United States v. John Foster

support City’s denial of T- ORDER does not application.11 Mobile’s Appellee petition has filed a for rehear- ing en The government banc. filed a re-

V. sponse in opposition petition. foregoing reasons, affirm For the we A requested poll member the court judgment of the district court. petition rehearing on the for en banc. Motz, Judge Judge King, Judge Gregory,

AFFIRMED Davis, Keenan, Judge Judge Judge Wynn, Judge Floyd grant rehearing voted to Traxler, en Judge Judge banc. Chief Wil- kinson, Judge Niemeyer, Shedd, Judge Duncan, Judge Judge Agee, Judge deny Diaz voted to rehearing en banc. poll rehearing Because the en banc America, STATES of UNITED produce majority judges failed to Plaintiff-Appellant, active service in of rehearing favor en banc, petition for rehearing en banc Judge opinion denied. Wilkinson filed an FOSTER, Foster, John Joel Jack a/k/a concurring rehearing the denial of en Defendant-Appellee. Judge opinion banc. Motz filed an dissent- ing banc, rehearing the denial of en No. 10-5028. Judge King, Judge Gregory, which Appeals, Court of United States Davis, Judge Judge Judge Keenan and Fourth Circuit. Floyd joined. Judge opin- Davis filed an dissenting rehearing ion from the denial of March 2012. banc, Judge Gregory joined. en in which As Amended March Wynn Judge opinion dissеnting filed an banc, rehearing from the denial of en Timothy Heaphy, Attorney, U.S. Ash- J. Judge Gregory Judge which Davis Neese, ley Brooke Office the United joined. Roanoke, VA, Attorney, Jean Bar- States Hudson, Esq., Attorney

rett Assistant U.S. Entered at the direction of Attorney, Office of the United States for AGEE the court. Charlottesville, VA, Plaintiff-Appellant. for WILKINSON, Judge, Circuit Dickenson, Nancy Combs Office of the concurring in rehearing the denial of en Defender, VA, Abingdon, Federal Public banc: Shelton, Larry W. Federal Public Defend- er, Defender, Office of the Federal Public concur in the denial of en VA, Roanoke, Defendant-Appellee. Judge Agee persua- banc. has written a argues City 11. The also that the district court the evidence under review on the environ- (1) failing grant summary judg- erred in mental effects issue to that contained in the ment in its favor on T-Mobile’s claim that the written record. Because we affirm the dis- denial was based on the environmental effects judgment City’s trict court’s denial is emissions, frequency of the radio in violation evidence, supported by substantial we do 332(c)(7)(B)(iv), (2) § of 47 U.S.C. con- questions. not reach these cluding requires that the Act the court to limit court, only any “other house” as a cluding and I add as does for the opinion sive building. responsе my qualifying dis- thoughts these few colleagues. appreci- senting friends majority carefully explained panel The sincerity of the dissenters’ convic- ate the why burglary of the Market” and “Corner tions, vigorous discussion and I believe surely must “Sunrise-Sunset Restaurant” mutual to be a mark of of our differences unprivileged entry or qualify as “unlawful respect. into, in, building or struc- remaining or States, ture,” Taylor v. ACCA case. hardly atypical This is 575, 599, 2143, 109 L.Ed.2d 607 of conviction was 110 S.Ct. instant offense Foster’s (1990), the ambit of the ACCA. The possession of a firearm within being a felon however, disagree, concluding § 922(g)(1). He had dissenters violation of 18 U.S.C. entering breaking convicted three times for “Corner previously been entering in of Market” or “Sunrise-Sunset Restaurant” breaking and violation Va. (1992)(amended 2004). satisfy Taylor because one of might § 18.2-90 Code in fact those establishments could be majority explained, As the something building other than a or struc- question presented here is whether Fos- ture, vessel, or namely non-generic “ship, breaking and ter’s convictions for car,” any river craft or railroad Va.Code entering the “Corner Market” and “Sun- § 18.2-90. satisfy gener- rise-Sunset Restaurant” unlikely burglary urging possibility, and can thus serve ic definition charge majority with predicate as offenses under the Armed dissenters hеre (“ACCA”), failing by Shepard Act to abide grossly Career Criminal 18 U.S.C. 924(e)(1). Virginia § statute can 125 S.Ct. The be United U.S. (2005). But variety ways, including violated in a the dissen- “office, burglary shop, point of an manufac- ters have the whole of what both missed home, storehouse, warehouse, Shepard bank- the debate in was about. The tured house, 18.2-127, § ing Shepard church as Court held that the modified cate- defined house,” only qualify gorical inquiry or other which would under the ACCA could generic burglary, breaking charging and enter- be answered reference to “the document, plea agreement of a ing “ship, vessel or river craft or the terms car,” transcript colloquy, not. or ... or to some railroad which would Va.Code record,” judicial § id. at comparable 18.2-90. sentencing and that a court State indictments are not structured com- may police reports not “look to or ACCA, eye with an and had the applications,” id. at plaint charging quoted Virgi- documents here law, nia they still would not have used the magic “building opine words or The did not on the relative structure” Court satisfy validity proof would alone seem sufficient to of a street address as building anything of a near say burglary dissenters. One could that of course “office, shop, manu- that the dissenters specificity enumerated list storehouse, warehouse, home, majori suggest. Supreme factured case banking house, ty the facts that church” refers never discusses [or] buildings presses, Shepard But then it seems Motz here and the dis structures. equally briefly obvious that “Market” or “Restau- senters refer to them so well, rant” would catch the particularly would as since the the most careful reader exclusive, had Virginia in- mention. The other listing law’s is not fry, focusing its efforts bigger engaged impermissi- much fish to court and solely question appellate on the of the use non- ble fact finding. satisfy documents to the de authoritative Just like its earlier claim of inconsisten- My esteemed

manding inquiry. ACCA cy Shepard, imper- with this accusation of spends time colleague Judge spec Motz appellate finding missible fact runs acrop- why ulating hypothesizing Shep and with, per. begin To classic trial court fact did, but the fact ard Court decided what finding likely involves a of a selection or that the decided what it did remains Court correct choice between two or more factual in fact decide. There was no discussion Oz, possibilities. I suppose the land of point my of the on which dis whatsoever may ways there be two or more to inter- senting friend now relies. No court has pret the clear facts forth in Shep- set what the decision stood for—it is doubted ard-approved documents. On this side of get “Shepard-approved where the term we rainbow, however, the Corner Market place. in the first And documents” and Sunrise-Sunset Restaurant are build- majority Shepard here committed no ings and structures. charging error. It relied on the docu spelled that out places ments what Foster finding Fact very also name im- burglarized. police It consulted no plies Here, that a fact must be “found.” complaint reports, applications, or other there is no need to anything. “find” The Shepard documents whose use both ad sought fact has us out. It has relieved the dressed and foreclosed.* findings need for because the names them- selves announce the nature of the estab- That then leaves the dissenters in a lishments, which buildings are and struc- position. difficult Unable accuse the large tures. A and lamentable silence majority Shepard it committed the pervades all of judicial dissenting opinions. consulting error of non-conclusive documents, They quick heap opprobrium are the dissenters are reduced on the obvious, claiming majority sug- that the must exerсise of the but slow to somehow gest what the By have resorted to extrinsic evidence. Corner Market and Sun- so, doing might the dissenters contend that the rise-Sunset Restaurant be other buildings has diminished the role of the than or structures. * Even burgled if one were to take the dissent’s view of dress as the home or residence itself. Shepard guide, as its the conclusion the dis A street address listed as "Place of Of- urges enlightening sent does not follow. dissent ar fense” is less than as to the na- gues Supreme burgled. that the Certainly, has commanded ture of what was one address, by analogy imagine complaint burgla- that a street a de in a name, vehicle, scriptive ry business is insufficient evi of a the "Place of Offense” listed address, generic burglary. might dence of a But the facts of be the nearest street and so support geographic do not so broad an inference. identifier does not illuminate example Shepard, possible types To take one breaking com which of the four address, plaint entering particular form includes a street 30 Har occurred at that loca- St., Offense,” bar, contrast, lem in a box "Place labeled tion. In the case at there is III, App’x, Shepard, dispute Joint Vol. no that Foster broke and entеred the (2005), establishments named the Corner Market and unhelpfully 2004 WL but then con the Sunrise-Sunset Restaurant. It seems ”break[ing] enough specific naming tinues describe the offense as clear that the entering] night building, premises place in the time the where Foster’s crimes took vessel, vehicle, ship, property stronger application of Jerri factual basis for Cochran,” complaint id. That form differ the ACCA than the mere identification of a complaint detailing ent from a the street ad- address as the street "Place of Offense.” conclusion as “the commonsense of trial court described

Further, indicia the classic flight vehicular crime is that Indiana’s my fine While finding are absent. fact felony.” Id. at 2274. The dissent violent consider- to note the are correct colleagues comparing Shepard inqui- argues that trial courts accorded able deference inquiry physical injury” “risk of ry and the things we normal- finding process, fact oranges, suggest- mixing apples is like process ly associate —and is somehow ing Supreme process affords vantage point the superior and fro within the same statute jumping to The trial absent here. courts—are provi- question basic of whether its on the made no no witnesses and court heard even a modicum of common sions merit physi- no credibility findings. It examined application. sense in in no engaged evidence. It cal or forensic Instead, function. management only trial recent exam- Sykes But most parity virtually courts are on a annual appellate trial and has become a ple of what judicially Supreme deciding the same all had them ritual of the Court and before to through cases resort charging statements. manner ACCA approved logic. In v. plain, reasonable Johnson does not entitle us to parity This sort of — States, -, U.S. 130 S.Ct. United judge’s the value of a trial sound discount (2010), 1265, 1 176 L.Ed.2d the Court Taylor, 659 opinion. See United States v. be found that the ACCA’s terms should (4th Cir.2011) 339, (upholding F.3d 347-48 according “ordinary to interpreted their “finding” judge’s a trial determination subject not be to a crabbed meaning” and plea colloquy dangerous that a from a legal usage” that would vitiate “specialized was indeed a crime of violence as assault year Id. at 1270. A Congress’s intent. ACCA). parity But the defined in Chambers v. United prior, Court ordinarily something suggests before us States, 122, 687, 172 555 U.S. 129 S.Ct. more akin to de novo review. In such (2009), rely L.Ed.2d 484 did not on instance, hardly proper it seems to chide beyond-a-shadow-of-a-doubt cer- sort akin using commоn sense think tainty that the dissenters seem to judicial appellate to almost notice. Even demands, premised the ACCA but instead judges endowed with brains are logic that holding probabilistic its on the they will be hope expectation likely underlies a failure “the behavior that could of purpose. used to obvious We likely to involve report to seem less fantasize that somewhere course physical escape a risk of harm” than from County ex craggy highlands of Lee there 127, custody. Id. at 129 S.Ct. 687. floating barge by the name of ists a Cor laid in groundwork for that decision was sweetly or a car ner Market railroad States, 137, Begay v. United 553 U.S. Restaurant. dubbed the Sunrise-Sunset (2008), 1581, 170 L.Edüd 490 which S.Ct. Supreme But nor neither the Court Con questions should be re- found that ACCA ap gress require would either or indeed at issue solved based on what the crimes prove step. of such a 144, Id. at 128 S.Ct. “typically involve.” fact, has not been afraid to damning, the Court perhaps 1581. And most States, inject an practicality element of v. James United 1586, required. ACCA when such has been This June, (2007), Sykes does not past the Court was clear “ACCA — U.S. -, certainty.” Id. at require metaphysical S.Ct. (2011), 207, 127 1586. While the dissenters upheld application L.Ed.2d 60 S.Ct. “hypothesize unusual frankly might it be able based on what ACCA cases,” (2011) in which 131 S.Ct. L.Ed.2d id. Mаrket, being (holding prevent the Corner instead on the that a need “to Fourth corner, proverbial instead on a becoming ossified,” “small Amendment law from craft,” conjecture is not river such id. at cannot objectively overcome fanciful, simple with the but is at odds reasonable the law in reliance on force at search). Supreme common Objective sense on which the time of a reason- in ACCA cases for five presupposes relied ableness that courts do not straight years counting. allow the medieval occasional tendencies in all present professions separate us so I recognize interpreting the ACCA thoroughly logic good that our deci- always easily accomplished, is not and I rubbing sions drive citizens eyes their many jurists sympathize with the who scratching If their heads. one were to out rightly pointed imprecise have inquire of an objectively person reasonable phraseology interpretive difficulty. something the street whether named But such with the challenges come territo- Restaurant Sunrise-Sunset was a ry, authority and we lack the declare building or opposed structure as to a river may war on statutes we find distasteful. car, craft or response railroad the decry The dissenters the result here as you “Of Why be course. ask?” do We ask J.). (Motz, “tragic.” post See at 13 I generic because the approach of modified certainly respect right to hold their to, categorical analysis requires us and the view, bearing but it on legal has no Supreme Court has commended to us com- question before Theirs is a policy us. mon in answering. sense That is precisely disagreement with ACCA to be taken panel done, what and it is up Congress with Congress. If wishes to why I am pleased to concur in the denial of permit carry felons to certain firearms or petition rehearing en banc. disqualify certain af- predicate offenses time, so, passage surely ter the it can do MOTZ, DIANA GRIBBON Circuit it exemptions but has created no such Judge, dissenting from the denial of applicable Congress to this case. had a rehearing en banc: legitimate purpose in mind when it sought protect respect, my from violent With I public acts com- dissent col- (7-7) by leagues’ grant mitted those with violent criminal refusal en history. Wynn’s has an banc this case. Judge statute awkward excellent dissent from pursue panel opinion name and the means chosen to well ex- purpose why assuredly plains have created we should have affirmed headaches others, judgment for this court. fine court and but that the district See United does Foster, (4th 291, not confer States v. F.3d on us a warrant —constitutional 298 Cir.2011). only point otherwise—to its aims write now out eviscerate displace panel opinion directly will that the our own the democratic is and inex- at all legitimacy founding plicably recognize our odds with what accorded docu- States, controlling Shepard ment to others. United law— 1254, 125 S.Ct. 161 L.Ed.2d judicial There are for a worse fates deci (2005). practical sion than to with the align have In logic Shepard, grappled virtues of and common sense. The the Court with the “objective very question term reasonableness” much at issue here —whether a See, vogue days, properly these burglary so. defendant’s state convictions nec- — U.S. -, e.g., essarily Davis v. entry buildings, involved into States v. Shepard. tion in See United offenses. predicate ACCA qualified thus (1st Cir.2003), Shepard, 348 F.3d Shepard held 1254. 125 S.Ct. Id. at 125 S.Ct. made rev’d 544 U.S. “conclusive records only certain (2005). as the First widely L.Ed.2d 205 Just guilt” adjudicating or used —now quali- offenses documents— concluded that the Shepard-approved Circuit known as certainty it was requisite predicates because fied as ACCA can establish with “ nearly impossi- ‘nec- “unlikely point convictions predicate that the state —to the de- the fact” that not of build- burglaries were essarily’ rested ble” building, id., and thus here concludes that the burglarized ings, fendant predicate offense the ACCA its burden of estab- committed has met Government at Id. generic burglary. buildings lishing burglaries were a “more-than-remote because there is Foster, not, possibility” they were itself, Shepard-approved Shepard reversing But in the First F.3d at 295. street ad- forth the actual documents set Shepard, Supreme Circuit St.,” the bur- dresses, Harlem e.g., “30 fact-finding courts from prohibited ACCA 31-32, Id. glarized establishments. sense,” law of “logic,” “common or the (O’Connor, J., dissenting). Yet S.Ct. 1254 Rather, requires probabilities. Shepard and the the Government both to deter- courts to limit their role ACCA dissent) agreed that (majority and of reliable mining group whether a small addresses were the actual street insuffi- beyond question that the prove documents the defendant demonstrate cient to proper offense constitutes a ACCA burglarized buildings.1 had predicate. hand, at nonethe- panel The the case less, proper mere concludes that Shepard only holds that Specifically, are burglarized names of establishments or used” “conclusive reсords made that the defendant bur- prove sufficient provide can original sentencing court for- buildings. panel puts The glarized that reliability needed to determine ” none, reason, and I can discern ward no (not “necessarily convictions prior state burglarized why proper names qualified proper very, very likely) they that are ‍​‌‌‌​​‌‌​‌‌​​​‌​‌‌​​​‌‌​​​‌​‌​​‌​​‌‌‌​​​​‌​​‌​​​‍places in this case establishes 21, 125 predicates. 544 U.S. at ACCA buildings while the actual street addresses added). reaching (emphasis S.Ct. 1254 Shepard did not. burglarized places holding, Shepard no member of the or suggested from its under- Court that common sense panel’s error stems notice) (or judicial unlikely logic probabilities conclu- urge standable to avoid buildings at the “log- sense” or could establish that stood by applying sion “common Indeed, Foster, addresses. even the (panel burglarized ic.” 662 F.3d at 291-98 See view that a majority invoking “com- Government disavowed the and concurrence times, evidence. See than fifteen court could consult extrinsic mon sense” no less times). Transcript Argument, Shepard, of Oral “logic” six The First Circuit had 13, 27-28,125 1254. understandable inclina- 544 U.S. precisely the same [containing acknowledged plaints were the addresses] 1. this at oral The Government 21, Shepard’s argument, evidence of the factual basis see 544 U.S. at 125 S.Ct. 25), guilty pleas, agree with the (quoting then I would Brief for United States at way Shepard agreed major- majority that there was no to know dissenters with the 31, burglariz- were for ity point. Id. at 125 S.Ct. 1254 whether those convictions on this J., (O'Connor, ("If ing building."). dissenting) these com- Moreover, See, Shepard clearly Shepard’s bright-line Court un- e.g., rule. Unit holding that its derstood sometimes Gutierrez-Ramirez, ed States v.

require eye courts to turn a blind to com- (5th Cir.), 888, cert. denied 546 U.S. logic. mon sense and Both the 217, (2005) (for 126 S.Ct. recognized and the dissent the overwhelm- bidding use of judgment). abstracts of ing predicate likelihood that the burglaries Understandably judges tempted will be buildings, that case involved not boats. rely on “common or “logic,” sense” See, 4, e.g., 544 U.S. at 24 n. 125 S.Ct. these are fact-finding normal tools. But 1254; (O’Connor, id. at 125 S.Ct. 1254 Shepard outlaws their use when determin- J., dissenting); Transcript of Argu- Oral ing if prior conviction “necessarily” rests (“[T]here ment at 5 isn’t ... question on facts qualifying as an predi- ACCA police reports in fact gave ad- (Gins- cate. 544 U.S. at 125 S.Ct. 1254. It particular buildings.”) dresses of (“There J.); burg, boats, does so “practical id. 8-9 are no because of the difficul- know, you in Watertown. It’s not a non-contemporaneous ties” of fact-finding, dock----”) (“This J.); (Breyer, id. at 24 id. at 125 S.Ct. and to avoid the a case whеre we all know what the truth potential erosion of the “Jones-Apprendi ”) J.). Nevertheless, (Kennedy, is.... implementation of jury right,” id. at required proof burglar- 24-25, J.).2 (Souter, 125 S.Ct. 1254 By buildings ized entities were come from a resorting to “common sense” “logic” group small of reliable documents that engages precisely the sort of “necessarily” established this fact. fact-finding Shepard forbids. Shepard bright-line set forth a rule that In response thoughts, to these the con- prohibits courts from “mak[ing] disputed currence contends that I have “missed the finding of fact about what the defendant point whole of what the in Shepard debate judge and state must have understood as According about.” to the concur- prior plea.” the factual basis of the rence, big- had “much Instead, U.S. at Shep- ger fry” fish to than “opinfing] on the requires ard that Shepard-approved docu- validity relative of a street address as ments conclusively alone establish that the “ proof burglary of a of building.” a What ‘necessarily’ state offense rested on the the concurrence steadfastly ignores, how- qualifying it as an predi- fact[s]” ACCA ever, only is that because all involved cate. Id. at 125 S.Ct. 1254. Even (Shepard, Government, and the Su- though recently the Court has recognizеd dissent) preme majority Court agreed and the “absence of records will often that the actual street [ACCA],” burglar- addresses of application frustrate — States, U.S. -, Johnson v. United ized establishments did not prove that 1265, 1273, (2010), 130 S.Ct. they were buildings did the Court need to i.e., it has resisted efforts to away “fry” fish,” back “bigger resolve wheth- Though error, jects Justice gives Souter’s Sixth Amendment rise to constitutional only garnered plural- discussion a four Justice doubt.” 544 U.S. at 125 S.Ct. 1254 Thomas, vote, J., (Thomas, ity, Justice the fifth concurring part took in and concur- stronger Moreover, even view ring judgment). of the need for constitu- in the Justice protection Apprendi Jersey, tional argued v. New Thomas that even the "limited fact- finding” 530 U.S. approved by 147 L.Ed.2d (2000). Taylor Thus Justice Thomas went fur- v. United majority, arguing (1990), [ju- ther than the that "the L.Ed.2d also ran factfinding procedure [majority] Apprendi. dicial] re- afoul of If conviction-free for almost two decades. complaint applications police reports er here, if determining logic had role common sense and be considered could proper a building and so was of a that this is not burglary surely they suggest suppose Shepard I predicate. ACCA of an armed career criminal. record “big on this fish” opined have could King, Judge Judge I must dissent. it that street if believed question even Davis, Keenan, and Gregory, Judge Judge to establish that build- addresses sufficed Floyd have authorized me to indi- Judge But that would burglarized. ing had been join in they cate that this dissent. dicta. Shepard opinion make the entire Rather, until this. suggested No court DAVIS, Judge, dissenting from Circuit uniformly regarded the

today, courts have the denial of en banc: as bright-line rule established consistently fol- holding and the Court’s many It Injustice comes forms. holding.3 lowed that persons It chokes and their insidious. short, panel has failed to I believe the legisla- alike. It besmirches communities Shepard-approved The Shepard. abide tors, yes, judges, alike. prosecutors, and in this which set forth documents govern- public It undermines confidence (not generic) names of the proper and its institutions. It mocks our ment adequate are even less places burglarized, national to the ideal of even- commitment buildings are than prove places those And, when it is handedness and fairness. inadequate Shepard, held the documents inexpli- product of an unwarranted and street address- contained the actual which standards, cable deviation from settled burglarized. panel’s The places es of the iniquity. holds hands with “logic” “common sense” and con- resort to fact-finding imper- persuaded presents stitutes the sort of held I am that this case Shepard. injustice, missible in I profound exemplar deep- ly regret the court’s refusal to rehear this life panel’s errors have serious real join case en banc. am honored to defendant, consequences for the John Joel elegant dissenting opinion my good col- errors result in treatment Foster. These league, Judge Motz. Motz conclu- (a of a firearm hunt- possession Foster’s majori- sively demonstrates that the truck) crime of an ing rifle his Supreme inty this case has deviated from criminal. Thus errors armed career these thereby precedent inflicted fifteen, subject imprisonment Foster to and, grievous Appellee harm on Foster half, years. rather than two and a This frankly, on the rule of law. offer this tragic given result particularly seems majority’s critique panel additional committing disputed the state after nineteen, burglaries at Foster remained handiwork as further illustration of how 192, 207, Alternatively, presses concurrence an United 550 U.S. 3. 1586, i.e., (2007), Shepard's persuasive challenge to whether even less sug- prior pres- unequivocal holding. offenses conduct "involve[d] The concurrence injury gests straight years potential physical "five and count- ents a serious risk of for ‍​‌‌‌​​‌‌​‌‌​​​‌​‌‌​​​‌‌​​​‌​‌​​‌​​‌‌‌​​​​‌​​‌​​​‍924(e)(2)(B)(ii) § ing” Shepard's to another." See 18 U.S.C. the Court has retreated from added). fact-finding by (emphasis "probabilistic” inqui- bright-line This rule and endorsed ry Shepard inquiry, “practicality,” "plain[] logic,” is far removed from the reasonable “probabilistic logic,” and "common sense.” which asks whether conviction " ‘necessarily’ qualifying apples oranges. rested on the fact[s]” This mixes The cases on predicate. Shepard, it an ACCA which the concurrence relies dealt with an as 21, "inherently probabilistic” inquiry, v. at 125 S.Ct. 1254. James

399 54 injustice Daughtrey, outcome of this F.3d at 1190. And so infects the court provided exposition a full of the stan- proceeding. of sentencing

dard review of determina- tions made Sentencing after the Reform I. 1984, Act of summarizing while the bot- First, panel dissent Judge Wynn’s tom-line notion “If as follows: the issue forcefully argued, panel primarily determination, turns on a factual seriously appropriate misapplied the stan- appellate an apply ‘clearly court should majority opinion of review. The dard erroneous’ 874 F.2d at standard.” 217. consider de novo whether an states: “We This the lineage illustration of of our qualifies felony as а violent under offense proper standard of review is unassailable. Thompson, v. the ACCA. United States Indeed, Judge Agee makes that clear in (4th Cir.2005).” 278, 421 F.3d 280-81 recently-published opinion his in United Foster, 291, 662 F.3d States v. 293 United (4th Moore, States v. 666 F.3d 320 Cir.2011). (4th is, best, at But this an Cir.2012) (“In the context of sentencing, incomplete controlling statement of le- we review legal the district court’s deter- Indeed, Thompson gal principles. itself novo, minations de and its factual findings legal states: “We review determinations Osborne, for clear error. United States v. the district de novo. court United (4th Cir.2008).”).1 514 F.3d (4th Blake, v. F.3d States Before the in this gov- Cir.1996).” (emphasis at 280-81 F.3d ernment suggest anything did not added). Blake, turn, begin states: “We contrary, although cleverly sought by noting reviewing application that in obfuscate the standard of review with this court, guidelines by we description of applicable standard of examine factual determinations for clear review in its brief: “Whether an offense error; however, legal questions, are sub- qualifies felony" as a ‘violent under the to a ject de novo standard of review. Armed Career Act ultimately Criminal Singh, States v. F.3d a matter of law that is reviewed de novo. (4th Cir.1995).” 81 F.3d 503. Thompson, United States v. 421 F.3d relied, Singh, on which Blake made clear (4th Cir.2005).” 280-281 Appellant’s Br. the mixed standard review: added). (еmphasis course, at 6 Of Applying statutory give question command to “ultimate” under statute is a ap- question “due deference” to a district court’s law. But issue this case plication sentencing guidelines, question we is not the “ultimate” whether review factual Virginia non-generic determinations clear offense under the error legal questions burglary de novo. Unit- might statute nevertheless consti- “generic ACCA; ed tute Daughtrey, burglary” States v. under the (4th Cir.1989). we question. 217-18 know the to that answer J.) ("As Washington, always, considering See also United States when a sen- reasonableness, 403, (4th (Wilkinson, J.) ("We Cir.) F.3d 411 tence’s we 'review the district legal legal as whether a court's de review issues such defen conclusions novo and its fac- ”); previous findings dant’s counted tual conviction as an for clear error.’ United States novo, Thornton, 443, (4th predicate Cir.2009) and we v. ACCA de review fac 554 F.3d 445 omitted), error.”) (citations (Duncan, J.) ("When findings considering tual for clear a sentence's — U.S. -, denied, 127, reasonableness, rt. 132 S.Ct. the we 'review district court's ce (2011); legal 181 L.Ed.2d 49 States v. Abu conclusions de novo its factual find- Ali, 210, Cir.2008) (Traxler, (4th ”). ings 528 F.3d clear error.’ case, however, simply question Before the of which re- us is question in this court properly but rather & whether the district con- analysis quires legal no factu- the court cluded from the relevant docu- whether district analysis, al is that finding govern- Thompson’s prior the ments that conviction clearly in erred satisfy proof its a the qualifying predicate. burden was In ment failed to (as Shepard) finding, to establish by making course that we be- constrained prior offenses were that of Foster’s lieve court was entitled to two the district also Corr. generic burglaries. See Govt’s in rely on those facts and circumstances (conced- Response En Banc at 8 Pet. Reh. .... plea colloquy relevant felt bears the burden ing government that “the question therefore whether sole predicate offense a proving an ACCA proper a finding the district court made evidence”). preponderance of the degree Thompson’s that second assault compelling particular Of more even a crime of conviction was for violence. this salience in the context that question We think without the trial Motz) by Judge recently (joined Wilkinson finding and court made that that conclusively that demonstrated determina- amply supports plea colloquy its conclu- of what Shepard- tions a district court sion. (as in approved establishes this document added).2 (emphases Id. case) questions quintessential are factual subject error of re- to the clear standard court did What the district this case v. Taylor, view. States See United exactly court in Tay- what the district did * (4th Cir.2011). 339, F.3d 348 n. lor; Shepard-approved it examined docu- majority rejected my fact, to make a finding

In ar- ments order Taylor, except court’s gument Shepard-ap- finding that that the district dissent document, guilty against government tran- this case was proved plea there I script, government. to establish that the rather than in was insufficient favor that this underlying presume agree conviction was crime of vio- all distinction ACCA, hardly lence alone is a reason to under the reasoned as reverse case.3 follows: district court dissent, argued my the district This is so even where the district court's court findings credibility committed an error law in its reli- do not rest determina- Shepard-approved tions, ance on the document physical are based instead on but finding appellant's make that the second- documentary evidence or inferences from degree Mary- assault conviction violation of other facts. land law was a "crime of violence” under the added) (emphasis at Id. 105 S.Ct. 1504 ACCA. See 659 F.3d & n. 6. The omitted); (citations Sheet see also Metal Work- concluded, (as contrary re- Sweeney, ers Int’l Ass’n above), counted the district court com- (4th Cir.1994) (quoting language Shepard- mitted no error of law and law”); stating, [is] "This Anderson and approved support document sufficient to Houman, United States v. F.3d finding court's con- (2d Cir.2000) curiam) (citing (per Anderson qualifying viction was a offense under stating, "We review the district court’s ACCA. finding factual as to the nature of the 1975 standard, a clear error conviction under not- Supreme 3. As Court stated in Anderson v. withstanding findings City, 470 U.S. the fact that were Bessemer (1985): evidence.”). entirely upon documentary based permissible Where there are two views of evidence, the factfinder’s choice be- clearly tween them cannot be erroneous.

401 Notably, parties eligible sentencing have not had an was for the applicable Taylor's to brief effect on the enhancement. See United States v. Don opportunity (4th nell, Cir.2011) F.3d briefing (reversing 661 890 in this issues case because Vann, error); legal for United States v. panel in case before the this argument (4th Cir.2011) (en banc) 771 660 F.3d Taylor concluded well before was were (same); Simmons, v. United States 649 If banc on October en published (4th (en Cir.2011) banc) (same); F.3d 237 granted, rehearing had been we Peterson, United States v. 629 F.3d 432 argu of have had the benefit counsel’s (4th Cir.2011) (same); United States v. any, on the еffect if of ments (4th Cir.2010) (same); Clay, 627 F.3d 959 application of the clear error Taylor's (4th Rivers, States v. United 595 F.3d 558 of one standard. failure more circuit Cir.2010) (same); Alston, United States v. regular judge active service to vote (4th Cir.2010) (same); 611 F.3d 219 United of impenetrable favor ‍​‌‌‌​​‌‌​‌‌​​​‌​‌‌​​​‌‌​​​‌​‌​​‌​​‌‌‌​​​​‌​​‌​​​‍erects Bethea, (4th States v. 603 F.3d 254 Cir. extraordinary In opportunity. bar 2010) (same); United v. Thompson, States ways. justice up many sneaks on us so (4th Cir.2009) (same, 588 F.3d 197 reject Thus, event, in any question ing district court’s legal conclusion that fact, presented question here is a of as the circuit precedent abrogated had been “judicial of majority’s resort notice” Begay v. United 553 U.S. 128 of a geographic county features (2008)); S.Ct. Unit Virginia of makes clear. Commonwealth Roseboro, (4th ed v. States 551 F.3d 226 Ohio Co. v. Util. Bell Tel. Pub. Cf. Cir.2009) (vacating imposition of enhanced Ohio, 57 Comm’n of upon concluding sentence that Begay did (1937) (“[N]otice, 1093 L.Ed. abrogate precedent); circuit United States taken, even when no other effect than Harcum, (4th Cir.2009) v. F.3d parties to reheve one of the to a controver error); (reversing legal for United States sy resorting of burden of to the usual (4th Thornton, v. F.3d Cir. evidence.”). of Accordingly, forms if the 2009)(same); see United also States v. of this court believe the judges district (4th Cir.2006) (re McQueen, 445 F.3d 757 they court committed error clear should versing district court’s refusal to impose so, not, silentio, say they but should sub any analysis” ACCA sentence “without (any they misapply) more alter than should holding that ostensible restoration of de standard of our well-established review civil rights trumped by fendant’s “his court process the multi-faceted time”); felony repeated over offenses sentencing. (4th Green, United v. States Cir.2006) (reversing district court’s refusal first, This case is a so far as I can tell. impose career criminal sentence upon Although necessary, we have found concluding that court “district erred as a course, to applicable legal elucidate guidelines); of law” in applying matter law, sentencing standards enhancement Washington, States F.3d 834 ACCA, my post-Shepard canvass of our (4th Cir.2005) plain under (reversing, error offender, guidelines-offense-en- career standard, in application the circuit’s first cases, in- hancement I cannot locate an Shepard, district court’s offense level en court, published stance which in a § 922(g)(1) hancement conviction in re opinion, outright a district court’s reversed sources). non-Shepard, liance on finding of fact underlying its determination government carry contrast, that, failеd to it is no coincidence proof exception, every burden to show that an offender with one one of the circuit 402 short, proof in the In like the at the by majority cited burden the

court cases (and stage, the at the trial standard of review parrot- now in this case opinion stage is of the realm. appellate the coin government, see Govt’s Corr. by the ed in- ought lightly permit corrosive 10-11) We in Reh. En Banc at Pet. Response fluences, arising out of understandable of the majority’s reversal of the support legal doc- dissatisfaction substantive finding under ACCA court’s district trines, to denude the value of that curren- carry its failed to government that cy. of the proof was an burden affirmance imposition of an enhanced court’s lower II. Baxter, See United States v. sentence. (4th Second, Cir.2011); by unpublished rule States we deem 475 United

642 F.3d (11th “nonprecedential” very Cir.2011); opinions for several Proch, F.3d 637 1262 v. 32.1; 4th also good reasons. Cir. R. see Rainer, 1212 v. 616 F.3d States United v. 751 Hayes, United States 482 F.3d Miller, (11th Cir.2010); v. United States (4th Cir.2007) 4th R. 32.1 (citing n. 7 Cir. (1st Cir.2007); 48 United States 478 F.3d that proposition pre-2007 unpublished Cir.1995).4 (4th Letterlough, 63 F.3d 332 v. controlling precedent), is not re opinion de exception pattern one grounds, on other versed remanded (of the paragraph in the above scribed 1079, 1089, 172 panel majority citing cases which (2009). rule, Applying L.Ed.2d 816 affirmed imposition of an sentence to enhanced wrote, Judge Duncan in v. recently Minor impose the reversal a refusal to support Laboratories, Inc., Bostwick 669 F.3d (4th sentence), Cir.2012), States v. an enhanced n. 6 decline to “we (9th Oca, arguments de Bostwick bases Aguila-Montes 655 F.3d address Cir.2011) (en banc), upon prior unpublished The opinion].” [a im district court’s opinion role of prominent unpublished re position of an enhanced sentence was here, by panel majority relied Unit 917, 946, 973-74 appeal. versed on Id. at Shelton, Fed.Appx. v. ed States J.) J., Berzon, Bybee, (Opinions (4th Cir.2006) (and (unpublished) par now (concluding Shepard-approved government, roted Corr. see Govt’s before court did not documents the district 11), Response Pet. En Banc at Reh. support finding that defendant had troubling on several levels. generic burglary been convicted of under law). per para- The Turning California ostensible devotes entire graph nonprecedential case and authorities on heads and ex suasive their gravitas: it accords unwarranted in tracting obiter dicta from them order in case is reverse the court augmented This conclusion is our say peculiar, least. decision United States Shel- Baxter, opinion pro- My "shop” "building.” Virginia Su- 4. 642 F.3d at support panel’s reasoning no for the vides preme Graybeal had so held in v. Com- outcome, "shop” event. The word monwealth, 228 Va. 324 S.E.2d appearing Virginia burglary in the statute also (1985), we affirmed the district court’s appeared prior prose- in the indictment Baxter, ruling F.3d at adherence to Thus, presented cution in Baxter. the issue whether, legal pure was a issue: under feder- question pre- law, No factual whatsoever Virginia Supreme as it al absorbs the Baxter, problem binding sented and therein lies interpretation elements Court’s (see Vann, 777), any attempt apply state law here. (4th Cir.2006) ton, case, only to Fed.Appx. summarily “decline to ad- Shelton, opinion In we concluded a (unpublished). subsequent dress” such when charging disagrees that an the defen panel reasoning indictment with its or out- breaking come, all, entering dant with “the inas Minor. After as Emerson wrote, of All American Wash” consistency” business Car it is “foolish prior hobgoblin established that the conviction is “the minds.” Playing little burglary: for a generic game “[w]e believe an insidious of “Gotcha” with the necessarily business’ reference to ‘the district courts in is way this circuit no to sought ensures that to ‘а judicial Shelton enter run a railroad. ” building or structure.’ Id. at 222. If III. the broad term “business” in Shelton sufficiently generic burglary, a defined Third, reversing think that a district explicitly so too should the more named judge sense,” his lack of “common or case at businesses bar. he logic,” because if “abandoned] ever is to appropriate, be reserved for the most 662 F.3d at 295-96. cases. extreme This is not one of those Manifestly, is this inconsistent with the cases. I have little that the panel’s doubt spirit local certainly letter of our opinions and concurring intend rule, particularly regarding a as such meaning by profligate their invocation Shelton, orally argued. that was not even (Motz, terms. J., these See ante at 396 This is even more true a in which case dissenting). IAnd believe there is a high specifically the district court a considers many readers, risk that both casual and and, non-precedential case reliance knowledgeable, will view it this way. character, nonprecedential to its declines error, Again, if there was clear the court Foster, follow it. See States v. say should so in a forthright manner. It (W.D.Va.2010) (“[Cita- F.Supp.2d misapplication should not hide behind a unpublished prior decisions tion issued review, the de novo standard accompa- 1, 2007, January disfavored, is to 4th Cir. nied insincere salutes to “common accordingly R. 32. not Shelton does “logic.” sense” and case.”) (citation present control the omit- ted). sure, To be as Judge recently Wilkinson us, judge’s reminded toolkit “[a] includes We should not district such put courts in common sense.” v. United States Monti Catch-22, is to say certainly a which we (4th eth, Cir.2011). 662 F.3d 668-69 non-precedential, unpub- should not treat time, however, At the same “common opinions they as if were lished otherwise judicial sense” no panacea magic or a case which we reverse the district Pagan Fruchey, wand. See nonprecedential for treating opin- court (6th banc) (“A Cir.2007) (en judi non-precedential, as if it in- ion were pronouncement cial that an ordinance is event, any it is. we deed fact that with hardly consistent common sense es says affirmed the district court in Shelton so.”). tablishes it is clearly more than court no that the did not finding demonstrates, government err had carried As Motz common proof. its burden of From an appropriately institutional sense has been invoked unseemly, perspective, say justify to reversal in this case. In any least, event, to promote non-precedential contrary suggestion sense, opinion subsequent panel agrees when a district court lacked common outcome, reasoning distinguished judge brought as in this proper standard knowledge, taken assertion breadth of his Ml bear the goes of review here is de novo unremedied wisdom in conduct- insight and experience, (or Foster, already) released close hearing in case. sentencing ing the be to prison, from federal will ordered in sentencing at and his As both he noted report, again, to the United States Mar- leading offenses to the the opinion, written twelve-plus to an additional shal serve were committed when disputed convictions by a imposed couple in years prison years and that was old the defendant never seen judges federal he has before felony further con- had no the defendant him who looked and have never years those in the 19 between victions Nevertheless, that, can eye.5 we be sure present the conviction. and convictions government next enough, soon when Foster, F.Supp.2d 651 n. 1. The disputed question arising on a job prevails exemplary explaining court did case, interpretation from a district court’s of the sentencing decision this document, facts in Shepard-approved hunting had riflе which the defendant up will bound government prosecutors his car. steps earnestly imp- and our courthouse be that the district court may It well error apply lore us a clear standard of so, justifiably at the outraged, right will government review. And the be should a 15- thought that Foster serve Only fog injus- us to ask to do so. (rather year for his offense than sentence impedes moment our beclouding tice imposed), but the 27 months no view of ability to that this is so. see handling of could district court’s this case The result here is inconsistent with Su- reasonably support conclusion that incompatible preme precedent; lawlessly in adjudicating court acted long-settled circuit rules understand- case. whole world will see So ings; incomprehensible and will be genuine attention evenhandedness serve. Because en banc communities we brought to its in this district court task plainly required review is here to maintain appendix opin- as an I attach to this uniformity jurisprudence in our to ad- reproduction part ion of a of the tran- exceptional importance, dress issues sentencing reflecting script hearing dissent refusal of the court to from the the court’s statements.

grant petition rehearing. for en banc sum, I am convinced mili- this rеcord joins in this GREGORY dissent. in favor of strongly rehearing. “[I]f tates of trial courts in primacy the sentenc- DAVIS, OF APPENDIX TO OPINION ing envisioned process Gall [v. ‍​‌‌‌​​‌‌​‌‌​​​‌​‌‌​​​‌‌​​​‌​‌​​‌​​‌‌‌​​​​‌​​‌​​​‍J., THE DISSENTING FROM DENI- AL OF EN REHEARING BANC (2007) is to be respected, ] L.Ed.2d UNITED STATES JOHN JOEL reasonable court’s conclusions FOSTER CASE NO. 10-5028 Shepard-approved from a document must UNITED STATES COURT (Wil- upheld.” Taylor, be 659 F.3d at 348 OF FOR THE APPEALS J.). kinson, This is no less true when the CIRCUIT FOURTH prevails on factual defendant determina- Well, if govern- nothing under as when THE there’s tions COURT: further, I prepared impose prevails. majority’s ment mis- am sentence might disagreements genuinely be applica- inable how the result here Good faith over the (Wilkinson, J.). side, legal unimag- '‘pleas[ing].” ante at 395 doctrine to one it is See tion Foster, stand, if you applicable time. Mr. will since I have found that it at this no Foster, you to him and there are other circum- anything Mr. there sir. stances, view, my justify which would say pronounce before I wish me such a sentence. your sentence case? Now, government the also argues that No,

THE DEFENDANT: sir. history the defendant’s criminal underre- Well, following THE COURT: the are the presents the his seriousness of crimi- imposition for the of the sentence reasons nality. govern- I’m not sure the whether carefully in this case: I’ve considered the departure requests upward ment within Code, factors set forth in United States meaning of guidelines the the or simply an 3553(a), sentencing as well as thе Section event, upward variance. But in either I do range by established in this case advi- the not such appro- believe a course would be sory sentencing guidelines. case, although, course, priate in I parties following The have made the ar- have the discretion to do so. sentence, appropriate as to guments the The prior convictions of the defendant govern- which I’ve also considered. The regard which I considered in appli- argues impose that I should sen- ment a cation Armed Career Criminal Act advisory guideline range above the tence when years occurred the defendant was 19 variance, a ground as on the that old, years many They ago. involve a ser- range mandatory is far below the guideline ies of break-ins to businesses that oc- minimum for provided sentence otherwise curred in the same geographical area over Act, in the Armed Career Criminal relatively period a short of time. There’s that, accordingly, I ruled since that no indication that such or types crimes appli- Armed Career Act Criminal was not as crimes such these have occurred since to Mr. I cable Foster’s should consid- in then the defendant’s life. a higher guideline er sentence than the problem His since has been then one of range. abuse, get substance which I’ll into in a course, Of the Armed Career Criminal that, But indication moment. there’s no was sentencing Act not established age engaged since the that he has commission and no direct has reference to or thefts property break-ins or other of- factors set forth United States presen- fenses such described Code, 3553(a). Section It is a that statute report, tence so I do that not believe those a requires mandatory regardless minimum occurred, again, years which ago offenses history of the characteristics of history, his indicate that criminal as calcu- or the other factors set defendant forth advisory sentencing guide- lated under the statute, and I do believe that lines, under-represents criminality. his adequate is an basis those considering argues government also I appropriate factors sentence in should sentence the defendant above the case. advisory guideline range because fact, I unjust believe it would be possession marijua- he was convicted of na, a impose sentence mandated the Armed and the facts indicated a search of defendant, marijuana Career Criminal Act his residence discovered ten history drug- a prosecuted long been alcohol have which could plants, I plea bargaining problems, he believe that felony, through but related as a incarcer- misdemeanor. defendant needs treatment while convicted of a was the Bu- going ated. I’m to recommend to Well, place, we don’t have in the first be sub- reau of Prisons defendant prosecutor why the state any idea about jected abuse to the residential substance conviction and agreed to misdemeanor Pris- program available the Bureau of proba- defendant on placed court ons. presume that there tion. would have normally And good for that. reason Accordingly, I believe that a sentence plea bargain to misdemeanor when guideline range high end occurs, a problem perhaps reflects likely make it more that the defendant offense, a proof of more serious or appropriate could treatment while receive conduct, personal history his defendant’s incarcerated. in- leniency indicate and characteristics I urge the defendant to take ad- dicated. vantage program, a or other of such event, I do not that But either believe him while programs that are available to me to a appropriate impose it would be for incarcerated, gets he’s so that when he advisory guideline sentence above the out, able to sure that his he will be make theoretically range possible because it is problems don’t lead him substance abuse may have been that the defendant convict- type into of that he is the same trouble felony a in 2006. ed of in this case. Now, guideline I believe that calcula- stated, Accordingly, for the it is reasons tion, objection has been no to which there of the the defen- judgment Court that request I government’s other than that dant, Foster, hereby John Joel commit- impose mandatory a sentence under custody ted to of the Bureau of Prisons Act, adequately Armed Career Criminal a imprisoned to be for total term of reflects the set forth in factors Section will months. The Court recommend 3553(a), reason, I that intend to that be Bureau of Prisons the defendant argument follow defendant and enrolled in the residential abuse substance impose advisory a within the sentence program. treatment range. guideline Now, in particular, the defendant has performed all the defendant requested a sentence at the low of the end bond, conditions of his and I will accord- guideline range. I must One factors ingly I will accordingly, recommend to— is, statute, consider a under sentence permit self-report him to to the institution provide that would the defendant with designated by upon Prisons Bureau of needed correctional treatment the most notification. manner, including care. effective medical Upon from imprisonment, release indicated, prob- As I’ve the defendant’s placed supervised defendant shall be on lem has been abuse problem. his substance years. a term of release for three indicates, presentence report As the he WYNN, Judge, dissenting any disputed Circuit ing fact in essential to rehearing en the denial banc: ceiling crease the potential of a sen tence. While the disputed fact here can Court, Unfortunately, equally divid- be described as a fact about a prior ed, rehearing en grant refuses banc conviction, it is too far removed from the why I now not case. write to address conclusive significance prior judicial incorrect; the panel majority believe record, and tоo much findings like the rather, why I write to out point this case is subject States, [v. Jones particularly well suited to be considered U.S. S.Ct. 143 L.Ed.2d Court, irrespective the full of whether one (1999) and Apprendi, say ] agrees disagrees panel majori- with the Almendarez-Torres [v. United ty opinion. To banc rehearing, Appel- warrant en (1998) clearly L.Ed.2d 350 ] authorizes late Rule 35 en requires Procedure judge to resolve the dispute. The rule “necessary banc consideration be to secure of reading statutes to avoid serious risks uniformity or maintain of the court’s deci- unconstitutionality, therefore counsels sions” or the issues at hand are “of us to limit scope judicial factfind exceptional importance.” R.App. P. Fed. on ing disputed generic character of differently, 35. Stated en plea, just a prior as Taylor constrained contingent disagreement banc is not judicial findings generic about the impli Instead, majority. with the the rule of jury’s cation a verdict. simply mandates that due consideration 25-26, the full Court is warranted an Id. at 125 S.Ct. 1254 (opinion when issue of J.) Souter, (citation omitted). sufficiently important, is or there is The funda- enough opinion tension between the and mental constitutional rights implicated precedent. other Circuit here are exceptionally important. This case easily Second, clears both hurdles. on judges numerous this Court First, this case of exceptional impor- join Judge Motz’s dissent to the denial tance, because, among things, other it rais- banc, rehearing of en expresses which es important Sixth and Fourteenth panel majority view that the con squarely Amendment As already issues. been controlling flicts with Supreme Court prec covered, remarkably well in circumstances Likewise, edent. is in panel majority similar those in Supreme this serious tension with our own Court’s case Court, v. United 544 law, including Washing v. United States U.S. 125 S.Ct. 161 L.Ed.2d 205 ton, (4th Cir.) (noting 629 F.3d 409-10 (2005), expressly prohibited courts from animating purpose! Tay “the of the ] making findings directly of fact not appar- lor/Shepard line: the desire to ex avoid document, a charging ent from the terms litigation tensive about at convictions of plea agreement, a comparable some sentencing” and recognizing “canonical judicial record. at Id. 125 S.Ct. 1254. upon rely set of records” which may courts — As opinion, Justice Souter noted in his denied, Shepard), under cert. U.S. anything else has serious constitutional im- -, (2011), plications: Bethea, United States (4th Cir.2010) Sixth

[T]he and Fourteenth Amend- (rejecting 259-60 the “most guarantee jury a standing plausible explanation” ments be- and common of use tween defendant and power “escape” focusing the term on solely State, and they guarantee jury’s find- S/mpard-approved whether documents his sets forth but instead should be denied had that the defendant necessarily showed why panel “the thoughts on considered re- violent conduct type committed Shepard er- committed no majority here Criminal Armed Career under the quired Wilkinson, at 393. In J. Opinion ror.” (“ACCA”)). Act votes to short, though Judge Wilkinson on vote that this Court’s fact The sheer to review opportunity Court deny this 7-7 itself rehearing petition is this en banc opin- an matter, writes he nonetheless important this case is that indicates majority panel in the ion that concurs Fully full attention. this Court’s warrants in this own words To use his opinion. mat- judges deem this Court’s half of opprobrium” context, “quick heap he is handful being one worthy ter to be ad- allow the merits voting en most, hears cases, Court, yet engages by the full dressed split of That the 7-7 given year. ain banc full that, denied the he has precisely which that a indicate rehearing vote could Court, that concurs issuing opinion ultimately arise may decision fractured majority opinion.1 (which way as- in no Davis have Too, Judge Motz аnd Judge rehearing en sured, voting whether since which, Judge that of like opinions a vote on issued should not be is warranted banc Wilkinson, directly why address en do not merits, Rule 35 discus- my previous as But unlike allowed. notes) review should be away from banc shy is no reason sion Wilkinson, allow all of they vote to Indeed, the Su- were rehearing this case. op- of this Court and the other members a view to take such preme un- the merits of the issues, to address many portunity contentious dodge respec- in their they do derlying appeal, get Su- cases would never pressing most opinions. to me tive And it seems review. preme Court difficult cases precisely it is those Grego- Additionally, Judge King, Judge view, every considered most from benefit Davis, Judge Keenan and ry, Judge Judge full i.e., rehearing by the Court. from dissent- Judge in Motz’s Floyd all concur concurs in Judge Gregory also ing opinion. Moreover, wonder help I cannot but dissenting opinion. With Judge Davis’s panel value of precedential what (who a Hamilton2 also wrote First, Judge there is the Senior is. majority opinion panel concurring separate opinion writes Wilkinson consideration Judge Agee’s majority opinion) joining does opinion that concurring separate my dissent majority opinion, panel review directly why en banc not address at issue must nec- and restaurant the dis- the market concurring opinion states that 1. The buildings. essarily be quick heap opprobrium on "are to senters obvious, suggest slow to of the but exercise Handbook, Judges’ Fourth Circuit 2. Per the and Sunrise-Sunset what the Corner Market may poll.” in a "[o]nly judges vote active buildings might than or Restaurant be other However, Judge Hamilton because Senior Wilkinson, at 393. Opinion J. structures.” original panel that decided the "was on the my from contrary, 2 of dissent To the footnote case[,]” may he provides that the Handbook sug- opinion panel majority does indeed rehearing participate en to "continue[] after gest Sunrise- Corner Market and added). "what the (emphasis granted.” Id. at banc is might than build- Thus, Sunset be other may participate Restaurant judge not a senior course, matter; sug- ings during polling Id. Of those of this any or structures.” manner instead, only may participate if analysis judge gestions necessary senior were not granted.” Id. "rehearing en banc is inquiry whether appropriate because the majority panel opinion, ten every considering from the considered view. In re- judges expressed opinions have their hearing requests, now the inquiry not should underlying appeal, be, on the merits of the “would have differently voted than n deny just rehearing. to decision panel majority,” rather, but “is the issue this case presents particularly impor- denying That leaves the order a rehear- id. precedent.” tant or tension with See essentially affecting only banc ing en all respect good With due to my colleagues remaining judges five who have neither voting deny the full an opportuni- joined opinion nor written concurs ty to confront the in this issues or panel majority opin- dissents from the here, correct answer particularly when suppose judges ion. I if those five were irrespective viewed of inclinations on the align any opinions themselves with merits, is a resounding yes. poll, arising this Court would effectively en have conducted an banc re- I must therefore respectfully dissent having given without the par- view— from the denial a rehearing en banc. ties full via argu- access oral Judge Gregory and Judge Davis au- have express ment their views. thorized me to indicate that they join in Further, guidance panel what does the this dissent from the denial opinion provide, for this Court en banc. courts, and for district going forward? Is using required, merely “common sense”

discretionary? Even employing were mandatory,

“common sense” different

judges will surely almost have different sense experience,”

notions “common

“resulting subjective totally stan ” Int'l, v. Tempur-Pedic Jacobs dard .... Inc., (11th Cir.2010) BOARD OF MISSISSIPPI LEVEE J., (Ryskamp, dissenting). The outcome COMMISSIONERS, Plaintiff- a “common inquiry sense” given Appellant, likely case will depend, therefore at least part, identity on the of the district court judge or the appellate members —a UNITED STATES ENVIRONMENTAL troubling consequence indeed.3 AGENCY; PROTECTION P. Lisa Jackson, en appreciate rehearing banc “is capacity in her official as exception Administrator; is the Nancy Stoner, favored” and rather her than R.App. capacity Acting the rule. Fed. P. 35. Never- official as Assistant theless, Water, en important banc is Administrator Defendants- giving Appellees, tool for difficult issues benefit why posited by is panel imports That the advice the con- its own notions of "common opinion Indeed, curring policy disagreement "a equation. sense” ‍​‌‌‌​​‌‌​‌‌​​​‌​‌‌​​​‌‌​​​‌​‌​​‌​​‌‌‌​​​​‌​​‌​​​‍into the "common up with the ACCA” matter be majority panel "to taken sense” used here is Wilkinson, Congress," Opinion with thinly public J. more policy little than veiled advice should majority panel be directed to the decision. The would therefore majority opinion, in which the concurring concur- seem to be well served ring opinion joins. reading Instead opinion's misdirected advice: is a "Theirs language pertinent of the ACCA and policy disagreement” statutes that should "be taken written, they law as are up Congress.” case Id.

Case Details

Case Name: United States v. John Foster

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 8, 2012

Citation: 674 F.3d 391

Docket Number: 10-5028R1

Court Abbreviation: 4th Cir.