United States v. Foster
2011 U.S. App. LEXIS 23807
4th Cir.2011Background
- Foster, a felon in possession of a firearm, faced a 15-year ACCA mandatory minimum based on three prior Virginia burglary convictions.
- District court found the blacksmith shop conviction fell within ACCA; Sunrise-Sunset Restaurant and Corner Market convictions were deemed non-generic under Virginia’s broader burglary statute and thus not ACCA predicates.
- The government appealed; the Fourth Circuit reviews de novo whether an offense is a violent felony under the ACCA, applying Shepard and Taylor for non-generic statutes.
- Virginia Va. Code § 18.2-90 comprises three burglary clauses; only the first (building/structure) is potentially generic, the second (vehicle/railcar) and third (dwelling) generally not.
- Indictments named Sunrise-Sunset Restaurant and Corner Market; the majority inferred buildings or structures from their names/locations, while the district court and dissent urged reliance on Shepard-approved documents showing the generic element.
- The court vacated Foster’s sentence and remanded for resentencing, holding the indictments support burglary of buildings/structures and thus ACCA eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Virginia non-generic burglary convictions qualify as generic burglary under ACCA? | Foster’s convictions could be non-generic; only building/structure entries qualify. | The Virginia statute’s breadth could still support generic burglary through the indictments. | Yes; convictions qualify as generic burglary based on indictments. |
| Must the indictments themselves show entry into a building for ACCA purposes? | Indictments sufficiently charged burglary of Sunrise-Sunset and Corner Market as buildings. | Indictments could be silent on whether buildings were involved; Shepard limits evidence. | Indictments show entry into buildings/structures, satisfying generic burglary. |
| Does Shepard allow use of common sense or extrinsic records to prove the generic element? | Common sense and context from records may aid in determining generic burglary. | Shepard prohibits reliance on non-Shepard documents or extrinsic facts; limits to charging documents/plea colloquy. | Common sense cannot substitute for Shepard-approved records; however, the indictments here suffice. |
| Are the Sunrise-Sunset Restaurant and Corner Market burglaries within the first clause (buildings/structures) of Va. Code § 18.2-90? | Locations described as businesses imply buildings; supports clause one. | Possibility of non-building locations (rivercraft/railcar) exists, creating ambiguity. | Indictments indicate buildings/structures, qualifying under clause one. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (defines generic burglary elements)
- Shepard v. United States, 544 U.S. 13 (2005) (limitations on evidence for generic burglary under ACCA)
- United States v. Baxter, 642 F.3d 475 (2011) (analysis of non-generic Virginia burglary statute under ACCA)
- United States v. Miller, 478 F.3d 48 (2007) (use of common sense in ACCA context for building determinations)
- United States v. Rainer, 616 F.3d 1212 (2010) (rejects speculative interpretations in ACCA burglaries)
- United States v. Shelton, 196 Fed.Appx. 220 (2006) (indictment referencing 'the business' implies generic burglary)
- United States v. Washington, 629 F.3d 403 (2011) (Shepard limitations on ACCA evidence and purpose)