PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4867

GAY SANFORD WASHINGTON,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CR-03-13)

Argued: October 26, 2004

Decided: April 15, 2005

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the

majority opinion, in which Judge Duncan concurred. Judge Luttig

wrote a dissenting opinion. 

COUNSEL

ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.

Joshua Clarke Hanks, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Charleston, West Virginia, for

Appellee. ON BRIEF: Mary Lou Newberger, Federal Public

Defender, Edward H. Weis, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Kasey Warner, United

States Attorney, Charleston, West Virginia, for Appellee. 

OPINION

KING, Circuit Judge: 

Gay Sanford Washington appeals from the sentence imposed upon

him in the Southern District of West Virginia after his plea of guilty

to a single offense of felonious possession of a firearm, in contravention of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Washington contends

that he was sentenced erroneously when the district court determined

that his prior conviction for breaking and entering constituted a

"crime of violence" under United States Sentencing Guidelines Manual §§ 2K2.1(a)(4) and 4B1.2(a)(2) (2003), and enhanced his sentence

accordingly. As explained below, we vacate Washington’s sentence

and remand for further proceedings consistent with United States v.

Booker, 125 S.Ct. 738 (2005), and Shepard v. United States, 125

S. Ct. 1254 (2005). 

I.

On April 1, 2003, Washington entered a plea of guilty to being a

felon in possession of a firearm. The applicable provision of the Sentencing Guidelines, § 2K2.1(a), provides for a base offense level of

14, and for an enhanced base offense level of 20 when the defendant

has been previously convicted of a "crime of violence." USSG

§ 2K2.1(a)(4). In 1996, Washington was convicted in Putnam County,

West Virginia, of the state law felony of breaking and entering. See

W. Va. Code § 61-3-12. Washington’s initial Presentence Report

("PSR") revealed that his prior conviction was for breaking and entering the offices of a drug and violent crime task force, and it characterized the offense as a "crime of violence." The probation officer

accordingly recommended that Washington’s offense level be fixed at

the enhanced level of 20. Washington objected, asserting to the probation officer that his prior offense was not a "crime of violence" under

the Guideline, or under our decision in United States v. Harrison, 58

F.3d 115 (4th Cir. 1995) (concluding that defendant’s burglary of

2 UNITED STATES v. WASHINGTON
commercial building was not crime of violence). The probation officer accepted the objection and revised Washington’s PSR accordingly, lowering his base offense level to 14. 

At Washington’s first sentencing hearing, on June 17, 2003, the

Government objected to the PSR as revised. In objecting, the Government relied on § 4B1.2(a)(2) of the Guidelines, which provides that

a "crime of violence" includes an offense which "is burglary of a

dwelling . . . or otherwise involves conduct that presents a serious

potential risk of physical injury to another."1 In support of this position, the Government contended that the circumstances of Washington’s prior offense, the breaking and entering of a drug and violent

crime task force, "otherwise involve[d] conduct that presents a serious

potential risk of physical injury to another," USSG § 4B1.2(a)(2),

bringing it within the Guideline definition. 

In conducting the hearing, the sentencing court posed a series of

pertinent questions to counsel on the crime of violence issue, including questions as to the specifics of Washington’s prior offense. It first

inquired as to the title, function, and location of the Task Force whose

offices were burglarized. In response, the Assistant United States

Attorney represented to the court:

Your Honor, I believe . . . that the building that was broken

into housed this particular Drug and Violent Crime Task

Force. In that particular building rests a great deal of potential for violence. Not only does it house evidence, narcotics,

weapons, it frequently has — I believe this particular office

has surveillance equipment, security alarms. It is frequently

1Application Note 1 of the Commentary to § 4B1.2 further explains

that a: 

"[c]rime of violence" includes . . . burglary of a dwelling. Other

offenses are included as "crimes of violence" if (A) that offense

has as an element the use, attempted use, or threatened use of

physical force against the person of another, or (B) the conduct

set forth (i.e., expressly charged) in the count of which the defendant was convicted . . . by its nature, presented a serious potential risk of physical injury to another. 

UNITED STATES v. WASHINGTON 3
manned at all hours of the day and night, although I don’t

believe it is routinely a 24-hour manned facility. 

I believe . . . that an individual who breaks into such an

office certainly creates this other type of potential for risk

of violent injury. . . . 

(J.A. 61). The court inquired further as to the specifics of the offense,

asking: "What else do you know about the circumstances of the

break-in?" and "[y]ou don’t know the hour of the break-in or the

day?" (J.A. 62). The court then continued the sentencing hearing to

a later date, directing the parties to brief both the issue of what material the court could consider in determining whether Washington’s

prior offense was a "crime of violence," and what specific conduct

was at issue in the prior offense.2 The court also advised, "the government has the burden of proof on the matter." 

On June 19, 2003, the Government filed a sentencing memorandum setting forth a variety of allegations regarding Washington’s

prior conviction. The memorandum advised that the crime was committed "[i]n the early morning hours of December 11, 1995," when

the "defendant along with two accomplices broke into the office of

the Midwestern Task Force by breaking a ground-level window." It

also related, inter alia, that Washington and his "two accomplices"

had stolen firearms and several varieties of drugs. The Government

attached the police report and criminal investigation report to its memorandum.3

2

In requesting briefing on the crime of violence issue, the court

advised counsel that, "if it is . . . appropriate . . . to look to the specifics

of the crime, then either by stipulation or by evidence, the government

needs to present the Court with the facts." 

3The Government’s sentencing memorandum failed to address the

issue of the information and sources on which the court could properly

rely. Washington’s brief urged the court, however, to consider only the

elements of the offense and the conduct "expressly charged in the count

of conviction." Washington contended that application of this rule

required the court to disregard all evidence of items stolen, particularly

drugs and guns, and the alleged existence of security alarms or police

patrols. 

4 UNITED STATES v. WASHINGTON
The factual background of Washington’s prior state conviction, as

spelled out in the prosecution’s sentencing memorandum, was not

contained in or suggested by the indictment itself, which merely

alleged in Count 1 that Washington "did unlawfully and feloniously

break and enter a building of the City of Hurricane . . . occupied by

the Midwestern Drug and Violent Crime Task Force with intent to . . .

steal" Task Force "goods and property."4 Likewise, the plea materials

of record in the state court proceeding provided no other details on

the breaking and entering conviction. 

At Washington’s final sentencing hearing on August 29, 2003, the

court applied the "crime of violence" enhancement and sentenced

accordingly. In so ruling, the court looked to the provisions of

§ 4B1.2(a)(2), specifying that a "crime of violence" includes a crime

that "involves conduct that presents a serious potential risk of physical injury to another," and to the accompanying Application Note.

Because the break-in underlying Washington’s prior conviction was

not of a dwelling, the court concluded that the earlier offense was not,

in the abstract, a crime of violence. The court then made a two-tiered

determination, characterized in the Statement of Reasons section of its

Judgment Order as "findings of fact and conclusions of law" made by

a "preponderance of the evidence." (J.A. 165) (emphasis added). It

ruled that the conduct "expressly charged" in the indictment warranted the conclusion that "breaking and entering of a governmentowned building to steal the goods and property of a drug and violent

crime task force is conduct that, by its nature, presents a serious

potential risk of physical injury to another." The court explained that

conclusion as follows:

Based on common experience, it is reasonable to expect that

quarters occupied by a drug and violent crime unit would

contain both drugs and guns that are protected from theft;

that, even if no one affiliated with the task force was present

at the time of a breaking and entering into its quarters, one

4Count 2 of the state court indictment alleged that Washington had

committed "Grand Larceny" in that he "did unlawfully and feloniously

steal . . . the property of the Midwestern Drug and Violent Crime Task

Force." Washington pleaded guilty to Count 1 of the indictment only,

charging him with breaking and entering, and Count 2 was dismissed. 

UNITED STATES v. WASHINGTON 5
or more members or employees of the task force may show

up there at any time of day or night in view of the oft-times

clandestine and nocturnal nature of their work; and such

persons would be armed. 

The act of breaking and entering such a facility is a reckless,

dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another.

(J.A. 166-67). Based on this assessment, the court fixed Washington’s

base offense level at the enhanced level of 20, applied a three-level

reduction for acceptance of responsibility, for a final offense level of

17, and sentenced Washington to thirty months of imprisonment. 

II.

Washington has appealed his sentence, maintaining that the district

court misapplied circuit precedent and the Guidelines in determining

that his prior breaking and entering offense constituted a crime of violence. On appeal, he also contends that his sentence violated the Sixth

Amendment, relying on Blakely v. Washington, 124 S. Ct. 2531

(2004). 

Because Washington did not raise his Blakely claim in the district

court, we review that contention for plain error only. See Fed. R.

Crim. P. 52(b) ("Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the

district court."). In order for Washington to prevail under Rule 52(b),

"there must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial

rights.’" United States v. Olano, 507 U.S. 725, 732 (1993). Moreover,

because "Rule 52(b) leaves the decision to correct the forfeited error

within the sound discretion of the court of appeals," we may exercise

our discretion to recognize plain error only when "the error seriously

affects the fairness, integrity or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted).

III.

This appeal presents the question of the scope of the "fact of a prior

conviction" exception to the Sixth Amendment protections outlined in

6 UNITED STATES v. WASHINGTON
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny,

including United States v. Booker, 125 S. Ct. 738 (2005). More specifically, it requires that we address the question of whether the Sixth

Amendment is offended when a sentencing court makes findings of

fact regarding the circumstances of a defendant’s prior conviction,

and then relies on such findings to reach the conclusion that the prior

conviction "otherwise involve[d] conduct that presents a serious

potential risk of physical injury to another," USSG § 4B1.2(a)(2), and

enhances the defendant’s sentence as a result. 

A.

Two important recent developments in Sixth Amendment jurisprudence guide our analysis of this case. First, in Booker, the Court held

that the Sixth Amendment is contravened when a sentencing court,

acting pursuant to the Guidelines, imposes a sentence greater than the

maximum authorized by facts, other than the fact of a prior conviction, admitted by the defendant or found by the jury alone. Booker,

125 S. Ct. at 750-51. Second, in Shepard, the Court recently

instructed that Sixth Amendment protections apply to "a disputed fact

. . . about a prior conviction." 125 S. Ct. at 1262 (emphasis added).

1.

As the Court’s line of decisions originating with Apprendi make

clear, the Sixth Amendment mandates that "any fact other than a

prior conviction sufficient to raise the limit of the possible federal

sentence must be found by a jury, in the absence of any waiver of

rights by the defendant." Shepard, 125 S. Ct. at 1262 (citing Jones v.

United States, 526 U.S. 227, 243 n.6 (1999)) (emphasis added). This

protection applies to the Sentencing Guidelines, which, though promulgated not by Congress itself but by the United States Sentencing

Commission, had until recently the force and effect of law, and thus

implicate the Sixth Amendment. Booker, 125 S. Ct. at 750. In order

to determine whether a Sixth Amendment error occurred in Washington’s sentencing, we look first to whether the sentencing court

imposed a "sentence exceeding the maximum allowed based only on

the facts found by the jury." United States v. Hughes, No. 03-4172,

2005 WL 628224, at *5 (4th Cir. Mar. 16, 2005). More specifically,

we must assess whether the sentencing court’s enhancement fits

UNITED STATES v. WASHINGTON 7
within the "fact of a prior conviction" exception of Apprendi and

Booker.

2.

The "fact of a prior conviction" exception specified in Apprendi

originated in Almendarez-Torres v. United States, 523 U.S. 224

(1998). In that case, the Court addressed the appeal of an alien who

had pleaded guilty to re-entering the United States illegally after his

deportation, in contravention of 8 U.S.C. § 1326. A subsection of that

statute authorized a sentence of up to twenty years for an alien who

illegally returned to this country after having previously been

deported following an aggravated felony. See 8 U.S.C. § 1326(b)(2).

The Court determined that the failure of the indictment to allege the

defendant’s prior aggravated felonies and the applicability of subsection (b)(2) neither contravened the Sixth Amendment nor implicated

due process concerns, because the statutory provision was simply a

penalty provision to be applied by a sentencing judge in a postconviction setting — i.e., it was not a separate offense. AlmendarezTorres, 523 U.S. at 233-36. 

In Apprendi, 530 U.S. at 490, the Court enunciated its holding that

"[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt."

Apprendi, 530 U.S. at 490. In explaining this rule, the Court in

Apprendi limited its ruling in Almendarez-Torres, pointing to two factors that distinguished Almendarez-Torres’s case: "the certainty that

procedural safeguards attached to any ‘fact’ of prior conviction" and

"the reality that Almendarez-Torres did not challenge the accuracy of

that fact in his case." Id. at 488. Together, these factors "mitigated the

due process and Sixth Amendment concerns otherwise implicated in

allowing a judge to determine a ‘fact’ increasing punishment beyond

the maximum of the statutory range." Id.

3.

In its recent Shepard decision, the Court addressed the application

of the prior conviction exception to a disputed fact "about a prior conviction." 125 S. Ct. at 1262 (emphasis added). Shepard, who was con8 UNITED STATES v. WASHINGTON
victed under 18 U.S.C. § 922(g), initially faced a maximum sentence,

under the Guidelines, of thirty-seven months; however, the Government sought to increase his sentence to the fifteen-year mandatory

minimum of § 924(e), which applies to felons with three prior drug

or violent felony convictions. Shepard had three prior burglary convictions, and the Government maintained that those burglaries constituted "violent felonies." Shepard, 125 S. Ct. at 1258. 

In making this contention, however, the Government ran afoul of

Taylor v. United States, 495 U.S. 575 (1990), where the Court had

earlier determined that a "violent felony," pursuant to 18 U.S.C.

§ 924(e), includes only the burglary of a structure or building

("generic burglary"), not other types of burglary, such as burglaries

of cars or vessels.5 The burglary statute of Massachusetts, where

Shepard’s three earlier convictions occurred, is broader than generic

burglary, and can also include burglary of a non-structure, such as a

car or vessel. Shepard’s indictment did not specify whether burglary

of a structure, i.e., generic burglary, was at issue in his convictions.

As a result, the First Circuit instructed the sentencing court to answer

this question by looking to the relevant complaint applications and

police reports. United States v. Shepard, 348 F.3d 308, 310-11 (1st

Cir. 2003), vacated by 125 S. Ct. 1254 (2005).6 The Supreme Court

granted certiorari and reversed the First Circuit. In so doing, the Court

reiterated its holding in Taylor that a sentencing court addressing

§ 924(e) cannot consider items from the record of a prior conviction

that were not conclusively validated in the earlier proceeding.

Shepard, 125 S. Ct. at 1260-61. 

An opinion authored by Justice Souter in Shepard and joined by

three other Justices (of the eight participating),7 characterized Tay5Section 924(e) of Title 18, in contrast to the Guideline at issue here,

USSG § 4B1.2(a), explicitly lists "burglary" as a "violent felony"

offense. 

6The complaint applications and police reports relating to Shepard’s

earlier offenses made clear that the crimes "were for entries into buildings and so constituted generic burglaries under Taylor." Shepard, 348

F.3d at 310. 

7The Chief Justice did not participate in the Shepard decision. Though

the Sixth Amendment portion of Shepard was rendered by a plurality

UNITED STATES v. WASHINGTON 9
lor’s statutory construction rule as of Sixth Amendment significance.

The plurality opinion first explained that a burglary conviction rendered in a generic burglary state inherently identifies the offense as

a "violent felony," and the "judicial finding of a disputed prior conviction is made on the authority of Almendarez-Torres." Shepard, 125

S. Ct. at 1262. However, when the definition of the prior crime itself

does not reveal whether the conviction was for generic burglary, as

Justice Souter explained, the "only certainty of a generic finding lies

in jury instructions, or bench trial findings and rulings, or (in a

pleaded case) in the defendant’s own admissions or accepted findings

of fact confirming the factual basis for a valid plea." Id.

A sentencing court’s consideration of materials beyond those documents identified by the Court, the Shepard plurality advised, "raises

the concern underlying Jones and Apprendi." Id. It deemed "debatable" which, if any, facts contained in such additional documents

were part of what the state court was "required to find" as a basis for

the earlier conviction. Id. If the sentencing court were to determine

which facts the state court was "required to find" as part of the judgment, the sentencing court would "make a disputed finding of fact

about what the defendant and state judge must have understood as the

factual basis of the prior plea." Id. Such a "disputed fact . . . about a

prior conviction" is "too far removed from the conclusive significance

of a prior judicial record, and too much like the findings subject to

Jones and Apprendi, to say that Almendarez-Torres clearly authorizes

a judge to resolve the dispute." Id. As a result, Justice Souter’s plurality opinion advised that the Court’s construction of § 924(e) is "necessary to avoid serious risks of unconstitutionality." Id. at 1263. 

Justice Thomas’s concurring opinion announced an even stronger

view: that a sentencing court’s reliance on items beyond the charging

papers in the earlier case would give rise not merely to constitutional

doubt, but to constitutional error. See Shepard, 125 S. Ct. at 1263-64

(Thomas, J., concurring in part and concurring in the judgment). A

majority of the Shepard Court thus agreed that any inquiry beyond

only, Justice Thomas filed a concurring opinion, announcing a view on

the application of the Sixth Amendment even stronger than that

expressed by the plurality opinion. Shepard, 125 S. Ct. at 1263-64

(Thomas, J., concurring in part and concurring in the judgment). 

10 UNITED STATES v. WASHINGTON
charging documents and the like, in the context of the application of

§ 924(e), at the very least raises "serious" constitutional "risks." 

B.

Washington’s case raises the issue of the scope and substance of

the Sixth Amendment "risks" identified in Shepard. The sentencing

court increased Washington’s sentence above that authorized by his

earlier guilty plea to the breaking and entering charge alone, and did

so based on its determination that Washington’s conviction was for

a "crime of violence," because it "otherwise involve[d] conduct that

presents a serious potential risk of physical injury to another." USSG

§ 4B1.2(a)(2). In making this determination, the sentencing court

relied on facts outside the indictment containing the prior breaking

and entering offense. As applied to Washington’s appeal, the

Apprendi line of decisions mandates the conclusion that this procedure involved more than the "fact of a prior conviction" exempted by

Apprendi from Sixth Amendment protection. Accordingly, as

explained below, Washington’s sentence was imposed in violation of

his Sixth Amendment rights.8

1.

The sentencing court relied on facts outside the indictment in concluding that Washington’s prior offense was a crime of violence.

Although the court began with the conduct expressly charged —

Count 1 of Washington’s earlier indictment — the court then found

additional facts about the building that was subjected to the break-in.9

These facts included what, from the court’s common experience, the

8As reflected herein, we need not reach Washington’s contention that

a burglary of a commercial structure does not, as a matter of law, constitute a "crime of violence" under the Guidelines. See United States v.

Harrison, 58 F.3d 115 (4th Cir. 1995). 

9The court’s characterization of its findings about the Task Force

office as derived from "common experience" does not make them any

less "facts." See Fed. R. Evid. 201 (allowing court to take judicial notice

of adjudicative "fact"); Ohio Bell Tel. Co. v. Pub. Util. Comm’n of Ohio,

301 U.S. 292, 301 (1937) ("notice, even when taken, has no other effect

than to relieve one of the parties to a controversy of the burden of resorting to the usual forms of evidence"). See also United States v. Lewis, 833

F.2d 1380, 1385 (9th Cir. 1987) ("a trial judge is prohibited from relying

on his personal experience to support the taking of judicial notice") (citing 9 J. Wigmore, Evidence in Trials at Common Law § 2569, at 723 (J.

Chabourn rev. ed. 1981)). 

UNITED STATES v. WASHINGTON 11
building’s likely contents were; the identity of any occupants; and the

probable level of security. These additional, hypothetical facts were

specific: e.g., that "drugs and guns" would be present on the premises;

that such items would be "protected from theft"; that, "even if no one

affiliated with the Task Force was present at the time" of the breakin, "one or more members or employees" could "show up there at any

time of day or night in view of the oft-times clandestine and nocturnal

nature of their work"; and that any such employee "would be armed."

While the court characterized these facts as arising from its common

experience, they echoed the extra-indictment information presented

by the Government.10

Significantly, the additional facts found and relied upon by the sentencing court were nowhere alleged in Washington’s state court

indictment. That indictment merely identified the building as one

occupied by the Midwestern Drug and Violent Crime Task Force.

Importantly, it did not reveal whether the Task Force office consists

of bureaucratic administrators or police officers, or the nature of property contained therein — e.g., computers and files or drugs and guns.

In these circumstances, the sentencing court relied on facts outside

of the prior indictment and resolved a disputed fact "about a prior

conviction," see Shepard, 125 S. Ct. at 1262 (emphasis added) —

namely, that the prior conviction was one which "otherwise

involve[d] conduct that presents a serious potential risk of physical

injury to another." USSG § 4B1.2(a)(2). These findings are "too far

10The Government had represented to the court that the building

housed "evidence, narcotics, weapons," that "I believe this particular

office has surveillance equipment, security alarms," and that the building

"is frequently manned at all hours of the day and night, although I don’t

believe it is routinely a 24-hour manned facility." (J.A. 61). These representations were part of a colloquy between the Government and the court

about the facts of Washington’s prior conviction, facts which were not

spelled out in the charging and plea documents for that offense. This

investigation by the court into the circumstances of Washington’s prior

offense, and its careful consideration of what the possible consequences

of those circumstances might be, was clearly attributable to its characteristic thoroughness. However judicious that inquiry may have been, however, in the post-Booker (and post-Shepard) world, it was beyond the

inquiry now permitted. 

12 UNITED STATES v. WASHINGTON
removed from the conclusive significance of a prior judicial record,"

and "too much like the findings subject to Jones and Apprendi," Shepard, 125 S. Ct. at 1262, "to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute," id. This process and its results

thus raise the very "risk" identified in Shepard, that Sixth Amendment

error occurred.

2.

The question before us concerns whether the "risk" identified by

the Court in Shepard was actually realized here — that is, whether the

sentencing court’s use of extra-indictment facts contravened Washington’s Sixth Amendment rights. And, as explained below, we are

constrained to conclude that it was. 

There is no question that the extra-indictment facts relied on by the

sentencing court, and its conclusion that Washington’s prior offense

constituted a "crime of violence," were not necessarily determined in

the earlier proceeding. Washington pleaded guilty to the breaking and

entering count of the prior indictment only, and no judicial determination was made that Washington had committed larceny — much less

what, if anything, was stolen from (and therefore contained in) the

building. Washington’s prior guilty plea in no way implicated the

level of the building’s security system, the nature of its employees

and their activities, or whether they at times return to work at night.

As a result, the foregoing aspects of the prior conviction, which were

relied upon by the sentencing court to enhance Washington’s base

offense level, were not part of what the state court was "required to

find" as part of Washington’s conviction. Shepard, 125 S. Ct. at 1262.

Furthermore, the special circumstances identified by the Court in

Almendarez-Torres are not present here. See Apprendi, 530 U.S. at

488 (noting that Almendarez-Torres admitted that his prior conviction

was for an "aggravated felony"). Washington contests both the additional facts relied upon by the sentencing court, and the court’s conclusion, based on those facts, that his prior conviction was a "crime

of violence" because it "otherwise involved conduct that presented a

serious risk of potential physical injury to another." Washington has

not waived this issue, Shepard, 125 S. Ct. at 1262, and the "procedural safeguards" concern of the Apprendi line of decisions thus have

UNITED STATES v. WASHINGTON 13
not been satisfied. See Apprendi, 530 U.S. at 488. As a result, the sentencing court’s reliance on extra-indictment facts in concluding that

Washington’s prior offense constituted a "crime of violence" resulted

in an enhancement to Washington’s sentence based on more than the

"fact of" his prior conviction. See Shepard, 125 S. Ct. at 1262-63. A

Sixth Amendment error thus occurred. 

C.

In conclusion, the sentencing court’s application of the crime of

violence enhancement of §§ 2K2.1(a)(4) and 4B1.2(a) of the Sentencing Guidelines in Washington’s sentencing proceedings was error

under Booker and Shepard. And, even though both those decisions

were rendered by the Supreme Court after Washington was sentenced,

the error was nonetheless "plain" at the time of our appellate review.

See Johnson v. United States, 520 U.S. 461, 468 (1997) (finding that

an error is plain "where the law at the time of trial was settled and

clearly contrary to the law at the time of appeal"). The sentencing

court’s application of § 2K2.1(a)(4) in Washington’s case resulted in

at least nine months of additional imprisonment for him. In these circumstances, "the sentence imposed by the district court as a result of

the Sixth Amendment violation was longer than that to which he

would otherwise be subject," Hughes, 2005 WL 628224, at *6 (quoting United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en

banc)), and the sentence contravened Washington’s substantial rights.

See Hughes, 2005 WL 628224, at *5-6; accord United States v.

Promise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (holding that

Apprendi error resulting in increased sentence affects defendant’s

substantial rights). Finally, consistent with Hughes, to leave standing

Washington’s sentence, which was at least nine months longer than

he could have received without the error, would place in jeopardy the

fairness, integrity, or public reputation of judicial proceedings.

Hughes, 2005 WL 628224, at *13; see also United States v. Washington, 398 F.3d 306, 312-13 (4th Cir. 2005) (recognizing error resulting

in five months extra imprisonment).

IV.

Pursuant to the foregoing, we vacate Washington’s sentence and

remand for such other and further proceedings as may be appropriate.

VACATED AND REMANDED

14 UNITED STATES v. WASHINGTON
LUTTIG, Circuit Judge, dissenting: 

Contrary to the majority’s conclusion, it is beyond question that the

district court determined that Washington’s prior conviction was a

crime of violence, based exclusively upon the facts presented in the

indictment underlying that prior conviction. Neither that crime of violence determination nor the indictment facts exclusively relied upon

by the district court are required to be found by a jury under Apprendi

v. New Jersey, 530 U.S. 466 (2000), and therefore Washington’s sentence is not infirm as a consequence of either the district court’s ultimate determination or its reliance upon the indictment’s facts. The

district court’s imposition of sentence pursuant to a mandatory guidelines regime, in contrast, was error under United States v. Booker, 125

S. Ct. 738 (2005). However, I would not notice that error here,

because Washington’s substantial rights were not affected by that

error, and because affirming Washington’s sentence would not "seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993).

Accordingly, I dissent.

I.

As the majority concedes, the "fact of a prior conviction" is

excepted from the Apprendi framework. Apprendi, 530 U.S. at 490

("Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.").

Apprendi’s prior conviction exception derives, at least in part, from

Almendarez-Torres v. United States, 523 U.S. 224 (1998), wherein

the Court held that prior convictions not included in AlmendarezTorres’ indictment could properly form the basis of an increase in his

sentence. Id. at 243 ("[T]he sentencing factor at issue here — recidivism — is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence."). The Apprendi court

explained that "[b]oth the certainty that procedural safeguards

attached to any ‘fact’ of prior conviction, and the reality that

Almendarez-Torres did not challenge the accuracy of that ‘fact’ in his

case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing

UNITED STATES v. WASHINGTON 15
punishment beyond the maximum of the statutory range." Apprendi,

530 U.S. at 488. 

The district court’s enhancement of Washington’s sentence plainly

fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court

relied upon for its determination that Washington’s prior conviction

was a crime of violence were those facts recited in the indictment

underlying that conviction. The district court explained that Application Note 1 to Section 4B1.2 instructs the sentencing court to examine

the "conduct set forth . . . that is expressly charged . . . in the count

in which the defendant was convicted." J.A. 120 (emphasis added).

Consistent with the court’s exclusive focus on the facts alleged in the

indictment, the district court noted that it was unconstrained by

United States v. Harrison, 58 F.3d 115 (4th Cir. 1995) because the

"Court there did not have need or occasion to consider the meaning

or application of the phrase, ‘conduct expressly charged.’" J.A. at 121

(emphasis added). The district court next explained, consistent with

circuit precedent holding that "in assessing whether a particular

offense satisfies the ‘otherwise clause’ of [§ 4B1.2(a)], a sentencing

court must confine its factual inquiry to those facts charged in the

indictment," United States v. Dickerson, 77 F.3d 774, 776 (4th Cir.

1996), that it would "look to the indictment itself . . . that is, the conduct expressly charged in the breaking and entering count of which

the defendant was convicted." J.A. at 122. It then proceeded to read

into the record the relevant portions of that indictment:

That Gay S. Washington, Jr., . . . did unlawfully and feloniously break and enter a building of the City of Hurricane,

a Municipal corporation, occupied by the Midwestern Drug

and Violent Crime Task Force, with intent the goods and

property of said Midwestern Drug and Violent Crime Task

Force . . . then and there to steal, take, and carry away. 

J.A. 80. 

After setting forth the proper legal standard governing the application of section 4B1.2(a) and recounting the specific contents of the

indictment, the district court concluded that Washington’s prior conviction was a crime of violence, reasoning as follows:

16 UNITED STATES v. WASHINGTON
By virtue of the conduct expressly charged in that indictment, the Court concludes that the breaking and entering of

a government-owned building to steal the goods and property of a drug and violent crime task force is conduct that,

by its nature, presents a serious potential risk of physical

injury to another.

Based on common experience, it is reasonable to expect that

quarters occupied by a drug and violent crime unit would

contain both drugs and guns that are protected from theft;

that, even if no one affiliated with the task force was present

at the time of a breaking and entering into its quarters, one

or more members or employees of the task force may show

up there at any time of day or night in view of the oft-times

clandestine and nocturnal nature of their work; and such

persons would be armed. 

The act of breaking and entering such a facility is a reckless,

dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another. 

J.A. 122-23 (emphasis added). 

The majority concludes that the district court’s determination is not

subject to Apprendi’s prior conviction exception because the district

court used its "common experience" to find facts beyond the scope of

Washington’s indictment that "echoed the extra-indictment information presented by the government," ante at 11-12, and because Washington "contests" the conclusion that his prior conviction "‘involve[d]

conduct that presented a serious potential risk of physical injury to

another.’" Ante at 13 (emphasis added). The record actually confirms

that the district court did not rely upon any extra-indictment facts.

And neither the fact that the court referenced "common experience"

nor the fact that Washington contests the court’s crime of violence

determination is sufficient to take the district court’s determination

outside the scope of Apprendi’s exception. 

The majority’s suggestion that the district court, sub silentio, relied

on extra-indictment information about Washington’s crime is simply

UNITED STATES v. WASHINGTON 17
mistaken. The district court was aware of extra-indictment facts; the

Government made certain representations pertaining to Washington’s

prior conviction during the June 17, 2003 hearing, J.A. 60-61, and it

also submitted, as an exhibit to its sentencing memorandum, a police

report describing Washington’s prior conviction. J.A. 76-79. But the

majority’s suggestion that the district court’s reference to its "common experience" merely masked its reliance on the Government’s

representations and the police report is nowhere supported in the

record. Indeed, at the conclusion of the June 17, 2003 hearing, where

the Government made representations about Washington’s prior conviction, the district court asked the parties for a "review of the authorities to determine whether or not the Court simply looks to the crime

as labeled or whether the Court looks to the crime as labeled coupled

with the indictment or information, . . . or whether the Court looks to

that as well as the specific circumstances of the particular case in

order to determine whether the otherwise clause of the sentencing

guideline is met." J.A. 65. And, as recounted above, at the August 29,

2003 hearing, where the district court imposed Washington’s sentence, it is plain that the district court was aware that the relevant

guideline application note required it to look only to the conduct

expressly charged in the indictment and that those facts contained in

the indictment were the sole factual bases for the imposed enhancement. The extra-indictment information referenced by the majority

was not even mentioned during this hearing and there is no evidence

whatever in the record to suggest the district court relied on that

information as the basis for the enhancement.*

Nor did the district court’s reference to "common experience" and

the conclusions drawn therefrom entail any factual findings subject to

the rule of Apprendi. Rather, such merely constituted the district

court’s legal analysis of whether the indictment underlying Washing-

*The majority notes that the district court rested its "crime of violence" determination on "findings of fact [and conclusions of law] . . .

made by a preponderance of the evidence." J.A. 165. But the district

court’s reference to "findings of fact" merely begs the question of

whether the district court found extra-indictment facts. And, the district

court plainly answered this question in the negative when it explained

that Washington’s prior crime was a crime of violence "[b]y virtue of the

conduct expressly charged in that indictment." J.A. 122. 

18 UNITED STATES v. WASHINGTON
ton’s prior offense described a crime that was likely to present a serious risk of physical injury to another. The district court’s decisional

process was no different than if it had determined that the carrying of

a gun during the course of a drug transaction constituted a crime of

violence because "common experience" informs that physical injury

is a foreseeable consequence of carrying a gun during such a transaction. Surely we would not hold that the court’s determination in such

context was an impermissible judicial finding of fact; no more so was

the district court’s determination in the present case impermissible.

The district court made no findings as to the likelihood of violence

in the specific context of the drug task force headquarters burglarized

by Washington; it only drew the legal conclusion that violence is

foreseeable when one burglarizes a building occupied by an organization such as a drug task force. 

Because the district court’s conclusion rested solely on the court’s

application of the definition in 4B1.2(a) to the facts expressly charged

in the indictment, without any extra-indictment factual findings, under

our circuit precedent the court’s application of the "otherwise" portion

of the definition of crime of violence to those facts resulted in a legal

— as opposed to factual — conclusion subject to de novo review on

appeal. See United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002)

(holding that "[t]he question" of whether a prior conviction is "an

offense, which, ‘by its nature, presents a serious potential risk of

physical injury to another’ . . . is a question of law that we review de

novo"); United States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996).

The majority also suggests that the "special circumstances identified by the Court in Almendarez-Torres are not present here," ante at

13, because Washington contests the conclusion that his prior conviction was a crime of violence, whereas Almendarez-Torres admitted

that his prior convictions were aggravated felonies. But just as

Almendarez-Torres did not dispute the facts relevant to the increase

in his sentence, so too has Washington admitted the facts relevant to

his enhancement. And this is all that matters. 

Washington’s prior conviction was an element, and thus included

in the indictment, of the instant felon-in-possession offense, to which

Washington pled guilty. J.A. 7; 46-49. Moreover, Washington does

not dispute the accuracy of the facts contained in the indictment perUNITED STATES v. WASHINGTON 19
taining to his prior conviction, J.A. 110, and, as established above, it

is clear that the district court did not rely on extra-indictment factual

findings. Therefore, Washington only challenges the district court’s

legal conclusion, namely whether breaking and entering a drug and

violent crime task force "presents a serious risk of physical injury to

another." U.S.S.G. § 4B1.2(a). Both features identified by Apprendi

as pertinent to the prior conviction exception exist in this case: Washington’s plea of guilty to the prior conviction was accompanied by

"procedural safeguards," and, in the instant proceedings, Washington

has admitted the fact of his prior conviction, inclusive of the facts

revealed in the indictment pertaining to that conviction. See Apprendi,

530 U.S. at 488. As a consequence, there was no Apprendi error whatsoever in this case. 

This determination is not altered by the plurality’s conclusion in

Shepard v. United States, 125 S. Ct. 1254 (2005). Contrary to the

majority’s suggestion, that case does not establish that Apprendi’s

prior conviction exception is per se inapplicable to disputes "about a

prior conviction." Id. at 1262. Rather, it merely establishes that such

disputes must be resolved by reference to "the charging document, the

terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this information."

Id. at 1263 (emphasis added). Here, consistent with this conclusion,

the district court relied exclusively on the charging document pertaining to Washington’s prior conviction. 

Because the district court’s application of the "otherwise" portion

of section 4B1.2(a) to the conduct charged in Washington’s prior

indictment was correct, I would affirm its judgment.

II.

While the district court’s imposition of a sentence enhancement did

not infringe Washington’s Sixth Amendment rights because the court

did not enhance Washington’s sentence on the basis of judiciallyfound facts, the district court’s treatment of the federal sentencing

guidelines as mandatory, and its imposition of Washington’s sentence

under the guidelines so understood, was error. See United States v.

Booker, 125 S. Ct. 738 (2005). 

20 UNITED STATES v. WASHINGTON
Because Washington did not challenge the propriety of a mandatory sentencing guidelines regime in the district court, our review is

under Federal Rule of Criminal Procedure 52(b) ("A plain error that

affects substantial rights may be considered even though it was not

brought to the court’s attention."). In order for Washington to prevail

under Rule 52(b), "there must be an ‘error’ that is ‘plain’ and that

‘affects substantial rights.’" United States v. Olano, 507 U.S. 725,

732 (1993). Because "Rule 52(b) leaves the decision to correct the

forfeited error within the sound discretion of the court of appeals," we

"should not exercise that discretion unless the error seriously affects

the fairness, integrity or public reputation of judicial proceedings." Id.

Proper application of Rule 52(b) depends upon an accurate understanding of the error committed which, in turn, requires an accurate

understanding of Booker. 

In Booker, the Supreme Court held that judicial factfinding that

results in an increase in an offender’s sentence under the "Guidelines

as written" — that is, the guidelines as "mandatory and binding on all

judges" — violates the Sixth Amendment. Booker, 125 S. Ct. at 750

(Stevens, J.). The Court’s remedy for this constitutional infirmity,

however, was not the abolition of judicial factfinding; rather, the

Court severed entirely "the provision of the federal sentencing statute

that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1)," id. at

756 (Breyer, J.). The effect of this severance was to render the Guidelines advisory in all cases, not merely those cases in which the trial

court impermissibly found facts in violation of the Sixth Amendment.

Indeed, the Court specifically rejected the Government’s proposal to

treat the guidelines as mandatory in cases in which there was no constitutionally impermissible judicial factfinding, on the grounds of the

Court’s conclusion that "Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others."

Id. at 768 (Breyer, J.); see also id. at 769 (Breyer, J.) ("[W]e must

apply today’s holdings — both the Sixth Amendment holding and our

remedial interpretation of the Sentencing Act — to all cases on direct

review."). 

Because of the constitutional violation identified in Booker and the

remedy ordered by the Court, Booker errors can take two forms. 

UNITED STATES v. WASHINGTON 21
First, it is error if the sentencing court (1) within a mandatory

guideline regime (2) found facts that resulted in an increase in the

offender’s sentence beyond that which would have been supported by

the jury’s findings. This error, which results in a violation of the Sixth

Amendment, is the type of error that occurred in Booker’s case. As

the Court explained, the district court’s error was that it "applied the

Guidelines as written and imposed a sentence higher than the maximum authorized solely by the jury’s verdict." Id. at 769 (Breyer, J.).

Justice Breyer’s reference to the "Guidelines as written" confirms that

the district court’s treatment of the Guidelines as mandatory was necessarily part of the error that occurred in Booker’s case. See Booker,

125 S. Ct. at 750 ("The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.") (emphasis

added). See also United States v. Gilchrist, 2005 WL 599745 (4th Cir.

March 8, 2005) (Luttig, J. concurring,) (concluding that United States

v. Hughes, 396 F.3d 374 (4th Cir. 2005) fundamentally misidentified

the foregoing Booker error "[b]y failing to recognize as error the district court’s imposition of sentence on the assumption that the Guidelines were mandatory"). 

Second, because the Court held that the remedy for impermissible

judicial factfinding in violation of the Sixth Amendment was the severance of the provision that made the Guidelines mandatory (rendering them in all cases advisory), it is also error if the sentencing court

merely imposed a sentence under the Guidelines "as written," that is,

as mandatory. This second type of error, which does not entail a violation of the Sixth Amendment because the district court did not find

facts impermissibly, is the type of error that occurred in Washington’s

(and Fanfan’s) case. 

While it is possible for a sentencing court to have erred under

Booker in either of these two respects, it must be understood that a

court will not have erred in either respect provided that it sentenced

the offender under the Guidelines as advisory only. And this even if

the court increased the offender’s sentence based upon facts beyond

those found by the jury. 

The district court in this case committed the second type of Booker

error, and this type only. It erred by applying the "Guidelines as written," that is, as mandatory. And, even though Booker was decided

22 UNITED STATES v. WASHINGTON
after the district court imposed Washington’s sentence, that error is

nonetheless deemed to have been "plain." See Johnson v. United

States, 520 U.S. 461, 468 (1997) (finding that an error is plain "where

the law at the time of trial was settled and clearly contrary to the law

at the time of appeal"). 

In order to prevail under Rule 52(b), Washington bears the burden

of establishing that the district court’s error affected his substantial

rights. See Olano, 507 U.S. at 734 ("It is the defendant rather than the

Government who bears the burden of persuasion with respect to prejudice."). An error affects substantial rights, when "the error actually

affected the outcome of the proceedings." United States v. Hastings,

134 F.3d 235, 240 (4th Cir. 1998) (emphasis added). In the context

of an error relating to the imposition of sentence, a defendant "must

establish that [the imposed] sentence was longer than that to which he

would otherwise be subject." United States v. Angle, 254 F.3d 514,

518 (4th Cir. 2001) (en banc). While the Supreme Court has variously

articulated the requirement that a different result would have been

likely or probable, see United States v. Dominguez Benitez, 124 S. Ct.

2333, 2342 (2004) (Scalia, J. concurring), it has recently suggested

that an offender can establish prejudice with a "showing of a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different." Id. at 2339 (internal quotations

omitted); see also United States v. Antonakopoulos, No. 03-1384,

2005 WL 407365, at *7-8 (1st Cir. 2005) (adopting the Dominguez

Benitez "reasonable probability" standard for Booker claims). 

As previously established, the district court erred when it imposed

Washington’s sentence pursuant to a mandatory sentencing guidelines

regime, i.e., when it failed to treat the Guidelines as advisory. Thus,

whether Washington’s substantial rights were affected depends upon

whether he can establish a reasonable probability that he would have

received a lower sentence had the district court imposed that sentence

pursuant to the advisory framework required by Booker. 

Washington, however, has not claimed that he would have received

a lower sentence under that framework and neither would the record

support such a conclusion. Although the district court elected to sentence Washington at the bottom of the guideline range, it did not suggest that it was dissatisfied with this sentence. Indeed, the court noted

UNITED STATES v. WASHINGTON 23
that Washington had been "involved . . . in a number of criminal matters." J.A. 126. Thus, even assuming it were possible under a different

set of facts, under these facts Washington cannot possibly establish

that the error affected his substantial rights. Jones v. United States,

527 U.S. 373, 390 (1999) ("Where the effect of an alleged error is . . .

uncertain, a defendant cannot meet his burden of showing that the

error actually affected his substantial rights."). 

Even if Washington could establish that the error here affected his

substantial rights, I would not, and we should not, notice that error.

The Supreme Court has admonished that we should only notice "particularly egregious errors . . . that seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v.

Young, 470 U.S. 1, 15 (1985). This is not such an error. Because there

was no impermissible judicial factfinding, Washington’s Sixth

Amendment rights have not been infringed, and as such he is merely

a collateral beneficiary of the remedy imposed by the Court in

Booker. Moreover, Washington’s sentence is in accordance with the

Sentencing Guidelines and therefore presumptively reasonable. 

The error here, in other words, is neither "particularly egregious"

nor is it likely to undermine the "fairness, integrity or public reputation of judicial proceedings." Therefore, consistent with Justice

Breyer’s opinion for the Court in Booker, I would decline to notice

the error here. Booker, 125 S. Ct. at 769 ("Nor do we believe that

every appeal will lead to a new sentencing hearing. That is because

we expect reviewing courts to apply ordinary prudential doctrines,

determining, for example, whether the issue was raised below and

whether it fails the ‘plain error’ test."). 

III.

Because Washington’s sentence was imposed consistent with the

requirements of the Sixth Amendment and because he is not entitled

to relief under Rule 52(b), I would affirm Washington’s sentence. I

therefore dissent.

24 UNITED STATES v. WASHINGTON