United States v. Taylor

America, STATES UNITED

Plaintiff-Appellee,

Daryl TAYLOR, Defendant-Appellant. America,

United States

Plaintiff-Appellee, Thompson, Darrell

Antwan a/k/a

Thompson, Defendant-

Appellant.

Nos. 10-4054. Appeals,

United States Court

Fourth Circuit.

Argued: Sept.

Decided: Oct. 24, 2011. Silver,

ARGUED: Jоanna Beth Office Defender, Baltimore, of the Federal Public Maryland; Gladstone, Jonathan Alan An- Maryland, napolis, Appellants. Cheryl for L. Crumpton, Office of the United States Baltimore, Attorney, Maryland, Appel- for Wyda, lee. ON BRIEF: James Federal Defender, Baltimore, Maryland, Public for Rosenstein, Appellants. Rod J. Baltimore, Attorney, Maryland, Appellee. WILKINSON, MOTZ,

Before DAVIS, Judges. Circuit by published opinion. Judge Affirmed opinion, WILKINSON wrote the in which Judge joined. Judge MOTZ DAVIS wrote opinion concurring part and dissenting part. Tay- both jury subsequently A convicted

OPINION violating lor and 18 U.S.C. WILKINSON, Judge: Circuit prohibits convicted fel- 922(g)(1), Ant- Daryl Taylor and juryA convicted a firearm. Because possessing ons from posses- being felons Thompson wan stolen, Taylor’s handgun was Pre-Sen- firearm under 18 U.S.C. sion (“PSR”) a Report tence recommended two- a they caught were with 922(g)(1) § after level increase under U.S.S.G. point offense a Baltimore street. handgun loаded on 2K2.1(b)(4)(A). Taylor’s § When added to imposed eight-year The district court twenty-four points level of base offense fifteen-year and a sen- Taylor on sentence IV, History Category of and his Criminal prior his con- Thompson on because tence resulted in a Guidelines this enhancement mandatory him for the qualified victions 92 to 115 months. At his sen- range Armed Crimi- minimum under the Career however, Taylor argued tencing hearing, 924(e). (“ACCA”), § nal Act 18 U.S.C. We punishment. Specifically, he for a lesser now affirm. objected two-point to the enhancement be- handgun that

cause he was unaware that a I. was stolen. He then contended mitigating number of circumstances such A. history as his lack of a of violence and his efforts to turn his life around also mandat- patrol in an unmarked on street While Noting a sentence. that this was ed lesser 30, 2008, members night May on the van offense,” “certainly very serious the dis- spot- Department of the Baltimore Police rejected Taylor’s trict court contentions Taylor standing passenger near the ted imposed ninety-six month sentence. Taylor’s an Acura. location was side of by multiple streetlights as well illuminated B. Shortly headlights of the van. as the thereafter, officers, Detective one of the case, Thompson’s In the PSR recom- Cook, Taylor saw reach into his Jermaine fifteen-year minimum sentence mended waistband, pull handgun, out a silver previous- he had under the ACCA because Thompson through the Acura’s pass it to ly been convicted twice for controlled sub- side window. Detective Cook passenger second-degree and once for stance offenses instantly other three detectives alerted the ACCA, anyone assault. Under the who van, looking none of whom were 922(g) § and has three violates 18 U.S.C. Acura’s direction at the time. prior felon[ies]” conviсtions “violent drug must serve a sen- offense[s]” “serious stop. came to a promptly The van years. tence of at least fifteen 18 U.S.C. put out of the vehicle and Cook got officers 924(e)(1). mandatory To avoid this min- on Taylor Thompson, under arrest. imum, Mary- Thompson argued his hand, fled from the Acura and was other second-degree land assault conviction was by two of the other detectives. pursued felony.” not a “violent chase, During the one of the officers saw sentence, support govern- of this handgun Thompson’s fall out of silver a transcript the load- ment submitted shorts. The detective recovered for his assault conviction. reported plea colloquy had been stolen weapon, ed being According transcript, to this after discovery evening. to its prior attor- rights, Thompson’s informed of his apprehended soon thereaf- your him if “it intention ney asked is still ter. ‘Yes, asked, аnything client and there guilty?” responded, “[I]s He plead answer, Following prose- you say judge? ma’am.” would like to to the have supporting facts your cutor read a statement of You spoken morning. behalf this Thompson’s plea. you’d if opportunity speak have an like you to or can remain silent. Is there According prosecution’s report anything you’d say?” Thomp- like to else May colloquy, night “No, replied, During son ma’am.” the en- Geolamas, Bateem, and Guz- Officers plea colloquy, tire neither nor Department man of the Baltimore Police innocence, protested disput- his counsel Thompson at a corner store tried to arrest disagreed prosecu- with the guilt, ed his drug deal. for his involvement When tor’s statement of facts. however, Thompson, he they approached Styrofoam cup liquid filled with threw document, reviewing After this the fed- Geolamas, “striking him in the Officer transcript eral district held that the court area,” Officer Bateem “punched chest “clearly physical assault involv- show[s] mouth,” attempted and “then to flee.” against the use of force or violence police Thompson.” officer Mr. It con- grab Officer Guzman was able to a hold sequently rejected Thompson’s challenge however, suspect, and the two oth- him to his ACCA status and sentenced to “taking him by er officers assisted mandatory years minimum of fifteen A [Thompson] ground.” down to the imprisonment. struggle followed on a concrete sidewalk control gain as the three officers tried to C. strug- Thompson’s During hands. gle, Thompson swung his arms and kicked appeal, Taylor challenges On both his repeatedly attempted his feet and to draw conviction and sentence. He that claims handgun from the waistband of his jury lacked sufficient evidence to con- pants. Despite Officer evеntual Guzman’s violating § vict him of 922(g)(1), 18 U.S.C. spray, of a burst of offi- pepper use requirement the lack of a mens rea Thompson fight.” cers and “continued to sentencing renders the stolen firearm en- attempted then grab Guz- invalid, hancement and his sentence is holster,

man’s firearm from his at which substantively Thompson, unreasonable. point put Officer Geolamas his hands over hand, objects only on the other to his prevent hands in order by contending sentence under the ACCA acquiring weapon. “Backup him from Maryland that his assault conviction does eventually units arrived at the scene and felony.” not constitute a “violent We shall hand, Mr. cuffing assisted officers at appellant arguments address each and his struggle who continued to in in turn. his duress.” prosecutor reading

When the finished II. statement, the state asked A. Thompson’s attorney whether she had corrections,” “[a]ny begin additions or with Taylor which We and his clаim that “No, replied, jury she Your Honor.” The court lacked sufficient evidence to con- ruled, violating 922(g)(1). § then “Based on that statement of vict him of 18 U.S.C. facts, brief, Mr. Thompson, you guilty Taylor find contends that there ‍‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​​​‌​​​‌​‌‌‌​​​​​‌‌​‌​​​​‌‌​‌‌‌‍was assaulting enough presented ... at trial Officer Geolamas.” not evidence Thompson’s attorney prove actually possessed then turned to her that he the stolen prove point, jury Taylor To he launches handgun. guilty find pos- unlawful attack on Detective Cook’s extended session under 18 922(g)(1). U.S.C. credibility. He contends Cook’s testi- Taylor, he mony regarding when first saw B. occurred, gun

when the handoff stop where the van came to a results in an impossible

incoherent timeline of Apart challenge from his to his con squared that cannot be events with the viction, Taylor objections raises two narratives of the other officers. Given length of his sentence. He first contests that Cook was thе officer who saw the the district court’s application of the night, Taylor handoff that insists his con- two-point Guidelines’ pos enhancement for viction must be overturned. session of a stolen firearm. Section 2K2.1(b)(4)(A) of the Guidelines instructs matter, any As an initial suffi courts to increase a defendant’s offense ciency heavy claim bears a burden. We level points two if the firearm involved jury’s cannot set aside a verdict if it is 922(g) section offense was stolen. supported by substantial evidence when This enhancement “applies regardless of light in the most viewed favorable to the whether the defendant knew or had reason government. See United v. Robin (4th son, Cir.2010). believe the firearm 941, was stolen.” 627 F.3d 956 Fa n.8(B). § 2K2.1 Taylor U.S.S.G. cmt. Taylor’s tal asks case is the fact that on that we guideline invalidate this appeal, “we are not entitled to assess wit grounds that its lack credibility, ness and we of a mens rea assume that thе re quirement renders it jury any conflicting resolved evidence in inconsistent with fed prosecution’s favor.” eral law. United States v. (4th Cir.2009). 557, Jeffers, 570 F.3d 565 matter, This we cannot do. anAs initial trial, At Taylor challenged Cook’s testimo we note that the stolen firearm enhance- ny grounds strikingly on similar to those ment serves an important purpose. The he presses appeal. now But at the end Sentencing “promulgated Commission [this day, jury rejected Taylor’s argu guideline] on the premise that ‘stolen fire- ments in favor testimony. of Cook’s disproportionately arms are used ” Moreover, ample there was evi commission of crime.’ United States v. (3d Cir.1992) Taylor’s possession dence here to establish Mobley, 956 F.2d (citation omitted). According of the firearm. to the testimo In light of the fact that ny, multiple Taylor detectives saw stand stolen change firearms hands both freely passenger near the Acura’s frequently, side а hard-pressed we would be well-lit area. While other officers to discredit judgment the Commission’s direction, looking were in another possession Detec that a felon in of a stolen fire- Taylor tive Cook observed pass a silver arm differently should be treated from one handgun Thompson through possessed Acura’s who a gun through lawful Ellsworth, window. The other detectives confirmed means. See United States v. (con- immediately (9th Cir.2006) that Cook alerted them to the 456 F.3d handoff. As soon as the officers exited the firming that a felon in possession van, Thompson fled from the Acura and stolen firearm culpable is more than one dropped handgun then a silver during acquires gun his who legally because stolen unsuccessful attempt escape. weapons This evi are more frequently used to com- crimes); Schnell, dence would plainly allow reasonable mit United States v. Cir.1992) 1993); Schnell, 219-21; (same); at Mob- 216, 220-21 F.2d 454(sаme). 454-59; at States v. ley, 956 F.2d F.2d at Mobley, 956 (D.C.Cir. Taylor, 937 F.2d 681-82 the enhancement is it fatal Nor 1991). cap- The Third Circuit has best aWhile component. mens rea lacks a reasoning of these courts with its tured rooted in deeply for mens rea is preference ... observation “stolen firearms Staples see v. United jurisprudence, our people recognized as irre- the hands 600, 605, States, 511 U.S. S.Ct. dangers, sponsible pose great (1994), of this the absence L.Ed.2d 608 heightened guideline here reflects this invariably the final word element is not danger.” Mobley, 956 F.2d Instead, Supreme criminal law. observed, sum, is not unusual to we cannot see how the absence “[I]t Court unintended con requirement individuals for the works to invali- punish scienter their acts.” Dean An unlawful sequences of date the enhancement. unlawful States, inevitably 129 S.Ct. carries its v. United course of conduct (2009) 1849, 1855, 173 (empha Dean, L.Ed.2d 785 of risks. See share rule, (“An felony-murder brings original). sis individual who load- 1855-56 сan convicted under which a defendant be commit a crime runs the risk weapon ed accidentally.”). if he commits an unintentional gun discharge for murder that the will course of another felo during 922(g)(1) prohibited Taylor homicide Section illustration ny, perhaps any firearm, the most obvious whether or not it possessing idea behind this point. Taylor actually Id. The stolen. If were con- simple “wishing a one: those principle acquiring is cerned about the risk of a stolen penalty for” the unintended con weapon, readily avoid there was a available solu- “avoid sequences of their crime should simply obeyed tion: he could have the law. felony place.” so, committing the the first he decided not to do he assumed When conduct, situation we See id. at 1856. This is the criminal the attendant risks of Taylor pos not to newly have here. Had chosen that his ac- including possibility with, handgun unlawfully begin might sess firearm be stolen. See Unit- quired (2d 844, for the punished he would never have been Griffiths, ed v. 41 F.3d 845 States Cir.1994) (“[T]he firearms. possession spread legiti- of stolen a government has punishing possession mate interest every unsurprising It is therefore the burden placing stolen firearm and challenge to circuit to have considered a a firearm to ensure upon one who receives sentencing enhancement section lawful.”). For the possession that the is 2K2.1(b)(4)(A) upheld guideline. reasons, Tay- we must decline foregoing Thomas, 64, See United States v. 628 F.3d lor’s invitation to invalidate the enhance- (2d Ellsworth, Cir.2010); 456 F.3d 68-71 2K2.1(b)(4)(A) ment in section of the Sen- Williams, 1149-51; v. 365 United States tencing Guidelines. (5th 399, Cir.2004); F.3d 407-08 United Martinez, 759, 761-62 States v. 339 F.3d

(8th Cir.2003); Murphy, United States v. (6th 846, Cir.1996); Taylor ninety- that his also claims 96 F.3d 848-49 United (11th Richardson, substantively un six month v. 8 F.3d 770 sentence Sanders, Cir.1993); factors and mitigating 990 reasonable due to States v. (10th Cir.1993), innocuous nature of his comparatively F.2d 584 overruled a district court’s sen conduct. We review grounds other United States Gomez- Arrellano, a abuse-of-discre- tence “under deferential 466-67 Cir. States, standard,” tion v. United a dangerous Gall behavior and re- 38, 41, quires significant 169 L.Ed.2d 445 U.S. sanction.

(2007), presume appeal that a sen III. properly advisory tence calculated within range is a reasonable one. Guidelines turn We now and his chal- Allen, United States F.3d lenge his sentence under the ACCA. As (4th Cir.2007). Taylor’s ninety- Given noted, imposes the ACCA a fifteen-year month sentence fell within his properly six minimum anyone sentence on who both range of 92 to determined Guideline '§ 922(g) violates 18 U.S.C. and has three months, apply presumption we here. prior convictions for drug “serious of- or “violent fense[s]” felon[ies].” U.S.C. case, Under the facts of this 924(e)(1). § Thompson contests neither district court’s sentence falls well within 922(g)(1) his section conviction nor the fact range punishments. of reasonable previous that his two cocaine conviсtions Taylor’s instant offense involved danger amount to drug “serious See offense[s].” illegally ous conduct. After obtaining 924(e)(2)(A). 18 U.S.C. argu- His sole firearm, Taylor stolen carried this loaded appeal ment on is that the district court weapon on a Baltimore street before hand erred in concluding that his predicate third Thompson through it to a car window. conviction for Maryland second-degree as- Taylor’s previous encounters with the law felony.” sault constitutes a “violent proved to have little or no deterrent effect. supposed mitigating And the circum A. supported stances were neither nor veri The ACCA defines “violent felony” in fied. The trial provides court’s statement ways. two The district court relied on good example of reasoned sentencing only one of them. Specifically, it found discretion: that Thompson’s assault quali- conviction seems to me that a sentence of 96 [I]t ACCA, fied under the “force clause” of the months, ... which is within the advisory felony” which defines a “violent as an of- guideline range, is sufficient in this case use, fense which “has as an element the being greater without than necessary. use, attempted physi- threatened use of certainly very This is serious of- against person cal force of another.” .... gun fense this time the [A]t was 924(e)(2)(B)(i). § Id. being way. not used in a violent I ap- preciate Taylor, that. Mr. again, at this preferred While the framework for ad- time, particular was not associated dressing with whether prior convictions qualify However, unfortunately, narcotics. predicates Mr. as ACCA categorical is the ap- Taylor very ... recently had been proach re- set forth in Taylor v. United States, 575, leased from incarceration following 495 U.S. 110 S.Ct. drug serious prior (1990), offense. He has a 109 L.Ed.2d 607 under which drug serious offense from when simply he was we consider statutory elements much younger, admittedly. But conviction, unfor- of the offense and the fact of tunately, that pattern seemed to precedent have our option forecloses that here. fairly recently And he was Maryland continue[d]. prohibiting statute second- when, released from incarceration degree ac- assault provides that person “[a] verdict, cording jury’s to may assault,” he was not commit an which in turn loaded, in possession found of a assault, stolen is defined as “the crimes of bat- weapon City, tery, on the streets of Baltimore battery, and assault and which retain (2010) origi- in L.Ed.2d 1 Md. 176 meanings.” determined judicially their nal). 201(b), Thompson’s conduct as described §§ Ann., Law Crim. Code 3— fits this definition. broad, colloquy plainly -203(a). is so this definition Because deal, drug Thompson Facing arrest for inabili- recognized our frequently we have in the chest area” “str[uek] [an officer] and the a conviction ty to discern one liquid, punched another cup with a a defen- whether alone statute’s elements mouth, escape. attempted felony. a violent actually committed dant Alston, “wrestl[e] officers then had police Three United States See Cir.2010) gain control of his (4th ground on the [him] cate- (using modified 222-23 flailing his arms and hand” while he was whether to determine approach gorical Further, “continued to Thompson legs. ‍‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​​​‌​​​‌​‌‌‌​​​​​‌‌​‌​​​​‌‌​‌‌‌‍qualifies assault second-degree Maryland well as Officer handgun” reach for his v. Har- felony); violent United as a Cir.2009) during struggle, firearm Guzman’s cum, F.3d that his arrest could raising the likelihood (same). injury or death. have ended serious therefore court was The district fact, vigorous' so his resistance was categorical employ the modified correct to unable to restrain the three officers were forth approach set had arrived. As backup him until units States, plea hearing, at the the state court noted (2005), analysis. guide its L.Ed.2d “fighting with Thompson plainly had been Harcum, 587 F.3d at Under See police officers on the street.” whether courts must decide approach, materials such as the Shepard-approved Thompson nevertheless relies document, plea agree “charging written you guilty of “I find court’s statement ment, any plea colloquy, transcript to con- assaulting ... Officer Geolamas” trial finding by factual explicit “only” of strik- tend that he was convicted assented” show defendant chest area with a ing police officer to com “necessarily admitted” But even if we confine cup liquid. Shepard, 544 mitting felony. a violent See to his interactions Thompson’s conduct 16, 125 S.Ct. 1254. U.S. Geolamas, guilty he is still with Officer did felony. violent Not B. Styrofoam cup liquid throw a Geola- fault with the dis We cannot find vigor- evening. Thompson mas that of the modified application trict cоurt’s attempt ously resisting Officer Geolamas’s case. To be categorical approach which, him, according to during arrest to only Shep gin, the trial court considered swung plea transcript, he his limbs reaching its documents in ard-approved sought “very radically” repeatedly to conclusion, “transcript namely the it a firearm. The fact that took secure plea colloquy.” See id. [Thompson’s] finally police more than three officers testament to the vio- Thompson can subdue is transcript portrays That what In conduct. felony.” Ac- lent nature of the assaultive described as a “violent be short, Court, on the occa- Thompson’s the term behavior cording Supreme offense involved “the predicate clause” of the sion of his “physical force” the “force is, use, use, attempted or threatened use force—that force ACCA means “violent or injury capable causing physical pain causing physical pain [force capable of injury person.]” to another 18 U.S.C. v. United person.” to another Johnson — Johnson, 1265, 1271, 924(e)(2)(B)(i); States, U.S.-, 130 S.Ct.

347 Relying err in approach. Shepard’s court not on instruc- The district did 1271. ma- that concluding Shepard-approved tion that should “tran- courts consider a in- Thompson’s here demonstrate terials colloquy script judge between and de- felony. in a violent volvement fendant in which the factual for the basis plea was confirmed the defendant” C. a guilty plea determine whether “necessar- facts, argues Thompson these To avoid ily amounting conduct vio- admitted” actually dur- never admitted them that he felony, lent we held that conviction result- on our colloquy. He relies ing plea his plea from an could not serve as Alford Alston, United States v. decision Alston, predicate. 611 F.3d at ACCA (4th Cir.2010), 219, 220-21 held F.3d omitted) Shepard, (quoting assault second-degree for that a conviction 1254). U.S. at S.Ct. Because as an Maryland law cannot serve under pleaded guilty ever Alston had without it of an when is the result predicate ACCA agreeing to the “truth of proffered that Thompson contends his plea. Alford facts,” could not find we under plea stems from an conviction Alford that he confirmed his had involvement personally he did not well because felony. violent Id. at 227-28. state- prosecution’s assent to the explicitly facts. ment of the Thompson’s plea could not dif- be more being rights, ferent. After informed of his Simply put, plea is Thompson’s attorney Thompson’s asked her client plea. An is an not an Alford Alford your plead whether “it is still intention to main in which a arrangement defendant answered, ‘Tes, guilty?” pleads guilty innocence but tains his Following of self-interest. See North Car ma’am.” prosecution’s reasons Alford, 25, 37, 91 facts, S.Ct. olina statement of asked then (1970). “distin 27 L.Ed.2d 162 Its counsel if Thompson’s “[a]ny she had addi- defendant guishing feature” is “that or corrections” to make tions to the record. under does confirm” the factual basis not “No, responded, She Your Honor.” Alston, plea, at 227 lying 611 F.3d his client, attorney then told her Savage, United States v. (quoting your “I spoken have behalf this morn- (2d Cir.2008)). purpose The ing. anything you’d ... there else like Is of facts in is not to statement this context “No, say?” Thompson replied, ma’am.” guilt merely but to ensure establish There no evidence in tran- the entire entered.” being intelligently “the plea [is] script any- intended to do See S.Ct. Alford than thing plead guilty day. other intentional, short, plea is an an Alford replete colloquy opportuni- with func specific action which serves a distinct law, ensuring challenge guilt, ties for him namely tion in the that of factual “protestations of inno that a defendant’s but of the sort еver Not nothing occurred. that not undermine confidence cence” do hearing once the his during protest did he requirement plea the that constitutional innocence, attempt to correct state- the intelligent has guilty voluntary of be and facts, signal or remotely ment of the even been satisfied. See id. at plea. interested in an that he was Alford S.Ct. 160. ordinary a perfectly We refuse to dress Alston, guilty plea garb in order to avoid of we clarified the role Alford arrangement categorical an plea modified ACCA enhancement. sent, spoke for her client. She speak and Thompson’s it was

The fact that confirmed, presence himself and in her client’s than the defendant lawyer rather to any corrections to make murmur of dissent no recorded who declined with analy our not alter client, factual record does the that she had no additions her Shepard discussed sure, plea To be sis. statement prosecution’s corrections for the factual basis “in which the colloquy Moreover, Thompson himself of the facts. defendant,” by the plea was confirmed plead intention to confirmed his both (emphasis add at 125 S.Ct. U.S. any corrections and refused to make guilty any reasonable ed), that we believe but speak. to another chance given when must include those words interpretation whole, proceedings plea as a the Taken notion lawyer as well. the defendant’s of the finding for the ample support afford rep nullifies all “defendant” that the term Thompson’s plea district court by his at the court made resentations of the vio an admission guilty constituted As the Su a realistic one. torney is not proffered observed, many in the sole “As lent conduct reflected preme Court sure, plea. to the conduсt for the To be pertaining factual basis decisions bound trial, is deemed described categorical approach the defendant modified New York v. lawyer-agent.” the acts of his Shepard cabins district court discretion Hill, 110, 115, extent, yet primacy if the of trial courts (2000) (internal quotation L.Ed.2d sentencing process envisioned omitted). marks the district court’s Gall is respected, to be Shepard- conclusions from a reasonable at the hear- Thompson’s lawyer was advise, upheld.* must be reason, repre- approved document namely to ing for a * question therefore is whether accept position The sole we cannot It follows that proper finding that made a district court simply Before us is friend in dissent. our degree Thompson’s assault conviction second question the district court of whether We with- a crime of violence. think was for properly the relevаnt concluded from court made that question out that the trial prior Thompson’s conviction documents sup- plea colloquy amply finding that the and qualifying predicate. In the course was a again, ports its conclusion. To summarize finding, the district making that we believe Thompson himself indicated that he wished rely on those facts court was entitled to pres- guilty, proffer his plead was read in plea colloquy it felt rele- circumstances in the ence, presence attorney in his confirmed state- include own vant. These corrections to she had no additions or guilty, plead that it was his intention to ment make, stated he had then proffer given by prosecution, the state- Thomp- nothing At no time did either to add. attorney that she had ment of the defendant's attorney dispute anything regard- son or his proffer, to that no additions or corrections despite ample opportu- рroffer the factual confirming that he Thompson's statement hearing nity junctures to do at various course, add, nothing and of had himself exception any point was taken so. No The dissent essential- comments of the court. anybody that the nature of the to the fact ly magnify this into a collateral con- seeks to violent, point of in- even to the assault was conviction, prior but it attack on a stitutional struggle volving Thompson’s intense to seize this the forum for that is not that nor is weapons. Guzman’s both his own and Officer acknowledges, inquiry. As the dissent notes, Shepard inqui- rightly As the dissent categorical approach not "a textu- modified ry one. Post at 352. As is not a "talismanic” right,” ally-rooted constitutional fundamental by Shepard's references to a vari- evidenced post practical tool for district but a ety judicial as well as to documents “ judges reliably was the na- to ascertain what 'comparable judicial of the factual record' - Holder, imposing prior Nijhawan plea,” offense without ture basis for the U.S.-, 2294, 2299, sentencing 174 L.Ed.2d the trial court’s undue burdens on 26, (2009) (quoting Shepard, 544 U.S. 22 function.

349 the basis for was con- plea IV. factual the defendant, the by or to some firmed reasons, affirm foregoing the we the For judicial comparable record of infor- judgment district court. mation. AFFIRMED 13, 26, 1254, U.S. S.Ct. (2005) added).1 L.Ed.2d 205 I DAVIS, concurring in Judge, Circuit highlighted refer to language the as “the and in part dissenting part: Shepard guarantee.” the portions majori- I in those of concur pristine Despite clarity Shepard’s the of opinion affirming the conviction and ty holding, majority gar- the concludes that Appellant Taylor. of With re- sentence agency principles den re- variety permit a however, I so much of spect, dissent from Thus, writing according of it. to the ma- majority opinion as affirms the sen- the jority, ignore Shepard’s it can admonition Appellant explain. of Thompson. tence the applying categorical modified v. Shepard United holding of guilty approach, plea transcript a must clearly than not be stated more how could “colloquy show a between and judge [the] Souter it: Justice stated and defendant” that “the factual [the] basis enquiry hold that under the ACCA for the plea [be] We confirmed the defen- Rather, guilty insists, of plea majority determine whether a to dant.” Shepard holding may burglary by nongeneric defined a statute be a revised to read: necessarily of the ge- guilty plea transcript admitted elements must show a “collo- quy judge offense is limited to the terms of and [the] neric between defen- [the] document, charging attorney],” the terms of a dant fac- [or his and that “the agreement of confirmed plea transcript colloquy plea tual basis for [must be] between and attorney].”2 the defendant his This [or defendant 1254), practice law purpose Maryland plainly S.Ct. the Court’s was not and are State, contrary. Bishop See 417 Md. provide invoke a litmus but to a sen- test (2010) (describing “hy- 1085-86 A.3d tencing court with the tools to do what sen- pleas” Maryland practice brid under criminal tencing every day a courts do sound —make explaining: a be- and "There is distinction proper sentencing and determination. This agreed tween an statement of facts and evi- the district court did. by way stipulation. dence offered of Under agreed of [the] statement facts both State Although entirety- of Justice Souter’s agree and the defense as to the ultimate joined only by opinion in three hand, facts.... On other when evidence justices, other Justice Thomas concurred by way stipulation, of no is offered there is portion quoted opinion of Justice Souter’s agreement to the as facts which the evidence See above. 544 U.S. at 125 S.Ct. 1254. stipulation Such a seeks to establish. goes testimony to the content of the us, Thompson cogently argues before 2. As particular appear witness if he were to apart question from the whether even State, Md.App. testify.”) (quoting Barnes lawyer's charged words to him and should be (1976)). 354 A.2d 505-06 Without binding judicial a treated as admission under question, ironically, Maryland Court categorical approach modified to the Appeals would never treat at- ACCA, regard lawyer’s it ‍‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​​​‌​​​‌​‌‌‌​​​​​‌‌​‌​​​​‌‌​‌‌‌‍stretch to torney’s that she had additions statement "no that there are “no additions or de- statement prosecutor's proffer or deletions” prosecutor’s proffer support to a letions’’ testify prosecutor’s how the witnesses would binding judicial guilty trial, as a admission go were the case forward to just potential the truth evidence binding judicial by Thompson re- admission generally evidentiary proffer See States v. garding summarized. truth of an Cir.2011). McMurray, guilty plea. basis for a Id. 653 F.3d 367 establish a factual himself.” come from the defendant is un- must guarantee the rewriting of unjustified. Eskridge, Fed.Appx. warranted United States Cir.2011). (10th Rather, is “[i]t concedes, in this government As the plea if factual basis for the is sufficient the conclusively that case, record shows the party even addressed another attor judge never summarized court the state —an seventeen-year-old then question or government, the defense or the ney for agreement or dis- regarding his Thompson court,” basis is long so as the the factual prosecutor’s the state with agreement Id. by the “then defendant.” confirmed (“After Br. at See Gov’t proffer. added); (emphasis cf. proffer, the factual completed prosecutor Fed.Appx. Cir. Wright, 166 counsel, ‘Any court asked the state defense 2006) (after proffer support prosecutor’s ”) or correсtions?’ add- additions to state bur plea of the defendant’s guilty ed).3 an never had Clearly, Thompson defendant, charge, judge asked glary question that the to answer opportunity District Attor “[y]ou heard the Assistant him. I can find no asked judge never they produce would ney state the evidence authority any Supreme Court evidence Do you go to trial. in this matter were none) (and cites majority opinion that evidence?” you dispute any portion of an permit Court intended Supreme and defense and defendant answered “no” the defen- than attorney’s say-so, rather “no” to sim attorney separately responded (as Shepard admission personal own dant’s for question, ilar held: factual basis “[T]he the maximum plain), up to ratchet makes solely prosecu plea did not rest under 18 U.S.C. a conviction sentence for Wright given op tor’s statement. years’ incarceration ten 922(g)(1) mandаtory dispute or together portunity with a to either confirm prison, to life years’ of 15 incarcera- basis, minimum sentence confirmed it. De factual and he tion. opportunity also had an fense counsel declined;” factual basis and dispute the mean, course, “that the not of

This does affirmed).4 plea colloquy ACCA enhancement relevant specific word Indeed., ("The opinion only implic- majority McMurray, 3. as the 653 F.3d at 380 See also acknowledges, Maj. Op. itly see required to determine state trial court was not 347, 347-48, Thomp- relating judge in proffered the state court of the state’s facts the truth degree accept- case never even before son’s second assault how the crime was committed plea invited him to McMurray’s plea guilty. asked for his best-interest plea guilty change guilty to a requirement his extant not factual-basis in Federal Rule short, Thompson actually pled plea; in never equivalent of Criminal Procedure 11 and the Rather, rules, guilty, occa- including viva voce. on several criminal-procedure Ten- state nessee, during plea colloquy; Thompson re- help sions designed to the trial is (in response questions his own iterated the defendant’s evaluate the voluntariness of plead J., attorney) "intention” to that it was dissenting) plea.”); (McKeague, id. at 387 rely guilty. Id. I not and do not on this need ("And basis was read at while factual however, omission, glaring because the tran- sentencing judge plea colloquy, the never guilty plea colloquy script Thompson's accept by asked the defendant to confirm or — satisfy Shepard insufficient to otherwise plea factual basis. or otherwise—that Alford the reasons discussed. read, merely The court had the factual basis asked, entering you a best and then later 'Are charge government's аrgument that guilty Contrary interest on that one McMurray waived his claim of aggravated re- has somehow assault?' to which ‘Yes, Therefore, application of as to the district court’s plied [sic] the state error sir.’ ACCA, agree majority McMurray 'necessarily' with the failed to establish that ”). genuine question as to felony.... panel that there is no pleaded guilty ato violent

351 by very majority personally case cited the dant must make an informed expansive agency theory, support its See, Zerbst, e.g., waiver. v. Johnson 304 Hill, 110, New York v. 528 U.S. 120 S.Ct. 458, 464-465, 1019, U.S. 58 S.Ct. 82 659, (2000), 145 L.Ed.2d 560 illustrates (1938) counsel); L.Ed. (right 1461 all what we well know: there exists Janis, 1, 7-8, Brookhart v. 384 U.S. 86 decisions, category recognized limited (1966) 1245, S.Ct. 16 (right L.Ed.2d 314 (as every system justice state’s of criminal plead guilty). not For other rights, system), well as in the federal that the law however, may waiver be by effected ac- long regarded, jealously, has as the defen- tion of counsel. “Although there are alone, personally, Specifi- dant’s make. rights basic attorney the cannot cally, passage from quoted Hill not fully waive without the informed and majority opinion, Justice Scalia care- publicly acknowledged consent of the fully explained as follows: client, lawyer has-and must have-full depends What suffices for waiver authority to manage the conduct of the right nature of the at issue. “[W]hether Illinois, trial.” Taylor 400, 484 U.S. participate the defendant must personal- 417-418, 108 S.Ct. 98 L.Ed.2d 798 waiver; inly proce- whether certain (1988). many As to pertaining decisions waiver; required dures are trial, to the conduct of the the defendant whether the defendant’s choice must be by is “deemed bound the acts of his particularly voluntary, informed or all lawyer-agent and depend right on is considered to at stake.” For have rights, facts, certain fundamental the defen- ‘notice of all notice of which can be properly preserved relying whether on facts neither inherent in the con appeal. Appellants’ by the issue on See Br. at viction (quot 10 nor admitted the defendant.” ("[T]he Alston))-, ing transcript guilty plea underly- see also United Flores- (5th ing Vasquez, Cir.2011) [Thompson's degree second assault con- 641 F.3d 672-73 ("[T]he wrongdoing mere fact that a viction] reveals no admission of defendant enters a (defense plea by Thompson.”); plea’ denominated as an Mr. J.A. at 593 does not 'Alford preclude sentencing asserting relying counsel court from "did not ACCA”); (defense upon proffer indepen of facts which qualify as J.A. at 601 defendant.”), that, dently by confirmed arguing cert. sentencing counsel at “[s]econd - — denied, -, U.S. degree assault itself is not a crime of -, L.Ed.2d No. 2011 WL rightly violence and has been so held and (U.S. 3, 2011). 4536495 Oct. But so.”) see United Toyer, Fed.Appx. States v. Cir. sure, Thompson argu- To be has dressed his 2011) (unpublished) (strictly limiting the hold garb ments before us of United States v. ing prior in Alston to convictions based on Alston, (4th Cir.2010) 611 F.3d 222-23 pleas). formal Alford (holding prior that a conviction based on an event, any a future en banc court plea support application does not Alford majority's will be able to reconcile the hold ACCA), many which was decided months holding and rationale in this case with the But, sentencing hearing. as the after holding and rationale in Alston. This is so because squarely in Alston is itself based Thompson's acts statements of plain language Shepard, specif- Alston's agent/lawyer indistinguishable in this case are ic reliance on the fact that the defendant in form or substance from the acts and state Alston, that case had tendered an is whol- agent/lawyer. ments Alston's See Alford ly inconsequential properly preserved ("Following proffer, F.3d Al ston, counsel, ACCAissue in this case. See United States v. through stipulated that Vann, (4th Cir.2011) (en State’s would have [that witnesses testified he banc) victims], ("Shepard prevents sentencing pointed handgun courts had at three but assessing prior agreed whether a prof conviction Alston never to the truth of the facts.”) added). predicate counts an ACCA conviction fered ” Hill, of the trial.” Thus, the conduct deci- attorney.’ upon charged 115, 120 S.Ct. ef- generally given by counsel are sions ..., pursue arguments as to what fect a decision miscalculation is grievous This ..., objections Rather, to raise evidentiary join. given the ex- that I cannot what traordinary consequences for the defen- conclude re- agreements and what dant, language plain I hold that the would Ab- of evidence. the admission garding light in of the guarantee, Shepard of the ineffectiveness, of a sent demonstration used Supreme the Court context which is the such matters word on counsel’s Shepard means that the language, last. a form of recognized аs guarantee is best Hill, 120 S.Ct. 659 528 U.S. which rises for a defendant protection omitted). (some citations attor- right[ that the ] the level of a “basic fully the in- ney cannot waive without existing Supreme Court At under least consent acknowledged publicly ‍‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​​​‌​​​‌​‌‌‌​​​​​‌‌​‌​​​​‌‌​‌‌‌‍formed and guarantee does Shepard the precedents, client.” Id. of the textually-rooted the level of a not rise to not intend that Supreme The Court did But see right. constitutional fundamental “Shepard-approved document” the term Thompson, 421 F.3d States v. To the con- talismanic. would become J.) (“It (4th Cir.2005) (Wilkinson, n. 3 in, and trary, it matters what is contained Shep- notice in escape the Court’s did not a by, revealed such document. When have might it announced ard that the rule is a tran- Shepard-approved document Still, implications.”).5 constitutional I believe script guilty plea colloquy, It majority’s profound. decision here is it it said when the Court meant what afforded assigns рrotection the waiver of colloquy “transcript a of [the] described require- guarantee, by in which the judge and defendant between judge have en- that the court ment state was confirmed factual basis for colloquy “with the defendant” gaged the Court Specifically, the defendant.” have confirmed that “the defendant” rely courts to has instructed lower federal (that could later lead dispositive facts admissions.” on “the own defendant’s doubling tripling quadrupling or or Shepard, 544 U.S. at S.Ct. added). incarceration), to the majority’s refusal (emphasis a federal sentence command is error.6 to to adhere to that “pertaining a mere decision category of sume, infer, course, because or deem a fact admitted Judge was allud- 5. Of what Wilkinson however, silent, to, Thompson, the defendant has remained part, in his discussion Amendment.”). contrary to the Sixth following pas- n. was the 421 F.3d at 282 sage opinion Shepard, Justice Souter’s from dissent, partial the ma- response In to this the wisdom of in which the Justice reiterated jority suggested that imme- in footnote Taylors categorical approach, refined in attorney diately Thompson's after told the Shepard: judge had “no additions state court that she make,” very “Thompson then anticipated the rule The Court thus corrections Maj. Op. at nothing to add.” imposed preserving the stated he had later for the sake of however, fact, added) any n. *. right, that fact other Sixth Amendment transcript guilty plea portion raise prior conviction sufficient to than plain- by majority proceedings referred to possible federal sentence the limit of the assuredly ly Thompson most did by jury, shows that found in the absence must be him attributed to any rights by not make statement waiver the defendant. (em- lawyer’s majority immediately after his Shepard, 125 S.Ct. 1254 Rather, Milаm, added). that the the record shows disclaimer. phasis United States Cf. Cir.2006) (“To proceeded to the sen- pre- court had state therefore, Respectfully, dissent America, UNITED judgment Ap- affirmance of the as to STATES Plaintiff-Appellant, Thompson. I would vacate

pellant his sen- for resentencing. tence and remand Timothy WEAVER,

Richard a/k/a Lucky; Moore, Elmer Luke a/k/a Tramp; Berryman, Bear; Kim H. a/k/a Lynn Knight, O; Steven Steve a/k/a Mitchell, Kegs; Brian Scott Mi a/k/a Phelps, AJ, chael Lee Defen a/k/a dants-Appellees.

No. 10-4885. United States Court of Appeals, Fourth Circuit.

Argued: Sept. that, tencing phase hearing of the and when MR. my McDANIEL: To the best of knowl- right edge, was invited to exercise his Your Honor. allocution, simply he declined. The tran- right. you THE COURT: All please Would script colloquy among judge, Now, submit it to right. the clerk. All (“Ms. attorney Shapiro”) defense and the you your would right advise client of his ("Mr. McDaniel”) proseсutor reads as follows allocution. immediately proffer: after the state’s MS. Thompson, SHAPIRO: Mr. is there anything you say that would like to to the Any THE COURT: additions or correc- judge? spoken your I have behalf this tions? morning. opportunity You have an No, MS. SHAPIRO: Your Honor. speak you'd you if like to or can remain THE COURT: Based on that statement of anything you’d silent. Is there else like to facts, Thompson, you guilty Mr. I find say? wear, carrying transporting and as- No, THE DEFENDANT: ma’am. saulting right. Officer Geolamas. All With right. THE COURT: All regards sentencing, Mr. McDaniel? J.A. at 639-40. Honor, MR. McDANIEL: Your State would respect contraiy I do my good views of submit on conversations at the bench. colleagues majority as to what the law Shapiro? THE COURT: Miss case; requires ‍‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​​​‌​​​‌​‌‌‌​​​​​‌‌​‌​​​​‌‌​‌‌‌‍in this our difference is one MS. SHAPIRO: I would submit as well. born of an earnest and studied effort all to Thompson, anything you Mr. is there apply faithfully. the law No less so than say judge— would like to (seen judicial hostility Well, quarters) in some says any- THE COURT: beforе he vagaries Supreme Court’s sentenc- thing, you prepared sentencing have ing jurisprudence sheet, under the Armed Career guideline Mr. McDaniel? Act, judicial Yes, disagreements Criminal over the MR. McDANIEL: Your Honor. appropriate interpretation application you THE COURT: And have shown it to principles the Court has Shapiro? enunciated are Miss end, entirely understandable. In the you MR. McDANIEL: Here are. Supreme provide Court itself can Shapiro, THE COURT: Miss clarifi- cor- urgently spirit, cation so needed. rect? In that I Yes, (who suggest MS. SHAPIRO: would Your Honor. counsel ably represented completely upon appoint- THE COURT: And filled out? his client Yes, court) MS. taxpayers SHAPIRO: Your Honor. ment save the a few Then, assume, forego THE customary petition COURT: Mr. McDan- dollars and iel, you correctly rehearing filled it out to the best of in this case and seek certiorari with- your knowledge? delay. out inordinate

Case Details

Case Name: United States v. Taylor

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 24, 2011

Citation: 659 F.3d 339

Docket Number: 09-5152, 10-4054

Court Abbreviation: 4th Cir.