                                                 Filed:   March 8, 2012

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-5028
                       (2:09-cr-00017-jpj-pms-1)


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

          v.

JOHN JOEL FOSTER, a/k/a Jack Foster,

                Defendant - Appellee.



                               O R D E R


          The Court amends the opinion of Davis, Circuit Judge,

dissenting from the order denying rehearing en banc filed March

6, 2012, as follows:

          On   page   14,   second   paragraph   of   text,   line   7   –-

“Appellant Foster” is corrected to read “Appellee Foster.”

                                        For the Court – By Direction


                                            /s/ Patricia S. Connor
                                                      Clerk
                       PUBLISHED
                                       Filed: March 6, 2012


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,             
               Plaintiff-Appellant,
               v.
                                            No. 10-5028
JOHN JOEL FOSTER, a/k/a Jack
Foster,
              Defendant-Appellee.
                                      

                          ORDER



  Appellee has filed a petition for rehearing en banc. The
government filed a response in opposition to the petition.
  A member of the court requested a poll on the petition for
rehearing en banc. Judge Motz, Judge King, Judge Gregory,
Judge Davis, Judge Keenan, Judge Wynn, and Judge Floyd
voted to grant rehearing en banc. Chief Judge Traxler, Judge
Wilkinson, Judge Niemeyer, Judge Shedd, Judge Duncan,
Judge Agee, and Judge Diaz voted to deny rehearing en banc.
  Because the poll on rehearing en banc failed to produce a
majority of judges in active service in favor of rehearing en
banc, the petition for rehearing en banc is denied. Judge Wil-
kinson filed an opinion concurring in the denial of rehearing
en banc. Judge Motz filed an opinion dissenting from the
denial of rehearing en banc, in which Judge King, Judge
Gregory, Judge Davis, Judge Keenan and Judge Floyd joined.
Judge Davis filed an opinion dissenting from the denial of
2                   UNITED STATES v. FOSTER
rehearing en banc, in which Judge Gregory joined. Judge
Wynn filed an opinion dissenting from the denial of rehearing
en banc, in which Judge Gregory and Judge Davis joined.

    Entered at the direction of Judge Agee for the court.

                            For the Court


                            /s/ Patricia S. Connor, Clerk



  WILKINSON, Circuit Judge, concurring in the denial of
rehearing en banc:

   I concur in the denial of rehearing en banc. Judge Agee has
written a persuasive opinion for the court, and I add only
these few thoughts in response to my dissenting friends and
colleagues. I appreciate the sincerity of the dissenters’ convic-
tions, and I believe the vigorous discussion of our differences
to be a mark of mutual respect.

   This is hardly an atypical ACCA case. Foster’s instant
offense of conviction was being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He had previ-
ously been convicted three times for breaking and entering in
violation of Va. Code § 18.2-90 (1992) (amended 2004).

   As the panel majority explained, the question presented
here is whether Foster’s prior convictions for breaking and
entering the "Corner Market" and "Sunrise-Sunset Restau-
rant" satisfy the generic definition of burglary and can thus
serve as predicate offenses under the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 924(e)(1). The Virginia statute
can be violated in a variety of ways, including both burglary
of an "office, shop, manufactured home, storehouse, ware-
                    UNITED STATES v. FOSTER                    3
house, banking house, church as defined in § 18.2-127, or
other house," which would qualify as generic burglary, and
breaking and entering a "ship, vessel or river craft or any rail-
road car," which would not. Va. Code § 18.2-90.

   State indictments are not structured with an eye to the
ACCA, and had the charging documents here quoted the Vir-
ginia law, they still would not have used the magic words
"building or structure" that would alone seem sufficient to sat-
isfy the dissenters. One could say that of course the enumer-
ated list of "office, shop, manufactured home, storehouse,
warehouse, banking house, [or] church" refers to buildings or
structures. But then it seems equally obvious that "Market" or
"Restaurant" would as well, particularly since the Virginia
law’s listing is not exclusive, including as it does any "other
house" as a qualifying building.

   The panel majority carefully explained why burglary of the
"Corner Market" and "Sunrise-Sunset Restaurant" must surely
qualify as "unlawful or unprivileged entry into, or remaining
in, a building or structure," Taylor v. United States, 495 U.S.
575, 599 (1990), within the ambit of the ACCA. The dissent-
ers disagree, however, concluding that breaking and entering
the "Corner Market" or "Sunrise-Sunset Restaurant" might not
satisfy Taylor because one of those establishments could in
fact be something other than a building or structure, namely
a non-generic "ship, vessel, or river craft or any railroad car,"
Va. Code. § 18.2-90.

   In urging this unlikely possibility, the dissenters here
charge the majority with grossly failing to abide by Shepard
v. United States, 544 U.S. 13 (2005). But the dissenters have
missed the whole point of what the debate in Shepard was
about. The Shepard Court held that the modified categorical
inquiry under the ACCA could only be answered by reference
to "the charging document, the terms of a plea agreement or
transcript of colloquy, . . . or to some comparable judicial
4                      UNITED STATES v. FOSTER
record," id. at 26, and that a sentencing court may not "look
to police reports or complaint applications," id. at 16.

   The Court did not opine on the relative validity of a street
address as proof of burglary of a building with anything near
the specificity that the dissenters in this case suggest. The
Supreme Court majority never discusses the facts that Judge
Motz here presses, and the Shepard dissenters refer to them
so briefly that only the most careful reader would catch the
mention. The Shepard Court had other much bigger fish to
fry, focusing its efforts solely on the question of the use of
non-authoritative documents to satisfy the demanding ACCA
inquiry. My esteemed colleague Judge Motz spends time
speculating and hypothesizing why the Shepard Court
decided what it did, but the fact remains that the Court
decided what it did in fact decide. There was no discussion
whatsoever of the point on which my dissenting friend now
relies. No court has doubted what the decision stood for — it
is where we get the term "Shepard-approved documents" in
the first place. And the panel majority here committed no
Shepard error. It relied only on the charging documents that
spelled out what places Foster has burglarized. It consulted no
police reports, complaint applications, or other documents
whose use Shepard both addressed and foreclosed.*

   *Even if one were to take the dissent’s view of Shepard as its guide, the
conclusion the dissent urges does not follow. The dissent argues that the
Supreme Court has commanded that a street address, and by analogy a
descriptive business name, is insufficient evidence of a generic burglary.
But the facts of Shepard do not support so broad an inference. To take one
example from Shepard, the complaint form includes a street address, 30
Harlem St., in a box labeled "Place of Offense," Joint App’x, Vol. III, at
5, Shepard, 544 U.S. 13 (2005), 2004 WL 2289702, but then unhelpfully
continues to describe the offense as "break[ing] and enter[ing] in the night
time the building, ship, vessel, or vehicle, the property of Jerri Cochran,"
id. That complaint form is different from a complaint detailing the street
address as the burgled home or residence itself. A street address listed as
the "Place of Offense" is less than enlightening as to the nature of what
was burgled. Certainly, one would imagine that in a complaint for bur-
                        UNITED STATES v. FOSTER                            5
   That then leaves the dissenters in a difficult position.
Unable to accuse the majority that it committed the Shepard
error of consulting non-conclusive judicial documents, the
dissenters are reduced to claiming that the majority must
somehow have resorted to extrinsic evidence. By doing so,
the dissenters contend that the majority has diminished the
role of the district court and engaged in impermissible appel-
late fact finding.

   Just like its earlier claim of inconsistency with Shepard,
this accusation of impermissible appellate fact finding runs
acropper. To begin with, classic trial court fact finding
involves a selection of a likely or correct choice between two
or more factual possibilities. In the land of Oz, I suppose there
may be two or more ways to interpret the clear facts set forth
in the Shepard-approved documents. On this side of the rain-
bow, however, the Corner Market and Sunrise-Sunset Restau-
rant are buildings and structures.

   Fact finding also by its very name implies that a fact must
be "found." Here, there is no need to "find" anything. The fact
has sought us out. It has relieved the need for findings
because the names themselves announce the nature of the
establishments, which are buildings and structures. A large
and lamentable silence pervades all of the dissenting opinions.
They are quick to heap opprobrium on the exercise of the
obvious, but slow to suggest what the Corner Market and
Sunrise-Sunset Restaurant might be other than buildings or
structures.

glary of a vehicle, the "Place of Offense" listed might be the nearest street
address, and so the geographic identifier does not illuminate which of the
four possible types of breaking and entering occurred at that particular
location. In the case at bar, by contrast, there is no dispute that Foster
broke and entered the establishments named the Corner Market and the
Sunrise-Sunset Restaurant. It seems clear enough that the specific naming
of the premises where Foster’s crimes took place is a stronger factual basis
for the application of the ACCA than the mere identification of a street
address as the "Place of Offense."
6                   UNITED STATES v. FOSTER
   Further, the classic indicia of trial court fact finding are
absent. While my fine colleagues are correct to note the con-
siderable deference accorded trial courts in the fact finding
process, the things we normally associate with that process—
and the superior vantage point the process affords district
courts—are absent here. The trial court heard no witnesses
and made no credibility findings. It examined no physical or
forensic evidence. It engaged in no trial management func-
tion. Instead, the trial and appellate courts are on a parity and
had before them the same judicially approved charging state-
ments.

   This sort of parity does not entitle us to discount the value
of a trial judge’s sound opinion. See United States v. Taylor,
659 F.3d 339, 347-48 (4th Cir. 2011) (upholding a trial
judge’s determination or "finding" from a plea colloquy that
a dangerous assault was indeed a crime of violence as defined
by the ACCA). But the parity before us ordinarily suggests
something more akin to de novo review. In such an instance,
it hardly seems proper to chide the majority for using com-
mon sense akin almost to judicial notice. Even appellate
judges are endowed with brains in the hope and expectation
that they will be used to obvious purpose. We could of course
fantasize that somewhere in the craggy highlands of Lee
County there exists a floating barge by the name of Corner
Market or a railroad car sweetly dubbed the Sunrise-Sunset
Restaurant. But neither the Supreme Court nor Congress
would either require or indeed approve of such a step.

   In fact, the Court has not been afraid to inject an element
of practicality in the ACCA when such has been required.
This past June, the Court in Sykes v. United States, 131 S. Ct.
2267 (2011), upheld the application of the ACCA based on
what it frankly described as "the commonsense conclusion
that Indiana’s vehicular flight crime is a violent felony." Id.
at 2274. The dissent argues that comparing the Shepard
inquiry and the "risk of physical injury" inquiry is like mixing
apples and oranges, suggesting that the Supreme Court is
                    UNITED STATES v. FOSTER                   7
somehow jumping to and fro within the same statute on the
basic question of whether its provisions merit even a modi-
cum of common sense in application.

   But Sykes is only the most recent example of what has
become a virtually annual ritual of the Supreme Court decid-
ing all manner of ACCA cases through resort to plain, reason-
able logic. In Johnson v. United States, 130 S. Ct. 1265
(2010), the Court found that the ACCA’s terms should be
interpreted according to their "ordinary meaning" and not be
subject to a crabbed "specialized legal usage" that would viti-
ate Congress’s intent. Id. at 1270. A year prior, the Court in
Chambers v. United States, 555 U.S. 122 (2009), did not rely
on the sort of beyond-a-shadow-of-a-doubt certainty that the
dissenters seem to think the ACCA demands, but instead
premised its holding on the probabilistic logic that "the behav-
ior that likely underlies a failure to report would seem less
likely to involve a risk of physical harm" than escape from
custody. Id. at 127. The groundwork for that decision was laid
in Begay v. United States, 553 U.S. 137 (2008), which found
that ACCA questions should be resolved based on what the
crimes at issue "typically involve." Id. at 144. And perhaps
most damning, the Court in James v. United States, 550 U.S.
192 (2007), was clear that the "ACCA does not require meta-
physical certainty." Id. at 207. While the dissenters might be
able to "hypothesize unusual cases," id. at 208, in which the
Corner Market, instead of being on the proverbial corner, is
instead on a "small river craft," such conjecture is not only
fanciful, but it is at odds with the simple common sense on
which the Supreme Court has relied in ACCA cases for five
straight years and counting.

   I recognize that interpreting the ACCA is not always easily
accomplished, and I sympathize with the many jurists who
have rightly pointed out its imprecise phraseology and inter-
pretive difficulty. But such challenges come with the territory,
and we lack the authority to declare war on statutes we may
find distasteful. The dissenters decry the result here as
8                   UNITED STATES v. FOSTER
"tragic." See post at 13 (Motz, J.). I certainly respect their
right to hold this view, but it has no bearing on the legal ques-
tion before us. Theirs is a policy disagreement with the
ACCA to be taken up with Congress. If Congress wishes to
permit felons to carry certain firearms or to disqualify certain
predicate offenses after the passage of time, it can surely do
so, but it has created no such exemptions applicable to this
case. Congress had a legitimate purpose in mind when it
sought to protect the public from violent acts committed by
those with a violent criminal history. The statute has an awk-
ward name and the means chosen to pursue its purpose have
assuredly created headaches for this fine court and others, but
that does not confer on us a warrant—constitutional or
otherwise—to eviscerate its aims and displace with our own
will the democratic legitimacy accorded by our founding doc-
ument to others.

   There are worse fates for a judicial decision than to have
it align with the practical virtues of logic and common sense.
The term "objective reasonableness" is much in vogue these
days, and properly so. See, e.g., Davis v. United States, 131
S. Ct. 2419 (2011) (holding that a need "to prevent Fourth
Amendment law from becoming ossified," id. at 2433, cannot
overcome objectively reasonable reliance on the law in force
at the time of a search). Objective reasonableness presupposes
that courts do not allow the occasional medieval tendencies
present in all professions to separate us so thoroughly from
good logic that our decisions drive citizens to rubbing their
eyes and scratching their heads. If one were to inquire of an
objectively reasonable person on the street whether something
named the Sunrise-Sunset Restaurant was a building or struc-
ture as opposed to a river craft or railroad car, the response
would be "Of course. Why do you ask?" We ask because the
generic approach of modified categorical analysis requires us
to, and the Supreme Court has commended to us common
sense in answering. That is precisely what the panel majority
has done, and it is why I am pleased to concur in the denial
of the petition for rehearing en banc.
                       UNITED STATES v. FOSTER                            9
DIANA GRIBBON MOTZ, Circuit Judge, dissenting from
the denial of rehearing en banc:

   With respect, I dissent from my colleagues’ refusal (7-7) to
grant rehearing en banc in this case. Judge Wynn’s excellent
dissent from the panel opinion well explains why we should
have affirmed the judgment of the district court. See United
States v. Foster, 662 F.3d 291, 298 (4th Cir. 2011). I write
now only to point out that the panel opinion is directly and
inexplicably at odds with what all recognize is controlling law
—Shepard v. United States, 544 U.S. 13 (2005).

   In Shepard, the Court grappled with the very question at
issue here—whether a defendant’s state burglary convictions
necessarily involved entry into buildings, and thus qualified
as ACCA predicate offenses. Id. at 17. Shepard held that only
certain "conclusive records made or used in adjudicating
guilt"—now widely known as Shepard-approved documents
—can establish with the requisite certainty that the state pred-
icate convictions "‘necessarily’ rested on the fact" that the
defendant burglarized a building, and thus committed the
ACCA predicate offense of generic burglary. Id. at 21.

   In Shepard itself, the Shepard-approved documents set
forth the actual street addresses, e.g., "30 Harlem St.," of the
burglarized establishments. Id. at 31-32 (O’Connor, J., dis-
senting). Yet both the Government and the Shepard Court
(majority and dissent) agreed that the actual street addresses
were insufficient to demonstrate that the defendant had bur-
glarized buildings.1
   1
     The Government acknowledged this at oral argument, see 544 U.S. at
21 (quoting Brief for United States at 25), and the Shepard dissenters
agreed with the majority on this point. Id. at 31 (O’Connor, J., dissenting)
("If these complaints [containing the addresses] were the only evidence of
the factual basis of Shepard’s guilty pleas, then I would agree with the
majority that there was no way to know whether those convictions were
for burglarizing a building.").
10                  UNITED STATES v. FOSTER
   The panel in the case at hand, nonetheless, concludes that
the mere proper names of burglarized establishments are suffi-
cient to prove that the defendant burglarized buildings. The
panel puts forward no reason, and I can discern none, why the
proper names of burglarized places in this case establishes
that they are buildings while the actual street addresses of bur-
glarized places in Shepard did not.

   The panel’s error stems from its understandable urge to
avoid an unlikely conclusion by applying "common sense" or
"logic." See Foster, 662 F.3d at 291-98 (panel majority and
concurrence invoking "common sense" no less than fifteen
times, and "logic" six times). The First Circuit had precisely
the same understandable inclination in Shepard. See Shepard,
348 F.3d 308, 314 (1st Cir. 2003), rev’d 544 U.S. 13 (2005).
Just as the First Circuit concluded that the offenses qualified
as ACCA predicates because it was "unlikely—to the point of
nearly impossible" that the burglaries were not of buildings,
id., the panel here concludes that the Government has met its
burden of establishing the burglaries were of buildings
because there is only a "more-than-remote possibility" that
they were not, Foster, 662 F.3d at 295. But in reversing the
First Circuit in Shepard, the Supreme Court prohibited ACCA
courts from fact-finding by "common sense," "logic," or the
law of probabilities. Rather, Shepard requires ACCA courts
to limit their role to determining whether a small group of
reliable documents prove beyond question that the prior
offense constitutes a proper ACCA predicate.

   Specifically, Shepard holds that only "conclusive records
made or used" by the original sentencing court can provide
the reliability needed to determine that the prior state convic-
tions "necessarily" (not very, very likely) qualified as proper
ACCA predicates. 544 U.S. at 21 (emphasis added). In reach-
ing this holding, no member of the Shepard Court suggested
that common sense or logic or probabilities (or judicial
notice) could establish that buildings stood at the burglarized
addresses. Indeed, even the Government disavowed the view
                    UNITED STATES v. FOSTER                    11
that a court could consult extrinsic evidence. See Transcript
of Oral Argument, Shepard, 544 U.S. 13, at 27-28.

    Moreover, the Shepard Court clearly understood that its
holding would sometimes require courts to turn a blind eye to
common sense and logic. Both the majority and the dissent
recognized the overwhelming likelihood that the predicate
burglaries in that case involved buildings, not boats. See, e.g.,
544 U.S. at 22, 24 n.4; id. at 29 (O’Connor, J., dissenting);
Transcript of Oral Argument at 5 ("[T]here isn’t any question
. . . that the police reports in fact gave addresses of particular
buildings.") (Ginsburg, J.); id. at 8-9 ("There are no boats,
you know, in Watertown. It’s not a dock . . . .") (Breyer, J.);
id. at 24 ("This is a case where we all know what the truth is
. . . .") (Kennedy, J.). Nevertheless, the Court required that
proof that the burglarized entities were buildings come from
a small group of reliable documents that "necessarily" estab-
lished this fact.

   Shepard set forth a bright-line rule that prohibits courts
from "mak[ing] a disputed finding of fact about what the
defendant and state judge must have understood as the factual
basis of the prior plea." 544 U.S. at 25. Instead, Shepard
requires that Shepard-approved documents alone conclusively
establish that the state offense "‘necessarily’ rested on the fac-
t[s]" qualifying it as an ACCA predicate. Id. at 21. Even
though the Court has recently recognized that the "absence of
records will often frustrate application of the [ACCA]," John-
son v. United States, 130 S. Ct. 1265, 1273 (2010), it has
resisted efforts to back away from Shepard’s bright-line rule.
See, e.g., United States v. Gutierrez-Ramirez, 405 F.3d 352
(5th Cir.), cert. denied 546 U.S. 888 (2005) (forbidding use
of abstracts of judgment).

   Understandably judges will be tempted to rely on "common
sense" or "logic," for these are normal fact-finding tools. But
Shepard outlaws their use when determining if a prior convic-
tion "necessarily" rests on facts qualifying it as an ACCA
12                      UNITED STATES v. FOSTER
predicate. 544 U.S. at 21. It does so because of the "practical
difficulties" of non-contemporaneous fact-finding, id. at 20,
and to avoid the potential erosion of the "Jones-Apprendi
implementation of the jury right," id. at 24-25 (Souter, J.).2 By
resorting to "common sense" and "logic" the panel engages in
precisely the sort of fact-finding that Shepard forbids.

   In response to these thoughts, the concurrence contends
that I have "missed the whole point of what the debate in
Shepard was about." According to the concurrence, the Shep-
ard Court had "much bigger fish to fry" than "opin[ing] on the
relative validity of a street address as proof of a burglary of
a building." What the concurrence steadfastly ignores, how-
ever, is that only because all involved (Shepard, the Govern-
ment, and the Supreme Court majority and dissent) agreed
that the actual street addresses of burglarized establishments
did not prove that they were buildings did the Court need to
"fry" the "bigger fish," i.e., resolve whether police reports or
complaint applications could be considered in determining if
the burglary was of a building and so a proper ACCA predi-
cate. I suppose the Shepard Court could have opined on this
"big fish" question even if it believed that street addresses suf-
ficed to establish that a building had been burglarized. But
that would make the entire Shepard opinion dicta. No court
has suggested this. Rather, until today, courts have uniformly
regarded the bright-line rule established in Shepard as the
Court’s holding and consistently followed that holding.3
   2
     Though Justice Souter’s Sixth Amendment discussion only garnered a
four Justice plurality, Justice Thomas, the fifth vote, took an even stronger
view of the need for constitutional protection and Apprendi v. New Jersey,
530 U.S. 466 (2000). Thus Justice Thomas went further than the majority,
arguing that "the [judicial] factfinding procedure the [majority] rejects
gives rise to constitutional error, not doubt." 544 U.S. at 28 (Thomas, J.,
concurring in part and concurring in the judgment). Moreover, Justice
Thomas argued that even the "limited factfinding" approved of by the
majority and by Taylor v. United States, 495 U.S. 575 (1990), also ran
afoul of Apprendi.
   3
     Alternatively, the concurrence presses an even less persuasive chal-
lenge to Shepard’s unequivocal holding. The concurrence suggests that for
                       UNITED STATES v. FOSTER                           13
   In short, I believe the panel has failed to abide by Shepard.
The Shepard-approved documents in this case, which set forth
only the proper (not generic) names of the places burglarized,
are even less adequate to prove those places are buildings than
the documents held inadequate in Shepard, which contained
the actual street addresses of the places burglarized. The
panel’s resort to "common sense" and "logic" constitutes the
sort of fact-finding held impermissible in Shepard.

   The panel’s errors have serious real life consequences for
the defendant, John Joel Foster. These errors result in treat-
ment of Foster’s possession of a firearm (a hunting rifle in his
truck) as the crime of an armed career criminal. Thus these
errors subject Foster to imprisonment for fifteen, rather than
two and a half, years. This seems a particularly tragic result
given that after committing the disputed state burglaries at
nineteen, Foster remained conviction-free for almost two dec-
ades. If common sense and logic had any role here, surely
they would suggest that this is not the record of an armed
career criminal.

  I must dissent. Judge King, Judge Gregory, Judge Davis,
Judge Keenan, and Judge Floyd have authorized me to indi-
cate that they join in this dissent.




"five straight years and counting" the Court has retreated from Shepard’s
bright-line rule and endorsed fact-finding by "practicality," "plain[ ] rea-
sonable logic," "probabilistic logic," and "common sense." This mixes
apples and oranges. The cases on which the concurrence relies dealt with
an "inherently probabilistic" inquiry, James v. United States, 550 U.S.
192, 207 (2007), i.e., whether prior offenses "involve[d] conduct that pre-
sents a serious potential risk of physical injury to another." See 18 U.S.C.
§ 924(e)(2)(B)(ii) (emphasis added). This "probabilistic" inquiry is far
removed from the Shepard inquiry, which asks only whether a prior con-
viction "‘necessarily’ rested on the fact[s]" qualifying it as an ACCA pred-
icate. Shepard, 544 U.S. at 21.
14                  UNITED STATES v. FOSTER
DAVIS, Circuit Judge, dissenting from the denial of rehearing
en banc:

   Injustice comes in many forms. It is insidious. It chokes
persons and their communities alike. It besmirches legislators,
prosecutors, and yes, judges, alike. It undermines public con-
fidence in government and its institutions. It mocks our
national commitment to the ideal of evenhandedness and fair-
ness. And, when it is the product of an unwarranted and inex-
plicable deviation from settled standards, it holds hands with
iniquity.

   I am persuaded that this case presents a profound exemplar
of injustice, and I deeply regret the court’s refusal to rehear
this case en banc. I am honored to join in the elegant dissent-
ing opinion of my good colleague, Judge Motz. Judge Motz
conclusively demonstrates that the panel majority in this case
has deviated from Supreme Court precedent and thereby
inflicted a grievous harm on Appellee Foster and, frankly, on
the rule of law. I offer this additional critique of the panel
majority’s handiwork as further illustration of how injustice
so infects the outcome of this proceeding.

                               I.

   First, as Judge Wynn’s panel dissent forcefully argued, the
panel majority has seriously misapplied the appropriate stan-
dard of review. The majority opinion states: "We consider de
novo whether an offense qualifies as a violent felony under
the ACCA. United States v. Thompson, 421 F.3d 278, 280–81
(4th Cir. 2005)." United States v. Foster, 662 F.3d 291, 293
(4th Cir. 2011). But this is, at best, an incomplete statement
of the controlling legal principles. Indeed, Thompson itself
states: "We review legal determinations of the district court
de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir.
1996)." 421 F.3d at 280-81 (emphasis added). Blake, in turn,
states: "We begin by noting that in reviewing the application
of the guidelines by a district court, we examine factual deter-
                        UNITED STATES v. FOSTER                           15
minations for clear error; legal questions, however, are subject
to a de novo standard of review. United States v. Singh, 54
F.3d 1182, 1190 (4th Cir. 1995)." 81 F.3d at 503.

  Singh, on which Blake relied, made clear the mixed stan-
dard of review:

      Applying the statutory command to give "due defer-
      ence" to a district court’s application of the sentenc-
      ing guidelines, we review factual determinations for
      clear error and legal questions de novo. United States
      v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

54 F.3d at 1190. And in Daughtrey, the court provided a full
exposition of the standard of review of sentencing determina-
tions made after the Sentencing Reform Act of 1984, while
summarizing the bottom-line notion as follows: "If the issue
turns primarily on a factual determination, an appellate court
should apply the ‘clearly erroneous’ standard." 874 F.2d at
217.

   This illustration of the lineage of our proper standard of
review is unassailable. Indeed, Judge Agee makes that clear
in his recently-published opinion in United States v. Moore,
666 F.3d 313, __, No. 10-4474, slip op. at 12 (4th Cir. Jan.
25, 2012) ("In the context of sentencing, we review the dis-
trict court’s legal determinations de novo, and its factual find-
ings for clear error. United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008).").1
  1
    See also United States v. Washington, 629 F.3d 403, 411 (4th Cir.)
(Wilkinson, J.) ("We review legal issues such as whether a defendant’s
previous conviction counted as an ACCA predicate de novo, and we
review factual findings for clear error.") (citations omitted), cert. denied,
132 S. Ct. 127 (2011); United States v. Abu Ali, 528 F.3d 210, 261 (4th
Cir. 2008) (Traxler, J.) ("As always, when considering a sentence’s rea-
sonableness, we ‘review the district court’s legal conclusions de novo and
its factual findings for clear error.’"); United States v. Thornton, 554 F.3d
443, 445 (4th Cir. 2009) (Duncan, J.) ("When considering a sentence’s
reasonableness, we ‘review the district court’s legal conclusions de novo
and its factual findings for clear error.’").
16                  UNITED STATES v. FOSTER
   Before the panel in this case, the government did not sug-
gest anything to the contrary, although it cleverly sought to
obfuscate the standard of review with this description of the
applicable standard of review in its brief: "Whether an offense
qualifies as a ‘violent felony’ under the Armed Career Crimi-
nal Act is ultimately a matter of law that is reviewed de novo.
United States v. Thompson, 421 F.3d 278, 280-281 (4th Cir.
2005)." Appellant’s Br. at 6 (emphasis added). Of course, the
"ultimate" question under any statute is a question of law. But
the issue in this case is not the "ultimate" question of whether
an offense under the Virginia non-generic burglary statute
might nevertheless constitute "generic burglary" under the
ACCA; we know the answer to that question. The question in
this case, however, which requires no legal analysis but rather
a factual analysis, is whether the district court clearly erred in
finding that the government failed to satisfy its burden of
proof (as constrained by Shepard) to establish that two of Fos-
ter’s prior offenses were generic burglaries. See also Govt’s
Corr. Response Pet. Reh. En Banc at 8 (conceding that "the
government bears the burden of proving an ACCA predicate
offense by a preponderance of the evidence").

   Of even more particular and compelling salience in the
context of this case, Judge Wilkinson (joined by Judge Motz)
recently demonstrated conclusively that determinations by a
district court of what a Shepard-approved document estab-
lishes (as in this case) are quintessential factual questions sub-
ject to the clear error standard of review. See United States v.
Taylor, 659 F.3d 339, 348 n* (4th Cir. 2011).

   In Taylor, the majority rejected my argument in dissent that
the Shepard-approved document, there a guilty plea tran-
script, was insufficient to establish that the underlying convic-
tion was a crime of violence under the ACCA, and reasoned
as follows:

     Before us is simply the question of whether the dis-
     trict court properly concluded from the relevant
                        UNITED STATES v. FOSTER                            17
      Shepard documents that Thompson’s prior convic-
      tion was a qualifying predicate. In the course of mak-
      ing that finding, we believe the district court was
      entitled to rely on those facts and circumstances in
      the plea colloquy it felt relevant. . . .

         The sole question therefore is whether the district
      court made a proper finding that Thompson’s second
      degree assault conviction was for a crime of vio-
      lence. We think without question that the trial court
      made that finding and that the plea colloquy amply
      supports its conclusion.

Id. (emphases added).2

   What the district court did in this case is exactly what the
district court did in Taylor; it examined Shepard-approved
documents in order to make a finding of fact, except that the
district court’s finding in this case was against the govern-
ment rather than in favor of the government. I presume all
agree that this distinction alone is hardly a reason to reverse
the district court in this case.3
  2
     In my dissent, I argued that the district court committed an error of law
in its reliance on the Shepard-approved document to make its finding that
the appellant’s second-degree assault conviction in violation of Maryland
law was a "crime of violence" under the ACCA. See 659 F.3d at 349, 352
& n.6. The majority concluded, to the contrary (as recounted above), that
the district court committed no error of law and that the Shepard-approved
document was sufficient to support the district court’s finding that the
prior conviction was a qualifying offense under the ACCA.
   3
     As the Supreme Court stated in Anderson v. Bessemer City, 470 U.S.
564 (1985):
         Where there are two permissible views of the evidence, the
      factfinder’s choice between them cannot be clearly erroneous.
        This is so even where the district court’s findings do not rest
      on credibility determinations, but are based instead on physical
      or documentary evidence or inferences from other facts.
18                     UNITED STATES v. FOSTER
   Notably, the parties have not had an opportunity to brief
Taylor’s effect on the issues in this case because the briefing
and argument before the panel in this case were concluded
well before Taylor was published on October 24, 2011. If en
banc rehearing had been granted, we would have had the ben-
efit of counsel’s arguments on the effect on this case, if any,
of Taylor’s application of the clear error standard. The failure
of one more circuit judge in regular active service to vote in
favor of rehearing erects an impenetrable bar to that extraordi-
nary opportunity. Injustice sneaks up on us in so many ways.

   Thus, and in any event, the question presented here is a
question of fact, as the majority’s resort to "judicial notice" of
geographic features of a county in the Commonwealth of Vir-
ginia makes clear. Cf. Ohio Bell Tel. Co. v. Pub. Util.
Comm’n of Ohio, 301 U.S. 292, 301 (1937) ("[N]otice, even
when taken, has no other effect than to relieve one of the par-
ties to a controversy of the burden of resorting to the usual
forms of evidence."). Accordingly, if the judges of this court
believe the district court committed clear error they should
say so, but they should not, sub silentio, alter (any more than
they should misapply) our well-established standard of review
of the multi-faceted process of district court sentencing.

   This case is a first, so far as I can tell. Although we have
found it necessary, of course, to elucidate the applicable legal
standards of sentencing enhancement law, in my canvass of
our post-Shepard ACCA, career offender, and guidelines-
offense-enhancement cases, I cannot locate an instance in

Id. at 574 (emphasis added) (citations omitted); see also Sheet Metal
Workers Int’l Ass’n v. Sweeney, 29 F.3d 120, 126 (4th Cir. 1994) (quoting
this language from Anderson and stating, "This [is] the law"); United
States v. Houman, 234 F.3d 825, 827 (2d Cir. 2000) (per curiam) (citing
Anderson and stating, "We review the district court’s factual finding as to
the nature of the 1975 conviction under a clear error standard, notwith-
standing the fact that the findings were based entirely upon documentary
evidence.").
                    UNITED STATES v. FOSTER                   19
which this court, in a published opinion, outright reversed a
district court’s finding of fact underlying its determination
that the government failed to carry its burden of proof to show
that an offender was eligible for the applicable sentencing
enhancement. See United States v. Donnell, 661 F.3d 890 (4th
Cir. 2011) (reversing for legal error); United States v. Vann,
660 F.3d 771 (4th Cir. 2011) (en banc) (same); United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc) (same);
United States v. Peterson, 629 F.3d 432 (4th Cir. 2011)
(same); United States v. Clay, 627 F.3d 959 (4th Cir. 2010)
(same); United States v. Rivers, 595 F.3d 558 (4th Cir. 2010)
(same); United States v. Alston, 611 F.3d 219 (4th Cir. 2010)
(same); United States v. Bethea, 603 F.3d 254 (4th Cir. 2010)
(same); United States v. Thompson, 588 F.3d 197 (4th Cir.
2009) (same, rejecting district court’s legal conclusion that
circuit precedent had been abrogated by Begay v. United
States, 553 U.S. 137 (2008)); United States v. Roseboro, 551
F.3d 226 (4th Cir. 2009) (vacating imposition of enhanced
sentence upon concluding that Begay did abrogate circuit pre-
cedent); United States v. Harcum, 587 F.3d 219 (4th Cir.
2009) (reversing for legal error); United States v. Thornton,
554 F.3d 443 (4th Cir. 2009)(same); see also United States v.
McQueen, 445 F.3d 757 (4th Cir. 2006) (reversing district
court’s refusal to impose ACCA sentence "without any analy-
sis" and holding that ostensible restoration of defendant’s
civil rights was trumped by "his repeated felony offenses over
time"); United States v. Green, 436 F.3d 449 (4th Cir. 2006)
(reversing district court’s refusal to impose career criminal
sentence upon concluding that "district court erred as a matter
of law" in applying guidelines); United States v. Washington,
404 F.3d 834 (4th Cir. 2005) (reversing, under plain error
standard, in the circuit’s first application of Shepard, district
court’s offense level enhancement for § 922(g)(1) conviction
in reliance on non-Shepard sources).

  In contrast, it is no coincidence that, with one exception,
every one of the circuit court cases cited by the majority in the
panel opinion in this case (and now parroted by the govern-
20                      UNITED STATES v. FOSTER
ment, see Govt’s Corr. Response Pet. Reh. En Banc at 10-11)
in support of the majority’s reversal of the district court’s
finding under the ACCA that the government failed to carry
its burden of proof was an affirmance of the lower court’s
imposition of an enhanced sentence. See United States v. Bax-
ter, 642 F.3d 475 (4th Cir. 2011); United States v. Proch, 637
F.3d 1262 (11th Cir. 2011); United States v. Rainer, 616 F.3d
1212 (11th Cir. 2010); United States v. Miller, 478 F.3d 48
(1st Cir. 2007); United States v. Letterlough, 63 F.3d 332 (4th
Cir. 1995).4

   In the one exception to the pattern described in the above
paragraph (of the panel majority citing cases which affirmed
the imposition of an enhanced sentence to support the rever-
sal of a refusal to impose an enhanced sentence), United
States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir. 2011)
(en banc), the district court’s imposition of an enhanced sen-
tence was reversed on appeal. Id. at 917, 946, 973-74 (Opin-
ions of Bybee, J., and Berzon, J.) (concluding that the
Shepard-approved documents before the district court did not
support its finding that defendant had been convicted of
generic burglary under California law). Turning ostensible
persuasive authorities on their heads and extracting obiter
dicta from them in order to reverse the district court in this
case is peculiar, to say the least.
  4
    My opinion in Baxter, 642 F.3d at 476, provides no support for the
panel’s reasoning or outcome, in any event. The word "shop" appearing
in the Virginia burglary statute also appeared in the indictment in the prior
prosecution in Baxter. Thus, the issue presented was a pure legal issue:
whether, under federal law, as it absorbs the Virginia Supreme Court’s
binding interpretation of the elements of state law (see Vann, 660 F.3d at
777), a "shop" is a "building." The Virginia Supreme Court had so held
in Graybeal v. Commonwealth, 324 S.E.2d 698, 700 (1985), and we
affirmed the district court’s adherence to that ruling in Baxter. 642 F.3d
at 477.
   No factual question whatsoever was presented in Baxter, and therein
lies the problem in any attempt to apply it here.
                    UNITED STATES v. FOSTER                     21
   In short, like the burden of proof at the trial stage, the stan-
dard of review at the appellate stage is the coin of the realm.
We ought not lightly permit corrosive influences, arising out
of understandable dissatisfaction with substantive legal doc-
trines, to denude the value of that currency.

                                II.

   Second, by rule we deem unpublished opinions "non-
precedential" for several very good reasons. 4th Cir. R. 32.1;
see also United States v. Hayes, 482 F.3d 749, 751 n.7 (4th
Cir. 2007) (citing 4th Cir. R. 32.1 for proposition that pre-
2007 unpublished opinion is not controlling precedent),
reversed and remanded on other grounds, 129 S. Ct. 1079,
1089 (2009). Applying the rule, Judge Duncan recently wrote,
in Minor v. Bostwick Laboratories, Inc., __ F.3d __, No. 10-
1258, slip op. at 8 n.6 (4th Cir. Jan. 27, 2012), "we decline to
address the arguments Bostwick bases upon [a prior unpub-
lished opinion]." The prominent role of the unpublished opin-
ion relied on by the panel majority here, United States v.
Shelton, 196 F. App’x 220 (4th Cir. 2006) (unpublished) (and
now parroted by the government, see Govt’s Corr. Response
Pet. Reh. En Banc at 11), is troubling on several levels.

  The majority devotes an entire paragraph to that non-
precedential case and accords it unwarranted gravitas:

    This conclusion is augmented by our prior decision
    in United States v. Shelton, 196 F. App’x 220 (4th
    Cir. 2006) (unpublished). In Shelton, we concluded
    that an indictment charging the defendant with
    breaking and entering "the business of All American
    Car Wash" established that the prior conviction was
    for a generic burglary: "[w]e believe the reference to
    ‘the business’ necessarily ensures that Shelton
    sought to enter ‘a building or structure.’" Id. at 222.
    If the broad term "business" in Shelton sufficiently
22                  UNITED STATES v. FOSTER
     defined a generic burglary, so too should the more
     explicitly named businesses in the case at bar.

662 F.3d at 295-96.

   Manifestly, this is inconsistent with the letter and certainly
the spirit of our local rule, particularly regarding a case, such
as Shelton, that was not even orally argued. This is even more
true in a case in which the district court specifically considers
a non-precedential case and, in reliance on its non-
precedential character, declines to follow it. See United States
v. Foster, 732 F. Supp. 2d 649, 653 (W.D. Va. 2010)
("[C]itation of unpublished decisions issued prior to January
1, 2007, is disfavored, 4th Cir. R. 32.1, and accordingly Shel-
ton does not control the present case.") (citation omitted).

   We should not put district courts in such a Catch-22, which
is to say we certainly should not treat non-precedential,
unpublished opinions as if they were otherwise in a case in
which we reverse the district court for treating a non-
precedential opinion as if it were non-precedential, as indeed
it is. In any event, the fact that we affirmed the district court
in Shelton says no more than that the court did not clearly err
in finding the government had carried its burden of proof.
From an institutional perspective, it is unseemly, to say the
least, to promote a non-precedential prior opinion when a sub-
sequent panel agrees with its reasoning or outcome, as in this
case, only to summarily "decline to address" such an opinion
when a subsequent panel disagrees with its reasoning or out-
come, as in Minor. After all, as Emerson wrote, it is only
"foolish consistency" that is "the hobgoblin of little minds."
Playing an insidious game of "Gotcha" with the district courts
in this circuit is no way to run a judicial railroad.

                              III.

  Third, I think that reversing a district judge for his lack of
"common sense," or because he "abandon[ed] logic," if ever
                    UNITED STATES v. FOSTER                  23
appropriate, is to be reserved for the most extreme cases. This
is not one of those cases. I have little doubt that the panel’s
majority and concurring opinions intend this meaning by their
profligate invocation of these terms. See ante at 10 (Motz, J.,
dissenting). And I believe there is a high risk that many read-
ers, both casual and knowledgeable, will view it this way.
Again, if there was clear error, the court should say so in a
forthright manner. It should not hide behind a misapplication
of the de novo standard of review, accompanied by insincere
salutes to "common sense" and "logic."

   To be sure, as Judge Wilkinson recently reminded us, "[a]
judge’s toolkit includes common sense." United States v.
Montieth, 662 F.3d 660, 668-69 (4th Cir. 2011). At the same
time, however, "common sense" is no judicial panacea or
magic wand. See Pagan v. Fruchey, 492 F.3d 766, 778 (6th
Cir. 2007) (en banc) ("A judicial pronouncement that an ordi-
nance is consistent with common sense hardly establishes that
it is so.").

   As Judge Motz demonstrates, common sense has not been
appropriately invoked to justify a reversal in this case. In any
event, contrary to any suggestion that the district court lacked
common sense, the distinguished district judge brought to
bear the full breadth of his knowledge, experience, insight and
wisdom in conducting the sentencing hearing in this case. As
he noted both at sentencing and in his written opinion, the
offenses leading to the disputed convictions were committed
when the defendant was 19 years old and that the defendant
had no further felony convictions in the 19 years between
those convictions and the present conviction. Foster, 732 F.
Supp. 2d at 651 n.1. The court did an exemplary job of
explaining its sentencing decision in this case, in which the
defendant had a hunting rifle in his car.

   It may well be that the district court was outraged, and jus-
tifiably so, at the thought that Foster should serve a 15-year
sentence for his offense (rather than the 27 months imposed),
24                    UNITED STATES v. FOSTER
but no view of the district court’s handling of this case could
reasonably support the conclusion that the court acted law-
lessly in adjudicating this case. So that the whole world will
see the genuine attention and evenhandedness the district
court brought to its task in this case, I attach as an appendix
to this opinion a reproduction of a part of the transcript of the
sentencing hearing reflecting the court’s statements.

                                 ***

   In sum, I am convinced this record militates strongly in
favor of rehearing. "[I]f the primacy of trial courts in the sen-
tencing process envisioned in Gall is to be respected, the dis-
trict court’s reasonable conclusions from a Shepard-approved
document must be upheld." Taylor, 659 F.3d at 348 (Wilkin-
son, J.). This is no less true when the defendant prevails on
factual determinations under Shepard as when the govern-
ment prevails. The panel majority’s mistaken assertion that
the proper standard of review here is de novo goes unreme-
died and Foster, close to (or already) released from federal
prison, will be ordered to report, again, to the United States
Marshal to serve an additional twelve-plus years in prison
imposed by a couple of federal judges he has never seen
before and who have never looked him in the eye.5 Neverthe-
less, we can be sure that, soon enough, when the government
next prevails on a disputed question arising from a district
court’s interpretation of the facts in a Shepard-approved docu-
ment, government prosecutors will bound up the steps of our
courthouse and earnestly implore us to apply a clear error
standard of review. And the government will be right to ask
us to do so. Only the fog of injustice beclouding this moment
impedes our ability to see that this is so.

     The result here is inconsistent with Supreme Court prece-
  5
   Good faith disagreements over the application of legal doctrine to one
side, it is unimaginable how the result here might be genuinely "pleas-
[ing]." See ante at 8 (Wilkinson, J.).
                   UNITED STATES v. FOSTER                 25
dent; incompatible with circuit rules and long-settled under-
standings; and will be incomprehensible to the communities
we serve. Because en banc review plainly is required here to
maintain uniformity in our jurisprudence and to address issues
of exceptional importance, I dissent from the refusal of the
court to grant the petition for en banc rehearing.

  Judge Gregory joins in this dissent.
26                 UNITED STATES v. FOSTER
                 APPENDIX TO
              OPINION OF DAVIS, J.,
        DISSENTING FROM THE DENIAL OF
              REHEARING EN BANC

       UNITED STATES v. JOHN JOEL FOSTER
                CASE NO. 10-5028

     UNITED STATES COURT OF APPEALS FOR
             THE FOURTH CIRCUIT



THE COURT: Well, if there’s nothing further, I am prepared
to impose sentence at this time. Mr. Foster, if you will stand,
sir. Mr. Foster, is there anything that you wish to say to me
before I pronounce sentence in your case?

THE DEFENDANT: No, sir.

THE COURT: Well, the following are the reasons for the
imposition of the sentence in this case: I’ve carefully consid-
ered the factors set forth in 18, United States Code, Section
3553(a), as well as the sentencing range established in this
case by the advisory sentencing guidelines.

   The parties have made the following arguments as to the
appropriate sentence, which I’ve also considered. The govern-
ment argues that I should impose a sentence above the advi-
sory guideline range as a variance, on the ground that the
guideline range is far below the mandatory minimum sentence
otherwise provided for in the Armed Career Criminal Act, and
that, accordingly, since I ruled that the Armed Career Crimi-
nal Act was not applicable to Mr. Foster’s case, I should con-
sider a higher sentence than the guideline range.

   Of course, the Armed Career Criminal Act was not estab-
lished by the sentencing commission and has no direct refer-
                    UNITED STATES v. FOSTER                     27
ence to the factors set forth in 18, United States Code, Section
3553(a). It is a statute that requires a mandatory minimum
regardless of the history and characteristics of the defendant
or the other factors set forth in the statute, and I do not believe
that that is an adequate basis for considering those factors in
the appropriate sentence in this case.

   In fact, I believe it would be unjust to impose a sentence
mandated by the Armed Career Criminal Act to the defendant,
since I have found that it is not applicable to him and that
there are no other circumstances, in my view, which would
justify such a sentence.

   Now, the government also argues that the defendant’s crim-
inal history underrepresents the seriousness of his prior crimi-
nality. I’m not sure whether the government requests an
upward departure within the meaning of the guidelines or
simply an upward variance. But in either event, I do not
believe such a course would be appropriate in this case,
although, of course, I have the discretion to do so.

   The prior convictions of the defendant which I considered
in regard to the application of the Armed Career Criminal Act
occurred when the defendant was 19 years old, many years
ago. They involve a series of break-ins to businesses that
occurred in the same geographical area over a relatively short
period of time. There’s no indication that such crimes or types
of crimes such as these have occurred since then in the defen-
dant’s life.

   His problem since then has been one of substance abuse,
which I’ll get into in a moment. But there’s no indication that,
since the age of 19, that he has engaged in break-ins or thefts
or other property offenses such as described in the presen-
tence report, so I do not believe that those offenses which
occurred, again, years ago indicate that his criminal history,
as calculated under the advisory sentencing guidelines, under-
represents his criminality.
28                  UNITED STATES v. FOSTER
   The government also argues that I should sentence the
defendant above the advisory guideline range because in 2006
he was convicted of possession of marijuana, and the facts
indicated that a search of his residence discovered ten mari-
juana plants, which could have been prosecuted as a felony,
but through plea bargaining he was convicted of a misdemea-
nor.

   Well, in the first place, we don’t have any idea about why
the state prosecutor agreed to a misdemeanor conviction and
the court placed the defendant on probation. I would have to
presume that there was good reason for that. And normally
when a plea bargain to a misdemeanor occurs, it reflects per-
haps a problem with proof of a more serious offense, or the
defendant’s conduct, his personal history and characteristics
indicate leniency is indicated.

   But in either event, I do not believe that it would be appro-
priate for me to impose a sentence above the advisory guide-
line range because it is theoretically possible that the
defendant may have been convicted of a felony in 2006.

   Now, I believe that the guideline calculation, to which there
has been no objection other than the government’s request
that I impose a mandatory sentence under the Armed Career
Criminal Act, adequately reflects the factors set forth in Sec-
tion 3553(a), and for that reason, I intend to follow the argu-
ment of the defendant and impose a sentence within the
advisory guideline range.

   Now, in particular, the defendant has requested a sentence
at the low end of the guideline range. One of the factors I
must consider is, under the statute, a sentence that would pro-
vide the defendant with needed correctional treatment in the
most effective manner, including medical care.

  As I’ve indicated, the defendant’s problem has been his
substance abuse problem. As the presentence report indicates,
                    UNITED STATES v. FOSTER                   29
he has a long history of alcohol and drug-related problems,
and I believe that the defendant needs treatment while incar-
cerated. I’m going to recommend to the Bureau of Prisons
that the defendant be subjected to the residential substance
abuse program available in the Bureau of Prisons.

  Accordingly, I believe that a sentence at the high end of the
guideline range would make it more likely that the defendant
could receive appropriate treatment while incarcerated.

   I would urge the defendant to take advantage of such a pro-
gram, or any other programs that are available to him while
he’s incarcerated, so that when he gets out, he will be able to
make sure that his substance abuse problems don’t lead him
into the same type of trouble that he is in in this case.

   Accordingly, for the reasons stated, it is the judgment of the
Court that the defendant, John Joel Foster, is hereby commit-
ted to the custody of the Bureau of Prisons to be imprisoned
for a total term of 27 months. The Court will recommend to
the Bureau of Prisons that the defendant be enrolled in the
residential substance abuse treatment program.

  The defendant has performed all the conditions of his bond,
and I will accordingly recommend to—accordingly, I will
permit him to self-report to the institution designated by the
Bureau of Prisons upon notification.

   Upon release from imprisonment, the defendant shall be
placed on supervised release for a term of three years.
30                  UNITED STATES v. FOSTER
WYNN, Circuit Judge, dissenting from the denial of rehearing
en banc:

   Unfortunately, this Court, equally divided, refuses to grant
rehearing en banc in this case. I write now not to address why
I believe the panel majority was incorrect; rather, I write to
point out why this case is particularly well suited to be con-
sidered by the full Court, irrespective of whether one agrees
or disagrees with the panel majority opinion.

   To warrant an en banc rehearing, Appellate Procedure Rule
35 requires that en banc consideration be "necessary to secure
or maintain uniformity of the court’s decisions" or that the
issues at hand are "of exceptional importance." Fed. R. App.
P. 35. Stated differently, a rehearing en banc is not contingent
on disagreement with the panel majority. Instead, the rule
mandates simply that due consideration by the full Court is
warranted when an issue is sufficiently important, or there is
enough tension between the opinion and other Circuit prece-
dent.

   This case easily clears both hurdles. First, this case is of
exceptional importance, because, among other things, it raises
important Sixth and Fourteenth Amendment issues. As has
already been well covered, in circumstances remarkably simi-
lar to those in this case, the Supreme Court, in Shepard v.
United States, 544 U.S. 13 (2005), expressly prohibited courts
from making findings of fact not directly apparent from a
charging document, the terms of a plea agreement, or some
comparable judicial record. Id. at 26. As Justice Souter noted
in his opinion, anything else has serious constitutional impli-
cations:

     [T]he Sixth and Fourteenth Amendments guarantee
     a jury standing between a defendant and the power
     of the State, and they guarantee a jury’s finding of
     any disputed fact essential to increase the ceiling of
     a potential sentence. While the disputed fact here can
                    UNITED STATES v. FOSTER                   31
    be described as a fact about a prior conviction, it is
    too far removed from the conclusive significance of
    a prior judicial record, and too much like the find-
    ings subject to Jones and Apprendi, to say that
    Almendarez- Torres clearly authorizes a judge to
    resolve the dispute. The rule of reading statutes to
    avoid serious risks of unconstitutionality, therefore
    counsels us to limit the scope of judicial factfinding
    on the disputed generic character of a prior plea, just
    as Taylor constrained judicial findings about the
    generic implication of a jury’s verdict.

Id. at 25-26 (opinion of Souter, J.) (citation omitted). The fun-
damental constitutional rights implicated here are exception-
ally important.

   Second, numerous judges on this Court join in Judge
Motz’s dissent to the denial of rehearing en banc, which
expresses the view that the panel majority squarely conflicts
with controlling Supreme Court precedent. Likewise, the
panel majority is in serious tension with our own Court’s case
law, including United States v. Washington, 629 F.3d 403,
409-10 (4th Cir.) (noting "the animating purpose[ ] of the
Taylor/Shepard line: the desire to avoid extensive litigation
about prior convictions at sentencing" and recognizing the
"canonical set of records" upon which courts may rely under
Shepard), cert. denied, 132 S. Ct. 127 (2011), and United
States v. Bethea, 603 F.3d 254, 259-60 (4th Cir. 2010) (reject-
ing the "most plausible explanation" and common use of the
term "escape" and focusing solely on whether Shepard-
approved documents necessarily showed that the defendant
had committed the type of violent conduct required under the
Armed Career Criminal Act ("ACCA")).

  The sheer fact that this Court’s vote on this en banc rehear-
ing petition is 7-7 itself indicates that this case is important
and warrants this Court’s full attention. Fully half of this
Court’s judges deem this matter worthy of being one of only
32                      UNITED STATES v. FOSTER
a handful of cases, at most, that the Court hears en banc in a
given year. That the 7-7 split of the rehearing vote could indi-
cate that a fractured decision may ultimately arise from
rehearing (which is in no way assured, since voting whether
rehearing en banc is warranted should not be a vote on the
merits, as my previous Rule 35 discussion notes) is no reason
to shy away from rehearing this case. Indeed, were the
Supreme Court to take such a view and dodge contentious
issues, many of the most pressing cases would never get
Supreme Court review. And it seems to me that it is precisely
those difficult cases that benefit most from every considered
view, i.e., from rehearing by the full Court.

   Moreover, I cannot help but wonder what the precedential
value of the panel majority opinion is. First, there is the con-
sideration that Judge Wilkinson writes a concurring separate
opinion that does not address directly why en banc review
should be denied but instead sets forth his considered
thoughts on why "the panel majority here committed no Shep-
ard error." Opinion of Wilkinson, J. at 4. In short, though
Judge Wilkinson votes to deny this Court the opportunity to
review this matter, he nonetheless writes an opinion that con-
curs in the majority panel opinion. To use his own words in
this context, he is "quick to heap opprobrium" on voting to
allow the merits to be addressed by the full Court, yet engages
in precisely that, which he has denied the full Court, by issu-
ing an opinion that concurs in the panel majority opinion.1
  1
   The concurring opinion states that the dissenters "are quick to heap
opprobrium on the exercise of the obvious, but slow to suggest what the
Corner Market and Sunrise-Sunset Restaurant might be other than build-
ings or structures." Opinion of Wilkinson, J. at 5. To the contrary, footnote
2 of my dissent from the panel majority opinion does indeed suggest
"what the Corner Market and Sunrise-Sunset Restaurant might be other
than buildings or structures." Id. Of course, those suggestions were not
necessary to the analysis because the appropriate inquiry is whether the
market and restaurant at issue must necessarily be buildings.
                       UNITED STATES v. FOSTER                         33
  Too, Judge Motz and Judge Davis have issued opinions
which, like that of Judge Wilkinson, do not directly address
why en banc review should be allowed. But unlike Judge Wil-
kinson, they vote to allow all of the other members of this
Court the opportunity to address the merits of the underlying
appeal, as they do in their respective opinions.

   Additionally, Judge King, Judge Gregory, Judge Davis,
Judge Keenan and Judge Floyd all concur in Judge Motz’s
dissenting opinion. Judge Gregory also concurs in Judge
Davis’s dissenting opinion. With Senior Judge Hamilton2
(who also wrote a separate opinion concurring in the panel
majority opinion) joining in Judge Agee’s panel majority
opinion, and my dissent from the majority panel opinion, ten
judges have now expressed their opinions on the merits of the
underlying appeal, not just on the decision to deny rehearing.

   That leaves the order denying a rehearing en banc essen-
tially affecting only the remaining five judges who have nei-
ther written nor joined an opinion that concurs or dissents
from the panel majority opinion. I suppose if those five judges
were to align themselves with any of the opinions arising
from this poll, this Court would effectively have conducted an
en banc review—only without having given the parties access
to the full Court via oral argument to express their views.

   Further, what guidance does the panel majority opinion
provide, for this Court and for district courts, going forward?
Is using "common sense" required, or merely discretionary?
Even were employing "common sense" mandatory, different
judges will almost surely have different notions of "common
  2
   Per the Fourth Circuit Judges’ Handbook, "[o]nly active judges may
vote in a poll." However, because Senior Judge Hamilton "was on the
original panel that decided the case[,]" the Handbook provides that he may
"continue[ ] to participate after rehearing en banc is granted." Id. at 22
(emphasis added). Thus, a senior judge may not participate in any manner
during the polling of this matter; instead, a senior judge may participate
only if "rehearing en banc is granted." Id.
34                     UNITED STATES v. FOSTER
sense and experience," "resulting in a totally subjective stan-
dard . . . ." Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,
1346 (11th Cir. 2010) (Ryskamp, J., dissenting). The outcome
of a "common sense" inquiry in any given case will therefore
likely depend, at least in part, on the identity of the district
court judge or the appellate panel members—a troubling con-
sequence indeed.3

   I appreciate that rehearing en banc "is not favored" and is
the exception rather than the rule. Fed. R. App. P. 35. Never-
theless, rehearing en banc is an important tool for giving diffi-
cult issues the benefit of every considered view. In
considering rehearing requests, the inquiry should not be,
"would I have voted differently than the panel majority," but
rather, "is the issue this case presents particularly important or
in tension with precedent." See id. With all due respect to my
good colleagues voting to deny the full Court an opportunity
to confront the issues in this case, the correct answer here,
particularly when viewed irrespective of inclinations on the
merits, is a resounding yes.

   I must therefore respectfully dissent from the denial of a
rehearing en banc. Judge Gregory and Judge Davis have
authorized me to indicate that they join in this dissent from
the denial of rehearing en banc.



   3
     That is why the advice posited by the concurring opinion that "a policy
disagreement with the ACCA" is a matter "to be taken up with Congress,"
Opinion of Wilkinson, J. at 8, is advice that should be directed to the
majority panel opinion, in which the concurring opinion joins. Instead of
reading the language of the ACCA and pertinent statutes and case law as
they are written, the majority panel imports its own notions of "common
sense" into the equation. Indeed, "common sense" as used by the majority
panel here is little more than a thinly veiled public policy decision. The
majority panel would therefore seem to be well served by the concurring
opinion’s misdirected advice: "Theirs is a policy disagreement" that
should "be taken up with Congress." Id.
