PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4890
DARRYL HARCUM,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:06-cr-00434-AMD)
Argued: September 25, 2009
Decided: November 17, 2009
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge King
wrote the opinion, in which Judge Niemeyer and Judge
Michael joined.
COUNSEL
ARGUED: Sapna Mirchandani, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Cheryl L. Crumpton, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. HARCUM
ON BRIEF: James Wyda, Federal Public Defender, Balti-
more, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
OPINION
KING, Circuit Judge:
Darryl Harcum pursues this appeal from the 235-month
prison sentence imposed in the District of Maryland on his
conviction for being a felon in possession of a firearm, in con-
travention of 18 U.S.C. § 922(g)(1). Harcum’s sole appellate
contention is that the district court erred in enhancing his sen-
tence under the Armed Career Criminal Act (the "ACCA"),
which mandates a minimum fifteen-year sentence when a per-
son convicted under § 922(g) "has three previous convictions
. . . for a violent felony or a serious drug offense." 18 U.S.C.
§ 924(e). More specifically, Harcum contends that the court
erred in relying on documents filed in one Maryland state
court to establish that his assault conviction in a separate
Maryland state court qualifies as a "violent felony" conviction
under the ACCA. As explained below, we vacate and remand.
I.
On September 29, 2006, Harcum was indicted in the Dis-
trict of Maryland for being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). Harcum pleaded not
guilty and, on May 16, 2007, was convicted after a jury trial.
A month later, on June 21, 2007, the probation officer filed
a presentence report (the "PSR") in the district court that rec-
ommended classifying Harcum as an armed career criminal
under the ACCA. In support thereof, the PSR characterized
four previous convictions as being for ACCA predicate
offenses — three "serious drug offenses" plus a single "vio-
lent felony." In opposition, Harcum asserted that three of his
UNITED STATES v. HARCUM 3
four previous convictions were not for predicate offenses
under the ACCA. Notably, the Government conceded that his
contention was meritorious as to one of the three drug convic-
tions. On appeal, Harcum focuses solely on the single "violent
felony" conviction specified in the PSR — a 2003 conviction
in Maryland for second-degree assault. In that regard, Harcum
maintains that his assault offense does not qualify as an
ACCA violent felony.
A.
The following facts pertain to Harcum’s second-degree
assault conviction in Maryland. On August 2, 2002, a state-
ment of charges (the "Statement of Charges") was filed
against Harcum in the District Court of Maryland (the "Dis-
trict Court"), at Baltimore City, charging one count of first-
degree assault and a separate count of second-degree assault.1
The Statement of Charges stated that, "upon the facts con-
tained in the application of [the complaining witness,] it is
formally charged that Harcum . . . did assault [the victim]."
J.A. 439.2 The "application" referenced in the Statement of
Charges was prepared by a Baltimore police detective, who
asserted that Harcum had punched his victim in the face,
causing the victim to fall backward through a glass window
and suffer minor injuries. Harcum was neither tried nor con-
victed on the charges levied in the Statement of Charges.
Instead, on September 17, 2002, Harcum was charged with
first- and second-degree assault in a two-count criminal infor-
mation (the "Information") filed in the Circuit Court for Balti-
1
The District Court is a court of limited jurisdiction, sitting in twelve
districts throughout Maryland. See Md. Code Ann., Cts. & Jud. Proc. §§ 1-
601, 1-602. Unlike cases pursued in Maryland’s circuit courts, jury trials
are not conducted in the District Court. See id. §§ 1-502, 4-302, 4-402.
Thus, despite possessing jurisdiction over both misdemeanor and felony
offenses, the District Court’s jurisdiction in felony proceedings is substan-
tially circumscribed. See id. § 4-302.
2
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
4 UNITED STATES v. HARCUM
more City (the "Circuit Court").3 Although the Statement of
Charges and the Information each alleged assault offenses
committed on the same day, in the same location, and against
the same victim, the Information — unlike the Statement of
Charges — alleged no additional facts. On February 13, 2003,
Harcum pleaded guilty in the Circuit Court to the misdemea-
nor offense of second-degree assault, as charged in the Infor-
mation. The first-degree assault charge in the Information was
then dismissed, and Harcum was sentenced by the Circuit
Court to eighteen months in prison.
B.
On August 24, 2007, three months after his § 922(g)(1)
conviction by the federal jury, Harcum appeared for sentenc-
ing in the district court. In the sentencing proceedings, Har-
cum contended that the Government had failed to prove that
his second-degree assault conviction in Maryland was a "vio-
lent felony" conviction for purposes of the ACCA. More spe-
cifically, Harcum maintained that the sentencing court was
not entitled to rely on the Statement of Charges — an external
document from a different court (the District Court) than the
court of conviction (the Circuit Court) — in assessing
whether his assault offense qualified as an ACCA violent fel-
ony.
At Harcum’s federal sentencing hearing, the Government
maintained that the PSR had correctly characterized his
second-degree assault offense as an ACCA predicate offense.
According to the United States Attorney, the Statement of
Charges demonstrated that Harcum’s assault conviction was
3
The Circuit Court for Baltimore City is one of Maryland’s twenty-four
circuit courts, one in each county and Baltimore City. See Md. Code Ann.,
Cts. & Jud. Proc. § 1-503. Unlike the District Court, the circuit courts are
courts of general jurisdiction, which conduct jury trials and handle major
civil and criminal cases. See id. §§ 1-501, 1-502, 4-302, 4-402. The circuit
courts also hear appeals from the District Court. See id. §§ 12-401(c), 12-
403.
UNITED STATES v. HARCUM 5
for a "violent felony," and it was appropriate for the sentenc-
ing court to consider the Statement of Charges because it was
sufficiently linked to Harcum’s Circuit Court conviction.4 As
evidence of that linkage, the Government contended that the
Statement of Charges and the Information included the same
"tracking number," and that the Information reflected the Dis-
trict Court’s case number.5
The sentencing court overruled Harcum’s objection and
relied on the Statement of Charges in concluding that Har-
cum’s second-degree assault conviction constituted a "violent
felony" conviction under the ACCA. Deeming Harcum an
armed career criminal, the court was required by § 924(e) to
impose a minimum prison sentence of fifteen years. Harcum
was then sentenced to 235 months’ imprisonment, 115
months more than the statutory maximum of ten years that
was otherwise applicable to his offense of conviction. See 18
U.S.C. §§ 922(g)(1), 924(a)(2).
Harcum has filed a timely notice of appeal, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291.
II.
We review de novo whether a defendant’s previous convic-
tion was for a predicate offense under the ACCA. See United
States v. Williams, 326 F.3d 535, 537 (4th Cir. 2003). The
4
Although Harcum’s assault offense was a misdemeanor under Mary-
land law, it carried a potential term of imprisonment of up to ten years.
See Md. Code Ann., Crim. Law § 3-203 (former Md. Code Ann. art. 27,
§ 12A). As a result, the assault offense could constitute a "violent felony"
under the ACCA. See 18 U.S.C. § 921(a)(20) (providing that state misde-
meanor offense punishable by more than two years’ imprisonment may
qualify as ACCA violent felony); Logan v. United States, 128 S. Ct. 475,
479 (2007).
5
The meaning of the term "tracking number," in the context of a Mary-
land criminal proceeding, is not apparent on this record.
6 UNITED STATES v. HARCUM
Government bears the burden of proving an ACCA predicate
offense by a preponderance of the evidence. See, e.g., United
States v. Boaz, 558 F.3d 800, 806 (8th Cir. 2009); United
States v. Diaz, 519 F.3d 56, 67 (1st Cir.), cert. denied, 129 S.
Ct. 132 (2008).
III.
Harcum’s sole appellate contention is that the sentencing
court erred when it looked to and relied on the Statement of
Charges in determining that his Maryland second-degree
assault conviction qualified as a "violent felony" conviction
under the ACCA. In pursuing this contention, Harcum relies
on the Supreme Court’s decisions in Taylor v. United States,
495 U.S. 575 (1990), and Shepard v. United States, 544 U.S.
13 (2005), and their progeny. We begin our assessment of
Harcum’s contention with a discussion of the pertinent legal
principles.
A.
The ACCA mandates a minimum fifteen-year prison sen-
tence for a person who is convicted of unlawful possession of
a firearm, and who "has three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another." 18 U.S.C.
§ 924(e)(1). A "violent felony" is defined by the ACCA as
"any crime punishable by imprisonment for a term exceeding
one year [that] 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). A state misdemeanor offense
"punishable by a term of imprisonment of two years or less,"
however, is not an ACCA violent felony. Id. § 921(a)(20). In
assessing whether an offense constitutes an ACCA predicate
offense, two types of analyses are potentially applicable —
known as the "categorical" approach and the "modified cate-
gorical" approach.
UNITED STATES v. HARCUM 7
In assessing whether an offense constitutes an ACCA pred-
icate offense, we must first utilize the categorical approach.
As we have recently explained, we are obliged, under that
approach, to analyze the offense "generically — that is, by
relying solely on its essential elements, rather than on the par-
ticular underlying facts." United States v. White, 571 F.3d
365, 368 (4th Cir. 2009) (citing James v. United States, 550
U.S. 192, 208 (2007)). Pursuant to the categorical approach,
a federal sentencing court may look only to the fact of convic-
tion and the statutory definition of the offense of conviction
to determine whether the offense is a "serious drug offense"
or a "violent felony" under the ACCA. See Shepard, 544 U.S.
at 17; Taylor, 495 U.S. at 600-02. As we have also observed,
if we were required to examine the facts underlying each
predicate offense, "sentencing would become a series of
minitrials for each prior offense, which would be both costly
and unreliable." United States v. Pierce, 278 F.3d 282, 286
(4th Cir. 2002); see Taylor, 495 U.S. at 601 ("If Congress had
meant to adopt an approach that would require the sentencing
court to engage in an elaborate factfinding process regarding
the defendant’s prior offenses, surely this would have been
mentioned somewhere in the legislative history.").
Although the Supreme Court has expressed its preference
for the categorical approach, that approach does not always
reveal the nature of the asserted predicate offense encountered
by a sentencing court. Thus, pursuant to the Court’s decisions
in Shepard and Taylor, when the fact of conviction and the
statutory definition of the offense are unduly vague or ambig-
uous, a sentencing court is entitled to turn to and apply the
alternative "modified categorical" approach. See Shepard, 544
at 20, 26; Taylor, 495 U.S. at 602. In its 1990 Taylor decision,
for example, the Supreme Court was unable, under the cate-
gorical approach, to determine whether Taylor’s burglary
offense qualified as a "violent felony" under the ACCA,
because the record did not reflect which specific state bur-
glary statute was applicable, and not all of the state’s burglary
statutes involved criminal conduct that would qualify as an
8 UNITED STATES v. HARCUM
ACCA violent felony. See 495 U.S. at 578 n.1, 602. Thus, the
Court recognized that a sentencing court is entitled, in the
proper circumstances, to go beyond the scope of the categori-
cal approach and assess the underlying charging documents or
jury instructions to ascertain whether the offense qualifies as
an ACCA predicate offense. See id. at 602 (utilizing modified
categorical approach for cases involving jury convictions);
see also Shepard, 544 U.S. 13 (expanding modified categori-
cal approach to situations involving plea agreements).
A sentencing court’s ability to utilize the modified categori-
cal approach — and thus extend its analysis to factors beyond
the fact of conviction and the statutory definition of the
offense — is substantially circumscribed. Indeed, the
Supreme Court has barred a sentencing court from consider-
ing unreliable evidence, which includes materials that are out-
side the record of the court of conviction. See Shepard, 544
U.S. at 20-23 (barring sentencing court from considering
police report and complaint application, which extended "be-
yond conclusive records made or used in adjudicating guilt").
More specifically, in assessing whether the offense of convic-
tion is a predicate offense under the ACCA, a sentencing
court may, under the modified categorical approach, appropri-
ately consider only "the statutory definition, charging docu-
ment, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the
defendant assented." Id. at 16.
Subsequent to the Court’s Shepard decision in 2005, we
approved a sentencing court’s utilization, under the modified
categorical approach, of certain "external documents" —
beyond the scope of otherwise permissible items — because
they were "explicitly incorporated" into permissible docu-
ments. See United States v. Simms, 441 F.3d 313, 317 (4th
Cir. 2006). In Simms, the defendant sought to analogize his
situation to the Shepard criteria, asserting that the sentencing
court erred in considering an application for a statement of
charges in deciding that his Maryland battery conviction qual-
UNITED STATES v. HARCUM 9
ified as an ACCA predicate offense. See id. We rejected
Simms’s analogy, however, explaining that it "fail[ed] to
account for the fact that the Maryland application, although
originally ‘submitted to [the] lower court[ ] . . . prior to
charges,’ was later explicitly incorporated into Maryland’s
statement of charges against Simms." Id. (internal citation
omitted). Thus, because the application had been "explicitly
incorporated" into the statement of charges, both documents
were appropriately considered by the sentencing court, as they
were essentially one and the same. See id.; cf. Parrilla v. Gon-
zales, 414 F.3d 1038, 1044 (9th Cir. 2005) (authorizing sen-
tencing court to consider specifically incorporated external
documents).
B.
In this matter, Harcum was convicted in 2003 of second-
degree assault, which is a broadly defined offense under
Maryland law. See Md. Code Ann., Crim. Law §§ 3-201, 3-
203.6 Notably, we have already recognized that a Maryland
"common-law assault is not per se a ‘violent felony’ within
the meaning of § 924(e)(2)(B)(i)." United States v. Coleman,
158 F.3d 199, 204 (4th Cir. 1998); see also United States v.
Kirksey, 138 F.3d 120, 125 (4th Cir. 1998) (describing assault
in Maryland to include, inter alia, "any unlawful force used
against a person of another, no matter how slight" (internal
quotation marks omitted)). Thus, the question of whether Har-
cum’s assault conviction was for an ACCA violent felony
cannot be determined solely from the statutory definition of
the offense and the mere fact of his conviction. To resolve this
6
Pursuant to Maryland law, "[a]ssault means the crimes of assault, bat-
tery, and assault and battery, which retain their judicially retained mean-
ings." Md. Code Ann., Crim. Law § 3-201. The statutory prohibition for
second-degree assault simply provides that "[a] person may not commit an
assault." Id. § 3-203. When the Information was filed, sections 3-201 and
3-203 were codified at Maryland Annotated Code article 27, sections
12(b) and 12A, respectively.
10 UNITED STATES v. HARCUM
appeal, therefore, we must utilize the modified categorical
approach explained in Shepard and Simms.
Pursuant to the modified categorical approach, the Informa-
tion filed against Harcum in the Circuit Court was the only
appropriate document for consideration by the federal sen-
tencing court, as it did not have access to any other Shepard-
approved documents, such as a plea agreement or a plea tran-
script. Standing alone, however, the Information lacks suffi-
cient factual allegations to support classifying Harcum’s
second-degree assault offense as an ACCA violent felony.
Thus, the disposition of this appeal turns on whether the
Statement of Charges was explicitly incorporated into the
Information, thereby rendering the Statement of Charges
appropriate for consideration by the sentencing court. See
Simms, 441 F.3d at 317. Harcum contends on appeal that the
Statement of Charges, on the one hand, and the Information,
on the other, are separate and distinct charging documents,
and that the Information failed to explicitly incorporate the
Statement of Charges. Accordingly, Harcum maintains that
the sentencing court was limited to an assessment of the Infor-
mation only, which fails to establish, by a preponderance of
the evidence, that his Maryland assault offense qualifies as an
ACCA violent felony.
Harcum is correct in characterizing the Statement of
Charges and the Information as distinct charging documents
under Maryland law. See Md. R. 4-102(e), (j) (explaining that
an information is "a charging document filed in a court by a
State’s Attorney," and that a statement of charges is "a charg-
ing document, other than a citation, filed in District Court by
a peace officer or by a judicial officer"). See generally Md. R.
4-201 (explaining different uses of charging documents).
Indeed, Maryland’s highest state court, the Court of Appeals,
has distinguished between such charging documents, recog-
nizing that "[t]he State’s Attorney may supplant the statement
of charges by filing an information. . . . [A]n information . . .
may charge the defendant with offenses different from those
UNITED STATES v. HARCUM 11
in the statement of charges." State v. Smith, 505 A.2d 511,
524 (Md. 1986). Thus, the charging document for the assault
conviction at issue here — the Information — initiated a sepa-
rate criminal proceeding against Harcum in a different court.
On the face of the Information, however, no explicit refer-
ence to the Statement of Charges is made, a dramatic depar-
ture from the circumstances underlying our Simms decision.
As we there recognized, a Maryland statement of charges gen-
erally adopts the application underlying such charges by
explicitly incorporating the application. See Simms, 441 F.3d
at 313. This principle does not apply to an information, how-
ever, that references neither the statement of charges nor any
charging application. See Md. Code Ann., Crim. Law § 3-
206(a). Thus, we are unable to conclude that the Information
incorporated the Statement of Charges.7
Furthermore, the mere reference to tracking and case num-
bers fails to explicitly incorporate the Statement of Charges
into the Information. Such numbers are found on several types
of court and investigative documents, including those that
have been deemed unreliable for ACCA purposes by other
courts. See, e.g., Shepard, 544 U.S. at 16 (recognizing police
report as insufficient proof of ACCA predicate offenses);
United States v. Price, 409 F.3d 436, 445 (D.C. Cir. 2005)
7
The Government has emphasized that, because "the charges filed in
each court were based on the same offense committed on the same day
against the same victim in the same location, the sentencing judge had
more than a sufficient basis to rely on the District Court charging docu-
ments." Br. of Appellee 13-14. Mere similarities in such documents, how-
ever, fail to explicitly incorporate their contents, and they do not authorize
a sentencing court to bypass the "court of conviction" requirement of
Shepard, 544 U.S. at 13, 20, 23 (concluding that evidence of ACCA predi-
cate offense should "be confined to records of the convicting court
approaching the certainty of the record of conviction"), and Taylor, 495
U.S. at 575.
12 UNITED STATES v. HARCUM
(deeming docket listing to "lack the necessary indicia of reliabil-
ity").8
In these circumstances, we are constrained to agree with
Harcum that the Government failed to prove that the Informa-
tion incorporated the Statement of Charges. Thus, the court
erred in relying on the Statement of Charges and sentencing
Harcum under the ACCA.
IV.
Pursuant to the foregoing, we vacate Harcum’s sentence
and remand for such resentencing proceedings as may be
appropriate.
VACATED AND REMANDED
8
We have never directly addressed whether administrative documents
are sufficiently reliable to be utilized for ACCA purposes. Other courts of
appeals have recognized, however, that docket sheets and abstracts of
judgments are not sufficiently reliable under Taylor and Shepard. See,
e.g., Price, 409 F.3d at 445 (addressing unreliability of docket sheet);
United States v. Gutierrez-Ramirez, 405 F.3d 352, 357-58 (5th Cir. 2005)
(addressing unreliability of abstract of judgment); United States v.
Navidad-Marcos, 367 F.3d 903, 908-09 (9th Cir. 2004) (same). Our dispo-
sition of this appeal does not require that we directly address this issue,
as tracking and case numbers alone are insufficient to incorporate one
such document into another.