PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4446
JAMES WASHINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(1:08-cr-00074-BEL-1)
Argued: October 26, 2010
Decided: January 10, 2011
Before WILKINSON and MOTZ, Circuit Judges, and
Damon J. KEITH, Senior Circuit Judge of the United States
Court of Appeals for the Sixth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz and Senior Judge Keith joined.
COUNSEL
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
2 UNITED STATES v. WASHINGTON
Appellant. Debra Lynn Dwyer, 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
WILKINSON, Circuit Judge:
James Washington pled guilty to possessing a firearm as a
convicted felon in violation of 18 U.S.C. § 922(g). The
Armed Career Criminal Act ("ACCA") provides fifteen-year
minimum sentences for § 922(g) violators with three prior
convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(e)(1). Washington admits two such convictions,
but appeals the district court’s finding that a November 1999
Maryland conviction for possession with intent to distribute a
controlled substance counts as his third.
Maryland’s possession with intent to distribute offense is
ambiguous for ACCA purposes: some underlying controlled
substances trigger a sufficiently high maximum sentence to
qualify as ACCA predicates, but others do not. As a result, the
sentencing court had to find facts about Washington’s
November 1999 conviction. It found by a preponderance of
the evidence that Washington’s conviction qualified as an
ACCA predicate because it involved cocaine.
Washington throws up numerous objections to what in real-
ity is nothing more than straightforward trial court fact-
finding within the framework of Shepard v. United States,
544 U.S. 13 (2005). Washington contends, however, that
Shepard, as well as the Sixth Amendment and due process,
require proof beyond a reasonable doubt in making such
determinations. But Shepard defines the universe of records
UNITED STATES v. WASHINGTON 3
the government may use to demonstrate facts about prior con-
victions, not the standard of proof required to prove them, and
our precedents bar Washington’s broader claims. Because the
district court properly relied on Shepard-approved sources in
making its factual determination that Washington’s November
1999 conviction qualified as an ACCA predicate, we affirm.
I.
On November 17, 2007, a car carrying two Baltimore
Police Department officers stopped at a traffic light. The offi-
cers noticed that Washington, the driver of the car next to
theirs, was drinking malt liquor. One of the officers
approached Washington’s car to speak with him, but he
quickly drove away. The officers caught up with him at
another stoplight, but when one yelled "police" he sped off
again, this time by putting his car in reverse and driving back-
wards into oncoming traffic. Washington spun his car around,
raced forward, and ultimately crashed into a car stopped at
another stoplight. The pursuing officers saw that Washington
—who by now had exited his damaged vehicle and was run-
ning away—was holding a gun. They caught up with Wash-
ington and finally subdued him, recovering his loaded 9 mm
handgun.
As a result of this incident, Washington pled guilty to vio-
lating 18 U.S.C. § 922(g)(1), which prohibits anyone con-
victed of a crime punishable by more than one year’s
imprisonment from possessing firearms or ammunition.
Under the ACCA, those who violate § 922(g) and have three
previous convictions for "violent felon[ies]" or "serious drug
offense[s]" must receive at least a fifteen-year sentence. 18
U.S.C. § 924(e)(1). Washington’s Pre-Sentence Report
described six possibly qualifying convictions, and he accepted
that two of these — June 1999 and November 2004 convic-
tions for possessing narcotics with intent to manufacture or
distribute — counted. But he argued the government could
not sufficiently demonstrate a third.
4 UNITED STATES v. WASHINGTON
To that end, the government introduced evidence regarding
Washington’s April 1998 convictions for second-degree
assault and resisting arrest, his June 2003 conviction for
second-degree assault, and his November 1999 conviction for
possession with intent to manufacture or distribute. The dis-
trict court addressed only Washington’s November 1999 con-
viction, finding that the government had proven by a
preponderance of the evidence that this conviction qualified
as an ACCA predicate. In a straightforward exercise of its
fact-finding responsibilities, the district court noted that the
government’s documents were "not a model of clarity by any
stretch of the word" but said as follows:
It is clear from the Circuit Court for Baltimore City
documentation the docket entries that there was a
conviction on Count 1 charging possession with
intent to distribute apparently mislabeled as heroin
although cocaine was charged. The rule in federal
court is that, to be satisfactory, an indictment need
not charge the precise drug, but need only charge a
proscribed narcotic. So here it’s clear that there was
a felony conviction for possession with intent to dis-
tribute a proscribed narcotic, which means that the
predicate offenses are satisfied, and Mr. Washington
is properly denominated as an armed career criminal.
Accordingly, the district court sentenced Washington to
180 months, a small downward departure from his enhanced
Guidelines range of 188 to 235 months. Absent ACCA and
career offender enhancements, Washington would have faced
a Guidelines sentencing range of 70 to 87 months and, under
18 U.S.C. § 924(a)(2), a statutory maximum of 120 months.
II.
Washington contends that the district court erred in apply-
ing a preponderance of the evidence standard in evaluating
whether his November 1999 conviction triggered his ACCA
UNITED STATES v. WASHINGTON 5
sentence. To assess this argument, we begin by describing the
ACCA’s definition of a "serious drug offense," the Maryland
law at issue in Washington’s November 1999 conviction, and
the judicial process used to determine whether that conviction
qualifies.
A.
As it relates to Washington’s case, the ACCA defines a "se-
rious drug offense" as "an offense under State law, involving
manufacturing, distributing, or possessing with intent to man-
ufacture or distribute, a controlled substance . . . , for which
a maximum term of imprisonment of ten years or more is pre-
scribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). At the time of
Washington’s conviction, Maryland law included a generic
offense of possession of a controlled dangerous substance
with intent to distribute:
[I]t is unlawful for any person . . . [t]o manufacture,
distribute, or dispense, or to possess a controlled
dangerous substance in sufficient quantity to reason-
ably indicate . . . an intent to manufacture, distribute,
or dispense, a controlled dangerous substance . . . ."
Md. Code Ann. art. 27, § 286(a)(1) (West 1999) (subsection
divisions omitted). The penalties for violating this provision
depended on the controlled dangerous substance at issue. If
the substance was a Schedule I or II narcotic such as cocaine
or heroin, a twenty-year maximum applied. Md. Code Ann.
art. 27, § 286(b)(1); see also id. § 279(a)(3)(b)(12) (heroin);
§ 279(b)(3)(a)(4) (cocaine). However, for certain other drugs,
such as marijuana, only a five-year maximum applied. Md.
Code Ann. art. 27, § 286(b)(3).1
1
The relevant provisions of Maryland’s criminal code have since been
relocated and revised, but without substantive change. See Md. Code
Ann., Crim. Law § 5-607(a) (LexisNexis 2002) (general five-year maxi-
mum sentence); § 5-608(a) (twenty-year maximum for "Schedule I or
6 UNITED STATES v. WASHINGTON
It is thus impossible to tell whether a defendant’s convic-
tion qualifies as an ACCA predicate from the statutory ele-
ments alone: cocaine and heroin convictions do qualify, but
marijuana convictions do not. As a result, sentencing courts
addressing whether Maryland possession with intent to dis-
tribute offenses qualify under the ACCA have to go beyond
the preferred categorical approach, which looks only to the
offense’s statutory elements. See Taylor v. United States, 495
U.S. 575, 600–602 (1990). Instead, they must use the modi-
fied categorical approach, which looks to a larger but still cir-
cumscribed range of documents to determine the nature of a
conviction for ACCA purposes. See Shepard, 544 U.S. at 26;
United States v. Rivers, 595 F.3d 558, 562–63 (4th Cir. 2010)
(noting that the modified categorical approach is appropriate
when "different types of behavior satisfy an element of the
offense and the proscribed behaviors constitute at least two
separate crimes for ACCA purposes"); United States v. Bran-
don, 247 F.3d 186, 189 n.1 (4th Cir. 2001) (applying the mod-
ified categorical approach to ambiguous serious drug
offenses). Here, the district court had to determine whether
Washington’s November 1999 conviction involved a narcotic
triggering the ACCA, or instead some other, non-qualifying
drug.
B.
Washington argues that this kind of judicial fact-finding
can only take place under a heightened standard. Most cre-
atively, he argues that Shepard itself requires the heightened
standard. He notes that Shepard instructs courts applying the
Schedule II narcotic drug[s]"). We thus need not decide whether for
ACCA purposes a sentencing court should apply the law at the time of the
prior conviction or the law at the time of sentencing. See United States v.
McNeill, 598 F.3d 161, 164–66 (4th Cir. 2010) (applying the sentencing
law at the time of the prior conviction because the revising statute pro-
vided that the revisions would not apply to crimes committed before its
effective date).
UNITED STATES v. WASHINGTON 7
modified categorical approach to use only "conclusive
records," Shepard, 544 U.S. at 21, ones which "approach the
certainty" of those used in determining whether a conviction
qualifies under the categorical approach, id. at 23. "Conclu-
sive" and "certain," he insists, are adjectives that do not prop-
erly describe a mere preponderance test, but instead require
something more.
To begin with, our precedent does not run in Washington’s
favor. In United States v. Harcum, 587 F.3d 219, 222–25 (4th
Cir. 2009), this court discussed Shepard and reiterated the
preponderance standard in a post-Shepard modified categori-
cal case.
We think the standard Harcum applied was the correct one.
Harcum did not discuss Shepard, however, in the standard of
proof context, and on that point we think Washington’s argu-
ment misreads Shepard and ignores the issue it actually
addressed. The government there sought to prove that Shep-
ard’s prior plea conviction qualified him for an ACCA
enhancement. See Shepard, 544 U.S. at 17. Because his Mas-
sachusetts burglary offense may or may not have qualified
under the ACCA depending on its nature, the Court had to
extend Taylor’s brief description of the modified categorical
approach from the trial context to the plea context, see id. at
19–21, determining whether police reports and complaint
applications sufficiently resembled the charging papers and
jury instructions whose use was specifically approved in Tay-
lor, see id. at 17–21 (citing Taylor, 495 U.S. at 602).
Viewed in context, the true meaning of the sound bites
about "certainty" and "conclusive[ness]" that Washington
extracts from Shepard becomes clear: they define the universe
of records the government may use in proving the nature of
a prior conviction, not the burden of proof it faces in making
its showing from those records. See United States v. Palomino
Garcia, 606 F.3d 1317, 1337 (11th Cir. 2010) ("Under [the
modified categorical] approach, a court may determine . . . the
8 UNITED STATES v. WASHINGTON
basis for the conviction by consulting a narrow universe of
‘Shepard documents’ . . . ."). Accordingly, Shepard’s "con-
clusive records" language occurs as part of its rejection of the
government’s request to use records from courts other than
the court of conviction and records generated prior to charg-
ing. See Shepard, 544 U.S. at 21.
Similarly, Shepard’s "approach[ ] the certainty" language
occurs during another discussion of records, one in which the
Court reasoned that accepting items like police reports would
undermine Taylor’s instruction to use a process as close to the
pure categorical approach as possible. See id. at 22–23. In
keeping with this focus on court records, the Court’s subse-
quent references to Shepard speak to the universe of records
to be consulted: "The ‘modified categorical approach’ . . . per-
mits a court to determine . . . the basis for the conviction by
consulting the trial record — including charging documents,
plea agreements, transcripts of plea colloquies, findings of
fact and conclusions of law from a bench trial, and jury
instructions and verdict forms." Johnson v. United States, 130
S. Ct. 1265, 1273 (2010) (citing Shepard, 544 U.S. at 26). In
other words, Shepard simply does not mean what Washington
says it does.
Moreover, if Washington’s interpretation were correct,
Shepard would be curiously silent about its important rework-
ing of the law. Shepard’s majority opinion never mentions a
preponderance standard, a heightened standard, or any of the
cases that applying a heightened standard would have over-
ruled. See, e.g., United States v. Kriens, 270 F.3d 597, 604–05
(8th Cir. 2001) (applying a preponderance standard in a modi-
fied categorical case); United States v. Hill, 53 F.3d 1151,
1153–55 (10th Cir. 1995) (en banc) (same). It would be
strange for the Supreme Court to change the law so pro-
foundly yet so quietly, and we should not strain to find that
it has done so where there are more plausible interpretations
of its handiwork.
UNITED STATES v. WASHINGTON 9
Finally, Washington’s interpretation ignores one of the ani-
mating purposes of the Taylor/Shepard line: the desire to
avoid extensive litigation about prior convictions at sentenc-
ing. Taylor noted the "practical difficulties" of allowing
recourse to trial transcripts and witness testimony at a sen-
tencing hearing, Taylor, 495 U.S. at 601, and Shepard
referred to Taylor’s conclusion as a "pragmatic" one, aimed
in part at "avoid[ing] evidentiary disputes," Shepard, 544 U.S.
at 20, 23 n.4. Given this purpose, it is again more plausible
to read Shepard’s statements about certainty and conclusive-
ness as referring to a canonical set of records that will prevent
sentencing from devolving into a retrial of the defendant’s
prior convictions.
We thus disagree that Shepard requires a departure from
the preponderance standard. We also note that we are not
alone. Perhaps in recognition of Shepard’s context, its silence
about a heightened standard, and its desire to avoid mini-
trials, our sister circuits have explicitly or implicitly adopted
this same reading of Shepard by applying a preponderance
standard in modified categorical cases. See, e.g., United States
v. Forrest, 611 F.3d 908, 913 (8th Cir. 2010); United States
v. Martin, 526 F.3d 926 (6th Cir. 2008); United States v.
Rosa, 507 F.3d 142, 151 (2d Cir. 2007); United States v.
Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006).
C.
Washington contends also that the Sixth Amendment and
the Due Process Clause require at the very least a reasonable
doubt standard where factual findings about the nature of a
prior conviction are involved. This view, once again, is prob-
lematic on many fronts. The preponderance standard is the
one traditionally applied in sentencing determinations, and we
have consistently declined invitations to create exceptions.
See Harcum, 587 F.3d at 222 (applying the preponderance
standard in the modified categorical approach context);
United States v. Grubbs, 585 F.3d 793, 799-803 (4th Cir.
10 UNITED STATES v. WASHINGTON
2009) (applying a preponderance standard to judicial fact-
finding that increases the advisory Guidelines sentencing
range). And rightly so: Shepard itself recognized a role for
judicial fact-finding under the modified categorical approach,
see Shepard, 544 U.S. at 20–21, confined the sources of that
fact-finding to a circumscribed set of judicial documents, see
id. at 26, and never once indicated that fact-finding utilizing
approved judicial sources was constitutionally required to be
conducted under something other than the ordinary fact-
finding standards and burdens of proof.
Moreover, Shepard’s restrictions mitigate any Sixth
Amendment problems that lurk in the modified categorical
approach and judicial fact-finding by a preponderance of the
evidence. Under Shepard’s document limitations, courts can-
not look to sources that would allow them to "rely[ ] on facts
neither inherent in the conviction nor admitted by the defen-
dant." United States v. Alston, 611 F.3d 219, 226 (4th Cir.
2010); see also United States v. Bethea, 603 F.3d 254, 259
(4th Cir. 2010) (looking at whether "charging documents and
any judicial records ‘necessarily’ show" the defendant’s con-
viction qualified under the ACCA (citing Shepard, 544 U.S.
at 20–21)). As a result, any ACCA enhancement stems only
from information about the nature of a conviction that has
passed through Sixth Amendment filters: charging documents
and jury instructions that indicate what the government must
have proved, factual findings to which the defendant con-
sented, and so forth. See Alston, 611 F.3d at 226 (Shepard’s
limitations render the modified categorical approach "consis-
tent with the Sixth Amendment" by limiting fact-finding to
the defendant’s admissions and to facts "inherent in" a prior
conviction). There is simply no Sixth Amendment or due pro-
cess violation in judges finding facts about the nature of a
prior conviction by a preponderance of the evidence, pro-
vided, however, they stay within Shepard’s bounds.
III.
Washington next asserts that the district court erred in find-
ing that the government met its burden of proof under the pre-
UNITED STATES v. WASHINGTON 11
ponderance standard. He argues that inconsistencies in the
records, as well as Shepard’s limitations on which records
could properly be considered, prove that the government
could not reliably make its case. We review legal issues such
as whether a defendant’s previous conviction counted as an
ACCA predicate de novo, see Harcum, 587 F.3d at 222, and
we review factual findings for clear error, see Rivers, 595
F.3d at 560–61; United States v. Wardrick, 350 F.3d 446, 451
(4th Cir. 2003). We begin by summarizing the evidence intro-
duced.
A.
The government introduced a number of records designed
to prove that Washington had a November 1999 conviction
for possession with intent to manufacture or distribute and
that this conviction qualified under the ACCA. A "charge
summary" from the District Court for Baltimore City
("District Court") listed two offenses, "CDS:POSSESS-NOT
MARIHUANA" and "CDS:P W/I DIST: NARC," the first
with a four-year maximum penalty and the second with a
twenty-year maximum penalty. The Statement of Probable
Cause, submitted with the Application for Statement of
Charges filed with the District Court, alleged that officers
observed Washington selling drugs and apprehended him with
thirty "rocks" of crack cocaine. Dated "04/16/1999" and
including Case and Tracking Numbers, the Application
charged Washington with two counts: first, possession of a
controlled dangerous substance, "to wit COCAINE," in viola-
tion of Art. 27, § 287; and second, possession of a controlled
dangerous substance, "to wit: COCAINE," in a quantity suffi-
cient to indicate an intent to distribute, in violation of Art. 27,
§ 286.
Washington’s case was elevated to the Circuit Court of
Baltimore City ("Circuit Court") by a criminal information.
That Information repeated the Case and Tracking Numbers
from the Application and included a new Circuit Court Crimi-
12 UNITED STATES v. WASHINGTON
nal Information Number, but it also listed the date of offense
as "16 April 1996," unlike the Application’s reference to "04-
16-99." The Information charged Washington in Count 1 with
possessing a controlled dangerous substance, "to wit:
Cocaine," "in sufficient quantity to reasonably indicate . . . an
INTENT to MANUFACTURE and DISTRIBUTE" in viola-
tion of Art. 27, § 286, and in Count 2 with possessing a con-
trolled dangerous substance, "to wit: Cocaine," in violation of
Art. 27, § 287. The Information included no other statements
describing Washington’s crimes and did not expressly incor-
porate the Application’s Statement of Charges.
The government also introduced evidence that Washington
pled guilty to the Information’s first count. It introduced a
certified statement from the Circuit Court Clerk that provided
the Circuit Court Criminal Information Number and described
Washington’s conviction as "cds, guilty." The government
also introduced a certified "true copy" of the computer docket
materials. That printout listed the same Circuit Court Criminal
Information Number as found on the Clerk’s statement and
the Information, and it indicated that on November 23, 1999,
Washington pled guilty (abbreviated "G") to Count 1, which
it described as "CDS: POSS W/INT MANF/D." It listed
Washington’s sentence as three years. A handwritten docket
sheet again repeated the Circuit Court Criminal Information
Number, stated that Washington pled guilty to Count 1 on
November 23, 1999, and mentioned his three-year sentence,
but it described the charge as "PWID Heroin."
B.
In analyzing whether the government adequately proved
that Washington’s November 1999 conviction qualifies as an
ACCA predicate, it is important to distinguish two issues:
what records may the government use in determining Wash-
ington’s offense of conviction, and what records may the gov-
ernment use in determining whether the nature of that
UNITED STATES v. WASHINGTON 13
conviction qualifies it as an ACCA predicate. We address
each in turn.
Shepard’s strictures do not fully apply when determining
the bare offense to which Washington pled guilty. Shepard
itself described its holding as limiting the records courts may
use in "determining the character of" an ACCA-ambiguous
offense. Shepard, 544 U.S. at 16 (emphasis added). In United
States v. Martinez-Melgar, 591 F.3d 733, 739 (4th Cir. 2010),
we noted that Shepard "concerned whether the substantive
content of a prior conviction qualified the defendant for an
[ACCA enhancement,] not the conceptually distinct issue of
whether a conviction had occurred at all." See also United
States v. Dean, 604 F.3d 169, 175–76 (4th Cir. 2010) ("The
categorical approach is a way of classifying the activity
involved in prior offenses, not an across-the-board prohibition
on learning any detail in some way related to a prior convic-
tion." (emphasis added)).
Given Shepard’s twin rationales, this distinction makes
sense. Unlike facts about the nature of a prior conviction,
determining a conviction’s name will not engender mini-trials
because the relevant information is contained in court records,
not trial transcripts and police reports. Nor is there a threat to
defendants’ jury trial rights in such fact-finding. The fact at
issue relates to courts’ decisions, not defendants’ conduct, and
an offense’s name is so close to its bare existence that it falls
comfortably within the most basic exception to ordinary jury
fact-finding, the sentencing judge’s authority to find the fact
of a prior conviction. See Almendarez-Torres v. United States,
523 U.S. 224, 239-47 (1998). Indeed, determining the name
of the offense does not trigger an enhanced sentence; courts
must still use the categorical or modified categorical approach
to determine whether the particular conviction for that offense
is an ACCA predicate.
Other circuits have similarly held that Shepard primarily
applies to facts about the nature of an ambiguous offense,
14 UNITED STATES v. WASHINGTON
rather than the fact of the offense’s existence and statutory
description. In United States v. Beasley, 442 F.3d 386, 392
(6th Cir. 2006), the court rejected a challenge to the district
court’s use of the indictment and the testimony of the Pre-
Sentence Report’s author to determine the meaning of the
inscription "CA:M2" on the judgment of conviction; "Tay-
lor’s [and Shepard’s] categorical approach would apply, if at
all, only after the district court made this threshold identifica-
tion of the offense of conviction." See also United States v.
Sanders, 470 F.3d 616, 623 (6th Cir. 2006) (noting that
"Shepard does not apply to the initial factual question of
determining the particular offense of which a defendant was
convicted."). Others have also described Shepard as applying
to facts about the nature of a prior conviction rather than its
existence. See, e.g, United States v. Carter, 591 F.3d 656, 661
(D.C. Cir. 2010) (noting that "Shepard concerns how a sen-
tencing court determines the ‘character’ of an offense" and
relying on materials such as certified computer printouts of
docket materials to prove the fact of a prior conviction);
United States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir.
2007) (same); United States v. Zuniga-Chavez, 464 F.3d
1199, 1203–05 (10th Cir. 2006) (same).
Accordingly, the district court was entitled to consider what
it did, including the printouts of docket materials, in determin-
ing merely the specific offense to which Washington pled
guilty.2 In keeping with this distinction, courts have routinely
used such documents in determining the mere existence of a
conviction. See, e.g., Martinez-Melgar, 591 F.3d at 738, 739
("sentencing courts routinely rely on similar printouts of com-
puterized records" and may do so when determining whether
an admission occurred rather than the "substantive content" of
2
The Ninth Circuit has concluded that a Maryland docket sheet similar
to those present here qualified under Shepard. See United States v. Strick-
land, 601 F.3d 963, 966–70 (9th Cir. 2010) (en banc). Like the panel in
Harcum however, we need not decide this issue to resolve this case. See
Harcum, 587 F.3d at 225 & n.8.
UNITED STATES v. WASHINGTON 15
that admission); Carter, 591 F.3d at 659 (noting in a case
involving Maryland records like those here that "[the defen-
dant] cites to no case holding certified records from a state
court’s disposition database insufficient to support a finding
of a prior conviction by a preponderance of the evidence, and
we are unaware of any."); Zuniga-Chavez, 464 F.3d at
1204–05 (relying on certified docket sheets and case summa-
ries to determine the existence of a conviction).
Our review discloses nothing that would cause us to over-
turn the district court’s finding that Washington did in fact
plead guilty to possession with intent to distribute a controlled
substance. The sources here indicate that Washington pled
guilty to possession with intent to distribute. The certified true
copy of the computer docket materials indicates that Wash-
ington pled guilty to Count 1, described as "POSS W/INT TO
MANF/D," and was sentenced to three years. The document
contains the same Criminal Information Number as contained
in the Shepard-qualified Information. And the Shepard-
approved Information indicates in Count 1 that Washington
was accused of possessing a narcotic in sufficient quantity as
to demonstrate "INTENT to MANUFACTURE and DIS-
TRIBUTE" in violation of Art. 27, § 286.
While Washington points out discrepancies, they do not
upend the trial court’s sound conclusion. The handwritten
entries do suggest that Washington pled guilty to possession
with intent to distribute heroin, but they nonetheless indicate
his offense was possession with intent to distribute. The Infor-
mation does provide a different date of offense than the Dis-
trict Court Application. But the use of identical Tracking and
Case Numbers indicate the Information’s erroneous date of
offense is simply a scrivenor’s error. Nor does it matter that
the order of charges in the Circuit Court Information differed
from that in the District Court Application; the Tracking and
Case Numbers indicate the same offenses are at issue, and
nothing hangs on the order in which charges are listed.
16 UNITED STATES v. WASHINGTON
C.
Establishing the fact of a prior conviction that is ambiguous
for ACCA purposes does not get the government home free.
The fact of the conviction does not tell us whether or not it
qualifies as an ACCA predicate. The government still must
prove the nature of Washington’s possession with intent to
distribute conviction. To this demonstration Shepard’s restric-
tions fully apply, limiting the government and the sentencing
court to "charging documents, plea agreements, transcripts of
plea colloquies, findings of fact and conclusions of law from
a bench trial, and jury instructions and verdict forms," John-
son, 130 S. Ct. at 1273, as well as any information explicitly
incorporated into such records, see Harcum, 587 F.3d at 225.
In Washington’s case, the Circuit Court Information quali-
fies as evidence of the nature of his conviction: informations
are charging documents, thereby falling on Shepard’s list, and
there is no indication that Washington pled guilty to charges
other than those alleged against him. See United States v.
Day, 465 F.3d 1262, 1266–67 (11th Cir. 2006) (disallowing
reliance on an information where it charged an offense other
than that to which the defendant ultimately pled guilty). Thus
the Information — the only piece of evidence the district
court relied on to determine the controlled substance at issue
—is sufficient. It specifically states "to wit: Cocaine" in recit-
ing Washington’s possession with intent to manufacture and
distribute charge, indicating that he faced a twenty-year maxi-
mum sentence that rendered his later plea an ACCA predicate
rather than a non-qualifying five-year maximum sentence for
some other controlled substance.
Washington points to nothing that would cause us to over-
turn the district court’s findings here. The inconsistencies he
notes do not undermine the obvious import of the Shepard-
approved Information. The handwritten notes do refer to her-
oin, but as the district court noted, convictions for either sub-
stance — cocaine or heroin—would trigger the ACCA. The
UNITED STATES v. WASHINGTON 17
discrepancies between the dates of offense and order of
charges listed in the Information and Application are also
inconsequential because each still charged Washington with
possessing a qualifying narcotic with intent to distribute and
because the Information’s recitation of the Application’s Case
and Tracking Numbers defeats any suggestion that the Infor-
mation relates to a different underlying crime.
Finally, Washington never introduced any evidence indicat-
ing that his November 1999 conviction involved anything
other than an ACCA-qualifying narcotic, instead suggesting
only that the government did not meet its burden. Under these
circumstances, the Information suffices to demonstrate that
Washington’s conviction qualified under the ACCA. See, e.g.,
United States v. Simms, 441 F.3d 313, 317 (4th Cir. 2006)
(relying only on charging documents where they clearly "al-
lege[ ] an [ACCA predicate] and the record provides no basis
for a belief that the facts admitted by the defendant [by plead-
ing guilty] might not have constituted such a crime"); Dowd,
451 F.3d at 1255 & n.12 (relying on an indictment alone to
determine that a plea conviction for an ambiguous burglary
offense qualified as an ACCA predicate).3
IV.
Washington requests that we apply a heightened standard
of proof to judicial fact-finding under the modified categorical
approach. Honoring his request would require us to depart
from our precedent, to confuse and complicate the fact-
finding process in sentencing hearings, and to adopt an erro-
neous and untenable interpretation of Shepard. We decline to
do so.
Washington also asks us to hold that small inconsistencies
3
Because Washington’s November 1999 conviction properly qualifies
as his third ACCA predicate, we need not address whether his resisting
arrest conviction could also count.
18 UNITED STATES v. WASHINGTON
and clerical mistakes in state records prevent the government
from meeting its burden under the preponderance standard.
But multiple pieces of reliable evidence indicate the existence
of his November 1999 possession with intent to distribute
conviction, and the district court relied only on Shepard-
approved documents in determining the ACCA-qualifying
nature of that offense. What happened below was fact-finding
in a routine and conscientious sense, and we decline to disturb
it. Accordingly, the judgment is affirmed.
AFFIRMED