PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4870


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOLON DEVON CARTHORNE, SR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00096-WO-1)


Argued:   January 29, 2013                  Decided:   August 13, 2013


Before DAVIS and KEENAN, Circuit Judges, and John A. GIBNEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion. Judge Keenan wrote the majority
opinion, in which Judge Gibney joined.      Judge Davis wrote a
separate opinion concurring in part and dissenting in part.


ARGUED: Matthew McGavock Robinson, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant.   Anand P. Ramaswamy, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.    ON BRIEF: Ripley Rand, United States Attorney,
Greensboro, North Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       Jolon Devon Carthorne, Sr. was convicted upon his plea of

guilty to possession with intent to distribute cocaine base and

possession of a firearm in furtherance of a drug trafficking

crime.     The district court sentenced Carthorne to a term of 300

months’ imprisonment, after determining that Carthorne had two

predicate offenses rendering him a “career offender” under the

Sentencing Guidelines.           The issue before us on appeal is whether

the     district       court    committed       plain   error       in       holding   that

Carthorne’s prior conviction for assault and battery of a police

officer,     in        violation      of    Virginia       Code          §     18.2-57(C),

categorically          qualified      as    a     “crime       of    violence,”         and

constituted        a    predicate     offense       for    the      career        offender

enhancement.

       Upon our review, we hold that a conviction under Virginia

Code    § 18.2-57(C)       is   not   categorically        a   crime         of   violence,

because the offense of assault and battery referenced in that

statute is defined by the common law, the elements of which do

not substantiate a serious potential risk of injury in the usual

case.     However, we further hold that the district court did not

commit plain error in reaching a contrary conclusion, given the

absence of controlling authority and the divergence of opinion

among our sister circuits.             Accordingly, we affirm the district

court’s judgment.

                                            2
                                         I.

     The facts of Carthorne’s present offenses are not disputed.

In December 2009, agents of the United States Marshals Service

arrested Carthorne at a residence in Greensboro, North Carolina,

pursuant to a warrant for an offense unrelated to the present

case.     While the agents were at the residence, they observed

certain items in plain view that appeared to be cocaine base and

digital scales.         Law enforcement officers later returned to the

residence      with     a   search     warrant,       and   seized       a    firearm,

ammunition, a digital scale, 489.8 grams of cocaine base, and a

shoe box containing $9,915.            Carthorne later waived his Miranda

rights, and admitted that he had possessed the cocaine base and

had “handled” the firearm.

     In June 2010, Carthorne pleaded guilty to two counts of a

five-count      indictment,       namely,       possession       with     intent      to

distribute      489.8    grams    of   cocaine    base,     in   violation       of    21

U.S.C.    §   841(a)(1)     and   (b)(1)(A)      (the   narcotics        count),      and

possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (the firearm

count).       The government agreed to dismiss the remaining counts

upon the district court’s acceptance of Carthorne’s guilty plea.

     Although the parties’ plea agreement did not contain any

stipulations      concerning         calculations       under     the        Sentencing

Guidelines,     the     government     agreed    to   recommend      a   three-level

                                         3
reduction in Carthorne’s offense level based on acceptance of

responsibility.         The district court accepted Carthorne’s guilty

plea, and ordered the preparation of a presentence report.

      In    November     2010,     a    probation           officer      filed    a   final

presentence report (the PSR). 1              In the PSR, the probation officer

recommended that Carthorne be sentenced as a “career offender,”

pursuant to U.S.S.G. § 4B1.1. 2               The probation officer identified

two   predicate     offenses      in    support        of    the   recommended        career

offender     enhancement:      (1)      a    felony         conviction     in    2003     for

distribution of cocaine base; and (2) a felony conviction in

2002 for assault and battery of a police officer (the Virginia

ABPO conviction), in violation of Virginia Code § 18.2-57(C).

The district court determined that under the Guidelines, the

cocaine     distribution       offense           was    a     “controlled        substance

offense”    under    Section      4B1.2(b),        and      that   the    Virginia      ABPO

conviction    was   a    “crime    of       violence,”        within     the    meaning    of

Section 4B1.2(a).

      The Virginia ABPO conviction arose after an incident in

which,     apparently     without       provocation,          Carthorne        spit   in   a

      1
        The 2010 edition of the United States Sentencing
Commission Guidelines Manual was used to calculate Carthorne’s
Guidelines range.
      2
       A defendant qualifies as a career offender if he has at
least two prior felony convictions for a “crime of violence” or
a “controlled substance offense,” as those terms are defined in
the Guidelines. U.S.S.G. § 4B1.1(a).


                                             4
police      officer’s         face.           The    PSR    provided          the   following

description        of    the      incident,         to   which    Carthorne         raised     no

objection: “On May 7, 2002, Lynchburg, Virginia, police officers

were on foot patrol in the White Rock area of the city when the

defendant       walked       toward     the    officers.         An    officer      asked    the

defendant, ‘What’s up?’, to which Defendant Carthorne replied,

‘What’s up with your mother?’ and spit in the officer’s face.

The defendant was placed under arrest after a brief struggle.”

As    set   forth       in   the    PSR,      Carthorne     was       found    guilty     in   a

Virginia        state    court     of    the    felony      offense      of     assault       and

battery of a law enforcement officer under Virginia Code § 18.2-

57(C), and was sentenced to a term of three years’ imprisonment,

with all but six months suspended.

       As   a    result      of    the   district        court’s      determination          that

Carthorne qualified as a “career offender” under the Guidelines,

Carthorne’s Guidelines range for the present offenses increased

greatly.        The probation officer initially stated in the PSR an

adjusted offense level of 32 for the narcotics count but, based

on Carthorne’s career offender status, his offense level was

increased to 37.              U.S.S.G. § 4B1.1.             Taking into account the

three-point             downward         adjustment          for         acceptance            of

responsibility, Carthorne was assigned a total offense level of

34.     The PSR also indicated that Carthorne had nine criminal

history points for qualifying offenses, which otherwise would

                                                5
have resulted in a criminal history category of IV.                    However,

Carthorne’s career offender status automatically placed him in

the highest criminal history category of VI.

     Accordingly, based on an offense level of 34 and a criminal

history category of VI on the narcotics count, as well as the

consecutive mandatory minimum term of 60 months’ imprisonment on

the firearm count, the probation officer calculated Carthorne’s

Guidelines         range   as     being   between    322   and   387    months’

imprisonment.        Without the career offender enhancement, however,

Carthorne’s Guidelines range would have been between 181 and 211

months’ imprisonment. 3           Carthorne did not file an objection to

the PSR’s conclusion that he should be classified as a career

offender. 4

         At the sentencing hearing, the district court adopted the

findings      in    the    PSR.     The   district   court   determined   that




     3
       Under the PSR’s Guidelines calculations, absent the career
offender enhancement, Carthorne’s narcotics count would have an
adjusted offense level of 32. After the three-point adjustment
for acceptance of responsibility, the total offense level would
have been 29.   The PSR also provided that Carthorne’s criminal
history category would have been IV without the enhancement.
Therefore, the Guidelines range for the narcotics count would
have been between 121 and 151 months’ imprisonment, and a
mandatory, additional 60 months would have been added for the
firearm count.
     4
       Carthorne raised other objections to the PSR that are not
germane to this appeal.


                                          6
Carthorne     qualified     as    a     career       offender,     and     that    his

Guidelines range was between 322 and 387 months’ imprisonment.

     The district court also heard argument from the parties

regarding the sentencing factors set forth in 18 U.S.C. § 3553.

Carthorne requested a downward departure or variance to achieve

a total sentence of 180 months’ imprisonment for both offenses,

citing his cooperation with law enforcement officials and his

family obligations.

     Although the parties did not raise any issue at sentencing

regarding whether the Virginia ABPO conviction qualified as a

crime of violence, the district court asked Carthorne’s counsel

whether    the   court   needed    to   reach       any   conclusions      about   the

nature of the offense.            Carthorne’s counsel responded that he

had researched the matter, and “would like to have been lucky to

have found a case that says spitting on an officer is not an

assault,” given that Carthorne “didn’t hurt” the officer and

that “[t]here was no violence.”                 However, counsel stated that he

believed that such an argument would be “without merit,” based

on   his    understanding    of       the       categorical     approach    used   to

determine whether a particular offense constituted a crime of

violence.

     The     district     court       found       that    the    career     offender

enhancement was proper, especially in view of the Virginia ABPO

conviction, which the court described as “almost an unfathomable

                                            7
offense.”     The district court did not specify which clause of

Section 4B1.2(a) the court relied on in determining that the

Virginia    ABPO    conviction    qualified      as   a    crime     of    violence.

However, the court stated that, “in light of Mr. Carthorne’s

cooperation, I will go to the low end of the guideline range and

vary slightly in recognition of his unusual and extraordinary

acceptance of responsibility.”              Accordingly, the district court

varied downward by 22 months from the low end of Carthorne’s

Guidelines range, and sentenced him to a term of 300 months’

imprisonment.



                                       II.

                                       A.

     We     first   consider     the   applicable         standard    of    review.

Carthorne contends that the issue whether a predicate offense

qualifies as a crime of violence under the Guidelines is an

issue of statutory construction that we review de novo.                         The

government, however, asserts that because Carthorne failed to

preserve this challenge in the district court, we should review

the issue only for plain error.

     Generally, we review de novo an issue of law whether a

prior offense qualifies as a crime of violence for purposes of

the Guidelines’ career offender enhancement.                  United States v.

Jenkins, 

, 682 (4th Cir. 2011).                    However, when a

                                        8
defendant has not objected to that classification before the

district court, we review such a question for plain error.                 See

Fed. R. Crim. P. 52(b); United States v. Olano, 

,

731-32 (1993).

     Carthorne     did     not    object     to   the     district   court’s

classification of the Virginia ABPO conviction as a crime of

violence,   even   after    the   district    court     inquired   about   the

issue, nor did Carthorne object to the court’s determination

that he qualified as a career offender.            Accordingly, we review

this issue for plain error. 5

     The Supreme Court has cautioned appellate courts against

the “reflexive inclination” to reverse unpreserved error.                  See

Puckett v. United States, 

, 134 (2009) (citation

     5
       The government has urged that we apply plain error review,
both in its brief and at oral argument. Therefore, we conclude
that the government has defaulted any potential argument that
Carthorne entirely waived review of this issue.       See United
States v. Powell, 

, 185 n.4 (4th Cir. 2011)
(government abandoned arguments by failing to raise them in its
appellate brief); see also United States v. Tichenor, 

, 362-63 (7th Cir. 2012) (reviewing issue whether prior
offense was a crime of violence for plain error, even though the
defendant conceded the issue to the district court, because “the
government has waived the waiver argument”); United States v.
Bonilla-Mungia, 

, 319 (5th Cir. 2005) (holding that,
because the government failed to argue in its brief that the
defendant had “waived any objection to his crime-of-violence
enhancement at sentencing,” “the Government has waived its
waiver argument,” and plain error review applied); United States
v. Beckham, 

, 54 n.5 (D.C. Cir. 1992) (holding that,
because the government did not object in its brief to the
defendant’s failure to raise a downward departure argument to
the lower court, the government “waiv[ed] any waiver argument”).


                                     9
omitted).       As   a    result,       relief   on     plain       error   review     is

“difficult to get, as it should be.”                  United States v. Dominguez

Benitez, 

, 83 n.9 (2004).

     To establish plain error, a defendant has the burden of

showing: (1) that an error was made; (2) that the error was

plain; and (3) that the error affected his substantial rights.

Henderson v. United States, 

, 1126 (2013); 

.          When a defendant has established each of

the above elements, the decision to correct the error remains

within an appellate court’s discretion, and we have held that we

will exercise that discretion only if the error “would result in

a miscarriage of justice or would otherwise seriously affect the

fairness,     integrity          or     public        reputation       of     judicial

proceedings.”        United States v. Whitfield, 

, 303

(4th Cir. 2012) (quoting United States v. Robinson, 

, 954 (4th Cir. 2010) (internal quotation marks omitted)).

                                            B.

     We   therefore       turn   to    address    the       first    requirement      for

plain error, and consider whether the district court erred in

determining   that       assault      and   battery    of    a   police     officer    in

Virginia is categorically a crime of violence within the meaning

of the Guidelines’ residual clause.                    The Guidelines define a

“crime of violence” as any state or federal offense punishable

by imprisonment for a term exceeding one year, that

                                            10
           (1) has as an element the use, attempted
           use, or threatened use of physical force
           against the person of another, or

           (2) is burglary of a dwelling, arson,               or
           extortion, involves use of explosives,              or
           otherwise involves conduct that presents             a
           serious potential risk of physical injury           to
           another.

U.S.S.G.   §   4B1.2(a).     Of    particular   significance        here,   the

second prong of this definition includes a “residual” clause

that encompasses offenses, other than the listed crimes, which

present a comparable “serious potential risk of physical injury

to another.”

     Carthorne argues that the district court erred in holding

that assault and battery of a police officer in Virginia, under

Virginia Code § 18.2-57(C), categorically qualified as a crime

of violence under Section 4B1.2(a).         Carthorne contends, and the

government agrees, that the Virginia ABPO conviction did not

have as an element of the offense “the use, attempted use, or

threatened use of physical force against the person of another,”

within the meaning of Section 4B1.2(a)(1).              However, Carthorne

additionally asserts that the Virginia ABPO conviction also does

not qualify as a “crime of violence” under the residual clause

of Section 4B1.2(a)(2), because the offense does not involve

“conduct   that   presents   a    serious   potential   risk   of    physical

injury to another.”    U.S.S.G. § 4B1.2(a)(2).



                                     11
       In    response,        the    government      maintains      that   the     Virginia

ABPO conviction categorically qualifies as a crime of violence

under       the   language          of   the    residual       clause.          U.S.S.G.    §

4B1.2(a)(2).           According to the government, an offense committed

under Virginia Code § 18.2-57(C) presents such a risk of injury

and is different from ordinary common law assault and battery

because the offense is “carried out on an armed victim who is

duty-bound to respond to the crime.”                         Citing precedent from two

of our sister circuits, the government argues that “battery of

an armed on-duty police officer is a powder keg, which may or

may not explode into violence and result in physical injury to

someone at any given time, but which always has the serious

potential to do so.”                United States v. Williams, 

,

1149 (10th Cir. 2009); see also United States v. Fernandez, 

,      779-80      (1st       Cir.   1997).         We   disagree      with     the

government’s arguments.

       The    categorical        approach       first    articulated       in    Taylor     v.

United States, 

(1990), serves as the cornerstone of

our analysis whether a prior offense qualifies as a “crime of

violence” under Section 4B1.2(a).                     Pursuant to the categorical

approach, we examine “the fact of conviction and the statutory

definition        of    the    prior      offense”      to    determine    “whether        the

elements of the offense are of the type that would justify its

inclusion within the residual [clause], without inquiring into

                                                12
the specific conduct of this particular offender.” 6                        Sykes v.

United States, 

, 2272 (2011) (emphasis omitted)

(quoting James v. United States, 

, 202 (2007)).                       The

“central feature” of the categorical approach is “a focus on the

elements,   rather       than    the    facts,    of   a   crime.”     Descamps    v.

United States, Slip Op. at 8 (June 20, 2013).

     In     very    limited           circumstances,       we    may   modify     the

categorical      approach       and    consider    specific     documents    in   the

record of a case to determine whether a prior offense is a crime

of violence. 7     See United States v. Torres-Miguel, 

,

167 (4th Cir. 2012).             However, the Supreme Court in Descamps

recently has emphasized that the modified categorical approach

serves    only     the    “limited        function”        of   supplementing     the

categorical      analysis        “when     a      divisible     statute,     listing

potential offense elements in the alternative, renders opaque


     6
       We rely on precedents addressing whether an offense is a
crime of violence under the Guidelines “interchangeably with
precedents evaluating whether an offense constitutes a ‘violent
felony’” under the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B), as the two terms are defined in a “substantively
identical” manner. United States v. King, 

, 279 n.3
(4th Cir. 2012) (citation omitted).
     7
       The modified categorical approach permits consideration of
the indictment, any plea agreements, any transcripts of a plea
colloquy between the trial judge and the defendant, findings of
fact and conclusions of law rendered in a bench trial, jury
instructions and verdict forms, or other comparable judicial
records revealing the factual basis for the conviction. Johnson
v. United States, 

, 144 (2010).


                                           13
which    element    played    a   part   in    the   defendant’s      conviction.”

Descamps, at 5.         A statute is “divisible” when it is comprised

of “multiple, alternative versions of the crime.”                     

   the    Court   has   explained       that   the   modified   categorical

approach is applicable only “when a defendant was convicted of

violating a divisible statute,” and then, only “to determine

which statutory phrase was the basis for the conviction.”                        

States v. Gomez, 

, 200 (4th Cir. 2012)

(holding that the modified categorical approach is applicable

only to consideration of statutory offenses in which the statute

itself is divisible).

     Virginia Code § 18.2-57(C) provides, in material part, that

if any person (1) “commits an assault or an assault and battery

against another” (2) “knowing or having reason to know that such

other person is . . . a law enforcement officer” (3) “engaged in

the performance of his public duties,” he or she shall be guilty

of a Class 6 felony. 8        The terms “assault” and “battery” are not

defined    in    this   statute    but    are    defined     by   common   law    in

Virginia.       Montague v. Commonwealth, 

, 588-89 (Va.

2009).


     8
       In addition to law enforcement officers, several other
categories of individuals are covered by the statute, including
but not limited to corrections officers, firefighters, and
employees of the Commonwealth charged with supervising sexually-
violent predators. Va. Code § 18.2-57(C).


                                         14
        Under Virginia common law, an assault is “an attempt with

force and violence, to do some bodily hurt to another, whether

from wantonness or malice, by means calculated to produce the

end.”        

omitted).                        A battery is defined

separately as “the actual infliction of corporal hurt on another

that is done willfully or in anger.”                         

common law, commission of a battery requires physical contact

with a victim, while commission of an assault does not.                                    Jones

v. Commonwealth, 

, 572 (Va. 1946) (“Battery is the

actual infliction of corporal hurt on another (e.g., the least

touching of another’s person).”) (emphasis omitted); Bowie v.

Murphy, 

, 80 (Va. 2006) (“physical injury is not an

element” of assault).

        In United States v. White, we further explained that under

Virginia       law       a    perpetrator       need    not     intend    to   or    actually

inflict physical injury to commit assault and battery.                                   See 

,       148       (4th    Cir.   2010).       A    completed    battery,        which

includes an assault, may be committed by any injury “however

small it may be, as by spitting in a man’s face, or in any way

touching him in anger, without lawful provocation.”                                      See 

  Hardy    v.     Commonwealth,        

,    at    *6     (Va.      1867)).         Even    “[t]he      slightest   touching       of

another . . . if done in a rude, insolent, or angry manner,

constitutes          a       battery    for    which     the    law    affords      redress.”

                                                 15
Crosswhite v. Barnes, 

, 244 (Va. 1924) (citation

omitted); accord 

.

       As    evidenced        by    the   statutory      language         quoted      above,

Virginia     Code    §    18.2-57(C)         provides    in    the       disjunctive      two

distinct crimes, namely, assault on a police officer and the

separate crime of assault and battery of a police officer.                                 The

statutory     crime      of    assault    and      battery     of    a    police     officer

plainly requires the commission of a battery as an element of

the crime, while the separate offense of assault on a police

officer does not include such an element.

       The    divisible        nature     of       Virginia     Code      §    18.2-57(C),

however,      does       not       require     application          of     the      modified

categorical approach in the present case because the parties

agree, and the record shows, that Carthorne was convicted under

that statute of the distinct offense of assault and battery of a

police officer (ABPO in Virginia).                      See Descamps, at 6 (the

modified categorical approach is employed “to determine which of

a     statute’s     alternative        elements       formed     the      basis     of    the

defendant’s prior conviction”); 

.                                  Thus,

our     consideration         of    Carthorne’s       prior     conviction         must     be

examined     solely      under      the   categorical         approach        to   determine

whether ABPO in Virginia qualifies as a crime of violence under

Section 4B1.2(a) of the Guidelines.                  See Descamps, at 19.



                                              16
                                      C.

     In   addressing     the       issue     whether   ABPO     in     Virginia   is

categorically    a    crime   of    violence,     we   are    guided    by   circuit

precedent.     In United States v. White, we held that the Virginia

offense of “assault and battery against a family or household

member,” Va. Code § 18.2-57.2, did not have “as an element, the

use or attempted use of physical force.” 

.         We

reached that conclusion based on the decision of the Supreme

Court in Johnson v. United States, 

(2010).                       There,

the Court held that a Florida statute prohibiting battery, which

was satisfied “by any intentional physical contact, no matter

how slight,” did not have “as an element the use . . . of

physical force against the person of another.” 10                 

   the    Supreme       Court      concluded     that     the   Florida

offense was not a “violent felony” under the ACCA.                   

presented in White was whether that Virginia
offense qualified as a “misdemeanor crime of domestic violence,”
within the meaning of 18 U.S.C. § 921(a)(33)(A), because it
included “as an element, the use or attempted use of physical

.    The definition of a “misdemeanor
crime of domestic violence,” found in 18 U.S.C. § 921(a)(33)(A),
does not include a clause comparable to the residual clause
definition for a “crime of violence.” 

government waived reliance on the residual
clause in the lower courts, the Court in Johnson declined to
consider whether battery in Florida qualified as a violent
felony under the residual 

.


                                           17
     The Court in Johnson defined the term “physical force” as

“force capable of causing physical pain or injury to another

person.”    

on this definition, we held in

White that the Virginia statutory offense of assault and battery

of a family member, which could be accomplished by the merest

touching no matter how slight, did not have “as an element, the

use or attempted use of physical 

.

     This principle is equally applicable in the present case,

in which common law battery is a required element of ABPO in

Virginia.    In accord with our analysis in White, therefore, we

hold that because ABPO in Virginia encompasses any common law

battery,    however    slight,   that    statute     does    not    categorically

have “as an element the use, attempted use, or threatened use of

physical force against another.” 11          See U.S.S.G. § 4B1.2(a)(1).

     We disagree with the government’s argument that ABPO in

Virginia    nevertheless      categorically       qualifies    as    a   crime   of

violence    under     the   residual    clause     of   Section     4B1.2(a)(2),

because    that   offense    “presents       a   serious    potential    risk    of

physical    injury    to    another.”        U.S.S.G.   §   4B1.2(a)(2).         In

determining whether a crime categorically qualifies as a crime

of violence under the residual clause, we consider whether “the


     11
       The parties do not dispute that after White, the Virginia
ABPO conviction does not qualify as a crime of violence under
U.S.S.G. § 4B1.2(a)(1).


                                        18
elements of the offense are of the type that would justify its

inclusion within the residual [clause],” in that those elements

“present[]     a     serious    potential          risk    of     physical    injury    to

another.”          Sykes,    131   S.     Ct.      at    2272-73;      see   U.S.S.G.    §

4B1.2(a)(2).

      The presence of a serious potential risk of physical injury

ordinarily divides crimes that categorically qualify as crimes

of violence from those that do not.                     

.

The enumerated offenses in Section 4B1.2(a)(2), namely, burglary

of a dwelling, arson, extortion, and crimes involving the use of

explosives, provide a benchmark for the level of risk required

to qualify as a crime of violence.                      See 

(asking whether “the risk posed by [the offense in question] is

comparable     to     that     posed     by    its      closest     analog    among    the

enumerated     offenses”).          We    gauge         this    risk   by    considering

“whether the conduct encompassed by the elements of the offense,

in   the   ordinary     case,      presents        a    serious    potential    risk    of

injury to another.”          

need not “hypothesize” about “unusual cases” to conclude

that ABPO in Virginia often will not present a serious potential

risk of injury.        See 

certainty” of

a serious potential risk of injury is not required).                           The “key”

to the categorical approach “is elements, not facts,” Descamps,

at 5, and the elements of ABPO in Virginia plainly show that

                                              19
this statutory offense, which is predicated on the commission of

common law assault and battery, proscribes a very broad range of

conduct.        In fact, it is a mainstay of Virginia jurisprudence

that     the    common     law   crime     of    assault      and    battery    may    be

accomplished         by    the   slightest       touching      or    without     causing

physical injury to another.              See, e.g., 

;

Pugsley v. Privette, 

, 74 (Va. 1980); 

; Lynch v. Commonwealth, 

, 428 (Va.

1921).     Thus, because this physical contact element of ABPO in

Virginia       may    be    satisfied      in    a    relatively      inconsequential

manner,    that      statute     cannot,    by       reason   of    its    elements,   be

viewed    as     presenting      a   serious         potential      risk   of   physical

injury.        See United States v. Evans, 

, 768 (7th Cir.

2009) (stating that “insulting or provoking physical contact,”

an offense that “could be no more violent than spitting,” is not

“comparable to burglary, arson, extortion, or a crime involving

the use of explosives,” “[n]or could it be said to present a

serious risk of physical injury”) (emphasis in original).

       Our conclusion is not altered by the fact that the victim

in an ABPO in Virginia is a law enforcement officer engaged in

the performance of official duties.                   Although some of our sister

circuits addressing ABPO in other jurisdictions have reached a

contrary conclusion, see, e.g., United States v. Dancy, 

, 470 (1st Cir. 2011), United States v. Williams, 

1143, 1149 (10th Cir. 2009), Rozier v. United States, 

, 682 (11th Cir. 2012), we decline to adopt their analysis,

because      we    do    not       think       that       the   victim’s      occupation            as     a

trained law enforcement officer, of itself, elevates the risk of

physical        injury     to      a    level       comparable     to    that      found        in       the

commission        of     burglary         of    a     dwelling,     arson,         extortion,             or

crimes involving explosives.                        Moreover, the elements of ABPO in

Virginia do not restrict the scope of offending conduct in a

manner that signals such an elevated serious potential risk of

physical injury, as would be the case by adding the element of

use of a dangerous instrumentality or by requiring more than

minimal physical contact.                       See United States v. Hampton, 

, 731 (7th Cir. 2012) (explaining that “vehicular flight

is    inherently        more       risky       than       making   insulting           or     provoking

contact with an officer,” because such flight involves the “use

of    a    dangerous       instrumentality”);                   

(requiring        intended         or    actual       application        of   more          than     a    de

minimis level of physical contact).

       We would do a great disservice to law enforcement officers

by accepting the government’s contention that a police officer

who   is    a     victim      of       ABPO    in    Virginia      is    like      a    powder       keg,

capable of exploding into violence.                              Unlike an actual “powder

keg,”      which,      once     ignited,            has    no   governor      to       regulate          its

destructive force, see 

(citing the

                                                     21
degree of risk inherent in arson), law enforcement officers can

rely    on   their   training      and   experience   to    determine     the    best

method of responding to any perceived threat.

       Undoubtedly, ABPO in Virginia can be committed in a manner

creating     a    risk   of   escalating    violence.       And,   even   in     less

serious situations, law enforcement officers may be required to

escalate their response to offending conduct to effect a seizure

of the perpetrator.           Nevertheless, because the elements of the

crime of ABPO in Virginia can be satisfied in widely diverging

contexts, including the use of a poking finger or the incidence

of   other   minimal     physical     contact,   we   conclude     that    ABPO      in

Virginia does not constitute an offense “that ordinarily induces

an escalated response from the officer that puts the officer and

others at a similar serious risk of injury,” within the meaning

of Section 4B1.2(a)(2).            See 

.

        Based on these considerations, we conclude that the crime

of ABPO in Virginia does not present the serious potential risk

of     physical    injury     as    that    presented,     for   example,       in   a

confrontation between an occupant of a dwelling and a burglar

“attempting a break-in,” 

-04, or “[w]hen a

perpetrator defies a law enforcement command by fleeing in a




                                           22
car,” thereby using a dangerous instrumentality, 12 see 

.   Accordingly, upon our review of the elements of

the offense of ABPO in Virginia, we hold that the district court

erred in determining that Carthorne’s conviction for ABPO in

Virginia categorically qualified as a crime of violence under

Section 4B1.2(a) of the Guidelines. 13


     12
        The Supreme Court has also held that, for an offense to
fall within the residual clause, it must be “roughly similar, in
kind as well as in degree of risk posed,” to arson, burglary,
extortion, and crimes involving explosives. See Begay v. United
States, 

, 143 (2008). In Begay, the Court explained
that the listed crimes “all typically involve purposeful,
violent, and aggressive conduct.”    

and
internal quotation marks omitted).      Because only de minimis
physical contact is required to commit ABPO in Virginia, we also
conclude that the offense is not categorically a crime of
violence under this standard because the elements of the offense
do not substantiate the proscribed conduct as “violent,” even if
it could be considered “purposeful” and “aggressive.”        See
United States v. Thornton, 

, 448 (4th Cir. 2009)
(explaining that an offense must fall within all three types of
conduct to be similar in kind to the enumerated offenses).
     13
        Our conclusion is not altered by the decision of this
Court in United States v. Aparicio-Soria, ___ F.3d ___, 

(4th Cir. July 5, 2013). There, the Court held that the
Maryland offense of resisting arrest, under Md. Code, Crim. Law
§ 9-408(b)(1), was categorically a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). This conclusion was based on the
Court’s holding that the Maryland offense “has as an element the
use, attempted use, or threatened use of physical force against
the person of another.” See 

in contrast, this Court’s earlier decision in White
has resolved the issue whether assault and battery in Virginia
has as an element the attempted, threatened, or actual use of
physical force. As stated above, this Court held in White that
common law assault and battery in Virginia does not contain such
an 

, 153.     This decision in White
(Continued)
                                23
                                           D.

       Based on the above holding, we turn to the second step of

our    plain    error     analysis    to    consider   whether    the   district

court’s   error     was    “plain.”        We   conclude   that   the   district

court’s error was not so clear or obvious as to meet that high

bar.

       Under our review for plain error, our “authority to remedy

[an] error . . . is strictly circumscribed.”                

.        The term “plain” error is synonymous with “clear” or

“obvious” error.        

.        An error is plain “if

the settled law of the Supreme Court or this circuit establishes

that an error has occurred.”           United States v. Maxwell, 285 F.3d




controls our present holding that ABPO in Virginia does not
contain such an element and that, therefore, this offense does
not categorically qualify as a crime of violence under Section
4B1.2(a)(1) of the Guidelines. See 

that the decision in Aparicio-
Soria is inapposite because the crime of resisting arrest in
Maryland requires that a person intentionally resist a lawful
attempt to arrest him or her, by “refus[ing] to submit” and by
“resist[ing] by force or threat of force.”    Rich v. State, 

, 1071, 1077 (Md. Ct. Spec. App. 2012). Such acts are
not encompassed by the elements of ABPO in Virginia, which do
not require threatening or forceful resistance to an assertion
of police authority.     Finally, we note that, based on the
holding in Aparicio-Soria, the Court was not required in that
case to address the issue whether the Maryland offense qualified
as a “crime of violence” on the basis of presenting “a serious
potential risk of physical injury.” By comparison, our decision
here addresses that issue, as well as the “physical force” prong
of Section 4B1.2(a)(1).


                                           24
336, 342 (4th Cir. 2002) (citation omitted).                    Additionally, the

Supreme Court has explained that irrespective “whether a legal

question was settled or unsettled at the time of [the district

court’s decision], it is enough that an error be ‘plain’ at the

time   of    appellate      consideration”      to    constitute      plain    error.

Henderson,      133    S.    Ct.    at    1130-31     (citation     and      internal

grammatical marks omitted).

       Prior to the present case, this Circuit had not addressed

the issue whether ABPO in Virginia was a crime of violence under

the Guidelines’ residual clause.                While our decision in White

provided authoritative guidance about the elements of common law

assault and battery in Virginia, requiring the conclusion that

ABPO in Virginia does not have “as an element the use, attempted

use, or threatened use of physical force against the person of

another,” 

, that decision was not binding

precedent on the issue whether ABPO in Virginia is a crime of

violence     under    the   residual      clause     as   presenting    “a    serious

potential risk of physical injury to another.”                     See U.S.S.G. §

4B1.2(a)(2).

       We   further    observe     that   our   sister     circuits    are    not   in

accord on the issue whether the offense of assault and battery

on a police officer in other jurisdictions qualifies as a crime

of   violence    (or    violent     felony)     under     the   residual      clause.

Compare 

; 

; and

                                          25


,    with   

(Illinois    crime    of   “making       insulting    or    provoking       physical

contact with a peace officer” is not categorically a violent

felony).     Nor can we say that the Supreme Court’s decision in

Johnson     constituted     an    intervening        change    in    law    plainly

superseding the circuit split, in view of the fact that the

circuits have reached differing conclusions even after Johnson.

See, e.g., 

, 685; 

67 & n.7; 

.                  And, finally, while the

Court’s decision in Descamps has been material to our decision

to apply the categorical approach, Descamps did not address ABPO

or a related offense.

     In sum, neither the Supreme Court nor this Circuit has yet

addressed    the     particular     question     before       us    involving     the

residual clause of Section 4B1.2(a)(2), and the other circuits

that have considered the question remain split on the issue.

When “we have yet to speak directly on a legal issue and other

circuits are split, a district court does not commit plain error

by following the reasoning of another circuit.”                     United States

v. Strieper, 

, 295 (4th Cir. 2012).                      We therefore

conclude that the district court’s error was not plain under




                                         26
these circumstances. 14    See, e.g., United States v. Wynn, 

, 480 (4th Cir. 2012) (holding that any error was not

plain when “[o]ur [C]ourt has never addressed the [] argument,

and the other circuits are split on the issue”); United States

v. Abu Ali, 

, 234 n.8 (4th Cir. 2008) (holding, in

the absence of controlling precedent, that the defendant “cannot

begin to demonstrate plain error given that a number of our

sister circuits” have disagreed with the defendant’s position).



                                    III.

      For these reasons, we conclude that the district court did

not   commit   plain   error   in   holding   that   the    Virginia   ABPO

conviction categorically qualified as a crime of violence under

the residual clause of Section 4B1.2(a)(2).                Accordingly, we

affirm the district court’s judgment.

                                                                  AFFIRMED




      14
       It is possible for a district court to commit plain error
in the absence of controlling authority.   See United States v.
Neal, 

, 998 (4th Cir. 1996) (explaining that, “[i]n
the absence of [settled law of the Supreme Court or this
Circuit], decisions by other circuit courts of appeals are
pertinent to the question of whether an error is plain”). Plain
error may arise on occasion when our sister circuits “have
uniformly taken a position on an issue that has never been
squarely presented to this Court,” however, such cases are
“exceedingly rare.”   United States v. Whab, 

, 158
(2d Cir. 2004).


                                     27
DAVIS, Circuit Judge, concurring in part and dissenting in part:

     My    good    friend    Judge   Keenan   has   written    a   very    fine

opinion.    I     assume    her   effort   does   not   run   afoul   of    the

prohibition on advisory opinions by federal courts. See Preiser

v. Newkirk, 

, 401 (1975) (stating “a federal court

has neither the power to render advisory opinions nor to decide

questions that cannot affect the rights of litigants in the case

before them”) (internal quotation marks omitted). 1 Accordingly, I


     1
       We have not ordinarily followed the practice the majority
follows here. That is, when we conduct plain error review, we do
not purport to announce a “holding” that the district court
indeed committed an error but then, at step two of the plain
error analysis, decline to find the error plain. Our normal
approach is consistent with the principle that we lack “power to
. . . decide questions that cannot affect the rights of
litigants in the case before [us].” 

.
Rather, we have taken one or more different paths.

     Often, we have simply announced, ambiguously, that there
was no “plain error” and left it at that, i.e., without
separately deciding whether there was error but that the error
was not “clear enough” to be plain. See, e.g., United States v.
Strieper, 

, 295 (4th Cir. 2012) (“Because the
district court followed the reasoning of the Eighth Circuit
regarding an issue on which we have not ruled directly, it did
not commit plain error . . . .”).

     On many other occasions, we have assumed there was error
but have relied on Olano step three or step four (see maj. op.,
ante, at 10) to deny relief. United States v. Jackson, 

, 304 (4th Cir. 2003) (opinion of the court by Motz and King,
JJ., on the relevant issue) (“We, along with several of our
sister circuits, have frequently disposed of a plain error issue
by analyzing either the third or fourth prong of Olano after
assuming, without deciding, that there was an error and that it
was plain.”) (collecting cases).

(Continued)
     On at least one or two other occasions, we have reasoned
that there was no error that was “plain”, United States v. Wynn,

, 480 (4th Cir. 2012) (“It is therefore apparent
that the issue has not been resolved plainly.”), only to go on
to say there was in fact no error at all, 

facts of this case we do not even find error.”), or that Olano
step three or four was not satisfied, United States v. Johnson,
--- F. App’x ---, No. 12-4155, 

, at *8 (4th Cir.
June 20, 2013) (holding that sentencing error was not plain but
further holding that defendant failed to satisfy step three of
Olano, stating: “Unfortunately for Johnson, even assuming
arguendo that the district court’s failure to conclude that USSG
§ 5G1.3(b) applies to advise the district court that sixteen
months of Johnson’s 151–month sentence on Count 1 should run
concurrent with his Undischarged State Sentence constitutes
error that is plain, thus satisfying the first two prongs of
Olano’s plain error test, Johnson cannot satisfy the third
prong.”).
     A strikingly odd exception to our practice is the pre-
Booker case of United States v. Rouse, 

(4th Cir.
2004), cert. denied, 

(2004). In Rouse, plain error
review applied to a district court’s failure to impose a
concurrent federal sentence; the court imposed instead a
departure sentence of ten years to be served consecutively to an
active six-year state sentence defendant was then serving.
Remarkably, the government conceded that the district court had
committed plain error. See Br. of the United States at 8, 

(May 22, 2003) (“[T]he United States concedes that
if the defendant’s [federal] sentence was erroneously imposed
[as a consecutive sentence] and that he was [therefore]
erroneously sentenced to serve a longer sentence than the law
allows, then the district court committed plain error.”). The
government contended, however, that in light of the significant
“substantial assistance” departure the district court had
awarded the defendant, the case should be remanded to allow the
district court to reduce the magnitude of the departure in order
to achieve the effective sixteen year sentence it intended.
Without even mentioning the government’s concession or its
alternative argument, the Rouse panel agreed with Rouse that the
district court had erred but it simply called the error “not

.

     No previous or subsequent panel of this Court has employed
such reasoning so far as I can discern.


                               29
am pleased to join that part of her opinion which adds to the

extant circuit split on the issue of whether, under the residual

clauses   of    federal      sentencing    enhancement     provisions,         assault

and battery on a law enforcement officer is a crime of violence.

       I am compelled to dissent, however, from the majority’s

conclusion      that     the    sentencing      error      in        this     case    is

insufficiently “clear” under existing law, Henderson v. United

States,   133    S.    Ct.   1121   (2013),    such   that      the    error    cannot

plausibly be held “plain” under Rule 52(b). Ante, at 24-27.

       Imagine that our panel had on its docket a second case

presenting      substantially       identical    issues         as    this     one    on

substantially identical facts and procedural history. One option

for us would be to hold the second case until we issue our

opinion in this case so that we can find the error “plain” in

the second case. Such an outcome would be required by Henderson.

A second option (i.e., the approach taken by the majority in

this   case),    given    the   imperative     that   we   be        “fair”   to     each

appellant in the two cases (and, I suppose, to the two district

judges), would be to issue both opinions simultaneously, thereby

declining to find the error plain in either one (because the

error would not be “clear” until at least one of the opinions

had been filed). A third option would be to find the error

“clear” and thus “plain” in both cases, regardless of which one

was filed first. I believe, given our current understanding of

                                          30
the applicable law, as so well laid out by Judge Keenan, the

correct option is to find the error plain in both cases.

      In his strongly-worded dissent in Henderson, Justice Scalia

scolded the majority for its “mistaken understanding that the

only purpose of Rule 52(b) is fairness,” and insisted that the

majority had rendered “the plainness requirement . . . utterly

pointless.”       133   S.    Ct.    at    1132-1133.   In   so   arguing,   Justice

Scalia anticipated the very circumstance we face in this case:

      Consider two defendants in the same circuit who fail
      to object to an identical error committed by the trial
      court under unsettled law. By happenstance, Defendant
      A’s appeal is considered first. The court of appeals
      recognizes that there was error, but denies relief
      because the law was unclear up to the time of the
      court of appeals’ opinion. Defendant B’s appeal is
      heard later, and he reaps the benefit of the opinion
      in Defendant A’s case settling the law in his favor.
      What possible purpose is served by distinguishing
      between these two appellants?

See   

     J.,    dissenting).    The   six-justice

majority was not persuaded by Justice Scalia’s protestations.

      It    is    clear      that,   not     surprisingly,    the   dissenters    in

Henderson were most concerned with issues of finality and wasted

judicial resources potentially arising from plenary review of

forfeited    trial      errors,      the    correction   of   which     might   upset

convictions and make retrials necessary but problematic:

      Until today, however, the objective of correcting
      trial-court error has been qualified by the objective
      of inducing counsel to bring forward claims of error
      when they can be remedied without overturning a
      verdict and setting the convicted criminal defendant

                                             31
     free. To overlook counsel’s failure to object, spend
     judicial resources to conduct plain-error review, and
     set aside a criminal conviction where retrial may be
     difficult   if   not  impossible,   is   exactly  the
     “‘extravagant protection’” that this Court has up
     until now disavowed.

removed).

     In   any   event,   I   think    the   answer   to     Justice   Scalia’s

hypothetical, at least regarding errors that result in lengthy

illegal sentences, is clear. As only he could, Justice Scalia

pooh-poohed     the   majority’s     “disbelie[f]    that    a   lawyer   would

deliberately forgo objection”:

     The Court sees no harm in its evisceration of the
     contemporaneous-objection rule, disbelieving that a
     lawyer would ‘deliberately forgo objection now because
     he perceives some slightly expanded chance to argue
     for “plain error” later,’ ante, at 1128 – 1129. It is
     hard to say whether this conclusion springs from a
     touching faith in the good sportsmanship of criminal
     defense counsel or an unkind disparagement of their
     intelligence. Where a criminal case always has been,
     or has at trial been shown to be, a sure loser with
     the jury, it makes entire sense to stand silent while
     the court makes a mistake that may be the basis for
     undoing the conviction. The happy-happy thought that
     counsel will not ‘deliberately forgo objection’ is not
     a delusion that this Court has hitherto indulged,
     worrying as it has (in an opinion joined by the author
     of today's opinion) about ‘“counsel’s “‘sandbagging
     the court”’ by ‘remaining silent about his objection
     and belatedly raising the error only if the case does
     not conclude in his favor.’

omitted). But the good justice must

be forgiven; he’s never conducted a sentencing hearing. There is

no sandbagging at sentencing, only errors, sometimes by counsel,

sometimes by the court, and sometimes, as in this case, by both

                                      32
the court and counsel. See United States v. Escalante-Reyes, 

(5th Cir. 2012) (en banc):

      [T]he purpose of plain error review in the first place
      is so that justice may be done. The contemporaneous
      objection rule is, in part, intended to prevent
      lawyers from deliberately withholding an objection in
      an effort to gain another ‘bite at the apple’ on
      appeal in the event that they are unsatisfied with the
      court’s ruling. But the plain error rule recognizes
      that not all failures to object are strategic. Indeed,
      some (maybe most) of the time, the failure to object
      is the product of inadvertence, ignorance, or lack of
      time to reflect.

quotation marks, and footnote omitted).

      Appellate courts should not hesitate to remediate failures

to   object   at   sentencing      when        those   failures     result    in   the

imposition    of    unlawful       sentences       and    the      unlawfulness    is

sufficiently clear at the time the appeal is decided, regardless

of   the   state    of    the     law    up     until    that      time.   Henderson

unequivocally      so    holds.    See    133     S.    Ct.   at    1130-31   (“[W]e

conclude that whether a legal question was settled or unsettled

at the time of trial, it is enough that an error be ‘plain’ at

the time of appellate consideration for [t]he second part of the

[four-part]    Olano     test     [to    be]    satisfied.”)       (alterations     in

original) (quotation marks omitted). We should do so here.

      Specifically, I have no hesitation in concluding that the

error here is “plain” in light of the wisdom revealed by the

combination of United States v. Hampton, 

(7th Cir.

2012) (holding Illinois offense of assault and battery on a law

                                          33
enforcement officer is not categorically a predicate crime of

violence under residual clause), and Rozier v. United States,

, 687 (11th Cir. 2012) (Hill, J., dissenting) (same,

as   to   Florida    offense   of     assault      and    battery   on   a   law

enforcement officer), cert. denied, 

(2013). 2

Manifestly,   as     the   majority    opinion     makes    perfectly    clear,

Hampton is the most insightful and well-reasoned of the out-of-

circuit   cases     treating   the    issue   of    the    impact   of   a   law

enforcement victim on the analysis of common law-type assault

and battery offenses under a “residual clause” determination. 3




     2
       To its credit, the government has not remotely suggested
that Olano steps three and four are unsatisfied in this case.
There is no doubt that they are satisfied.
     3
       Our own circuit precedent consists entirely of unpublished
opinions. See United States v. Baker, 326 F. App’x 213 (4th.
Cir. April 21, 2009) (unpublished); United States v. Lowe, No.
94-5792, 

(4th Cir. July 26, 1995) (unpublished);
United States v. Alston, No. 94-5498, 

(4th Cir.
June 2, 1995) (unpublished). This is telling; none of our
colleagues felt the issue was of sufficient import to deserve a
precedential determination. As Henderson makes clear, of course,
an error arising out of “unsettled law” can be plain in the
light of intervening authority. I do not find anything in
Henderson   to  suggest   that  new   authority   that  “settles”
“unsettled” circuit law must come from the Supreme Court itself
or from within the circuit. In other words, applying hindsight,
as we must under Henderson, I would conclude that we should find
the error here, as of today, sufficiently clear that it rises to
the level of plain.


                                      34
Judge Keenan’s forceful rejection of the government’s “powder

keg” metaphor is as powerful as it is wise and commonsensical. 4


     4
       It bears mention that “assault and battery on a law
enforcement officer” is not the proper name or title of Virginia
Code § 18.2-57(C), the statute before us. That law, a multi-
section statute, has been amended several times since the date
of Carthorne’s conviction, but it presently provides as follows:

          [I]f any person commits an assault or an assault
     and battery against another knowing or having reason
     to know that such other person is a judge, a
     magistrate, a law-enforcement officer as defined in
     subsection F, a correctional officer as defined in §
     53.1-1, a person directly involved in the case,
     treatment, or supervision of inmates in the custody of
     the Department of Corrections or an employee of a
     local or regional correctional facility directly
     involved in the care, treatment, or supervision of
     inmates in the custody of the facility, a person
     directly   involved    in   the   care,   treatment,   or
     supervision of persons in the custody of or under the
     supervision of the Department of Juvenile Justice, an
     employee or other individual who provides control,
     care, or treatment of sexually violent predators
     committed to the custody of the Department of
     Behavioral   Health   and   Developmental   Services,   a
     firefighter as defined in § 65.2-102, or a volunteer
     firefighter   or    any   emergency    medical   services
     personnel member who is employed by or is a volunteer
     of an emergency medical services agency or as a member
     of a bona fide volunteer fire department or volunteer
     emergency medical services agency, regardless of
     whether a resolution has been adopted by the governing
     body of a political subdivision recognizing such
     firefighters or emergency medical services personnel
     as employees, engaged in the performance of his public
     duties, such person is guilty of a Class 6 felony and,
     upon conviction, the sentence of such person shall
     include a mandatory minimum terms of confinement of
     six months.

 Va. Code § 18.2–57(C). Notably, as well, the definition of “law
 enforcement officer” under the statute is exceedingly broad:
(Continued)
                                35
      Additionally, there is authoritative circuit precedent for

finding the error here to be plain. In United States v. Boykin,

  (4th   Cir.   2012),   we   found   a   district   court’s

unpreserved procedural sentencing error to be sufficiently clear

to merit the “plain error” label. The circumstances surrounding

the district court’s misapprehension of a rule of law in that

case (circumstances both at the time of the error and at the

time of the appeal) were even more opaque than the “crime of

violence” determination presented to us in the case at bar.



      “Law-enforcement officer” means any full-time or part-
      time employee of a police department or sheriff’s
      office that is part of or administered by the
      Commonwealth or any political subdivision thereof who
      is responsible for the prevention or detection of
      crime and the enforcement of the penal, traffic or
      highway laws of the Commonwealth, any conservation
      officer   of  the   Department    of    Conservation   and
      Recreation commissioned pursuant to § 10.1-115, any
      special agent of the Department of Alcoholic Beverage
      Control,   conservation    police    officers    appointed
      pursuant to § 29.1-200, and full-time sworn members of
      the enforcement division of the Department of Motor
      Vehicles appointed pursuant to § 46.2-217, and such
      officer also includes jail officers in local and
      regional correctional facilities, all deputy sheriffs,
      whether assigned to law-enforcement duties, court
      services or local jail responsibilities, auxiliary
      police officers appointed or provided for pursuant to
      §§ 15.2-1731 and 15.2-1733, auxiliary deputy sheriffs
      appointed pursuant to § 15.2-1603, police officers of
      the   Metropolitan    Washington     Airports    Authority
      pursuant to § 5.1-158, and fire marshals appointed
      pursuant to § 27-30 when such fire marshals have
      police powers as set out in §§ 27-34.2 and 27-34.2:1.

      In    Boykin,     without       objection         by   the    defense       to     the

substantial accuracy of the underlying facts, cf. Fed. R. Crim.

P.   32(i)(3)(A)      (providing      that,       at    sentencing,       the     district

court   “may    accept       any   undisputed       portion    of    the    presentence

report as a finding of fact”), the district court relied on a

presentence report (“PSR”) to determine that the defendant had

been convicted of two (of the required three) predicate offenses

on “separate occasions” as required by the Armed Career Criminal

Act. Namely, he had been convicted of the murder of one victim

using one firearm, and (moments later) the assault by shooting

of another victim using a second firearm. 

.

Under rather obscure circuit precedent, viz. United States v.

Thompson,      

  (4th        Cir.   2005),      which       was    being

interpreted     and    applied       for    the    first     time    in     a    published

opinion, and which the district court had actually mentioned at

the sentencing hearing (believing it was acting in accordance

with it), such reliance was justified only if the information

was derived from “Shepard-approved sources.” 

(citing, in addition to Thompson, Shepard v. United States,

(2005)).

      The panel rejected Boykin’s argument that review was de

novo and accepted the government’s contention that plain error

review applied. 

-70. In applying plain

error review, the Boykin panel began: “The question is . . .

                                            37
whether the facts detailed in the PSR bear [ ] the earmarks of

derivation from Shepard-approved sources.” 

in   original)      (ellipsis      added)      (quotation    marks       omitted).    The

panel did not ask whether the facts were accurate. The panel

answered its question by stating, “First, there is no indication

in   the     PSR    itself      that    the    information       therein    came     from

Shepard-approved         sources,”      

with those in a case in which the PSR did happen to disclose the

source of information. 

v. Vann, 

,    817   (4th    Cir.     2011)      (en   banc)     (Niemeyer,       J.,

dissenting)). Of course, had there been such an indication in

the PSR, the issue would not have been presented on appeal in

Boykin at all.

       The    Boykin     panel     then       reasoned,    “Second,       the   factual

details of the encounter are not typically found in Shepard-

approved sources.” 

. But see 

. 5


       5
       Although Boykin understood Thompson to have relied on a
limited collection of documents “bear[ing] the earmarks of
derivation from Shepard-approved 

(quoting Thompson), Thompson’s actual (and highly ambiguous)
recitation of the information on which it held the district
court properly relied is far more fulsome:

          The trial judge was entitled 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,
(Continued)
                                              38
     Finally,   the   Boykin   panel   reasoned   that   the   record   on

appeal did not contain any documents that

     could have conceivably revealed the level of detail of
     the confrontation as recounted in the PSR and accepted
     by the district court. As such, we simply cannot
     determine which facts contained in Boykin’s PSR
     related to his prior convictions ‘bear[ ] the earmarks
     of Shepard-approved documents.’

          * * *

     Thus, while it was not error to use the PSR to
     determine that two crimes had in fact been committed
     by Boykin--that information is something that would
     exist in an indictment or other Shepard-approved
     source--it was error for the district court to use the
     PSR’s factual details of the encounter to apply the
     ACCA enhancement to Boykin’s sentence.

. Of particular relevance to this case,

the Boykin panel then concluded that




     moreover,    Thompson   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
     encompass 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 Randolph County) and that the residences he
     burglarized were owned by seven different people
     living in three different 

. This listing of factual details seems to be
captured by the Boykin panel’s observation that “factual details
. . . are not typically found in Shepard-approved sources.”

.


                                  39
       [t]he error was also plain. There is nothing in the
       record to show that the PSR’s recounting of the
       circumstances surrounding the two 1980 convictions
       exist in Shepard-approved sources. Although some of the
       information might well appear in such sources, most of
       it would not, particularly since the sources could not
       include a plea colloquy or bench findings.

see United States v. Gillikin, 422 F. App’x

288, 289-90 (4th Cir. 2011) (stating, without elaboration, that

“[a]lthough the presentence report did not indicate the source

the    probation         officer   relied       [on]   to   conclude    that     the

conviction was a violent felony,” the PSR “bears the earmarks of

derivation        from   Shepard-approved         sources”).   The   Boykin     panel

thus found that a sentencing error by the district court was

plain, i.e., clear, even in the face of a rule of criminal

procedure that authorized the district court’s finding of facts

whose basic accuracy was never challenged by the defendant. And

it    did    so   even   though    prior   (unpublished)       decisions   of   this

Court had excused the absence of validating source identifiers

in the information provided by a probation officer in the PSR.

       The Boykin panel got plain error review right. See also

United States v. Maxwell, 

(4th Cir. 2002) (in a

case    of    first      impression   in    the    Fourth   Circuit,   finding     a

sentencing error “plain” where the existence of error hinged on

the interpretation of the word “any” in a federal statute). As

the Fifth Circuit has explained:



                                           40
             [T]he focus of plain error review should be
        whether the severity of the error’s harm demands
        reversal, and not whether the district court’s action
        . . . deserves rebuke. The plain error rule is
        protective; it recognizes that in a criminal case,
        where a defendant’s substantial personal rights are at
        stake, the rule of forfeiture should bend slightly if
        necessary to prevent a grave injustice.

(citations, quotation marks,

and footnote omitted). 6

     The need for a more enlightened conception of plain error

review has recently been well articulated. See, e.g., Dustin D.

Berger, Moving Toward Law: Refocusing the Federal Courts’ Plain

Error    Doctrine    in   Criminal    Cases,   67    U.    Miami   L.    Rev.   521

(2013).    Perhaps    Henderson      signals   a    step    down   the   road   to

enlightenment. But enlightenment is not needed in this case;

faithful adherence to existing doctrine would do just fine.

     For years now, all over the civilized world, judges, legal

experts,    social    scientists,     lawyers,      and    international    human

rights and social justice communities have been baffled by the


     6
       In keeping with its office --substantial justice and
fairness--the manifest elasticity of plain error review is made
clear by the very cases relied on by the majority in its refusal
to find the error here plain. See ante, at 26 n.14 (“It is
possible for a district court to commit plain error in the
absence of controlling authority.” (citing United States v.
Neal, 

, 998 (4th Cir. 1996)).     And see 

error may arise on occasion when our sister circuits
‘have uniformly taken a position on an issue that has never been
squarely presented to this Court.’” (quoting United States v.
Whab, 

, 158 (2d Cir. 2004)). This is one of those
“exceedingly rare” instances in which we should do so. 

that the United States has come to

maintain. If they want answers to the “how” and the “why” we are

so devoted to incarcerating so many for so long, they need only

examine this case. Here, a 26-year-old drug-addicted confessed

drug dealer, abandoned by his family at a very young age and in

and out of juvenile court starting at age 12, has more than

fourteen         years    added   to   the   top   of   his   advisory    sentencing

guidelines range (387 months rather than 211 months, see ante,

maj.       op.   at   6   &   n.3),    because,    as   a   misguided    and   foolish

teenager, he spit on a police officer. His potential sentence

thus “anchored” and “framed”, 7 at the high end, between 17 and 32


       7
       Cf. United States v. Jones, 

, 284-85
(D. Mass. 2010):

          If downward departure or variance is appropriate
     in this case—and I believe it is, how far ought the
     Court depart? This is the most difficult and offender-
     specific calculus of all. Is it more appropriate to
     calculate the departure from the bottom of the 232
     month guideline range (the so-called “anchoring” to
     the guidelines principle of which the courts, see
     e.g., United States v. Docampo, 

, 1105 n.
     5 (11th Cir. 2009); United States v. Bohanon, 

, 876 (7th Cir. 2002), and commentators speak,
     Sarah M.R. Cravens, Judging Discretion: Contexts for
     Understanding the Role of Judgment, 64 U. Miami L.
     Rev. 947, 962 (2010); Jelani Jefferson Exum, The More
     Things Change: A Psychological Case Against Allowing
     the Federal Sentencing Guidelines to Stay the Same in
     Light of Gall, Kimbrough, and New Understandings of
     Reasonableness Review, 58 Cath. U.L. Rev. 115, 125
     (2008); Nancy Gertner, What Yogi Berra Teaches About
     Post-Booker Sentencing, 115 Yale L.J. Pocket Part 127
     (2006); Chris Guthrie, Jeffrey J. Rachlinski & Andrew
(Continued)
                                             42
years, Carthorne may or may not feel fortunate to have received

“only” 25 years (300 months) in prison. I do not believe he is

“fortunate” at all.

     I respectfully dissent from the majority’s refusal to find

the error in this case “plain.”




     J. Wistrich, Inside the Judicial Mind, 86 Cornell L.
     Rev. 777, 787–94 (2001); Kate Stith, The Arc of the
     Pendulum: Judges, Prosecutors, and the Exercise of
     Discretion, 117 Yale L.J. 1420, 1496 (2008)? Or will
     better justice be accomplished by ratcheting up from
     top of the appropriate non-career offender guideline
     out of deference to the congressional mandate which
     gave rise the career offender concept? 28 U.S.C. §
     994(h) (mandating that a “career offender” as defined
     in the statute receive a sentence at or near the
     maximum term authorized).


                                  43