (64 F.3d 818, 3d Cir. 1995): Stated the Government “should not normally be afforded ‘a second bite at the apple’” when it bears the burden of proving a sentencing enhancement.

Legal Reasoning

The Third Circuit’s opinion proceeds in three main steps:

Shepard Document Requirement. In a modified categorical analysis, courts must confine themselves to Shepard documents—records with the “conclusive significance of a prior judicial record.” Docket sheets generated by third-party data systems are not sufficiently reliable and may contain disclaimers of accuracy. The District Court erred by relying on such a docket sheet to decide whether Payo’s 2008 conviction fell under § 3701(a)(1)(i) or (ii).
Government Arguments and Forfeiture. The Government bears the burden of proving sentencing enhancements. Once it chooses its record, its case must stand or fall on that record; the court cannot advance or accept new or forfeited arguments. Here, the Government never timely argued that § 3701(a)(1)(iv) qualified under the enumerated‐offenses clause, and the District Court’s decision to adopt that forfeited theory violated party-presentation and separation-of-powers norms.
Remand Remedy. Because the only live issue is whether the record the Government actually produced shows Payo pleaded to subsection (i) or (ii), the Third Circuit vacated the sentence and remanded for the District Court to resolve that question—using only the original Shepard documents. If subsection (ii) is established, the enhancement stands; otherwise it falls.

Impact on Future Cases

This decision underscores several enduring principles:

District courts must use only Shepard documents when applying the modified categorical approach to identify the statutory subsections underpinning past convictions.
The Government bears the burden of proof for sentencing enhancements—and once it elects the record, it cannot request the court to consider non-produced or forfeited materials to bolster its case.
Categorical approach disputes are distinct from ordinary sentencing-fact hearings, where reliability standards for documents are lower. What qualifies as proof of the bare fact of conviction may not qualify as proof of the conviction’s elements.
Courts cannot, in the name of seeking the “right result,” rescue a party from its own strategic choices or supplement the party’s record with judicially noticed, unreliable materials.

Complex Concepts Simplified

1. Categorical vs. Modified Categorical Approach: Categorical: Judge looks at the statutory definition alone to see if the offense matches the generic crime.
Modified Categorical: When a statute is divisible (lists multiple, independent ways to commit the crime), the judge may consult a narrow set of court records (Shepard documents) to determine which statutory alternative the defendant actually admitted to or was convicted under.
2. Shepard Documents: Only four kinds of court records qualify: the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial findings about the offense’s factual basis.
3. Elements Clause vs. Enumerated-Offenses Clause: Elements Clause: The prior offense must have “as an element the use, attempted use, or threatened use of physical force.”
Enumerated-Offenses Clause: Certain crimes (e.g., robbery, arson) are statutorily listed as per se crimes of violence, regardless of their specific elements.
4. Forfeiture and Party-Presentation: If a party fails to timely raise or support an argument or evidence, it is generally forfeited. A court must respect the litigants’ choices about what to present. This preserves both judicial neutrality and the prosecution’s prerogative to frame its case.

Conclusion

United States v. Payo reaffirms that sentencing enhancements under the career-offender Guidelines must rest on the record the parties actually present—and that courts cannot resort to non-Shepard documents or resuscitate forfeited arguments. By insisting on the narrow Shepard record in modified categorical analysis and enforcing the Government’s burden of proof without granting “second bites at the apple,” the Third Circuit preserves the predictability and fairness of sentencing determinations. On remand, the District Court will resolve, based solely on the Government’s original Shepard submissions, whether Payo’s 2008 conviction was under subsection (i) or (ii) of Pennsylvania’s robbery statute—and whether the career-offender enhancement properly applies.