Common sense in ACCA cases?

US v. John Joel Foster: In an unfortunate twist for the appellant, the Fourth Circuit vacated Mr. Foster’s twenty-four month sentence for being a felon in possession of a firearm, and remanded the case for re-sentencing under the Armed Career Criminal Act, for the mandatory minimum fifteen-year sentence.

At issue in this appeal was whether Mr. Foster’s prior state convictions for breaking and entering under Virginia’s non-generic burglary statute qualified as violent felonies under ACCA. The Fourth Circuit found that the language of the indictments for Foster’s three prior convictions for breaking and entering mandated that the prior convictions were based on entries into buildings or structures, to wit, the "Sunrise-Sunset Market," the "blacksmith shop," and the "Corner Market," and as such, the convictions qualified as predicate violent felonies of the ACCA.

The concurrence and dissent gain purchase from Judge Agee's statement that "courts are, of course, permitted to draw reasonable inferences from the underlying state documents." The dissent finds that the government "must show more than the possibility, based solely on common sense and logic, that Defendant's prior convictions may qualify under ACCA." The concurrence chides the dissent that "our common sense neither is an outside evidentiary source that is prohibited by Shepard nor is our use of it going to create a trial within a trial in ACCA cases."