U.S. v. McClenton, 94-1632

• Decision Date: 30 March 1995
• Docket Number: No. 94-1632,94-1632
• Citation: 53 F.3d 584
• Parties: UNITED STATES of America, Appellant v. Michael McCLENTON. . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 584

53 F.3d 584

UNITED STATES of America, Appellant v. Michael McCLENTON.

No. 94-1632.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a)

March 30, 1995.

Decided April 14, 1995.

Michael R. Stiles, Walter S. Batty, Jr., Robert A. Zauzmer, Maureen Barden, Office of U.S. Atty., Philadelphia, PA, for appellant.

Louis T. Savino, Jr., Louis T. Savino & Associates, Philadelphia, PA, for appellee.

Before: MANSMANN, COWEN and LEWIS, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

The government asks us to decide whether a hotel guest room constitutes a "dwelling," and therefore, whether a burglary of a hotel guest room may be considered a crime of violence for purposes of applying the career offender provision of the Sentencing Guidelines. Because the district court ruled that burglary of a hotel room was not the equivalent of burglary of a dwelling, McClenton was not sentenced as a career offender.

We hold that a hotel guest room, the sole purpose of which is to provide temporary lodging and a place to sleep, constitutes a dwelling within the meaning of Section 4B1.2 of the Sentencing Guidelines. Accordingly, we will vacate the district court's judgment of sentence and remand this matter for resentencing in accordance with our interpretation of the applicable Sentencing Guidelines.

I.

On August 5, 1993, Michael McClenton was convicted of conspiracy to commit bank robbery in violation of 18 U.S.C. Sec. 371; bank robbery in violation of 18 U.S.C. Sec. 2113(a); and armed bank robbery in violation of 18 U.S.C. Sec. 2113(d). On June 13, 1994, a sentencing hearing was held. The government asserted that McClenton should be sentenced as a career offender pursuant to Section 4B1.1 of the Guidelines because the presentence investigation revealed that McClenton had previously been convicted of felony burglary on three separate prior occasions. These three occasions involved the burglary or attempted burglary of hotel guest rooms. (PSI pp 34, 35, 37).

At the sentencing hearing, McClenton did not dispute that the factual summaries of these prior crimes, as set forth in the presentence report, were accurate. ¹ Rather, McClenton asserted that these were not burglaries of dwellings. Agreeing with McClenton, the district court ruled that the burglary of a hotel room is not the equivalent of the burglary of a dwelling, and therefore, Section 4B1.1's career offender provision did not apply. The court assigned McClenton a criminal history category of V. The combination of an offense level of 27 and a criminal history category of V produced a Guidelines range of 120 to 150 months. ² The court imposed a sentence of 144 months of imprisonment on Counts One through Three, to run concurrently. The district court imposed a term of five years of supervised release, restitution in the amount of $170,750 and a special assessment of $150.00. If McClenton had been sentenced as a career offender, he would have received a criminal history category of VI, an offense level of 34 and a corresponding Guidelines range of 262 to 327 months.

On May 23, 1994, McClenton filed his notice of appeal from the district court's judgment of conviction. ³ On June 13, 1994, the government filed this cross-appeal challenging the district court's determination not to sentence McClenton as a career offender.

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction to review McClenton's sentence pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(b)(2). We exercise plenary review over the district court's application and interpretation of the Sentencing Guidelines. United States v. Collado, 975 F.2d 985, 990 (3d Cir.1992); United States v. Murillo, 933 F.2d 195, 197 (3d Cir.1991).

II.

The starting point for our analysis is Section 4B1.1 of the Sentencing Guidelines. Section 4B1.1 provides that 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. Here it is undisputed that McClenton was at least eighteen years of age at the time of the bank robbery. Likewise, it is undisputed that the present offense, armed bank robbery, is a crime of violence. The sole issue in dispute is whether McClenton's three prior convictions for burglary qualify as "crimes of violence" within the meaning of Section 4B1.1.

Section 4B1.2(1) defines the term "crime of violence" and provides:

The term crime of violence means any offense under federal or state law 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 of a dwelling, ..., or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Guidelines Sec. 4B1.2(1) ⁴ (emphasis added). The district court, interpreting this provision, concluded that under the facts of this case, the burglaries of the hotel rooms were not the equivalent of burglaries of dwellings and, thus, were not crimes of violence. ⁵

III.

A "dwelling" is a "building or portion thereof, a tent, a mobile home, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." Blacks Law Dictionary 505 (6th ed. 1990) (emphasis added). ⁶ Adopting this definition, the Court of Appeals for the Eighth Circuit held that the structures used as shelters for weekend fishing retreats fell within Section 4B1.2(1) and could be considered dwellings. United States v. Graham, 982 F.2d 315 (8th Cir.1992) (citing Blacks Law Dictionary). A hotel guest room is intended for use as human habitation, albeit, in most circumstances, on a transient or temporary basis. Thus, a hotel guest room falls easily within this definition.

In United States v. Sherman, 928 F.2d 324 (9th Cir.1991), the Court of Appeals for the Ninth Circuit was asked to decide whether the burglary of the manager's office of a hotel was the equivalent of burglary of a dwelling. In a footnote, the court found that it was unnecessary to the resolution of that case to decide whether a burglary that takes place in a hotel office constituted a non-dwelling burglary. However, the court observed, "[B]ecause hotels are in the business of housing overnight guests many of the reasons that make traditional dwelling burglaries dangerous seem likewise present here." 928 F.2d at 326 n. 2.

The reasons that make traditional dwelling burglaries dangerous, and worthy of serious treatment at sentencing, have their origins in the common law. At common law, burglary was considered to be an offense against habitation rather than against property. The peace of mind and security of the residents was sought to be protected, rather than the property. See 85 A.L.R. 428 (1933). Obviously, whether one burglarizes a private home or a hotel room, there is a much greater possibility of confronting the resident and a substantial risk that force will be used and that someone will be injured, than if one burglarized a building that was not intended for use as habitation, such as an office building after office hours or a warehouse. We find that it is this element--the potential for confrontation and the substantial risk of harm--that the Guidelines intended for enhanced punishment under Section 4B1.2. See, e.g., United States v. Salmon, 944 F.2d 1106, 1129 (3d Cir.1990), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992) (burglary of a dwelling is crime of violence because there is substantial risk that force will be used or that person will be injured). See also United States v. Palmer, 871 F.2d 1202, 1209 (3d Cir.1989) (in context of Armed Career Criminal Act, 18 U.S.C. Sec. 924(e), burglary "presents a serious potential risk of physical injury to another."). Accord United States v. Gonzalez-Lopez, 911 F.2d 542, 548-49 (11th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991); United States v. Brunson, 907 F.2d 117, 120-21 (10th Cir.1990).

IV.

McClenton argues that even if we conclude that the burglary of a hotel room qualifies as the burglary of a dwelling as a legal matter, the facts support a different conclusion in this case because two of the hotel rooms McClenton burglarized or attempted to burglarize were unoccupied. ⁷ McClenton thus asserts that because no one was inhabiting these rooms, there was no one whose peace of mind and security was infringed. McClenton contends that a crime against property, not habitation, occurred and as such cannot be classified as a crime of violence.

We note that the Guidelines do not support the interpretation that McClenton suggests, and we must interpret the Guidelines as written. United States v. Wong, 3 F.3d 667 (3d Cir.1993). In enumerating "burglary of a dwelling" as a crime of violence in Section 4B1.2(1)(ii), the Guidelines do not distinguish between dwellings that are occupied, rather than unoccupied. Thus, we conclude that burglary of a dwelling is a crime of violence under the Guidelines whether or not there is anyone present in the dwelling at the time it is burglarized.

In assessing career offender status, the only issue we must decide is whether the prior convictions for burglary involved a dwelling. Because burglary of a dwelling is specifically enumerated in the Guidelines as a crime of violence, no further inquiry is warranted. The Sentencing Commission has adopted a categorical approach to the determination of whether an underlying offense is a "crime of violence" within section 4B1.2, deciding that any invasion of a place where people may reside presents an unacceptable risk of harm and must be classified as a...