PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-6301

WILLIAM THOMAS DAVIS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Senior District Judge.

(5:08-cr-00021-FPS-JSK-1)

Argued: March 23, 2012

Decided: July 23, 2012

Before DAVIS and DIAZ, Circuit Judges, and

Jackson L. KISER, Senior United States District Judge for

the Western District of Virginia, sitting by designation.

Affirmed by published per curiam opinion. Senior Judge

Kiser wrote a separate concurring opinion.

COUNSEL

ARGUED: Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia, for Appellant. David J. Perri, OFFICE

OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld, II,

United States Attorney, Wheeling, West Virginia, for Appellee.

OPINION

PER CURIAM:

William Davis pleaded guilty to possession of a firearm by

a convicted felon and received a fifteen-year mandatoryminimum sentence under the Armed Career Criminal Act

("ACCA"). Both in his plea agreement and at his plea hearing,

Davis was advised incorrectly that he faced a maximum sentence of only ten years. Davis contends that this error constitutes a breach of his plea agreement and asks us to order that

he receive the ten-year sentence described incorrectly as his

statutory maximum. Davis also challenges the district court’s

conclusion that he qualified for the ACCA sentence enhancement. In response, the government seeks to enforce the appeal

waiver found in Davis’s plea agreement.

We hold that the failure to properly advise Davis of his

statutory maximum sentence was not a breach by the government. Under these circumstances, however, we are unable to

conclude that Davis knowingly and intelligently waived the

right to appeal his fifteen-year sentence. We therefore decline

to enforce Davis’s appeal waiver and proceed to consider his

alleged sentencing errors. Finding no merit in those claims,

we affirm.

I.

William Davis was charged in a one-count information

with unlawful possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). The information listed

three prior state-court felony convictions. Davis entered into

2 UNITED STATES v. DAVIS
a written plea agreement with the government in which he

agreed to plead guilty to the one-count information. Davis

also waived the right to appeal his sentence or to challenge it

in a collateral attack. In exchange, the government agreed to

(1) concur in a recommendation by the probation office

regarding a reduction for acceptance of responsibility, (2) recommend an additional one-level reduction if Davis provided

timely information regarding his own and others’ involvement

in the offense, and (3) recommend a sentence at the low end

of the applicable guidelines range. J.A. 57.

Davis’s plea agreement, however, misstated his maximum

statutory sentence. Under the ACCA, a defendant who violates § 922(g) and has three prior convictions for a violent felony or serious drug offense is classified as an armed career

criminal and faces a fifteen-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). Davis’s plea agreement failed to

advise him of the potential ACCA sentence enhancement he

would face if the court designated him an armed career criminal. Instead, the agreement stated that "[t]he maximum penalty to which the defendant will be exposed by virtue of his

plea of guilty . . . [is] imprisonment for a period of (10) ten

years." J.A. 56. 

Despite misstating Davis’s statutory maximum, the plea

agreement advised that the district court had the final say

regarding his sentence. The government also expressly disclaimed any "representations whatsoever . . . as to what the

final disposition in this matter should and will be." Id. 57.

And after summarizing the government’s obligations, the

agreement advised that "the Court is not bound by these sentence recommendations, and that the defendant has no right to

withdraw a guilty plea if the Court does not follow the sentencing recommendations." Id.

The mistake in the plea agreement was compounded during

the plea hearing, where the government and the court misadvised Davis regarding his potential maximum term of imprisUNITED STATES v. DAVIS 3
onment. First, while summarizing the terms of the plea

agreement, the government again told Davis that the maximum term of imprisonment was ten years. Next, after explaining the elements of the § 922(g) charge, the court stated that

"[t]he maximum sentence to which you would be exposed by

statute in this matter would be not more than 10 years incarceration." Id. 32. The court specifically asked Davis, "And do

you understand that on the individual, one-count information,

you cannot in any event receive a greater sentence than the

statutory maximum that I have just explained to you?" Id. 34.

Davis responded that he understood.

Later in the hearing, the court advised Davis that his prior

criminal history could potentially affect his sentence. Davis

acknowledged that the court was unable to determine his

exact sentence until it received the presentence report and that

his sentence might be enhanced based on his criminal history.

At the conclusion of the hearing, the court accepted Davis’s

guilty plea, concluding that he was competent, that he was

pleading guilty freely and voluntarily, and that the plea was

supported by a factual basis.

In the presentence report, the probation officer recommended that the court sentence Davis as an armed career

criminal. The report indicated that Davis had prior convictions for three violent felony offenses and therefore qualified

as an armed career criminal under the ACCA. The convictions

included the three offenses listed in the information—a February 1993 burglary conviction in West Virginia, a July 1993

aggravated burglary conviction in Ohio, and March 2000 convictions for attempted breaking and entering and conspiracy

to commit breaking and entering in West Virginia. Applying

the ACCA sentence enhancement, the presentence report concluded that the minimum and maximum term of imprisonment

Davis faced was fifteen years to life in prison.

At sentencing, Davis raised three objections to the presentence report’s conclusion that he qualified as an armed career

4 UNITED STATES v. DAVIS
criminal. First, Davis contended that the convictions were not

separate offenses but instead were part of the same course of

conduct. Second, he argued that the record contained insufficient proof of the prior convictions. Finally, Davis maintained

that the 2000 West Virginia breaking and entering convictions

did not constitute a violent felony under the ACCA. Notably,

Davis did not contend that the government breached the plea

agreement or that he had been misadvised regarding the statutory maximum sentence.

The district court overruled Davis’s objections and designated him an armed career criminal. With respect to Davis’s

contention that the West Virginia breaking and entering convictions should not have been counted under the ACCA, the

court examined the state-court indictment and concluded that

the convictions satisfied the generic elements of burglary.

Accordingly, the court concluded that Davis was "subject to

an enhanced sentence under the provisions of 18 United

States Code, Section 924(e)." Id. 87. The court determined

that Davis’s advisory guidelines range was 168 to 210 months

in prison. But because Davis was an armed career criminal,

the court imposed a sentence of 180 months, consistent with

the fifteen-year statutory minimum under the ACCA.

Nearly nine months after sentencing, Davis filed a pro se

petition under 28 U.S.C. § 2255 challenging his sentence.

Davis argued that he received ineffective assistance of counsel based, in part, on his lawyer’s failure to abide by his

request to file a direct appeal.1 Davis’s attorney had recently

died and so was unable to respond to Davis’s assertion. Based

on the "unusual circumstances," the court granted Davis’s

1A defendant cannot waive "his right to appeal his sentence on the

ground that the proceedings following entry of the guilty plea were conducted in violation of his Sixth Amendment right to counsel." United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal quotation

marks omitted). Accordingly, Davis’s petition asserting ineffective assistance of counsel was not barred by the appeal waiver. 

UNITED STATES v. DAVIS 5
petition in part and allowed him fourteen days to appeal his

sentence. Id. 209.

Davis raises two primary arguments on appeal. First, he

contends that the government breached the plea agreement

and deprived him of the benefit of his bargain. Second, he

challenges the district court’s conclusion that he qualified as

an armed career criminal. We address each claim in turn.

II.

Davis contends that the government breached the plea

agreement by failing to adhere to its promise of a ten-year

prison sentence. As a remedy for the breach, he asks us to

vacate his sentence and remand with instructions that the district court impose a ten-year term of imprisonment. Because

Davis raises this issue for the first time on appeal, our review

is for plain error. See United States v. McQueen, 108 F.3d 64,

65–66 (4th Cir. 1997). Finding no error, plain or otherwise,

we reject Davis’s claim.

A plea agreement is "essentially a contract between an

accused and the government" and is therefore subject to interpretation under the principles of contract law. United States

v. Lewis, 633 F.3d 262, 269 (4th Cir. 2011). As such, "[i]t is

elementary that, ‘when a plea rests in any significant degree

on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such promise must be fulfilled.’ " Id. (quoting Santobello v. New York,

404 U.S. 257, 262 (1971)). And while "each party should

receive the benefit of its bargain," the government is bound

only by the promises it actually made to induce the defendant’s plea. United States v. Dawson, 587 F.3d 640, 645 (4th

Cir. 2009) (internal quotation marks omitted).

Davis’s claim for breach fails insofar as he seeks the benefit of a promise that the government never made. In the plea

agreement, the government agreed to make a series of "non6 UNITED STATES v. DAVIS
binding recommendations" but did not promise a particular

sentence. J.A. 57. In fact, the agreement explicitly states that

the government has made "no representations" regarding the

final disposition and that the final decision regarding Davis’s

sentence belonged to the court. Id. Although the plea agreement admittedly misstates the applicable statutory maximum

sentence, at no point did the government guarantee Davis a

ten-year term of imprisonment. Accordingly, Davis is unable

to point to a promise that the government breached.

Even if the government had made and subsequently

breached a promise for a particular sentence, Davis is nevertheless not entitled to the "specific performance" he now

seeks. The ACCA mandates a fifteen-year sentence for any

defendant who qualifies as an armed career criminal. Having

concluded that Davis was subject to the ACCA enhancement,

the district court could not have imposed a sentence that contravened the applicable statute. See United States v. Robinson,

404 F.3d 850, 862 (4th Cir. 2005) ("[A] district court has no

discretion to impose a sentence outside of the statutory range

established by Congress for the offense of conviction.").

Thus, even if the government’s conduct amounted to a

breach—which it did not—we have no authority to order the

district court to impose an unlawful sentence. Accordingly,

Davis’s claim fails.

Despite recognizing that the plea agreement did not explicitly guarantee Davis a particular sentence, our concurring colleague concludes that such a promise exists based on the

government’s failure to correct the district court’s misstatement of the statutory mandatory minimum sentence at the

Rule 11 hearing. The concurring opinion reasons that the plea

agreement was therefore effectively modified or alternatively

that there was an ambiguity created that should be construed

against the government. Post at 18–19. The fact remains,

however, that the plea agreement unambiguously stated,

"There have been no representations whatsoever by any agent

or employee of the United States, or any other law enforceUNITED STATES v. DAVIS 7
ment agency, as to what the final disposition in this matter

should and will be." J.A. 57. Nothing that transpired at the

Rule 11 hearing altered this unambiguous language to create

a promise where one did not otherwise exist.

Furthermore, even if the government had made such a

promise, the district court would have been compelled to

reject the agreement because the government cannot obligate

the court to impose a sentence that contravenes the statute.

See Robinson, 404 F.3d at 862. Contrary to the concurring

opinion’s assertion, our conclusion does not "invite[ ] great

uncertainty," post at 19, but instead is entirely consistent with

decisions of our sister circuits, who have declined to recognize a breach under similar circumstances. E.g., United States

v. Williams, 198 F.3d 988, 992–93 (7th Cir. 1999) (holding in

a case in which the plea agreement misstated the statutory

maximum sentence under the ACCA that "the paragraph of

the Agreement referencing a maximum sentence of ten years

was merely a recitation of a mistake of fact . . . and not part

of the promise agreed to by the government"); see also United

States v. Coblentz, 274 Fed. App’x 651, 653–54 (10th Cir.

2008) (unpublished) (affirming the imposition of a fifteenyear mandatory minimum sentence under the ACCA even

though the plea agreement erroneously stated that the defendant faced a ten-year statutory maximum sentence).

III.

We next turn to Davis’s contention that the district court

erred in designating him an armed career criminal. In

response, the government asserts that Davis’s challenge is

barred by the appeal waiver contained in his plea agreement.

We first examine the validity of the waiver before turning to

the merits of Davis’s challenge to his ACCA sentence.

A.

A defendant may waive the right to appeal his conviction

and sentence so long as the waiver is knowing and voluntary.

8 UNITED STATES v. DAVIS
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). We

review the issue of whether a defendant effectively waived his

right to appeal de novo, and will enforce the waiver if it is

valid and the issue appealed is within the scope of the waiver.

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An

appeal waiver contained in a plea agreement is valid if the

defendant "knowingly and intelligently agreed to waive the

right to appeal." Id. at 169. Although the validity of an appeal

waiver often depends on the adequacy of the plea colloquy,

"the issue ultimately is evaluated by reference to the totality

of the circumstances." Id. (internal quotation marks omitted).

We hold that the waiver in Davis’s plea agreement is

invalid because he did not knowingly waive the right to

appeal the sentence ultimately imposed. The agreement states

that Davis "waives the right to appeal his sentence within the

maximum provided in the statute of conviction." J.A. 59.

Prior to his plea, however, Davis was misadvised repeatedly

regarding the actual applicable statutory maximum sentence.

The plea agreement states that "[t]he maximum penalty to

which defendant will be exposed by virtue of his plea of

guilty . . . [is] imprisonment for a period of (10) ten years."

Id. 56. And at Davis’s Rule 11 hearing, the government and

the court compounded the mistake by repeating this same

advice. 

Under these circumstances, we cannot say that Davis

"knowingly and intelligently" waived appellate review of the

fifteen-year sentence imposed by the court. See Blick, 408

F.3d at 169. To the contrary, when Davis agreed to waive his

right to appeal, from his perspective, all indications were that

he faced at most a ten-year term of imprisonment. The failure

to account for the ACCA sentence enhancement rendered

Davis’s assent to the appeal waiver unknowing. Accordingly,

we proceed to consider his alleged sentencing errors.

B.

In reviewing the district court’s determination that Davis is

an armed career criminal, we review factual findings for clear

UNITED STATES v. DAVIS 9
error and legal conclusions de novo. United States v. Rivers,

595 F.3d 558, 560–61 (4th Cir. 2010). The ACCA sentence

enhancement applies to defendants who violate § 922(g) and

have three previous convictions for "serious drug offense[s]"

or "violent felon[ies]." 18 U.S.C. § 924(e)(1).

In support of its determination that Davis was an armed

career criminal, the district court concluded that Davis had

previously committed three violent felonies based on his

state-court convictions for burglary and attempted breaking

and entering. Davis challenges that conclusion on two

grounds. He first contends that the district court erred in classifying his 2000 West Virginia convictions for attempted

breaking and entering and conspiracy to commit breaking and

entering as a violent felony. He next argues that his 1993 burglary convictions in West Virginia and Ohio should be treated

as a single predicate offense. Finding these claims to be meritless, we affirm.

1.

The district court held that Davis’s 2000 West Virginia

convictions for attempted breaking and entering and conspiracy to commit breaking and entering constituted generic burglary and therefore counted as a predicate offense under the

ACCA.2 Davis disagrees, contending that the convictions

were not violent felonies. Because Davis was convicted of

attempted breaking and entering, the district court’s conclusion that Davis’s crime qualified as generic burglary was

wrong. We find that the error was harmless, however, because

the conviction satisfies the ACCA definition of violent felony

even when considering that Davis was convicted of an

attempt.

2The attempt and conspiracy convictions stemmed from the same criminal transaction. The district court therefore correctly counted them as a

single predicate offense. See 18 U.S.C. § 924(e)(1) (explaining that

offenses must be "committed on occasions different from one another").

10 UNITED STATES v. DAVIS
For purposes of the ACCA sentence enhancement, Congress defined "violent felony" to include several discrete

crimes, including burglary, as well as any crime that "involves

conduct that presents a serious potential risk of physical

injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Rather than

leave the definition of the discrete crimes to the variances of

state law, the Supreme Court has held that they "must have

some uniform definition" based on the generic elements of the

offense. Taylor v. United States, 495 U.S. 575, 590–92

(1990). In Taylor, the Supreme Court clarified the elements of

generic burglary, holding as follows:

[A] person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted

of any crime, regardless of its exact definition or

label, having the basic elements of unlawful or

unprivileged entry into, or remaining in, a building

or structure, with intent to commit a crime.

Id. at 599.

In determining whether a prior conviction qualifies as an

ACCA predicate, courts first follow a categorical approach

that "generally requires the trial court to look only to the fact

of conviction and the statutory definition of the prior offense."

Id. at 602. When a statute proscribes different categories of

crimes, however, "such that it can be construed to enumerate

separate crimes," courts may employ a modified categorical

approach. Rivers, 595 F.3d at 563.

In Shepard v. United States, 544 U.S. 13, 16 (2005), the

Court clarified that under the modified categorical approach,

courts may examine other materials such as the "charging

document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the

defendant assented." Looking to these Shepard-approved documents, courts determine whether a defendant necessarily

UNITED STATES v. DAVIS 11
admitted the elements of the generic offense by pleading

guilty to a nongeneric state statute. Id. at 26.

Under the categorical approach, it is unclear whether breaking and entering under the West Virginia statute satisfies the

elements of generic burglary. The applicable statute provides

as follows: 

If any person shall, at any time, break and enter, or

shall enter without breaking, any office, shop, underground coal mine, storehouse, warehouse, banking

house or any house or building, other than a dwelling

house or outhouse adjoining thereto or occupied

therewith, any railroad or traction car, propelled by

steam, electricity or otherwise, any steamboat or

other boat or vessel, or any commercial, industrial or

public utility property enclosed by a fence, wall or

other structure erected with the intent of the property

owner of protecting or securing the area within and

its contents from unauthorized persons, within the

jurisdiction of any county in this state, with intent to

commit a felony or any larceny, he or she shall be

deemed guilty of a felony and, upon conviction, shall

be confined in a state correctional facility not less

than one nor more than ten years.

W. Va. Code Ann. § 61-3-12. Because the statute criminalizes

the entry of places other than "a building or structure" with

the intent to commit a felony therein, see Taylor, 495 U.S. at

599, a conviction under the West Virginia statute does not

necessarily constitute generic burglary. See United States v.

Foster, 662 F.3d 291, 293 (4th Cir. 2011) (concluding that the

Virginia breaking and entering statute was "broader than

‘generic burglary’ " and therefore resorting to a review of

Shepard-approved documents).

We therefore turn to the modified categorical approach to

determine whether Davis’s convictions involved a violent fel12 UNITED STATES v. DAVIS
ony. Based on its review of the state-court indictment—a

Shepard-approved document—the district court, in determining the place entered, concluded as follows: 

[W]e are not speaking about a railroad car or a vehicle or something not a building or structure that

might be contained in the West Virginia statute, we

are simply talking about . . . the Temple Shalom

church building of which specifically the defendant

was charged and entered a plea. And the indictment

illustrates the building and charges with intent to

commit a felony therein.

J.A. 85. The court then held that Davis’s convictions were for

generic burglary. Because Davis was convicted of attempted

breaking and entering, however, the inquiry does not end

here. 

Davis’s conviction is not for a completed breaking and

entering, and so we must consider whether his specific conduct satisfies the generic definition of burglary. More specifically, the relevant question is whether the additional attempt

element removes the crime from the definition of generic burglary. See James v. United States, 550 U.S. 192, 197 (2007)

(finding that attempted burglary under Florida law is not

generic burglary for purposes of the ACCA because it

requires the additional element "that the defendant ‘fai[l] in

the perpetration or [be] intercepted or prevented in the execution’ of the underlying offense" (citing Fla. Stat.

§ 777.04(1))). 

West Virginia has not adopted an attempt statute specifically applicable to breaking and entering; therefore, Davis’s

conviction must have been under West Virginia’s general

attempt statute. Like the Florida statute at issue in James,

West Virginia’s general attempt statute prescribes criminal

penalties for "[e]very person who attempts to commit an

offense, but fails to commit or is prevented from committing

UNITED STATES v. DAVIS 13
it." W. Va. Code § 61-11-8 (emphasis added). The Supreme

Court of Appeals of West Virginia has held that attempted

breaking and entering requires an element in addition to

generic burglary—the unlawful entry or the breaking and

entering must have failed or been prevented. State v. Franklin,

79 S.E.2d 692, 697 (W. Va. 1953). Therefore, Davis’s conviction for attempted breaking and entering cannot qualify as

generic burglary for purposes of the ACCA. See James, 550

U.S. at 197.

The question then becomes whether attempted breaking

and entering as defined under West Virginia law, "falls within

the ACCA’s residual provision for crimes that ‘otherwise

involve[e] conduct that presents a serious potential risk of

physical injury to another.’ " Id. (quoting 18 U.S.C.

§ 924(e)(2)(B)(ii)). We find that it does. 

Resolution of this issue is controlled by James and its progeny. Under James, a crime falls within the residual provision

if it involves "purposeful, violent, and aggressive conduct,"

Begay v. United States, 553 U.S. 137, 144–45 (2008), that "in

the ordinary case, presents a serious potential risk of injury to

another," James, 550 U.S. at 208. Although the Supreme

Court of Appeals of West Virginia has not directly addressed

the elements of attempted breaking and entering, it has in

other contexts held that, "where formation of criminal intent

is accompanied by preparation to commit the crime . . . and

a direct, overt and substantial act toward its perpetration," the

crime of attempt is complete. See State v. Burd, 419 S.E.2d

676, 680 (W. Va. 1991). Harmonizing these authorities, therefore, the crime of attempted breaking and entering requires an

intentional, substantial, and overt act toward perpetration of a

breaking and entering with intent to commit a felony. The dispositive question then becomes whether such conduct presents a serious potential risk of physical injury to another.

James, 550 U.S. at 203. 

In James, the Supreme Court determined that attempted

burglary, as defined by Florida law, fell into this category. Id.

14 UNITED STATES v. DAVIS
at 195. Under Florida law, attempted burglary requires "an

‘overt act directed toward entering or remaining in a structure

or conveyance’ " with intent to commit an offense therein. Id.

at 202 (quoting Jones v. State, 608 So. 2d 797, 799 (Fl. Dist.

Ct. App. 1992)). These elements are substantially the same as

those that define attempted breaking and entering under West

Virginia law.

The Court in James found that attempted burglary under

Florida law poses basically the same risks as completed burglary: "the possibility of a face-to-face confrontation between

the burglar and a third party—whether an occupant, a police

officer, or a bystander—who comes to investigate." Id. at 203.

Moreover, the Court explained that the categorical approach

does not require "that every conceivable factual offense covered by a statute must necessarily present a serious potential

risk of injury before the offense can be deemed a violent felony." Id. at 208 (citing Gonzales v. Duenas-Alvarez, 549 U.S.

183, 193 (2007)). Rather, "[a]s long as the offense is of a type

that, by its nature, presents a serious potential risk of injury

to another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s

residual provision." Id. at 209. 

The same general considerations that led the Court to conclude that attempted burglary presents a serious potential risk

of physical injury to another in James are equally present

here. Indeed, the predicate offense at issue in that case is

largely indistinguishable from the one before us. Accordingly,

we find that, although the district court below erred in determining that Davis’s convictions for attempted breaking and

entering and conspiracy to break and enter qualified as

generic burglary under the ACCA, such error is harmless

because Davis’s offense falls under the residual provision for

crimes that "otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another." 18 U.S.C.

§ 924(e)(2)(B)(ii).

UNITED STATES v. DAVIS 15
2.

Davis also argues that his two 1993 convictions for burglary should be viewed as one offense under the ACCA

because the sentences ran concurrently and the burglaries

were both related to his substance abuse. We disagree.

To be counted separately, the ACCA requires that predicate

offenses must have been "committed on occasions different

from one another." 18 U.S.C. § 924(e)(1). Interpreting this

requirement, we have ruled that "[c]onvictions occur on occasions different from one another if each of the prior convictions arose out of a separate and distinct criminal episode."

United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)

(emphasis and internal quotation marks omitted). In reviewing

whether convictions occurred on separate occasions, we consider, in part, whether the offenses occurred at different geographical locations and had multiple victims. Id. at 335-36.

We have little difficulty concluding that Davis’s 1993 burglary convictions in Ohio and West Virginia occurred on

occasions different from one another. Whatever the impetus

for the two offenses, they were committed in different states

almost a month apart and involved different victims. There is

therefore no doubt that Davis had ample opportunity "to make

a conscious and knowing decision to engage in another

[crime]" after the completion of the first burglary. See id. at

337. The two burglary convictions are thus separate offenses

under the ACCA.

IV.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

16 UNITED STATES v. DAVIS
KISER, Senior District Judge, concurring:

I join the majority opinion in full with the exception of Part

II. Although I agree with the majority’s ultimate conclusion

that Davis is not entitled to the relief he seeks for breach of

the plea agreement and that the judgment of the district court

should be affirmed, I arrive at that conclusion via a somewhat

different route. Accordingly, I write separately. 

Specifically, I disagree with the majority’s determination

that the government did not breach the plea agreement in this

case. The majority correctly states that plea agreements are

subject to ordinary contract law principles. Ante at 6. Nevertheless, because a plea agreement implicates the integrity of

the justice system, courts "hold ‘the Government to a greater

degree of responsibility than the defendant (or possibly than

would be either of the parties to commercial contracts) for

imprecisions or ambiguities in plea agreements.’" United

States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004) (quoting

United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986));

United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997).

This heightened responsibility on the part of the government

extends beyond the negotiation and drafting of the plea agreement to all matters relating to it. Wood, 378 F.3d 348–49 (citing United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)).

During the Rule 11 plea colloquy, therefore, the parties must

disclose all material terms of the plea agreement, and the district court must confirm the defendant’s understanding of

these terms. Id. at 349 (citing United States v. Moore, 931

F.2d 245, 249 (4th Cir. 1991); Hartman v. Blankenship, 825

F.2d 26, 28 (4th Cir. 1987)). "Because the purpose of the plea

colloquy is to establish that the defendant knowingly and voluntarily enters his plea . . . he will naturally . . . rely on the

district court’s characterization of the material terms disclosed

during the hearing." Id. (citing United States v. Buchanan, 59

F.3d 914, 918 (9th Cir. 1995); United States v. Moore, 931

F.2d 245, 249 (4th Cir. 1991)). Therefore, where the government acquiesces in the district court’s pervasive mischaracterUNITED STATES v. DAVIS 17
ization of a material term, it effectively modifies and, thus

breaches, the terms of the plea agreement. Id. (citing

Buchanan, 59 F.3d at 917–18). 

The majority finds that the government made Davis no

promise regarding his maximum sentence. It reasons that "the

government agreed to make a series of ‘nonbinding recommendations’ but did not promise a particular sentence." Ante

at 6-7. It is true that the plea agreement does not in so many

words "promise" or "guarantee" Davis that he will receive a

particular sentence. Nevertheless, the plea agreement assures

Davis, in clear, declarative language, that "[t]he maximum

penalty to which the defendant will be exposed by virtue of

his plea of guilty . . . is: imprisonment for a period of (10) ten

years." J.A. 56. Moreover, as the majority acknowledges, ante

at 3-4, this misrepresentation was compounded by the court

during the Rule 11 colloquy. At that time, the court reiterated

more than once that Davis would not "in any event receive a

greater sentence than the statutory maximum [of ten years]."

J.A. 32, 34 (emphasis added). Thus, Davis was repeatedly

told, in no uncertain terms, that he would not, under any circumstances, receive a sentence greater than ten years. A reasonable person in Davis’s position would have believed,

based on the plea agreement language and the court’s characterization of its terms, that he would not receive a sentence

greater than ten years. I find that such clear assurances constitute a promise for the purposes of a plea agreement.

In further support of its determination that the government

did not breach the plea agreement, the majority points out that

the agreement explicitly disclaims any "representations . . . as

to what the final disposition in this matter should and will be."

J.A. 57. The court reiterated this language during the plea colloquy. J.A. 32, 34, 51–52. Nevertheless, this language does

not effectively negate the plea agreement’s assurances that

Davis will not receive a sentence of greater than ten years.

The court did not explain that factors contained in Davis’s

Presentence Report could result in a sentence above the ten

18 UNITED STATES v. DAVIS
year statutory maximum. Davis would (and probably did) reasonably understand this qualifying language to mean only that

factors contained in the Presentence Report would result in an

as yet unspecified sentence somewhere within the range of the

ten year maximum. Neither the written plea agreement nor the

court clarified that such factors could result in a mandatory

minimum of greater than ten years. At best, therefore, the language relied on by the majority renders the plea agreement

ambiguous.1 The court’s explanation to Davis during the plea

colloquy essentially reiterated this ambiguity and did not cure

it.2 In light of the heightened responsibility on the part of the

government to eliminate ambiguity, I would find that the government breached the plea agreement in this case. The majority’s finding invites great uncertainty by allowing the

government to include serious misrepresentations in plea

agreements provided that it also includes imprecise boilerplate language disclaiming any guaranteed outcome.

Nevertheless, I ultimately agree with the majority that

Davis is not entitled to the relief he seeks. Because Davis did

not object to breach of the plea agreement below and raises

this issue for the first time on appeal, we must affirm the sentence imposed by the district court unless Davis can demonstrate plain error. Puckett v. United States, 556 U.S. 129,

133–34 (2009). Plain error review comprises four steps: (1)

1

"‘[W]hether a written agreement is ambiguous or unambiguous on its

face should ordinarily be decided by the courts as a matter of law

. . . . .’" United States v. Jordan, 509 F.3d 191, 195 (4th Cir. 2007) (quoting Harvey, 791 F.2d at 300). 

2This Court has held that "[w]here there are ambiguities in a plea agreement, courts may look to extrinsic evidence to show that the parties to the

agreement had ‘mutually manifested their assent to [ ] an interpretation.’"

United States v. Bryant, 436 Fed. App’x 254, 256 (4th Cir. 2011) (quoting

Jordan, 509 F.3d at 200). In particular, the district court’s guidance to the

defendant during the plea colloquy may be sufficient to cure any ambiguity in the plea agreement. Id. During the plea colloquy in this case, the

court did little more than reiterate the ambiguous terms of the plea agreement. 

UNITED STATES v. DAVIS 19
"there must be an error or defect—some sort of ‘[d]eviation

from a legal rule’—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by appellant;" (2) "the legal error must be clear and obvious, rather

than subject to reasonable dispute;" (3) "the error must have

affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings;’" and (4) "if the above

three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’" Id. at

135 (quoting United States v. Olano, 507 U.S. 725, 732–36

(1993)). Even if the government’s breach of the plea agreement satisfies the first two steps, Davis cannot show that the

breach affected the outcome below and, therefore, cannot satisfy the third step. 

"[T]he question with regard to prejudice is not whether [the

defendant] would have entered the plea had he known about

the future violation. When rights acquired by the defendant

relate to sentencing, the ‘outcome,’ he must show to have

been affected is his sentence." Puckett, 556 U.S. at 142 n.4

(internal citation omitted) (emphasis added). This is consistent

with the Fourth Circuit’s rule that, "[i]n the sentencing context, an error affects substantial rights if the defendant can

show that the sentence imposed ‘was longer than that to

which he would otherwise be subject.’ " United States v.

Holmes, 380 Fed. App’x 367, 369 (4th Cir. 2010) (quoting

United States v. Washington, 404 F.3d 834, 849 (4th Cir

2005)). "The defendant whose plea agreement has been broken by the Government will not always be able to show prejudice, either because he obtained the benefits contemplated by

the deal anyway . . . or because he likely would not have

obtained those benefits in any event." Puckett, 556 U.S. at

141–42. Davis’s assertion that he would not have pled guilty

but for the government’s promise of a ten-year maximum,

therefore, is insufficient to show prejudice under Puckett.

20 UNITED STATES v. DAVIS
Where an appellant asserts breach of a plea agreement, he

must show that his sentence would have been different but for

the government’s breach. Davis cannot make such a showing.

Because Davis was subject to a mandatory statutory minimum

under the ACCA, the government’s breach of the plea agreement had no effect on his ultimate sentence. United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005) ("[A] district

court has no discretion to impose a sentence outside of the

statutory range established by Congress for the offense of

conviction."). 

In sum, although I ultimately agree with the majority’s resolution of this case, I arrive at that resolution by a different

path as set forth above. In all other respects, I join the majority opinion in full. 

UNITED STATES v. DAVIS 21