PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5152
DARYL TAYLOR,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 10-4054
ANTWAN THOMPSON, a/k/a Darrell
Thompson,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:08-cr-00507-CCB-1; 1:08-cr-00507-CCB-2)
Argued: September 21, 2011
Decided: October 24, 2011
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
2 UNITED STATES v. TAYLOR
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz joined. Judge Davis wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Baltimore, Maryland; Jonathan Alan
Gladstone, Annapolis, Maryland, for Appellants. Cheryl L.
Crumpton, OFFICE OF THE UNITED STATES ATTOR-
NEY, Baltimore, Maryland, for Appellee. ON BRIEF: James
Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
WILKINSON, Circuit Judge:
A jury convicted Daryl Taylor and Antwan Thompson of
being felons in possession of a firearm under 18 U.S.C.
§ 922(g)(1) after they were caught with a loaded handgun on
a Baltimore street. The district court imposed an eight-year
sentence on Taylor and a fifteen-year sentence on Thompson
because his prior convictions qualified him for the mandatory
minimum under the Armed Career Criminal Act ("ACCA"),
18 U.S.C. § 924(e). We now affirm.
I.
A.
While on street patrol in an unmarked van on the night of
May 30, 2008, members of the Baltimore Police Department
spotted Taylor standing near the passenger side of an Acura.
UNITED STATES v. TAYLOR 3
Taylor’s location was illuminated by multiple streetlights as
well as the headlights of the van. Shortly thereafter, one of the
officers, Detective Jermaine Cook, saw Taylor reach into his
waistband, pull out a silver handgun, and pass it to Thompson
through the Acura’s passenger side window. Detective Cook
instantly alerted the other three detectives in the van, none of
whom were looking in the Acura’s direction at the time.
The van promptly came to a stop. The officers got out of
the vehicle and Cook put Taylor under arrest. Thompson, on
the other hand, fled from the Acura and was pursued by two
of the other detectives. During the chase, one of the officers
saw a silver handgun fall out of Thompson’s shorts. The
detective recovered the loaded weapon, which had been
reported stolen prior to its discovery that evening. Thompson
was apprehended soon thereafter.
A jury subsequently convicted both Taylor and Thompson
of violating 18 U.S.C. § 922(g)(1), which prohibits convicted
felons from possessing a firearm. Because the handgun was
stolen, Taylor’s Pre-Sentence Report ("PSR") recommended
a two-point offense level increase under U.S.S.G.
§ 2K2.1(b)(4)(A). When added to Taylor’s base offense level
of twenty-four points and his Criminal History Category of
IV, this enhancement resulted in a Guidelines range of 92 to
115 months. At his sentencing hearing, however, Taylor
argued for a lesser punishment. Specifically, he objected to
the two-point enhancement because he was unaware that the
handgun was stolen. He then contended that a number of miti-
gating circumstances such as his lack of a history of violence
and his efforts to turn his life around also mandated a lesser
sentence. Noting that this was "certainly a very serious
offense," the district court rejected Taylor’s contentions and
imposed a ninety-six month sentence.
B.
In Thompson’s case, the PSR recommended a fifteen-year
minimum sentence under the ACCA because he had previ-
4 UNITED STATES v. TAYLOR
ously been convicted twice for controlled substance offenses
and once for second-degree assault. Under the ACCA, anyone
who violates 18 U.S.C. § 922(g) and has three prior convic-
tions for "violent felon[ies]" or "serious drug offense[s]" must
serve a sentence of at least fifteen years. 18 U.S.C.
§ 924(e)(1). To avoid this mandatory minimum, Thompson
argued that his Maryland second-degree assault conviction
was not a "violent felony."
In support of this sentence, the government submitted a
transcript of Thompson’s plea colloquy for his assault convic-
tion. According to this transcript, after being informed of his
rights, Thompson’s attorney asked him if "it is still your
intention to plead guilty?" He responded, "Yes, ma’am." Fol-
lowing this answer, the prosecutor read a statement of facts
supporting Thompson’s plea.
According to the prosecution’s report at the plea colloquy,
on the night of May 10, 2002, Officers Bateem, Geolamas,
and Guzman of the Baltimore Police Department tried to
arrest Thompson at a corner store for his involvement in a
drug deal. When they approached Thompson, however, he
threw a Styrofoam cup filled with liquid at Officer Geolamas,
"striking him in the chest area," "punched Officer Bateem in
the mouth," and "then attempted to flee."
Officer Guzman was able to grab a hold of the suspect,
however, and the two other officers assisted him by "taking
[Thompson] down to the ground." A struggle followed on a
concrete sidewalk as the three officers tried to gain control of
Thompson’s hands. During the struggle, Thompson swung his
arms and kicked his feet and repeatedly attempted to draw his
handgun from the waistband of his pants. Despite Officer
Guzman’s eventual use of a burst of pepper spray, the officers
and Thompson "continued to fight." Thompson then
attempted to grab Guzman’s firearm from his holster, at
which point Officer Geolamas put his hands over Thompson’s
hands in order to prevent him from acquiring the weapon.
UNITED STATES v. TAYLOR 5
"Backup units eventually arrived at the scene and assisted the
officers at hand, cuffing Mr. Thompson who continued to
struggle in his duress."
When the prosecutor finished reading this statement, the
state judge asked Thompson’s attorney whether she had
"[a]ny additions or corrections," to which she replied, "No,
Your Honor." The court then ruled, "Based on that statement
of the facts, Mr. Thompson, I find you guilty of . . . assaulting
Officer Geolamas." Thompson’s attorney then turned to her
client and asked, "[I]s there anything that you would like to
say to the judge? I have spoken on your behalf this morning.
You have an opportunity to speak if you’d like to or you can
remain silent. Is there anything else you’d like to say?"
Thompson replied, "No, ma’am." During the entire plea collo-
quy, neither Thompson nor his counsel protested his inno-
cence, disputed his guilt, or disagreed with the prosecutor’s
statement of the facts.
After reviewing this document, the federal district court
held that the transcript "clearly show[s] a physical assault
involving the use of force or violence against a police officer
by Mr. Thompson." It consequently rejected Thompson’s
challenge to his ACCA status and sentenced him to the man-
datory minimum of fifteen years imprisonment.
C.
On appeal, Taylor challenges both his conviction and sen-
tence. He claims that the jury lacked sufficient evidence to
convict him of violating 18 U.S.C. § 922(g)(1), that the lack
of a mens rea requirement renders the stolen firearm sentenc-
ing enhancement invalid, and that his sentence is substan-
tively unreasonable. Thompson, on the other hand, objects
only to his sentence under the ACCA by contending that his
Maryland assault conviction does not constitute a "violent fel-
ony." We shall address each appellant and his arguments in
turn.
6 UNITED STATES v. TAYLOR
II.
A.
We begin with Taylor and his claim that the jury lacked
sufficient evidence to convict him of violating 18 U.S.C.
§ 922(g)(1). In brief, Taylor contends that there was not
enough evidence presented at trial to prove that he actually
possessed the stolen handgun. To prove the point, he launches
an extended attack on Detective Cook’s credibility. He con-
tends that Cook’s testimony regarding when he first saw Tay-
lor, when the handoff of the gun occurred, and where the van
came to a stop results in an incoherent and impossible time-
line of events that cannot be squared with the narratives of the
other officers. Given that Cook was the only officer who saw
the handoff that night, Taylor insists his conviction must be
overturned.
As an initial matter, any sufficiency claim bears a heavy
burden. We cannot set aside a jury’s verdict if it is supported
by substantial evidence when viewed in the light most favor-
able to the government. See United States v. Robinson, 627
F.3d 941, 956 (4th Cir. 2010). Fatal to Taylor’s case is the
fact that on appeal, "we are not entitled to assess witness cred-
ibility, and we assume that the jury resolved any conflicting
evidence in the prosecution’s favor." United States v. Jeffers,
570 F.3d 557, 565 (4th Cir. 2009). At trial, Taylor challenged
Cook’s testimony on grounds strikingly similar to those he
now presses on appeal. But at the end of the day, the jury
rejected Taylor’s arguments in favor of Cook’s testimony.
Moreover, there was ample evidence here to establish Tay-
lor’s possession of the firearm. According to the testimony,
multiple detectives saw Taylor standing near the Acura’s pas-
senger side in a well-lit area. While the other officers were
looking in another direction, Detective Cook observed Taylor
pass a silver handgun to Thompson through the Acura’s win-
dow. The other detectives confirmed that Cook immediately
UNITED STATES v. TAYLOR 7
alerted them to the handoff. As soon as the officers exited the
van, Thompson fled from the Acura and then dropped a silver
handgun during his unsuccessful attempt to escape. This evi-
dence would plainly allow a reasonable jury to find Taylor
guilty of unlawful possession under 18 U.S.C. § 922(g)(1).
B.
1.
Apart from his challenge to his conviction, Taylor raises
two objections to the length of his sentence. He first contests
the district court’s application of the Guidelines’ two-point
enhancement for possession of a stolen firearm. Section
2K2.1(b)(4)(A) of the Guidelines instructs courts to increase
a defendant’s offense level by two points if the firearm
involved in a section 922(g) offense was stolen. This enhance-
ment "applies regardless of whether the defendant knew or
had reason to believe that the firearm was stolen." U.S.S.G.
§ 2K2.1 cmt. n. 8(B). Taylor asks that we invalidate this
guideline on the grounds that its lack of a mens rea require-
ment renders it inconsistent with federal law.
This we cannot do. As an initial matter, we note that the
stolen firearm enhancement serves an important purpose. The
Sentencing Commission "promulgated [this guideline] on the
premise that ‘stolen firearms are used disproportionately in
the commission of crime.’" United States v. Mobley, 956 F.2d
450, 454 (3d Cir. 1992) (citation omitted). In light of the fact
that stolen firearms change hands both freely and frequently,
we would be hard-pressed to discredit the Commission’s
judgment that a felon in possession of a stolen firearm should
be treated differently from one who possessed a gun through
lawful means. See United States v. Ellsworth, 456 F.3d 1146,
1150 (9th Cir. 2006) (confirming that a felon in possession of
a stolen firearm is more culpable than one who acquires a gun
legally because stolen weapons are more frequently used to
8 UNITED STATES v. TAYLOR
commit crimes); United States v. Schnell, 982 F.2d 216, 220-
21 (7th Cir. 1992) (same); Mobley, 956 F.2d at 454(same).
Nor is it fatal that the enhancement lacks a mens rea com-
ponent. While a preference for mens rea is deeply rooted in
our jurisprudence, see Staples v. United States, 511 U.S. 600,
605 (1994), the absence of this element is not invariably the
final word in criminal law. Instead, as the Supreme Court has
observed, "[I]t is not unusual to punish individuals for the
unintended consequences of their unlawful acts." Dean v.
United States, 129 S. Ct. 1849, 1855 (2009) (emphasis in
original). The felony-murder rule, under which a defendant
can be convicted for murder if he commits an unintentional
homicide during the course of another felony, is perhaps the
most obvious illustration of the point. Id. The idea behind this
principle is a simple one: those "wishing to avoid the penalty
for" the unintended consequences of their crime should "avoid
committing the felony in the first place." See id. at 1856. This
is the situation we have here. Had Taylor chosen not to pos-
sess the handgun unlawfully to begin with, he would never
have been punished for the possession or spread of stolen fire-
arms.
It is therefore unsurprising that every circuit to have con-
sidered a challenge to the sentencing enhancement in section
2K2.1(b)(4)(A) has upheld the guideline. See United States v.
Thomas, 628 F.3d 64, 68-71 (2d Cir. 2010); Ellsworth, 456
F.3d at 1149-51; United States v. Williams, 365 F.3d 399,
407-08 (5th Cir. 2004); United States v. Martinez, 339 F.3d
759, 761-62 (8th Cir. 2003); United States v. Murphy, 96 F.3d
846, 848-49 (6th Cir. 1996); United States v. Richardson, 8
F.3d 769, 770 (11th Cir. 1993); United States v. Sanders, 990
F.2d 582, 584 (10th Cir. 1993), overruled on other grounds
by United States v. Gomez-Arrellano, 5 F.3d 464, 466-67
(10th Cir. 1993); Schnell, 982 F.2d at 219-21; Mobley, 956
F.2d at 454-59; United States v. Taylor, 937 F.2d 676, 681-82
(D.C. Cir. 1991). The Third Circuit has best captured the rea-
soning of these courts with its observation that "stolen . . .
UNITED STATES v. TAYLOR 9
firearms in the hands of people recognized as irresponsible
pose great dangers, and the guideline here reflects this height-
ened danger." Mobley, 956 F.2d at 454.
In sum, we cannot see how the absence of a scienter
requirement works to invalidate the enhancement. An unlaw-
ful course of conduct inevitably carries its share of risks. See
Dean, 129 S. Ct. at 1855-56 ("An individual who brings a
loaded weapon to commit a crime runs the risk that the gun
will discharge accidentally."). Section 922(g)(1) prohibited
Taylor from possessing any firearm, whether or not it was
stolen. If Taylor were actually concerned about the risk of
acquiring a stolen weapon, there was a readily available solu-
tion: he could have simply obeyed the law. When he decided
not to do so, he assumed the attendant risks of criminal con-
duct, including the possibility that his newly acquired firearm
might be stolen. See United States v. Griffiths, 41 F.3d 844,
845 (2d Cir. 1994) ("[T]he government has a legitimate inter-
est in punishing possession of a stolen firearm and placing the
burden upon one who receives a firearm to ensure that the
possession is lawful."). For the foregoing reasons, we must
decline Taylor’s invitation to invalidate the enhancement in
section 2K2.1(b)(4)(A) of the Sentencing Guidelines.
2.
Taylor also claims that his ninety-six month sentence was
substantively unreasonable due to mitigating factors and the
comparatively innocuous nature of his conduct. We review a
district court’s sentence "under a deferential abuse-of-
discretion standard," Gall v. United States, 552 U.S. 38, 41
(2007), and presume on appeal that a sentence within a prop-
erly calculated advisory Guidelines range is a reasonable one.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Given that Taylor’s ninety-six month sentence fell within his
properly determined Guideline range of 92 to 115 months, we
apply that presumption here.
10 UNITED STATES v. TAYLOR
Under the facts of this case, the district court’s sentence
falls well within the range of reasonable punishments. Tay-
lor’s instant offense involved dangerous conduct. After ille-
gally obtaining a stolen firearm, Taylor carried this loaded
weapon on a Baltimore street before handing it to Thompson
through a car window. Taylor’s previous encounters with the
law proved to have little or no deterrent effect. And the sup-
posed mitigating circumstances were neither supported nor
verified. The trial court’s statement provides a good example
of reasoned sentencing discretion:
[I]t seems to me that a sentence of 96 months, which
. . . is within the advisory guideline range, is suffi-
cient in this case without being greater than neces-
sary. This is certainly a very serious offense. . . . [A]t
this time the gun was not being used in a violent
way. I appreciate that. Mr. Taylor, again, at this par-
ticular time, was not associated with narcotics. How-
ever, unfortunately, Mr. Taylor . . . very recently had
been released from incarceration following a serious
drug offense. He has a prior serious drug offense
from when he was much younger, admittedly. But
unfortunately, that pattern seemed to have contin-
ue[d]. And he was fairly recently released from
incarceration when, according to the jury’s verdict,
he was found in possession of a loaded, stolen
weapon on the streets of Baltimore City, which is a
dangerous behavior and requires a significant sanc-
tion.
III.
We now turn to Thompson and his challenge to his sen-
tence under the ACCA. As noted, the ACCA imposes a
fifteen-year minimum sentence on anyone who both violates
18 U.S.C. § 922(g) and has three prior convictions for "seri-
ous drug offense[s]" or "violent felon[ies]." 18 U.S.C.
§ 924(e)(1). Thompson contests neither his section 922(g)(1)
UNITED STATES v. TAYLOR 11
conviction nor the fact that his two previous cocaine convic-
tions amount to "serious drug offense[s]." See 18 U.S.C.
§ 924(e)(2)(A). His sole argument on appeal is that the district
court erred in concluding that his third predicate conviction
for Maryland second-degree assault constitutes a "violent fel-
ony."
A.
The ACCA defines "violent felony" in two ways. The dis-
trict court relied on only one of them. Specifically, it found
that Thompson’s assault conviction qualified under the "force
clause" of the ACCA, which defines a "violent felony" as an
offense which "has as an element the use, attempted use, or
threatened use of physical force against the person of
another." Id. § 924(e)(2)(B)(i).
While the preferred framework for addressing whether
prior convictions qualify as ACCA predicates is the categori-
cal approach set forth in Taylor v. United States, 495 U.S.
575, 600-02 (1990), under which we consider simply the stat-
utory elements of the offense and the fact of conviction, our
precedent forecloses that option here. The Maryland statute
prohibiting second-degree assault provides that "[a] person
may not commit an assault," which in turn is defined as "the
crimes of assault, battery, and assault and battery, which
retain their judicially determined meanings." Md. Code Ann.,
Crim. Law §§ 3-201(b), -203(a). Because this definition is so
broad, we have frequently recognized our inability to discern
from a conviction and the statute’s elements alone whether a
defendant actually committed a violent felony. See United
States v. Alston, 611 F.3d 219, 222-23 (4th Cir. 2010) (using
modified categorical approach to determine whether Mary-
land second-degree assault qualifies as a violent felony);
United States v. Harcum, 587 F.3d 219, 224 (4th Cir. 2009)
(same).
The district court was therefore correct to employ the modi-
fied categorical approach set forth in Shepard v. United
12 UNITED STATES v. TAYLOR
States, 544 U.S. 13 (2005), to guide its analysis. See Harcum,
587 F.3d at 224. Under this approach, courts must decide
whether Shepard-approved materials such as the "charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented" show that Thompson "necessarily admit-
ted" to committing a violent felony. See Shepard, 544 U.S. at
16.
B.
We cannot find fault with the district court’s application of
the modified categorical approach in this case. To begin, the
trial court considered only Shepard-approved documents in
reaching its conclusion, namely the "transcript of [Thomp-
son’s] plea colloquy." See id.
That transcript portrays what can only be described as a
"violent felony." According to the Supreme Court, the term
"physical force" in the "force clause" of the ACCA means "vi-
olent force—that is, force capable of causing physical pain or
injury to another person." Johnson v. United States, 130 S. Ct.
1265, 1271 (2010) (emphasis in original). Thompson’s con-
duct as described in the plea colloquy plainly fits this defini-
tion. Facing arrest for a drug deal, Thompson "str[uck] [an
officer] in the chest area" with a cup of liquid, punched
another one in the mouth, and attempted to escape. Three
police officers then had to "wrestl[e] [him] on the ground to
gain control of his hand" while he was flailing his arms and
legs. Further, Thompson "continued to reach for his handgun"
as well as Officer Guzman’s firearm during the struggle, rais-
ing the likelihood that his arrest could have ended in serious
injury or death. In fact, his resistance was so vigorous that the
three officers were unable to restrain him until backup units
had arrived. As the state court noted at the plea hearing,
Thompson had plainly been "fighting with police officers on
the street."
UNITED STATES v. TAYLOR 13
Thompson nevertheless relies on the court’s statement of "I
find you guilty of . . . assaulting Officer Geolamas" to con-
tend that he was convicted "only" of striking a police officer
in the chest area with a cup of liquid. But even if we confine
Thompson’s conduct to his interactions with Officer Geola-
mas, he is still guilty of a violent felony. Not only did Thomp-
son throw a Styrofoam cup of liquid at Geolamas that
evening. Thompson was vigorously resisting Officer Geola-
mas’s attempt to arrest him, during which, according to the
plea transcript, he swung his limbs "very radically" and
repeatedly sought to secure a firearm. The fact that it took
more than three police officers to finally subdue Thompson is
testament to the violent nature of the assaultive conduct. In
short, Thompson’s behavior on the occasion of his predicate
offense involved "the use, attempted use, or threatened use of
[force capable of causing physical pain or injury to another
person.]" 18 U.S.C. § 924(e)(2)(B)(i); Johnson, 130 S. Ct. at
1271. The district court did not err in concluding that the
Shepard-approved materials here demonstrate Thompson’s
involvement in a violent felony.
C.
To avoid these facts, Thompson argues that he never actu-
ally admitted them during his plea colloquy. He relies on our
decision in United States v. Alston, 611 F.3d 219, 220-21 (4th
Cir. 2010), which held that a conviction for second-degree
assault under Maryland law cannot serve as an ACCA predi-
cate when it is the result of an Alford plea. Thompson con-
tends that his conviction stems from an Alford plea as well
because he did not personally and explicitly assent to the
prosecution’s statement of the facts.
Simply put, Thompson’s plea is not an Alford plea. An
Alford plea is an arrangement in which a defendant maintains
his innocence but pleads guilty for reasons of self-interest. See
North Carolina v. Alford, 400 U.S. 25, 37 (1970). Its "distin-
guishing feature" is "that the defendant does not confirm" the
14 UNITED STATES v. TAYLOR
factual basis underlying his plea, Alston, 611 F.3d at 227
(quoting United States v. Savage, 542 F.3d 959, 962 (2d Cir.
2008)). The purpose of a statement of facts in this context is
not to establish guilt but to ensure merely that "the plea [is]
being intelligently entered." See Alford at 37–38. In short, an
Alford plea is an intentional, specific action which serves a
distinct function in the law, namely that of ensuring that a
defendant’s "protestations of innocence" do not undermine
confidence that the constitutional requirement that a plea of
guilty be voluntary and intelligent has been satisfied. See id.
at 33, 37-39.
In Alston, we clarified the role of this plea arrangement in
a modified categorical approach. Relying on Shepard’s
instruction that courts should consider a "transcript of collo-
quy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant" to determine
whether a guilty plea "necessarily admitted" conduct amount-
ing to a violent felony, we held that conviction resulting from
an Alford plea could not serve as an ACCA predicate. Alston,
611 F.3d at 227 (emphasis omitted) (quoting Shepard, 544
U.S. at 26). Because Alston had pleaded guilty without ever
agreeing to the "truth of the proffered facts," we could not
find under Shepard that he had confirmed his involvement in
a violent felony. Id. at 221, 227-28.
Thompson’s plea could not be more different. After being
informed of his rights, Thompson’s attorney asked her client
whether "it is still your intention to plead guilty?" Thompson
answered, "Yes, ma’am." Following the prosecution’s state-
ment of facts, the judge then asked Thompson’s counsel if she
had "[a]ny additions or corrections" to make to the record.
She responded, "No, Your Honor." Thompson’s attorney then
told her client, "I have spoken on your behalf this morning.
. . . Is there anything else you’d like to say?" Thompson
replied, "No, ma’am."
There is no evidence in the entire transcript that Thompson
intended to do anything other than plead guilty that day. The
UNITED STATES v. TAYLOR 15
colloquy was replete with opportunities for him to challenge
his factual guilt, but nothing of the sort ever occurred. Not
once during the hearing did he protest his innocence, attempt
to correct the statement of the facts, or even remotely signal
that he was interested in an Alford plea. We refuse to dress a
perfectly ordinary guilty plea in Alford garb in order to avoid
an ACCA enhancement.
The fact that it was Thompson’s lawyer rather than the
defendant himself who declined to make any corrections to
the factual record does not alter our analysis. To be sure,
Shepard discussed a plea colloquy "in which the factual basis
for the plea was confirmed by the defendant," 544 U.S. at 26
(emphasis added), but we believe that any reasonable inter-
pretation of those words must include the defendant’s lawyer
as well. The notion that the term "defendant" nullifies all rep-
resentations to the court made by his attorney is not a realistic
one. As the Supreme Court has observed, "As to many deci-
sions pertaining to the conduct of the trial, the defendant is
deemed bound by the acts of his lawyer-agent." New York v.
Hill, 528 U.S. 110, 115 (2000) (internal quotation marks
omitted).
Thompson’s lawyer was at the plea hearing for a reason,
namely to advise, represent, and speak for her client. She
spoke in her client’s presence and confirmed, with no
recorded murmur of dissent from her client, that she had no
additions or corrections to the prosecution’s statement of the
facts. Moreover, Thompson himself both confirmed his inten-
tion to plead guilty and refused to make any corrections when
given another chance to speak.
Taken as a whole, the plea proceedings afford ample sup-
port for the finding of the district court that Thompson’s plea
of guilty constituted an admission of the violent conduct
reflected in the sole proffered factual basis for the plea. To be
sure, the modified categorical approach described in Shepard
cabins district court discretion to an extent, yet if the primacy
16 UNITED STATES v. TAYLOR
of trial courts in the sentencing process envisioned in Gall is
to be respected, the district court’s reasonable conclusions
from a Shepard-approved document must be upheld.*
*It follows that we cannot accept the position of our friend in dissent.
Before us is simply the question of whether the district court properly con-
cluded from the relevant Shepard documents that Thompson’s prior con-
viction was a qualifying predicate. In the course of making that finding,
we believe the district court was entitled to rely on those facts and circum-
stances in the plea colloquy it felt relevant. These include Thompson’s
own statement that it was his intention to plead guilty, the proffer given
by the prosecution, the statement of the defendant’s attorney that she had
no additions or corrections to that proffer, Thompson’s statement confirm-
ing that he himself had nothing to add, and of course, the comments of the
court. The dissent essentially seeks to magnify this into a collateral consti-
tutional attack on a prior conviction, but it is not that nor is this the forum
for that inquiry. As the dissent acknowledges, the modified categorical
approach is not "a textually-rooted fundamental constitutional right," post
at 22, but a practical tool for district judges to ascertain reliably what was
the nature of the prior offense without imposing undue burdens on the trial
court’s sentencing function.
The sole question therefore is whether the district court made a proper
finding that Thompson’s second degree assault conviction was for a crime
of violence. We think without question that the trial court made that find-
ing and that the plea colloquy amply supports its conclusion. To summa-
rize again, Thompson himself indicated that he wished to plead guilty, the
proffer was read in his presence, his attorney confirmed in his presence
that she had no additions or corrections to make, and Thompson then
stated he had nothing to add. At no time did either Thompson or his attor-
ney dispute anything regarding the factual proffer despite ample opportu-
nity at various junctures in the hearing to do so. No exception was taken
at any point by anybody to the fact that the nature of the assault was vio-
lent, even to the point of involving Thompson’s intense struggle to seize
both his own and Officer Guzman’s weapons. As the dissent rightly notes,
the Shepard inquiry is not a "talismanic" one. Post at 23. As evidenced by
Shepard’s references to a variety of judicial documents as well as to a
"‘comparable judicial record’ of the factual basis for the plea," Nijhawan
v. Holder, 129 S. Ct. 2294, 2299 (2009) (quoting Shepard, 544 U.S. at 26),
the Court’s purpose was not to invoke a litmus test but to provide a sen-
tencing court with the tools to do what sentencing courts do every day—
make a sound and proper sentencing determination. This the district court
did.
UNITED STATES v. TAYLOR 17
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
DAVIS, Circuit Judge, concurring in part and dissenting in
part:
I concur in those portions of the majority opinion affirming
the conviction and sentence of Appellant Taylor. With
respect, however, I dissent from so much of the majority opin-
ion as affirms the sentence of Appellant Thompson. I explain.
The holding of Shepard v. United States could not be stated
more clearly than how Justice Souter stated it:
We hold that enquiry under the ACCA to determine
whether a plea of guilty to burglary defined by a
nongeneric statute necessarily admitted elements of
the generic offense is limited to the terms of the
charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial
record of this information.
544 U.S. 13, 26 (2005) (emphasis added).1 I refer to the high-
lighted language as "the Shepard guarantee."
Despite the pristine clarity of Shepard’s holding, the major-
ity concludes that garden variety agency principles permit a
rewriting of it. Thus, according to the majority, it can ignore
1
Although the entirety of Justice Souter’s opinion in Shepard was joined
only by three other justices, Justice Thomas concurred in the portion of
Justice Souter’s opinion quoted above. See 544 U.S. at 28.
18 UNITED STATES v. TAYLOR
Shepard’s admonition that in applying the modified categori-
cal approach, a guilty plea transcript must show a "colloquy
between [the] judge and [the] defendant" and that "the factual
basis for the plea [be] confirmed by the defendant." Rather,
the majority insists, the Shepard holding may be revised to
read: a guilty plea transcript must show a "colloquy between
[the] judge and [the] defendant [or his attorney]," and that
"the factual basis for the plea [must be] confirmed by the
defendant [or his attorney]."2 This rewriting of the Shepard
guarantee is unwarranted and unjustified.
2
As Thompson cogently argues before us, even apart from the question
of whether his lawyer’s words should be charged to him and treated as a
binding judicial admission under the modified categorical approach to the
ACCA, it is a stretch to regard a lawyer’s statement that there are "no
additions or deletions" to a prosecutor’s proffer in support of a guilty plea
as a binding judicial admission of the truth of the potential evidence just
summarized. See generally United States v. McMurray, 653 F.3d 367 (6th
Cir. 2011).
Maryland law and practice plainly are to the contrary. See Bishop v.
State, 7 A.3d 1074, 1085-86 (Md. 2010) (describing "hybrid pleas" under
Maryland criminal practice and explaining: "There is a distinction between
an agreed statement of facts and evidence offered by way of stipulation.
Under an agreed statement of facts both [the] State and the defense agree
as to the ultimate facts . . . . On the other hand, when evidence is offered
by way of stipulation, there is no agreement as to the facts which the evi-
dence seeks to establish. Such a stipulation only goes to the content of the
testimony of a particular witness if he were to appear and testify.") (quot-
ing Barnes v. State, 354 A.2d 499, 505–06 (Md.App. 1976)). Without
question, and ironically, the Maryland Court of Appeals would never treat
Thompson’s attorney’s statement that she had "no additions or deletions"
to the prosecutor’s proffer of how the prosecutor’s witnesses would testify
were the case to go forward to trial, as a binding judicial admission by
Thompson regarding the truth of an evidentiary proffer to establish a fac-
tual basis for a guilty plea. Id. See also McMurray, 653 F.3d at 380 ("The
state trial court was not required to determine the truth of the state’s prof-
fered facts relating how the crime was committed before accepting
McMurray’s best-interest plea of guilty. The factual-basis requirement in
Federal Rule of Criminal Procedure 11 and the equivalent state criminal-
procedure rules, including Tennessee, is designed to help the trial judge
evaluate the voluntariness of the defendant’s plea."); id. at 387
(McKeague, J., dissenting) ("And while a factual basis was read at the plea
colloquy, the sentencing judge never asked the defendant to confirm or
UNITED STATES v. TAYLOR 19
As the government concedes, in this case, the record shows
conclusively that the state court judge never even addressed
a question to the then seventeen-year-old Thompson regard-
ing his agreement or disagreement with the state prosecutor’s
proffer. See Gov’t Br. at 29 ("After the prosecutor completed
the factual proffer, the state court asked defense counsel,
‘Any additions or corrections?’") (emphasis added).3 Clearly,
Thompson never had an opportunity to answer a question that
the judge never asked him. I can find no evidence in any
Supreme Court authority (and the majority opinion cites none)
that the Supreme Court intended to permit an attorney’s say-
so, rather than the defendant’s own personal admission (as
Shepard makes plain), to ratchet up the maximum sentence
for a conviction under 18 U.S.C. § 922(g)(1) from ten years’
incarceration to life in prison, together with a mandatory
minimum sentence of 15 years’ incarceration.
This does not mean, of course, "that the specific relevant
word in the plea colloquy must come from the defendant him-
self." United States v. Eskridge, 420 F. App’x. 837, 844 (10th
Cir. 2011). Rather, "[i]t is sufficient if the factual basis for the
plea is summarized by another party—an attorney for the
defense or the government, or the court," so long as the fac-
accept—by Alford plea or otherwise—that factual basis. The court merely
had the factual basis read, and then later asked, ‘Are you entering a best
interest plea of guilty on that one charge of aggravated assault?’ to which
McMurray replied ‘Yes, sir.’ Therefore, the state [sic] failed to establish
that McMurray ‘necessarily’ pleaded guilty to a violent felony . . . .").
3
Indeed, as the majority opinion only implicitly acknowledges, see Maj.
Op. at 4, 14, 15, the state court judge in Thompson’s second degree assault
case never even asked Thompson for his plea or invited him to change his
extant not guilty plea to a guilty plea; in short, Thompson never actually
pled guilty, viva voce. Rather, on several occasions during the plea collo-
quy, Thompson reiterated (in response to questions by his own attorney)
that it was his "intention" to plead guilty. Id. I need not and do not rely
on this glaring omission, however, because the transcript of Thompson’s
guilty plea colloquy is otherwise insufficient to satisfy Shepard for the
reasons discussed.
20 UNITED STATES v. TAYLOR
tual basis is "then confirmed by the defendant." Id. (emphasis
added); cf. United States v. Wright, 166 F. App’x. 393, 395
(10th Cir. 2006) (after prosecutor’s proffer in support of the
defendant’s guilty plea to state burglary charge, judge asked
defendant, "[y]ou heard the Assistant District Attorney state
the evidence they would produce in this matter were you to
go to trial. Do you dispute any portion of that evidence?" and
defendant answered "no" and defense attorney separately
responded "no" to similar question, held: "[T]he factual basis
for the plea did not rest solely on the prosecutor’s statement.
Wright was given an opportunity to either confirm or dispute
the factual basis, and he confirmed it. Defense counsel also
had an opportunity to dispute the factual basis and declined;"
ACCA enhancement affirmed).4
4
Contrary to the government’s argument that Thompson has somehow
waived his claim of error as to the district court’s application of the
ACCA, I agree with the majority of the panel that there is no genuine
question as to whether Thompson has properly preserved the issue on
appeal. See Appellants’ Br. at 10 ("[T]he transcript of the guilty plea
underlying [Thompson’s second degree assault conviction] reveals no
admission of wrongdoing by Mr. Thompson."); J.A. at 593 (defense coun-
sel asserting that Thompson "did not qualify as an ACCA"); J.A. at 601
(defense counsel arguing at sentencing that, "[s]econd degree assault by
itself is not a crime of violence and has been so held and rightly so.")
To be sure, Thompson has dressed his arguments before us in the garb
of United States v. Alston, 611 F.3d 219, 222-23 (4th Cir. 2010) (holding
that a prior conviction based on an Alford plea does not support applica-
tion of the ACCA), which was decided many months after his sentencing
hearing. But, as the holding in Alston is itself based squarely on the plain
language of Shepard, Alston’s specific reliance on the fact that the defen-
dant in that case had tendered an Alford plea is wholly inconsequential to
the properly preserved ACCA issue in this case. See United States v.
Vann, ___ F.3d ___, ___, slip op. at 10 (4th Cir. 2011) (en banc)
("Shepard prevents sentencing courts from assessing whether a prior con-
viction counts as an ACCA predicate conviction by relying on facts nei-
ther inherent in the conviction nor admitted by the defendant." (quoting
Alston)); see also United States v. Flores–Vasquez, 641 F.3d 667, 672–73
(5th Cir. 2011) ("[T]he mere fact that a defendant enters a plea denomi-
nated as an ‘Alford plea’ does not preclude a sentencing court from relying
upon a proffer of facts which was independently confirmed by the defen-
dant."), cert. denied, ___ S.Ct. ___ , No. 11-6006, 2011 WL 4536495
UNITED STATES v. TAYLOR 21
The very case cited by the majority in support of its expan-
sive agency theory, New York v. Hill, 528 U.S. 110 (2000),
illustrates what we all well know: there exists a limited cate-
gory of decisions, recognized in every state’s system of crimi-
nal justice (as well as in the federal system), that the law has
long regarded, jealously, as the defendant’s alone, personally,
to make. Specifically, in a passage from Hill not quoted in the
majority opinion, Justice Scalia carefully explained as fol-
lows:
What suffices for waiver depends on the nature of
the right at issue. "[W]hether the defendant must par-
ticipate personally in the waiver; whether certain
procedures are required for waiver; and whether the
defendant’s choice must be particularly informed or
voluntary, all depend on the right at stake." For cer-
tain fundamental rights, the defendant must person-
ally make an informed waiver. See, e.g., Johnson v.
Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82
L.Ed. 1461 (1938) (right to counsel); Brookhart v.
Janis, 384 U.S. 1, 7-8, 86 S.Ct. 1245, 16 L.Ed.2d
314 (1966) (right to plead not guilty). For other
rights, however, waiver may be effected by action of
counsel. "Although there are basic rights that the
attorney cannot waive without the fully informed
(U.S. Oct. 3, 2011). But see United States v. Toyer, 414 F. App’x. 584 (4th
Cir. 2011) (unpublished) (strictly limiting the holding in Alston to prior
convictions based on formal Alford pleas).
In any event, only a future en banc court will be able to reconcile the
majority’s holding and rationale in this case with the holding and rationale
in Alston. This is so because the acts and statements of Thompson’s
agent/lawyer in this case are indistinguishable in form or substance from
the acts and statements of Alston’s agent/lawyer. See Alston, 611 F.3d at
221 ("Following the proffer, Alston, through counsel, stipulated that the
State’s witnesses would have testified [that he had pointed a handgun at
three victims], but Alston never agreed to the truth of the proffered facts.")
(emphasis added).
22 UNITED STATES v. TAYLOR
and publicly acknowledged consent of the client, the
lawyer has-and must have-full authority to manage
the conduct of the trial." Taylor v. Illinois, 484 U.S.
400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
As to many decisions pertaining to the conduct of
the trial, the defendant is "deemed bound by the acts
of his lawyer-agent and is considered to have ‘notice
of all facts, notice of which can be charged upon the
attorney.’" Thus, decisions by counsel are generally
given effect as to what arguments to pursue . . . ,
what evidentiary objections to raise . . . , and what
agreements to conclude regarding the admission of
evidence. Absent a demonstration of ineffectiveness,
counsel’s word on such matters is the last.
Hill, 528 U.S. at 114-15 (some citations omitted).
At least under existing Supreme Court precedents, the
Shepard guarantee does not rise to the level of a textually-
rooted fundamental constitutional right. But see United States
v. Thompson, 421 F.3d 278, 282 n. 3 (4th Cir. 2005) (Wilkin-
son, J.) ("It did not escape the Court’s notice in Shepard that
the rule it announced might have constitutional implications.").5
Still, the majority’s decision here is profound. It assigns the
waiver of protection afforded by the Shepard guarantee, the
5
Of course, what Judge Wilkinson was alluding to, in part, in his discus-
sion in Thompson, 421 F.3d at 282 n. 3, was the following passage from
Justice Souter’s opinion in Shepard, in which the Justice reiterated the
wisdom of Taylor’s categorical approach, as refined in Shepard:
The Court thus anticipated the very rule later imposed for the
sake of preserving the Sixth Amendment right, that any fact other
than a prior conviction sufficient to raise the limit of the possible
federal sentence must be found by a jury, in the absence of any
waiver of rights by the defendant.
Shepard, 544 U.S. at 24 (emphasis added). Cf. United States v. Milam, 443
F.3d 382, 387 (4th Cir. 2006) ("To presume, infer, or deem a fact admitted
because the defendant has remained silent, however, is contrary to the
Sixth Amendment.").
UNITED STATES v. TAYLOR 23
requirement that the state court judge have engaged in a collo-
quy "with the defendant" and that "the defendant" have con-
firmed the dispositive facts (that could later lead to a doubling
or tripling or quadrupling of a federal sentence of incarcera-
tion), to the category of a mere decision "pertaining to the
conduct of the trial." Hill, 528 U.S. at 115.
This grievous miscalculation is a decision that I cannot
join. Rather, given the extraordinary consequences for the
defendant, I would hold that the plain language of the Shep-
ard guarantee, in light of the context in which the Supreme
Court used that language, means that the Shepard guarantee
is best recognized as a form of protection for a defendant
which rises to the level of a "basic right[ ] that the attorney
cannot waive without the fully informed and publicly
acknowledged consent of the client." Id.
The Supreme Court did not intend that the term "Shepard-
approved document" would become talismanic. To the con-
trary, it matters what is contained in, and revealed by, such a
document. When the Shepard-approved document is a tran-
script of a guilty plea colloquy, I believe the Court meant
what it said when it described a "transcript of [the] colloquy
between judge and defendant in which the factual basis for the
plea was confirmed by the defendant." Specifically, the Court
has instructed lower federal courts to rely on "the defendant’s
own admissions." Shepard, 544 U.S. at 25 (emphasis added).
The majority’s refusal to adhere to that command is error.6
(Text continued on page 25)
6
In response to this partial dissent, the majority has suggested in a foot-
note that immediately after Thompson’s attorney told the state court judge
that she had "no additions or corrections to make," "Thompson then stated
he had nothing to add." Maj. Op. at 16 n. *. (emphasis added) In fact,
however, the portion of the transcript of the guilty plea proceedings
referred to by the majority plainly shows that Thompson most assuredly
did not make the statement attributed to him by the majority immediately
after his lawyer’s disclaimer. Rather, the record shows that the state court
judge had proceeded to the sentencing phase of the hearing and that, when
Thompson was invited to exercise his right of allocution, he simply
24 UNITED STATES v. TAYLOR
declined. The transcript of the colloquy among the judge, the defense
attorney ("Ms. Shapiro") and the prosecutor ("Mr. McDaniel") reads as
follows immediately after the state’s proffer:
THE COURT: Any additions or corrections?
MS. SHAPIRO: No, Your Honor.
THE COURT: Based on that statement of facts, Mr. Thompson,
I find you guilty of wear, carrying and transporting and assaulting
Officer Geolamas. All right. With regards to sentencing, Mr.
McDaniel?
MR. MCDANIEL: Your Honor, State would submit on the con-
versations at the bench.
THE COURT: Miss Shapiro?
MS. SHAPIRO: I would submit as well. Mr. Thompson, is there
anything that you would like to say to the judge –-
THE COURT: Well, before he says anything, have you prepared
the sentencing guideline sheet, Mr. McDaniel?
MR. MCDANIEL: Yes, Your Honor.
THE COURT: And have you shown it to Miss Shapiro?
MR. MCDANIEL: Here you are.
THE COURT: Miss Shapiro, is that correct?
MS. SHAPIRO: Yes, Your Honor.
THE COURT: And completely filled out?
MS. SHAPIRO: Yes, Your Honor.
THE COURT: Then, I assume, Mr. McDaniel, you filled it out
correctly to the best of your knowledge?
MR. MCDANIEL: To the best of my knowledge, Your Honor.
THE COURT: All right. Would you please submit it to the clerk.
All right. Now, would you advise your client of his right of allo-
cution.
MS. SHAPIRO: Mr. Thompson, is there anything that you would
like to say to the judge? I have spoken on your behalf this morn-
ing. You have an opportunity to speak if you’d like to or you can
remain silent. Is there anything else you’d like to say?
UNITED STATES v. TAYLOR 25
Respectfully, therefore, I dissent from the affirmance of the
judgment as to Appellant Thompson. I would vacate his sen-
tence and remand for resentencing.
THE DEFENDANT: No, ma’am.
THE COURT: All right.
J.A. at 639-40.
I do respect the contrary views of my good colleagues in the majority
as to what the law requires in this case; our difference is one born of an
earnest and studied effort by all to apply the law faithfully. No less so than
judicial hostility (seen in some quarters) to the vagaries of the Supreme
Court’s sentencing jurisprudence under the Armed Career Criminal Act,
judicial disagreements over the appropriate interpretation and application
of the principles the Court has enunciated are entirely understandable. In
the end, only the Supreme Court itself can provide the clarification so
urgently needed. In that spirit, I would suggest that Thompson’s counsel
(who has ably represented his client upon appointment by this court) save
the taxpayers a few dollars and forego the customary petition for rehearing
in this case and seek certiorari without inordinate delay.