Summary
explaining that treating residential burglary as a crime of violence was "[i]n accord with common law tradition and the settled law of the federal circuits"
Summary of this case from Sessions v. DimayaOpinion
No. 88-3795.
August 7, 1989.
Daniel Vogt, Tallahassee, Fla., for defendant-appellant.
Kenneth W. Sukhia, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
I.
On June 15, 1988, a grand jury charged appellant Bernard Nathaniel Davis for possession of more than fifty grams of "crack" cocaine base with intent to distribute in violation of 21 U.S.C. § 841 (1982 Supp. IV 1986), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 921 and 922 (1982 Supp. V 1987). On July 11, 1988, appellant pled guilty to the narcotics charge pursuant to a plea agreement; the firearms charge was dropped. Because appellant's offense occurred after November 1, 1987, the sentencing guidelines promulgated by the United States Sentencing Commission controlled his sentence. See United States v. Burgess, 858 F.2d 1512, 1514 (11th Cir. 1988). Those guidelines provide in pertinent part as follows:
Career Offender
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.
Offense Statutory Maximum Offense Level
(A) Life 37 (B) 25 years or more 34 (C) 20 years or more, but less than 25 years 32 (D) 15 years or more, but less than 20 years 29 (E) 10 years or more, but less than 15 years 24 (F) 5 years or more, but less than 10 years 17 (G) More than 1 year, but less than 5 years 12 [2] Sentencing Guidelines § 4B1.1 (Jan. 15, 1988). Because appellant was over eighteen at the time of the instant offense, which was a controlled substance violation, the applicability of guideline 4B1.1 to appellant's case hinged on the third element of the definition of a career offender: that "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." See id.An examination of appellant's criminal history revealed two prior felony convictions: the first for burglary of a dwelling, see Fla.Stat. § 810.02(3) (1987); the second for possession of cocaine, see id. §§ 893.03, 893.13(1)(e) (1987). Relying on these convictions, the district court concluded that appellant met the criteria for a career offender. The maximum sentence for appellant's violation of 21 U.S.C. § 841 being life imprisonment, see 21 U.S.C. § 841(b)(1)(A)(iii) (Supp. IV 1986), the district court determined that appellant's total offense level was 37 and that appellant's guideline sentencing range was from thirty years to life imprisonment. See Sentencing Guidelines Ch. 5, Part A table (Oct. 1987) (offense level 37, criminal history category VI). The district court opted for the minimum guideline period, sentencing appellant to thirty years imprisonment.
810.02 Burglary. —
(1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
(b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon.
(3) If the offender does not make an assault or battery or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure or conveyance entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
810.02
Appellant now challenges the district court's determination that he was a career offender under guideline 4B1.1. We affirm.
II.
Appellant contends that the district court erred in concluding that his conviction for burglary of a dwelling was a crime of violence. As used in the sentencing guidelines, the term "crime of violence" is defined by 18 U.S.C. § 16 (Supp. V 1987). See Sentencing Guidelines § 4B1.2(1) (Jan. 15, 1988). That statute provides as follows:
§ 16. Crime of violence defined
The term "crime of violence" means —
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In construing this statute, the district court relied primarily on section 16(a) in determining that appellant's burglary was a crime of violence; the court, however, also noted that appellant's burglary of a dwelling created a substantial risk of physical force, and thus implicitly concluded that section 16(b) encompassed appellant's offense as well. We affirm on this latter basis.
In ruling on this question, the court stated as follows:
You raised a question in your letter [to the probation officer] about why a burglary of a dwelling should be considered a crime of violence, whereas a burglary of a — another type building would not be. And, of course, it doesn't make a difference. And — and it's one of those that is highlighted in the commentary to the sentencing guidelines. And I — it does make some sense to me, because burglary of a — of a store building, a warehouse, a mercantile establishment would not ordinarily involve the prospect of someone being in the building. And, therefore, the risk of — of confronting another human being in that building, which the Defendant would have gained entry to illegally, would not be there. But in a — in a dwelling burglary, of course, involves stealth and illegal entry, I suppose any time of the day or night, but with the anticipation of someone being there. The — certainly risk is there. And I could justify it in my mind on that basis, that the — a dwelling, a burglary, someone gaining illegal entry into a dwelling could pretty well believe that it might be occupied. (Emphasis added.)
Appellant argues that because the use of force against a person is not an element of Fla.Stat. § 810.02(3), it does not constitute a crime of violence under 18 U.S.C. § 16(a). We need not resolve this question since we conclude that appellant's offense constituted a crime of violence under section 16(b). Nevertheless, we note that section 16(a) encompasses not only offenses involving the use of force against persons, but also those offenses involving the use of force against property — an inherent element of the common law offense of burglary. See W. LaFave A. Scott, Substantive Criminal Law § 8.13(a) (1986). The Florida burglary law incorporates this offense element by excusing entry into properties open to the public and licensed entries onto property. See Fla.Stat. § 810.02(1) (1987).
The commentary to guideline 4B1.1 specifically recognizes that the burglary of a dwelling constitutes a crime of violence. See Sentencing Guidelines § 4B1.1 application note 1 (Jan. 15, 1988). We believe that this conclusion is well founded. As the Model Penal Code observes:
[A burglar's] intrusion [into a dwelling] for any criminal purpose creates elements of alarm and danger to persons who may be present in a place where they should be entitled to freedom from intrusion. Their perception of alarm and danger, moreover, will not depend on the particular purpose of the intruder. The fact that he may be contemplating a minor offense will be no solace to those who may reasonably fear the worst and who may react with measures that may well escalate the criminal purposes of the intruder.
Model Penal Code § 221.1 comment 3(c), at 75 (1980). In accord with common law tradition and the settled law of the federal circuits, we conclude that the burglary of a dwelling by its nature creates a substantial risk of physical force. See United States v. Pinto, 875 F.2d 143, 144 (7th Cir. 1989) ("No one has doubted for decades that residential burglary is a `violent' offense, because of the potential mayhem if burglar encounters resident."). The district court, therefore, did not err in concluding that appellant's conviction for burglary of a dwelling constituted a crime of violence for purposes of Sentencing Guidelines § 4B1.1. See United States v. Flores, 875 F.2d 1110, 1111-13 (5th Cir. 1989); Pinto, 875 F.2d at 144.
III.
Appellant's conviction is therefore
AFFIRMED.