PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-6301
WILLIAM THOMAS DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Senior District Judge.
(5:08-cr-00021-FPS-JSK-1)
Argued: March 23, 2012
Decided: July 23, 2012
Before DAVIS and DIAZ, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge for
the Western District of Virginia, sitting by designation.
Affirmed by published per curiam opinion. Senior Judge
Kiser wrote a separate concurring opinion.
COUNSEL
ARGUED: Carl E. Hostler, PRIM LAW FIRM, PLLC, Hur-
ricane, West Virginia, for Appellant. David J. Perri, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West
2 UNITED STATES v. DAVIS
Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld, II,
United States Attorney, Wheeling, West Virginia, for Appel-
lee.
OPINION
PER CURIAM:
William Davis pleaded guilty to possession of a firearm by
a convicted felon and received a fifteen-year mandatory-
minimum sentence under the Armed Career Criminal Act
("ACCA"). Both in his plea agreement and at his plea hearing,
Davis was advised incorrectly that he faced a maximum sen-
tence of only ten years. Davis contends that this error consti-
tutes a breach of his plea agreement and asks us to order that
he receive the ten-year sentence described incorrectly as his
statutory maximum. Davis also challenges the district court’s
conclusion that he qualified for the ACCA sentence enhance-
ment. In response, the government seeks to enforce the appeal
waiver found in Davis’s plea agreement.
We hold that the failure to properly advise Davis of his
statutory maximum sentence was not a breach by the govern-
ment. Under these circumstances, however, we are unable to
conclude that Davis knowingly and intelligently waived the
right to appeal his fifteen-year sentence. We therefore decline
to enforce Davis’s appeal waiver and proceed to consider his
alleged sentencing errors. Finding no merit in those claims,
we affirm.
I.
William Davis was charged in a one-count information
with unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The information listed
three prior state-court felony convictions. Davis entered into
UNITED STATES v. DAVIS 3
a written plea agreement with the government in which he
agreed to plead guilty to the one-count information. Davis
also waived the right to appeal his sentence or to challenge it
in a collateral attack. In exchange, the government agreed to
(1) concur in a recommendation by the probation office
regarding a reduction for acceptance of responsibility, (2) rec-
ommend an additional one-level reduction if Davis provided
timely information regarding his own and others’ involvement
in the offense, and (3) recommend a sentence at the low end
of the applicable guidelines range. J.A. 57.
Davis’s plea agreement, however, misstated his maximum
statutory sentence. Under the ACCA, a defendant who vio-
lates § 922(g) and has three prior convictions for a violent fel-
ony or serious drug offense is classified as an armed career
criminal and faces a fifteen-year mandatory minimum sen-
tence. 18 U.S.C. § 924(e)(1). Davis’s plea agreement failed to
advise him of the potential ACCA sentence enhancement he
would face if the court designated him an armed career crimi-
nal. Instead, the agreement stated that "[t]he maximum pen-
alty to which the defendant will be exposed by virtue of his
plea of guilty . . . [is] imprisonment for a period of (10) ten
years." J.A. 56.
Despite misstating Davis’s statutory maximum, the plea
agreement advised that the district court had the final say
regarding his sentence. The government also expressly dis-
claimed any "representations whatsoever . . . as to what the
final disposition in this matter should and will be." Id. 57.
And after summarizing the government’s obligations, the
agreement advised that "the Court is not bound by these sen-
tence recommendations, and that the defendant has no right to
withdraw a guilty plea if the Court does not follow the sen-
tencing recommendations." Id.
The mistake in the plea agreement was compounded during
the plea hearing, where the government and the court misad-
vised Davis regarding his potential maximum term of impris-
4 UNITED STATES v. DAVIS
onment. First, while summarizing the terms of the plea
agreement, the government again told Davis that the maxi-
mum term of imprisonment was ten years. Next, after explain-
ing the elements of the § 922(g) charge, the court stated that
"[t]he maximum sentence to which you would be exposed by
statute in this matter would be not more than 10 years incar-
ceration." Id. 32. The court specifically asked Davis, "And do
you understand that on the individual, one-count information,
you cannot in any event receive a greater sentence than the
statutory maximum that I have just explained to you?" Id. 34.
Davis responded that he understood.
Later in the hearing, the court advised Davis that his prior
criminal history could potentially affect his sentence. Davis
acknowledged that the court was unable to determine his
exact sentence until it received the presentence report and that
his sentence might be enhanced based on his criminal history.
At the conclusion of the hearing, the court accepted Davis’s
guilty plea, concluding that he was competent, that he was
pleading guilty freely and voluntarily, and that the plea was
supported by a factual basis.
In the presentence report, the probation officer recom-
mended that the court sentence Davis as an armed career
criminal. The report indicated that Davis had prior convic-
tions for three violent felony offenses and therefore qualified
as an armed career criminal under the ACCA. The convictions
included the three offenses listed in the information—a Febru-
ary 1993 burglary conviction in West Virginia, a July 1993
aggravated burglary conviction in Ohio, and March 2000 con-
victions for attempted breaking and entering and conspiracy
to commit breaking and entering in West Virginia. Applying
the ACCA sentence enhancement, the presentence report con-
cluded that the minimum and maximum term of imprisonment
Davis faced was fifteen years to life in prison.
At sentencing, Davis raised three objections to the presen-
tence report’s conclusion that he qualified as an armed career
UNITED STATES v. DAVIS 5
criminal. First, Davis contended that the convictions were not
separate offenses but instead were part of the same course of
conduct. Second, he argued that the record contained insuffi-
cient proof of the prior convictions. Finally, Davis maintained
that the 2000 West Virginia breaking and entering convictions
did not constitute a violent felony under the ACCA. Notably,
Davis did not contend that the government breached the plea
agreement or that he had been misadvised regarding the statu-
tory maximum sentence.
The district court overruled Davis’s objections and desig-
nated him an armed career criminal. With respect to Davis’s
contention that the West Virginia breaking and entering con-
victions should not have been counted under the ACCA, the
court examined the state-court indictment and concluded that
the convictions satisfied the generic elements of burglary.
Accordingly, the court concluded that Davis was "subject to
an enhanced sentence under the provisions of 18 United
States Code, Section 924(e)." Id. 87. The court determined
that Davis’s advisory guidelines range was 168 to 210 months
in prison. But because Davis was an armed career criminal,
the court imposed a sentence of 180 months, consistent with
the fifteen-year statutory minimum under the ACCA.
Nearly nine months after sentencing, Davis filed a pro se
petition under 28 U.S.C. § 2255 challenging his sentence.
Davis argued that he received ineffective assistance of coun-
sel based, in part, on his lawyer’s failure to abide by his
request to file a direct appeal.1 Davis’s attorney had recently
died and so was unable to respond to Davis’s assertion. Based
on the "unusual circumstances," the court granted Davis’s
1
A defendant cannot waive "his right to appeal his sentence on the
ground that the proceedings following entry of the guilty plea were con-
ducted in violation of his Sixth Amendment right to counsel." United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal quotation
marks omitted). Accordingly, Davis’s petition asserting ineffective assis-
tance of counsel was not barred by the appeal waiver.
6 UNITED STATES v. DAVIS
petition in part and allowed him fourteen days to appeal his
sentence. Id. 209.
Davis raises two primary arguments on appeal. First, he
contends that the government breached the plea agreement
and deprived him of the benefit of his bargain. Second, he
challenges the district court’s conclusion that he qualified as
an armed career criminal. We address each claim in turn.
II.
Davis contends that the government breached the plea
agreement by failing to adhere to its promise of a ten-year
prison sentence. As a remedy for the breach, he asks us to
vacate his sentence and remand with instructions that the dis-
trict court impose a ten-year term of imprisonment. Because
Davis raises this issue for the first time on appeal, our review
is for plain error. See United States v. McQueen, 108 F.3d 64,
65–66 (4th Cir. 1997). Finding no error, plain or otherwise,
we reject Davis’s claim.
A plea agreement is "essentially a contract between an
accused and the government" and is therefore subject to inter-
pretation under the principles of contract law. United States
v. Lewis, 633 F.3d 262, 269 (4th Cir. 2011). As such, "[i]t is
elementary that, ‘when a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such prom-
ise must be fulfilled.’ " Id. (quoting Santobello v. New York,
404 U.S. 257, 262 (1971)). And while "each party should
receive the benefit of its bargain," the government is bound
only by the promises it actually made to induce the defen-
dant’s plea. United States v. Dawson, 587 F.3d 640, 645 (4th
Cir. 2009) (internal quotation marks omitted).
Davis’s claim for breach fails insofar as he seeks the bene-
fit of a promise that the government never made. In the plea
agreement, the government agreed to make a series of "non-
UNITED STATES v. DAVIS 7
binding recommendations" but did not promise a particular
sentence. J.A. 57. In fact, the agreement explicitly states that
the government has made "no representations" regarding the
final disposition and that the final decision regarding Davis’s
sentence belonged to the court. Id. Although the plea agree-
ment admittedly misstates the applicable statutory maximum
sentence, at no point did the government guarantee Davis a
ten-year term of imprisonment. Accordingly, Davis is unable
to point to a promise that the government breached.
Even if the government had made and subsequently
breached a promise for a particular sentence, Davis is never-
theless not entitled to the "specific performance" he now
seeks. The ACCA mandates a fifteen-year sentence for any
defendant who qualifies as an armed career criminal. Having
concluded that Davis was subject to the ACCA enhancement,
the district court could not have imposed a sentence that con-
travened the applicable statute. See United States v. Robinson,
404 F.3d 850, 862 (4th Cir. 2005) ("[A] district court has no
discretion to impose a sentence outside of the statutory range
established by Congress for the offense of conviction.").
Thus, even if the government’s conduct amounted to a
breach—which it did not—we have no authority to order the
district court to impose an unlawful sentence. Accordingly,
Davis’s claim fails.
Despite recognizing that the plea agreement did not explic-
itly guarantee Davis a particular sentence, our concurring col-
league concludes that such a promise exists based on the
government’s failure to correct the district court’s misstate-
ment of the statutory mandatory minimum sentence at the
Rule 11 hearing. The concurring opinion reasons that the plea
agreement was therefore effectively modified or alternatively
that there was an ambiguity created that should be construed
against the government. Post at 18–19. The fact remains,
however, that the plea agreement unambiguously stated,
"There have been no representations whatsoever by any agent
or employee of the United States, or any other law enforce-
8 UNITED STATES v. DAVIS
ment agency, as to what the final disposition in this matter
should and will be." J.A. 57. Nothing that transpired at the
Rule 11 hearing altered this unambiguous language to create
a promise where one did not otherwise exist.
Furthermore, even if the government had made such a
promise, the district court would have been compelled to
reject the agreement because the government cannot obligate
the court to impose a sentence that contravenes the statute.
See Robinson, 404 F.3d at 862. Contrary to the concurring
opinion’s assertion, our conclusion does not "invite[ ] great
uncertainty," post at 19, but instead is entirely consistent with
decisions of our sister circuits, who have declined to recog-
nize a breach under similar circumstances. E.g., United States
v. Williams, 198 F.3d 988, 992–93 (7th Cir. 1999) (holding in
a case in which the plea agreement misstated the statutory
maximum sentence under the ACCA that "the paragraph of
the Agreement referencing a maximum sentence of ten years
was merely a recitation of a mistake of fact . . . and not part
of the promise agreed to by the government"); see also United
States v. Coblentz, 274 Fed. App’x 651, 653–54 (10th Cir.
2008) (unpublished) (affirming the imposition of a fifteen-
year mandatory minimum sentence under the ACCA even
though the plea agreement erroneously stated that the defen-
dant faced a ten-year statutory maximum sentence).
III.
We next turn to Davis’s contention that the district court
erred in designating him an armed career criminal. In
response, the government asserts that Davis’s challenge is
barred by the appeal waiver contained in his plea agreement.
We first examine the validity of the waiver before turning to
the merits of Davis’s challenge to his ACCA sentence.
A.
A defendant may waive the right to appeal his conviction
and sentence so long as the waiver is knowing and voluntary.
UNITED STATES v. DAVIS 9
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). We
review the issue of whether a defendant effectively waived his
right to appeal de novo, and will enforce the waiver if it is
valid and the issue appealed is within the scope of the waiver.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An
appeal waiver contained in a plea agreement is valid if the
defendant "knowingly and intelligently agreed to waive the
right to appeal." Id. at 169. Although the validity of an appeal
waiver often depends on the adequacy of the plea colloquy,
"the issue ultimately is evaluated by reference to the totality
of the circumstances." Id. (internal quotation marks omitted).
We hold that the waiver in Davis’s plea agreement is
invalid because he did not knowingly waive the right to
appeal the sentence ultimately imposed. The agreement states
that Davis "waives the right to appeal his sentence within the
maximum provided in the statute of conviction." J.A. 59.
Prior to his plea, however, Davis was misadvised repeatedly
regarding the actual applicable statutory maximum sentence.
The plea agreement states that "[t]he maximum penalty to
which defendant will be exposed by virtue of his plea of
guilty . . . [is] imprisonment for a period of (10) ten years."
Id. 56. And at Davis’s Rule 11 hearing, the government and
the court compounded the mistake by repeating this same
advice.
Under these circumstances, we cannot say that Davis
"knowingly and intelligently" waived appellate review of the
fifteen-year sentence imposed by the court. See Blick, 408
F.3d at 169. To the contrary, when Davis agreed to waive his
right to appeal, from his perspective, all indications were that
he faced at most a ten-year term of imprisonment. The failure
to account for the ACCA sentence enhancement rendered
Davis’s assent to the appeal waiver unknowing. Accordingly,
we proceed to consider his alleged sentencing errors.
B.
In reviewing the district court’s determination that Davis is
an armed career criminal, we review factual findings for clear
10 UNITED STATES v. DAVIS
error and legal conclusions de novo. United States v. Rivers,
595 F.3d 558, 560–61 (4th Cir. 2010). The ACCA sentence
enhancement applies to defendants who violate § 922(g) and
have three previous convictions for "serious drug offense[s]"
or "violent felon[ies]." 18 U.S.C. § 924(e)(1).
In support of its determination that Davis was an armed
career criminal, the district court concluded that Davis had
previously committed three violent felonies based on his
state-court convictions for burglary and attempted breaking
and entering. Davis challenges that conclusion on two
grounds. He first contends that the district court erred in clas-
sifying his 2000 West Virginia convictions for attempted
breaking and entering and conspiracy to commit breaking and
entering as a violent felony. He next argues that his 1993 bur-
glary convictions in West Virginia and Ohio should be treated
as a single predicate offense. Finding these claims to be merit-
less, we affirm.
1.
The district court held that Davis’s 2000 West Virginia
convictions for attempted breaking and entering and conspir-
acy to commit breaking and entering constituted generic bur-
glary and therefore counted as a predicate offense under the
ACCA.2 Davis disagrees, contending that the convictions
were not violent felonies. Because Davis was convicted of
attempted breaking and entering, the district court’s conclu-
sion that Davis’s crime qualified as generic burglary was
wrong. We find that the error was harmless, however, because
the conviction satisfies the ACCA definition of violent felony
even when considering that Davis was convicted of an
attempt.
2
The attempt and conspiracy convictions stemmed from the same crimi-
nal transaction. The district court therefore correctly counted them as a
single predicate offense. See 18 U.S.C. § 924(e)(1) (explaining that
offenses must be "committed on occasions different from one another").
UNITED STATES v. DAVIS 11
For purposes of the ACCA sentence enhancement, Con-
gress defined "violent felony" to include several discrete
crimes, including burglary, as well as any crime that "involves
conduct that presents a serious potential risk of physical
injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Rather than
leave the definition of the discrete crimes to the variances of
state law, the Supreme Court has held that they "must have
some uniform definition" based on the generic elements of the
offense. Taylor v. United States, 495 U.S. 575, 590–92
(1990). In Taylor, the Supreme Court clarified the elements of
generic burglary, holding as follows:
[A] person has been convicted of burglary for pur-
poses of a § 924(e) enhancement 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 building
or structure, with intent to commit a crime.
Id. at 599.
In determining whether a prior conviction qualifies as an
ACCA predicate, courts first follow a categorical approach
that "generally requires the trial court to look only to the fact
of conviction and the statutory definition of the prior offense."
Id. at 602. When a statute proscribes different categories of
crimes, however, "such that it can be construed to enumerate
separate crimes," courts may employ a modified categorical
approach. Rivers, 595 F.3d at 563.
In Shepard v. United States, 544 U.S. 13, 16 (2005), the
Court clarified that under the modified categorical approach,
courts may examine other 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." Looking to these Shepard-approved doc-
uments, courts determine whether a defendant necessarily
12 UNITED STATES v. DAVIS
admitted the elements of the generic offense by pleading
guilty to a nongeneric state statute. Id. at 26.
Under the categorical approach, it is unclear whether break-
ing and entering under the West Virginia statute satisfies the
elements of generic burglary. The applicable statute provides
as follows:
If any person shall, at any time, break and enter, or
shall enter without breaking, any office, shop, under-
ground coal mine, storehouse, warehouse, banking
house or any house or building, other than a dwelling
house or outhouse adjoining thereto or occupied
therewith, any railroad or traction car, propelled by
steam, electricity or otherwise, any steamboat or
other boat or vessel, or any commercial, industrial or
public utility property enclosed by a fence, wall or
other structure erected with the intent of the property
owner of protecting or securing the area within and
its contents from unauthorized persons, within the
jurisdiction of any county in this state, with intent to
commit a felony or any larceny, he or she shall be
deemed guilty of a felony and, upon conviction, shall
be confined in a state correctional facility not less
than one nor more than ten years.
W. Va. Code Ann. § 61-3-12. Because the statute criminalizes
the entry of places other than "a building or structure" with
the intent to commit a felony therein, see Taylor, 495 U.S. at
599, a conviction under the West Virginia statute does not
necessarily constitute generic burglary. See United States v.
Foster, 662 F.3d 291, 293 (4th Cir. 2011) (concluding that the
Virginia breaking and entering statute was "broader than
‘generic burglary’ " and therefore resorting to a review of
Shepard-approved documents).
We therefore turn to the modified categorical approach to
determine whether Davis’s convictions involved a violent fel-
UNITED STATES v. DAVIS 13
ony. Based on its review of the state-court indictment—a
Shepard-approved document—the district court, in determin-
ing the place entered, concluded as follows:
[W]e are not speaking about a railroad car or a vehi-
cle or something not a building or structure that
might be contained in the West Virginia statute, we
are simply talking about . . . the Temple Shalom
church building of which specifically the defendant
was charged and entered a plea. And the indictment
illustrates the building and charges with intent to
commit a felony therein.
J.A. 85. The court then held that Davis’s convictions were for
generic burglary. Because Davis was convicted of attempted
breaking and entering, however, the inquiry does not end
here.
Davis’s conviction is not for a completed breaking and
entering, and so we must consider whether his specific con-
duct satisfies the generic definition of burglary. More specifi-
cally, the relevant question is whether the additional attempt
element removes the crime from the definition of generic bur-
glary. See James v. United States, 550 U.S. 192, 197 (2007)
(finding that attempted burglary under Florida law is not
generic burglary for purposes of the ACCA because it
requires the additional element "that the defendant ‘fai[l] in
the perpetration or [be] intercepted or prevented in the execu-
tion’ of the underlying offense" (citing Fla. Stat.
§ 777.04(1))).
West Virginia has not adopted an attempt statute specifi-
cally applicable to breaking and entering; therefore, Davis’s
conviction must have been under West Virginia’s general
attempt statute. Like the Florida statute at issue in James,
West Virginia’s general attempt statute prescribes criminal
penalties for "[e]very person who attempts to commit an
offense, but fails to commit or is prevented from committing
14 UNITED STATES v. DAVIS
it." W. Va. Code § 61-11-8 (emphasis added). The Supreme
Court of Appeals of West Virginia has held that attempted
breaking and entering requires an element in addition to
generic burglary—the unlawful entry or the breaking and
entering must have failed or been prevented. State v. Franklin,
79 S.E.2d 692, 697 (W. Va. 1953). Therefore, Davis’s convic-
tion for attempted breaking and entering cannot qualify as
generic burglary for purposes of the ACCA. See James, 550
U.S. at 197.
The question then becomes whether attempted breaking
and entering as defined under West Virginia law, "falls within
the ACCA’s residual provision for crimes that ‘otherwise
involve[e] conduct that presents a serious potential risk of
physical injury to another.’ " Id. (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). We find that it does.
Resolution of this issue is controlled by James and its prog-
eny. Under James, a crime falls within the residual provision
if it involves "purposeful, violent, and aggressive conduct,"
Begay v. United States, 553 U.S. 137, 144–45 (2008), that "in
the ordinary case, presents a serious potential risk of injury to
another," James, 550 U.S. at 208. Although the Supreme
Court of Appeals of West Virginia has not directly addressed
the elements of attempted breaking and entering, it has in
other contexts held that, "where formation of criminal intent
is accompanied by preparation to commit the crime . . . and
a direct, overt and substantial act toward its perpetration," the
crime of attempt is complete. See State v. Burd, 419 S.E.2d
676, 680 (W. Va. 1991). Harmonizing these authorities, there-
fore, the crime of attempted breaking and entering requires an
intentional, substantial, and overt act toward perpetration of a
breaking and entering with intent to commit a felony. The dis-
positive question then becomes whether such conduct pre-
sents a serious potential risk of physical injury to another.
James, 550 U.S. at 203.
In James, the Supreme Court determined that attempted
burglary, as defined by Florida law, fell into this category. Id.
UNITED STATES v. DAVIS 15
at 195. Under Florida law, attempted burglary requires "an
‘overt act directed toward entering or remaining in a structure
or conveyance’ " with intent to commit an offense therein. Id.
at 202 (quoting Jones v. State, 608 So. 2d 797, 799 (Fl. Dist.
Ct. App. 1992)). These elements are substantially the same as
those that define attempted breaking and entering under West
Virginia law.
The Court in James found that attempted burglary under
Florida law poses basically the same risks as completed bur-
glary: "the possibility of a face-to-face confrontation between
the burglar and a third party—whether an occupant, a police
officer, or a bystander—who comes to investigate." Id. at 203.
Moreover, the Court explained that the categorical approach
does not require "that every conceivable factual offense cov-
ered by a statute must necessarily present a serious potential
risk of injury before the offense can be deemed a violent fel-
ony." Id. at 208 (citing Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007)). Rather, "[a]s long as the offense is of a type
that, by its nature, presents a serious potential risk of injury
to another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s
residual provision." Id. at 209.
The same general considerations that led the Court to con-
clude that attempted burglary presents a serious potential risk
of physical injury to another in James are equally present
here. Indeed, the predicate offense at issue in that case is
largely indistinguishable from the one before us. Accordingly,
we find that, although the district court below erred in deter-
mining that Davis’s convictions for attempted breaking and
entering and conspiracy to break and enter qualified as
generic burglary under the ACCA, such error is harmless
because Davis’s offense falls under the residual provision for
crimes that "otherwise involve[ ] conduct that presents a seri-
ous potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(ii).
16 UNITED STATES v. DAVIS
2.
Davis also argues that his two 1993 convictions for bur-
glary should be viewed as one offense under the ACCA
because the sentences ran concurrently and the burglaries
were both related to his substance abuse. We disagree.
To be counted separately, the ACCA requires that predicate
offenses must have been "committed on occasions different
from one another." 18 U.S.C. § 924(e)(1). Interpreting this
requirement, we have ruled that "[c]onvictions occur on occa-
sions different from one another if each of the prior convic-
tions arose out of a separate and distinct criminal episode."
United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)
(emphasis and internal quotation marks omitted). In reviewing
whether convictions occurred on separate occasions, we con-
sider, in part, whether the offenses occurred at different geo-
graphical locations and had multiple victims. Id. at 335-36.
We have little difficulty concluding that Davis’s 1993 bur-
glary convictions in Ohio and West Virginia occurred on
occasions different from one another. Whatever the impetus
for the two offenses, they were committed in different states
almost a month apart and involved different victims. There is
therefore no doubt that Davis had ample opportunity "to make
a conscious and knowing decision to engage in another
[crime]" after the completion of the first burglary. See id. at
337. The two burglary convictions are thus separate offenses
under the ACCA.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
UNITED STATES v. DAVIS 17
KISER, Senior District Judge, concurring:
I join the majority opinion in full with the exception of Part
II. Although I agree with the majority’s ultimate conclusion
that Davis is not entitled to the relief he seeks for breach of
the plea agreement and that the judgment of the district court
should be affirmed, I arrive at that conclusion via a somewhat
different route. Accordingly, I write separately.
Specifically, I disagree with the majority’s determination
that the government did not breach the plea agreement in this
case. The majority correctly states that plea agreements are
subject to ordinary contract law principles. Ante at 6. Never-
theless, because a plea agreement implicates the integrity of
the justice system, courts "hold ‘the Government to a greater
degree of responsibility than the defendant (or possibly than
would be either of the parties to commercial contracts) for
imprecisions or ambiguities in plea agreements.’" United
States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004) (quoting
United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986));
United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997).
This heightened responsibility on the part of the government
extends beyond the negotiation and drafting of the plea agree-
ment to all matters relating to it. Wood, 378 F.3d 348–49 (cit-
ing United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)).
During the Rule 11 plea colloquy, therefore, the parties must
disclose all material terms of the plea agreement, and the dis-
trict court must confirm the defendant’s understanding of
these terms. Id. at 349 (citing United States v. Moore, 931
F.2d 245, 249 (4th Cir. 1991); Hartman v. Blankenship, 825
F.2d 26, 28 (4th Cir. 1987)). "Because the purpose of the plea
colloquy is to establish that the defendant knowingly and vol-
untarily enters his plea . . . he will naturally . . . rely on the
district court’s characterization of the material terms disclosed
during the hearing." Id. (citing United States v. Buchanan, 59
F.3d 914, 918 (9th Cir. 1995); United States v. Moore, 931
F.2d 245, 249 (4th Cir. 1991)). Therefore, where the govern-
ment acquiesces in the district court’s pervasive mischaracter-
18 UNITED STATES v. DAVIS
ization of a material term, it effectively modifies and, thus
breaches, the terms of the plea agreement. Id. (citing
Buchanan, 59 F.3d at 917–18).
The majority finds that the government made Davis no
promise regarding his maximum sentence. It reasons that "the
government agreed to make a series of ‘nonbinding recom-
mendations’ but did not promise a particular sentence." Ante
at 6-7. It is true that the plea agreement does not in so many
words "promise" or "guarantee" Davis that he will receive a
particular sentence. Nevertheless, the plea agreement assures
Davis, in clear, declarative language, that "[t]he maximum
penalty to which the defendant will be exposed by virtue of
his plea of guilty . . . is: imprisonment for a period of (10) ten
years." J.A. 56. Moreover, as the majority acknowledges, ante
at 3-4, this misrepresentation was compounded by the court
during the Rule 11 colloquy. At that time, the court reiterated
more than once that Davis would not "in any event receive a
greater sentence than the statutory maximum [of ten years]."
J.A. 32, 34 (emphasis added). Thus, Davis was repeatedly
told, in no uncertain terms, that he would not, under any cir-
cumstances, receive a sentence greater than ten years. A rea-
sonable person in Davis’s position would have believed,
based on the plea agreement language and the court’s charac-
terization of its terms, that he would not receive a sentence
greater than ten years. I find that such clear assurances consti-
tute a promise for the purposes of a plea agreement.
In further support of its determination that the government
did not breach the plea agreement, the majority points out that
the agreement explicitly disclaims any "representations . . . as
to what the final disposition in this matter should and will be."
J.A. 57. The court reiterated this language during the plea col-
loquy. J.A. 32, 34, 51–52. Nevertheless, this language does
not effectively negate the plea agreement’s assurances that
Davis will not receive a sentence of greater than ten years.
The court did not explain that factors contained in Davis’s
Presentence Report could result in a sentence above the ten
UNITED STATES v. DAVIS 19
year statutory maximum. Davis would (and probably did) rea-
sonably understand this qualifying language to mean only that
factors contained in the Presentence Report would result in an
as yet unspecified sentence somewhere within the range of the
ten year maximum. Neither the written plea agreement nor the
court clarified that such factors could result in a mandatory
minimum of greater than ten years. At best, therefore, the lan-
guage relied on by the majority renders the plea agreement
ambiguous.1 The court’s explanation to Davis during the plea
colloquy essentially reiterated this ambiguity and did not cure
it.2 In light of the heightened responsibility on the part of the
government to eliminate ambiguity, I would find that the gov-
ernment breached the plea agreement in this case. The majori-
ty’s finding invites great uncertainty by allowing the
government to include serious misrepresentations in plea
agreements provided that it also includes imprecise boiler-
plate language disclaiming any guaranteed outcome.
Nevertheless, I ultimately agree with the majority that
Davis is not entitled to the relief he seeks. Because Davis did
not object to breach of the plea agreement below and raises
this issue for the first time on appeal, we must affirm the sen-
tence imposed by the district court unless Davis can demon-
strate plain error. Puckett v. United States, 556 U.S. 129,
133–34 (2009). Plain error review comprises four steps: (1)
1
"‘[W]hether a written agreement is ambiguous or unambiguous on its
face should ordinarily be decided by the courts as a matter of law
. . . . .’" United States v. Jordan, 509 F.3d 191, 195 (4th Cir. 2007) (quot-
ing Harvey, 791 F.2d at 300).
2
This Court has held that "[w]here there are ambiguities in a plea agree-
ment, courts may look to extrinsic evidence to show that the parties to the
agreement had ‘mutually manifested their assent to [ ] an interpretation.’"
United States v. Bryant, 436 Fed. App’x 254, 256 (4th Cir. 2011) (quoting
Jordan, 509 F.3d at 200). In particular, the district court’s guidance to the
defendant during the plea colloquy may be sufficient to cure any ambigu-
ity in the plea agreement. Id. During the plea colloquy in this case, the
court did little more than reiterate the ambiguous terms of the plea agree-
ment.
20 UNITED STATES v. DAVIS
"there must be an error or defect—some sort of ‘[d]eviation
from a legal rule’—that has not been intentionally relin-
quished or abandoned, i.e., affirmatively waived, by appel-
lant;" (2) "the legal error must be clear and obvious, rather
than subject to reasonable dispute;" (3) "the error must have
affected the appellant’s substantial rights, which in the ordi-
nary case means he must demonstrate that it ‘affected the out-
come of the district court proceedings;’" and (4) "if the above
three prongs are satisfied, the court of appeals has the discre-
tion to remedy the error—discretion which ought to be exer-
cised only if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’" Id. at
135 (quoting United States v. Olano, 507 U.S. 725, 732–36
(1993)). Even if the government’s breach of the plea agree-
ment satisfies the first two steps, Davis cannot show that the
breach affected the outcome below and, therefore, cannot sat-
isfy the third step.
"[T]he question with regard to prejudice is not whether [the
defendant] would have entered the plea had he known about
the future violation. When rights acquired by the defendant
relate to sentencing, the ‘outcome,’ he must show to have
been affected is his sentence." Puckett, 556 U.S. at 142 n.4
(internal citation omitted) (emphasis added). This is consistent
with the Fourth Circuit’s rule that, "[i]n the sentencing con-
text, an error affects substantial rights if the defendant can
show that the sentence imposed ‘was longer than that to
which he would otherwise be subject.’ " United States v.
Holmes, 380 Fed. App’x 367, 369 (4th Cir. 2010) (quoting
United States v. Washington, 404 F.3d 834, 849 (4th Cir
2005)). "The defendant whose plea agreement has been bro-
ken by the Government will not always be able to show preju-
dice, either because he obtained the benefits contemplated by
the deal anyway . . . or because he likely would not have
obtained those benefits in any event." Puckett, 556 U.S. at
141–42. Davis’s assertion that he would not have pled guilty
but for the government’s promise of a ten-year maximum,
therefore, is insufficient to show prejudice under Puckett.
UNITED STATES v. DAVIS 21
Where an appellant asserts breach of a plea agreement, he
must show that his sentence would have been different but for
the government’s breach. Davis cannot make such a showing.
Because Davis was subject to a mandatory statutory minimum
under the ACCA, the government’s breach of the plea agree-
ment had no effect on his ultimate sentence. United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005) ("[A] district
court has no discretion to impose a sentence outside of the
statutory range established by Congress for the offense of
conviction.").
In sum, although I ultimately agree with the majority’s res-
olution of this case, I arrive at that resolution by a different
path as set forth above. In all other respects, I join the major-
ity opinion in full.