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The Fourth Circuit issued six opinions in argued cases between yesterday and the day before (3 published and 3 unpublished). One of the published opinions, holding that an ACCA enhancement was appropriate and reversing the district court’s contrary determination, featured three separate opinions weighing in on the value of common sense.

Judge Agee wrote the majority opinion in United States v. Foster, in which Senior Judge Hamilton joined. Judge Wynn dissented. Senior Judge Hamilton wrote a concurring opinion largely responding to Judge Wynn.

The issue in Foster is one that has roiled the Fourth Circuit in recent times: the propriety of a sentencing enhancement under the Armed Career Criminal Act. In this case, the Shepard documents relied upon by the government showed convictions for breaking and entering the “Sunrise-Sunset Restaurant” and the “Corner Market.” The issue was whether it is appropriate to infer that these convictions were for breaking and entering a building or structure. The precise details of the legal dispute aside for the moment, here are some quotations providing a sense of the back and forth on the panel.

Judge Agee, quoting the First Circuit:

“The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality,law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.” Rainer, 616 F.3d at 1216. As we concluded with respect to the “business” in Shelton, we find that the indictments’ references to the “Sunrise-Sunset Restaurant” and the “Corner Market,” in the context of the applicable Virginia statute, ensure that Foster entered buildings or structures and was thus convicted of generic burglary for purposes of the ACCA.

Senior Judge Hamilton, concurring:

I write separately to make three observations concerning the use of common sense in ACCA cases. First, there is nothing truly remarkable about the use of common sense in ACCA cases. * * *

Second,  leaving our common sense at the front door makes little sense in examining court documents in ACCA cases. For example, what if the Virginia state court documents reflected that Foster was convicted of breaking and entering into an “Outback Steakhouse” or a “Wawa”? Under the dissent’s interpretation of Shepard, a district court would be precluded from using such a conviction because the documents themselves do not prove to an absolute certainty that every Outback Steakhouse or Wawa is affixed to the ground. As the dissent sees it, our common sense cannot step in and tell us what we already know because there is an infinitesimally small possibility that there is some Outback Steakhouse or Wawa floating on a river somewhere in a far-off land. * * *

Finally, the dissent implies that the use of common sense “replace[s the district court’s] fact-finding with our own.” The use of common sense is not the equivalent of fact-finding. The standard of review in ACCA cases is de novo, United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005), and the use of common sense here is the same common sense courts routinely employ in determining the meaning of a state or federal statute.

Judge Wynn, dissenting:

None of the judicial records pertaining to Defendant’s prior convictions contain any allegation that the Corner Market or the Sunrise-Sunset Restaurant are buildings or structures; they are referred to only by their proper names. Indeed, nothing in the record either proves or disproves that those establishments are located in buildings or structures, or that Defendant “necessarily admitted” to those facts as part of his guilty plea. If not from these judicial records, where then did the majority obtain its “evidence” that the Sunrise-Sunset Restaurant and the Corner Market are buildings? [footnote 2]

[Footnote 2: In fact, the majority’s statement that “[a] defendant who pleads guilty to the burglary of a McDonald’s Restaurant, under similar circumstances to this case, necessarily pleads guilty to the burglary of a building or structure  illustrates perfectly the danger of such speculation based only on common sense or logic. Ante p. 11. Notably, it is not apparent what “similar circumstances” would render the per se determination that a McDonald’s Restaurant is a building for purposes of invoking the ACCA. Without some extrinsic knowledge of the circumstance of location in this case or another, it could well fit within the description of the McDonald’s Restaurant that operated out of a riverboat in Saint Louis for twenty years. See http://www.yelp.com/biz/mcdonalds-riverboat-st-louis (last visited Nov. 10, 2011); http://www.flickr.com/photos/tom-margie/2864343408/lightbox/ (last visited Nov. 10, 2011).

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