United States v. Foster, No. 10-5028

Decided Nov. 30, 2011

John Joel Foster was convicted as a felon in possession of a firearm. During his pre-sentencing investigation, the prosecution noted that Foster was subject to a mandatory fifteen-year sentence under the Armed Career Criminal Act (“ACCA”). This statute imposes a mandatory sentence for criminals that have at least three prior convictions for violent crimes or serious drug offenses. Foster’s three priors were for burglary.

The United States Supreme Court has held that burglary can qualify as a violent crime if the offense adheres to the Court’s definition of a “generic burglary” that has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). Since Foster’s prior convictions were for the “Corner Market,” “Sunrise—Sunset Restaurant,” and a “blacksmith shop,” the district court found that all but the one using the term “shop” could not be certainly identified as buildings or structures and thus imposed sentence without applying the ACCA.

On appeal, a divided Fourth Circuit vacated and remanded the case for resentencing in line with the ACCA. The court held that Virginia used a “non-generic” definition of burglary in its statute, but that according to Taylor, the offense could still be a violent crime if the offender violated a portion of the statute in question that would otherwise comport with the “generic” definition. The majority held that logic dictated that the Corner Market and Sunset—Sunrise Restaurant were an “office, shop … storehouse, warehouse, banking house, or other house” according to the Virginia burglary statute and that this category consisted of “buildings or structures” in line with the generic definition. Senior Judge Hamilton joined the majority and also separately concurred to advocate for the use of common sense in ACCA cases just as “courts routinely employ in determining the meaning of a state or federal statute.”

Finally, Judge Wynn dissented. While agreeing that common sense pointed toward a showing that the Corner Market and Sunrise—Sunset Restaurant were buildings or structures, he noted that the statute and Supreme Court demand the government present evidence that “a prior conviction ‘necessarily ’ involved . . . facts equating to generic burglary,” citing Shepard v. United States, 544 U.S. 13, 24 (2005). Logic and common sense, then, will not be enough to apply the ACCA. The majority’s approach, says Wynn, has the appellate court using “evidence” not on the record and effectively shifts the burden of proof from the government to the defendant—after the government shows the ACCA may apply (by logic or common sense) the defendant is then tasked with showing that it actually does not. This approach, the judge argues, is improper and cannot be used to apply a mandatory fifteen-year sentence.

Full Opinion

-C. Alexander Cable

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