                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 08-5036


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LAMONT A. TOYER,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cr-00513-RWT-1)


Argued:   May 11, 2010                    Decided:   February 25, 2011


Before WILKINSON and DAVIS, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.    Judge Davis wrote
Parts I and II of the opinion, in which Judge Wilkinson and
Senior Judge Beam joined.   Judge Wilkinson wrote Parts III and
IV of the opinion, in which Senior Judge Beam joined.      Judge
Davis wrote a separate opinion concurring in part and dissenting
in part.


ARGUED:   Pat   M.   Woodward, Jr.,   Annapolis,   Maryland,  for
Appellant.    Mushtaq Zakir Gunja, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.     ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Robert
K. Hur, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Appellant     Lamont    Toyer     (“Toyer”)      entered       a     conditional

guilty plea to knowingly and unlawfully possessing a firearm

that had traveled in or affected interstate commerce after being

convicted of one or more crimes punishable by imprisonment for a

term exceeding one year, in violation of 18 U.S.C. § 922(g)(1).

The indictment arose from events occurring at Toyer’s residence,

during which the police seized two handguns discovered after a

warrantless search.          Toyer raises two issues on appeal.                     First,

he contends that the district court erred when it denied his

motion to suppress the handguns found in his residence.                            Second,

he contends that the district court erred in sentencing him to

an enhanced sentence under the Armed Career Criminal Act.



                                          I.

       Shortly      before     midnight        on    June    5,     2007,      Officers

Christopher      Adams       (“Officer      Adams”)      and       William     Weathers

(“Officer     Weathers”)       were    dispatched       to     a    house     in    Upper

Marlboro, Maryland, to respond to a 911 call.                        Toyer lived at

the    residence     with    his   sister      Kimberly      Ballard      (“Ballard”).

Officers Adams and Weathers were met at the door of the house by

Ballard and her friend Kimberly Elliot (“Elliot”), who had also

been staying at the house as a guest of Ballard’s.                           Elliot had

made    the   911    call,    telling     the       dispatcher      that     Toyer     had

                                          2
threatened to shoot her if she did not leave the house.                                  She

repeated that information to the officers when they arrived.

Ballard and Elliot also told the officers that Toyer had been

drinking alcohol, was possibly intoxicated, and that Toyer was

in the basement of the house.

      After speaking with the two women, the officers entered the

house and, standing at the top of the basement stairs with their

weapons      unholstered,           asked    Toyer    to     come    upstairs.         Toyer

replied that he would not come upstairs.                         A conversation between

Toyer     and       the   officers         ensued    for    two     to   three      minutes;

eventually,          Toyer    came     upstairs.           The     officers   immediately

handcuffed Toyer, placed him on the floor, and conducted a pat

down search, but they did not find any weapons on Toyer.                                 The

officers asked Toyer if he had a gun, and Toyer replied that he

did not.            Elliot had previously told the officers that Toyer

kept the weapon “downstairs” — possibly on a shelf — and so

Officer Adams began a sweep of the basement area.                             When he did

not   find      a    weapon    in     the    basement      after    searching    the    area

twice, Officer Adams went back upstairs and advised the other

officers that there was no weapon in the basement.

      Another         officer,       who     had    just    arrived      on   the     scene,

overheard       Officer       Adams    and    told   him     that    Elliot   had     stated

that the weapon might be in the drop ceiling of the basement.

Officer Adams then returned to the basement a third time and

                                               3
noticed that one of the tiles in the drop ceiling was ajar.                               He

used a chair to boost himself up and, feeling around, pulled

down two handguns.           The guns were fully loaded with the safety

in the “off” position and with rounds in the chambers.                                  Toyer

was formally arrested after the guns were found.

       After the grand jury returned an indictment on November 7,

2007, charging Toyer with possession of a firearm in violation

of    18   U.S.C.       § 922(g),   he   filed       a    motion       to   suppress     the

firearms.        The district court conducted an evidentiary hearing.

After      hearing      testimony   from   the       officers        and    Ballard,     the

district court denied Toyer’s motion to suppress, finding that

(1)     there     was    valid   consent       for       the    search      and,   in    the

alternative, (2) the search was justified by the existence of

exigent circumstances.

        Toyer then entered into a plea agreement pursuant to which

he pled guilty to violating 18 U.S.C. § 922(g).                              In the Pre-

Sentence        Investigation    Report    (“PSR”),            the   probation     officer

assigned Toyer 11 criminal history points, which established a

criminal history category of V.                  The PSR, however, concluded

that    Toyer     should    be   classified     as       an    armed    career     criminal

under      18   U.S.C.     § 924(e)   of   the       Armed      Career      Criminal     Act

(“ACCA”), resulting in a criminal history category of VI.

        At sentencing, Toyer challenged his classification as an

armed career criminal, arguing that his August 2004 conviction

                                           4
in Maryland Circuit Court for second-degree assault was not an

ACCA predicate offense.          The district court disagreed, finding

that the second-degree assault conviction was a “violent felony”

under the ACCA.     See 18 U.S.C. § 924(e)(1)(B).         The court based

its determination on the plea colloquy relating to that offense:

while   reciting    the     factual    basis   for    Toyer’s   plea,    the

prosecutor   stated       that   he   would    have   proved    that    Toyer

threatened his girlfriend with a handgun.

     Accordingly, the court sentenced Toyer to 210 months of

imprisonment, which was at the bottom of the applicable advisory

guidelines range.     Toyer filed a timely notice of appeal.



                                      II.

     When a motion to suppress is denied, we review the evidence

in the light most favorable to the government.           United States v.

Perkins, 363 F.3d 317, 320 (4th Cir. 2004).                We review the

factual findings underlying the ruling on the motion to suppress

for clear error and the legal determinations de novo.                  United

States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).

     On appeal, Toyer argues that Officer Adams’s search for

weapons exceeded the scope of any consent given and that the

search did not fall under any other exception to the Fourth

Amendment’s warrant requirement.            The district court, however,

did not clearly err in finding that the officers had consent

                                      5
from Ballard and Elliot to search the basement area for weapons,

or that, in the alternative, exigent circumstances validated the

warrantless search.



                                       A.

     The   Fourth       Amendment   provides    that    “[t]he      right    of    the

people   to   be   secure     in    their    persons,     houses,    papers,       and

effects against unreasonable searches and seizures, shall not be

violated . . . .”        U.S. Const. amend. IV.         The Fourth Amendment,

therefore,    protects       against    warrantless       searches     of     homes.

But “the Amendments are not rigid; they protect by insisting on

judicial oversight, not by pressing inflexible rules,” Mora v.

City of Gaithersburg, 519 F.3d 216, 222 (4th Cir. 2008), and

this general rule is “subject to certain exceptions,” Brigham

City v. Stuart, 547 U.S. 398 (2006).

     We first consider Toyer’s argument that the officers did

not have consent to search his residence for weapons.                          Valid

consent is a well-recognized exception to the Fourth Amendment’s

prohibition against warrantless searches. Illinois v. Rodriguez,

497 U.S. 177, 181 (1990); United States v. Neely, 564 F.3d 346,

350 (4th Cir. 2009) (per curiam); Trulock v. Freeh, 275 F.3d

391, 401 (4th Cir. 2001).            The government bears the burden of

establishing,      by    a   preponderance     of   the    evidence,        that    it

obtained valid consent to search.             See United States v. Buckner,

                                         6
473 F.3d 551, 554 (4th Cir. 2007); United States v. Block, 590

F.2d 535, 539 (4th Cir. 1978).

        A consent must be (1) knowing and voluntary, and (2) given

by one with authority to consent.                       Buckner, 473 F.3d at 554.

There is no question in this case that any consent given by

Ballard and Elliot was knowing and voluntary. 1                   The analysis then

turns        to   whether      the   person       giving    consent   had      apparent

authority and whether the police officers exceeded the scope of

the given consent.

        A warrantless search can be justified by showing permission

to search by “a third party who possessed common authority over

or   other        sufficient    relationship       to    the   premises   or    effects

sought to be inspected.”               United States v. Matlock, 415 U.S.

164, 171 (1974).            The defendant is not the only person with

        1
       In her direct examination at the motions hearing, Ballard
stated that although she authorized the officers to enter the
house, she never consented to a search of the house:

        Q:    Other than saying they could step inside the
        house, did you say that they could search the house?

        A:    No.    No, I did not.

J.A. 106.   Nevertheless, the district court declined to credit
Ballard’s testimony in this regard, finding that the facts
clearly showed that both Ballard and Elliot were “clearly upset
and disturbed and wanted something done about [the situation]”
and that Ballard’s grand jury testimony indicated the same.
J.A. 185. We have no occasion to question the district court’s
credibility determinations, and we therefore fully accept the
court’s finding that Ballard gave consent to search the house at
the same time that Elliot also gave consent.



                                              7
authority          to    consent    to   a    search      of   his   home     or    residence;

authority arises from mutual use of the property by those with

joint access or control.                     Trulock, 275 F.3d at 403.                   “Common

authority” is not merely a question of property interest but

requires evidence of “mutual use” by one generally having “joint

access or control for most purposes.”                          Matlock, 415 U.S. at 171

n.7.        Such use makes it “reasonable to recognize that any of the

co-[users] has the right to permit the inspection in h[er] own

right and that the other have assumed the risk that one of their

number might permit the common area to be searched.”                                     Id.    In

the context of a house, a co-habitant of the house may give

valid       consent       to    search   even   if     other     co-habitants         have     not

given consent.                United States v. Hylton, 349 F.3d 781, 785 (4th

Cir. 2003).

        A    lack        of    actual    authority,       however,       does      not    render

consent invalid.                 The government may also show that a third

party        had        apparent    authority        to    consent       to     the      search.

Rodriguez, 497 U.S. at 188; see also Buckner, 473 F.3d at 555.

An   officer            can    reasonably     believe      that      a   third      party      has

apparent authority to consent to a search if the facts available

to the officer warrant a person of reasonable caution in the

belief that the consenting party had authority.                               Rodriguez, 497

U.S. at 188.               Evidence obtained by the police acting under a

reasonable belief that a third party had authority to grant a

                                                8
valid consent need not be suppressed.                   United States v. Kinney,

953 F.2d 863, 866-67 (4th Cir. 1992).

       Here, Ballard, who lived at the residence with her brother,

the    defendant,    had    authority      to    give    consent       to   search     the

house, and it was also reasonable for the officers to believe

that Elliot had authority to consent to the search of the house.

Any officer responding to the 911 call at that residence would

have faced circumstances where they could reasonably infer that

both Ballard and Elliot had authority to give consent to search:

when the officers arrived at the residence, both women met them

outside the house and repeated to the police that Toyer had a

gun,    was   in    the    house,   and    was    in     the    basement       where    he

regularly stored his guns.

       Although Toyer argues that the officers exceeded the scope

of    any   valid   consent    because         Ballard    and    Elliot       only   gave

permission to enter the house to search for him, and not for any

weapons, his argument is not persuasive.                    The scope of consent

for a search is “objective reasonableness,” or rather, what a

reasonable     person      would    have       understood       from    the    exchange

between the officer and consenting person.                      Florida v. Jimeno,

500 U.S. 248, 251 (1991).            When an official search is properly

consented to, the scope of the search is limited by the terms of

the authorization.         Walter v. United States, 447 U.S. 649, 656-

57 (1980).

                                           9
       We have held that a consenting person need not even give

explicit and express consent to search for a reasonable officer

to understand that valid consent was given.                                See Hylton, 349

F.3d at 786 (holding that consent may be inferred from actions

as well as words); United States v. Wilson, 895 F.2d 168, 170

(4th Cir. 1990) (finding consent where defendant raised his arm

after agent asked him permission for a pat down search); see

also United States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010)

(finding implied consent for police to enter and search home for

defendant      where       consenting        person      had    called      911,    and    also

voluntarily told the police where the defendant was hiding in

the house); United States v. Buetter-Janusch, 646 F.2d 759, 764

(2d Cir. 1981) (“[A] search may be lawful even if the person

giving consent does not recite the talismanic phrase: ‘You have

my permission to search.’”).

       We    found,      in    Hylton,        implicit         consent      to    search    the

apartment in which the defendant and his girlfriend lived based

on the circumstances and the girlfriend’s words.                                  349 F.3d at

786.        This   court      found    that        the   girlfriend        gave    the   police

consent to search the apartment to enable her to return to the

apartment safely, and that the officers reasonably inferred that

she authorized them to retrieve the gun that had put her at

risk.        Id.      We    were      also    persuaded         by   the    fact    that    the

girlfriend         had      advised          the     officers        of      the     specific

                                               10
circumstances     inside   the   apartment,     concluding    that   “when   a

tenant calls police for assistance . . . expressing fear about

the presence of a gun, and describing precisely where the gun is

located, it can be inferred that she is authorizing the police

to enter the apartment and retrieve the gun.”          Id. at 786-87.

     The situation here — one of a domestic dispute involving

threats of violence with a gun — is similar to the situation in

Hylton, and even if Ballard and Elliot did not give express

consent to search the house for weapons, the officers reasonably

inferred   that    such    implicit   consent    had   been    given.      The

government’s burden is heavier where consent is not explicit,

since consent is not lightly to be inferred.           Neely, 564 F.3d at

350 (citing United States v. Impink, 728 F.2d 1228, 1232 (9th

Cir. 1984)).      But the government meets the burden in this case.

In their testimony, both officers stated that Ballard and Elliot

seemed concerned and scared that Toyer had threatened Elliot

with a gun, and told the officers that Toyer was in the basement

of the house with the weapon.         Additionally, Elliot told Officer

Adams that the gun was on a shelf, but then later told another

officer that the gun may have been in the drop ceiling.                 Though

she did not explicitly state “I consent for you to search the

basement area for the gun,” it is reasonable to believe that a

rational officer would find her statements about the whereabouts

of the gun to be consent to search for the gun.              Furthermore, it

                                      11
is reasonable for the officers responding to the frantic 911

call to believe that both Ballard and Elliot were giving consent

for the officers to enter the house, search for Toyer and his

weapon, and diffuse the potentially dangerous situation.

       Although the officers made it clear to Ballard and Elliot

after       they   had   detained      and    secured        Toyer   that    they    were

searching for the gun, even asking the two women if they knew

where the gun was kept, neither woman withdrew her permission to

search the house for the weapon.                  And while Toyer, who was a co-

habitant of the house, could have expressly refused consent for

the police to enter and search the house for weapons, he did no

such thing even after he was detained and knew that the officers

were       continuing    to   search   the        basement    for    a   weapon. 2    See


       2
       There is some dispute as to whether Toyer explicitly told
the officers that they did not have his consent to search the
house, but the record persuasively convinces us that he did not.
First, during his testimony at the motions hearing, Officer
Adams was asked whether he had heard Toyer state at any point
that they could not search his house without a warrant. Officer
Adams replied that he had not.     J.A. 120.    Second, although
Ballard testified that she heard her brother explicitly deny
consent to search, the district court found that her testimony
was not credible:

       I do not credit the testimony of the sister at all on
       the notion that he invoked his right to be free from
       unreasonable searches and seizures.  My understanding
       from what I’ve heard and in this testimony is that he
       simply refused to come upstairs.

J.A. 182.   Given the high standard and deference we give to a
district court’s factual finding, and given the testimony of the
(Continued)
                                             12
Georgia   v.   Randolph,   547   U.S.    103,    123    (2006)   (holding    that

where there was an express refusal of consent to search from a

co-habitant, the consent of the fellow occupant is not valid).

Therefore, it is clear that the officers had valid consent from

Ballard and Elliot to search the house and all evidence found

during that search was correctly admitted.



                                        B.

     Not only did the officers have valid consent to justify the

warrantless search, but the search of Toyer’s residence was also

valid because of exigent circumstances.                It is well-established

that even when an officer has probable cause to believe that

contraband is present in a home, a warrantless search of the

home is unlawful unless exigent circumstances exist at the time

of entry.      United States v. Mowatt, 513 F.3d 395, 399 (4th Cir.

2008) (citing Payton v. New York, 445 U.S. 573, 589 (1980)).

Exigent   circumstances       justify    a   warrantless     search   when    an

officer   would   have   an   objectively       reasonable   belief   that    an




officers that they did not hear Toyer refuse consent to search
the house, we cannot find that the district court committed a
clear error in finding that Toyer stayed silent with respect to
the search of the house. See also Ornelas v. United States, 517
U.S. 690, 699 (1996) (reviewing factual findings by “giving due
weight to inferences drawn from those facts by resident judges
and local law enforcement officers”).


                                        13
emergency     existed       that       required    immediate       entry      to    render

assistance or prevent harm.                   United States v. Moss, 963 F.2d

673, 678 (4th Cir. 1992).                 The government bears the burden of

demonstrating that exigent circumstances existed to overcome the

presumption of unreasonable search and entry.                          See Mowatt, 513

F.3d at 399.           Exigency is determined at the moment the search

occurs.          Id.       Exigent       circumstances         exist    in    situations

involving a “risk of danger to the police or to other persons

inside or outside the dwelling,” as well as in situations where

officers have probable cause to believe that there is illegal

activity present, where there is a compelling need for official

action, and where there is no time to secure a warrant.                             United

States v. Moses, 540 F.3d 263, 270 (4th Cir. 2008) (quoting

Minnesota v. Olson, 495 U.S. 91, 100 (1990)); see also Michigan

v. Tyler, 436 U.S. 499, 509 (1978).                    In ascertaining whether an

officer acted reasonably in determining whether urgency existed,

the   court      must     look    at    the   events     and    officer’s      knowledge

immediately       prior     to     commencing      the     search       and   apply    an

objective standard.          Moses, 540 F.3d at 273; Hunsberger v. Wood,

570 F.3d 546, 554 (4th Cir. 2009).

      We have articulated a nonexhuastive list of factors for the

police      to         consider        when    determining         whether         exigent

circumstances are present:               “(1) the degree of urgency involved

and the amount of time necessary to obtain a warrant; (2) the

                                              14
officers’ reasonable belief that the contraband is about to be

removed or destroyed; (3) the possibility of danger to police

guarding the site; (4) information indicating the possessors of

the contraband are aware that the police are on their trail; and

(5) the ready destructability of the contraband.”                       United States

v. Turner, 650 F.2d 526, 528 (4th Cir. 1981).

      We   have     no     hesitation         in   concluding           that   exigent

circumstances existed in this case. The record reflects that

officers responded to a frantic 911 call about a man threatening

an occupant of a residence with a firearm.                    Having gleaned the

reason for responding to the 911 call, and after arriving at

Toyer’s    residence      and     talking     to   Ballard        and    Elliot,   any

reasonable officer would have believed that urgent circumstances

necessitated a warrantless search of the basement for a gun.                        In

her 911 call, Elliot stated specifically that she was threatened

by Toyer with a handgun, and this information was conveyed to

the   responding    officers.         After    arriving      at   the     house,   both

Ballard and Elliot confirmed and repeated that Toyer had a gun,

was   intoxicated,       and    had   threatened    to    shoot     Elliot.        Both

Officers Adams and Weathers understood that the urgency existed

in not only finding and physically securing Toyer, but also in

securing the handgun used in the threat.                 See Moses, 540 F.3d at

270   (finding     exigent      circumstances      for   a    warrantless      search

where officers suspected a dangerous person in the dwelling);

                                         15
Mowatt, 513 F.3d at 399 (finding exigent circumstances where the

officers had a reasonable suspicion that the defendant had a

weapon in his house).

      Furthermore, the officers only searched the house for Toyer

and his firearm — the person and item that posed the risk in

this situation.        At no time did they exceed the scope of their

authority   to    search   by    looking    around     the     house    for   other

contraband.       In   fact,    Officer    Adams’     search    was    constrained

specifically to the basement, where Ballard and Elliot had told

him that Toyer kept a gun, and he only looked in the places that

Elliot had advised him that Toyer might have kept the gun — on

the shelves and in the drop ceiling, but never in any drawers or

other areas not in plain sight.             The officers’ actions further

persuade us that they reasonably believed that the urgency and

safety risks posed by this situation required them to secure

both Toyer and his weapon.           This was not a situation where “a

search that is far more intrusive than necessary to accomplish

its   purpose    may   raise   questions    as   to    whether    the   proffered

explanation for the search is the true one.”                   United States v.

Johnson, 410 F.3d 137, 146 (4th Cir. 2005) (adhering to the

principle that warrantless entry for emergency reasons cannot be

used as an excuse for discovery of other items not related to

the purpose of the entry).            Therefore, exigent circumstances

necessitated     the   warrantless    search     of    Toyer’s    residence     not

                                      16
only to secure him, but also the weapon he used to threaten

other occupants of the house.



                                        III.

     We turn now to Toyer’s contention that the district court

erred   in   sentencing    him    under     the    Armed     Career   Criminal      Act

(“ACCA”),     which    imposes      a     fifteen-year         mandatory     minimum

sentence for any defendant who violates 18 U.S.C. § 922(g) and

who has three prior convictions for “serious drug offense[s]” or

“violent felon[ies].”         18 U.S.C. § 924(e)(1).               Toyer concedes

that he violated 18 U.S.C. § 922(g) and does not contest the

district     court’s      determination         that     his     1996      and     2002

convictions    for    possession     with      intent   to     distribute    cocaine

constitute “serious drug offense[s]” under the ACCA.                             See 18

U.S.C. § 924(e)(2)(A).            Instead, Toyer argues that the third

conviction used as an ACCA predicate – a 2004 conviction for

second-degree    assault     in    Maryland       in   violation      of   Md.    Code.

Ann., Crim. Law § 3-203 (the “Maryland conviction”) – is invalid

because the crime was not a “violent felony” under 18 U.S.C.

§ 924(e)(2)(B)(i).



                                        A.

     In evaluating Toyer’s argument, we keep several facts in

mind.    The first is that while the ACCA provides two specific

                                        17
definitions of the term “violent felony,” only one is at issue

here.         The     government        has    not     argued      that        the     Maryland

conviction is a violent felony under the so-called “otherwise

clause” of the ACCA, which defines a violent felony as any crime

that    “is     burglary,        arson,       or     extortion,      involves          use    of

explosives,         or   otherwise        involves        conduct    that        presents      a

serious    potential          risk   of   physical        injury    to    another.”            18

U.S.C. § 924(e)(2)(B)(ii).                So we are confined to evaluating the

district      court’s         determination        that    the     Maryland          conviction

qualifies as an ACCA predicate under what is known as the “force

clause.”        See      18    U.S.C.     § 924(e)(2)(B)(i).              That        provision

states that a violent felony is any offense that “has as an

element the use, attempted use, or threatened use of physical

force against the person of another.”                     Id.

       The second fact we keep in mind involves the methodology of

determining whether or not the Maryland conviction constitutes a

“violent felony.”             The preferred approach for evaluating whether

prior convictions qualify as “violent felonies” and thus as ACCA

predicates is the categorical approach, under which we look only

to the fact of conviction and the statutory elements of the

offense.       See Taylor v. United States, 495 U.S. 575, 600-02

(1990); United States v. Harcum, 587 F.3d 219, 222 (4th Cir.

2009)   (“In        assessing     whether      an    offense     constitutes           an    ACCA

predicate      offense,         we   must      first      utilize        the     categorical

                                              18
approach.       As we have recently explained, we are obliged, under

that approach, to analyze the offense generically – that is, by

relying solely on its essential elements, rather than on the

particular underlying facts.”) (internal quotations omitted).

       In Johnson v. United States, 130 S. Ct. 1265 (2010), the

Supreme Court held that in order for a crime categorically to be

a violent felony under 18 U.S.C. § 924(e)(2)(B)(i), it must have

the use of violent force as an element.                      See Johnson, 130 S. Ct.

at    1271.      Here,    the        government    has       conceded     that   Maryland

second-degree assault does not include use of violent force as

an element of the crime.               That concession makes good sense; the

statutory     definition        of    Maryland     second-degree          assault   is    so

broad that it is impossible to tell based on the elements alone

whether or not a defendant “use[d] . . . physical force against

the    person    of    another.”          18     U.S.C.      § 924(e)(2)(B)(i);          see

Harcum, 587 F.3d at 224 (“Maryland ‘common-law assault is not

per     se      a      violent         felony         within      the      meaning        of

§ 924(e)(2)(B)(i).’”)           (quoting        United    States     v.    Coleman,      158

F.3d 199, 204 (4th Cir. 1998)).

       Accordingly,      we     must     turn     to     the    modified     categorical

approach set forth in Shepard v. United States, 544 U.S. 13, 26

(2005).       See     Harcum,    587     F.3d    at    223     (“[W]hen    the   fact     of

conviction      and    the    statutory        definition       of   the    offense      are

unduly vague or ambiguous, a sentencing court is entitled to

                                            19
turn       to     and    apply       the    alternative    ‘modified      categorical’

approach.”). Under that approach, we may look to a circumscribed

set    of       court    documents     to    determine    whether   or    not   a   prior

conviction constitutes an ACCA predicate.                    In particular, we may

consider         “charging     documents,      plea   agreements,     transcripts     of

plea colloquies, findings of fact and conclusions of law from a

bench trial, and jury instructions and verdict forms,” Johnson,

130    S.       Ct.     at   1273,    in    determining     whether      or   not   Toyer

“necessarily admitted” facts amounting to a violent felony under

the ACCA, Shepard, 544 U.S. at 24.                        With these principles in

mind, we turn to whether the district court erred in determining

that the Maryland conviction was an ACCA predicate.



                                               B.

       The only Shepard-approved document on record with respect

to the Maryland conviction is the transcript of Toyer’s plea

colloquy in the Circuit Court of Maryland. 3                    As a result, it is

worth setting out the colloquy in some detail.                        Early on, while

confirming that Toyer’s plea was voluntary and free of coercion,


       3
       The Government initially argued that the district court
was allowed to consider the Maryland District Court’s Statement
of Probable Cause in determining whether the Maryland conviction
(which occurred in Maryland Circuit Court) was an ACCA
predicate. The government has abandoned that argument in light
of our decision in Harcum. See Harcum, 587 F.3d at 224-25.


                                               20
the judge asked Toyer whether he was actually guilty of second-

degree assault.   Toyer agreed that he was:

     THE COURT: You’re pleading guilty because you are, in
     fact, guilty of a second degree assault?
     MR. TOYER: Yes, sir.

After asking a few more questions designed to ensure Toyer’s

understanding of the proceedings, the judge asked the prosecutor

to set forth the factual basis for the plea.    In response, the

prosecutor described the basic facts of the case:

          Your Honor, had this matter proceeded to trial
     the State would show that on January 1, 2004 . . . the
     victim, Carmen Pickford, and her boyfriend, Lamont
     Toyer . . . . got into an argument over the fact that
     Ms. Pickford had allegedly seen another man while Mr.
     Toyer was unavailable.     The defendant, the victim
     called the police . . . and she told the police the
     defendant had pulled a handgun on her and threatened
     her with that handgun.
          When the police arrived they did search the area
     where Mr. Toyer was sitting and found a handgun
     underneath the seat of the cushion of the couch that
     he was sitting on. The defendant made a statement to
     the police that his prints weren’t on that particular
     weapon. The gun actually was test fired and found to
     be operational.

The court then asked Toyer if he “agree[d] that’s basically what

happened,” and Toyer’s counsel responded as follows:

     MR. BEAU: Your Honor, we’ll agree that’s the evidence
     they presented. My client says I have no involvement
     with the gun involved.    I did have a fight with her
     and that’s part of the reason that the case is being
     resolved this way.
     THE COURT:   All right, I’m going to accept the plea
     and enter a finding of guilty as to Count II.




                                21
     If Toyer actually did threaten Pickford with a handgun, his

crime would amount to a violent felony under the ACCA.                           A threat

involving a handgun plainly constitutes the “threatened use of

physical force against the person of another” within the meaning

of 18 U.S.C. § 924(e)(2)(B)(i).                   After all, threatening someone

with a handgun necessarily entails threatening them with “force

capable of causing physical pain or injury to another person.”

Johnson, 130 S. Ct. 1271; see United States v. Cook, 26 F.3d

507, 509 (4th Cir. 1994) (using a handgun to threaten a state

witness   constitutes           a     violent        felony      under     18      U.S.C.

§ 924(e)(2)(B)(i)).        By contrast, if the dispute between Toyer

and Pickford was a purely verbal argument involving no threats

of force, Toyer’s crime would not qualify as an ACCA predicate.

See 18 U.S.C. § 924(e)(2)(B)(i).



                                             C.

     Toyer      contends    that       our    decision      in   United     States       v.

Alston,   611    F.3d     219       (4th   Cir.     2010),     forecloses        us    from

concluding   that    he    committed         a    violent     felony     based    on    his

alleged threat with a handgun because his attorney disclaimed

Toyer’s “involvement with the gun involved.”




                                             22
                                           1.

        In    Alston,    we    determined       that    a    prior    conviction    for

Maryland second-degree assault could not constitute a “violent

felony” under the ACCA where the defendant entered an Alford

plea.        Alston, 611 F.3d at 220-21; see North Carolina v. Alford,

400 U.S. 25 (1970).           As in this case, the court had to apply the

modified       categorical      approach    because         Maryland       second-degree

assault was not categorically a violent felony.                             Id. at 223.

Under Shepard, however, courts may only rely on facts “inherent

in the conviction” or “admitted by the defendant” in determining

the predicate status of a conviction.                  Id. at 226.

        In Alston’s case, the use of violent force was not inherent

in his conviction.            Nor was it admitted by the defendant; while

the prosecutor’s proffer during the plea colloquy suggested that

Alston had “pointed a gun at three individuals and threatened to

kill them,” the fact that Alston entered into an Alford plea

meant    that     he    had    “pleaded    guilty       without      admitting     these

facts.”       Id. at 227.      Indeed, in response to the proffer, Alston

quite clearly stated, “I think it’s in my best interests to take

the deal rather than go to trial and run the risk I might get

the maximum penalty.            So I want the deal, but I don’t want to

say I did the crime.”           Id. at 223.       Thus, because Alston had not

admitted       facts    establishing      that    his       crime    was    a   “violent



                                           23
felony,”    the    court       concluded     that     his      Maryland    second-degree

assault conviction could not serve as an ACCA predicate.

     Toyer argues we should reach the same result here because

his attorney attempted to disavow Toyer’s involvement with the

handgun    found     at    the    scene.          When    the    court    asked     if    the

prosecutor’s       proffer       set     forth       “basically       what      happened,”

Toyer’s attorney agreed that the proffer set forth “the evidence

they presented,” but went on to note that his client had “no

involvement     with      the    gun    involved”        and    instead    merely       had   a

fight with the victim.                 Based on that statement, Toyer argues

that his plea was the functional equivalent of an Alford plea

with respect to his alleged use of a handgun.                            In other words,

Toyer    contends    that       the    colloquy      cannot     serve     as    proof    that

Toyer committed a violent felony because Toyer refused to admit

to the one fact that would support such a determination.

     The principal difficulty with this argument, however, is

quite simply that Toyer, unlike Alston, did not tender an Alford

plea.     Indeed, during the entire plea colloquy, Toyer neither

disclaimed     his     guilt     of     second-degree          assault    nor    voiced       a

desire    to   enter      an     Alford      plea.        To    the   contrary,         Toyer

expressly      acknowledged            his    guilt       immediately          before     the

prosecutor’s proffer:

     THE COURT: You’re pleading guilty because you are, in
     fact, guilty of a second degree assault?
     MR. TOYER: Yes, sir.

                                             24
(emphasis added).          Toyer’s conduct at the plea colloquy was, in

short,       designed     to    do    one        thing      –   facilitate       the   court’s

approval of his guilty plea.                      And for good reason – the plea

allowed      Toyer   to    cut      his     prison       exposure       by   half.     Toyer’s

indictment charged him with one count of first-degree assault,

one count of second-degree assault, and one count of use of a

handgun in the commission of a crime of violence.                               Second-degree

assault was by far the least serious of these charges, carrying

a maximum ten-year prison term in comparison with the twenty-

five year maximum term for first-degree assault and the five-

year   mandatory        minimum      and        twenty-year       maximum       term   for   the

handgun charge.           See Md. Code. Ann., Crim. Law §§ 3-202 (first-

degree assault), 3-203 (second-degree assault), 4-204 (use of

handgun in commission of crime).

       Given    these      circumstances,              Toyer    willingly       admitted     his

guilt of second-degree assault to avoid prosecution on the other

counts.       His conduct stands in stark contrast to that of Alston,

who expressly refused to say that he “did the crime” before

tendering a formal Alford plea.

       Our    distinguished          colleague         in   dissent      argues      that    this

distinction does not matter – that it “will not do” to give

“talismanic       significance             to    the     label        ‘Alford    plea,’”     see

Dissenting      Opinion        at    34.        However,        the    distinction     between


                                                 25
Alford and non-Alford pleas is indeed critical because the two

categories differ in a number of salient ways.            For example, in

an Alford plea, the defendant maintains his innocence but pleads

guilty because “his interests require entry of a guilty plea.”

Alford, 400 U.S. at 37.        By contrast, in a traditional guilty

plea,   the   defendant    “admi[ts]     that   he   committed     the    crime

charged against him.”       Alford, 400 U.S. at 32.          What is more,

the   prosecutor’s   proffer   of   the   factual    basis   for    the    plea

serves a fundamentally different purpose in each type of plea

agreement.    In an Alford plea, the prosecutor tenders a proffer

to ensure the voluntariness of the plea.             In the words of the

Alford Court, the proffer “provide[s] a means by which the judge

[can] test whether the plea [i]s being intelligently entered.”

See id. at 37-38.      In a non-Alford plea, however, the proffer

defines and frames the agreement, clarifying the nature of the

offense to which the defendant has decided to plead.

      It thus makes little sense to treat Alford and non-Alford

pleas as fungible.        That is especially true where, as here, a

defendant seeks to carve out a subset of non-Alford pleas for

special treatment.    Alford pleas, like traditional guilty pleas,

have a well-defined meaning and occupy a well-defined niche in

the law of plea agreements: an Alford plea serves as a formal

expression of disagreement with the factual basis for one’s plea

agreement.     See Alston, 611 F.3d at 226.             “Quasi-Alford” or

                                    26
“faux-Alford”      pleas,        by     contrast,     stand       on     much       shakier

doctrinal   footing,       and    we     see    no   reason      to    fashion      such    a

category from whole cloth.

     As a result, we cannot agree with our colleague’s view that

Alston is “binding.”             See Dissenting Opinion at 34, 35, 39.

Alston never once suggested that its holding reached outside the

context    of   formal     Alford       pleas.       Because      Toyer’s       offhanded

disavowal   of     the    prosecutor’s         proffer     did    not    constitute        an

Alford plea, his case does not fall within Alston’s ambit.                                 In

other words, Alston could not be more different, and it does not

control the outcome here.



                                           2.

     The lack of an Alford plea is not the only difficulty with

Toyer’s argument.          In Shepard, the Court determined that “any

sentence under the ACCA” must “rest on a showing that a prior

conviction ‘necessarily’ involved (and a prior plea necessarily

admitted) facts” sufficient to establish ACCA-predicate status.

Shepard, 544 U.S. at 24.                Here, Toyer argues that he did not

“necessarily admit[ ]” to having used a handgun in a threatening

fashion, meaning that his conviction is not a violent felony.

But Toyer’s argument collapses on itself.

     The    prosecutor’s         proffer       established        that    the       dispute

between    Toyer    and    his        girlfriend     had    two       parts:    a   verbal

                                           27
argument      followed     by    Toyer’s       threatening     use    of    a   handgun.

Under      Maryland    law,     the       verbal    argument   does   not   constitute

second-degree         assault;        a    purely    verbal    exchange     devoid      of

threats would not involve the actual, attempted, or threatened

use of “unlawful force.”                   Kellum v. State, 162 A.2d 473, 176

(Md. 1960); see Cruz v. State, 963 A.2d 1184, 1188 n.3 (Md.

2009). 4     Indeed, as the district court recognized, and as Toyer

does not dispute, “You can’t commit an assault by arguing.                             The

only way you can commit an assault is to put somebody in fear of

an impending battery.               In other words, a force being applied to

your person.”

     As      a   result,      the     only    possible    factual     basis     for   the

Maryland conviction was the threat involving a handgun.                           Thus,

only one of two results can possibly obtain.                         Either Toyer did

“necessarily admit[ ]” to using a handgun, or he entered a plea

without any factual basis.                  Under this latter scenario, Toyer’s

plea to second-degree assault would have been unlawful.                               With

respect to Toyer, this result would likely have necessitated a

     4
       In particular, Maryland’s second-degree assault statute
states that “[a] person may not commit an assault,” Md. Code
Ann., Crim. Law § 3-203, and the statute elsewhere defines the
term “assault” to mean “the crimes of assault, battery, and
assault and battery, which retain their judicially determined
meanings,” Md. Code Ann., Crim. Law § 3-201. Maryland case law,
in turn, defines “battery” to require “unlawful force used
against the person of another, no matter how slight,” Kellum,
162 A.2d at 476.


                                              28
trial and possible conviction on the other charges.   By the same

token, the judge would have acted improperly in accepting a plea

without a factual basis.   Indeed, had the judge been sitting in

federal court, such conduct would amount to a clear violation of

Federal Rule of Criminal Procedure 11(b)(3), which requires a

judge entering a plea to “determine that there is a factual

basis for the plea.”   Fed. R. Crim. P 11(b)(3).   Even in state

court, the judge’s conduct might raise constitutional concerns.

See, e.g., Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979)

(“[W]e hold that, when a defendant pleads guilty while claiming

his or her innocence, the court commits constitutional error in

accepting the plea unless the plea is shown to have a factual

basis.”). 5


     5
        Our colleague in dissent argues that this point is a
nonstarter insofar as “exactly the same thing can and must be
said about the prosecutor’s factual proffer in support of the
Alford plea in Alston.” See Dissenting Opinion at 36. But that
analysis misses the mark.     Alford declared that it was not
unconstitutional for a court to accept “a plea containing a
protestation of innocence” where the defendant “intelligently
concludes that his interests require entry of a guilty plea and
the record before the judge contains strong evidence of actual
guilt.”    Alford, 400 U.S. at 37.   But Alford did nothing to
disturb the hornbook principle that a non-Alford plea without a
factual basis would be unconstitutional. See Willett, 608 F.2d
at 540; see also Alford, 400 U.S. at 38 n.10 (“A criminal
defendant does not have an absolute right under the Constitution
to have his guilty plea accepted by the Court.”).       In other
words, while defendants are free to enter Alford pleas, with all
of their attendant formalities, see Zinkand v. Brown, 478 F.3d
634, 635-36 (4th Cir. 2007) (example of an Alford plea
colloquy), they cannot obtain the benefit of Alford pleas by
(Continued)
                               29
       Of course, Toyer did not assert that his plea agreement was

illegal back in 2004, and he does not make any such assertion

now.       By all accounts, Toyer was satisfied with the outcome of

the plea negotiations.          There is a simple reason for this fact:

the plea agreement was favorable to Toyer.                  At bottom, then,

Toyer wants contradictory things from the Maryland conviction.

On the one hand, he wants his second-degree assault plea to

stand      because    it   significantly   reduced   his    potential   prison

exposure.      On the other hand, he seeks to undermine the factual

basis for that very conviction in order to bar a career criminal

sentence      under   the   ACCA.    In    other   words,   Toyer   wants   the

benefits of an Alford plea without having actually entered one.

Toyer cannot have it both ways.            Toyer knowingly pled guilty to

the crime described by the prosecutor and “necessarily admitted”

his use of a handgun, meaning that his offense is indeed a

violent felony. 6




acquiescing    in     non-Alford    arrangements   of    dubious
constitutionality.   Our colleague’s analysis thus suffers from
the same difficulty as earlier: the insistence that Alford pleas
and non-Alford pleas must be treated alike.
       6
       Even the statements Toyer’s counsel made reinforce the
conclusion that Toyer committed a violent felony.         Those
statements cannot be divorced from the fact that Toyer pled
guilty to second-degree assault based on what his attorney
described as a “fight” with Toyer’s girlfriend that resulted in
her calling the police.    It would be quite a stretch of the
imagination to conclude from the colloquy that Toyer’s actions
(Continued)
                                      30
                                     3.

        Finally, it is well to take a step back and examine the

consequences of adopting Toyer’s approach.             Alston presents a

clear and easy-to-administer rule given that parties and courts

alike are and will continue to be well aware of how Alford pleas

work.     Toyer invites us to reject this approach and to create a

new category of “quasi-Alford” plea agreements for ACCA purposes

that is far less determinate.           Such an approach would make the

ACCA sentencing process even more abstruse than it already is

and   would   inject   yet    another   layer   of   uncertainty    into   an

already complex process.

        Moreover,   the      “quasi-Alford”     plea    would      encourage

gamesmanship at sentencing hearings.            The temptation would no

doubt be great for defense counsel to quibble about the evidence

presented in a plea colloquy in order to tee up a contest to a

possible future ACCA sentence.          In such circumstances, even the

slightest and most fleeting observation voiced during a plea

colloquy would force reviewing courts to struggle with knotty

questions about exactly how much uncertainty dooms a putative



did not involve the use or threatened use of violent force, see
Johnson, 130 S. Ct. at 1271, and instead amounted to some benign
form of assault like “kissing without consent, touching or
tapping, jostling, and throwing water upon another,” United
States v. Kirksey, 138 F.3d 120, 125 (4th Cir. 1998) (quoting
Epps v. State, 634 A.2d 20, 23 (Md. 1993)).


                                     31
ACCA    predicate,       or     worse,     begin      to    parse      plea    colloquy

transcripts      for    magic    words.         In   short,     sentencing     hearings

would turn into nothing less than forums for relitigating the

defendant’s earlier plea colloquies to a far greater extent than

at present.          This result is fundamentally at odds with Taylor

and Shepard, which sought “to protect sentencing courts from

becoming forums in which the prosecution and defense attempt to

reproduce      the    defendant’s    earlier         trial.”        United    States    v.

Dean, 604 F.3d 169, 175 (4th Cir. 2010).

       There     is     little      need    for        us      to    encourage     such

uncertainties.         Since 1970, a defendant who wishes to dispute

the factual basis for his plea has had several options.                          He can

seek to withdraw the plea.           He can attempt to offer some kind of

alternative factual basis.            Or he can enter an Alford plea.                   If

he avails himself of the last approach, Alston will prevent the

resulting conviction from serving as an ACCA predicate.                                But

when defendants like Toyer refuse each and every one of these

options – either because they wish to acknowledge their guilt or

because they seek a more favorable sentencing outcome – they

necessarily fall outside Alston’s borders.




                                           32
                                     IV.

      Because Alston’s challenges to the search of his residence

and   to   his   sentence   are   without   merit,   the   judgment    of   the

district court is hereby affirmed.

                                                                      AFFIRMED




                                      33
DAVIS, Circuit Judge, concurring in part and dissenting in part:

      I   concur      in     the       panel’s     resolution         of       Toyer’s     Fourth

Amendment      claim,      but     I    dissent      from       its       resolution      of     his

sentencing claim. If Alston is correctly decided, then this case

is   wrongly    decided.         If    this   case    is    correctly           decided,        then

Alston most assuredly is incorrectly decided.

      There     is      no       more     support         for     a        “violent       felony”

determination in the sole Shepard-approved document available to

the court in this case (i.e., the transcript of the guilty plea

proceeding in which Toyer pled guilty to second-degree assault

under     Maryland      law)       than    there     is     for       a    “violent       felony”

determination in the sole Shepard-approved document available to

the court in Alston (i.e., the transcript of the guilty plea

proceeding in which Alston pled guilty to second-degree assault

under Maryland law). In each case, the defendant pled guilty. In

each case, only the use of a gun by the defendant elevated the

second-degree assault to a “violent felony” under the ACCA. In

each case, the use of a gun was not “inherent” in the offense of

conviction,      thereby         necessitating           resort           to   the    “modified

categorical” approach to the ACCA determination. In each case,

there     is   neither        an       admission      by     the          defendant       nor     an

adjudication     by     the      court    that     the     defendant           used   a   gun     to

commit the assault.



                                              34
       How,     then,     does    the     majority        manage   to     skirt       the

application of binding precedent in this case? It appears there

are    three    reasons    offered,       which   neither     singly     nor   in     the

aggregate genuinely distinguishes this case from Alston.



                                           A.

       First, the majority would give talismanic significance to

the    label    “Alford    plea.”    But    this    will     not   do.   If    we     had

occasion to apply the Taylor/Shepard “categorical test,” rather

than    the     “modified    categorical          test”    necessitated        by     the

expansive       elements     of     the    Maryland        second-degree       assault

offense, it is clear that an “Alford plea” would be treated

exactly like a more traditional guilty plea for purposes of the

ACCA. See United States v. Vinton, --- F.3d ---, ---, 2011 WL

31526, *8 (8th Cir. Jan. 6, 2011)(finding state court conviction

for    second     degree     burglary       qualifies       defendant      for      ACCA

treatment      notwithstanding      that     conviction      was   pursuant      to    an

Alford plea, distinguishing Alston); see also Note, Admitting

Guilt by Professing Innocence: When Sentence Enhancements Based

on Alford Pleas are Unconstitutional, 63 Vand.L.Rev. 1755, 1758

n.16 (2010) (“An enhancement based simply on the fact of a prior

conviction, even if that prior conviction was pursuant to an

Alford plea, is constitutional . . . . [A]ll federal circuits



                                           35
have,    at   least   in   some    form,    held    that   an   Alford   plea   is

functionally a guilty plea.”). 1

     Thus, Alston’s binding holding rests not simply on the mere

fact that Alston tendered an Alford plea in state court, but

rather, as Alston makes perfectly clear, the fact that “Alston

did not adopt or accept the facts proffered by the government.”

United States v. Alston, 611 F.3d 219, 223 (4th Cir. 2010) (“The

transcript from Alston's plea hearing, however, revealed that

Alston's conviction was based on an Alford plea during which

Alston    did   not   adopt   or   accept    the    facts    proffered    by    the

government.”     (emphasis    added)). 2    As     the   majority   forthrightly


     1
        Accordingly, contrary to the majority’s view of the
matter, it is of no moment whatsoever that “Toyer willingly
admitted his guilt of second-degree assault.” Maj. Op. 25. Of
course he did; the dispositive question under Alston, however,
is whether the guilty plea transcript discloses that Toyer
“admitted” he used a gun in committing second-degree assault. As
the majority is required to acknowledge, not only did Toyer not
admit any such thing, he (through counsel) affirmatively denied
the relevant fact. If anything, the lack of an admission in this
case is demonstrated even more strongly than in Alston because
it is explicit, not buried in the vagaries of an Alford plea.
     2
         Thus, the majority is wrong to state:

     Since 1970, a defendant who wishes to dispute the
     factual basis for his plea has had several options [,
     including the option of] an Alford plea . . . . If
     [he] avails himself of [an Alford plea], Alston will
     prevent the resulting convictions from serving as an
     ACCA predicate.

Maj. op. at 32 (alterations added). If a state court judge is
willing, under an Alford rubric or otherwise, to accept a guilty
plea from a defendant who denies the facts proffered by the
(Continued)
                                       36
acknowledges in the case at bar, precisely the same thing is

true here. For present purposes, “[t]he distinguishing feature

of an Alford plea is that the defendant does not confirm the

factual basis for the plea.” United States v. Savage, 542 F.3d

959, 962 (2d Cir. 2008). That feature virtually leaps from the

pages of Toyer’s plea proceeding transcript before us.



                                    B.

     Second, it appears the majority believes that Toyer must be

deemed (for ACCA purposes) to have admitted using the gun to

assault his girlfriend when he pled guilty because otherwise the

state   judge’s   acceptance   of   his   guilty   plea   would   have   been

constitutionally suspect. See Maj. op. at 29 (citing Willett v.

Georgia, 608 F.2d 538, 540 (5th Cir. 1979)). With respect, it is

utterly beyond me how the majority cannot see that exactly the

same thing can and must be said about the prosecutor’s factual

proffer in support of the Alford plea in Alston, in which the

conviction for second-degree assault under Maryland law rested




prosecutor, as did the state court judge in Toyer’s case, there
is not a thing this or any federal court will be able to do
about it. If, in such a circumstance, a subsequent federal court
must apply the “modified categorical” approach to an ACCA
determination, Alston will dictate the result, exactly as it
does here, regardless of whether the plea is labeled an Alford
plea.


                                    37
solely on the fact that Alston had pointed a handgun at three

people and threatened to “kill them all.” See 611 F.3d at 223

(“[T]he     prosecutor     outlined      the    evidence       she   would    have

introduced at trial, which indicated that Alston had pointed a

gun at three victims and stated that he would kill them all.”).

In both cases, if one excises from the factual basis recited to

the state court in support of the guilty plea the defendant’s

use    of   a   handgun,   there    is     no   crime. 3     The   constitutional

propriety of the underlying conviction, an issue not before us

in    any   event,   stands   on   equal      footing   in    both   cases.   This

purported ground of distinction does not withstand scrutiny.




       3
       I note that at the government’s urging, the majority has
waded into an analysis of the apparent benefits Toyer enjoyed in
entering into the plea agreement with the state. Consideration
of such data has absolutely nothing whatsoever to do with the
application of the modified categorical approach to the
determination of the “violent felony” question under the ACCA.

     In any event, the government’s argument is unavailing. The
government argues that by stating that his client did not accept
the state’s proffer about the gun, Toyer’s counsel “was
attempting to ensure that his client’s conviction was for
second-degree assault, rather than for first-degree assault or
use of a handgun in the commission of a crime of violence.”
Supp. Br. at 9. There is nothing in the record to support this
contention. To the contrary, at the beginning of the state court
proceeding, it was made clear that Toyer was pleading guilty to
second-degree assault. J.A. 249 (Toyer’s attorney stating “this
is second degree assault”); J.A. 250 (judge confirming the plea
was for “second degree assault”). There is no merit in this
speculation on the part of the government.


                                         38
                                               C.

      Finally, the majority seems to believe that by ignoring the

binding holding of Alston, it achieves a level of “certainty”

that will create a form of “bright line rule” beneficial to the

law   of   this   circuit.     Respectfully,                 I    disagree.      Certainty     is

achieved when this court is faithful to its precedents. To the

extent that the majority contemplates the existence of some neat

taxonomy of punishment-justifying pleas in state courts, i.e.,

“guilty,” “no contest” and Alford, my friends in the majority

need only examine the chaotic state of the law and practice

described in Bishop v. State, 7 A.3d 1074 (Md. 2010) (discussing

so-called “hybrid pleas” recognized under Maryland law).

                                   *      *         *        *

      In   sum,    while     the       state    court        in    Toyer’s       second-degree

assault case did not accept an Alford plea, Toyer’s guilty plea

produced    the     jurisprudential              equivalent             for     ACCA     purposes

because Toyer’s counsel explicitly stated on Toyer’s behalf that

Toyer had “no involvement with the gun.”                               While an Alford plea

has   specific    legal    meaning,           “[u]ltimately,             context       determines

meaning,    and    we   do    not        force      term-of-art           definitions       into

contexts where they plainly do not fit and produce nonsense.”

Johnson    v.     United     States,          130       S.       Ct.    1265.     1270     (2010)

(citations omitted). Here, in context, Alston relies entirely on

the fact that the defendant never admitted to the material facts

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required by Supreme Court precedent to qualify the conviction

for   ACCA   treatment.     To   ignore   the   rationale    and     holding

supporting the result in Alston and choosing instead to apply

them only to situations where a defendant formally enters an

Alford plea produces illogical and inconsistent results plainly

at odds with binding precedent.

      With   respect,   I   am   constrained    to   the   view    that   the

majority’s enterprise fits the description it assigns to Toyer’s

argument: it “collapses on itself.” Maj. op. 27.            I would affirm

the conviction, vacate the sentence, and remand the case for

resentencing without regard to the ACCA.




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