United States v. Toyer

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5036

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LAMONT A. TOYER,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cr-00513-RWT-1)

Argued: May 11, 2010 Decided: February 25, 2011

Before WILKINSON and DAVIS, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion. Judge Davis wrote
Parts I and II of the opinion, in which Judge Wilkinson and
Senior Judge Beam joined. Judge Wilkinson wrote Parts III and
IV of the opinion, in which Senior Judge Beam joined. Judge
Davis wrote a separate opinion concurring in part and dissenting
in part.

ARGUED: Pat M. Woodward, Jr., Annapolis, Maryland, for
Appellant. Mushtaq Zakir Gunja, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Robert
K. Hur, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Appellant Lamont Toyer (“Toyer”) entered a conditional

guilty plea to knowingly and unlawfully possessing a firearm

that had traveled in or affected interstate commerce after being

convicted of one or more crimes punishable by imprisonment for a

term exceeding one year, in violation of 18 U.S.C. § 922(g)(1).

The indictment arose from events occurring at Toyer’s residence,

during which the police seized two handguns discovered after a

warrantless search. Toyer raises two issues on appeal. First,

he contends that the district court erred when it denied his

motion to suppress the handguns found in his residence. Second,

he contends that the district court erred in sentencing him to

an enhanced sentence under the Armed Career Criminal Act.

I.

Shortly before midnight on June 5, 2007, Officers

Christopher Adams (“Officer Adams”) and William Weathers

(“Officer Weathers”) were dispatched to a house in Upper

Marlboro, Maryland, to respond to a 911 call. Toyer lived at

the residence with his sister Kimberly Ballard (“Ballard”).

Officers Adams and Weathers were met at the door of the house by

Ballard and her friend Kimberly Elliot (“Elliot”), who had also

been staying at the house as a guest of Ballard’s. Elliot had

made the 911 call, telling the dispatcher that Toyer had

2
threatened to shoot her if she did not leave the house. She

repeated that information to the officers when they arrived.

Ballard and Elliot also told the officers that Toyer had been

drinking alcohol, was possibly intoxicated, and that Toyer was

in the basement of the house.

After speaking with the two women, the officers entered the

house and, standing at the top of the basement stairs with their

weapons unholstered, asked Toyer to come upstairs. Toyer

replied that he would not come upstairs. A conversation between

Toyer and the officers ensued for two to three minutes;

eventually, Toyer came upstairs. The officers immediately

handcuffed Toyer, placed him on the floor, and conducted a pat

down search, but they did not find any weapons on Toyer. The

officers asked Toyer if he had a gun, and Toyer replied that he

did not. Elliot had previously told the officers that Toyer

kept the weapon “downstairs” — possibly on a shelf — and so

Officer Adams began a sweep of the basement area. When he did

not find a weapon in the basement after searching the area

twice, Officer Adams went back upstairs and advised the other

officers that there was no weapon in the basement.

Another officer, who had just arrived on the scene,

overheard Officer Adams and told him that Elliot had stated

that the weapon might be in the drop ceiling of the basement.

Officer Adams then returned to the basement a third time and

3
noticed that one of the tiles in the drop ceiling was ajar. He

used a chair to boost himself up and, feeling around, pulled

down two handguns. The guns were fully loaded with the safety

in the “off” position and with rounds in the chambers. Toyer

was formally arrested after the guns were found.

After the grand jury returned an indictment on November 7,

2007, charging Toyer with possession of a firearm in violation

of 18 U.S.C. § 922(g), he filed a motion to suppress the

firearms. The district court conducted an evidentiary hearing.

After hearing testimony from the officers and Ballard, the

district court denied Toyer’s motion to suppress, finding that

(1) there was valid consent for the search and, in the

alternative, (2) the search was justified by the existence of

exigent circumstances.

Toyer then entered into a plea agreement pursuant to which

he pled guilty to violating 18 U.S.C. § 922(g). In the Pre-

Sentence Investigation Report (“PSR”), the probation officer

assigned Toyer 11 criminal history points, which established a

criminal history category of V. The PSR, however, concluded

that Toyer should be classified as an armed career criminal

under 18 U.S.C. § 924(e) of the Armed Career Criminal Act

(“ACCA”), resulting in a criminal history category of VI.

At sentencing, Toyer challenged his classification as an

armed career criminal, arguing that his August 2004 conviction

4
in Maryland Circuit Court for second-degree assault was not an

ACCA predicate offense. The district court disagreed, finding

that the second-degree assault conviction was a “violent felony”

under the ACCA. See 18 U.S.C. § 924(e)(1)(B). The court based

its determination on the plea colloquy relating to that offense:

while reciting the factual basis for Toyer’s plea, the

prosecutor stated that he would have proved that Toyer

threatened his girlfriend with a handgun.

Accordingly, the court sentenced Toyer to 210 months of

imprisonment, which was at the bottom of the applicable advisory

guidelines range. Toyer filed a timely notice of appeal.

II.

When a motion to suppress is denied, we review the evidence

in the light most favorable to the government. United States v.

Perkins, 363 F.3d 317, 320 (4th Cir. 2004). We review the

factual findings underlying the ruling on the motion to suppress

for clear error and the legal determinations de novo. United

States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).

On appeal, Toyer argues that Officer Adams’s search for

weapons exceeded the scope of any consent given and that the

search did not fall under any other exception to the Fourth

Amendment’s warrant requirement. The district court, however,

did not clearly err in finding that the officers had consent

5
from Ballard and Elliot to search the basement area for weapons,

or that, in the alternative, exigent circumstances validated the

warrantless search.

A.

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and

effects against unreasonable searches and seizures, shall not be

violated . . . .” U.S. Const. amend. IV. The Fourth Amendment,

therefore, protects against warrantless searches of homes.

But “the Amendments are not rigid; they protect by insisting on

judicial oversight, not by pressing inflexible rules,” Mora v.

City of Gaithersburg, 519 F.3d 216, 222 (4th Cir. 2008), and

this general rule is “subject to certain exceptions,” Brigham

City v. Stuart, 547 U.S. 398 (2006).

We first consider Toyer’s argument that the officers did

not have consent to search his residence for weapons. Valid

consent is a well-recognized exception to the Fourth Amendment’s

prohibition against warrantless searches. Illinois v. Rodriguez,

497 U.S. 177, 181 (1990); United States v. Neely, 564 F.3d 346,

350 (4th Cir. 2009) (per curiam); Trulock v. Freeh, 275 F.3d

391, 401 (4th Cir. 2001). The government bears the burden of

establishing, by a preponderance of the evidence, that it

obtained valid consent to search. See United States v. Buckner,

6
473 F.3d 551, 554 (4th Cir. 2007); United States v. Block, 590

F.2d 535, 539 (4th Cir. 1978).

A consent must be (1) knowing and voluntary, and (2) given

by one with authority to consent. Buckner, 473 F.3d at 554.

There is no question in this case that any consent given by

Ballard and Elliot was knowing and voluntary. 1 The analysis then

turns to whether the person giving consent had apparent

authority and whether the police officers exceeded the scope of

the given consent.

A warrantless search can be justified by showing permission

to search by “a third party who possessed common authority over

or other sufficient relationship to the premises or effects

sought to be inspected.” United States v. Matlock, 415 U.S.

164, 171 (1974). The defendant is not the only person with

1
In her direct examination at the motions hearing, Ballard
stated that although she authorized the officers to enter the
house, she never consented to a search of the house:

Q: Other than saying they could step inside the
house, did you say that they could search the house?

A: No. No, I did not.

J.A. 106. Nevertheless, the district court declined to credit
Ballard’s testimony in this regard, finding that the facts
clearly showed that both Ballard and Elliot were “clearly upset
and disturbed and wanted something done about [the situation]”
and that Ballard’s grand jury testimony indicated the same.
J.A. 185. We have no occasion to question the district court’s
credibility determinations, and we therefore fully accept the
court’s finding that Ballard gave consent to search the house at
the same time that Elliot also gave consent.

7
authority to consent to a search of his home or residence;

authority arises from mutual use of the property by those with

joint access or control. Trulock, 275 F.3d at 403. “Common

authority” is not merely a question of property interest but

requires evidence of “mutual use” by one generally having “joint

access or control for most purposes.” Matlock, 415 U.S. at 171

n.7. Such use makes it “reasonable to recognize that any of the

co-[users] has the right to permit the inspection in h[er] own

right and that the other have assumed the risk that one of their

number might permit the common area to be searched.” Id. In

the context of a house, a co-habitant of the house may give

valid consent to search even if other co-habitants have not

given consent. United States v. Hylton, 349 F.3d 781, 785 (4th

Cir. 2003).

A lack of actual authority, however, does not render

consent invalid. The government may also show that a third

party had apparent authority to consent to the search.

Rodriguez, 497 U.S. at 188; see also Buckner, 473 F.3d at 555.

An officer can reasonably believe that a third party has

apparent authority to consent to a search if the facts available

to the officer warrant a person of reasonable caution in the

belief that the consenting party had authority. Rodriguez, 497

U.S. at 188. Evidence obtained by the police acting under a

reasonable belief that a third party had authority to grant a

8
valid consent need not be suppressed. United States v. Kinney,

953 F.2d 863, 866-67 (4th Cir. 1992).

Here, Ballard, who lived at the residence with her brother,

the defendant, had authority to give consent to search the

house, and it was also reasonable for the officers to believe

that Elliot had authority to consent to the search of the house.

Any officer responding to the 911 call at that residence would

have faced circumstances where they could reasonably infer that

both Ballard and Elliot had authority to give consent to search:

when the officers arrived at the residence, both women met them

outside the house and repeated to the police that Toyer had a

gun, was in the house, and was in the basement where he

regularly stored his guns.

Although Toyer argues that the officers exceeded the scope

of any valid consent because Ballard and Elliot only gave

permission to enter the house to search for him, and not for any

weapons, his argument is not persuasive. The scope of consent

for a search is “objective reasonableness,” or rather, what a

reasonable person would have understood from the exchange

between the officer and consenting person. Florida v. Jimeno,

500 U.S. 248, 251 (1991). When an official search is properly

consented to, the scope of the search is limited by the terms of

the authorization. Walter v. United States, 447 U.S. 649, 656-

57 (1980).

9
 We have held that a consenting person need not even give

explicit and express consent to search for a reasonable officer

to understand that valid consent was given. See Hylton, 349

F.3d at 786 (holding that consent may be inferred from actions

as well as words); United States v. Wilson, 895 F.2d 168, 170

(4th Cir. 1990) (finding consent where defendant raised his arm

after agent asked him permission for a pat down search); see

also United States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010)

(finding implied consent for police to enter and search home for

defendant where consenting person had called 911, and also

voluntarily told the police where the defendant was hiding in

the house); United States v. Buetter-Janusch, 646 F.2d 759, 764

(2d Cir. 1981) (“[A] search may be lawful even if the person

giving consent does not recite the talismanic phrase: ‘You have

my permission to search.’”).

We found, in Hylton, implicit consent to search the

apartment in which the defendant and his girlfriend lived based

on the circumstances and the girlfriend’s words. 349 F.3d at

786. This court found that the girlfriend gave the police

consent to search the apartment to enable her to return to the

apartment safely, and that the officers reasonably inferred that

she authorized them to retrieve the gun that had put her at

risk. Id. We were also persuaded by the fact that the

girlfriend had advised the officers of the specific

10
circumstances inside the apartment, concluding that “when a

tenant calls police for assistance . . . expressing fear about

the presence of a gun, and describing precisely where the gun is

located, it can be inferred that she is authorizing the police

to enter the apartment and retrieve the gun.” Id. at 786-87.

The situation here — one of a domestic dispute involving

threats of violence with a gun — is similar to the situation in

Hylton, and even if Ballard and Elliot did not give express

consent to search the house for weapons, the officers reasonably

inferred that such implicit consent had been given. The

government’s burden is heavier where consent is not explicit,

since consent is not lightly to be inferred. Neely, 564 F.3d at

350 (citing United States v. Impink, 728 F.2d 1228, 1232 (9th

Cir. 1984)). But the government meets the burden in this case.

In their testimony, both officers stated that Ballard and Elliot

seemed concerned and scared that Toyer had threatened Elliot

with a gun, and told the officers that Toyer was in the basement

of the house with the weapon. Additionally, Elliot told Officer

Adams that the gun was on a shelf, but then later told another

officer that the gun may have been in the drop ceiling. Though

she did not explicitly state “I consent for you to search the

basement area for the gun,” it is reasonable to believe that a

rational officer would find her statements about the whereabouts

of the gun to be consent to search for the gun. Furthermore, it

11
is reasonable for the officers responding to the frantic 911

call to believe that both Ballard and Elliot were giving consent

for the officers to enter the house, search for Toyer and his

weapon, and diffuse the potentially dangerous situation.

Although the officers made it clear to Ballard and Elliot

after they had detained and secured Toyer that they were

searching for the gun, even asking the two women if they knew

where the gun was kept, neither woman withdrew her permission to

search the house for the weapon. And while Toyer, who was a co-

habitant of the house, could have expressly refused consent for

the police to enter and search the house for weapons, he did no

such thing even after he was detained and knew that the officers

were continuing to search the basement for a weapon. 2 See

2
There is some dispute as to whether Toyer explicitly told
the officers that they did not have his consent to search the
house, but the record persuasively convinces us that he did not.
First, during his testimony at the motions hearing, Officer
Adams was asked whether he had heard Toyer state at any point
that they could not search his house without a warrant. Officer
Adams replied that he had not. J.A. 120. Second, although
Ballard testified that she heard her brother explicitly deny
consent to search, the district court found that her testimony
was not credible:

I do not credit the testimony of the sister at all on
the notion that he invoked his right to be free from
unreasonable searches and seizures. My understanding
from what I’ve heard and in this testimony is that he
simply refused to come upstairs.

J.A. 182. Given the high standard and deference we give to a
district court’s factual finding, and given the testimony of the
(Continued)
12
Georgia v. Randolph, 547 U.S. 103, 123 (2006) (holding that

where there was an express refusal of consent to search from a

co-habitant, the consent of the fellow occupant is not valid).

Therefore, it is clear that the officers had valid consent from

Ballard and Elliot to search the house and all evidence found

during that search was correctly admitted.

B.

Not only did the officers have valid consent to justify the

warrantless search, but the search of Toyer’s residence was also

valid because of exigent circumstances. It is well-established

that even when an officer has probable cause to believe that

contraband is present in a home, a warrantless search of the

home is unlawful unless exigent circumstances exist at the time

of entry. United States v. Mowatt, 513 F.3d 395, 399 (4th Cir.

2008) (citing Payton v. New York, 445 U.S. 573, 589 (1980)).

Exigent circumstances justify a warrantless search when an

officer would have an objectively reasonable belief that an

officers that they did not hear Toyer refuse consent to search
the house, we cannot find that the district court committed a
clear error in finding that Toyer stayed silent with respect to
the search of the house. See also Ornelas v. United States, 517
U.S. 690, 699 (1996) (reviewing factual findings by “giving due
weight to inferences drawn from those facts by resident judges
and local law enforcement officers”).

13
emergency existed that required immediate entry to render

assistance or prevent harm. United States v. Moss, 963 F.2d

673, 678 (4th Cir. 1992). The government bears the burden of

demonstrating that exigent circumstances existed to overcome the

presumption of unreasonable search and entry. See Mowatt, 513

F.3d at 399. Exigency is determined at the moment the search

occurs. Id. Exigent circumstances exist in situations

involving a “risk of danger to the police or to other persons

inside or outside the dwelling,” as well as in situations where

officers have probable cause to believe that there is illegal

activity present, where there is a compelling need for official

action, and where there is no time to secure a warrant. United

States v. Moses, 540 F.3d 263, 270 (4th Cir. 2008) (quoting

Minnesota v. Olson, 495 U.S. 91, 100 (1990)); see also Michigan

v. Tyler, 436 U.S. 499, 509 (1978). In ascertaining whether an

officer acted reasonably in determining whether urgency existed,

the court must look at the events and officer’s knowledge

immediately prior to commencing the search and apply an

objective standard. Moses, 540 F.3d at 273; Hunsberger v. Wood,

570 F.3d 546, 554 (4th Cir. 2009).

We have articulated a nonexhuastive list of factors for the

police to consider when determining whether exigent

circumstances are present: “(1) the degree of urgency involved

and the amount of time necessary to obtain a warrant; (2) the

14
officers’ reasonable belief that the contraband is about to be

removed or destroyed; (3) the possibility of danger to police

guarding the site; (4) information indicating the possessors of

the contraband are aware that the police are on their trail; and

(5) the ready destructability of the contraband.” United States

v. Turner, 650 F.2d 526, 528 (4th Cir. 1981).

We have no hesitation in concluding that exigent

circumstances existed in this case. The record reflects that

officers responded to a frantic 911 call about a man threatening

an occupant of a residence with a firearm. Having gleaned the

reason for responding to the 911 call, and after arriving at

Toyer’s residence and talking to Ballard and Elliot, any

reasonable officer would have believed that urgent circumstances

necessitated a warrantless search of the basement for a gun. In

her 911 call, Elliot stated specifically that she was threatened

by Toyer with a handgun, and this information was conveyed to

the responding officers. After arriving at the house, both

Ballard and Elliot confirmed and repeated that Toyer had a gun,

was intoxicated, and had threatened to shoot Elliot. Both

Officers Adams and Weathers understood that the urgency existed

in not only finding and physically securing Toyer, but also in

securing the handgun used in the threat. See Moses, 540 F.3d at

270 (finding exigent circumstances for a warrantless search

where officers suspected a dangerous person in the dwelling);

15
Mowatt, 513 F.3d at 399 (finding exigent circumstances where the

officers had a reasonable suspicion that the defendant had a

weapon in his house).

Furthermore, the officers only searched the house for Toyer

and his firearm — the person and item that posed the risk in

this situation. At no time did they exceed the scope of their

authority to search by looking around the house for other

contraband. In fact, Officer Adams’ search was constrained

specifically to the basement, where Ballard and Elliot had told

him that Toyer kept a gun, and he only looked in the places that

Elliot had advised him that Toyer might have kept the gun — on

the shelves and in the drop ceiling, but never in any drawers or

other areas not in plain sight. The officers’ actions further

persuade us that they reasonably believed that the urgency and

safety risks posed by this situation required them to secure

both Toyer and his weapon. This was not a situation where “a

search that is far more intrusive than necessary to accomplish

its purpose may raise questions as to whether the proffered

explanation for the search is the true one.” United States v.

Johnson, 410 F.3d 137, 146 (4th Cir. 2005) (adhering to the

principle that warrantless entry for emergency reasons cannot be

used as an excuse for discovery of other items not related to

the purpose of the entry). Therefore, exigent circumstances

necessitated the warrantless search of Toyer’s residence not

16
only to secure him, but also the weapon he used to threaten

other occupants of the house.

III.

We turn now to Toyer’s contention that the district court

erred in sentencing him under the Armed Career Criminal Act

(“ACCA”), which imposes a fifteen-year mandatory minimum

sentence for any defendant who violates 18 U.S.C. § 922(g) and

who has three prior convictions for “serious drug offense[s]” or

“violent felon[ies].” 18 U.S.C. § 924(e)(1). Toyer concedes

that he violated 18 U.S.C. § 922(g) and does not contest the

district court’s determination that his 1996 and 2002

convictions for possession with intent to distribute cocaine

constitute “serious drug offense[s]” under the ACCA. See 18

U.S.C. § 924(e)(2)(A). Instead, Toyer argues that the third

conviction used as an ACCA predicate – a 2004 conviction for

second-degree assault in Maryland in violation of Md. Code.

Ann., Crim. Law § 3-203 (the “Maryland conviction”) – is invalid

because the crime was not a “violent felony” under 18 U.S.C.

§ 924(e)(2)(B)(i).

A.

In evaluating Toyer’s argument, we keep several facts in

mind. The first is that while the ACCA provides two specific

17
definitions of the term “violent felony,” only one is at issue

here. The government has not argued that the Maryland

conviction is a violent felony under the so-called “otherwise

clause” of the ACCA, which defines a violent felony as any crime

that “is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” 18

U.S.C. § 924(e)(2)(B)(ii). So we are confined to evaluating the

district court’s determination that the Maryland conviction

qualifies as an ACCA predicate under what is known as the “force

clause.” See 18 U.S.C. § 924(e)(2)(B)(i). That provision

states that a violent felony is any offense that “has as an

element the use, attempted use, or threatened use of physical

force against the person of another.” Id.

The second fact we keep in mind involves the methodology of

determining whether or not the Maryland conviction constitutes a

“violent felony.” The preferred approach for evaluating whether

prior convictions qualify as “violent felonies” and thus as ACCA

predicates is the categorical approach, under which we look only

to the fact of conviction and the statutory elements of the

offense. See Taylor v. United States, 495 U.S. 575, 600-02

(1990); United States v. Harcum, 587 F.3d 219, 222 (4th Cir.

2009) (“In assessing whether an offense constitutes an ACCA

predicate offense, we must first utilize the categorical

18
approach. As we have recently explained, we are obliged, under

that approach, to analyze the offense generically – that is, by

relying solely on its essential elements, rather than on the

particular underlying facts.”) (internal quotations omitted).

In Johnson v. United States, 130 S. Ct. 1265 (2010), the

Supreme Court held that in order for a crime categorically to be

a violent felony under 18 U.S.C. § 924(e)(2)(B)(i), it must have

the use of violent force as an element. See Johnson, 130 S. Ct.

at 1271. Here, the government has conceded that Maryland

second-degree assault does not include use of violent force as

an element of the crime. That concession makes good sense; the

statutory definition of Maryland second-degree assault is so

broad that it is impossible to tell based on the elements alone

whether or not a defendant “use[d] . . . physical force against

the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see

Harcum, 587 F.3d at 224 (“Maryland ‘common-law assault is not

per se a violent felony within the meaning of

§ 924(e)(2)(B)(i).’”) (quoting United States v. Coleman, 158

F.3d 199, 204 (4th Cir. 1998)).

Accordingly, we must turn to the modified categorical

approach set forth in Shepard v. United States, 544 U.S. 13, 26

(2005). See Harcum, 587 F.3d at 223 (“[W]hen the fact of

conviction and the statutory definition of the offense are

unduly vague or ambiguous, a sentencing court is entitled to

19
turn to and apply the alternative ‘modified categorical’

approach.”). Under that approach, we may look to a circumscribed

set of court documents to determine whether or not a prior

conviction constitutes an ACCA predicate. In particular, we may

consider “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,

130 S. Ct. at 1273, in determining whether or not Toyer

“necessarily admitted” facts amounting to a violent felony under

the ACCA, Shepard, 544 U.S. at 24. With these principles in

mind, we turn to whether the district court erred in determining

that the Maryland conviction was an ACCA predicate.

B.

The only Shepard-approved document on record with respect

to the Maryland conviction is the transcript of Toyer’s plea

colloquy in the Circuit Court of Maryland. 3 As a result, it is

worth setting out the colloquy in some detail. Early on, while

confirming that Toyer’s plea was voluntary and free of coercion,

3
The Government initially argued that the district court
was allowed to consider the Maryland District Court’s Statement
of Probable Cause in determining whether the Maryland conviction
(which occurred in Maryland Circuit Court) was an ACCA
predicate. The government has abandoned that argument in light
of our decision in Harcum. See Harcum, 587 F.3d at 224-25.

20
the judge asked Toyer whether he was actually guilty of second-

degree assault. Toyer agreed that he was:

THE COURT: You’re pleading guilty because you are, in
fact, guilty of a second degree assault?
MR. TOYER: Yes, sir.

After asking a few more questions designed to ensure Toyer’s

understanding of the proceedings, the judge asked the prosecutor

to set forth the factual basis for the plea. In response, the

prosecutor described the basic facts of the case:

Your Honor, had this matter proceeded to trial
the State would show that on January 1, 2004 . . . the
victim, Carmen Pickford, and her boyfriend, Lamont
Toyer . . . . got into an argument over the fact that
Ms. Pickford had allegedly seen another man while Mr.
Toyer was unavailable. The defendant, the victim
called the police . . . and she told the police the
defendant had pulled a handgun on her and threatened
her with that handgun.
When the police arrived they did search the area
where Mr. Toyer was sitting and found a handgun
underneath the seat of the cushion of the couch that
he was sitting on. The defendant made a statement to
the police that his prints weren’t on that particular
weapon. The gun actually was test fired and found to
be operational.

The court then asked Toyer if he “agree[d] that’s basically what

happened,” and Toyer’s counsel responded as follows:

MR. BEAU: Your Honor, we’ll agree that’s the evidence
they presented. My client says I have no involvement
with the gun involved. I did have a fight with her
and that’s part of the reason that the case is being
resolved this way.
THE COURT: All right, I’m going to accept the plea
and enter a finding of guilty as to Count II.

21
 If Toyer actually did threaten Pickford with a handgun, his

crime would amount to a violent felony under the ACCA. A threat

involving a handgun plainly constitutes the “threatened use of

physical force against the person of another” within the meaning

of 18 U.S.C. § 924(e)(2)(B)(i). After all, threatening someone

with a handgun necessarily entails threatening them with “force

capable of causing physical pain or injury to another person.”

Johnson, 130 S. Ct. 1271; see United States v. Cook, 26 F.3d

507, 509 (4th Cir. 1994) (using a handgun to threaten a state

witness constitutes a violent felony under 18 U.S.C.

§ 924(e)(2)(B)(i)). By contrast, if the dispute between Toyer

and Pickford was a purely verbal argument involving no threats

of force, Toyer’s crime would not qualify as an ACCA predicate.

See 18 U.S.C. § 924(e)(2)(B)(i).

C.

Toyer contends that our decision in United States v.

Alston, 611 F.3d 219 (4th Cir. 2010), forecloses us from

concluding that he committed a violent felony based on his

alleged threat with a handgun because his attorney disclaimed

Toyer’s “involvement with the gun involved.”

22
 1.

In Alston, we determined that a prior conviction for

Maryland second-degree assault could not constitute a “violent

felony” under the ACCA where the defendant entered an Alford

plea. Alston, 611 F.3d at 220-21; see North Carolina v. Alford,

400 U.S. 25 (1970). As in this case, the court had to apply the

modified categorical approach because Maryland second-degree

assault was not categorically a violent felony. Id. at 223.

Under Shepard, however, courts may only rely on facts “inherent

in the conviction” or “admitted by the defendant” in determining

the predicate status of a conviction. Id. at 226.

In Alston’s case, the use of violent force was not inherent

in his conviction. Nor was it admitted by the defendant; while

the prosecutor’s proffer during the plea colloquy suggested that

Alston had “pointed a gun at three individuals and threatened to

kill them,” the fact that Alston entered into an Alford plea

meant that he had “pleaded guilty without admitting these

facts.” Id. at 227. Indeed, in response to the proffer, Alston

quite clearly stated, “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 penalty. So I want the deal, but I don’t want to

say I did the crime.” Id. at 223. Thus, because Alston had not

admitted facts establishing that his crime was a “violent

23
felony,” the court concluded that his Maryland second-degree

assault conviction could not serve as an ACCA predicate.

Toyer argues we should reach the same result here because

his attorney attempted to disavow Toyer’s involvement with the

handgun found at the scene. When the court asked if the

prosecutor’s proffer set forth “basically what happened,”

Toyer’s attorney agreed that the proffer set forth “the evidence

they presented,” but went on to note that his client had “no

involvement with the gun involved” and instead merely had a

fight with the victim. Based on that statement, Toyer argues

that his plea was the functional equivalent of an Alford plea

with respect to his alleged use of a handgun. In other words,

Toyer contends that the colloquy cannot serve as proof that

Toyer committed a violent felony because Toyer refused to admit

to the one fact that would support such a determination.

The principal difficulty with this argument, however, is

quite simply that Toyer, unlike Alston, did not tender an Alford

plea. Indeed, during the entire plea colloquy, Toyer neither

disclaimed his guilt of second-degree assault nor voiced a

desire to enter an Alford plea. To the contrary, Toyer

expressly acknowledged his guilt immediately before the

prosecutor’s proffer:

THE COURT: You’re pleading guilty because you are, in
fact, guilty of a second degree assault?
MR. TOYER: Yes, sir.

24
(emphasis added). Toyer’s conduct at the plea colloquy was, in

short, designed to do one thing – facilitate the court’s

approval of his guilty plea. And for good reason – the plea

allowed Toyer to cut his prison exposure by half. Toyer’s

indictment charged him with one count of first-degree assault,

one count of second-degree assault, and one count of use of a

handgun in the commission of a crime of violence. Second-degree

assault was by far the least serious of these charges, carrying

a maximum ten-year prison term in comparison with the twenty-

five year maximum term for first-degree assault and the five-

year mandatory minimum and twenty-year maximum term for the

handgun charge. See Md. Code. Ann., Crim. Law §§ 3-202 (first-

degree assault), 3-203 (second-degree assault), 4-204 (use of

handgun in commission of crime).

Given these circumstances, Toyer willingly admitted his

guilt of second-degree assault to avoid prosecution on the other

counts. His conduct stands in stark contrast to that of Alston,

who expressly refused to say that he “did the crime” before

tendering a formal Alford plea.

Our distinguished colleague in dissent argues that this

distinction does not matter – that it “will not do” to give

“talismanic significance to the label ‘Alford plea,’” see

Dissenting Opinion at 34. However, the distinction between

25
Alford and non-Alford pleas is indeed critical because the two

categories differ in a number of salient ways. For example, in

an Alford plea, the defendant maintains his innocence but pleads

guilty because “his interests require entry of a guilty plea.”

Alford, 400 U.S. at 37. By contrast, in a traditional guilty

plea, the defendant “admi[ts] that he committed the crime

charged against him.” Alford, 400 U.S. at 32. What is more,

the prosecutor’s proffer of the factual basis for the plea

serves a fundamentally different purpose in each type of plea

agreement. In an Alford plea, the prosecutor tenders a proffer

to ensure the voluntariness of the plea. In the words of the

Alford Court, the proffer “provide[s] a means by which the judge

[can] test whether the plea [i]s being intelligently entered.”

See id. at 37-38. In a non-Alford plea, however, the proffer

defines and frames the agreement, clarifying the nature of the

offense to which the defendant has decided to plead.

It thus makes little sense to treat Alford and non-Alford

pleas as fungible. That is especially true where, as here, a

defendant seeks to carve out a subset of non-Alford pleas for

special treatment. Alford pleas, like traditional guilty pleas,

have a well-defined meaning and occupy a well-defined niche in

the law of plea agreements: an Alford plea serves as a formal

expression of disagreement with the factual basis for one’s plea

agreement. See Alston, 611 F.3d at 226. “Quasi-Alford” or

26
“faux-Alford” pleas, by contrast, stand on much shakier

doctrinal footing, and we see no reason to fashion such a

category from whole cloth.

As a result, we cannot agree with our colleague’s view that

Alston is “binding.” See Dissenting Opinion at 34, 35, 39.

Alston never once suggested that its holding reached outside the

context of formal Alford pleas. Because Toyer’s offhanded

disavowal of the prosecutor’s proffer did not constitute an

Alford plea, his case does not fall within Alston’s ambit. In

other words, Alston could not be more different, and it does not

control the outcome here.

2.

The lack of an Alford plea is not the only difficulty with

Toyer’s argument. In Shepard, the Court determined that “any

sentence under the ACCA” must “rest on a showing that a prior

conviction ‘necessarily’ involved (and a prior plea necessarily

admitted) facts” sufficient to establish ACCA-predicate status.

Shepard, 544 U.S. at 24. Here, Toyer argues that he did not

“necessarily admit[ ]” to having used a handgun in a threatening

fashion, meaning that his conviction is not a violent felony.

But Toyer’s argument collapses on itself.

The prosecutor’s proffer established that the dispute

between Toyer and his girlfriend had two parts: a verbal

27
argument followed by Toyer’s threatening use of a handgun.

Under Maryland law, the verbal argument does not constitute

second-degree assault; a purely verbal exchange devoid of

threats would not involve the actual, attempted, or threatened

use of “unlawful force.” Kellum v. State, 162 A.2d 473, 176

(Md. 1960); see Cruz v. State, 963 A.2d 1184, 1188 n.3 (Md.

2009). 4 Indeed, as the district court recognized, and as Toyer

does not dispute, “You can’t commit an assault by arguing. The

only way you can commit an assault is to put somebody in fear of

an impending battery. In other words, a force being applied to

your person.”

As a result, the only possible factual basis for the

Maryland conviction was the threat involving a handgun. Thus,

only one of two results can possibly obtain. Either Toyer did

“necessarily admit[ ]” to using a handgun, or he entered a plea

without any factual basis. Under this latter scenario, Toyer’s

plea to second-degree assault would have been unlawful. With

respect to Toyer, this result would likely have necessitated a

4
In particular, Maryland’s second-degree assault statute
states that “[a] person may not commit an assault,” Md. Code
Ann., Crim. Law § 3-203, and the statute elsewhere defines the
term “assault” to mean “the crimes of assault, battery, and
assault and battery, which retain their judicially determined
meanings,” Md. Code Ann., Crim. Law § 3-201. Maryland case law,
in turn, defines “battery” to require “unlawful force used
against the person of another, no matter how slight,” Kellum,
162 A.2d at 476.

28
trial and possible conviction on the other charges. By the same

token, the judge would have acted improperly in accepting a plea

without a factual basis. Indeed, had the judge been sitting in

federal court, such conduct would amount to a clear violation of

Federal Rule of Criminal Procedure 11(b)(3), which requires a

judge entering a plea to “determine that there is a factual

basis for the plea.” Fed. R. Crim. P 11(b)(3). Even in state

court, the judge’s conduct might raise constitutional concerns.

See, e.g., Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979)

(“[W]e hold that, when a defendant pleads guilty while claiming

his or her innocence, the court commits constitutional error in

accepting the plea unless the plea is shown to have a factual

basis.”). 5

5
Our colleague in dissent argues that this point is a
nonstarter insofar as “exactly the same thing can and must be
said about the prosecutor’s factual proffer in support of the
Alford plea in Alston.” See Dissenting Opinion at 36. But that
analysis misses the mark. Alford declared that it was not
unconstitutional for a court to accept “a plea containing a
protestation of innocence” where the defendant “intelligently
concludes that his interests require entry of a guilty plea and
the record before the judge contains strong evidence of actual
guilt.” Alford, 400 U.S. at 37. But Alford did nothing to
disturb the hornbook principle that a non-Alford plea without a
factual basis would be unconstitutional. See Willett, 608 F.2d
at 540; see also Alford, 400 U.S. at 38 n.10 (“A criminal
defendant does not have an absolute right under the Constitution
to have his guilty plea accepted by the Court.”). In other
words, while defendants are free to enter Alford pleas, with all
of their attendant formalities, see Zinkand v. Brown, 478 F.3d
634, 635-36 (4th Cir. 2007) (example of an Alford plea
colloquy), they cannot obtain the benefit of Alford pleas by
(Continued)
29
 Of course, Toyer did not assert that his plea agreement was

illegal back in 2004, and he does not make any such assertion

now. By all accounts, Toyer was satisfied with the outcome of

the plea negotiations. There is a simple reason for this fact:

the plea agreement was favorable to Toyer. At bottom, then,

Toyer wants contradictory things from the Maryland conviction.

On the one hand, he wants his second-degree assault plea to

stand because it significantly reduced his potential prison

exposure. On the other hand, he seeks to undermine the factual

basis for that very conviction in order to bar a career criminal

sentence under the ACCA. In other words, Toyer wants the

benefits of an Alford plea without having actually entered one.

Toyer cannot have it both ways. Toyer knowingly pled guilty to

the crime described by the prosecutor and “necessarily admitted”

his use of a handgun, meaning that his offense is indeed a

violent felony. 6

acquiescing in non-Alford arrangements of dubious
constitutionality. Our colleague’s analysis thus suffers from
the same difficulty as earlier: the insistence that Alford pleas
and non-Alford pleas must be treated alike.
6
Even the statements Toyer’s counsel made reinforce the
conclusion that Toyer committed a violent felony. Those
statements cannot be divorced from the fact that Toyer pled
guilty to second-degree assault based on what his attorney
described as a “fight” with Toyer’s girlfriend that resulted in
her calling the police. It would be quite a stretch of the
imagination to conclude from the colloquy that Toyer’s actions
(Continued)
30
 3.

Finally, it is well to take a step back and examine the

consequences of adopting Toyer’s approach. Alston presents a

clear and easy-to-administer rule given that parties and courts

alike are and will continue to be well aware of how Alford pleas

work. Toyer invites us to reject this approach and to create a

new category of “quasi-Alford” plea agreements for ACCA purposes

that is far less determinate. Such an approach would make the

ACCA sentencing process even more abstruse than it already is

and would inject yet another layer of uncertainty into an

already complex process.

Moreover, the “quasi-Alford” plea would encourage

gamesmanship at sentencing hearings. The temptation would no

doubt be great for defense counsel to quibble about the evidence

presented in a plea colloquy in order to tee up a contest to a

possible future ACCA sentence. In such circumstances, even the

slightest and most fleeting observation voiced during a plea

colloquy would force reviewing courts to struggle with knotty

questions about exactly how much uncertainty dooms a putative

did not involve the use or threatened use of violent force, see
Johnson, 130 S. Ct. at 1271, and instead amounted to some benign
form of assault like “kissing without consent, touching or
tapping, jostling, and throwing water upon another,” United
States v. Kirksey, 138 F.3d 120, 125 (4th Cir. 1998) (quoting
Epps v. State, 634 A.2d 20, 23 (Md. 1993)).

31
ACCA predicate, or worse, begin to parse plea colloquy

transcripts for magic words. In short, sentencing hearings

would turn into nothing less than forums for relitigating the

defendant’s earlier plea colloquies to a far greater extent than

at present. This result is fundamentally at odds with Taylor

and Shepard, which sought “to protect sentencing courts from

becoming forums in which the prosecution and defense attempt to

reproduce the defendant’s earlier trial.” United States v.

Dean, 604 F.3d 169, 175 (4th Cir. 2010).

There is little need for us to encourage such

uncertainties. Since 1970, a defendant who wishes to dispute

the factual basis for his plea has had several options. He can

seek to withdraw the plea. He can attempt to offer some kind of

alternative factual basis. Or he can enter an Alford plea. If

he avails himself of the last approach, Alston will prevent the

resulting conviction from serving as an ACCA predicate. But

when defendants like Toyer refuse each and every one of these

options – either because they wish to acknowledge their guilt or

because they seek a more favorable sentencing outcome – they

necessarily fall outside Alston’s borders.

32
 IV.

Because Alston’s challenges to the search of his residence

and to his sentence are without merit, the judgment of the

district court is hereby affirmed.

AFFIRMED

33
DAVIS, Circuit Judge, concurring in part and dissenting in part:

I concur in the panel’s resolution of Toyer’s Fourth

Amendment claim, but I dissent from its resolution of his

sentencing claim. If Alston is correctly decided, then this case

is wrongly decided. If this case is correctly decided, then

Alston most assuredly is incorrectly decided.

There is no more support for a “violent felony”

determination in the sole Shepard-approved document available to

the court in this case (i.e., the transcript of the guilty plea

proceeding in which Toyer pled guilty to second-degree assault

under Maryland law) than there is for a “violent felony”

determination in the sole Shepard-approved document available to

the court in Alston (i.e., the transcript of the guilty plea

proceeding in which Alston pled guilty to second-degree assault

under Maryland law). In each case, the defendant pled guilty. In

each case, only the use of a gun by the defendant elevated the

second-degree assault to a “violent felony” under the ACCA. In

each case, the use of a gun was not “inherent” in the offense of

conviction, thereby necessitating resort to the “modified

categorical” approach to the ACCA determination. In each case,

there is neither an admission by the defendant nor an

adjudication by the court that the defendant used a gun to

commit the assault.

34
 How, then, does the majority manage to skirt the

application of binding precedent in this case? It appears there

are three reasons offered, which neither singly nor in the

aggregate genuinely distinguishes this case from Alston.

A.

First, the majority would give talismanic significance to

the label “Alford plea.” But this will not do. If we had

occasion to apply the Taylor/Shepard “categorical test,” rather

than the “modified categorical test” necessitated by the

expansive elements of the Maryland second-degree assault

offense, it is clear that an “Alford plea” would be treated

exactly like a more traditional guilty plea for purposes of the

ACCA. See United States v. Vinton, --- F.3d ---, ---, 2011 WL

31526, *8 (8th Cir. Jan. 6, 2011)(finding state court conviction

for second degree burglary qualifies defendant for ACCA

treatment notwithstanding that conviction was pursuant to an

Alford plea, distinguishing Alston); see also Note, Admitting

Guilt by Professing Innocence: When Sentence Enhancements Based

on Alford Pleas are Unconstitutional, 63 Vand.L.Rev. 1755, 1758

n.16 (2010) (“An enhancement based simply on the fact of a prior

conviction, even if that prior conviction was pursuant to an

Alford plea, is constitutional . . . . [A]ll federal circuits

35
have, at least in some form, held that an Alford plea is

functionally a guilty plea.”). 1

Thus, Alston’s binding holding rests not simply on the mere

fact that Alston tendered an Alford plea in state court, but

rather, as Alston makes perfectly clear, the fact that “Alston

did not adopt or accept the facts proffered by the government.”

United States v. Alston, 611 F.3d 219, 223 (4th Cir. 2010) (“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 proffered by the

government.” (emphasis added)). 2 As the majority forthrightly

1
Accordingly, contrary to the majority’s view of the
matter, it is of no moment whatsoever that “Toyer willingly
admitted his guilt of second-degree assault.” Maj. Op. 25. Of
course he did; the dispositive question under Alston, however,
is whether the guilty plea transcript discloses that Toyer
“admitted” he used a gun in committing second-degree assault. As
the majority is required to acknowledge, not only did Toyer not
admit any such thing, he (through counsel) affirmatively denied
the relevant fact. If anything, the lack of an admission in this
case is demonstrated even more strongly than in Alston because
it is explicit, not buried in the vagaries of an Alford plea.
2
Thus, the majority is wrong to state:

Since 1970, a defendant who wishes to dispute the
factual basis for his plea has had several options [,
including the option of] an Alford plea . . . . If
[he] avails himself of [an Alford plea], Alston will
prevent the resulting convictions from serving as an
ACCA predicate.

Maj. op. at 32 (alterations added). If a state court judge is
willing, under an Alford rubric or otherwise, to accept a guilty
plea from a defendant who denies the facts proffered by the
(Continued)
36
acknowledges in the case at bar, precisely the same thing is

true here. For present purposes, “[t]he distinguishing feature

of an Alford plea is that the defendant does not confirm the

factual basis for the plea.” United States v. Savage, 542 F.3d

959, 962 (2d Cir. 2008). That feature virtually leaps from the

pages of Toyer’s plea proceeding transcript before us.

B.

Second, it appears the majority believes that Toyer must be

deemed (for ACCA purposes) to have admitted using the gun to

assault his girlfriend when he pled guilty because otherwise the

state judge’s acceptance of his guilty plea would have been

constitutionally suspect. See Maj. op. at 29 (citing Willett v.

Georgia, 608 F.2d 538, 540 (5th Cir. 1979)). With respect, it is

utterly beyond me how the majority cannot see that exactly the

same thing can and must be said about the prosecutor’s factual

proffer in support of the Alford plea in Alston, in which the

conviction for second-degree assault under Maryland law rested

prosecutor, as did the state court judge in Toyer’s case, there
is not a thing this or any federal court will be able to do
about it. If, in such a circumstance, a subsequent federal court
must apply the “modified categorical” approach to an ACCA
determination, Alston will dictate the result, exactly as it
does here, regardless of whether the plea is labeled an Alford
plea.

37
solely on the fact that Alston had pointed a handgun at three

people and threatened to “kill them all.” See 611 F.3d at 223

(“[T]he prosecutor outlined the evidence 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.”).

In both cases, if one excises from the factual basis recited to

the state court in support of the guilty plea the defendant’s

use of a handgun, there is no crime. 3 The constitutional

propriety of the underlying conviction, an issue not before us

in any event, stands on equal footing in both cases. This

purported ground of distinction does not withstand scrutiny.

3
I note that at the government’s urging, the majority has
waded into an analysis of the apparent benefits Toyer enjoyed in
entering into the plea agreement with the state. Consideration
of such data has absolutely nothing whatsoever to do with the
application of the modified categorical approach to the
determination of the “violent felony” question under the ACCA.

In any event, the government’s argument is unavailing. The
government argues that by stating that his client did not accept
the state’s proffer about the gun, Toyer’s counsel “was
attempting to ensure that his client’s conviction was for
second-degree assault, rather than for first-degree assault or
use of a handgun in the commission of a crime of violence.”
Supp. Br. at 9. There is nothing in the record to support this
contention. To the contrary, at the beginning of the state court
proceeding, it was made clear that Toyer was pleading guilty to
second-degree assault. J.A. 249 (Toyer’s attorney stating “this
is second degree assault”); J.A. 250 (judge confirming the plea
was for “second degree assault”). There is no merit in this
speculation on the part of the government.

38
 C.

Finally, the majority seems to believe that by ignoring the

binding holding of Alston, it achieves a level of “certainty”

that will create a form of “bright line rule” beneficial to the

law of this circuit. Respectfully, I disagree. Certainty is

achieved when this court is faithful to its precedents. To the

extent that the majority contemplates the existence of some neat

taxonomy of punishment-justifying pleas in state courts, i.e.,

“guilty,” “no contest” and Alford, my friends in the majority

need only examine the chaotic state of the law and practice

described in Bishop v. State, 7 A.3d 1074 (Md. 2010) (discussing

so-called “hybrid pleas” recognized under Maryland law).

* * * *

In sum, while the state court in Toyer’s second-degree

assault case did not accept an Alford plea, Toyer’s guilty plea

produced the jurisprudential equivalent for ACCA purposes

because Toyer’s counsel explicitly stated on Toyer’s behalf that

Toyer had “no involvement with the gun.” While an Alford plea

has specific legal meaning, “[u]ltimately, context determines

meaning, and we do not force term-of-art definitions into

contexts where they plainly do not fit and produce nonsense.”

Johnson v. United States, 130 S. Ct. 1265. 1270 (2010)

(citations omitted). Here, in context, Alston relies entirely on

the fact that the defendant never admitted to the material facts

39
required by Supreme Court precedent to qualify the conviction

for ACCA treatment. To ignore the rationale and holding

supporting the result in Alston and choosing instead to apply

them only to situations where a defendant formally enters an

Alford plea produces illogical and inconsistent results plainly

at odds with binding precedent.

With respect, I am constrained to the view that the

majority’s enterprise fits the description it assigns to Toyer’s

argument: it “collapses on itself.” Maj. op. 27. I would affirm

the conviction, vacate the sentence, and remand the case for

resentencing without regard to the ACCA.

40