United States of America v.  Tony Lee Thompson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4678 
TONY LEE THOMPSON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-04-76)
Argued: May 27, 2005
Decided: September 6, 2005
Before WILKINS, Chief Judge, and WIDENER and
WILKINSON, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the majority
opinion, in which Judge Widener joined. Chief Judge Wilkins wrote
a dissenting opinion.
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant. Lawrence Patrick Auld,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner,

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United States Attorney, Lisa B. Boggs, Assistant United States Attor-
ney, Greensboro, North Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Tony Lee Thompson was indicted as a felon in possession of fire-
arms under 18 U.S.C. §§ 922(g)(1), 924(e) (2000 & Supp. II). He
pleaded guilty. When a defendant has at least three prior convictions
for "violent felon[ies]" that were "committed on occasions different
from one another," § 924(e)(1), the Armed Career Criminal Act
("ACCA"), imposes a minimum sentence of fifteen years. The district
court found these statutory conditions satisfied and sentenced Thomp-
son to that minimum sentence.
On appeal, Thompson disputes the applicability of ACCA to his
case. He claims that the statutory predicates — that his prior convic-
tions were violent felonies committed on separate occasions — were
facts improperly found by the judge in violation of his Sixth Amend-
ment rights. Because we conclude that the statutory predicates have
been demonstrated as a matter of law, there remain no disputed ques-
tions of fact about Thompson’s prior convictions. We therefore
affirm.
I.
Tony Lee Thompson emerged from a residence — not his own —
on November 16, 2003, in High Point, North Carolina. He was carry-
ing stolen items. The police department, having been alerted by a call
complaining of a suspicious person, dispatched an officer who appre-
hended Thompson. The officer found him with a Jennings Bryco
9mm pistol and a Colt .38 caliber revolver. Since both firearms had
moved in interstate commerce, Thompson was indicted as a felon-in-
possession under § 922(g)(1).
Thompson’s criminal history supplied the predicates for an
enhanced sentence under § 924(e).1 Thompson does not dispute that
1ACCA provides that anyone "who violates § 922(g) . . . and has three
previous convictions . . . for a violent felony or a serious drug offense,
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he has been convicted of felonies. The Presentence Investigation
Report ("PSR") — to which he raised no objection — details the
extent of his criminal record. From the age of 16, Thompson (now 25)
has been convicted of a string of crimes ranging from misdemeanor
shoplifting and drug possession to a number of felonies.
Particularly relevant among the more than twenty convictions
described in the PSR are several for "felony breaking and entering"
under North Carolina law. The PSR records that Thompson pled
guilty to felony breaking and entering of a residence in Trinity, North
Carolina, on July 19, 2001; of another residence in Trinity on July 23,
2001; of a residence in Asheboro, North Carolina, on July 25, 2001;
of a residence in Lexington, North Carolina, on October 1, 2001; of
another residence in Lexington on June 18, 2002; and of yet two fur-
ther residences in Lexington on November 7, 2002.
On the basis of these prior convictions and upon accepting the plea
agreement Thompson reached with the government, the district court
found the enhancement of § 924(e) — a mandatory minimum sen-
tence of 15 years — to be applicable. The court thus sentenced
Thompson to fifteen years imprisonment, five years of supervised
release, and a $100 special assessment.
Thompson now appeals, arguing that his sentence was unconstitu-
tionally imposed as a matter of law. We review legal determinations
of the district court de novo. United States v. Blake, 81 F.3d 498, 503
(4th Cir. 1996).
II.
Thompson believes that the Supreme Court’s recent Sixth Amend-
ment rulings prohibit sentencing him under ACCA unless a jury finds
(or he admits) the facts required by the statute.2 Two such facts —
or both, committed on occasions different from one another . . . shall be
fined under this title and imprisoned not less than fifteen years . . . ."
§ 924(e)(1).
2Thompson also challenges his sentence under the Fifth Amendment,
arguing that the indictment did not allege facts sufficient to support his
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that three prior convictions were "violent felonies" and that they were
"committed on occasions different from one another" — are predi-
cates for ACCA enhancement. Thompson argues that since these facts
were neither admitted by him nor found by a jury, they cannot justify
the enhanced sentence.
Evaluating Thompson’s claims requires understanding the limita-
tions the Supreme Court has placed on the use of judicial fact-finding
in the sentencing context. In Blakely v. Washington, 124 S. Ct. 2531
(2004), the Supreme Court held that a sentencing regime violated the
Sixth Amendment when judges found "factors" that increased a sen-
tence beyond the maximum allowed by the jury findings alone. But
by refusing to overturn its holding in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), the Court explicitly excluded from this
general rule "‘the fact of a prior conviction.’" Blakely, 124 S. Ct. at
2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). In
United States v. Booker, 125 S. Ct. 738 (2005), the Court extended
Blakely to the U.S. Sentencing Guidelines. But the Court repeated that
only facts "other than a prior conviction" were subject to the jury
requirements of the Sixth Amendment. Id. at 756.
Most recently, in Shepard v. United States, 125 S. Ct. 1254 (2005),
the Court addressed what was meant by the "fact of a prior convic-
tion." In Shepard, the Court considered a defendant situated much
like Thompson. Shepard pleaded guilty to being a felon in possession
under § 922(g)(1), and the government sought to use ACCA to
enhance his sentence. But the text of the Massachusetts statute under
which Shepard previously had been convicted did not clearly meet the
requirement of ACCA that the conviction be a "violent felony." To
demonstrate compliance with ACCA, the government offered docu-
ments like police reports to show that even if some convictions under
the state statute might not be "violent felonies," Shepard’s own con-
victions were. Id. at 1257-58.
enhanced sentence under ACCA. As the dissent acknowledges, both of
his constitutional claims are defeated if "the underlying facts justifying
the ‘different occasions’ determination were each subsumed by the fact
of Thompson’s prior convictions." Dissenting Op. at 16 (quotation marks
and alterations omitted). As this is precisely what we conclude in our dis-
cussion of the Sixth Amendment, there is no need to conduct a separate
Fifth Amendment analysis.
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The Supreme Court refused the offer. It prohibited judges from
resolving a "disputed fact . . . about a prior conviction," id. at 1262,
if doing so required data — like that found in police reports — that
was not inherent in that prior conviction. At the same time, however,
Shepard explicitly affirmed that the prior conviction exception
remained good law. Id. at 1262. To this end, the Court authorized
judges to rely on a variety of conclusive court documents when deter-
mining the nature of a prior conviction. Approved sources include, for
instance, the prior court’s jury instructions or the "charging docu-
ments filed in the court of conviction." Id. at 1259. When there was
no jury in the prior case, judges may use not only charging documents
but "a bench-trial judge’s formal rulings of law and findings of fact."
Id. For prior guilty pleas, "the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the
defendant, or [ ] some comparable judicial record of this information,"
are all also available for use. Id. at 1263.3
The common denominator of the approved sources is their prior
validation by process comporting with the Sixth Amendment.
Excluded sources, such as transcripts of testimony or police reports,
are not necessarily inherent in the conviction. "[S]ubsequent evidenti-
ary enquiries into the factual basis for the earlier conviction" are off-
limits, id. at 1259, but "conclusive records" of the earlier conviction,
id. at 1260, are not.
3Our dissenting colleague would read Shepard purely as a case of stat-
utory interpretation. Dissenting Op. at 25. But as we recognized in
United States v. Washington, 404 F.3d 834, 840-41 (4th Cir. 2005),
Shepard itself says otherwise. It did not escape the Court’s notice in
Shepard that the rule it announced might have constitutional implica-
tions. But the four-justice plurality noted that its interpretation of ACCA
had followed "the rule of reading statutes to avoid serious risks of uncon-
stitutionality." Id. at 1262-63. And the three dissenting justices expressed
the opinion that the Sixth Amendment permits judicial consultation of
records even outside those that the plurality approved. Id. at 1269-70.
Thus, seven justices indicated that it is constitutional for a judge to find
the facts inherent in a prior conviction in the judicial records of that con-
viction.
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In short, the "fact of a prior conviction" remains a valid enhance-
ment even when not found by the jury. Of course, sentencing judges
may not smuggle in contraband facts — those that are reserved for
juries — under the mantle of the "fact of a prior conviction." But nei-
ther may we sever the prior conviction from its essential components.
For instance, an artificially narrow reading of the "fact of a prior con-
viction" exception might extend to only a grudging acknowledgment
that a defendant once had been convicted. Such a reading would
answer the question "convicted of what?" by asserting that such a
question involved facts "about" the conviction which were reserved
to a jury.
Shepard rejected this narrow approach. In describing the materials
that could be used by judges to determine the nature of a prior convic-
tion, it reinforced the notion that some facts are so inherent in a con-
viction that they need not be found by a jury. If the Court had wished
to endorse the narrower view — that only the bare existence of a prior
conviction was exempt from jury determination — it could have
saved itself great trouble by simply stating that such questions about
a conviction were reserved for a jury, regardless of whether statutes,
charging documents, or prior jury instructions revealed the nature of
the conviction.
A conviction cannot, therefore, be reduced to nothing more than
that the defendant was at some prior time convicted of some crime.
This bare fact is certainly at the nucleus of the conviction. But that
nucleus also contains other operative facts, such as the statute which
was violated and the date of the conviction. The Supreme Court has
declined to attempt extraction of the mere fact of a prior conviction,
stripped of all content. We cannot be willfully blind to that content
— date, statutory violation, and the like — where it is properly estab-
lished by one of the sources approved in Shepard. It is as much a part
of the conviction as the fact that twelve jurors agreed about the defen-
dant’s guilt.
We have already had an opportunity to respect the line Shepard
drew between data inherent in a prior conviction and those facts
extraneous to it. In United States v. Washington, 404 F.3d 834 (4th
Cir. 2005), facts extraneous to the prior convictions had caused a
heightened sentence. The district court had to determine whether a
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prior conviction had been a "crime of violence" under the Sentencing
Guidelines, where the relevant test was the fact-intensive inquiry of
whether the prior conviction had "involve[d] conduct that presents a
serious potential risk of physical injury to another." Id. at 836 (quot-
ing United States Sentencing Guidelines Manual §4B1.2(a)(2)). The
district court relied on "common experience" and "extra-indictment
information," id. at 842, to reach that conclusion. Such sources,
including discussions about the nature of the building that Washing-
ton had entered, about the kind of materials stored there, and about
the likelihood of people being present or armed during the hour of the
crime, id. at 836, necessarily provided facts not of a prior conviction
but "‘about a prior conviction,’" id. at 839 (quoting Shepard, 125
S. Ct. at 1262) (emphasis in Washington), 841-42. The court observed
that "Washington’s prior guilty plea in no way implicated the level of
the building’s security system, the nature of its employees and their
activities, or whether they at times return to work at night." Id. at 842.
Because such facts were extraneous to the fact of conviction, we
vacated the sentence, as Shepard required.
The present case therefore turns on whether the facts necessary to
support the enhancement inhere in the fact of conviction or are extra-
neous to it. If Thompson can show that his prior convictions were not
inherently "violent felonies" or that the convictions themselves were
not for offenses committed during separate occasions, his sentence
must be vacated. But if these facts are inherent in his prior convic-
tions, then Thompson cannot demand a jury finding because no legiti-
mately disputed fact provides the basis for the ACCA sentence.
III.
A.
Thompson first points to the requirement in § 924(e) that the predi-
cate prior convictions were "violent felonies." He argues that the
indictment in this case alleged only, and insufficiently for § 924(e)
purposes, that he had previously been convicted "of crimes punish-
able by imprisonment for a term exceeding one year, that is, breaking
and entering (3 counts); larceny (2 counts); and possession of bur-
glary tools." He disputes that this description of his prior convictions
meets the requirements of § 924(e). At any rate, he argues, since the
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indictment did not specify that the prior convictions were for "violent
felonies," and since he did not admit as much in his guilty plea, the
district court deprived him of the right to a jury’s determination when
it enhanced his sentence.
As we have noted above, recent Supreme Court case law empha-
sizes that prior convictions are facts that need not be submitted to any
jury. Shepard affirmed this rule. The only question here is whether
Thompson’s prior convictions do or do not qualify as "violent felo-
nies." It is often "a question of law whether a felony meets the statu-
tory definition of a ‘violent felony,’ and such a question does not
trigger the Sixth Amendment concerns addressed in Booker." United
States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005); see also
United States v. Wilson, 406 F.3d 1074, 1076 (8th Cir. 2005) (finding
a statutory offense to be a violent felony as a matter of law); United
States v. Haynes, 961 F.2d 50, 51 (4th Cir. 1992) (finding that the
defendant’s status as a convicted felon "involves a purely legal deter-
mination") (citation omitted).
ACCA defines the term "violent felony" in part as "any crime pun-
ishable by imprisonment for a term exceeding one year . . . , that . . .
is burglary . . . ." § 924(e)(2)(B)(ii). In Taylor v. United States, 495
U.S. 575 (1990), the Supreme Court construed "burglary" in this con-
text to be limited to what it called "generic burglary," which is "un-
lawful or unprivileged entry into, or remaining in, a building or
structure" — but not, for instance, a car or boat — "with intent to
commit a crime." Id. at 598-99; see also United States v. Bowden, 975
F.2d 1080, 1083 (4th Cir. 1992).
We have already considered the question of whether the North Car-
olina statute proscribing "breaking or entering buildings," see
N.C.G.S. § 14-54, constitutes "generic burglary." In Bowden, this
court thoroughly examined ACCA, the Supreme Court’s decision in
Taylor, and the North Carolina statute. Bowden, 975 F.2d at 1081-85.
Using these sources, we explained why violations of the North Caro-
lina statute "must be within Taylor," id. at 1085, and therefore are "vi-
olent felonies" for ACCA purposes. See also United States v.
Anderson, 921 F.2d 335, 340 (1st Cir. 1990) (concluding that a
"North Carolina conviction for breaking and entering clearly qualifies
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as a predicate offense under the Taylor definition" for a § 924(e)
enhancement).
Since Bowden disposes of Thompson’s challenge to the classifica-
tion of a North Carolina burglary conviction as a "violent felony"
under § 924(e), we necessarily conclude that the statutory requirement
of three prior convictions of violent felonies has been met.4
B.
The statute also requires, however, that the three convictions count
only if the offenses were "committed on occasions different from one
another." § 924(e)(1). If a series of crimes can be characterized as a
single "occasion," criminal defendants stand to gain sentencing reduc-
tions by arguing that their crimes were part of a unified whole.
Thompson unsurprisingly seeks to benefit from this possible construc-
tion of the word "occasion." He claims that several of his offenses
were part of a single "occasion," and that he should thus not be sen-
tenced under ACCA. He has not explained how he packages his crim-
inal past to reduce his violent felonies to fewer than three occasions,
but his counsel at oral argument promised that if Thompson is given
the chance to "take the stand and argue to the jury," all will become
clear.
There is no occasion to persuade the jury, however, unless there is
4This conclusion would remain unchanged even if Thompson had chal-
lenged the PSR — if, for example, he alleged that the PSR described
some other Tony Lee Thompson. Such "subsidiary findings" are part of
"‘the fact of a prior conviction’" which judges may find. United States
v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001). So long as such a "subsid-
iary finding" does not encompass any fact extraneous to the fact of con-
viction, it need not be found by a jury.
Furthermore, although the indictment here referenced Thompson’s
prior convictions, the result would be the same if it had been less com-
plete. See United States v. Higgs, 353 F.3d 281, 302 (4th Cir. 2003)
(indictment need not charge a prior conviction to enhance a sentence);
see also United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004)
(whether prior convictions were committed on different occasions "need
not be pled in an indictment").
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a disputed question of fact extraneous to Thompson’s prior convic-
tions. No such question exists here. We have explained that "occa-
sions" are "those predicate offenses that can be isolated with a
beginning and an end — ones that constitute an occurrence unto
themselves." United States v. Letterlough, 63 F.3d 332, 335 (4th Cir.
1995). We listed several factors in that case to guide district courts,
such as different geographic locations and victims. Id. at 335-36. Let-
terlough himself had two prior drug sale convictions, for sales occur-
ring less than two hours apart. Id. at 334. As a matter of law, we held
that "each of Letterlough’s drug sales was a complete and final trans-
action," id. at 337, and a separate occasion for ACCA purposes. Like-
wise, in United States v. James, 337 F.3d 387, 391 (4th Cir. 2003),
we rejected a contention that the burglary of two different stores,
across the street from each other, on the same day, could be part of
the same "occasion." And in United States v. Hobbs, 136 F.3d 384,
387 & n.5, 389 (4th Cir. 1998), we observed that each of three burgla-
ries in the space of a single hour "occurred on an occasion different
from the others." Letterlough itself favorably commented on a Fifth
Circuit case which found two separate occasions when a defendant
robbed a store and then "[s]everal hours later . . . returned to the very
same store and robbed it again." Letterlough, 63 F.3d at 336-37 (cit-
ing United States v. Washington, 898 F.2d 439 (5th Cir. 1990)).
These cases, when applied to the information contained in Thomp-
son’s PSR, compel the conclusion that Thompson committed acts of
burglary on at least three separate occasions. The trial judge was enti-
tled to rely upon the PSR because it bears the earmarks of derivation
from Shepard-approved sources such as the indictments and state-
court judgments from his prior convictions, and, moreover, Thomp-
son never raised the slightest objection either to the propriety of its
source material or to its accuracy. The PSR details three separate state
court judgments, entered on different dates, in which Thompson was
sentenced for burglarizing a residence. These three judgments encom-
pass seven different counts of felony breaking and entering, taking
place on six different days. And even if they had all occurred on the
same day, the PSR further reveals that Thompson’s court proceedings
occurred in two separate jurisdictions (Davidson County and Ran-
dolph County) and that the residences he burglarized were owned by
seven different people living in three different towns. Under these cir-
cumstances, our caselaw precludes any argument that the convictions
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represent fewer than three occasions of burglary — this is, in fact, a
vastly easier case than Letterlough, James, or Hobbs. The line
between facts that are inherent in a conviction and facts that are about
a conviction is a common-sensical one, and there is no way that our
conclusion as to the separateness of the occasions here can be seen
to represent impermissible judicial factfinding.
The Sixth Amendment requires that facts necessary for a given sen-
tence (other than a prior conviction) be found by a jury. But Blakely,
Booker, and Shepard do not, of course, transmogrify what have
always been questions of law into questions of fact. We therefore hold
that the term "occasion" under ACCA necessarily includes burglaries
like Thompson’s, which were committed on distinct days in separate
towns in different homes. The data necessary to determine the "sepa-
rateness" of the occasions is inherent in the fact of the prior convic-
tions. Finding distinct occasions does not require courts to stray
beyond such data in the way that the district court in Washington did
— surmising what the contents of a given building might be, whether
such contents were protected, who might have been in the building,
whether such people would have been armed, what the building’s
security level was. See Washington, 404 F.3d at 841-42. Like the Sec-
ond Circuit, therefore, "we are not persuaded by the defendant’s con-
tention that the separateness of the prior convictions can be
distinguished from the mere fact of their existence . . . ." United States
v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001); see also United States
v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004) ("[T]he ‘different occa-
sions’ requirement of § 924(e) cannot be significantly distinguished
from ‘the fact of a prior conviction.’").
We find instructive the distinction between the findings required in
determining an "occasion" here and the kind of wide-ranging, fact-
intensive findings made in Washington. The district judge in Wash-
ington labored under the constraints of §4B1.2(a)(2) of the Guide-
lines, which asked whether a prior conviction "involve[d] conduct
that presents a serious potential risk of physical injury to another."
Washington, 404 F.3d at 836. Unsurprisingly, such a nebulous stan-
dard cries out for speculation regarding facts extraneous to the prior
conviction. By contrast, ACCA’s use of the term "occasion" requires
recourse only to data normally found in conclusive judicial records,
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such as the date and location of an offense, upon which Taylor and
Shepard say we may rely.
No finding of fact by a jury is necessary here, therefore. Whether
the burglaries occurred on different occasions does require applying
the fact that they were separate episodes. But this fact is inherent in
the convictions themselves, and thus is not among the kind of facts
extraneous to a conviction that Blakely or Shepard requires a jury to
find. To take notice of the different dates or locations of burglaries —
something inherent in the conviction — is to take notice of different
occasions of burglary as a matter of law. Thompson has not offered
either at sentencing or on appeal any way that his lengthy string of
breakings and enterings on different days, in different towns, and in
different jurisdictions can be seen by any factfinder — judge or jury
— to represent fewer than three occasions. Indeed, his situation is
precisely that for which ACCA was enacted.
We are hardly alone in concluding that sentences such as Thomp-
son’s are constitutional. Besides the Second Circuit in Santiago, many
courts — both before and after Blakely, Booker, and Shepard — have
shared our view. In Wilson, 406 F.3d at 1075, the Eighth Circuit
rejected a claim under those three cases that "whether [a defendant’s]
prior felonies were violent offenses and whether they occurred on
separate occasions should have been made by a jury . . . ." Similarly,
in Moore, 401 at 1224, the Tenth Circuit recognized that the Blakely
line of cases did not require "the government [to] charge the ‘fact’ of
a prior conviction in an indictment and submit it to a jury." In United
States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005), the Sixth Cir-
cuit found that Booker posed no obstacle to a "district court’s author-
ity to determine the existence of prior convictions," and that this
authority "was broad enough to include determinations regarding the
nature of those prior convictions."
Precisely because Blakely, Booker, and Shepard do not affect the
"fact of conviction" exception (so long as legitimately disputed ques-
tions are resolved only with the sources approved in Shepard), earlier
cases which construe terms like "occasion" or "violent felony" remain
authoritative. Our sister circuits have provided ample support for our
statutory construction of those terms. See, e.g., United States v. Car-
nes, 309 F.3d 950, 956 (6th Cir. 2002) ("The obvious way to distin-
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guish between these two robberies is that Carnes had to leave one
residence in order to burglarize the second."); United States v. Riddle,
47 F.3d 460, 462 (1st Cir. 1995) ("Whatever elastic there may be in
[§ 924(e)], it is not a reasonable stretch of language to describe five
burglaries at five different locations on four different dates as occur-
ring on the same occasion."); United States v. Hudspeth, 42 F.3d
1015, 1021 (7th Cir. 1994) (en banc) (finding separate occasions
when defendant "committed three distinct burglaries against three
separate victims . . . in three separate locations over the course of
more than thirty minutes") (footnotes omitted); United States v.
Brady, 988 F.2d 664, 669 (6th Cir. 1993) (en banc) (observing that
as a matter of law "offenses committed by a defendant at different
times and places and against different victims, although committed
within less than an hour of each other, are separate and distinct crimi-
nal episodes and that convictions for those crimes should be counted
as separate predicate convictions under § 924(e)(1)").
IV.
Thompson’s remaining arguments are entirely disposed of by our
resolution of his § 924(e) contentions, and they are therefore without
merit.5 For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
WILKINS, Chief Judge, dissenting:
The majority holds that the district court did not violate Thomp-
son’s constitutional rights by sentencing him under the Armed Career
Criminal Act (ACCA), see 18 U.S.C.A. § 924(e)(1) (West Supp.
5Thompson’s offense level was also increased in accordance with U.S.
Sentencing Guideline § 4B1.4(b)(3)(B). Thompson’s prison sentence
was mandated by statute and would have been unaffected by the Guide-
lines. The remaining parts of his sentence are consistent with the Guide-
lines. The facts necessary for this sentence enhancement related to his
prior convictions and, as we have explained, were thus appropriately
found by the district court.
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2005). Because I believe that Thompson’s sentence violated his Fifth
and Sixth Amendment rights, I respectfully dissent.1
I.
Thompson pleaded guilty to an indictment alleging that he violated
18 U.S.C.A. § 922(g)(1) (West 2000) by possessing firearms after
having been previously convicted "of crimes punishable by imprison-
ment for a term exceeding one year, that is, breaking and entering (3
counts) . . . ." J.A. 5. Although not alleged in the indictment, the pre-
sentence report (PSR) stated that Thompson had previously pleaded
guilty to North Carolina felony breakings and enterings of residences
that occurred on July 19, July 23, July 25, and October 1, 2001, and
on June 18 and November 7, 2002.2 Although Thompson did not
object to the facts included in the PSR, he did argue that sentencing
him under the ACCA would conflict with Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531
(2004), since his indictment did not allege—and he did not admit—
that he had three previous convictions for violent felonies that were
"committed on occasions different from one another," as 18 U.S.C.A.
§ 924(e) requires. The district court overruled his objection, found
that he qualified as an armed career criminal, and sentenced him to
180 months’ imprisonment.
II.
Thompson argues that sentencing him under the ACCA based on
1The majority never acknowledges that Thompson asserts the Fifth
Amendment claim that "the indictment to which [he] pleaded guilty did
not properly allege a violation of [the ACCA]." Br. of Appellant at 8; see
id. at 8-9 (arguing that "the indictment omitted charging that the prior
convictions . . . were committed on occasions different from one
another" and that Thompson "did not admit those facts necessary to jus-
tify the [ACCA] enhancement"). Rather, the majority discusses only
Thompson’s Sixth Amendment claim that his ACCA sentence violated
his right to a jury trial. See ante, at 2.
2The indictment did not allege the dates of the crimes underlying the
breaking and entering convictions, nor did it otherwise identify the three
breakings and enterings on which the Government intended to rely.
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the judge-found facts underlying his prior convictions, e.g., the dates
on which the crimes were committed, violated his constitutional rights
under Apprendi because it increased his sentence beyond the maxi-
mum to which he would have been subject had he been sentenced
based only on the facts he admitted.3 Thompson notes that the under-
lying facts were necessary to establish that at least three of his quali-
fying prior convictions were committed on occasions different from
one another (the "different occasions" determination). I agree.4
The Sixth Amendment requires that, "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The
Fifth Amendment Indictment Clause further requires that, in federal
prosecutions, facts that have such an effect on the "statutory maxi-
mum" must also be included in the indictment. See United States v.
Cotton, 535 U.S. 625, 627 (2002); United States v. Higgs, 353 F.3d
281, 296 (4th Cir. 2003). In these contexts, "statutory maximum"
means "the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant." Blakely, 124 S. Ct. at 2537 (internal quotation marks &
emphasis omitted).
3I note preliminarily that United States v. Bartram, 407 F.3d 307 (4th
Cir. 2005) (Widener, J.), is not controlling here. Although it is arguable
that Bartram holds that Apprendi does not apply to sentences imposed
after guilty pleas, see Bartram, 407 F.3d at 314 (Widener, J.), we had
already held to the contrary in United States v. Dinnall, 269 F.3d 418,
423 & n.3 (4th Cir. 2001). The earlier decision is controlling. See
McMellon v. United States, 387 F.3d 329, 333-34 (4th Cir. 2004) (en
banc) (holding that when two panel decisions are conflicting, the earlier
decision controls unless it has been overruled by a subsequent en banc
or Supreme Court decision).
4Thompson also argues that the sentence was unconstitutional because
his indictment did not allege that three of his prior convictions were for
violent felonies or serious drug convictions. Thompson further maintains
that many findings made by the district court in determining his guide-
line range were unconstitutional under Blakely. Because I would vacate
Thompson’s sentence for the reasons discussed, I do not address these
arguments.
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Here, the facts admitted by Thompson did not, by themselves, jus-
tify a conclusion that Thompson had three prior qualifying convic-
tions for crimes committed on different occasions. And, as the
Government concedes, the 15-year sentence imposed under the
ACCA exceeds the maximum that could have otherwise been
imposed. Thus, because Thompson’s federal indictment did not allege
facts establishing that he had three predicate convictions for crimes
committed on different occasions, the ACCA sentence violated
Thompson’s Fifth and Sixth Amendment rights unless the underlying
facts justifying the "different occasions" determination were each sub-
sumed by "the fact of [Thompson’s] prior conviction[s]," Apprendi,
530 U.S. at 490. Because they were not, Thompson’s sentence was
unconstitutional.
A.
First, assuming that Thompson admitted to having three prior
breaking and entering convictions, that admission alone was not suffi-
cient to justify a legal conclusion that the crimes occurred on different
occasions. "Convictions will be considered as having occurred on
occasions different from one another under the ACCA if each arose
out of a separate and distinct criminal episode." United States v.
Hobbs, 136 F.3d 384, 388 (4th Cir. 1998) (internal quotation marks
omitted). The question of whether particular burglaries5 were commit-
ted on different occasions depends on the facts underlying the
offenses. See United States v. James, 337 F.3d 387, 391 (4th Cir.
2003) ("The first burglary was completed before the second started,
each burglary occurred at a different location, and each involved a
different victim."); Hobbs, 136 F.3d at 389 ("It is undisputed that the
three burglaries all occurred at least a mile apart from each other, and
in two different towns.").
Thompson’s admission to having three prior burglary convictions
did not warrant a legal conclusion that the burglaries were committed
on different occasions because separate burglaries are not necessarily
committed on different occasions as a matter of law. Although it may
be rare that a defendant is convicted of two burglaries that were com-
5North Carolina breaking and entering offenses are burglaries. See
United States v. Bowden, 975 F.2d 1080, 1085 (4th Cir. 1992).
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mitted on a single occasion, it certainly could happen. For example,
a defendant could be convicted of two burglaries for having kept
lookout while his coconspirators simultaneously broke into two
neighboring buildings that were owned by the same victim. Cf.
Hobbs, 136 F.3d at 388 (considering, in determining whether offenses
were committed on different occasions, (1) the geographic location of
the offenses, (2) the nature of the offenses, and (3) the victim of the
offenses); United States v. Letterlough, 63 F.3d 332, 337 (4th Cir.
1995) (holding that two drug sales were on different occasions
because "[t]he time separating the offenses was ample to give [the
defendant] the opportunity to make a conscious and knowing decision
to engage in another drug sale"). Thus, the mere fact that Thompson
had been convicted of three separate burglaries is not sufficient as a
matter of law to establish that the three burglaries were committed on
three different occasions; further facts were needed to reach that con-
clusion and thereby authorize the 15-year sentence imposed. Of
course, such facts were contained in the PSR, and Thompson did not
object on the basis that they were false. He maintained, however, as
he continues to maintain now, that they could not be used to increase
his maximum sentence because they were not alleged in his indict-
ment or otherwise admitted by him.
The Government maintains that in addition to admitting the three
convictions, Thompson also admitted the facts underlying the crimes
that produced the convictions because he was notified before his plea
that he could be sentenced under the ACCA and because he failed to
object to the inclusion of these underlying facts in the PSR. The Gov-
ernment construes "admitted" too broadly.
In United States v. Thomas, 389 F.3d 424 (3d Cir. 2004), vacated,
125 S. Ct. 2953 (2005), the Third Circuit noted:
There are at least four possible interpretations of the lan-
guage "facts . . . admitted by the defendant." First, that lan-
guage could refer to facts set forth in the indictment to
which the defendant pled guilty. Second, it could refer to
facts set forth in the written plea agreement entered into by
the defendant. Third, it could be limited to the facts neces-
sary to prove a violation of the offense charged in the indict-
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ment. Fourth, it could refer to facts admitted in the colloquy
with the District Court.
Thomas, 389 F.3d at 426 (alteration in original). It is not necessary
for me to determine today the exact contours of the term "admitted"
in this context because nothing that Thompson did in this case
approached an admission of the underlying facts. The Government
claims that Thompson "admitted" the necessary facts by entering into
a plea agreement that stated that the mandatory minimum sentence
would be 15 years. (The Government adds that the district court
informed Thompson—and the PSR stated—that 15 years would be
the mandatory minimum sentence if he had the necessary qualifying
offenses.) In fact, the plea agreement stated that the "maximum" term
faced by Thompson would be 15 years to life but that this range
would not apply if "the Court determines . . . that . . . Section
924(e)(1) is not applicable." J.A. 23-24. Thompson’s acceptance of
this agreement was not the equivalent of an admission to the facts
necessary to justify application of the ACCA. Cf. United States v.
Estrada, 42 F.3d 228, 231-32 (4th Cir. 1994) (holding that defen-
dant’s acknowledgment that he was subject to a five-year mandatory
minimum did not constitute admission of the facts necessary to trigger
the mandatory minimum when defense counsel mistakenly believed
that the five-year mandatory minimum would be triggered even with-
out the facts at issue).
The Government also maintains that Thompson admitted the
underlying facts because the facts were contained in Thompson’s PSR
and Thompson did not object to the relevant portion of the PSR. It is
true that in the specific context of sufficiency of the evidence to sup-
port a judicial finding of fact by a preponderance of the evidence, a
failure to object to a fact included in the PSR has the same legal effect
as an admission to that fact. See Fed. R. Crim. P. 32(i)(3) ("At sen-
tencing, the court . . . may accept any undisputed portion of the pre-
sentence report as a finding of fact."). It certainly does not follow,
however, that a failure to object to facts included in a PSR is equiva-
lent to an admission in all contexts. Such inaction, in my view, does
not operate as a waiver of Thompson’s constitutional right—which he
explicitly asserted—to have a fact charged in his indictment when that
fact is being used to increase the maximum sentence to which he is
subject. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ("[C]ourts
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indulge every reasonable presumption against waiver of fundamental
constitutional rights and . . . do not presume acquiescence in the loss
of fundamental rights." (internal quotation marks & footnote omit-
ted)). But cf. United States v. McCully, 407 F.3d 931, 933 (8th Cir.
2005) (holding, without significant explanation, that the failure to
object to a fact stated in a PSR is an admission for Sixth Amendment
purposes); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005)
(same).6
B.
Because the facts admitted by Thompson were not sufficient to
warrant an ACCA sentence, the district court increased Thompson’s
sentence beyond the "statutory maximum" when it relied on the
underlying facts. And, as explained below, since none of these facts
were subsumed by the "fact of a prior conviction," Apprendi, 530 U.S.
at 490, the ACCA sentence violated Thompson’s Fifth and Sixth
Amendment rights.
To understand why none of the underlying facts were subsumed by
the "fact of a prior conviction," an examination of Almendarez-Torres
v. United States, 523 U.S. 224 (1998), and Apprendi is in order. The
statute at issue in Almendarez-Torres, 8 U.S.C.A. § 1326 (West 1999
6The majority apparently adopts this argument of the Government’s.
See ante, at 9-10 (concluding that Thompson’s Sixth Amendment jury
trial rights were not violated because, in light of his failure to challenge
the truth of the facts included in the PSR, "there is [no] disputed question
of fact extraneous to Thompson’s prior convictions" regarding whether
he had three prior convictions for violent felonies committed on different
occasions (emphasis added)). The majority does not fully explain why it
apparently affords constitutional significance to the fact that facts suffi-
cient to warrant an ACCA sentence were included in the PSR and not
objected to by Thompson. However, it appears that this perceived signifi-
cance is based on the plurality opinion in Shepard, wherein the plurality
characterized Jones v. United States, 526 U.S. 227 (1999), and Apprendi
as "guarantee[ing] a jury’s finding of any disputed fact essential to
increase the ceiling of a potential sentence," Shepard, 125 S. Ct. at 1262
(plurality opinion) (emphasis added). But, there simply is no indication
that by "disputed fact" the plurality meant anything more than a fact at
issue, i.e., a fact that the defendant did not affirmatively concede.
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& Supp. 2005), forbids an alien who once was deported to return to
the United States without special permission. Subsection (a) autho-
rizes a prison term of no more than two years. See 8 U.S.C.A.
§ 1326(a). Subsection (b)(2) authorizes a prison term of up to 20
years for "any alien described" in subsection (a), if the initial "re-
moval was subsequent to a conviction for commission of an aggra-
vated felony." Id. § 1326(b)(2). Almendarez-Torres pleaded guilty to
an indictment charging him with having been "found in the United
States . . . after being deported" without the "permission and consent
of the Attorney General" in "violation of . . . Section 1326."
Almendarez-Torres, 523 U.S. at 227 (internal quotation marks omit-
ted & alterations in original). At a hearing before his guilty plea was
accepted, he admitted that he had been deported, that he had later
returned to the United States unlawfully, and that the deportation had
occurred "pursuant to" three prior "convictions" for aggravated felo-
nies. Id. (internal quotation marks omitted).
The Supreme Court held that a sentence imposed under subsection
(b)(2) was not unconstitutional even though the facts supporting
application of that subsection had not been alleged in the indictment.
See id. at 247. In reaching this conclusion, the Court relied primarily
on the distinct nature of prior convictions, which traditionally had not
been required to be charged in indictments. See id. at 243-44. The
Court also noted that it had previously held that facts triggering man-
datory minimums need not be treated as offense elements, see McMil-
lan v. Pennsylvania, 477 U.S. 79 (1986), and the Court reasoned that
prior convictions triggering increases in the maximum sentence
should not be treated differently. See Almendarez-Torres, 523 U.S. at
244-45.
In Apprendi, the Supreme Court, in addressing the constitutionality
of a New Jersey hate-crime sentencing enhancement, explained that
the result in Almendarez-Torres was due largely to two factors: "the
certainty that procedural safeguards attached to any ‘fact’ of prior
conviction" and the fact that Almendarez-Torres had admitted the
existence of the prior convictions. Apprendi, 530 U.S. at 488. The
Apprendi Court also indicated that Almendarez-Torres was arguably
"incorrectly decided," id. at 489, and "represent[ed] at best an excep-
tional departure from the historic practice" of requiring that facts
establishing a defendant’s maximum sentence be treated as offense
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elements, see id. at 487. Despite these observations, the Court
declined to revisit the decision and instead created an exception to the
constitutional rule that it announced: "Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." Id. at 490.7 In explaining why the
hate-crime enhancement in Apprendi was not constitutional under
Almendarez-Torres, the Court emphasized that "[w]hereas recidivism
does not relate to the commission of the offense itself, New Jersey’s
biased purpose inquiry goes precisely to what happened in the com-
mission of the offense." Id. at 496 (citation & internal quotation
marks omitted). The Court added that "there is a vast difference
between accepting the validity of a prior judgment of conviction
entered in a proceeding in which the defendant had the right to a jury
trial and the right to require the prosecutor to prove guilt beyond a
reasonable doubt, and allowing the judge to find the required fact
under a lesser standard of proof." Id.; see Jones v. United States, 526
U.S. 227, 249 (1999) (explaining that one important reason that the
fact of a prior conviction need not be treated as an offense element
is that "a prior conviction must itself have been established through
procedures satisfying the fair notice, reasonable doubt, and jury trial
guarantees").
Here, the majority holds that the date on which a prior crime was
committed is a "fact of a prior conviction," see ante, at 6, but in my
view it is a fact "about a prior conviction," Shepard v. United States,
125 S. Ct. 1254, 1262 (2005) (plurality opinion) (emphasis added); cf.
United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005)
(drawing this distinction and holding that facts about an offense
7Although the overruling of Almendarez-Torres appears imminent, see
Shepard v. United States, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., con-
curring in part and concurring in the judgment) ("Almendarez-Torres . . .
has been eroded by this Court’s subsequent Sixth Amendment jurispru-
dence, and a majority of the Court now recognizes that Almendarez-
Torres was wrongly decided."), until overruling occurs, we must follow
the decision when it controls, see Agostini v. Felton, 521 U.S. 203, 237
(1997) (reserving "prerogative of overruling its own decisions" even if
ruling "appears to rest on reasons rejected in some other line of deci-
sions" (internal quotation marks omitted)).
21 UNITED STATES v. THOMPSON

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underlying a prior conviction fell outside the "fact of a prior convic-
tion" exception when they were not alleged in the indictment that pro-
duced the prior conviction), or, more precisely, a fact about an offense
underlying a prior conviction. This distinction is not merely a matter
of semantics. Although a defendant is entitled to a jury trial on the
question of whether he committed a particular crime, in few, if any
cases is a jury required to find that the offense occurred on a particu-
lar date.8 Thus, the protections that the Supreme Court identified as
critical to the distinctiveness of the "fact of a prior conviction" are not
customarily afforded a defendant with regard to the date that a crime
was committed.9
I recognize that some courts have rejected this reason for conclud-
ing that the different-occasions fact falls outside the Almendarez-
Torres exception. See United States v. Burgin, 388 F.3d 177, 184-86
(6th Cir. 2004), cert. denied, 125 S. Ct. 1692 (2005); United States v.
Morris, 293 F.3d 1010, 1012-13 (7th Cir. 2002); United States v. San-
tiago, 268 F.3d 151, 155-57 (2d Cir. 2001). I am not persuaded by
these decisions, however.
8To illustrate, if a defendant is charged with breaking and entering a
building on or about a particular date, a jury, in order to convict, must
find that the defendant committed the offense, but it need not conclude
beyond a reasonable doubt that the offense was committed on the exact
date alleged in the indictment. The fact that a conviction may be over-
turned under certain circumstances if the evidence presented at trial
tended to prove that the defendant committed the offense of conviction
on a date different from that alleged in the indictment is not relevant to
the issue before us. See United States v. Randall, 171 F.3d 195, 203 (4th
Cir. 1999) (setting out the test for determining whether a constructive
amendment has occurred). The point is that even when the government’s
evidence tends to support a finding that the offense was committed on
the date alleged in the indictment, the jury is not necessarily required to
credit that evidence in order to convict.
9The majority notes that determining the date of the crime underlying
a conviction "requires recourse only to data normally found in conclusive
judicial records." Ante, at 11. But, the fact that judicial records list a date
on which a crime was committed does not mean that the defendant had
the right to have that date found by a jury beyond a reasonable doubt,
and that is the critical point.
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Burgin holds that the fact that past crimes were committed on dif-
ferent occasions is "intimately related" with the fact of the prior con-
victions because "[i]n the usual case, . . . a district court’s
determination that a defendant has a record of prior convictions will
be accompanied by the judge’s determination of when those convic-
tions were entered." Burgin, 388 F.3d at 186. But this analysis fails
to appreciate that it is not the prior convictions that must be on occa-
sions separate from one another, but rather the crimes underlying the
prior convictions. This difference is significant because while the date
of conviction is a matter likely to be conclusively resolved by court
record, the same is not necessarily true of whether underlying crimes
were committed on different occasions, for the reasons I have already
discussed.
Santiago and Morris are similarly unpersuasive. Those decisions
are based in large part on the observation that even determining the
fact of prior convictions entails making findings beyond those to
which the defendant had a right to fair notice, proof of guilt beyond
a reasonable doubt, and a jury trial, such as the determination "that
the defendant being sentenced is the same defendant who previously
was convicted of those prior offenses." Santiago, 268 F.3d at 156;
accord Morris, 293 F.3d at 1013.
Such analysis notwithstanding, the Supreme Court in both Jones
and Apprendi made clear that "the certainty that procedural safe-
guards attached to any ‘fact’ of prior conviction" was critical to the
outcome in Almendarez-Torres. Apprendi, 530 U.S. at 488; accord
Jones, 526 U.S. at 249. Santiago and Morris simply overlook this
emphasis by the Supreme Court on the procedural safeguards that
attach to the fact of a prior conviction. In so doing, these courts
broaden the scope of the "narrow" exception that the Supreme Court
created for "the fact of a prior conviction," Apprendi, 530 U.S. at 490
(emphasis added), to include facts about a crime underlying a prior
conviction. I do not believe we are at liberty to reject either the rule
announced by the Supreme Court in Apprendi or the analysis that the
Court employed to shape that rule. Thus, I would employ Apprendi’s
analysis and rule and hold that the facts underlying Thompson’s prior
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convictions, including the dates on which he committed the underly-
ing crimes, do not fit within the "fact of a prior conviction" exception.10
C.
One final point merits attention. In determining that the district
court acted constitutionally in imposing an ACCA sentence based on
the facts underlying Thompson’s prior convictions, the majority
draws support from the fact that the judicial factfinding here did not
run afoul of Taylor v. United States, 495 U.S. 575 (1990). In so doing,
10In concluding that the date on which a crime underlying a prior con-
viction was committed is subsumed by the "fact of a prior conviction,"
the majority cites several additional decisions from other circuits as sup-
port. See United States v. Wilson, 406 F.3d 1074 (8th Cir. 2005); United
States v. Moore, 401 F.3d 1220 (10th Cir. 2005); United States v. Bar-
nett, 398 F.3d 516 (6th Cir. 2005). These decisions are no help to the
majority, however. Although they support the result reached in the
majority opinion, they do so on the basis that any fact regarding the
nature of a prior conviction is subsumed by the "fact of a prior convic-
tion." See Barnett, 398 F.3d at 524 ("Apprendi does not require the
nature or character of prior convictions to be determined by a jury."
(emphasis added)); accord Wilson, 406 F.3d at 1075; Moore, 401 F.3d
at 1223. Because our circuit has already rejected this broad premise, see
Washington, 404 F.3d at 841-43, these decisions are of no persuasive
value here.
Additionally, I note that my conclusion is not foreclosed by United
States v. Sterling, 283 F.3d 216 (4th Cir. 2002). There, the defendant
argued that his sentence under the ACCA violated the Apprendi rule "be-
cause the government did not prove his three prior qualifying felony con-
victions beyond a reasonable doubt." Sterling, 283 F.3d at 219. We
affirmed the sentence, holding that the existence of the prior convictions
fell within the Almendarez-Torres exception to the Apprendi rule. See id.
at 220. In so doing, we rejected the notion that Apprendi had overruled
Almendarez-Torres and held that "the district court appropriately used
Sterling’s prior convictions to enhance his sentence under the [ACCA]."
Id. There is no indication in the opinion, however, that Sterling, in addi-
tion to arguing that the prior conviction exception had been overruled,
also maintained that the exception did not apply to the "different occa-
sions" determination. For that reason, Sterling does not control the out-
come of this issue.
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the majority fails, in my view, to appreciate the difference between
running afoul of Taylor, which concerns statutory restrictions on judi-
cial factfinding relating to whether prior convictions satisfy the
ACCA, and violating Apprendi and its progeny, which concern con-
stitutional restrictions regarding which facts must be charged in the
indictment and found by a jury beyond a reasonable doubt. Taylor
instructs that under some circumstances § 924(e) allows a district
court to utilize certain documents to make findings regarding the facts
underlying a prior conviction. See Taylor, 575 U.S. at 602. Taylor
does not seek to resolve any constitutional issue, and it certainly does
not address what facts the Fifth Amendment requires to be charged
in the indictment. Thus, the mere fact that the judicial factfinding here
was consistent with the statutory restrictions outlined in Taylor says
nothing about whether increasing Thompson’s maximum sentence
based on extra-indictment facts was unconstitutional.11
For the same reason that Taylor is not controlling, neither is Shep-
ard. In Shepard, the Court addressed whether Taylor should be
extended to allow district courts to consider documents beyond those
that Taylor had specifically sanctioned. Although four justices opined
that extending the statutory rule would present serious constitutional
questions, not even these four justices reached the issue of whether
sentences based on Taylor factfinding could violate the constitutional
rule announced in Apprendi. See Shepard, 125 S. Ct. at 1262-63 (plu-
rality opinion). It is noteworthy, however, that Justice Thomas, who
did address that question, concluded that Taylor factfinding violates
Apprendi. See id. at 1263-64 (Thomas, J., concurring in part and con-
curring in the judgment).12
11It is noteworthy that Taylor characterized the evidence that a district
court may consider under § 924(e) as being "beyond the mere fact of
conviction." Taylor, 575 U.S. at 602.
12The majority notes that if the Shepard plurality had agreed with the
interpretation of the prior conviction exception that I accept, "it could
have saved itself great trouble" by simply deciding that case on that con-
stitutional basis. Ante, at 6. This analysis overlooks that the practice of
the Supreme Court is "to avoid reaching constitutional questions if a dis-
positive nonconstitutional ground is available." Hutchinson v. Proxmire,
443 U.S. 111, 122 (1979).
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III.
In sum, because I would vacate Thompson’s sentence as violative
of the Fifth and Sixth Amendments and remand for resentencing, I
respectfully dissent.
The majority also utilizes the Shepard dissent and the Shepard plural-
ity opinion to conclude that seven justices believe that the Taylor rule is
of constitutional dimension. See ante, at 5 n.3. Even if I agreed with the
majority’s interpretation of the plurality opinion—and I do not for the
reason already discussed—it would not change my view that the facts
underlying the crimes that produced Thompson’s convictions were not
subsumed by the "fact of a prior conviction." In interpreting the scope of
the Apprendi rule we must apply the analysis that the Apprendi Court
employed in fashioning that rule rather than the legal analyses of sepa-
rate opinions in Shepard that were not even the basis for the decision in
that case.
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