concurring in part and dissenting in part:
I concur in the majority’s handling of most of the issues raised by Ramdass.1 I respectfully dissent, however, from the majority’s treatment of Ramdass’ Simmons claim. Because it seems evident *411that Ramdass should be able to inform the jury, by argument or court instruction, of his non-eligibility for parole if sentenced for life imprisonment, I would affirm the district court on the Simmons claim so that the sentencing jury could be accurately informed that Ramdass would be parole ineligible.
I.
A clear statement of the factual context of this case is useful to gain an understanding of the arbitrariness of the result reached by the majority.
The .jury found Ramdass guilty of the Kayani murder on January 28, 1993. His sentencing hearing began the next day. At that hearing, the prosecution presented as evidence of Ramdass’ future dangerousness the fact that he had been found guilty of the Pizza Hut robbery, see infra, and the Domino’s Pizza robbery, see infra. The Commonwealth also emphasized that previously Ramdass had committed crimes *412while released on “mandatory” parole. While deliberating Ramdass’ sentence, the jury asked the judge, “if the Defendant is given life is there a possibility of parole at some point before his natural death?” (emphasis added). Rather than answering that question, the judge told the jury that they were “not to concern [themselves] with what may happen” after they impose his sentence. On January 30, 1993, the jury imposed a sentence of death.
On appeal, the Supreme Court ordered the Virginia Supreme Court to reconsider Ramdass’ case in light of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Simmons involved facts almost identical to those at bar. In Simmons, a defendant was made parole ineligible by a conviction for capital murder. At the sentencing phase for that crime, the defendant requested that the jury be instructed that a life sentence would not carry with it the possibility of parole. To bolster his position, the defendant cited, inter alia, a study indicating that more than 75 percent of those surveyed in South Carolina considered the amount of time a defendant would actually have to spend in prison to be an “extremely important” or “very important” factor in choosing between life and death. Simmons, 512 U.S. at 159, 114 S.Ct. 2187. As in the case at bar, during deliberations, the jury asked the judge a single question: “Does the imposition of a life sentence carry with it the possibility of parole?” Id. at 160, 114 S.Ct. 2187. The trial judge gave a vague answer and instructed the jury not to consider parole in reaching its verdict. Id. Within minutes, the jury returned a sentence of death.
■ On remand in the case at bar, the Virginia Supreme Court held that Simmons was inapplicable because under Virginia law, Ramdass was not technically parole ineligible at the time the jury was deliberating his capital sentence. Under Virginia law, a felon is parole ineligible if he has been “convicted” of three offenses of murder, rape, or robbery with a deadly weapon (a “predicate conviction”); when multiple predicate convictions are part of a common act, transaction, or scheme, they are counted as only one predicate conviction. See Va.Code Ann. § 53.1-151(B1) (Michie 1998) (the “three strikes law”).
At the time the capital jury was considering his sentence, Ramdass had been found guilty of five robberies and one murder.2 One of the robberies involved no deadly weapon and therefore was not a predicate conviction. Two of the other robberies were part of the same transaction. On December 15, 1992, a jury had found Ramdass guilty of two counts of robbery and one count of using a firearm in the commission of a robbery (the “Pizza Hut robbery”). Judgment and sentence for this crime was officially imposed on January 22, 1993. At the time that Ram-dass was sentenced on the Kayani murder, this conviction was still subject to a motion to set aside the verdict for trial error or insufficiency of the evidence. See Va. Sup. Ct. R. 3A:15(b) (Michie 1998). It was also subject to an appeal. See Va.Code Ann. § 17-116.05:3 (Michie 1996). The Virginia Supreme Court counted the Pizza Hut robbery as only one predicate conviction.
The final two armed robberies were also part of one transaction. On January 7, 1993, in a separate proceeding, a jury found Ramdass guilty of two counts of robbery and one count of using a firearm in the commission of a robbery (the “Domino’s Pizza robbery”). Judgment and sentence on this crime was not officially imposed until February 18, 1993. The Virginia Supreme Court reasoned that the Domino’s Pizza robbery did not count as a predicate conviction because at the time of the Kayani sentencing, Ram-dass had not yet been “convicted” of that offense under the meaning of that term in *413the three strikes law — although he had been found guilty, judgment had not yet been officially entered. With only one predicate conviction besides the Kayani murder, the Virginia Supreme Court held that Simmons was inapplicable because on January 30, 1993 Ramdass was technically eligible for parole.
While this result is sound under the legal technicalities of Virginia law, in practical reality it was a certainty that Ram-dass would be parole ineligible upon entry of the Kayani conviction. Indeed, at the Kayani sentencing, there was no practical difference between the Domino’s Pizza robbery guilty verdict and the Pizza Hut robbery guilty verdict. From January 30, 1993 until February 18, 1993, no motions were outstanding which could have affected the Domino’s Pizza conviction. Ram-dass claims that as of January 30, 1993, his motion to strike the evidence as insufficient as a matter of law in the Domino’s Pizza robbery case, see Va. Sup.Ct. R. 3A:15(a), had already been denied. So, except for the ministerial act of formally entering judgment, on January 30, 1993, Ramdass was in exactly the same position vis-a-vis the Domino’s Pizza robbery as he was vis-a-vis the Pizza Hut robbery: the finding of guilt was subject only to a Rule 3A: 15(b) motion to set aside the verdict and an appeal under Virginia Code § 17-116.05:3.3 Thus, although it was a virtual certainty at his capital sentencing that Ramdass would be ineligible for parole, the Virginia Supreme Court found that Simmons was not applicable because Ram-dass was still in some technical legal sense eligible for parole.
Nineteen days after the jury delivered Ramdass’ sentence for the Kayani murder, the ministerial act of entering judgment on the Domino’s Pizza robbery was completed, giving Ramdass his second predicate conviction. The Kayani sentence and judgment was officially imposed on April 6, 1993 — more than one month after formal entry of judgments on the Pizza Hut robbery and the Domino’s Pizza robbery. When judgment for the Kayani murder was entered, that judgment, combined with the Pizza Hut conviction and the Domino’s Pizza conviction gave Ramdass his third strike, making him ineligible for parole. This was exactly the occurrence of which Ramdass had requested the jury be informed.
II.
The majority takes the view that the Virginia Supreme Court’s interpretation of Virginia law settles the case. I disagree. There is no doubt that the Virginia Supreme Court was entitled to interpret the word “convicted” in Virginia Code § 53.1-151(A) in the way it did. Further, we are bound by this interpretation of state law by the highest state court. This case does not hinge on the word “convicted” in Virginia law, however. The case hinges upon the requirements of the Due Process clause of the Fourteenth Amendment. In Simmons, the Supreme Court defined one aspect of this Due Process clause. Admittedly, the right recognized in Simmons is ' dependent to some extent upon state law: The right depends upon state parole law; the right only applies to those for whom state law has eliminated the possibility of parole. But, the right is a federal right, nonetheless, and the scope and parameter of the Simmons right is a matter of federal constitutional law.
The majority rejects a “pragmatic, functional, nonlegalistic concept” of the Simmons right. I think the majority has overlooked the genesis of Simmons. Simmons was merely an extension of the rule in *414Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), that “elemental due process require[s] that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.’ ” Skipper, 476 U.S. at 5 n. 1, 106 S.Ct. 1669 (plurality opinion) (quoting Gardner, 430 U.S. at 362, 97 S.Ct. 1197), quoted in part in Simmons, 512 U.S. at 164, 114 S.Ct. 2187 (plurality opinion), and quoted in id. at 175, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment). As both the plurality opinion and the O’Connor concurrence4 recognized, the fact that the defendant will never be released from prison “will often be the only way that a violent criminal can successfully rebut the State’s case [of future dangerousness].” Simmons, 512 U.S. at 177, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment); id. at 163-64, 114 S.Ct. 2187 (plurality opinion) (“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.... Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole.”).
This principle has full force in the case at bar. At capital sentencing, the prosecution presented evidence of Ramdass’ future dangerousness. Some of this evidence included the fact that Ramdass had committed the Pizza Hut robbery and the Domino’s Pizza robbery. More importantly, the Commonwealth repeatedly referred to the fact that Ramdass had committed many of his crimes while on parole. The Commonwealth mentioned the phrase “mandatory parole” several times, suggesting to the jury that the Commonwealth would have no choice but to parole Ram-dass at some future date. In the face of this evidence of future dangerousness, Ramdass was rendered powerless to explain to the jury that, but for what was at that point a meaningless ministerial act, he was ineligible for parole under state law.5 Thus, under Gardner, Skipper, and Simmons, Ramdass was denied his “elemental due process” right to deny or explain the Commonwealth’s evidence of future dangerousness. See Simmons, 512 U.S. at 175 (O’Connor, J., concurring).
It is also important to remember the audience of the Simmons right. Simmons is concerned about the defendant’s ability to present rebuttal evidence to a jury. Thus, Simmons is grounded in the right to present information which might affect a jury’s decision making. Juries are not concerned about legal technicalities or remote and theoretical possibilities. They are concerned about practical realities. The Supreme Court recognized this point in Simmons. In Simmons, South Carolina argued that informing the jury that the defendant would be parole ineligible was inherently misleading because future contingencies such as legislative reform, commutation, and clemency might allow the release of the prisoner. The plurality rejected this argument, holding that the defendant could not be denied the right to rebut prosecution evidence of future dangerousness merely because of “hypothetical future developments.” Simmons, 512 *415U.S. at 166, 114 S.Ct. 2187. The court reasoned that a parole ineligibility instruction was more accurate than no instruction at all, which would inevitably leave the jury to assume that the defendant would eventually be released. Id. Nothing in Justice O’Connor’s concurrence indicates that she disagreed with the plurality that remote contingencies were irrelevant to the due process analysis.
In the case at bar, the majority hides its reliance on hypothetical future developments behind a state law shield. Because Ramdass did not become technically “parole ineligible” under Virginia law until judgment was formally entered on the Domino’s Pizza robbery, the majority holds that Simmons is inapplicable. But at the time of the Kayani sentencing, only some hypothetical future development as remote as legislative reform, commutation, or clemency, could have affected entry of the Domino’s Pizza robbery conviction and therefore prevented Ramdass from being parole ineligible. The reason the Supreme Court rejected reliance on such future hypothetical developments is evident in the arbitrary result of the case at bar. At the time of the Kayani sentencing, the court had already rejected Ramdass’ motions in the Domino’s Pizza robbery case to set aside the jury’s verdict before entry of judgment. See Virginia Sup.Ct. R. 3A:15(a). Formal entry of the conviction at that point was merely a ministerial act. Thus, for all realistic intents and purposes, it was a guarantee that Ramdass would be parole ineligible when the Kayani conviction was formally entered.
Further, there was at the time of the Kayani sentencing no practical basis for distinguishing between the Pizza Hut robbery guilty verdict and the Domino’s Pizza robbery guilty verdict. Because the Rule 3A:15(a) motions had been denied for the Domino’s Pizza robbery verdict, both verdicts were subject to an identical degree of uncertainty — either could be set aside only under a Rule 3A:15(b) motion or on appeal. Yet the majority asserts that the constitution requires us to treat the one as a certainty and the other as if it did not exist.
Splitting hairs when a man’s life is at stake is not becoming to a judiciary or a legal system. I do not believe that due process requires or allows such arbitrary results. I would hold that, regardless of the technical, legalistic definition of “conviction” used by the Virginia Supreme Court, Radars had a constitutional due process right to inform the jury of the wholly accurate information that by the time the sentence they were deliberating was officially entered by the judge, he would be ineligible under state law for parole. I respectfully dissent.
. He was also awaiting trial on two other armed robberies, both involving assault with a deadly weapon.
. The Commonwealth also points out that under Va.Code Ann. §§ 19.2-298 and 303 (Mi-chie 1995), the court could suspend the imposition of the sentence or suspend the sentence in whole or in part. This is irrelevant, however, for two reasons. First, the Pizza Hut robbery was also subject to a § 19.2-303 suspension of the sentence. Second, regardless of whether a sentence has been suspended, nothing in §§ 19.2-298 or 19.2-303 erases the conviction for purposes of parole ineligibility under Virginia’s three strikes statute.
. We have recognized Justice O'Connor's concurrence as the controlling opinion in Simmons. See Keel v. French, 162 F.3d 263, 270 (4th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999); Townes v. Murray, 68 F.3d 840, 849 (4th Cir.1995).
. The majority sets up a straw man by asserting that Ramdass has asked us to extend Simmons to situations in which a defendant is not ineligible for parole under state law. The majority relies in part on Roach v. Angelone, 176 F.3d 210, 220 (4th Cir.1999), Keel v. French, 162 F.3d 263, 270 (4th Cir.1998), and Fitzgerald v. Greene, 150 F.3d 357, 367 (4th Cir.1998), to defeat this straw man. In each of those cases, however, the defendant remained eligible for parole under state law even when all ministerial acts were completed. Of course Simmons did not apply to each of those defendants. Those cases are wholly inapposite here, where Ramdass' whole argument is based on his parole ineligibility under state law.