PUBLISHED

Filed: March 6, 2012

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 10-5028

JOHN JOEL FOSTER, a/k/a Jack

Foster,

Defendant-Appellee. 

ORDER

Appellee has filed a petition for rehearing en banc. The

government filed a response in opposition to the petition.

A member of the court requested a poll on the petition for

rehearing en banc. Judge Motz, Judge King, Judge Gregory,

Judge Davis, Judge Keenan, Judge Wynn, and Judge Floyd

voted to grant rehearing en banc. Chief Judge Traxler, Judge

Wilkinson, Judge Niemeyer, Judge Shedd, Judge Duncan,

Judge Agee, and Judge Diaz voted to deny rehearing en banc.

Because the poll on rehearing en banc failed to produce a

majority of judges in active service in favor of rehearing en

banc, the petition for rehearing en banc is denied. Judge Wilkinson filed an opinion concurring in the denial of rehearing

en banc. Judge Motz filed an opinion dissenting from the

denial of rehearing en banc, in which Judge King, Judge

Gregory, Judge Davis, Judge Keenan and Judge Floyd joined.

Judge Davis filed an opinion dissenting from the denial of
rehearing en banc, in which Judge Gregory joined. Judge

Wynn filed an opinion dissenting from the denial of rehearing

en banc, in which Judge Gregory and Judge Davis joined.

Entered at the direction of Judge Agee for the court. 

For the Court

/s/ Patricia S. Connor, Clerk

WILKINSON, Circuit Judge, concurring in the denial of

rehearing en banc:

I concur in the denial of rehearing en banc. Judge Agee has

written a persuasive opinion for the court, and I add only

these few thoughts in response to my dissenting friends and

colleagues. I appreciate the sincerity of the dissenters’ convictions, and I believe the vigorous discussion of our differences

to be a mark of mutual respect.

This is hardly an atypical ACCA case. Foster’s instant

offense of conviction was being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He had previously been convicted three times for breaking and entering in

violation of Va. Code § 18.2-90 (1992) (amended 2004). 

As the panel majority explained, the question presented

here is whether Foster’s prior convictions for breaking and

entering the "Corner Market" and "Sunrise-Sunset Restaurant" satisfy the generic definition of burglary and can thus

serve as predicate offenses under the Armed Career Criminal

Act ("ACCA"), 18 U.S.C. § 924(e)(1). The Virginia statute

can be violated in a variety of ways, including both burglary

of an "office, shop, manufactured home, storehouse, ware2 UNITED STATES v. FOSTER
house, banking house, church as defined in § 18.2-127, or

other house," which would qualify as generic burglary, and

breaking and entering a "ship, vessel or river craft or any railroad car," which would not. Va. Code § 18.2-90. 

State indictments are not structured with an eye to the

ACCA, and had the charging documents here quoted the Virginia law, they still would not have used the magic words

"building or structure" that would alone seem sufficient to satisfy the dissenters. One could say that of course the enumerated list of "office, shop, manufactured home, storehouse,

warehouse, banking house, [or] church" refers to buildings or

structures. But then it seems equally obvious that "Market" or

"Restaurant" would as well, particularly since the Virginia

law’s listing is not exclusive, including as it does any "other

house" as a qualifying building.

The panel majority carefully explained why burglary of the

"Corner Market" and "Sunrise-Sunset Restaurant" must surely

qualify as "unlawful or unprivileged entry into, or remaining

in, a building or structure," Taylor v. United States, 495 U.S.

575, 599 (1990), within the ambit of the ACCA. The dissenters disagree, however, concluding that breaking and entering

the "Corner Market" or "Sunrise-Sunset Restaurant" might not

satisfy Taylor because one of those establishments could in

fact be something other than a building or structure, namely

a non-generic "ship, vessel, or river craft or any railroad car,"

Va. Code. § 18.2-90. 

In urging this unlikely possibility, the dissenters here

charge the majority with grossly failing to abide by Shepard

v. United States, 544 U.S. 13 (2005). But the dissenters have

missed the whole point of what the debate in Shepard was

about. The Shepard Court held that the modified categorical

inquiry under the ACCA could only be answered by reference

to "the charging document, the terms of a plea agreement or

transcript of colloquy, . . . or to some comparable judicial

UNITED STATES v. FOSTER 3
record," id. at 26, and that a sentencing court may not "look

to police reports or complaint applications," id. at 16. 

The Court did not opine on the relative validity of a street

address as proof of burglary of a building with anything near

the specificity that the dissenters in this case suggest. The

Supreme Court majority never discusses the facts that Judge

Motz here presses, and the Shepard dissenters refer to them

so briefly that only the most careful reader would catch the

mention. The Shepard Court had other much bigger fish to

fry, focusing its efforts solely on the question of the use of

non-authoritative documents to satisfy the demanding ACCA

inquiry. My esteemed colleague Judge Motz spends time

speculating and hypothesizing why the Shepard Court

decided what it did, but the fact remains that the Court

decided what it did in fact decide. There was no discussion

whatsoever of the point on which my dissenting friend now

relies. No court has doubted what the decision stood for — it

is where we get the term "Shepard-approved documents" in

the first place. And the panel majority here committed no

Shepard error. It relied only on the charging documents that

spelled out what places Foster has burglarized. It consulted no

police reports, complaint applications, or other documents

whose use Shepard both addressed and foreclosed.*

*Even if one were to take the dissent’s view of Shepard as its guide, the

conclusion the dissent urges does not follow. The dissent argues that the

Supreme Court has commanded that a street address, and by analogy a

descriptive business name, is insufficient evidence of a generic burglary.

But the facts of Shepard do not support so broad an inference. To take one

example from Shepard, the complaint form includes a street address, 30

Harlem St., in a box labeled "Place of Offense," Joint App’x, Vol. III, at

5, Shepard, 544 U.S. 13 (2005), 2004 WL 2289702, but then unhelpfully

continues to describe the offense as "break[ing] and enter[ing] in the night

time the building, ship, vessel, or vehicle, the property of Jerri Cochran,"

id. That complaint form is different from a complaint detailing the street

address as the burgled home or residence itself. A street address listed as

the "Place of Offense" is less than enlightening as to the nature of what

was burgled. Certainly, one would imagine that in a complaint for bur4 UNITED STATES v. FOSTER
That then leaves the dissenters in a difficult position.

Unable to accuse the majority that it committed the Shepard

error of consulting non-conclusive judicial documents, the

dissenters are reduced to claiming that the majority must

somehow have resorted to extrinsic evidence. By doing so,

the dissenters contend that the majority has diminished the

role of the district court and engaged in impermissible appellate fact finding.

Just like its earlier claim of inconsistency with Shepard,

this accusation of impermissible appellate fact finding runs

acropper. To begin with, classic trial court fact finding

involves a selection of a likely or correct choice between two

or more factual possibilities. In the land of Oz, I suppose there

may be two or more ways to interpret the clear facts set forth

in the Shepard-approved documents. On this side of the rainbow, however, the Corner Market and Sunrise-Sunset Restaurant are buildings and structures.

Fact finding also by its very name implies that a fact must

be "found." Here, there is no need to "find" anything. The fact

has sought us out. It has relieved the need for findings

because the names themselves announce the nature of the

establishments, which are buildings and structures. A large

and lamentable silence pervades all of the dissenting opinions.

They are quick to heap opprobrium on the exercise of the

obvious, but slow to suggest what the Corner Market and

Sunrise-Sunset Restaurant might be other than buildings or

structures.

glary of a vehicle, the "Place of Offense" listed might be the nearest street

address, and so the geographic identifier does not illuminate which of the

four possible types of breaking and entering occurred at that particular

location. In the case at bar, by contrast, there is no dispute that Foster

broke and entered the establishments named the Corner Market and the

Sunrise-Sunset Restaurant. It seems clear enough that the specific naming

of the premises where Foster’s crimes took place is a stronger factual basis

for the application of the ACCA than the mere identification of a street

address as the "Place of Offense." 

UNITED STATES v. FOSTER 5
Further, the classic indicia of trial court fact finding are

absent. While my fine colleagues are correct to note the considerable deference accorded trial courts in the fact finding

process, the things we normally associate with that process—

and the superior vantage point the process affords district

courts—are absent here. The trial court heard no witnesses

and made no credibility findings. It examined no physical or

forensic evidence. It engaged in no trial management function. Instead, the trial and appellate courts are on a parity and

had before them the same judicially approved charging statements.

This sort of parity does not entitle us to discount the value

of a trial judge’s sound opinion. See United States v. Taylor,

659 F.3d 339, 347-48 (4th Cir. 2011) (upholding a trial

judge’s determination or "finding" from a plea colloquy that

a dangerous assault was indeed a crime of violence as defined

by the ACCA). But the parity before us ordinarily suggests

something more akin to de novo review. In such an instance,

it hardly seems proper to chide the majority for using common sense akin almost to judicial notice. Even appellate

judges are endowed with brains in the hope and expectation

that they will be used to obvious purpose. We could of course

fantasize that somewhere in the craggy highlands of Lee

County there exists a floating barge by the name of Corner

Market or a railroad car sweetly dubbed the Sunrise-Sunset

Restaurant. But neither the Supreme Court nor Congress

would either require or indeed approve of such a step. 

In fact, the Court has not been afraid to inject an element

of practicality in the ACCA when such has been required.

This past June, the Court in Sykes v. United States, 131 S. Ct.

2267 (2011), upheld the application of the ACCA based on

what it frankly described as "the commonsense conclusion

that Indiana’s vehicular flight crime is a violent felony." Id.

at 2274. The dissent argues that comparing the Shepard

inquiry and the "risk of physical injury" inquiry is like mixing

apples and oranges, suggesting that the Supreme Court is

6 UNITED STATES v. FOSTER
somehow jumping to and fro within the same statute on the

basic question of whether its provisions merit even a modicum of common sense in application. 

But Sykes is only the most recent example of what has

become a virtually annual ritual of the Supreme Court deciding all manner of ACCA cases through resort to plain, reasonable logic. In Johnson v. United States, 130 S. Ct. 1265

(2010), the Court found that the ACCA’s terms should be

interpreted according to their "ordinary meaning" and not be

subject to a crabbed "specialized legal usage" that would vitiate Congress’s intent. Id. at 1270. A year prior, the Court in

Chambers v. United States, 555 U.S. 122 (2009), did not rely

on the sort of beyond-a-shadow-of-a-doubt certainty that the

dissenters seem to think the ACCA demands, but instead

premised its holding on the probabilistic logic that "the behavior that likely underlies a failure to report would seem less

likely to involve a risk of physical harm" than escape from

custody. Id. at 127. The groundwork for that decision was laid

in Begay v. United States, 553 U.S. 137 (2008), which found

that ACCA questions should be resolved based on what the

crimes at issue "typically involve." Id. at 144. And perhaps

most damning, the Court in James v. United States, 550 U.S.

192 (2007), was clear that the "ACCA does not require metaphysical certainty." Id. at 207. While the dissenters might be

able to "hypothesize unusual cases," id. at 208, in which the

Corner Market, instead of being on the proverbial corner, is

instead on a "small river craft," such conjecture is not only

fanciful, but it is at odds with the simple common sense on

which the Supreme Court has relied in ACCA cases for five

straight years and counting. 

I recognize that interpreting the ACCA is not always easily

accomplished, and I sympathize with the many jurists who

have rightly pointed out its imprecise phraseology and interpretive difficulty. But such challenges come with the territory,

and we lack the authority to declare war on statutes we may

find distasteful. The dissenters decry the result here as

UNITED STATES v. FOSTER 7
"tragic." See post at 13 (Motz, J.). I certainly respect their

right to hold this view, but it has no bearing on the legal question before us. Theirs is a policy disagreement with the

ACCA to be taken up with Congress. If Congress wishes to

permit felons to carry certain firearms or to disqualify certain

predicate offenses after the passage of time, it can surely do

so, but it has created no such exemptions applicable to this

case. Congress had a legitimate purpose in mind when it

sought to protect the public from violent acts committed by

those with a violent criminal history. The statute has an awkward name and the means chosen to pursue its purpose have

assuredly created headaches for this fine court and others, but

that does not confer on us a warrant—constitutional or

otherwise—to eviscerate its aims and displace with our own

will the democratic legitimacy accorded by our founding document to others.

There are worse fates for a judicial decision than to have

it align with the practical virtues of logic and common sense.

The term "objective reasonableness" is much in vogue these

days, and properly so. See, e.g., Davis v. United States, 131

S. Ct. 2419 (2011) (holding that a need "to prevent Fourth

Amendment law from becoming ossified," id. at 2433, cannot

overcome objectively reasonable reliance on the law in force

at the time of a search). Objective reasonableness presupposes

that courts do not allow the occasional medieval tendencies

present in all professions to separate us so thoroughly from

good logic that our decisions drive citizens to rubbing their

eyes and scratching their heads. If one were to inquire of an

objectively reasonable person on the street whether something

named the Sunrise-Sunset Restaurant was a building or structure as opposed to a river craft or railroad car, the response

would be "Of course. Why do you ask?" We ask because the

generic approach of modified categorical analysis requires us

to, and the Supreme Court has commended to us common

sense in answering. That is precisely what the panel majority

has done, and it is why I am pleased to concur in the denial

of the petition for rehearing en banc.

8 UNITED STATES v. FOSTER
DIANA GRIBBON MOTZ, Circuit Judge, dissenting from

the denial of rehearing en banc:

With respect, I dissent from my colleagues’ refusal (7-7) to

grant rehearing en banc in this case. Judge Wynn’s excellent

dissent from the panel opinion well explains why we should

have affirmed the judgment of the district court. See United

States v. Foster, 662 F.3d 291, 298 (4th Cir. 2011). I write

now only to point out that the panel opinion is directly and

inexplicably at odds with what all recognize is controlling law

—Shepard v. United States, 544 U.S. 13 (2005).

In Shepard, the Court grappled with the very question at

issue here—whether a defendant’s state burglary convictions

necessarily involved entry into buildings, and thus qualified

as ACCA predicate offenses. Id. at 17. Shepard held that only

certain "conclusive records made or used in adjudicating

guilt"—now widely known as Shepard-approved documents

—can establish with the requisite certainty that the state predicate convictions "‘necessarily’ rested on the fact" that the

defendant burglarized a building, and thus committed the

ACCA predicate offense of generic burglary. Id. at 21.

In Shepard itself, the Shepard-approved documents set

forth the actual street addresses, e.g., "30 Harlem St.," of the

burglarized establishments. Id. at 31-32 (O’Connor, J., dissenting). Yet both the Government and the Shepard Court

(majority and dissent) agreed that the actual street addresses

were insufficient to demonstrate that the defendant had burglarized buildings.

1

1The Government acknowledged this at oral argument, see 544 U.S. at

21 (quoting Brief for United States at 25), and the Shepard dissenters

agreed with the majority on this point. Id. at 31 (O’Connor, J., dissenting)

("If these complaints [containing the addresses] were the only evidence of

the factual basis of Shepard’s guilty pleas, then I would agree with the

majority that there was no way to know whether those convictions were

for burglarizing a building."). 

UNITED STATES v. FOSTER 9
The panel in the case at hand, nonetheless, concludes that

the mere proper names of burglarized establishments are sufficient to prove that the defendant burglarized buildings. The

panel puts forward no reason, and I can discern none, why the

proper names of burglarized places in this case establishes

that they are buildings while the actual street addresses of burglarized places in Shepard did not.

The panel’s error stems from its understandable urge to

avoid an unlikely conclusion by applying "common sense" or

"logic." See Foster, 662 F.3d at 291-98 (panel majority and

concurrence invoking "common sense" no less than fifteen

times, and "logic" six times). The First Circuit had precisely

the same understandable inclination in Shepard. See Shepard,

348 F.3d 308, 314 (1st Cir. 2003), rev’d 544 U.S. 13 (2005).

Just as the First Circuit concluded that the offenses qualified

as ACCA predicates because it was "unlikely—to the point of

nearly impossible" that the burglaries were not of buildings,

id., the panel here concludes that the Government has met its

burden of establishing the burglaries were of buildings

because there is only a "more-than-remote possibility" that

they were not, Foster, 662 F.3d at 295. But in reversing the

First Circuit in Shepard, the Supreme Court prohibited ACCA

courts from fact-finding by "common sense," "logic," or the

law of probabilities. Rather, Shepard requires ACCA courts

to limit their role to determining whether a small group of

reliable documents prove beyond question that the prior

offense constitutes a proper ACCA predicate.

Specifically, Shepard holds that only "conclusive records

made or used" by the original sentencing court can provide

the reliability needed to determine that the prior state convictions "necessarily" (not very, very likely) qualified as proper

ACCA predicates. 544 U.S. at 21 (emphasis added). In reaching this holding, no member of the Shepard Court suggested

that common sense or logic or probabilities (or judicial

notice) could establish that buildings stood at the burglarized

addresses. Indeed, even the Government disavowed the view

10 UNITED STATES v. FOSTER
that a court could consult extrinsic evidence. See Transcript

of Oral Argument, Shepard, 544 U.S. 13, at 27-28.

Moreover, the Shepard Court clearly understood that its

holding would sometimes require courts to turn a blind eye to

common sense and logic. Both the majority and the dissent

recognized the overwhelming likelihood that the predicate

burglaries in that case involved buildings, not boats. See, e.g.,

544 U.S. at 22, 24 n.4; id. at 29 (O’Connor, J., dissenting);

Transcript of Oral Argument at 5 ("[T]here isn’t any question

. . . that the police reports in fact gave addresses of particular

buildings.") (Ginsburg, J.); id. at 8-9 ("There are no boats,

you know, in Watertown. It’s not a dock . . . .") (Breyer, J.);

id. at 24 ("This is a case where we all know what the truth is

. . . .") (Kennedy, J.). Nevertheless, the Court required that

proof that the burglarized entities were buildings come from

a small group of reliable documents that "necessarily" established this fact.

Shepard set forth a bright-line rule that prohibits courts

from "mak[ing] a disputed finding of fact about what the

defendant and state judge must have understood as the factual

basis of the prior plea." 544 U.S. at 25. Instead, Shepard

requires that Shepard-approved documents alone conclusively

establish that the state offense "‘necessarily’ rested on the fact[s]" qualifying it as an ACCA predicate. Id. at 21. Even

though the Court has recently recognized that the "absence of

records will often frustrate application of the [ACCA]," Johnson v. United States, 130 S. Ct. 1265, 1273 (2010), it has

resisted efforts to back away from Shepard’s bright-line rule.

See, e.g., United States v. Gutierrez-Ramirez, 405 F.3d 352

(5th Cir.), cert. denied 546 U.S. 888 (2005) (forbidding use

of abstracts of judgment).

Understandably judges will be tempted to rely on "common

sense" or "logic," for these are normal fact-finding tools. But

Shepard outlaws their use when determining if a prior conviction "necessarily" rests on facts qualifying it as an ACCA

UNITED STATES v. FOSTER 11
predicate. 544 U.S. at 21. It does so because of the "practical

difficulties" of non-contemporaneous fact-finding, id. at 20,

and to avoid the potential erosion of the "Jones-Apprendi

implementation of the jury right," id. at 24-25 (Souter, J.).2 By

resorting to "common sense" and "logic" the panel engages in

precisely the sort of fact-finding that Shepard forbids.

In response to these thoughts, the concurrence contends

that I have "missed the whole point of what the debate in

Shepard was about." According to the concurrence, the Shepard Court had "much bigger fish to fry" than "opin[ing] on the

relative validity of a street address as proof of a burglary of

a building." What the concurrence steadfastly ignores, however, is that only because all involved (Shepard, the Government, and the Supreme Court majority and dissent) agreed

that the actual street addresses of burglarized establishments

did not prove that they were buildings did the Court need to

"fry" the "bigger fish," i.e., resolve whether police reports or

complaint applications could be considered in determining if

the burglary was of a building and so a proper ACCA predicate. I suppose the Shepard Court could have opined on this

"big fish" question even if it believed that street addresses sufficed to establish that a building had been burglarized. But

that would make the entire Shepard opinion dicta. No court

has suggested this. Rather, until today, courts have uniformly

regarded the bright-line rule established in Shepard as the

Court’s holding and consistently followed that holding.3

2Though Justice Souter’s Sixth Amendment discussion only garnered a

four Justice plurality, Justice Thomas, the fifth vote, took an even stronger

view of the need for constitutional protection and Apprendi v. New Jersey,

530 U.S. 466 (2000). Thus Justice Thomas went further than the majority,

arguing that "the [judicial] factfinding procedure the [majority] rejects

gives rise to constitutional error, not doubt." 544 U.S. at 28 (Thomas, J.,

concurring in part and concurring in the judgment). Moreover, Justice

Thomas argued that even the "limited factfinding" approved of by the

majority and by Taylor v. United States, 495 U.S. 575 (1990), also ran

afoul of Apprendi. 

3Alternatively, the concurrence presses an even less persuasive challenge to Shepard’s unequivocal holding. The concurrence suggests that for

12 UNITED STATES v. FOSTER
In short, I believe the panel has failed to abide by Shepard.

The Shepard-approved documents in this case, which set forth

only the proper (not generic) names of the places burglarized,

are even less adequate to prove those places are buildings than

the documents held inadequate in Shepard, which contained

the actual street addresses of the places burglarized. The

panel’s resort to "common sense" and "logic" constitutes the

sort of fact-finding held impermissible in Shepard.

The panel’s errors have serious real life consequences for

the defendant, John Joel Foster. These errors result in treatment of Foster’s possession of a firearm (a hunting rifle in his

truck) as the crime of an armed career criminal. Thus these

errors subject Foster to imprisonment for fifteen, rather than

two and a half, years. This seems a particularly tragic result

given that after committing the disputed state burglaries at

nineteen, Foster remained conviction-free for almost two decades. If common sense and logic had any role here, surely

they would suggest that this is not the record of an armed

career criminal.

I must dissent. Judge King, Judge Gregory, Judge Davis,

Judge Keenan, and Judge Floyd have authorized me to indicate that they join in this dissent.

"five straight years and counting" the Court has retreated from Shepard’s

bright-line rule and endorsed fact-finding by "practicality," "plain[ ] reasonable logic," "probabilistic logic," and "common sense." This mixes

apples and oranges. The cases on which the concurrence relies dealt with

an "inherently probabilistic" inquiry, James v. United States, 550 U.S.

192, 207 (2007), i.e., whether prior offenses "involve[d] conduct that presents a serious potential risk of physical injury to another." See 18 U.S.C.

§ 924(e)(2)(B)(ii) (emphasis added). This "probabilistic" inquiry is far

removed from the Shepard inquiry, which asks only whether a prior conviction "‘necessarily’ rested on the fact[s]" qualifying it as an ACCA predicate. Shepard, 544 U.S. at 21. 

UNITED STATES v. FOSTER 13
DAVIS, Circuit Judge, dissenting from the denial of rehearing

en banc:

Injustice comes in many forms. It is insidious. It chokes

persons and their communities alike. It besmirches legislators,

prosecutors, and yes, judges, alike. It undermines public confidence in government and its institutions. It mocks our

national commitment to the ideal of evenhandedness and fairness. And, when it is the product of an unwarranted and inexplicable deviation from settled standards, it holds hands with

iniquity. 

I am persuaded that this case presents a profound exemplar

of injustice, and I deeply regret the court’s refusal to rehear

this case en banc. I am honored to join in the elegant dissenting opinion of my good colleague, Judge Motz. Judge Motz

conclusively demonstrates that the panel majority in this case

has deviated from Supreme Court precedent and thereby

inflicted a grievous harm on Appellant Foster and, frankly, on

the rule of law. I offer this additional critique of the panel

majority’s handiwork as further illustration of how injustice

so infects the outcome of this proceeding.

I.

First, as Judge Wynn’s panel dissent forcefully argued, the

panel majority has seriously misapplied the appropriate standard of review. The majority opinion states: "We consider de

novo whether an offense qualifies as a violent felony under

the ACCA. United States v. Thompson, 421 F.3d 278, 280–81

(4th Cir. 2005)." United States v. Foster, 662 F.3d 291, 293

(4th Cir. 2011). But this is, at best, an incomplete statement

of the controlling legal principles. Indeed, Thompson itself

states: "We review legal determinations of the district court

de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir.

1996)." 421 F.3d at 280-81 (emphasis added). Blake, in turn,

states: "We begin by noting that in reviewing the application

of the guidelines by a district court, we examine factual deter14 UNITED STATES v. FOSTER
minations for clear error; legal questions, however, are subject

to a de novo standard of review. United States v. Singh, 54

F.3d 1182, 1190 (4th Cir. 1995)." 81 F.3d at 503.

Singh, on which Blake relied, made clear the mixed standard of review:

Applying the statutory command to give "due deference" to a district court’s application of the sentencing guidelines, we review factual determinations for

clear error and legal questions de novo. United States

v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

54 F.3d at 1190. And in Daughtrey, the court provided a full

exposition of the standard of review of sentencing determinations made after the Sentencing Reform Act of 1984, while

summarizing the bottom-line notion as follows: "If the issue

turns primarily on a factual determination, an appellate court

should apply the ‘clearly erroneous’ standard." 874 F.2d at

217. 

This illustration of the lineage of our proper standard of

review is unassailable. Indeed, Judge Agee makes that clear

in his recently-published opinion in United States v. Moore,

666 F.3d 313, __, No. 10-4474, slip op. at 12 (4th Cir. Jan.

25, 2012) ("In the context of sentencing, we review the district court’s legal determinations de novo, and its factual findings for clear error. United States v. Osborne, 514 F.3d 377,

387 (4th Cir. 2008).").1

1

See also United States v. Washington, 629 F.3d 403, 411 (4th Cir.)

(Wilkinson, J.) ("We review legal issues such as whether a defendant’s

previous conviction counted as an ACCA predicate de novo, and we

review factual findings for clear error.") (citations omitted), cert. denied,

132 S. Ct. 127 (2011); United States v. Abu Ali, 528 F.3d 210, 261 (4th

Cir. 2008) (Traxler, J.) ("As always, when considering a sentence’s reasonableness, we ‘review the district court’s legal conclusions de novo and

its factual findings for clear error.’"); United States v. Thornton, 554 F.3d

443, 445 (4th Cir. 2009) (Duncan, J.) ("When considering a sentence’s

reasonableness, we ‘review the district court’s legal conclusions de novo

and its factual findings for clear error.’"). 

UNITED STATES v. FOSTER 15
Before the panel in this case, the government did not suggest anything to the contrary, although it cleverly sought to

obfuscate the standard of review with this description of the

applicable standard of review in its brief: "Whether an offense

qualifies as a ‘violent felony’ under the Armed Career Criminal Act is ultimately a matter of law that is reviewed de novo.

United States v. Thompson, 421 F.3d 278, 280-281 (4th Cir.

2005)." Appellant’s Br. at 6 (emphasis added). Of course, the

"ultimate" question under any statute is a question of law. But

the issue in this case is not the "ultimate" question of whether

an offense under the Virginia non-generic burglary statute

might nevertheless constitute "generic burglary" under the

ACCA; we know the answer to that question. The question in

this case, however, which requires no legal analysis but rather

a factual analysis, is whether the district court clearly erred in

finding that the government failed to satisfy its burden of

proof (as constrained by Shepard) to establish that two of Foster’s prior offenses were generic burglaries. See also Govt’s

Corr. Response Pet. Reh. En Banc at 8 (conceding that "the

government bears the burden of proving an ACCA predicate

offense by a preponderance of the evidence").

Of even more particular and compelling salience in the

context of this case, Judge Wilkinson (joined by Judge Motz)

recently demonstrated conclusively that determinations by a

district court of what a Shepard-approved document establishes (as in this case) are quintessential factual questions subject to the clear error standard of review. See United States v.

Taylor, 659 F.3d 339, 348 n* (4th Cir. 2011). 

In Taylor, the majority rejected my argument in dissent that

the Shepard-approved document, there a guilty plea transcript, was insufficient to establish that the underlying conviction was a crime of violence under the ACCA, and reasoned

as follows:

Before us is simply the question of whether the district court properly concluded from the relevant

16 UNITED STATES v. FOSTER
Shepard documents that Thompson’s prior conviction was a qualifying predicate. In the course of making that finding, we believe the district court was

entitled to rely on those facts and circumstances in

the plea colloquy it felt relevant. . . . 

The sole question therefore is whether the district

court made a proper finding that Thompson’s second

degree assault conviction was for a crime of violence. We think without question that the trial court

made that finding and that the plea colloquy amply

supports its conclusion.

Id. (emphases added).2

What the district court did in this case is exactly what the

district court did in Taylor; it examined Shepard-approved

documents in order to make a finding of fact, except that the

district court’s finding in this case was against the government rather than in favor of the government. I presume all

agree that this distinction alone is hardly a reason to reverse

the district court in this case.3

2

In my dissent, I argued that the district court committed an error of law

in its reliance on the Shepard-approved document to make its finding that

the appellant’s second-degree assault conviction in violation of Maryland

law was a "crime of violence" under the ACCA. See 659 F.3d at 349, 352

& n.6. The majority concluded, to the contrary (as recounted above), that

the district court committed no error of law and that the Shepard-approved

document was sufficient to support the district court’s finding that the

prior conviction was a qualifying offense under the ACCA. 

3As the Supreme Court stated in Anderson v. Bessemer City, 470 U.S.

564 (1985): 

Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous. 

This is so even where the district court’s findings do not rest

on credibility determinations, but are based instead on physical

or documentary evidence or inferences from other facts. 

UNITED STATES v. FOSTER 17
Notably, the parties have not had an opportunity to brief

Taylor’s effect on the issues in this case because the briefing

and argument before the panel in this case were concluded

well before Taylor was published on October 24, 2011. If en

banc rehearing had been granted, we would have had the benefit of counsel’s arguments on the effect on this case, if any,

of Taylor’s application of the clear error standard. The failure

of one more circuit judge in regular active service to vote in

favor of rehearing erects an impenetrable bar to that extraordinary opportunity. Injustice sneaks up on us in so many ways.

Thus, and in any event, the question presented here is a

question of fact, as the majority’s resort to "judicial notice" of

geographic features of a county in the Commonwealth of Virginia makes clear. Cf. Ohio Bell Tel. Co. v. Pub. Util.

Comm’n of Ohio, 301 U.S. 292, 301 (1937) ("[N]otice, 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."). Accordingly, if the judges of this court

believe the district court committed clear error they should

say so, but they should not, sub silentio, alter (any more than

they should misapply) our well-established standard of review

of the multi-faceted process of district court sentencing.

This case is a first, so far as I can tell. Although we have

found it necessary, of course, to elucidate the applicable legal

standards of sentencing enhancement law, in my canvass of

our post-Shepard ACCA, career offender, and guidelinesoffense-enhancement cases, I cannot locate an instance in

Id. at 574 (emphasis added) (citations omitted); see also Sheet Metal

Workers Int’l Ass’n v. Sweeney, 29 F.3d 120, 126 (4th Cir. 1994) (quoting

this language from Anderson and stating, "This [is] the law"); United

States v. Houman, 234 F.3d 825, 827 (2d Cir. 2000) (per curiam) (citing

Anderson and stating, "We review the district court’s factual finding as to

the nature of the 1975 conviction under a clear error standard, notwithstanding the fact that the findings were based entirely upon documentary

evidence."). 

18 UNITED STATES v. FOSTER
which this court, in a published opinion, outright reversed a

district court’s finding of fact underlying its determination

that the government failed to carry its burden of proof to show

that an offender was eligible for the applicable sentencing

enhancement. See United States v. Donnell, 661 F.3d 890 (4th

Cir. 2011) (reversing for legal error); United States v. Vann,

660 F.3d 771 (4th Cir. 2011) (en banc) (same); United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (same);

United States v. Peterson, 629 F.3d 432 (4th Cir. 2011)

(same); United States v. Clay, 627 F.3d 959 (4th Cir. 2010)

(same); United States v. Rivers, 595 F.3d 558 (4th Cir. 2010)

(same); United States v. Alston, 611 F.3d 219 (4th Cir. 2010)

(same); United States v. Bethea, 603 F.3d 254 (4th Cir. 2010)

(same); United States v. Thompson, 588 F.3d 197 (4th Cir.

2009) (same, rejecting district court’s legal conclusion that

circuit precedent had been abrogated by Begay v. United

States, 553 U.S. 137 (2008)); United States v. Roseboro, 551

F.3d 226 (4th Cir. 2009) (vacating imposition of enhanced

sentence upon concluding that Begay did abrogate circuit precedent); United States v. Harcum, 587 F.3d 219 (4th Cir.

2009) (reversing for legal error); United States v. Thornton,

554 F.3d 443 (4th Cir. 2009)(same); see also United States v.

McQueen, 445 F.3d 757 (4th Cir. 2006) (reversing district

court’s refusal to impose ACCA sentence "without any analysis" and holding that ostensible restoration of defendant’s

civil rights was trumped by "his repeated felony offenses over

time"); United States v. Green, 436 F.3d 449 (4th Cir. 2006)

(reversing district court’s refusal to impose career criminal

sentence upon concluding that "district court erred as a matter

of law" in applying guidelines); United States v. Washington,

404 F.3d 834 (4th Cir. 2005) (reversing, under plain error

standard, in the circuit’s first application of Shepard, district

court’s offense level enhancement for § 922(g)(1) conviction

in reliance on non-Shepard sources).

In contrast, it is no coincidence that, with one exception,

every one of the circuit court cases cited by the majority in the

panel opinion in this case (and now parroted by the governUNITED STATES v. FOSTER 19
ment, see Govt’s Corr. Response Pet. Reh. En Banc at 10-11)

in support of the majority’s reversal of the district court’s

finding under the ACCA that the government failed to carry

its burden of proof was an affirmance of the lower court’s

imposition of an enhanced sentence. See United States v. Baxter, 642 F.3d 475 (4th Cir. 2011); United States v. Proch, 637

F.3d 1262 (11th Cir. 2011); United States v. Rainer, 616 F.3d

1212 (11th Cir. 2010); United States v. Miller, 478 F.3d 48

(1st Cir. 2007); United States v. Letterlough, 63 F.3d 332 (4th

Cir. 1995).4

In the one exception to the pattern described in the above

paragraph (of the panel majority citing cases which affirmed

the imposition of an enhanced sentence to support the reversal of a refusal to impose an enhanced sentence), United

States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir. 2011)

(en banc), the district court’s imposition of an enhanced sentence was reversed on appeal. Id. at 917, 946, 973-74 (Opinions of Bybee, J., and Berzon, J.) (concluding that the

Shepard-approved documents before the district court did not

support its finding that defendant had been convicted of

generic burglary under California law). Turning ostensible

persuasive authorities on their heads and extracting obiter

dicta from them in order to reverse the district court in this

case is peculiar, to say the least.

4My opinion in Baxter, 642 F.3d at 476, provides no support for the

panel’s reasoning or outcome, in any event. The word "shop" appearing

in the Virginia burglary statute also appeared in the indictment in the prior

prosecution in Baxter. Thus, the issue presented was a pure legal issue:

whether, under federal law, as it absorbs the Virginia Supreme Court’s

binding interpretation of the elements of state law (see Vann, 660 F.3d at

777), a "shop" is a "building." The Virginia Supreme Court had so held

in Graybeal v. Commonwealth, 324 S.E.2d 698, 700 (1985), and we

affirmed the district court’s adherence to that ruling in Baxter. 642 F.3d

at 477. 

No factual question whatsoever was presented in Baxter, and therein

lies the problem in any attempt to apply it here. 

20 UNITED STATES v. FOSTER
In short, like the burden of proof at the trial stage, the standard of review at the appellate stage is the coin of the realm.

We ought not lightly permit corrosive influences, arising out

of understandable dissatisfaction with substantive legal doctrines, to denude the value of that currency. 

II.

Second, by rule we deem unpublished opinions "nonprecedential" for several very good reasons. 4th Cir. R. 32.1;

see also United States v. Hayes, 482 F.3d 749, 751 n.7 (4th

Cir. 2007) (citing 4th Cir. R. 32.1 for proposition that pre2007 unpublished opinion is not controlling precedent),

reversed and remanded on other grounds, 129 S. Ct. 1079,

1089 (2009). Applying the rule, Judge Duncan recently wrote,

in Minor v. Bostwick Laboratories, Inc., __ F.3d __, No. 10-

1258, slip op. at 8 n.6 (4th Cir. Jan. 27, 2012), "we decline to

address the arguments Bostwick bases upon [a prior unpublished opinion]." The prominent role of the unpublished opinion relied on by the panel majority here, United States v.

Shelton, 196 F. App’x 220 (4th Cir. 2006) (unpublished) (and

now parroted by the government, see Govt’s Corr. Response

Pet. Reh. En Banc at 11), is troubling on several levels. 

The majority devotes an entire paragraph to that nonprecedential case and accords it unwarranted gravitas:

This conclusion is augmented by our prior decision

in United States v. Shelton, 196 F. App’x 220 (4th

Cir. 2006) (unpublished). In Shelton, we concluded

that an indictment charging the defendant with

breaking and entering "the business of All American

Car Wash" established that the prior conviction was

for a generic burglary: "[w]e believe the reference to

‘the business’ necessarily ensures that Shelton

sought to enter ‘a building or structure.’" Id. at 222.

If the broad term "business" in Shelton sufficiently

UNITED STATES v. FOSTER 21
defined a generic burglary, so too should the more

explicitly named businesses in the case at bar.

662 F.3d at 295-96. 

Manifestly, this is inconsistent with the letter and certainly

the spirit of our local rule, particularly regarding a case, such

as Shelton, that was not even orally argued. This is even more

true in a case in which the district court specifically considers

a non-precedential case and, in reliance on its nonprecedential character, declines to follow it. See United States

v. Foster, 732 F. Supp. 2d 649, 653 (W.D. Va. 2010)

("[C]itation of unpublished decisions issued prior to January

1, 2007, is disfavored, 4th Cir. R. 32.1, and accordingly Shelton does not control the present case.") (citation omitted). 

We should not put district courts in such a Catch-22, which

is to say we certainly should not treat non-precedential,

unpublished opinions as if they were otherwise in a case in

which we reverse the district court for treating a nonprecedential opinion as if it were non-precedential, as indeed

it is. In any event, the fact that we affirmed the district court

in Shelton says no more than that the court did not clearly err

in finding the government had carried its burden of proof.

From an institutional perspective, it is unseemly, to say the

least, to promote a non-precedential prior opinion when a subsequent panel agrees with its reasoning or outcome, as in this

case, only to summarily "decline to address" such an opinion

when a subsequent panel disagrees with its reasoning or outcome, as in Minor. After all, as Emerson wrote, it is only

"foolish consistency" that is "the hobgoblin of little minds."

Playing an insidious game of "Gotcha" with the district courts

in this circuit is no way to run a judicial railroad. 

III.

Third, I think that reversing a district judge for his lack of

"common sense," or because he "abandon[ed] logic," if ever

22 UNITED STATES v. FOSTER
appropriate, is to be reserved for the most extreme cases. This

is not one of those cases. I have little doubt that the panel’s

majority and concurring opinions intend this meaning by their

profligate invocation of these terms. See ante at 10 (Motz, J.,

dissenting). And I believe there is a high risk that many readers, both casual and knowledgeable, will view it this way.

Again, if there was clear error, the court should say so in a

forthright manner. It should not hide behind a misapplication

of the de novo standard of review, accompanied by insincere

salutes to "common sense" and "logic."

To be sure, as Judge Wilkinson recently reminded us, "[a]

judge’s toolkit includes common sense." United States v.

Montieth, 662 F.3d 660, 668-69 (4th Cir. 2011). At the same

time, however, "common sense" is no judicial panacea or

magic wand. See Pagan v. Fruchey, 492 F.3d 766, 778 (6th

Cir. 2007) (en banc) ("A judicial pronouncement that an ordinance is consistent with common sense hardly establishes that

it is so."). 

As Judge Motz demonstrates, common sense has not been

appropriately invoked to justify a reversal in this case. In any

event, contrary to any suggestion that the district court lacked

common sense, the distinguished district judge brought to

bear the full breadth of his knowledge, experience, insight and

wisdom in conducting the sentencing hearing in this case. As

he noted both at sentencing and in his written opinion, the

offenses leading to the disputed convictions were committed

when the defendant was 19 years old and that the defendant

had no further felony convictions in the 19 years between

those convictions and the present conviction. Foster, 732 F.

Supp. 2d at 651 n.1. The court did an exemplary job of

explaining its sentencing decision in this case, in which the

defendant had a hunting rifle in his car. 

It may well be that the district court was outraged, and justifiably so, at the thought that Foster should serve a 15-year

sentence for his offense (rather than the 27 months imposed),

UNITED STATES v. FOSTER 23
but no view of the district court’s handling of this case could

reasonably support the conclusion that the court acted lawlessly in adjudicating this case. So that the whole world will

see the genuine attention and evenhandedness the district

court brought to its task in this case, I attach as an appendix

to this opinion a reproduction of a part of the transcript of the

sentencing hearing reflecting the court’s statements.

* * *

In sum, I am convinced this record militates strongly in

favor of rehearing. "[I]f the primacy of trial courts in the sentencing process envisioned in Gall is to be respected, the district court’s reasonable conclusions from a Shepard-approved

document must be upheld." Taylor, 659 F.3d at 348 (Wilkinson, J.). This is no less true when the defendant prevails on

factual determinations under Shepard as when the government prevails. The panel majority’s mistaken assertion that

the proper standard of review here is de novo goes unremedied and Foster, close to (or already) released from federal

prison, will be ordered to report, again, to the United States

Marshal to serve an additional twelve-plus years in prison

imposed by a couple of federal judges he has never seen

before and who have never looked him in the eye.5 Nevertheless, we can be sure that, soon enough, when the government

next prevails on a disputed question arising from a district

court’s interpretation of the facts in a Shepard-approved document, government prosecutors will bound up the steps of our

courthouse and earnestly implore us to apply a clear error

standard of review. And the government will be right to ask

us to do so. Only the fog of injustice beclouding this moment

impedes our ability to see that this is so.

The result here is inconsistent with Supreme Court prece5Good faith disagreements over the application of legal doctrine to one

side, it is unimaginable how the result here might be genuinely "pleas-

[ing]." See ante at 8 (Wilkinson, J.). 

24 UNITED STATES v. FOSTER
dent; incompatible with circuit rules and long-settled understandings; and will be incomprehensible to the communities

we serve. Because en banc review plainly is required here to

maintain uniformity in our jurisprudence and to address issues

of exceptional importance, I dissent from the refusal of the

court to grant the petition for en banc rehearing.

Judge Gregory joins in this dissent.

UNITED STATES v. FOSTER 25
APPENDIX TO

OPINION OF DAVIS, J.,

DISSENTING FROM THE DENIAL OF

REHEARING EN BANC

UNITED STATES v. JOHN JOEL FOSTER

CASE NO. 10-5028

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

THE COURT: Well, if there’s nothing further, I am prepared

to impose sentence at this time. Mr. Foster, if you will stand,

sir. Mr. Foster, is there anything that you wish to say to me

before I pronounce sentence in your case?

THE DEFENDANT: No, sir.

THE COURT: Well, the following are the reasons for the

imposition of the sentence in this case: I’ve carefully considered the factors set forth in 18, United States Code, Section

3553(a), as well as the sentencing range established in this

case by the advisory sentencing guidelines.

The parties have made the following arguments as to the

appropriate sentence, which I’ve also considered. The government argues that I should impose a sentence above the advisory guideline range as a variance, on the ground that the

guideline range is far below the mandatory minimum sentence

otherwise provided for in the Armed Career Criminal Act, and

that, accordingly, since I ruled that the Armed Career Criminal Act was not applicable to Mr. Foster’s case, I should consider a higher sentence than the guideline range.

Of course, the Armed Career Criminal Act was not established by the sentencing commission and has no direct refer26 UNITED STATES v. FOSTER
ence to the factors set forth in 18, United States Code, Section

3553(a). It is a statute that requires a mandatory minimum

regardless of the history and characteristics of the defendant

or the other factors set forth in the statute, and I do not believe

that that is an adequate basis for considering those factors in

the appropriate sentence in this case.

In fact, I believe it would be unjust to impose a sentence

mandated by the Armed Career Criminal Act to the defendant,

since I have found that it is not applicable to him and that

there are no other circumstances, in my view, which would

justify such a sentence.

Now, the government also argues that the defendant’s criminal history underrepresents the seriousness of his prior criminality. I’m not sure whether the government requests an

upward departure within the meaning of the guidelines or

simply an upward variance. But in either event, I do not

believe such a course would be appropriate in this case,

although, of course, I have the discretion to do so.

The prior convictions of the defendant which I considered

in regard to the application of the Armed Career Criminal Act

occurred when the defendant was 19 years old, many years

ago. They involve a series of break-ins to businesses that

occurred in the same geographical area over a relatively short

period of time. There’s no indication that such crimes or types

of crimes such as these have occurred since then in the defendant’s life.

His problem since then has been one of substance abuse,

which I’ll get into in a moment. But there’s no indication that,

since the age of 19, that he has engaged in break-ins or thefts

or other property offenses such as described in the presentence report, so I do not believe that those offenses which

occurred, again, years ago indicate that his criminal history,

as calculated under the advisory sentencing guidelines, underrepresents his criminality.

UNITED STATES v. FOSTER 27
The government also argues that I should sentence the

defendant above the advisory guideline range because in 2006

he was convicted of possession of marijuana, and the facts

indicated that a search of his residence discovered ten marijuana plants, which could have been prosecuted as a felony,

but through plea bargaining he was convicted of a misdemeanor.

Well, in the first place, we don’t have any idea about why

the state prosecutor agreed to a misdemeanor conviction and

the court placed the defendant on probation. I would have to

presume that there was good reason for that. And normally

when a plea bargain to a misdemeanor occurs, it reflects perhaps a problem with proof of a more serious offense, or the

defendant’s conduct, his personal history and characteristics

indicate leniency is indicated. 

But in either event, I do not believe that it would be appropriate for me to impose a sentence above the advisory guideline range because it is theoretically possible that the

defendant may have been convicted of a felony in 2006. 

Now, I believe that the guideline calculation, to which there

has been no objection other than the government’s request

that I impose a mandatory sentence under the Armed Career

Criminal Act, adequately reflects the factors set forth in Section 3553(a), and for that reason, I intend to follow the argument of the defendant and impose a sentence within the

advisory guideline range.

Now, in particular, the defendant has requested a sentence

at the low end of the guideline range. One of the factors I

must consider is, under the statute, a sentence that would provide the defendant with needed correctional treatment in the

most effective manner, including medical care.

As I’ve indicated, the defendant’s problem has been his

substance abuse problem. As the presentence report indicates,

28 UNITED STATES v. FOSTER
he has a long history of alcohol and drug-related problems,

and I believe that the defendant needs treatment while incarcerated. I’m going to recommend to the Bureau of Prisons

that the defendant be subjected to the residential substance

abuse program available in the Bureau of Prisons.

Accordingly, I believe that a sentence at the high end of the

guideline range would make it more likely that the defendant

could receive appropriate treatment while incarcerated.

I would urge the defendant to take advantage of such a program, or any other programs that are available to him while

he’s incarcerated, so that when he gets out, he will be able to

make sure that his substance abuse problems don’t lead him

into the same type of trouble that he is in in this case.

Accordingly, for the reasons stated, it is the judgment of the

Court that the defendant, John Joel Foster, is hereby committed to the custody of the Bureau of Prisons to be imprisoned

for a total term of 27 months. The Court will recommend to

the Bureau of Prisons that the defendant be enrolled in the

residential substance abuse treatment program.

The defendant has performed all the conditions of his bond,

and I will accordingly recommend to—accordingly, I will

permit him to self-report to the institution designated by the

Bureau of Prisons upon notification.

Upon release from imprisonment, the defendant shall be

placed on supervised release for a term of three years. 

UNITED STATES v. FOSTER 29
WYNN, Circuit Judge, dissenting from the denial of rehearing

en banc:

Unfortunately, this Court, equally divided, refuses to grant

rehearing en banc in this case. I write now not to address why

I believe the panel majority was incorrect; rather, I write to

point out why this case is particularly well suited to be considered by the full Court, irrespective of whether one agrees

or disagrees with the panel majority opinion.

To warrant an en banc rehearing, Appellate Procedure Rule

35 requires that en banc consideration be "necessary to secure

or maintain uniformity of the court’s decisions" or that the

issues at hand are "of exceptional importance." Fed. R. App.

P. 35. Stated differently, a rehearing en banc is not contingent

on disagreement with the panel majority. Instead, the rule

mandates simply that due consideration by the full Court is

warranted when an issue is sufficiently important, or there is

enough tension between the opinion and other Circuit precedent.

This case easily clears both hurdles. First, this case is of

exceptional importance, because, among other things, it raises

important Sixth and Fourteenth Amendment issues. As has

already been well covered, in circumstances remarkably similar to those in this case, the Supreme Court, in Shepard v.

United States, 544 U.S. 13 (2005), expressly prohibited courts

from making findings of fact not directly apparent from a

charging document, the terms of a plea agreement, or some

comparable judicial record. Id. at 26. As Justice Souter noted

in his opinion, anything else has serious constitutional implications: 

[T]he Sixth and Fourteenth Amendments guarantee

a jury standing between a defendant and the power

of the State, and they guarantee a jury’s finding of

any disputed fact essential to increase the ceiling of

a potential sentence. While the disputed fact here can

30 UNITED STATES v. FOSTER
be described as a fact about a prior conviction, it 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. The rule of reading statutes to

avoid serious risks of unconstitutionality, therefore

counsels us to limit the scope of judicial factfinding

on the disputed generic character of a prior plea, just

as Taylor constrained judicial findings about the

generic implication of a jury’s verdict.

Id. at 25-26 (opinion of Souter, J.) (citation omitted). The fundamental constitutional rights implicated here are exceptionally important. 

Second, numerous judges on this Court join in Judge

Motz’s dissent to the denial of rehearing en banc, which

expresses the view that the panel majority squarely conflicts

with controlling Supreme Court precedent. Likewise, the

panel majority is in serious tension with our own Court’s case

law, including United States v. Washington, 629 F.3d 403,

409-10 (4th Cir.) (noting "the animating purpose[ ] of the

Taylor/Shepard line: the desire to avoid extensive litigation

about prior convictions at sentencing" and recognizing the

"canonical set of records" upon which courts may rely under

Shepard), cert. denied, 132 S. Ct. 127 (2011), and United

States v. Bethea, 603 F.3d 254, 259-60 (4th Cir. 2010) (rejecting the "most plausible explanation" and common use of the

term "escape" and focusing solely on whether Shepardapproved documents necessarily showed that the defendant

had committed the type of violent conduct required under the

Armed Career Criminal Act ("ACCA")).

The sheer fact that this Court’s vote on this en banc rehearing petition is 7-7 itself indicates that this case is important

and warrants this Court’s full attention. Fully half of this

Court’s judges deem this matter worthy of being one of only

UNITED STATES v. FOSTER 31
a handful of cases, at most, that the Court hears en banc in a

given year. That the 7-7 split of the rehearing vote could indicate that a fractured decision may ultimately arise from

rehearing (which is in no way assured, since voting whether

rehearing en banc is warranted should not be a vote on the

merits, as my previous Rule 35 discussion notes) is no reason

to shy away from rehearing this case. Indeed, were the

Supreme Court to take such a view and dodge contentious

issues, many of the most pressing cases would never get

Supreme Court review. And it seems to me that it is precisely

those difficult cases that benefit most from every considered

view, i.e., from rehearing by the full Court. 

Moreover, I cannot help but wonder what the precedential

value of the panel majority opinion is. First, there is the consideration that Judge Wilkinson writes a concurring separate

opinion that does not address directly why en banc review

should be denied but instead sets forth his considered

thoughts on why "the panel majority here committed no Shepard error." Opinion of Wilkinson, J. at 4. In short, though

Judge Wilkinson votes to deny this Court the opportunity to

review this matter, he nonetheless writes an opinion that concurs in the majority panel opinion. To use his own words in

this context, he is "quick to heap opprobrium" on voting to

allow the merits to be addressed by the full Court, yet engages

in precisely that, which he has denied the full Court, by issuing an opinion that concurs in the panel majority opinion.1

1The concurring opinion states that the dissenters "are quick to heap

opprobrium on the exercise of the obvious, but slow to suggest what the

Corner Market and Sunrise-Sunset Restaurant might be other than buildings or structures." Opinion of Wilkinson, J. at 5. To the contrary, footnote

2 of my dissent from the panel majority opinion does indeed suggest

"what the Corner Market and Sunrise-Sunset Restaurant might be other

than buildings or structures." Id. Of course, those suggestions were not

necessary to the analysis because the appropriate inquiry is whether the

market and restaurant at issue must necessarily be buildings. 

32 UNITED STATES v. FOSTER
Too, Judge Motz and Judge Davis have issued opinions

which, like that of Judge Wilkinson, do not directly address

why en banc review should be allowed. But unlike Judge Wilkinson, they vote to allow all of the other members of this

Court the opportunity to address the merits of the underlying

appeal, as they do in their respective opinions.

Additionally, Judge King, Judge Gregory, Judge Davis,

Judge Keenan and Judge Floyd all concur in Judge Motz’s

dissenting opinion. Judge Gregory also concurs in Judge

Davis’s dissenting opinion. With Senior Judge Hamilton2

(who also wrote a separate opinion concurring in the panel

majority opinion) joining in Judge Agee’s panel majority

opinion, and my dissent from the majority panel opinion, ten

judges have now expressed their opinions on the merits of the

underlying appeal, not just on the decision to deny rehearing.

That leaves the order denying a rehearing en banc essentially affecting only the remaining five judges who have neither written nor joined an opinion that concurs or dissents

from the panel majority opinion. I suppose if those five judges

were to align themselves with any of the opinions arising

from this poll, this Court would effectively have conducted an

en banc review—only without having given the parties access

to the full Court via oral argument to express their views.

Further, what guidance does the panel majority opinion

provide, for this Court and for district courts, going forward?

Is using "common sense" required, or merely discretionary?

Even were employing "common sense" mandatory, different

judges will almost surely have different notions of "common

2Per the Fourth Circuit Judges’ Handbook, "[o]nly active judges may

vote in a poll." However, because Senior Judge Hamilton "was on the

original panel that decided the case[,]" the Handbook provides that he may

"continue[ ] to participate after rehearing en banc is granted." Id. at 22

(emphasis added). Thus, a senior judge may not participate in any manner

during the polling of this matter; instead, a senior judge may participate

only if "rehearing en banc is granted." Id.

UNITED STATES v. FOSTER 33
sense and experience," "resulting in a totally subjective standard . . . ." Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,

1346 (11th Cir. 2010) (Ryskamp, J., dissenting). The outcome

of a "common sense" inquiry in any given case will therefore

likely depend, at least in part, on the identity of the district

court judge or the appellate panel members—a troubling consequence indeed.3

I appreciate that rehearing en banc "is not favored" and is

the exception rather than the rule. Fed. R. App. P. 35. Nevertheless, rehearing en banc is an important tool for giving difficult issues the benefit of every considered view. In

considering rehearing requests, the inquiry should not be,

"would I have voted differently than the panel majority," but

rather, "is the issue this case presents particularly important or

in tension with precedent." See id. With all due respect to my

good colleagues voting to deny the full Court an opportunity

to confront the issues in this case, the correct answer here,

particularly when viewed irrespective of inclinations on the

merits, is a resounding yes. 

I must therefore respectfully dissent from the denial of a

rehearing en banc. Judge Gregory and Judge Davis have

authorized me to indicate that they join in this dissent from

the denial of rehearing en banc.

3That is why the advice posited by the concurring opinion that "a policy

disagreement with the ACCA" is a matter "to be taken up with Congress,"

Opinion of Wilkinson, J. at 8, is advice that should be directed to the

majority panel opinion, in which the concurring opinion joins. Instead of

reading the language of the ACCA and pertinent statutes and case law as

they are written, the majority panel imports its own notions of "common

sense" into the equation. Indeed, "common sense" as used by the majority

panel here is little more than a thinly veiled public policy decision. The

majority panel would therefore seem to be well served by the concurring

opinion’s misdirected advice: "Theirs is a policy disagreement" that

should "be taken up with Congress." Id.

34 UNITED STATES v. FOSTER