PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4080
EARNEST ROBERT BAXTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(7:09-cr-00046-sgw-1)
Argued: March 25, 2011
Decided: April 26, 2011
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge King and Judge Keenan concurred.
COUNSEL
ARGUED: Randy Virlin Cargill, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appel-
lant. Jean Barrett Hudson, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appel-
lee. ON BRIEF: Larry W. Shelton, Federal Public Defender,
2 UNITED STATES v. BAXTER
Christine Madeleine Lee, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roa-
noke, Virginia, for Appellant. Timothy J. Heaphy, United
States Attorney, R. Andrew Bassford, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
OPINION
DAVIS, Circuit Judge:
Earnest Robert Baxter pled guilty to one count of posses-
sion of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). Baxter was sentenced under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), to the
mandatory minimum period of incarceration: 180 months.
Baxter appeals his sentence, contending, as he did before the
district court, see United States v. Baxter, 677 F. Supp. 2d 918
(W.D. Va. 2010), that the government failed to satisfy its bur-
den to establish that his 1976 burglary conviction in state
court qualifies as a predicate offense under the ACCA. Like
the district court, id. at 921-22, we conclude that the govern-
ment satisfied its burden; accordingly, we affirm.
Under the ACCA, a defendant may be sentenced as an
armed career criminal (and thus subject to a fifteen-year man-
datory minimum sentence) if he violates 18 U.S.C. § 922(g)
and has at least three prior convictions for violent felonies
and/or serious drug offenses. 18 U.S.C. § 924(e)(1). Whether
a prior conviction qualifies as a predicate offense under
§ 924(e) is a question of statutory construction we review de
novo. United States v. Brandon, 247 F.3d 186, 188 (4th Cir.
2001).
To determine whether an offense under state law falls
within the definition of a violent felony, courts generally
UNITED STATES v. BAXTER 3
employ a categorical approach, under which consideration is
given only to the essential elements of the offense and the fact
of conviction. See United States v. White, 571 F.3d 365, 368
(4th Cir. 2009). Burglary is a "violent felony" under the
ACCA. 18 U.S.C. § 924(e)(1)(B)(ii). Interpreting the ACCA,
the Supreme Court has held that "a person has been convicted
of burglary . . . if he is convicted of any crime, regardless of
its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a build-
ing or structure, with intent to commit a crime." Taylor v.
United States, 495 U.S. 575, 599 (1990).
While a sentencing court normally may look only to the
statutory elements of an offense and the fact of the conviction,
because some statutes (like the Virginia provisions at issue
here) define burglary broadly to encompass enclosures other
than "a building or structure," the categorical approach "may
permit the sentencing court to go beyond the mere fact of con-
viction" in certain cases. Id. at 602. Thus, an offense will con-
stitute burglary if the jury was required "to find all the
elements of generic burglary in order to convict the defen-
dant," and "the indictment or information and jury instruc-
tions show that the defendant was charged only with a
burglary of a building," so "the jury necessarily had to find an
entry of a building to convict." Id. In cases where, as here, the
defendant pled guilty to the prior offense, a federal sentencing
court may consider certain court documents, including but not
limited to the indictment, a transcript of the plea colloquy
and/or the written plea agreement. Shepard v. United States,
544 U.S. 13, 20-21 (2005).
Baxter correctly argues that the Virginia statute under
which he was convicted in 1976 contains a definition of bur-
glary that is broader than the Taylor definition of generic bur-
glary: it encompasses not only unlawful entry into "a building
or structure," but, under some circumstances, an automobile,
truck, ship, or railroad car, as well. See Va. Code Ann. § 18.2-
4 UNITED STATES v. BAXTER
90.1 At sentencing, the government produced to the district
court three relevant documents: (1) the indictment, which
charged Baxter with breaking and entering into a "shop"; (2)
the order memorializing Baxter’s guilty plea; and (3) the
order imposing sentence. Baxter, 677 F. Supp. 2d at 920-21.
Baxter did not object to the court’s consideration of these doc-
uments. Rather, seizing on the use in the indictment of the
term "shop" to describe the premises where he committed the
challenged burglary offense, he contends before us (as he did
below) that the term is too ambiguously expansive to support
a finding that his entry was into "a building or structure" as
required by Taylor. He essentially contends that, for all that
appears, a "shop" could be operated out of a "railroad car, or
any automobile, truck or trailer." See supra n.1.
As the district court correctly concluded, however, Baxter’s
contention founders on the definitive construction of the Vir-
ginia statute by the Virginia Supreme Court in Graybeal v.
Commonwealth, 324 S.E.2d 698, 700 (Va. 1985).2 In Gray-
1
In pertinent part, the 1976 version of the applicable Virginia statute
provided:
If any person in the nighttime enters without breaking or in the
daytime breaks and enters or enters and conceals himself in a
dwelling house or an adjoining, occupied outhouse or in the
nighttime enters without breaking or at any time breaks and
enters or enters and conceals himself in any office, shop, manu-
factured home, storehouse, warehouse, banking house, church
. . . , or other house, or any ship, vessel or river craft or any rail-
road car, or any automobile, truck or trailer, if such automobile,
truck or trailer is used as a dwelling or place of human habitation,
with intent to commit [a crime] . . . , he shall be deemed guilty
of statutory burglary . . . .
Va. Code Ann. § 18.2-90. The parties have sparred over the import of a
2004 amendment to the statute, see Baxter, 677 F. Supp. 2d at 922 n.3, but
we decide this case solely on the basis of the language of the statute as it
existed at the time Baxter committed his offense in 1976.
2
See Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1270
(2010) (noting that, in analyzing ACCA predicates, "[w]e are . . . bound
by the [state] Supreme Court’s interpretation of state law, including its
determination of the elements of [the pertinent statute]") (alterations
added).
UNITED STATES v. BAXTER 5
beal, the court reversed a conviction under the statute because
the proof at trial established at most that the defendant had
entered a "trailer." Id. Proof that a trailer was entered could
only support a conviction if the trailer were used for human
habitation. Id. The evidence at trial failed to establish this. Id.
Significantly, the prosecution sought to salvage the convic-
tion by reliance on the theory that a "trailer" might be deemed
an "other house" within the meaning of the statute. Id. In
rejecting the prosecution’s alternative argument, the court rea-
soned as follows:
The Commonwealth argues that even if the con-
victions cannot be upheld on the basis of breaking
and entering twelve trailers, they can be upheld
because the structures fall under the category "other
house" that is set forth in Code § 18.2-90. We find
no merit in this argument. The phrase "other house"
is a general phrase placed at the end of a list of spe-
cific references to various structures [i.e., any office,
shop, manufactured home, storehouse, warehouse,
banking house, church . . .]. Those specific structures
share the common element of being improvements
affixed to the ground, that is, they are realty. Under
the doctrine ejusdem generis, the general phrase
"other house" must look for its meaning to the spe-
cific items which precede it. See Martin v. Common-
wealth, 224 Va. 298, 295 S.E.2d 890 (1982). The
structures into which Graybeal entered were not
realty. Thus, they do not fall within the scope of
"other house." In our opinion, it would violate sound
principles of statutory construction and strain the
clear intendment of the statute to hold that a trailer
not used as a dwelling nevertheless falls under the
definition of "other house."
Id. (emphasis added).
6 UNITED STATES v. BAXTER
As can be seen, therefore, the grand jury’s use of the term
"shop" in the indictment to which Baxter pled guilty in 1976
did not take his conviction outside of the sweep of the Taylor
holding on the meaning of "burglary" under the ACCA.3 To
the contrary, as the district court correctly found, the refer-
ence to "shop" in the indictment "necessarily established" that
Baxter’s burglary conviction was based on his entry into a
structure that was "affixed to the ground," id. (emphasis
added), namely, "a building." Taylor, 495 U.S. at 599.
For the reasons set forth, the judgment of the district court
is
AFFIRMED.
3
Baxter suggested at oral argument that the fact that he pled guilty to
burglary and was sentenced years before the Virginia Supreme Court ren-
dered its definitive interpretation of the Commonwealth’s burglary statute
in Graybeal forecloses the application of that case in his federal sentenc-
ing proceeding. He cited no support for this proposition and we reject it.
Cf. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) ("A
judicial construction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case giving rise
to that construction.").