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    United States v. Baxter, 642 F.3d 475, 4th Cir. (2011)

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    The United States Court of Appeals for the Fourth Circuit affirmed Earnest Baxter's sentence under the Armed Career Criminal Act (ACCA) for possession of a firearm by a convicted felon. The ACCA imposes a mandatory minimum 15-year sentence if a defendant has three prior convictions for violent felonies or serious drug offenses. Baxter argued that one of his prior burglary convictions did not qualify as a predicate offense. However, the court found that documents from Baxter's prior case established that he pleaded guilty to burglarizing a "shop," which under Virginia law refers to a structure affixed to the ground like a building. Therefore, his prior conviction qualified as generic burglary under the ACCA.

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    United States v. Baxter, 642 F.3d 475, 4th Cir. (2011)

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    The United States Court of Appeals for the Fourth Circuit affirmed Earnest Baxter's sentence under the Armed Career Criminal Act (ACCA) for possession of a firearm by a convicted felon. The ACCA imposes a mandatory minimum 15-year sentence if a defendant has three prior convictions for violent felonies or serious drug offenses. Baxter argued that one of his prior burglary convictions did not qualify as a predicate offense. However, the court found that documents from Baxter's prior case established that he pleaded guilty to burglarizing a "shop," which under Virginia law refers to a structure affixed to the ground like a building. Therefore, his prior conviction qualified as generic burglary under the ACCA.

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    Filed: 2011-04-26 Precedential Status: Precedential Citations: 642 F.3d 475 Docket: 10-4080

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    The United States Court of Appeals for the Fourth Circuit affirmed Earnest Baxter's sentence under the Armed Career Criminal Act (ACCA) for possession of a firearm by a convicted felon. The ACCA imposes a mandatory minimum 15-year sentence if a defendant has three prior convictions for violent felonies or serious drug offenses. Baxter argued that one of his prior burglary convictions did not qualify as a predicate offense. However, the court found that documents from Baxter's prior case established that he pleaded guilty to burglarizing a "shop," which under Virginia law refers to a structure affixed to the ground like a building. Therefore, his prior conviction qualified as generic burglary under the ACCA.

    Copyright:

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    38 views6 pages

    United States v. Baxter, 642 F.3d 475, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed Earnest Baxter's sentence under the Armed Career Criminal Act (ACCA) for possession of a firearm by a convicted felon. The ACCA imposes a mandatory minimum 15-year sentence if a defendant has three prior convictions for violent felonies or serious drug offenses. Baxter argued that one of his prior burglary convictions did not qualify as a predicate offense. However, the court found that documents from Baxter's prior case established that he pleaded guilty to burglarizing a "shop," which under Virginia law refers to a structure affixed to the ground like a building. Therefore, his prior conviction qualified as generic burglary under the ACCA.

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    of 6

    PUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    EARNEST ROBERT BAXTER,
    Defendant-Appellant.

    No. 10-4080

    Appeal from the United States District Court


    for the Western District of Virginia, at Roanoke.
    Samuel G. Wilson, District Judge.
    (7:09-cr-00046-sgw-1)
    Argued: March 25, 2011
    Decided: April 26, 2011
    Before KING, DAVIS, and KEENAN, Circuit Judges.

    Affirmed by published opinion. Judge Davis wrote the opinion, in which Judge King and Judge Keenan concurred.

    COUNSEL
    ARGUED: Randy Virlin Cargill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED
    STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender,

    UNITED STATES v. BAXTER

    Christine Madeleine Lee, Research and Writing Attorney,


    OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United
    States Attorney, R. Andrew Bassford, Assistant United States
    Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
    Roanoke, Virginia, for Appellee.

    OPINION
    DAVIS, Circuit Judge:
    Earnest Robert Baxter pled guilty to one count of possession of a firearm by a convicted felon, in violation of 18
    U.S.C. 922(g)(1). Baxter was sentenced under the Armed
    Career Criminal Act ("ACCA"), 18 U.S.C. 924(e), to the
    mandatory minimum period of incarceration: 180 months.
    Baxter appeals his sentence, contending, as he did before the
    district court, see United States v. Baxter, 677 F. Supp. 2d 918
    (W.D. Va. 2010), that the government failed to satisfy its burden to establish that his 1976 burglary conviction in state
    court qualifies as a predicate offense under the ACCA. Like
    the district court, id. at 921-22, we conclude that the government satisfied its burden; accordingly, we affirm.
    Under the ACCA, a defendant may be sentenced as an
    armed career criminal (and thus subject to a fifteen-year mandatory minimum sentence) if he violates 18 U.S.C. 922(g)
    and has at least three prior convictions for violent felonies
    and/or serious drug offenses. 18 U.S.C. 924(e)(1). Whether
    a prior conviction qualifies as a predicate offense under
    924(e) is a question of statutory construction we review de
    novo. United States v. Brandon, 247 F.3d 186, 188 (4th Cir.
    2001).
    To determine whether an offense under state law falls
    within the definition of a violent felony, courts generally

    UNITED STATES v. BAXTER

    employ a categorical approach, under which consideration is


    given only to the essential elements of the offense and the fact
    of conviction. See United States v. White, 571 F.3d 365, 368
    (4th Cir. 2009). Burglary is a "violent felony" under the
    ACCA. 18 U.S.C. 924(e)(1)(B)(ii). Interpreting the ACCA,
    the Supreme Court has held that "a person has been convicted
    of burglary . . . 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." Taylor v.
    United States, 495 U.S. 575, 599 (1990).
    While a sentencing court normally may look only to the
    statutory elements of an offense and the fact of the conviction,
    because some statutes (like the Virginia provisions at issue
    here) define burglary broadly to encompass enclosures other
    than "a building or structure," the categorical approach "may
    permit the sentencing court to go beyond the mere fact of conviction" in certain cases. Id. at 602. Thus, an offense will constitute burglary if the jury was required "to find all the
    elements of generic burglary in order to convict the defendant," and "the indictment or information and jury instructions show that the defendant was charged only with a
    burglary of a building," so "the jury necessarily had to find an
    entry of a building to convict." Id. In cases where, as here, the
    defendant pled guilty to the prior offense, a federal sentencing
    court may consider certain court documents, including but not
    limited to the indictment, a transcript of the plea colloquy
    and/or the written plea agreement. Shepard v. United States,
    544 U.S. 13, 20-21 (2005).
    Baxter correctly argues that the Virginia statute under
    which he was convicted in 1976 contains a definition of burglary that is broader than the Taylor definition of generic burglary: it encompasses not only unlawful entry into "a building
    or structure," but, under some circumstances, an automobile,
    truck, ship, or railroad car, as well. See Va. Code Ann. 18.2-

    UNITED STATES v. BAXTER

    90.1 At sentencing, the government produced to the district


    court three relevant documents: (1) the indictment, which
    charged Baxter with breaking and entering into a "shop"; (2)
    the order memorializing Baxters guilty plea; and (3) the
    order imposing sentence. Baxter, 677 F. Supp. 2d at 920-21.
    Baxter did not object to the courts consideration of these documents. Rather, seizing on the use in the indictment of the
    term "shop" to describe the premises where he committed the
    challenged burglary offense, he contends before us (as he did
    below) that the term is too ambiguously expansive to support
    a finding that his entry was into "a building or structure" as
    required by Taylor. He essentially contends that, for all that
    appears, a "shop" could be operated out of a "railroad car, or
    any automobile, truck or trailer." See supra n.1.
    As the district court correctly concluded, however, Baxters
    contention founders on the definitive construction of the Virginia statute by the Virginia Supreme Court in Graybeal v.
    Commonwealth, 324 S.E.2d 698, 700 (Va. 1985).2 In Gray1

    In pertinent part, the 1976 version of the applicable Virginia statute


    provided:
    If any person in the nighttime enters without breaking or in the
    daytime breaks and enters or enters and conceals himself in a
    dwelling house or an adjoining, occupied outhouse or in the
    nighttime enters without breaking or at any time breaks and
    enters or enters and conceals himself in any office, shop, manufactured home, storehouse, warehouse, banking house, church
    . . . , or other house, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile,
    truck or trailer is used as a dwelling or place of human habitation,
    with intent to commit [a crime] . . . , he shall be deemed guilty
    of statutory burglary . . . .
    Va. Code Ann. 18.2-90. The parties have sparred over the import of a
    2004 amendment to the statute, see Baxter, 677 F. Supp. 2d at 922 n.3, but
    we decide this case solely on the basis of the language of the statute as it
    existed at the time Baxter committed his offense in 1976.
    2
    See Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1270
    (2010) (noting that, in analyzing ACCA predicates, "[w]e are . . . bound
    by the [state] Supreme Courts interpretation of state law, including its
    determination of the elements of [the pertinent statute]") (alterations
    added).

    UNITED STATES v. BAXTER

    beal, the court reversed a conviction under the statute because


    the proof at trial established at most that the defendant had
    entered a "trailer." Id. Proof that a trailer was entered could
    only support a conviction if the trailer were used for human
    habitation. Id. The evidence at trial failed to establish this. Id.
    Significantly, the prosecution sought to salvage the conviction by reliance on the theory that a "trailer" might be deemed
    an "other house" within the meaning of the statute. Id. In
    rejecting the prosecutions alternative argument, the court reasoned as follows:
    The Commonwealth argues that even if the convictions cannot be upheld on the basis of breaking
    and entering twelve trailers, they can be upheld
    because the structures fall under the category "other
    house" that is set forth in Code 18.2-90. We find
    no merit in this argument. The phrase "other house"
    is a general phrase placed at the end of a list of specific references to various structures [i.e., any office,
    shop, manufactured home, storehouse, warehouse,
    banking house, church . . .]. Those specific structures
    share the common element of being improvements
    affixed to the ground, that is, they are realty. Under
    the doctrine ejusdem generis, the general phrase
    "other house" must look for its meaning to the specific items which precede it. See Martin v. Commonwealth, 224 Va. 298, 295 S.E.2d 890 (1982). The
    structures into which Graybeal entered were not
    realty. Thus, they do not fall within the scope of
    "other house." In our opinion, it would violate sound
    principles of statutory construction and strain the
    clear intendment of the statute to hold that a trailer
    not used as a dwelling nevertheless falls under the
    definition of "other house."
    Id. (emphasis added).

    UNITED STATES v. BAXTER

    As can be seen, therefore, the grand jurys use of the term


    "shop" in the indictment to which Baxter pled guilty in 1976
    did not take his conviction outside of the sweep of the Taylor
    holding on the meaning of "burglary" under the ACCA.3 To
    the contrary, as the district court correctly found, the reference to "shop" in the indictment "necessarily established" that
    Baxters burglary conviction was based on his entry into a
    structure that was "affixed to the ground," id. (emphasis
    added), namely, "a building." Taylor, 495 U.S. at 599.
    For the reasons set forth, the judgment of the district court
    is
    AFFIRMED.

    Baxter suggested at oral argument that the fact that he pled guilty to
    burglary and was sentenced years before the Virginia Supreme Court rendered its definitive interpretation of the Commonwealths burglary statute
    in Graybeal forecloses the application of that case in his federal sentencing proceeding. He cited no support for this proposition and we reject it.
    Cf. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) ("A
    judicial construction of a statute is an authoritative statement of what the
    statute meant before as well as after the decision of the case giving rise
    to that construction.").

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