United States v. Foster

674 F.3d 391

UNITED STATES of America, Plaintiff–Appellant,

v.John Joel FOSTER, a/k/a Jack Foster, Defendant–Appellee.

No. 10–5028.

United States Court of Appeals, Fourth Circuit.

March 5, 2012.As Amended March 8, 2012.

Timothy J. Heaphy, U.S. Attorney, Ashley Brooke Neese, Office of the United States Attorney, Roanoke, VA, Jean Barrett Hudson, Esq., Assistant U.S. Attorney Office of the United States Attorney, Charlottesville, VA, for Plaintiff–Appellant.

Nancy Combs Dickenson, Office of the Federal Public Defender, Abingdon, VA, Larry W. Shelton, Federal Public Defender, Office of the Federal Public Defender, Roanoke, VA, for Defendant–Appellee.

ORDER

Appellee has filed a petition for rehearing en banc. The government filed a response in opposition to the petition.

A member of the court requested a poll on the petition for rehearing en banc. Judge Motz, Judge King, Judge Gregory, Judge Davis, Judge Keenan, Judge Wynn, and Judge Floyd voted to grant rehearing en banc. Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge Shedd, Judge Duncan, Judge Agee, and Judge Diaz voted to deny rehearing en banc.

Because the poll on rehearing en banc failed to produce a majority of judges in active service in favor of rehearing en banc, the petition for rehearing en banc is denied. Judge Wilkinson filed an opinion concurring in the denial of rehearing en banc. Judge Motz filed an opinion dissenting from the denial of rehearing en banc, in which Judge King, Judge Gregory, Judge Davis, Judge Keenan and Judge Floyd joined. Judge Davis filed an opinion dissenting from the denial of rehearing en banc, in which Judge Gregory joined. Judge Wynn filed an opinion dissenting from the denial of rehearing en banc, in which Judge Gregory and Judge Davis joined.

Entered at the direction of Judge AGEE for the court.

WILKINSON, Circuit Judge, concurring in the denial of rehearing en banc:

I concur in the denial of rehearing en banc. Judge Agee has written a persuasive opinion for the court, and I add only these few thoughts in response to my dissenting friends and colleagues. I appreciate the sincerity of the dissenters' convictions, and I believe the vigorous discussion of our differences to be a mark of mutual respect.

This is hardly an atypical ACCA case. Foster's instant offense of conviction was being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He had previously been convicted three times for breaking and entering in violation of Va.Code § 18.2–90 (1992) (amended 2004).

As the panel majority explained, the question presented here is whether Foster's prior convictions for breaking and entering the “Corner Market” and “Sunrise–Sunset Restaurant” satisfy the generic definition of burglary and can thus serve as predicate offenses under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The Virginia statute can be violated in a variety of ways, including both burglary of an “office, shop, manufactured home, storehouse, warehouse, banking house, church as defined in § 18.2–127, or other house,” which would qualify as generic burglary, and breaking and entering a “ship, vessel or river craft or any railroad car,” which would not. Va.Code § 18.2–90.

State indictments are not structured with an eye to the ACCA, and had the charging documents here quoted the Virginia law, they still would not have used the magic words “building or structure” that would alone seem sufficient to satisfy the dissenters. One could say that of course the enumerated list of “office, shop, manufactured home, storehouse, warehouse, banking house, [or] church” refers to buildings or structures. But then it seems equally obvious that “Market” or “Restaurant” would as well, particularly since the Virginia law's listing is not exclusive, including as it does any “other house” as a qualifying building.

The panel majority carefully explained why burglary of the “Corner Market” and “Sunrise–Sunset Restaurant” must surely qualify as “unlawful or unprivileged entry into, or remaining in, a building or structure,” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), within the ambit of the ACCA. The dissenters disagree, however, concluding that breaking and entering the “Corner Market” or “Sunrise–Sunset Restaurant” might not satisfy Taylor because one of those establishments could in fact be something other than a building or structure, namely a non-generic “ship, vessel, or river craft or any railroad car,” Va.Code § 18.2–90.

In urging this unlikely possibility, the dissenters here charge the majority with grossly failing to abide by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). But the dissenters have missed the whole point of what the debate in Shepard was about. The Shepard Court held that the modified categorical inquiry under the ACCA could only be answered by reference to “the charging document, the terms of a plea agreement or transcript of colloquy, ... or to some comparable judicial record,” id. at 26, 125 S.Ct. 1254, and that a sentencing court may not “look to police reports or complaint applications,” id. at 16, 125 S.Ct. 1254.

The Court did not opine on the relative validity of a street address as proof of burglary of a building with anything near the specificity that the dissenters in this case suggest. The Supreme Court majority never discusses the facts that Judge Motz here presses, and the Shepard dissenters refer to them so briefly that only the most careful reader would catch the mention. The Shepard Court had other much bigger fish to fry, focusing its efforts solely on the question of the use of non-authoritative documents to satisfy the demanding ACCA inquiry. My esteemed colleague Judge Motz spends time speculating and hypothesizing why the Shepard Court decided what it did, but the fact remains that the Court decided what it did in fact decide. There was no discussion whatsoever of the point on which my dissenting friend now relies. No court has doubted what the decision stood for—it is where we get the term “ Shepard-approved documents” in the first place. And the panel majority here committed no Shepard error. It relied only on the charging documents that spelled out what places Foster has burglarized. It consulted no police reports, complaint applications, or other documents whose use Shepard both addressed and foreclosed.^*

That then leaves the dissenters in a difficult position. Unable to accuse the majority that it committed the Shepard error of consulting non-conclusive judicial documents, the dissenters are reduced to claiming that the majority must somehow have resorted to extrinsic evidence. By doing so, the dissenters contend that the majority has diminished the role of the district court and engaged in impermissible appellate fact finding.

Just like its earlier claim of inconsistency with Shepard, this accusation of impermissible appellate fact finding runs acropper. To begin with, classic trial court fact finding involves a selection of a likely or correct choice between two or more factual possibilities. In the land of Oz, I suppose there may be two or more ways to interpret the clear facts set forth in the Shepard-approved documents. On this side of the rainbow, however, the Corner Market and Sunrise–Sunset Restaurant are buildings and structures.

Fact finding also by its very name implies that a fact must be “found.” Here, there is no need to “find” anything. The fact has sought us out. It has relieved the need for findings because the names themselves announce the nature of the establishments, which are buildings and structures. A large and lamentable silence pervades all of the dissenting opinions. They are quick to heap opprobrium on the exercise of the obvious, but slow to suggest what the Corner Market and Sunrise–Sunset Restaurant might be other than buildings or structures.

Further, the classic indicia of trial court fact finding are absent. While my fine colleagues are correct to note the considerable deference accorded trial courts in the fact finding process, the things we normally associate with that process—and the superior vantage point the process affords district courts—are absent here. The trial court heard no witnesses and made no credibility findings. It examined no physical or forensic evidence. It engaged in no trial management function. Instead, the trial and appellate courts are on a parity and had before them the same judicially approved charging statements.

This sort of parity does not entitle us to discount the value of a trial judge's sound opinion. See United States v. Taylor, 659 F.3d 339, 347–48 (4th Cir.2011) (upholding a trial judge's determination or “finding” from a plea colloquy that a dangerous assault was indeed a crime of violence as defined by the ACCA). But the parity before us ordinarily suggests something more akin to de novo review. In such an instance, it hardly seems proper to chide the majority for using common sense akin almost to judicial notice. Even appellate judges are endowed with brains in the hope and expectation that they will be used to obvious purpose. We could of course fantasize that somewhere in the craggy highlands of Lee County there exists a floating barge by the name of Corner Market or a railroad car sweetly dubbed the Sunrise–Sunset Restaurant. But neither the Supreme Court nor Congress would either require or indeed approve of such a step.

In fact, the Court has not been afraid to inject an element of practicality in the ACCA when such has been required. This past June, the Court in Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), upheld the application of the ACCA based on what it frankly described as “the commonsense conclusion that Indiana's vehicular flight crime is a violent felony.” Id. at 2274. The dissent argues that comparing the Shepard inquiry and the “risk of physical injury” inquiry is like mixing...