PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4375
WILLIE LEE ALSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:08-cr-00305-AMD-1)
Argued: March 25, 2010
Decided: July 2, 2010
Before NIEMEYER and KING, Circuit Judges, and
Eugene E. SILER, Jr., Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit,
sitting by designation.
Vacated and remanded by published opinion. Judge Niemeyer
wrote the opinion, in which Judge King and Senior Judge
Siler joined.
2 UNITED STATES v. ALSTON
OPINION
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. George Jarrod Hazel, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Balti-
more, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
This appeal presents the question of whether Willie Als-
ton’s sentence for possession of a firearm in violation of 18
U.S.C. § 922(g)(1) was properly enhanced under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), which
provides for an enhancement based on a defendant having
three prior convictions for a violent felony or a serious drug
offense. In enhancing Alston’s sentence, the district court
relied on a prior conviction resulting from Alston’s Alford*
plea to a Maryland charge for second-degree assault. Under
Maryland law, the second-degree assault offense includes sev-
eral different generic crimes, some of which are violent felo-
nies and some of which are not. See United States v. Coleman,
158 F.3d 199, 202 (4th Cir. 1998) (en banc); see also Cruz v.
State, 963 A.2d 1184, 1188 n.3 (Md. 2009). To demonstrate
that Alston’s conviction was for a violent felony, the govern-
ment submitted the transcript of Alston’s Alford plea proceed-
ing, which showed that the state prosecutor’s proffer of the
facts that the State would have presented at trial indicated that
*North Carolina v. Alford, 400 U.S. 25 (1970) (authorizing a defendant
to waive trial and to consent to punishment without admitting participation
in the acts constituting the crime).
UNITED STATES v. ALSTON 3
Alston had committed a violent felony, but also that Alston
never agreed to those facts.
Because Alston’s Alford plea to second-degree assault did
not necessarily rest on facts establishing his participation in
a type of assault that qualifies as a violent felony, see Shepard
v. United States, 544 U.S. 13, 20-21, 24 (2005), in that (1) he
admitted to no such facts and (2) such facts are not inherent
in a Maryland conviction for second-degree assault, we can-
not conclude that Alston’s conviction for second-degree
assault qualifies as a predicate conviction under ACCA.
Accordingly, we vacate Alston’s sentence and remand for
resentencing.
I
In March 2008, officers stopped a vehicle driven by Antoi-
netta Green for failure to stop at a stop sign. When officers
smelled a strong odor of marijuana emanating from the vehi-
cle, they asked the passenger, Willie Alston, to step out of the
car. When he did, the officers saw a 9 mm handgun resting
on the seat he had vacated. Alston subsequently pleaded
guilty to possession of a firearm by a convicted felon, in vio-
lation of 18 U.S.C. § 922(g)(1).
The presentence report indicated that Alston qualified for
a sentencing enhancement under ACCA based on his Mary-
land convictions for (1) robbery with a deadly weapon, (2)
second-degree assault, and (3) manufacturing a controlled
dangerous substance. Alston objected to the report’s designa-
tion of him as an armed career criminal, contending that there
was a lack of evidence from which to determine that the
second-degree assault offense for which he was convicted was
a violent felony qualifying as an ACCA predicate offense.
At Alston’s sentencing hearing, the district court agreed
with Alston that the charging document for his second-degree
assault conviction did not show on its face that the crime was
4 UNITED STATES v. ALSTON
a violent felony. The court, however, continued the hearing to
allow the government to obtain materials approved by Shep-
ard, 544 U.S. at 26, to demonstrate that Alston’s second-
degree assault conviction was for a violent felony.
The government obtained and submitted the transcript of
the proceeding in which Alston pleaded guilty to second-
degree assault, which revealed that on March 7, 2002, in the
Circuit Court for Baltimore City, Alston entered an Alford
plea to three counts of second-degree assault and three counts
of unlawfully wearing, carrying, or transporting a handgun.
During the course of the proceeding, the state prosecutor prof-
fered the evidence that she would have presented at trial, indi-
cating that the State’s witnesses would have testified that
Alston pointed a gun at three victims and threatened to kill
them. Following the proffer, Alston, through counsel, stipu-
lated that the State’s witnesses would have testified to that
effect, but Alston never agreed to the truth of the proffered
facts. The state judge accepted Alston’s Alford plea and sen-
tenced Alston to five years’ imprisonment, with all but three
years suspended.
When Alston’s sentencing hearing in this case was recon-
vened, Alston maintained his objection to being designated as
an armed career criminal on the ground that the state prosecu-
tor’s proffer in connection with the second-degree assault
conviction did not satisfy the demands of Shepard. Alston
argued that although "an Alford plea results in a conviction
for criminal history purposes[,] . . . it does not result in the
kind of certainty that Shepard requires for the Court to know
. . . what the defendant [was] pleading guilty to."
The district court rejected Alston’s argument, reasoning
that "by his plea of guilty [in the state court], the defendant
effectively acquiesced in" the state judge’s acceptance of the
facts proffered in support of the guilty plea. Accordingly, the
court found that the government had carried its burden of
showing that Alston qualified as an armed career criminal
UNITED STATES v. ALSTON 5
under 18 U.S.C. § 924(e) and sentenced him to the statutory
mandatory minimum term of 180 months’ imprisonment. Als-
ton appealed, raising the single issue:
Where the defendant enters a plea under the doctrine
announced in North Carolina v. Alford, 400 U.S. 25
(1970), can the district court consider the disputed
facts proffered by the prosecutor to establish the
nature of a prior conviction and whether that convic-
tion qualifies as a [violent felony] under the Armed
Career Criminal Act?
II
A violation of 18 U.S.C. § 922(g) ordinarily carries a maxi-
mum prison term of 10 years. See 18 U.S.C. § 924(a)(2). But
ACCA specifies that a defendant who has "three previous
convictions . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one another"
must be sentenced to at least 15 years’ imprisonment. Id.
§ 924(e)(1). The Act defines a "violent felony" as "any crime
punishable by imprisonment for a term exceeding one year"
that
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to
another[.]
Id. § 924(e)(2)(B).
The sole question here is whether the district court properly
found that Alston’s second-degree assault conviction was a
conviction for a "violent felony" when the conviction was
6 UNITED STATES v. ALSTON
obtained pursuant to an Alford plea, during which the state
prosecutor proffered evidence of conduct constituting a vio-
lent felony but Alston agreed only that if the case were tried,
"the State’s witnesses would testify" as indicated in the prof-
fer.
In Maryland, the statute prohibiting second-degree assault
provides simply that "[a] person may not commit an assault"
and that a person found guilty "is subject to imprisonment not
exceeding 10 years." Md. Code Ann., Crim. Law § 3-203.
"Assault" is defined to mean "the crimes of assault, battery,
and assault and battery, which retain their judicially deter-
mined meanings." Id. § 3-201(b). The Maryland courts treat
"assault" as a term of art "‘connot[ing] any of three distinct
ideas: 1. A consummated battery or the combination of a con-
summated battery and its antecedent assault; 2. An attempted
battery; and 3. A placing of a victim in reasonable apprehen-
sion of an imminent battery.’" Cruz v. State, 963 A.2d 1184,
1188 n.3 (Md. 2009) (quoting Lamb v. State, 613 A.2d 402,
404 (Md. Ct. Spec. App. 1992)). A "battery," in turn, is
defined in Maryland common law to include "any unlawful
force used against the person of another, no matter how
slight." State v. Duckett, 510 A.2d 253, 257 (Md. 1986) (inter-
nal quotation marks and citation omitted). Relying on state
court cases, we have previously noted the resulting broad
scope of the Maryland crimes of battery and assault:
The common law offense of battery thus embraces a
wide range of conduct, including kissing without
consent, touching or tapping, jostling, and throwing
water upon another. It may include even indirect
applications of force such as directing a dog to attack
or exposing a helpless person to the inclemency of
the weather. . . . At the other end of the spectrum, a
battery includes a fatal shooting or stabbing of a vic-
tim.
United States v. Kirksey, 138 F.3d 120, 125 (4th Cir. 1998)
(internal quotation marks and citations omitted). Thus, under
UNITED STATES v. ALSTON 7
Maryland law, second-degree assault encompasses several
distinct crimes, some of which qualify as violent felonies and
others of which do not. See Johnson v. United States, 130 S.
Ct. 1265, 1269, 1273 (2010) (suggesting that although a bat-
tery conviction for merely "[a]ctually and intentionally
touch[ing]" another would not be a conviction for a violent
felony, other battery offenses criminalized by the same Flor-
ida statute would qualify as violent felonies).
Recognizing this ambiguity, the district court invited the
government to produce the transcript of Alston’s guilty plea
proceeding to determine, under the "modified categorical
approach" of Shepard, whether Alston was convicted of a vio-
lent felony. See Johnson, 130 S. Ct. at 1273 (noting that
"[w]hen the law under which the defendant has been con-
victed contains statutory phrases that cover several different
generic crimes, some of which require violent force and some
of which do not, the ‘modified categorical approach’ that we
have approved permits a court to determine which statutory
phrase was the basis for the conviction" (internal quotation
marks and citation omitted)); United States v. Harcum, 587
F.3d 219, 224-25 (4th Cir. 2009) (applying the modified cate-
gorical approach to determine whether a conviction for
second-degree assault in Maryland was for a violent felony);
United States v. Simms, 441 F.3d 313, 315-16 (4th Cir. 2006)
(same); United States v. Coleman, 158 F.3d 199, 202 (4th Cir.
1998) (en banc) (same); see also Johnson, 130 S. Ct. at 1273
(citing Simms approvingly).
The transcript from Alston’s plea hearing, however,
revealed that Alston’s conviction was based on an Alford plea
during which Alston did not adopt or accept the facts prof-
fered by the government. Indeed, when Alston elected to ten-
der an Alford plea, the state judge explained to him that "[an
Alford plea] [i]s when you say, ‘I want the deal. I’ve talked
it over with my lawyer. I know what the witnesses are going
to say. I think it’s in my best interests to take the deal rather
than go to trial and run the risk I might get the maximum pen-
8 UNITED STATES v. ALSTON
alty. So I want the deal, but I don’t want to say I did the
crime.’" After ascertaining that Alston wished to proceed with
an Alford plea, the state court instructed Alston to "have a seat
because I still have to make sure that the State can prove the
charges against you." The court then asked the prosecutor,
"What would the witnesses say, what would the State prove
if there was a trial?" After the prosecutor outlined the evi-
dence she would have introduced at trial, which indicated that
Alston had pointed a gun at three victims and stated that he
would kill them all, Alston’s counsel "agree[d] that if the case
were called, the State’s witnesses would testify to that effect."
The district court concluded that the state prosecutor’s prof-
fer of facts in the state proceeding was imputable to Alston
and therefore could be used under Shepard to conclude that
Alston’s conviction was necessarily for a violent felony.
Alston contends that the district court erred in relying on
the proffer to qualify his second-degree assault conviction as
a predicate conviction under ACCA. He maintains that the
transcript of the plea hearing could be considered only if he
had admitted or confirmed the factual basis for the plea dur-
ing the plea colloquy. He argues that because the State’s
charging documents simply alleged that he had committed
second-degree assault and because he entered a guilty plea
pursuant to Alford, the transcript of his plea hearing does not
show that his guilty plea necessarily rested on facts identify-
ing his second-degree assault offense as a type of assault that
qualifies as a violent felony. The district court, he contends,
therefore violated his Sixth Amendment rights by making a
finding of fact about the nature of his second-degree assault
conviction in order to impose a sentence above what would
otherwise be the statutory maximum.
The question that Alston presents is one of first impression,
although a few courts of appeals have addressed analogous
questions within the context of the Sentencing Guidelines,
and most have adopted a position that supports Alston. See
UNITED STATES v. ALSTON 9
United States v. Ventura, 565 F.3d 870, 878-79 (D.C. Cir.
2009) (holding that a factual proffer accompanying a defen-
dant’s nolo contendere plea is not "within the limited set of
evidence that we may look to under Shepard’s modified cate-
gorical approach"); United States v. Savage, 542 F.3d 959,
966 (2d Cir. 2008) (holding that because the defendant
entered an Alford plea, the plea colloquy contained no factual
admissions on which the government could rely to establish
the predicate nature of the prior conviction). But see United
States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir.
2006).
Beginning with Taylor v. United States, 495 U.S. 575, 602
(1990), the Supreme Court has held that ACCA "generally
requires the trial court to look only to the fact of conviction
and the statutory definition of the prior offense" when deter-
mining whether a prior conviction qualifies a defendant for
the Act’s sentencing enhancement. But the Court qualified
this general principle by specifying that "[t]his categorical
approach . . . may permit the sentencing court to go beyond
the mere fact of conviction in a narrow range of cases where
a jury was actually required to find all the elements of [a qual-
ifying offense]" in order to convict the defendant. Id. For
example, the Court posited, even though a burglary is only a
violent felony under ACCA if it is a "generic" burglary—that
is, an "unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime," id. at
599—a defendant’s conviction under a burglary statute that
also criminalizes the entry of an automobile may nonetheless
qualify as an ACCA predicate "if the indictment or informa-
tion and jury instructions show that the defendant was
charged only with a burglary of a building, and that the jury
necessarily had to find an entry of a building to convict," id.
at 602 (emphasis added).
In Shepard, the Court refined this "modified categorical
approach" by extending Taylor to convictions stemming from
10 UNITED STATES v. ALSTON
guilty pleas. Looking for "the right analogs for applying the
Taylor rule to pleaded cases," the Court specified that
[i]n cases tried without a jury, the closest analogs to
jury instructions would be a bench-trial judge’s for-
mal rulings of law and findings of fact, and in
pleaded cases they would be the statement of factual
basis for the charge, Fed. Rule Crim. Proc. 11(a)(3),
shown by a transcript of plea colloquy or by written
plea agreement presented to the court, or by a record
of comparable findings of fact adopted by the defen-
dant upon entering the plea.
Shepard, 544 U.S. at 20 (emphasis added). The Court empha-
sized that "[w]ith such material in a pleaded case, a later court
could generally tell whether the plea had ‘necessarily’ rested
on the fact identifying" the crime as a predicate offense under
ACCA. Id. at 20-21 (quoting Taylor, 495 U.S. at 602); see
also id. at 24 (plurality opinion) (describing the Court’s hold-
ing as "adher[ing] to the demanding requirement that any sen-
tence under the ACCA rest on a showing that a prior
conviction ‘necessarily’ involved (and a prior plea necessarily
admitted) facts equating to" a predicate offense). Accordingly,
the Court held that a sentencing court determining whether a
guilty plea "necessarily admitted elements of [a predicate]
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 judi-
cial record of this information." Id. at 26 (majority opinion)
(emphasis added).
Two distinct rationales underpin these limitations. First, in
confining the materials that can be consulted in determining
the nature of a prior conviction, "collateral trials" are avoided.
Shepard, 544 U.S. at 23; see also United States v. Dean, 604
F.3d 169, 175 (4th Cir. 2010) (noting that one aim of Taylor
and Shepard "was to protect sentencing courts from becoming
UNITED STATES v. ALSTON 11
forums in which the prosecution and defense attempt to repro-
duce the defendant’s earlier trial"). And second, by limiting
sentencing courts to a specified set of conclusive records, a
"concern that a wider inquiry would violate the Sixth Amend-
ment right to trial by jury" is addressed. Dean, 604 F.3d at
172; see also Shepard, 544 U.S. at 24-26 (plurality opinion).
Although the Sixth Amendment jury trial right does not
include a right to have a jury find the fact of a prior convic-
tion, see Almendarez-Torres v. United States, 523 U.S. 224,
239-47 (1998), at least a plurality of the Shepard Court was
concerned about inquiries into facts about prior convictions
that could not be conclusively established from the record and
therefore could be disputed. See Shepard, 544 U.S. at 24-26
(plurality opinion). The plurality noted that Taylor had been
prescient in asking, "‘If the sentencing court were to con-
clude, from its own review of the record, that the defendant
[who was convicted under a nongeneric burglary statute] actu-
ally committed a generic burglary, could the defendant chal-
lenge this conclusion as abridging his right to a jury trial?’"
Id. at 24 (quoting Taylor, 495 U.S. at 601). It indicated that
the problem arises when the sentencing court seeks to deter-
mine, absent conclusive judicial records, what the state court
was "required to find" in convicting the defendant. Id. at 25.
As a plurality of the Shepard Court explained:
[T]he sentencing judge considering the ACCA
enhancement would (on the Government’s view)
make a disputed finding of fact about what the
defendant and state judge must have understood as
the factual basis of the prior plea, and the dispute
raises the concern underlying Jones and Apprendi:
the Sixth and Fourteenth Amendments guarantee a
jury standing between a defendant and the power of
the State, and they guarantee a jury’s finding of any
disputed fact essential to increase the ceiling of a
potential sentence. While the disputed fact here can
be described as a fact about a prior conviction, it is
12 UNITED STATES v. ALSTON
too far removed from the conclusive significance of
a prior judicial record, and too much like the find-
ings subject to Jones and Apprendi, to say that
Almendarez-Torres clearly authorizes a judge to
resolve the dispute.
Id. To avoid serious risks of unconstitutionality, the plurality
determined that the Court should limit the scope of judicial
factfinding on the disputed nature of a prior conviction. Id. at
25-26.
Thus, only when the underlying charging document nar-
rows the charge to a crime that amounts to a predicate offense
or when "jury instructions, or bench-trial findings and rulings,
or (in a pleaded case) . . . the defendant’s own admissions or
accepted findings of fact confirming the factual basis for a
valid plea" establish that the crime for which the defendant
was convicted was a predicate offense may a sentencing court
rely on Almendarez-Torres and enhance the defendant’s sen-
tence without running afoul of the Sixth Amendment. Shep-
ard, 544 U.S. at 25 (plurality opinion). But when there are no
such conclusive judicial records and the ACCA inquiry
requires a sentencing court to "make a disputed finding of fact
about what the defendant and the state judge must have under-
stood as the factual basis of the prior plea," the disputed fact,
although "about a prior conviction, . . . is too far removed
from the conclusive significance of a prior judicial record . . .
to say that Almendarez-Torres clearly authorizes a judge to
resolve the dispute." Id. (emphasis added). In this way, then,
Shepard restricts the materials that a sentencing court may
consult when evaluating the nature of a prior conviction in
order to ensure that the court, consistent with the Sixth
Amendment, is only finding facts inherent in the fact of a
prior conviction or admitted by the defendant. See Dean, 604
F.3d at 173; United States v. Thompson, 421 F.3d 278, 281-83
(4th Cir. 2005).
In short, Shepard prevents sentencing courts from assessing
whether a prior conviction counts as an ACCA predicate con-
UNITED STATES v. ALSTON 13
viction by relying on facts neither inherent in the conviction
nor admitted by the defendant.
Against this standard, a prosecutor’s proffer of the factual
basis for an Alford plea does not satisfy the requirements of
the modified categorical approach. In entering an Alford plea,
the defendant waives a trial and accepts punishment, but he
does not admit guilt, and the prosecutor’s proffer of what the
State would have proved at trial does not amount to an admis-
sion or acceptance of the facts by the defendant. Rather, it
serves the role of providing the court with a basis by which
to evaluate the voluntariness of the defendant’s plea. See
Alford, 400 U.S. at 38.
In Alford, the defendant was indicted for first-degree mur-
der and chose to plead guilty to second-degree murder. At a
plea hearing, the court heard the sworn testimony of a police
officer who summarized the State’s case and the testimony of
two additional witnesses. After Alford testified that he had not
committed the murder but that he wanted to plead guilty to a
reduced charge rather than face the possibility of the death
penalty, the trial court accepted his guilty plea and sentenced
him to 30 years’ imprisonment. Alford, 400 U.S. at 26-29.
Vacating the grant of Alford’s petition for post-conviction
relief, the Supreme Court held that the trial court committed
no constitutional error in accepting Alford’s plea "[i]n view of
the strong factual basis for the plea demonstrated by the State
and Alford’s clearly expressed desire to enter it despite his
professed belief in his innocence." Alford, 400 U.S. at 38. The
Court noted that although a judgment of conviction resting on
a guilty plea is ordinarily "justified by the defendant’s admis-
sion that he committed the crime charged against him and his
consent that judgment be entered without a trial of any kind,"
"a guilty plea can be accepted when it is accompanied by pro-
testations of innocence and hence contains only a waiver of
trial but no admission of guilt." Id. at 32-33 (emphasis added).
The Alford Court relied on Hudson v. United States, 272 U.S.
14 UNITED STATES v. ALSTON
451 (1926), which had held that a federal court has the power
to impose a prison sentence after accepting a plea of nolo con-
tendere, finding implicit in that case the principle that "the
Constitution does not bar imposition of a prison sentence
upon an accused who is unwilling expressly to admit his guilt
but who, faced with grim alternatives, is willing to waive his
trial and accept the sentence." Id. at 36. The Court further rea-
soned that there was no material difference between a defen-
dant’s refusal to admit guilt and a defendant’s affirmative
protestation of innocence "when, as in the instant case, a
defendant intelligently concludes that his interests require
entry of a guilty plea and the record before the judge contains
strong evidence of actual guilt." Id. at 37.
Thus, although a court presented with an Alford plea "must
make a careful inquiry into the factual basis" for the plea
before accepting it, United States v. Morrow, 914 F.2d 608,
613 (4th Cir. 1990), "[t]he distinguishing feature of an Alford
plea is that the defendant does not confirm" that factual basis,
Savage, 542 F.3d at 962 (emphasis added). And it is this same
feature that makes it clear that, under Shepard, the prosecu-
tor’s proffer of the factual basis for an Alford plea may not
later be used by a sentencing court to identify the resulting
conviction as an ACCA predicate. Shepard held, after all,
"that enquiry under the ACCA to determine whether a plea of
guilty . . . necessarily admitted elements of [a qualifying]
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 judi-
cial record of this information." Shepard, 544 U.S. at 26
(emphasis added).
Here, Alston tendered an Alford plea to second-degree
assault, and his plea was accepted after the trial court found
it was supported by a sufficient factual basis. But his plea did
not "necessarily rest[ ] on" facts establishing his second-
degree assault offense as a type of assault that qualifies as a
UNITED STATES v. ALSTON 15
violent felony. Shepard, 544 U.S. at 21 (internal quotation
marks omitted). To be sure, the prosecutor’s proffer that the
State’s witnesses were prepared to testify that Alston pointed
a gun at three individuals and threatened to kill them would
have established the predicate nature of the second-degree
assault offense had Alston admitted these facts during his
plea. But he explicitly pleaded guilty without admitting those
facts. Nor was the trial court required to find those facts in
order to accept Alston’s plea and return a conviction. Instead,
the judge’s evaluation of the prosecutor’s proffer was con-
cerned solely with whether the defendant’s guilty plea was
voluntary and with whether the government had sufficient
evidence to support the charge, not with the truth of the gov-
ernment’s account of how the offense had been committed.
As a result, we cannot say that the facts indicating the violent
nature of the second-degree assault charge to which Alston
tendered his plea are inherent in the fact of his conviction.
These facts therefore could not be found by the sentencing
court without risking a violation of the Sixth Amendment.
By analogy, it is clear under Taylor and Shepard that if
Alston had proceeded to trial before a jury on the charge of
second-degree assault and the jury had found him guilty after
the State’s witnesses testified exactly as forecasted by the
prosecutor during Alston’s Alford plea hearing, the resulting
second-degree assault conviction could not later be used to
enhance his sentence under ACCA unless the jury had been
instructed that it was required to find all the facts that would
establish the second-degree assault offense as a violent fel-
ony. See Shepard, 544 U.S. at 22 (noting that, under Taylor,
a jury conviction for a burglary offense under a nongeneric
burglary statute could not be counted as a predicate convic-
tion unless the jury had been instructed that it had to find that
the defendant broke into a building or structure, even though
"[i]f the trial record showed no evidence of felonious entrance
to anything but a building or structure, the odds that the
offense actually committed was generic burglary would be a
turf accountant’s dream"). Similarly, here, the State’s proffer
16 UNITED STATES v. ALSTON
of the factual basis for Alston’s Alford plea, although neces-
sary for the state court’s acceptance of the plea, cannot now
establish, with the requisite certainty, that the conviction for
second-degree assault that followed Alston’s plea was a con-
viction for a violent felony under ACCA.
We therefore conclude that the district court improperly
relied on Alston’s conviction for second-degree assault in
enhancing his sentence under ACCA. Accordingly, we vacate
Alston’s sentence and remand for resentencing without con-
sideration of that conviction as a predicate conviction under
ACCA.
VACATED AND REMANDED