Sitting en banc, the Fourth Circuit reversed course and vacated Vann's sentence. In a brief per curiam opinion (in which nine judges joined), the court explained that it "assumed" that (applying a "modified" categorical approach) any conviction under subsection (a)(2) (as opposed to (a)(1)) of the North Carolina indecent liberties statute was a violent felony, the Government could not prove that Vann's convictions were sustained under that subsection. It rejected the conclusion of Judge Niemeyer (concurring and dissenting) that because the charging documents were worded conjunctively and cited both subsections that Vann pleaded guilty to violating both of them, holding that (a) those documents weren't part of the record before the district court and shouldn't be considered and (b) even if they were, prior circuit precedent on conjunctively worded indictments did not support the dissent's position.
That's the first 10 pages. The other 90 pages of the opinion consist of a plethora of concurrences and one dissent:
- Judge King concurred (with three others signed on),arguing against adopting a modified version of the categorical approach, concluding that such would "contravene Supreme Court precedent and the interests of justice," although noting that the result is the same in this particular case.
- Judge Agee concurred both with the per curiam opinion Judge Keenan's concurrence and picks up Justice Scalia's withering attack on the vagueness of the ACCA (a "black hole of confusion and uncertainty stymies our best efforts," Judge Agee writes) in Sykes, calling upon Congress to fix it, and lays the blame squarely at Congress's feet "should a majority of the Supreme Court come to find Justice Scalia's conclusion the only constitutionally valid course."
- Judge Davis (who joined Judge King's concurrence) concurred, offering more thoughts on the perils of the modified categorical approach.
- Judge Keenan's concurrence (to which four other judges signed on) offers a defense of the modified categorical approach.
- Judge Wilkinson concurred, offering another defense of the modified categorical approach, noting that "too many courts are too deep in the weeds on the matter of the ACCA's residual clause."
- Judge Niemeyer dissented (joined by Judge Shedd), arguing that the record showed that Vann's prior convictions were ACCA violent felonies. He concurred in the use of the modified categorical approach, however.
