U.S.A v. Alston

• Decision Date: 02 July 2010
• Docket Number: No. 09-4375.,09-4375.
• Citation: 611 F.3d 219
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Willie Lee ALSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

611 F.3d 219

UNITED STATES of America, Plaintiff-Appellee,v.Willie Lee ALSTON, Defendant-Appellant.

No. 09-4375.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2010.

Decided: July 2, 2010.

ARGUED: Meghan Suzanne Skelton, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. George Jarrod Hazel, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER and KING, Circuit Judges, and EUGENE E. SILER, JR., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Senior Judge SILER joined.

OPINION

NIEMEYER, Circuit Judge:

This appeal presents the question of whether Willie Alston's sentence for possession of a firearm in violation of 18 U.S.C. § 922(g)(1) was properly enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which provides for an enhancement based on a defendant having three prior convictions for a violent felony or a serious drug offense. In enhancing Alston's sentence, the district court relied on a prior conviction resulting from Alston's Alford^* plea to a Maryland charge for second-degree assault. Under Maryland law, the second-degree assault offense includes several different generic crimes, some of which are violent felonies and some of which are not. See United States v. Coleman, 158 F.3d 199, 202 (4th Cir.1998) (en banc); see also Cruz v. State, 407 Md. 202, 963 A.2d 1184, 1188 n. 3 (2009). To demonstrate that Alston's conviction was for a violent felony, the government submitted the transcript of Alston's Alford plea proceeding, which showed that the state prosecutor's proffer of the facts that the State would have presented at trial indicated that Alston had committed a violent felony, but also that Alston never agreed to those facts.

Because Alston's Alford plea to second-degree assault did not necessarily rest on facts establishing his participation in a type of assault that qualifies as a violent felony see Shepard v. United States, 544 U.S. 13, 20-21, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), in that (1) he admitted to no such facts and (2) such facts are not inherent in a Maryland conviction for second-degree assault, we cannot conclude that Alston's conviction for second-degree assault qualifies as a predicate conviction under ACCA. Accordingly, we vacate Alston's sentence and remand for resentencing.

I

In March 2008, officers stopped a vehicle driven by Antoinetta Green for failure to stop at a stop sign. When officers smelled a strong odor of marijuana emanating from the vehicle, they asked the passenger, Willie Alston, to step out of the car. When he did, the officers saw a 9 mm handgun resting on the seat he had vacated. Alston subsequently pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

The presentence report indicated that Alston qualified for a sentencing enhancement under ACCA based on his Maryland convictions for (1) robbery with a deadly weapon, (2) second-degree assault, and (3) manufacturing a controlled dangerous substance. Alston objected to the report's designation of him as an armed career criminal, contending that there was a lack of evidence from which to determine that the second-degree assault offense for which he was convicted was a violent felony qualifying as an ACCA predicate offense.

At Alston's sentencing hearing, the district court agreed with Alston that the charging document for his second-degree assault conviction did not show on its face that the crime was a violent felony. The court, however, continued the hearing to allow the government to obtain materials approved by Shepard, 544 U.S. at 26, 125 S.Ct. 1254, to demonstrate that Alston's second-degree assault conviction was for a violent felony.

The government obtained and submitted the transcript of the proceeding in which Alston pleaded guilty to second-degree assault, which revealed that on March 7, 2002, in the Circuit Court for Baltimore City, Alston entered an Alford plea to three counts of second-degree assault and three counts of unlawfully wearing, carrying, or transporting a handgun. During the course of the proceeding, the state prosecutor proffered the evidence that she would have presented at trial, indicating that the State's witnesses would have testified that Alston pointed a gun at three victims and threatened to kill them. Following the proffer, Alston, through counsel, stipulated that the State's witnesses would have testified to that effect, but Alston never agreed to the truth of the proffered facts. The state judge accepted Alston's Alford plea and sentenced Alston to five years' imprisonment, with all but three years suspended.

When Alston's sentencing hearing in this case was reconvened, Alston maintained his objection to being designated as an armed career criminal on the ground that the state prosecutor's proffer in connection with the second-degree assault conviction did not satisfy the demands of Shepard. Alston argued that although “an Alford plea results in a conviction for criminal history purposes[,] ... it does not result in the kind of certainty that Shepard requires for the Court to know ... what the defendant [was] pleading guilty to.”

The district court rejected Alston's argument, reasoning that “by his plea of guilty [in the state court], the defendant effectively acquiesced in” the state judge's acceptance of the facts proffered in support of the guilty plea. Accordingly, the court found that the government had carried its burden of showing that Alston qualified as an armed career criminal under 18 U.S.C. § 924(e) and sentenced him to the statutory mandatory minimum term of 180 months' imprisonment. Alston appealed, raising the single issue:

Where the defendant enters a plea under the doctrine announced in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), can the district court consider the disputed facts proffered by the prosecutor to establish the nature of a prior conviction and whether that conviction qualifies as a [violent felony] under the Armed Career Criminal Act?

II

A violation of 18 U.S.C. § 922(g) ordinarily carries a maximum prison term of 10 years. See 18 U.S.C. § 924(a)(2). But ACCA specifies that a defendant who has “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another” must be sentenced to at least 15 years' imprisonment. Id. § 924(e)(1). The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

Id. § 924(e)(2)(B).

The sole question here is whether the district court properly found that Alston's second-degree assault conviction was a conviction for a “violent felony” when the conviction was obtained pursuant to an Alford plea, during which the state prosecutor proffered evidence of conduct constituting a violent felony but Alston agreed only that if the case were tried, “the State's witnesses would testify” as indicated in the proffer.

In Maryland, the statute prohibiting second-degree assault provides simply that “[a] person may not commit an assault” and that a person found guilty “is subject to imprisonment not exceeding 10 years.” Md.Code Ann., Crim. Law § 3-203. “Assault” is defined to mean “the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings.” Id. § 3-201(b). The Maryland courts treat “assault” as a term of art “ ‘connot[ing] any of three distinct ideas: 1. A consummated battery or the combination of a consummated battery and its antecedent assault; 2. An attempted battery; and 3. A placing of a victim in reasonable apprehension of an imminent battery.’ ” Cruz v. State, 407 Md. 202, 963 A.2d 1184, 1188 n. 3 (2009) (quoting Lamb v. State, 93 Md.App. 422, 613 A.2d 402, 404 (1992)). A “battery,” in turn, is defined in Maryland common law to include “any unlawful force used against the person of another no matter how slight.” State v. Duckett, 306 Md. 503, 510 A.2d 253, 257 (1986) (internal quotation marks and citation omitted). Relying on state court cases, we have previously noted the resulting broad scope of the Maryland crimes of battery and assault:

The common law offense of battery thus embraces a wide range of conduct, including kissing without consent, touching or tapping, jostling, and throwing water upon another. It may include even indirect applications of force such as directing a dog to attack or exposing a helpless person to the inclemency of the weather.... At the other end of the spectrum, a battery includes a fatal shooting or stabbing of a victim.

United States v. Kirksey, 138 F.3d 120, 125 (4th Cir.1998) (internal quotation marks and citations omitted). Thus, under Maryland law, second-degree assault encompasses several distinct crimes, some of which qualify as violent felonies and others of which do not. See

Johnson v. United States, --- U.S. ----, ----, ----, 130 S.Ct. 1265, 1269, 1273, 176 L.Ed.2d 1 (2010) (suggesting that although a battery conviction for merely “[a]ctually and intentionally touch[ing]” another would not be a conviction for a violent felony, other battery offenses criminalized by the same Florida statute would qualify as violent felonies).

Recognizing this ambiguity, the district court invited the government to produce the transcript of Alston's guilty plea...