U.S. v. Davis

Decision Date10 February 1994
Docket NumberNo. 92-1357,92-1357
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edward DAVIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Barry R. Elden, Asst. U.S. Atty., John J. Tharp, Jr. (argued), Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Carol A. Brook, Mary M. Rowland (argued), Office of the Federal Defender Program, Chicago, IL, for defendant-appellant.

Before BAUER, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Edward Davis was convicted of possessing a firearm in violation of 18 U.S.C. Sec. 922(g)(1). He now appeals the district court's enhancement of his sentence under the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. Sec. 924(e). Mr. Davis submits that attempted burglary under Illinois law, which served as a predicate offense for the district court's enhancement of his sentence, is not a "violent felony" as defined in Sec. 924(e)(2)(B)(ii). We cannot accept this argument and, accordingly, affirm the judgment of the district court.

I BACKGROUND

On September 10, 1991, Mr. Davis was convicted of being a convicted felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1); he was also convicted of possessing an unregistered firearm in violation of 26 U.S.C. Secs. 5861(d), 5872. Under the United States Sentencing Guidelines, Mr. Davis was subject to a sentence of approximately five years. However, because Mr. Davis had been convicted of four previous felonies, the government moved for enhancement under Sec. 924(e) of the ACCA, which mandates a sentence of not less than fifteen years. The four prior convictions, all of which occurred in Illinois, were as follows: (1) a 1978 burglary conviction; (2) a 1979 burglary conviction; (3) a 1982 attempted burglary conviction; and (4) a 1985 residential burglary conviction. Mr. Davis challenged the use of all but the 1985 conviction for Sec. 924(e) purposes.

On February 7, 1993, the district court agreed with the government and sentenced Mr. Davis to fifteen years under the ACCA. Although it determined that the plea hearing held in conjunction with the 1978 conviction did not satisfy constitutional standards, the district court held that the other three convictions were violent felonies that could serve as predicates for enhancement under Sec. 924(e). In so holding, the district court concluded that the 1982 conviction for attempted burglary was a "violent felony" as that term is defined in the ACCA. Section 924(e) of the ACCA provides in relevant part:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be (2) As used in this subsection--

fined not more than $25,000 and imprisoned not less than fifteen years....

....

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that--

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

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

On appeal, Mr. Davis does not contest the underlying conviction under Sec. 922(g)(1). Instead, he submits that a previous conviction for attempted burglary under Illinois law does not constitute a predicate "violent felony" for purposes of sentence enhancement under Sec. 924(e) of the ACCA. The government, on the other hand, argues that such a conviction falls under the "otherwise" clause of Sec. 924(e)(2)(B)(ii). 1 Because the issue is one of law, we review the district court's interpretation of Sec. 924(e) de novo. See United States v. White, 997 F.2d 1213, 1215 (7th Cir.1993).

II DISCUSSION
A. Governing Principles

Although the issue of whether an attempted burglary under Illinois law constitutes a violent felony for purposes of Sec. 924(e) is one of first impression in this circuit, the general issue of whether attempted burglary can serve as a predicate offense is hardly a novel question. Eight circuits have addressed the same question in the context of other state statutory definitions of attempted burglary, and those cases provide useful guidance for our own inquiry.

One of the first circuits to address the issue was our neighbor to the east, the Sixth Circuit. In United States v. Lane, 909 F.2d 895, 903 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991), it concluded that attempted burglary in Ohio falls under the "otherwise" clause of Sec. 924(e)(2)(B)(ii) because it is a "crime which 'involves conduct that presents a serious potential risk of physical injury to another.' " The court based its conclusion on the fact that the Ohio burglary statute requires the actual or likely presence of a person in the burglarized structure. It also read the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 2152-53, 109 L.Ed.2d 607 (1990), as recognizing that burglary involves "an inherent potential for harm to persons." Lane, 909 F.2d at 903. Thus, the court stated that attempted burglary, which it did not believe diminished this risk of injury, should also be treated as a violent felony:

The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate. The fact that [the defendant] did not complete the burglary offense does not diminish the serious potential risk of injury to another arising from an attempted burglary.

Id. (citations omitted). 2 In United States v. Payne, 966 F.2d 4 (1st Cir.1992), the First Circuit reached the same result in concluding that attempted breaking and entering under Massachusetts law is a Sec. 924(e) violent felony. Noting that the Sixth Circuit had already addressed the issue in Lane, Judge Campbell wrote [T]he risk of injury arises, not from the completion of the break-in, but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring. This is just as likely to happen before the defendant succeeds in breaking in as after. Indeed, the possibility may be at its peak while the defendant is still outside trying to break in, as that is when he is likely to be making noise and exposed to the public view.

Id. at 8 (citing Lane, 909 F.2d at 903). The First Circuit stated that the Massachusetts law of attempt made it "very unlikely that a defendant could be convicted of attempted breaking and entering without coming close enough to the intended premises to risk a confrontation." Id. at 9. The Third Circuit soon followed suit when, like the First Circuit, it determined in United States v. O'Brien, 972 F.2d 47, 51 (3d Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 210, 126 L.Ed.2d 166 (1993), that attempted breaking and entering at night, also under Massachusetts law, constitutes a Sec. 924(e) violent felony. The court noted the Sixth Circuit's decision in Lane and relied heavily upon the First Circuit's decision in Payne in concluding that there was no meaningful distinction with respect to the serious potential risk of harm to another between the completed offense of breaking and entering and the inchoate offense at issue in that case. Id.

Several other circuits have agreed with and followed this line of cases. See, e.g., United States v. Andrello, 9 F.3d 247, 249-50 (2d Cir.1993) (per curiam) (holding that third degree attempted burglary under New York law, which requires "dangerous proximity" to completion, constitutes a violent felony under Sec. 924(e)) petition for cert. filed, (Jan. 12, 1994) (No. 93-7448); United States v. Custis, 988 F.2d 1355, 1364 (4th Cir.) (holding that attempted breaking and entering under Maryland law constitutes violent felony under Sec. 924(e)), cert. granted in part, --- U.S. ----, 114 S.Ct. 299, 126 L.Ed.2d 248 (1993); 3 United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993) ("For the same reasons [set forth in Custis ], we hold that [the defendant's] conviction under New Jersey law for attempted burglary qualifies as a violent felony under Sec. 924(e)."), cert. denied, --- U.S. ----, 114 S.Ct. 1194, 127 L.Ed.2d 543 (1994); United States v. Solomon, 998 F.2d 587, 589-90 (8th Cir.) (holding that attempted burglary under Minnesota law, which requires a "substantial step" toward completion, constitutes a violent felony under Sec. 924(e)), cert. denied, --- U.S. ----, 114 S.Ct. 639, 126 L.Ed.2d 598 (1993). 4

Although he recognizes this adverse caselaw, Mr. Davis invites our attention to cases in which other circuits have reached seemingly different results on this issue. These cases have been considered by several of the courts whose decisions we have just canvassed and, like those courts, we find these holdings inapposite to the situation before us. In United States v. Martinez, 954 F.2d 1050, 1053 (5th Cir.1992), the Fifth Circuit held that attempted burglary under Texas law does not constitute a violent felony under the "otherwise" clause of Sec. 924(e)(2)(B)(ii). The court gave two reasons for its holding. First, it stated that if Congress had wished to include attempted burglary in Sec. 924(e), it could have done so expressly; Congress had, after all, expressly included burglary. Id. Second, the court rejected the assertion that attempted burglary under Texas law presents the same degree of danger as burglary. Under the Texas law of attempt, a defendant need only take steps " 'which tend to effect the commission of a burglary.' " Id. (quoting Molenda v. State, 715 S.W.2d 651, 653 (Tex.Crim.App.1986)). According to Martinez, a defendant thus may be convicted of attempted burglary in Texas...

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