864 F.2d 625 (8th Cir. 1989), 88-1408, United States v. Taylor

Docket Nº:88-1408.
Citation:864 F.2d 625
Party Name:UNITED STATES of America, Appellee, v. Arthur Lajuane TAYLOR, Appellant.
Case Date:January 04, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 625

864 F.2d 625 (8th Cir. 1989)

UNITED STATES of America, Appellee,

v.

Arthur Lajuane TAYLOR, Appellant.

No. 88-1408.

United States Court of Appeals, Eighth Circuit

January 4, 1989

Submitted Sept. 19, 1988.

Rehearing and Rehearing En Banc Denied March 7, 1989.

Bruce D. Livingston, St. Louis, Mo., for appellant.

David M. Rosen, St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

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McMILLIAN, Circuit Judge.

Arthur Lajuane Taylor pleaded guilty in the District Court 1 for the Eastern District of Missouri to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). The district court enhanced Taylor's sentence under 18 U.S.C. Sec. 924(e)(1) because of his previous felony convictions and sentenced him to fifteen years in prison with no possibility of probation or parole. For reversal, Taylor argues that the district court erred in considering his prior convictions for burglary in the second degree under Missouri law for purposes of the sentence enhancement provisions of 18 U.S.C. Sec. 924(e)(1). For the reasons discussed below, we affirm the sentence imposed by the district court.

Taylor appeals only from the imposition of the enhanced sentence. 2 Because the imposition of the sentence arose out of a guilty plea pursuant to a plea agreement, there are no disputed factual issues. The issue on appeal is one of law only.

We have recently considered the issue of whether burglary in the second degree is a "violent felony" in United States v. Portwood, 857 F.2d 1221 (8th Cir.1988) and United States v. Black, 857 F.2d 1221 (8th Cir.1988) (consolidated for appeal, hereinafter Portwood ). The reasoning of Portwood applies with equal weight to this case.

The sentence enhancement provisions of 18 U.S.C. Sec. 924(e) come into play when one who has been convicted under 18 U.S.C. Sec. 922(g)(1) has three previous convictions for either a "violent felony or a serious drug offense, or both." 18 U.S.C. Sec. 924(e)(1). The statute defines "violent felony" as "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.

18 U.S.C. Sec. 924(e)(2)(B).

Burglary in the second degree is defined in the Missouri Revised Statutes as:

knowingly enter[ing] unlawfully or knowingly remain[ing] unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.

Mo.Rev.Stat. Sec. 569.170.1.

As a felony, burglary in the second degree is punishable by imprisonment for a term of more than one year. Mo.Rev.Stat. Sec. 556.016.2. The Missouri statutory definition of burglary in the second degree falls squarely within the crimes delineated in 18 U.S.C. Sec. 924(e) as predicate crimes which are to be considered for sentence enhancement purposes.

Taylor argues, however, that burglary in the second degree is not a "violent felony ... that ... involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. Sec. 924(e)(2)(B). The gist of his argument is that Missouri law distinguishes between burglary in the first degree which involves the potential for violence and burglary in the second degree which does not. According to Taylor, if any burglary presents a risk of potential injury to an innocent person, it automatically triggers the application of the more serious charge of burglary in the first degree. Mo.Rev.Stat. Sec. 569.160.1(3). In contrast, a charge of burglary in the second degree is triggered when a burglary of an empty building occurs. Mo.Rev.Stat. Sec. 569.170. Taylor argues that such a burglary carries with it no potential for violence since there is no one present who can be harmed during the commission of the offense. As such, he argues that burglary in the second

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degree cannot be a "violent felony" in the sense that Congress intended when it enacted 18 U.S.C. Sec. 924(e)(2)(B).

In response to an argument identical to the one posed by Taylor, we held in Portwood that "burglary" in the sentence enhancement statute means "burglary" however a state chooses to define it. We stated that:

Congress could quite reasonably conclude that no matter what the felon's intent upon breaking in, the property owner may return, a neighbor may investigate, or a law enforcement official may respond. All of these scenarios present a grave threat of harm to persons. A person with ... prior convictions for burglary, regardless of the details of each burglary, presents the type of potential threat to society that Congress sought to control by the enactment of Sec. 924(e).

857 F.2d at 1224. Based on the reasoning of Portwood, we hold that the district court did not err in...

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