Nature of Prior Conviction Determination Requires Only Preponderance

US v. Washington: Washington was convicted of being a felon in possession of a firearm. At sentencing, the issue was whether he qualified for an enhanced sentenced under the ACCA. For his third qualifying predicate offense, the Government identified a 1999 Maryland conviction for the "generic" offense " of "possession of a controlled dangerous substance with intent to distribute." Although the maximum sentence for the offense is based on the type of drug involved, drug type is not an element of the offense. The district court concluded that Washington's prior conviction was an ACCA predicate because it involved cocaine and therefore carried a 20-year maximum sentence (rather than the 5-year max applicable to lesser drugs).

Washington appealed, arguing that the district court erred by making its determination based on a preponderance of the evidence, rather than beyond a reasonable doubt. Relying on Shepard, he argued that the Supreme Court's references to "conclusive" records and "certainty" implies a higher standard for making determinations about the nature of prior convictions than a simple preponderance. The Fourth Circuit disagreed, holding that a preponderance standard was appropriate and that Shepard did not suggest otherwise. Shepard was about the types of documents a district court could use when evaluating the nature of a prior conviction, not the standard of proof applied during that analysis. The court then went on to reject Washington's argument that the Government had not met its burden in his case, even under a preponderance standard.