In addition to yesterday’s decision on gun possession in motorcycle gangs, the Fourth Circuit issued a published opinion in another gun case: United States v. Taylor. The decision came in the consolidated appeals of Daryl Taylor and Antwan Thompson from a jury verdict convicting them of being felons in possession of a firearm under 18 U.S.C. § 922(g).
Judge Wilkinson wrote the opinion for the court, which was joined in by Judge Motz. Judge Davis authored a separate opinion concurring in part and dissenting in part.
The panel unanimously agreed on the disposition of the appellate issues raised with respect to the conviction and sentence of Daryl Taylor.
The disagreement about Antwan Thompson’s sentence centered on the propriety of a 15-year mandatory minimum under the ACCA due to Thompson’s prior felony convictions. Thompson had three relevant prior convictions: two for cocaine offenses and one for second-degree assault under Maryland law. His argument on appeal was that his assault conviction was not a “violent felony” under the ACCA.
The panel majority applied the modified categorical approach, according to which a court can look at certain materials such as charging documents, plea agreements, and transcripts of plea colloquys, to determine whether the conviction was necessarily for a violent felony.
The panel majority rested on the facts set forth in a plea colloquy, according to which Thompson, in resisting arrest for a drug deal, had thrown a Styrofoam cup of liquid at one police officer and scuffled intensely with three of them, leading to a charge for assaulting the officer on the receiving end of the thrown cup of liquid. Thompson argued that he did not admit the facts set forth by the judge in the plea colloquy, but rather that the record showed only that his lawyer did not dispute those facts.
The panel majority holds Thompson to the representations made by his lawyer. By contrast, Judge Davis argues that the attorney’s say-so in declining to make any corrections or additions cannot be treated as the defendant’s confirmation of the facts set forth by the judge.
This area of the law is not one that I specialize in, but my quick take on the governing precedent as a generalist observer is that Judge Davis is parsing Shepard too finely and that the panel majority is justified in treating Thompson’s assault conviction as one for a “violent felony.”