United States v. Donnell
2011 U.S. App. LEXIS 21771
4th Cir.2011Background
- Donnell pled guilty to felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
- District court sentenced Donnell to 78 months based in part on its finding of two felony convictions for a crime of violence under § 2K2.1(a)(2).
- Government argued the Maryland second degree assault conviction was a crime of violence; relied on an unincorporated statement of probable cause introduced at sentencing.
- The charging document contained no details establishing violence; the violence facts came only from the officer’s statement of probable cause, which was not expressly incorporated into the charging document.
- Court held that relying on an unincorporated statement of probable cause violated precedents requiring express incorporation; remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court may rely on an unincorporated statement of probable cause to treat a prior conviction as a crime of violence. | Donnell argues the district court erred by using unincorporated probable cause. | Government argues the facts in the probable cause document may be used to classify the prior conviction as violent. | Yes; the court held this was improper and remanded. |
| Whether the Maryland second degree assault conviction can be a crime of violence under a modified categorical approach with proper incorporation. | Donnell contends lack of express incorporation prevents using external facts. | Government seeks to rely on the external records to classify the offense. | No; the district court erred by not requiring express incorporation; remand for resentencing. |
Key Cases Cited
- United States v. Williams, 326 F.3d 535 (4th Cir. 2003) (limits on applying § 4B1.2 to determine violence)
- Shepard v. United States, 544 U.S. 13 (2005) (restricts use of external documents to determine prior offenses)
- Johnson v. United States, (U.S. 130 S. Ct. 1265) (2010) (limits modified categorical approach)
- United States v. Alston, 611 F.3d 219 (4th Cir. 2010) (endorses limited search for underlying conduct with respect to Maryland second degree assault)
- Simms v. United States, 441 F.3d 313 (4th Cir. 2006) (requires express incorporation for use of external documents)
- United States v. Kirksey, 138 F.3d 120 (4th Cir. 1998) (external documents may be consulted when incorporated by express language)
- United States v. Coleman, 158 F.3d 199 (4th Cir. 1998) (affidavits incorporated into charging papers may be consulted)