PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4851
ROBERT STEVEN DONNELL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:08-cr-00581-PJM-1)
Argued: September 20, 2011
Decided: October 27, 2011
Before KING, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Davis
wrote the opinion, in which Judge King and Judge Keenan
joined.
COUNSEL
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Jonathan C. Su, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON
2 UNITED STATES v. DONNELL
BRIEF: James Wyda, Federal Public Defender, Baltimore,
Maryland, Michael T. CitaraManis, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
OPINION
DAVIS, Circuit Judge:
Robert Steven Donnell pled guilty to being a felon in pos-
session of a firearm in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced him to 78 months’ imprisonment,
based in part on its finding that Donnell had committed the
offense subsequent to sustaining at least two felony convic-
tions for a "crime of violence." See U.S. Sentencing Guide-
lines ("U.S.S.G.") § 2K2.1(a)(2) (2008). Donnell timely
appealed. This court has jurisdiction pursuant to 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291.
On appeal, Donnell argues that the district court erred in
relying on his Maryland second degree assault conviction to
enhance his offense level. The district court found that Don-
nell’s prior conviction was a crime of violence by relying on
facts in an unincorporated "statement of probable cause" that
was introduced at sentencing by the Government. The record
reveals that the state court charging document, the "statement
of charges," contained no details establishing that the second
degree assault conviction involved violence. Rather, the facts
establishing that the assault was violent were contained only
in the unincorporated statement of probable cause prepared by
the arresting officer.
For the reasons explained within, we hold that the district
court was not permitted under Supreme Court precedent and
UNITED STATES v. DONNELL 3
our own precedents to consider the unincorporated statement
of probable cause. Accordingly, we vacate Donnell’s sentence
and remand for resentencing.
I.
Donnell pled guilty to being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). The only disputed
issue at sentencing was whether Donnell had one or two prior
convictions for a crime of violence under U.S.S.G. § 2K2.1,
which the parties agreed governed Donnell’s conduct. The
Government argued that Donnell committed the instant
offense subsequent to sustaining at least two felony convic-
tions for a crime of violence, while Donnell argued that he
only had one conviction for a crime of violence. The parties
disputed whether a conviction for second degree assault, to
which Donnell pled guilty in the District Court of Maryland
for Howard County, constituted a predicate conviction for a
crime of violence.
The Government supported its contention that the Mary-
land second degree assault conviction was a crime of violence
by introducing the statement of charges and the statement of
probable cause. The Government did not produce the plea
transcript or a written plea agreement for the second degree
assault conviction. The statement of charges alleged that on
or about May 25, 2003, Donnell "did assault [his spouse] in
the second degree in violation of [Md. Code Ann., Crim.
Law] 3-203, contrary to the form of the act of the assembly
in such case made and provided and against the peace, gov-
ernment, and dignity of the state." J.A. 78. The statement of
probable cause provided a detailed description of the underly-
ing facts, from which the district court concluded that the
prior second degree assault conviction was a crime of violence.1
1
The statement of probable cause included facts showing that Donnell
"dragged [the victim] out of the car and kicked her in the head"; a dis-
patcher heard the victim being hit while talking on the phone and Donnell
threaten to kill her; and Donnell punched and hit the victim. J.A. 79–80.
4 UNITED STATES v. DONNELL
The separately paginated documents were dated the same day
and filed in the same court. On the statement of charges, the
judicial officer had checked off "yes" (rather than "no") next
to "probable cause," indicating that there was probable cause.
J.A. 78.
After hearing argument, the district court found it proper to
consult the statement of probable cause to determine whether
the second degree assault was a qualifying crime of violence
and, consequently, it assigned a Guidelines base offense level
of 24, for possession of a firearm after two felony convictions.
After a two level increase for obstruction of justice for fleeing
from an officer and a three level decrease for acceptance of
responsibility, the district court concluded that Donnell’s final
offense level was 23. With a criminal history category of IV,
Donnell’s advisory Guidelines range was 70 to 87 months.
After carefully considering the 18 U.S.C. § 3553(a) sentenc-
ing factors, the court sentenced Donnell to 78 months’ impris-
onment. Pursuant to the plea agreement, Donnell preserved
his right to appeal this issue.
II.
The issue presented on appeal is whether the district court
erred in considering information in an unincorporated state-
ment of probable cause to conclude that Donnell’s Maryland
second degree assault conviction was a crime of violence.
This court reviews de novo whether a prior conviction quali-
fies as a crime of violence for purposes of a sentencing
enhancement. United States v. Williams, 326 F.3d 535, 537
(4th Cir. 2003).
Sentencing for a felon in possession charge is governed by
U.S.S.G. § 2K2.1, which sets a base offense level of 24 "if the
defendant committed any part of the instant offense subse-
quent to sustaining at least two felony convictions of . . . a
crime of violence," § 2K2.1(a)(2), and a base level of 20 if
"the defendant committed any part of the instant offense sub-
UNITED STATES v. DONNELL 5
sequent to sustaining one felony conviction of . . . a crime of
violence," § 2K2.1(a)(4)(A). A crime of violence for purposes
of § 2K2.1 is defined to include
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2(a); see id. § 2K2.1 cmt. n.1 (explaining that
"crime of violence" is defined in § 4B1.2(a)).2 A sentencing
court must normally use a categorical approach to determine
whether an earlier conviction qualifies as a crime of violence,
relying only on the fact of conviction and the elements of the
offense. James v. United States, 550 U.S. 192, 202 (2007);
Shepard v. United States, 544 U.S. 13, 19–20 (2005); United
States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998).3
In a limited class of cases where the definition of the prior
offense includes violent and nonviolent conduct, a sentencing
court may use a modified categorical approach to look beyond
the fact of conviction and elements of the offense to deter-
mine which category of behavior underlies the prior convic-
tion. See Johnson v. United States, 130 S. Ct. 1265, 1273
(2010). To identify which category of behavior underlies a
prior conviction stemming from a guilty plea, a court may
2
The parties agree that only the "use of force" prong of § 4B1.2(a) is at
issue in this case.
3
This court has relied upon cases that construe "violent felony" under
the Armed Career Criminal Act ("ACCA") when considering "crimes of
violence" under the Guidelines because the language in the Guidelines is
essentially identical to the language in the ACCA. United States v. Knight,
606 F.3d 171, 173 n.1 (4th Cir. 2010).
6 UNITED STATES v. DONNELL
look to "the statement of factual basis for the charge shown
by a transcript of plea colloquy or by written plea agreement
presented to the court, or by a record of comparable findings
of fact adopted by the defendant upon entering the plea."
Shepard, 544 U.S. at 20 (citation omitted). This material
allows a later court to determine whether the plea "‘necessar-
ily’ rested on the fact identifying" the crime as a violent
offense. Id. at 21. Thus, a sentencing court determining
whether the plea "necessarily admitted elements of the
generic offense is limited to the terms of the charging docu-
ment, 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." Id. at 26. The purpose of
restricting this inquiry to "a specified set of conclusive
records" is twofold: (1) to avoid "collateral trials"; and (2) to
avoid a "wider inquiry" that potentially violates the Sixth
Amendment right to trial by jury. United States v. Alston, 611
F.3d 219, 225 (4th Cir. 2010) (internal quotation marks omit-
ted).
We have recognized that, because second degree assault
under Maryland law "encompasses several distinct crimes,
some of which qualify as violent felonies and others of which
do not," sentencing courts are entitled to use the modified cat-
egorical approach to determine whether a prior conviction for
Maryland second degree assault is a crime of violence. Alston,
611 F.3d at 222–23 (citing Md. Code Ann., Crim. Law §§ 3-
203, -201(b); Cruz v. State, 963 A.2d 1184, 1188 n.3 (Md.
2009); State v. Duckett, 510 A.2d 253, 257 (Md. 1986)).
Under this approach, it is well established that the district
court may look to the charging document in determining
whether a conviction is a crime of violence. Shepard, 544
U.S. at 20–21, 26; United States v. Coleman, 158 F.3d 199,
202–03 (4th Cir. 1998) (en banc).
Here, to prove that the category of conduct underlying
Donnell’s second degree assault conviction involved the "use
UNITED STATES v. DONNELL 7
of force" and thus was a crime of violence, the Government
introduced two documents: (1) the statement of charges, a
barebones document laying out the charge and containing a
judicial officer’s check mark indicating that there was proba-
ble cause; and (2) the separately paginated statement of prob-
able cause, which includes the sworn statement of the
arresting officer containing details of the assault. The district
court relied on the facts in the statement of probable cause to
determine that Donnell’s prior conviction was a crime of vio-
lence. In so doing, the district court erred. To appropriately
consider information in an external document, such as the
statement of probable cause at issue here, the document con-
taining the information must be expressly incorporated into
the charging document.
Shepard and United States v. Simms, 441 F.3d 313, 316–17
(4th Cir. 2006), require express incorporation of affidavits of
probable cause, controlling the result here. In Shepard, the
Supreme Court held that complaint applications and police
reports may not be considered to determine "whether [a
defendant’s] earlier guilty plea necessarily admitted, and sup-
ported a conviction for," a violent felony. 544 U.S. at 16. The
Court so held because, out of "respect for congressional intent
and avoidance of collateral trials," evidence used to determine
whether a prior guilty plea supported a conviction for a vio-
lent felony must "be confined to records of the convicting
court approaching the certainty of the record of conviction."
Id. at 23. The police reports and complaint applications at
issue in Shepard are similar to the statement of probable cause
at issue here: Both are used to make an assessment of proba-
ble cause and depart from the certainty of the record of con-
viction. Compare Mass. R. Crim. P. 3 & 4, with Md. R. Crim.
P. 4-211(b). See also United States v. Shepard, 181 F. Supp.
2d 14, 18–20 (D. Mass. 2002), vacated, 348 F.3d 308 (1st Cir.
2003), rev’d, 544 U.S. 13 (2005).
We are persuaded that reliance on an unincorporated state-
ment of probable cause, as the district court did here, presents
8 UNITED STATES v. DONNELL
the same problem as reliance on the complaint applications
and police reports in Shepard. The certainty that the defendant
necessarily admitted the facts contained in the external docu-
ment, as distinguished from the charging document itself, the
transcript of the plea colloquy, or the written plea agreement,
is absent. See Shepard, 544 U.S. at 23; Shepard, 181 F. Supp.
2d at 19–20 (refusing to consider the information contained in
the police reports and complaint applications because defen-
dant neither admitted the information contained in the police
report as part of his plea nor admitted in court that the facts
alleged were true). And, this more expansive reliance on
external documents, such as a statement of probable cause,
where there is no indication that the facts were adopted by the
defendant eases away from the rationales underlying the
restricted inquiry dictated by Shepard. See Alston, 611 F.3d
at 225.
In the aftermath of Shepard, we confirmed the importance
of an express incorporation of information contained in docu-
ments outside the charging document in Simms. In Simms we
affirmed a district court’s use of a Maryland application for
a statement of charges to determine that a battery conviction
was a violent felony because the application was expressly
incorporated into the charging document. 441 F.3d at 316–17.
The charging document charged, "Upon the facts contained in
the [application for the statement of charges]" the defendant
committed battery. Id. at 316. This incorporation language,
we explained, allows the district court to refer to the facts in
the application without violating Shepard. See id. at 317–18
("By contrast, the relevant facts of Shepard’s Massachusetts
application, not having been included in Shepard’s charging
document, were not a part of the charging document at all.").
Where, as here, and unlike Simms, there is no express incor-
poration of the information contained in the statement of
probable cause, the district court lacks assurance that the
defendant necessarily admitted to the facts on which it would
be basing a sentencing enhancement. Cf. Parrilla v. Gonzales,
414 F.3d 1038, 1043 (9th Cir. 2005) ("Documents and testi-
UNITED STATES v. DONNELL 9
mony that would require us to make factual determinations
that were not necessarily made in the prior criminal proceed-
ing lie outside the scope of our inquiry under the modified
categorical approach."). A judicial officer’s mere check mark
on the statement of charges acknowledging that there is prob-
able cause is insufficient to allow consideration of the facts
contained in the statement of probable cause, especially
where, as here, the documents are separately paginated. An
assessment of probable cause does not conclusively establish
that the defendant admitted those facts in pleading guilty.
Contrary to the Government’s contentions, neither of the
two pre-Shepard, pre-Simms cases on which it relies, Kirksey
and Coleman, compels a different result; in each of those
cases the external document was expressly incorporated into
the charging document.4 In United States v. Kirksey, 138 F.3d
4
Our early cases perhaps suggest that an affidavit for probable cause is
incorporated as a matter of Maryland law, even without incorporation by
language or any other means. Whether the Maryland Rules
alone—without express incorporation—incorporate the affidavit of proba-
ble cause into the statement of charges for the purpose of determining
whether a prior conviction is a crime of violence is, at best, ambiguous.
Maryland Rule of Criminal Procedure Rule 4-102(a) defines "charging
document" as "a written accusation alleging that a defendant has commit-
ted an offense" and specifically includes a "statement of charges" as a
charging document. The rules provide that the charging document must
contain the name of the defendant, "a concise and definite statement of the
essential facts of the offense with which the defendant is charged and,
with reasonable particularity, the time and place the offense occurred."
Md. R. Crim. P. 4-202(a). This might suggest that the affidavit containing
details of the crime is part of the charging document. But, in the case of
second degree assault, it appears that the facts in the affidavit are not nec-
essary to provide constitutionally sufficient notice. See Md. Code Ann.,
Crim. Law § 3-206(a) (Lexis 2011) ("A[ ] . . . charging document . . .
[under the second degree assault provision] is sufficient if it substantially
states: ‘(name of defendant) on (date) in (county) assaulted (name of vic-
tim) in the . . . degree or (describe other violation) in violation of (section
violated) against the peace, government, and dignity of the State.’").
The Maryland Rules also provide that an offense may be tried on a
statement of charges filed before arrest with an affidavit of probable cause
10 UNITED STATES v. DONNELL
120 (4th Cir. 1998), we held that the facts in the Maryland
applications for statement of charges/statements of probable
cause may be consulted to determine whether prior offenses
are crimes of violence because the applications were incorpo-
rated by language into the statement of charges. 138 F.3d at
126. The charging documents for the prior convictions stated,
"Upon the facts contained in the [application for statement of
charges/statement of probable cause]." Id. at 123, 126. To be
sure, Kirksey suggested, but did not hold, that the facts in the
application are necessary to give the defendant the notice
required under the Maryland rules and, thus, might be incor-
porated as a matter of Maryland law. See id. at 126. Rather,
the court flatly held that the applications may be consulted
because they are incorporated by express language.5 Id. ("In
consulting these incorporated statements, the district court did
not make a factual inquiry into the facts of trial. Rather, it fol-
lowed the methodology of the categorical approach described
or after arrest with an arresting officer’s statement of probable cause. Md.
R. Crim. P. 4-201(b), -211(b). But, these rules do not answer the para-
mount inquiry under Shepard, namely, whether the defendant necessarily
admits to those facts when entering his plea. Cf. United States v. Hage-
now, 487 F.3d 539, 542 (7th Cir. 2007) (noting that "an affidavit attached
to an information as part of Indiana practice is not part of the charging
document for the purpose of determining whether the charged crime is a
crime of violence"). Express incorporation of external documents, such as
the statement of probable cause at issue here, addresses this paramount
concern.
5
The Government’s argument that the Kirksey panel’s reliance on a
third unincorporated application means that express incorporation is not
required is unpersuasive. A third application for a statement of
charges/statement of probable cause was considered by the district court
in Kirksey, but on appeal, we explained that the statement of charges for
the third conviction was superseded by the criminal information filed by
the state’s attorney in the Circuit Court for Baltimore City, on which the
defendant was ultimately tried and convicted. Id. at 122–23. We specifi-
cally concluded that in "at least two of the charging documents" involved
in the defendant’s prior convictions, the language in the statement of
charges incorporated the facts into the "charging document." Id. at 126
(emphasis added). As Donnell points out, Kirksey’s holding was not
dependent upon the third unincorporated application. See id.
UNITED STATES v. DONNELL 11
in Taylor and our precedent, which includes the consultation
of the charging document, the jury instructions, and, in this
case, the official factual statements incorporated into and
filed with the charging documents.") (emphasis added).
Likewise, in United States v. Coleman, 158 F.3d 199 (4th
Cir. 1998), this court, sitting en banc, affirmed the district
court’s use of an affidavit of probable cause to determine
whether the offense involved the use of force where the affi-
davit was "part" or a "portion of the charging papers." 158
F.3d at 202–03 (emphasis added). The affidavit in Coleman,
like the affidavit in Kirksey, was incorporated into the state-
ment of charges; the affidavit of one of the arresting officers
began on the statement of charges and, as the statement of
charges provided, "continued on [the] attached sheet."
Although the court did not specifically mention express incor-
poration, the underlying document was, in fact, incorporated,
and the court relied on Kirksey, whose holding rested on the
express incorporation of the facts to allow for consultation of
the affidavits of probable cause. Id. at 202; see also Simms,
441 F.3d at 317 (reasoning, in response to defendant’s argu-
ment that explicit incorporation of the application as part of
the charging document was "merely a matter of labeling," that
incorporation of the facts into the statement of charges served
to "satisfy[ ] Maryland’s requirement that each of its charging
documents contain ‘a concise and definite statement of the
essential facts of the offense with which the defendant is
charged’" (quoting Md. R. Crim. P. 4-202(a))). Any language
in Coleman suggesting that incorporation occurs by operation
of Maryland law, and thus express incorporation is unneces-
sary for the district court to consult the facts contained in the
affidavit, is at best mere dicta because the underlying affidavit
was actually incorporated. See supra n. 4.
Here, it is uncontested that the district court relied upon an
officer’s sworn statements contained in a statement of proba-
ble cause that was not expressly incorporated into the state-
ment of charges to determine that Donnell’s Maryland second
12 UNITED STATES v. DONNELL
degree assault conviction constituted a predicate offense
under U.S.S.G. § 2K2.1(a)(2). The district court therefore
erred in relying on facts contained in the unincorporated affi-
davit to find that Donnell had two qualifying convictions.
III.
For the reasons set forth, we vacate the judgment and
remand for resentencing proceedings consistent with this opin-
ion.6
VACATED AND REMANDED
6
Although we express no view as to what sentence the district court
might properly impose upon remand, we find wholly unpersuasive, partic-
ularly in light of the district court’s careful analysis of the § 3553(a) fac-
tors, the Government’s fall-back argument that we should affirm the
judgment on the theory that the district court would have imposed the
same sentence without the enhancement that we find was improperly
applied.