Saturday, August 06, 2011

An "Alford plea" factual basis proffer is not a valid Shepard document

In United States v. McMurray, 09-5806 (Aug. 4, 2011), the court considered whether a factual basis proffer for purposes of a “best interest plea” under North Carolina v. Alford, 400 U.S. 25 (1970), which allows a defendant “to enter a plea but . . . not . . . acknowledge guilt,” can be used to establish the nature of an offense for purposes of the Armed Career Criminal Act (“ACCA”) and Shepard v. United States, 544 U.S. 13 (2005). Here, because the court determined that the defendant’s prior conviction for aggravated assault “is not categorically a ‘violent felony’” under ACCA, it had to “examine whether the underlying documents establish that the defendant pleaded guilty to a narrowed charge that would qualify . . . .”

The government argued that “the state’s proffer of the factual basis for the plea during the plea colloquy” showed that the defendant necessarily “acted intentionally or knowingly when he committed the aggravated assault,” thereby qualifying him as an Armed Career Criminal.

The court disagreed. Although it had recently “declined to differentiate between an Alford plea and a straightforward guilty plea” in the context of determining whether an alien had been “convicted of ‘a particularly serious crime’ under the Immigration and Nationality Act,” it decided not to extend that rule to the context of a “violent felony” determination under ACCA. The court instead found that “the state’s proffer of the factual basis for [a] best-interest plea does not demonstrate that [the] plea necessarily rested on facts identifying [the] conviction as a ‘violent felony.’”

In dissent, Judge McKeague argued that “all of the categories of documents approved by Shepard for evaluating guilty pleas can be relied upon—to the same extent—when the defendant instead enters an Alford plea.”

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