In Re Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2008 Decided December 2, 2008

No. 06-3113

IN RE: SEALED CASE
_____

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00220)
_____

Lisa B. Wright, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender.

John V. Geise, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jeffrey A. Taylor,
U.S. Attorney, Roy W. McLeese III, Mary B. McCord, and
Anthony Scarpelli, Assistant U.S. Attorneys.

Before: ROGERS and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge
RANDOLPH.

TATEL, Circuit Judge: This appeal, sealed due to
appellant’s failed attempt to cooperate with the government,
 2
concerns the application of the United States Sentencing
Guidelines’ career offender provision. After appellant pled
guilty to possession of cocaine base with intent to distribute,
the district court sentenced him as a career offender based on
its finding that he had two prior felony convictions for crimes
of violence—robbery and armed robbery. Although the
parties agree that we must remand to allow the district court
to consider a non-Guidelines sentence, appellant argues that
he does not qualify as a career offender because his two prior
convictions should have been counted as one, and in any
event the robbery conviction did not qualify as a crime of
violence. We agree with the district court’s decision to count
appellant’s prior convictions separately, but we find that the
government failed to establish that appellant’s plea to
robbery, as defined in the District of Columbia Code,
necessarily admitted the elements of a crime of violence.

I.
Appellant pled guilty to a one-count information charging
him with possessing five or more grams of cocaine base with
intent to distribute in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii). The district court sentenced appellant as a
career offender under U.S.S.G. § 4B1.1, a provision that
imposes a substantially higher Guidelines range on those who
commit certain offenses after being convicted of two prior
drug crimes or crimes of violence.

Although the record documenting appellant’s prior
convictions is thin, several facts are undisputed. On October
1, 1986, police officers arrested appellant for an armed
robbery he committed on September 17, 1986. Three months
later, while appellant remained in custody, the prosecutor
filed a second complaint charging him with committing a
robbery on August 6, 1986. Appellant pled guilty to both
criminal complaints on February 6, 1987, and the same
 3
Superior Court judge sentenced him in both cases on March
20, 1987.

In sentencing appellant on the federal drug charge, the
district court found that the prior D.C. convictions were
unrelated and thus properly counted as two convictions, and
determined that they both qualified as crimes of violence.
Accordingly, it concluded that appellant was a career offender
and sentenced him to a 188-month term of imprisonment,
within the 60- to 480-month statutory range provided by
section 841(b)(1)(B)(iii).

Appealing his sentence, appellant argues that the district
court erred in finding both that his two prior convictions were
unrelated and that one—the robbery conviction—qualified as
a crime of violence. He also argues that the district court
misapprehended its authority to sentence outside the
Guidelines range under Kimbrough v. United States, 128 S.
Ct. 558, 575 (2007) (holding that district judges may conclude
that the Guidelines’ disparate treatment of cocaine and
cocaine base warrants a non-Guidelines sentence), and
imposed a sentence “greater than necessary” to achieve the
goals of punishment in violation of 18 U.S.C. § 3553(a)’s
parsimony provision. Because the government concedes that
remand for resentencing is appropriate in light of Kimbrough,
we have no occasion to consider either that issue or the
parsimony challenge. The only issue we need resolve is
whether the district court properly adjudicated appellant a
career offender under section 4B1.1.

II.
Section 4B1.1 of the November 1, 2005 Sentencing
Guidelines enhances the offense level for “career offenders.”
The Guidelines define a “career offender” as an individual
who (1) is convicted of a felony crime of violence or
 4
controlled substance offense, (2) was at least eighteen years
old at the time of that offense, and (3) has “at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” § 4B1.1(a). The parties agree
that these Guidelines govern appellant’s July 26, 2006
sentencing, as well as his resentencing on remand from this
appeal. See 18 U.S.C. § 3742(g)(1). They also agree that on
remand the district judge may consider the current Guidelines,
under which appellant would not be deemed a career offender,
as a factor relevant to the imposition of sentence. They
disagree about whether, under the 2005 Guidelines,
appellant’s convictions may be counted separately and
whether both may be counted as crimes of violence. We
consider each issue in turn.

Relatedness of Prior Convictions
Under section 4B1.1, two prior felony convictions are
treated as one if “related” within the meaning of U.S.S.G. §
4A1.2(a)(2). See § 4B1.2(c)(2). Regardless of any factual
similarities or differences between them, two convictions are
“related” in this technical sense if they are for offenses that
were not separated by an intervening arrest and “(A) occurred
on the same occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for trial or
sentencing.” § 4A1.2 cmt. n.3 (2005). As it is undisputed
that appellant’s crimes were neither separated by an
intervening arrest nor committed on the same occasion or as
part of a common scheme or plan, the question boils down to
whether the sentences were for offenses that were
consolidated for trial or sentencing.

Our sister circuits disagree about whether formal
consolidation, i.e., an actual consolidation order, is required,
or whether offenses may still be found “functionally
consolidated” without such an order. Compare, e.g., United
 5
States v. Adams, 509 F.3d 929, 933 (8th Cir. 2007) (requiring
a formal consolidation order), with United States v. Best, 250
F.3d 1084, 1095 (7th Cir. 2001) (allowing functional
consolidation when there is an indication that the trial court
considered the cases sufficiently related to be treated as one).
This circuit has yet to rule on the issue, which turns out to
have little prospective importance given that the current
Guidelines jettison the concept of consolidation. U.S.S.G. §
4A1.2(a)(2) (2007). Nor need we answer the question for
purposes of this case. Whether consolidation is assessed
formally or functionally, the district court was correct in
finding that appellant’s convictions were never consolidated.
As the Superior Court entered no formal order of
consolidation, appellant’s convictions were unquestionably
never formally consolidated. Nor would appellant fare any
better under a functional consolidation standard. Although
appellant offers several reasons why he thinks he would
prevail if we adopted such a standard, none is persuasive.

Appellant first argues that the district court erred by
applying a formal test. To be sure, were we to adopt a
functional consolidation standard, it would have been error
for the district court to have applied a formal test. But we see
no evidence that it did. At the first sentencing hearing, the
district court noted an out-of-circuit precedent that it took to
apply a formal consolidation test and adjourned the
sentencing to consider this authority. Sent’g Tr. at 16-17
(Feb. 24, 2006). In doing so, the district court cautioned that
it was unlikely to adopt a formal consolidation test because it
thought “the reality of what happens, the substance of what
happens,” should govern consolidation findings. Id. at 17. At
the beginning of the second hearing, the district court said it
needed no further argument to determine whether appellant
was a career offender, stating, “The Court finds that
[appellant] is a career offender because he has been convicted
 6
in the past, and the evidence of that is sufficient. He has been
convicted in the past twice of committing crimes of violence.
And the evidence is sufficient, in this Court’s view, to show
that.” Sent’g Tr. at 3 (July 26, 2006). Pressed by defense
counsel, the court elaborated: “[The convictions] are
completely unrelated, in my view, I so find. I made that—I
made—I made that finding as a matter of law based upon,
frankly, what is undisputed by you or anybody else.” Id. at 4.

Appellant insists that the district court’s “matter of law”
comment signals that it adopted a formal test after all, but we
read the remark differently. The lengthy dialogue
surrounding the statement makes clear that the district court
based its finding on the facts the defendant himself set forth in
his papers and in court—the dates of appellant’s offenses,
separated by over a month—not the simple absence of a
formal order. See id. at 9-10 (agreement between the court
and defense counsel on the relevant dates). This exchange,
combined with the district court’s finding that the convictions
were “completely unrelated,” id. at 4, and its previous
rejection of a formal test, demonstrates that the district court
used a functional standard.

Appellant next argues that even if it used a functional
test, the district court failed to make a finding that the
offenses were not functionally consolidated. We disagree.
Though terse, the district court’s statement that the
convictions were “completely unrelated” amounts to a factual
finding. In arguing otherwise, appellant ignores the fact that
his trial counsel, following a lengthy dialogue on precisely
this point, essentially admitted that the court had satisfactorily
explained the basis for its finding. Id. at 10.

Appellant claims that he would prevail under a functional
consolidation standard for a third reason: even if the district
 7
court found that the offenses were not functionally
consolidated, it clearly erred in doing so. Reviewing the
district court’s finding deferentially, we see no grounds for
disturbing it. See Buford v. United States, 532 U.S. 59, 66
(2001) (holding that functional consolidation findings are
subject to deferential review on appeal without deciding
whether functional consolidation is the proper standard).
Given the undisputed fact that the two convictions were for
offenses involving different victims on different dates and the
absence of any affirmative evidence that the Superior Court
treated the two convictions as one, we are not “left with the
definite and firm conviction that a mistake has been
committed,” United States v. Seiler, 348 F.3d 265, 268 (D.C.
Cir. 2003) (internal quotation marks omitted).

Crime of Violence
This brings us to the second question: whether
appellant’s robbery conviction qualifies as a crime of
violence. Section 4B1.2 defines a crime of violence as,
among other things, any felony offense under federal or state
law that “has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” § 4B1.2(a)(1). As this language mirrors the
definition of a “violent felony” under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), we apply
the ACCA standard to determine whether an offense qualifies
as a crime of violence under section 4B1.2. See, e.g., United
States v. Andrews, 479 F.3d 894, 897 (D.C. Cir. 2007)
(applying ACCA cases directly to section 4B1.2 “crime of
violence” inquiry).

Under the ACCA standard, we examine not the
defendant’s actual conduct, but rather the elements of the
offense of conviction. See James v. United States, 127 S. Ct.
1586, 1594 (2007). Ordinarily a straightforward inquiry, this
 8
question becomes more difficult where, as here, a single
statutory provision “covers both violent and non-violent
crimes.” Andrews, 479 F.3d at 897. The District of Columbia
robbery statute in effect at the time of appellant’s offense
provided that:

Whoever by force or violence, whether against
resistance or by sudden or stealthy seizure or
snatching, or by putting in fear, shall take from
the person or immediate actual possession of
another anything of value, is guilty of robbery,
and any person convicted thereof shall suffer
imprisonment for not less than 2 years nor
more than 15 years.

D.C. Code § 22-2901 (1987). As we explained in United
States v. Mathis, by defining “force or violence” to include
the minimal level of force necessary to obtain property “by
sudden or stealthy seizure or snatching,” the statute covers
offenses that fail to qualify as crimes of violence under
section 4B1.2. 963 F.2d 399, 408-09 (D.C. Cir. 1992).

Despite the fact that the D.C. statute covers both violent
and nonviolent crimes, we still look to the nearest possible
analogues to the elements of the offense of conviction, rather
than to the defendant’s conduct. Specifically, when the
conviction results from a trial, we look to the statutory
definition as well as “the indictment or information and jury
instruction” to see if “the jury necessarily had to find” the
elements that would qualify the offense as a crime of
violence. Taylor v. United States, 495 U.S. 575, 602 (1990)
(emphasis added). Where, as here, the conviction results from
a guilty plea, the Supreme Court’s decision in Shepard v.
United States requires that we look to the “statutory
definition, charging document, written plea agreement,
 9
transcript of the plea colloquy, and any explicit factual finding
by the trial judge to which the defendant assented,” 544 U.S.
13, 16 (2005); see also id. at 20 (specifying that relevant
factual findings are those to which the defendant assents
“upon entering the plea”), in order to determine whether the
defendant “necessarily admitted” the qualifying elements, id.
at 26 (emphasis added). We may look to no other materials,
even if they might shed light on what the defendant probably
did or probably admitted to, or what the jury probably found.
See, e.g., id. at 26 (holding that courts considering whether a
defendant necessarily admitted to a qualifying offense can
look only to the charging document, the plea agreement or
colloquy, or comparable judicial records of the factual basis
of the plea).

Applying these principles, we held in Mathis that in order
for a conviction under the D.C. robbery statute to qualify as a
violent felony under ACCA, the court had to determine that,
in cases where the defendant went to trial, “the jury
necessarily found” (that is, was “required to find” in order to
convict) that the defendant had used sufficient force to qualify
the offense as an ACCA predicate. 963 F.2d at 409 (emphasis
added). There we made clear that the inquiry was not into
what the defendant probably did or what the jury probably
found:

If the record of the previous conviction is
ambiguous—i.e., if it is possible, on the basis
of the indictment or jury instructions, to
conclude that the element of force was
satisfied solely by a jury finding that the
defendant had lifted money out of a purse—
then the conviction may not be used as a
[violent felony under ACCA].
 10
Id. at 410. We employ the same approach in cases involving
guilty pleas. See Shepard, 544 U.S. at 19 (“Taylor’s
reasoning controls the identification of generic [i.e., ACCA-
qualifying] convictions following pleas, as well as convictions
on verdicts, in States with nongeneric offenses.”).

We review de novo the district court’s determination that
appellant’s robbery conviction qualified as a crime of
violence. United States v. Hill, 131 F.3d 1056, 1062 n.5
(D.C. Cir. 1997). Because the government failed to produce
the transcript of appellant’s Superior Court plea colloquy, the
district court had no record of what facts were necessary to
appellant’s plea. For this reason, it examined an arrest
warrant affidavit alleging that appellant committed the
robbery at gunpoint; a detention order in the armed robbery
case describing the robbery offense as an armed robbery as
well; the judgment recording appellant’s robbery plea; and the
criminal information charging appellant with robbery. The
district court found that each of these documents demonstrates
that appellant was convicted of a crime of violence. Sent’g
Tr. at 119 (July 26, 2006).

The parties agree that under Shepard the district court
should have examined neither the warrant affidavit nor the
detention order. Because the judgment records only that
appellant pled guilty to robbery, it sheds no light on whether
he pled guilty to a crime of violence. The dispute on appeal
thus centers on the probative force of the criminal
information, which states:

On or about August 9, 1986, within the District
of Columbia, [appellant], by force and
violence, against resistance and by putting in
fear, stole and took from the person and from
the immediate actual possession of Caroline
 11
Kaplan, property of value belonging to
Caroline Kaplan, consisting of money.

Appellant’s App. 109.

While no one doubts that under the D.C. Code the “force
and violence” language could have been satisfied by a
minimal level of force that would not qualify the offense as a
crime of violence, the parties disagree over the significance of
the “against resistance and by putting in fear” language.
Appellant contends that the disputed language represents
mere surplusage—an articulation of the government’s “theory
of the case,” Appellant’s Opening Br. 35—and imposed no
limit on the offense to which appellant could have pled guilty.
Specifically, appellant argues that if he had allocuted only to
nonviolent robbery by snatching while insisting he never put
the victim in fear or overcame her resistance, the court could
have accepted the plea without requiring the government to
produce a new information. The government fails to dispute
this claim in its brief. Instead, it argues that we have no
reason to believe anything of this sort actually happened.

The government is right that the record nowhere shows
that appellant pled guilty only to robbery by snatching and not
by violence. But by disputing only the likelihood—and not
the possibility—that appellant pled guilty to a non-qualifying
offense, the government essentially concedes the critical
point. That is, since the government’s brief nowhere disputes
the possibility that appellant pled to a non-qualifying offense,
it necessarily admits that “the record of the previous
conviction is ambiguous” within the meaning of Mathis, 963
F.2d at 410. After all, under Shepard the question is not what
appellant probably pled to, but what he necessarily pled to.
 12
That being the case, we cannot treat appellant’s
conviction as one for a crime of violence. Perhaps the
transcript of the plea colloquy would have shed light on the
matter. Had appellant admitted to robbery at gunpoint, the
trial court would have been precluded from accepting his plea
based on a finding that appellant committed the robbery
merely by stealth, and thus the element of violent compulsion
would have been necessary to his conviction. On the other
hand, had appellant insisted that he merely snatched the
property, it would have been clear that the finding of violence
was unnecessary to his guilty plea. But the government had
the burden of proving that the elements of a crime of violence
were necessary components of his conviction, and it failed to
produce the transcript. “It is the responsibility of the
government to produce such documents as are necessary to
establish that a prior offense can be properly designated a
‘crime of violence.’” United States v. Richardson, 161 F.3d
728, 738 (D.C. Cir. 1998) (internal quotation marks and
brackets omitted).

At oral argument, the government initially suggested that
had appellant attempted to plead only to snatching, the
Superior Court would have had to reject the plea. According
to this reasoning, the information’s “against resistance and by
putting in fear” language limits the type of “force and
violence” charged, so that if appellant had denied that he put
the victim in fear or overcame her resistance, the Superior
Court would have been unable to accept the plea. On this
interpretation, the information would amount to a “generically
limited charging document.” Shepard, 544 U.S. at 21. That
is, it would be limited to the “generic” (i.e., qualifying)
version of robbery and could not support a plea to the
nonqualifying version.
 13
But this argument appears nowhere in the government’s
brief. In fact, the government’s brief seems to take the
contrary position: it admits that appellant could have pled
guilty to robbery by snatching, maintaining only that it is
extremely unlikely that he in fact did so. The government’s
brief merely says that appellant “speculates that he might
have pled guilty to something different than indicated in the
language of the charging document, but offers no proof, and
offered none at sentencing, that anything of that nature
occurred,” Appellee’s Br. 37, and that there is “no support in
the record” for the possibility that he did so, id. at 38. To be
sure, at oral argument government counsel initially claimed
that the district court would have been unable to accept a plea
to nonviolent robbery. Oral Arg. at 18:47. Later, however, he
admitted that this argument is absent from the government’s
brief, seeming to retreat from this contention and maintaining
only that a preponderance of the evidence demonstrated that
appellant pled guilty to violent robbery. Id. at 19:50.

Indeed, without wading into a question of District of
Columbia criminal procedure never briefed or argued, we
note that the government may have been right to effectively
concede that appellant was able to enter such a plea. This is
not a case where the information included no language that
could refer to nonviolent conduct—it charged appellant with
robbery by “force and violence,” which under the D.C. Code
includes minimal force that does not qualify an offense as a
crime of violence. The information may thus permit the
defendant to plead guilty to nonviolent robbery, so it may not
be “generically limited.” Shepard, 544 U.S. at 21. Given this
uncertainty, the absence of briefing on the issue, and the
government’s failure to contest the point, we have no
occasion to rule on this hypothetical argument.
 14
The dissent reaches the contrary conclusion only by
assuming that the charging document is in fact “generically
limited.” Of course if it were generically limited, we would
look no further. But whether it was is exactly the question
before us. And to answer that question, we must decide not
whether appellant in fact pled guilty to nonviolent robbery,
but whether he could have under the information. This is not
a question of fact foreclosed by Shepard, but rather a question
of law. Under Shepard, a charging document is only
“generically limited” if it in fact limits the type of offense to
which a defendant can plead guilty. Contrary to the dissent,
the government nowhere argues that this charging document
imposes such a limit, as counsel conceded at oral argument.
Oral Arg. at 19:50.

Nothing in United States v. Hill, 131 F.3d at 1064-65, on
which the government relies, requires a different result.
There we held that when a defendant pleads guilty to a lesser
included offense of a robbery indictment bearing essentially
the same language as that present here, the court must look
beyond the indictment to other documents indicating what
offense the defendant pled to. Id. Although remarking in
passing that the indictment’s “against resistance and by
putting in fear” language “suggest[ed]” that the robbery was
committed violently, we had no occasion to rule definitively
on the matter because the defendant pled guilty to a lesser
included offense, not to the indictment. Id. at 1063.

To the extent Hill could be read to authorize a factual
inquiry into what the defendant probably admitted, Shepard
has superseded it. Hill authorizes examination of presentence
reports adopted by the court and other judicial findings to
determine the basis of a defendant’s plea. 131 F.3d at 1065.
Though not establishing what the defendant necessarily
admitted, such documents would amount to reliable evidence
 15
of the defendant’s conduct. But Shepard indicates that the
sentencing court’s findings of fact, if not adopted by the
defendant, must be disregarded. 544 U.S. at 16 (holding that
a court determining whether a prior crime counts as an ACCA
predicate “is generally limited to examining the statutory
definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented” (emphasis
added)). Indeed, the very documents at issue in Shepard were
free from inconsistencies, and the Court, though never
questioning the government’s claim that those documents
showed that the plea in that case could “only plausibly have
rested” on qualifying conduct, nonetheless forbade reference
to those apparently reliable documents. 544 U.S. at 21-22.
Of course if the question were what the defendant probably
admitted to, we would have no reason to disregard any
evidence that could reliably shed light on that issue. The
Court’s rejection of otherwise reliable evidence demonstrates
what Shepard explicitly says: regardless of what Hill may
have suggested, we look to what the defendant “necessarily
admitted,” not just probably admitted. 544 U.S. at 26.

Because the government failed to demonstrate on this
record that appellant pled guilty to a violent robbery, the
district court erred in ruling that appellant’s robbery
conviction qualified as a crime of violence within the
meaning of section 4B1.2. We vacate the sentence and
remand for resentencing in light of Kimbrough and the
government’s failure to demonstrate that appellant has two
prior convictions for crimes of violence.

So ordered.
 RANDOLPH , Circuit Judge, dissenting: I am not sure
whether hard cases really do make bad law. I am certain that
bad law comes from easy cases made hard. The majority’s
opinion has turned this into such a case.

The issue is whether this defendant pled guilty to a crime of
violence under D.C. law, and so should be sentenced as a career
offender under federal law. The record is sparse but there are
three things we know with certainty. We know the defendant
was convicted of violating D.C. Code Ann. § 22-2901 (1973),
the robbery statute, for stealing money from a woman.
Appellant’s App. 109. We also know that there are two ways to
violate § 22-2901, only one of which qualifies as a crime of
violence. A person may commit the offense of robbery “by
sudden or stealthy seizure or snatching” – not a crime of
violence because it does not involve the use of, or threatened
“use of physical force against” another person. United States v.
Mathis, 963 F.2d 399, 405, 408 (D.C. Cir. 1992). Or he may
violate § 22-2901 if the robbery is “against resistance . . . or by
putting in fear” – a crime of violence under the federal
definition. Id. at 408–409. The third thing we know with
certainty is that this defendant pled guilty to an information
charging him with committing a robbery “by force and violence,
against resistance and by putting in fear.” Appellant’s App. 109.
He pled guilty, in other words, to an information charging a
violent crime. I am not, as the majority states, “assuming” that
the charging document so narrowed the statutory offense. My
conclusion rests on legal analysis and precedent: the dependent
clause in both the statute and the information – “against
resistance and by putting in fear” – modifies “force and
violence.” Mathis, 963 F.2d at 408. The information therefore
unmistakably narrows the offense to a crime of violence, which
was precisely the government’s argument to us. See Gov’t Br.
at 34–36; Oral Arg. at 24:20 (“What was before the trial court
and before this court are the charging document that clearly
charges a crime of violence and the judgment and commitment
 2

order that indicates that’s the document on which the defendant
was sentenced. So other than sheer speculation there’s nothing
to undercut that.”); but see Maj. Op. at 14.

My colleagues’ opposite conclusion thus rests on nothing
more than conjecture. It is possible, they say, that the defendant
changed his tune when he stood before the judge. Maybe he
confessed only to snatching and maybe the judge took the plea
anyway even though the information charged only the violent
crime of robbery. Is it proper to speculate about what could
have occurred during the plea proceedings? My colleagues say
yes. The Supreme Court says no. Shepard v. United States, 544
U.S. 13, 21 (2005), holds that the “details of a generically
limited charging document would do in any sort of case.” By
“generically limited” the Court meant limited to the violent
offense contained in the statute. By “would do in any sort of
case” the Court meant that in a plea case, an information
charging only the violent offense is enough to show that the
defendant committed a crime of violence. A plurality of the
Court reiterated the point: “without a charging document that
narrows the charge to generic limits, the only certainty of a
generic finding lies in” the supplemental plea records. Id. at 25
(plurality opinion). But with a charging document that narrows
the charge to a crime of violence, a sentencing court’s limited
inquiry is at an end. See id. at 21 (majority opinion).

The majority nevertheless imagines the defendant having
a last minute change of heart and pleading to something that
was not charged. Taken to its logical conclusion, the majority’s
position generates a new rule: no charging document, however
precise, can suffice to show that the defendant pled guilty to a
crime of violence when the underlying statute covers violent
and non-violent crimes. Shepard rejects such a rule.

I therefore dissent.