U.S. v. Leonard, 88-1570

• Decision Date: 20 March 1989
• Docket Number: No. 88-1570,88-1570
• Citation: 868 F.2d 1393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mitchell Ray LEONARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1393

868 F.2d 1393

UNITED STATES of America, Plaintiff-Appellee, v. Mitchell Ray LEONARD, Defendant-Appellant.

No. 88-1570.

United States Court of Appeals Fifth Circuit.

March 20, 1989.

George V. Basham, III, Austin, Tex. (Court-appointed), for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, and HIGGINBOTHAM, Circuit Judges, and LITTLE ^*, District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Mitchell Ray Leonard pled guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). The district court enhanced his sentence pursuant to 18 U.S.C. Sec. 924(e)(1), which provides for a fifteen year minimum sentence for those who violate Sec. 922(g) and have three prior convictions for violent felonies. Leonard contends that the trial court erred by enhancing his sentence on the basis of his three Texas burglary convictions, and also argues that Sec. 924(e) constitutes an unconstitutional ex post facto law. We affirm the sentence imposed by the trial court.

I

Leonard was indicted for being a three-time convicted felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1). Pursuant to Leonard's motion, the trial court dismissed those portions of the indictment alleging a separate violation of Sec. 924(e)(1). The trial court correctly ruled that Sec. 924(e)(1) was a sentence enhancement provision rather than a separate offense. ¹ The government then noticed its intent to seek enhancement of Leonard's sentence pursuant to Sec. 924(e)(1) based on his three prior convictions for burglary in Texas.

Leonard pled guilty to possessing a firearm in violation of Sec. 922(g)(1), but moved to deny enhancement of his sentence under Sec. 924(e)(1) on grounds that his burglary convictions were not "violent felonies" as required by that provision. The parties stipulated that on August 8, 1975 and February 4, 1977, Leonard had been convicted of burglary of a habitation, and that on July 30, 1976, he had been convicted of burglary of a building. The government produced certified copies of these convictions. After a hearing, the trial court denied Leonard's motion. Leonard was later sentenced to fifteen years incarceration pursuant to Sec. 924(e)(1).

II

Leonard does not challenge his conviction under Sec. 922(g)(1). His sole contention on appeal is that the trial court erroneously enhanced his sentence pursuant to Sec. 924(e)(1).

Section 924(e)(1) provides, in relevant part, that:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

18 U.S.C. Sec. 924(e)(1) (Supp.1988) (emphasis added). "Violent felony" is defined at section 924(e)(2)(B), which reads:

[T]he 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.

18 U.S.C. Sec. 924(e)(2)(B) (Supp.1988) (emphasis added).

The trial court enhanced Leonard's sentence under Sec. 924(e)(1) based on his three Texas burglary convictions. Leonard argues that this was error.

Leonard contends that Sec. 924(e)(2)(B) defines as "violent felonies" only those offenses which involve actual or potential physical injury to others. He argues that since the offense of burglary in Texas includes a variety of non-violent crimes, not all Texas burglary convictions come within the purview of Sec. 924(e)(2)(B)(ii). ² He claims that the trial court erred by enhancing his sentence without first analyzing the specific conduct underlying his burglary convictions to determine whether they involved actual or potential physical injury to others.

The government responds that in Sec. 924(e)(2)(B)(ii) Congress made the determination that certain enumerated property crimes, including burglary, were offenses which involved potential physical injury to others. The government argues that the trial court need only consider such prior offenses in their generic sense, without looking to the underlying conduct to determine whether it involved the risk of violence.

We begin with the plain language of the statute. See United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). "If the statutory language is unambiguous, in the absence of a 'clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.' " Turkette, 452 U.S. at 580, 101 S.Ct. at 2527.

Section 924(e)(2)(B)(ii) defines "violent felony" as any crime that "is burglary, arson, or extortion ..., or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. Sec. 924(e)(2)(B)(ii) (emphasis added). We read the clear language of the statute to designate these enumerated property crimes as "violent felonies" for purposes of sentence enhancement, without regard to whether the underlying conduct involved actual or potential violence. The plain language of subsection (ii) reflects Congress' determination that these property crimes present an inherent risk of violence. Leonard's construction of the statute, that actual or potential violence must also be established, renders superfluous the language in the first clause of subsection (ii). We have held that " 'a statute should not be construed in such a way as to render certain provisions superfluous or insignificant.' " Woodfork v. Marine Cooks and Stewards Union, 642 F.2d 966, 970-71 (5th Cir.1981).

Two circuits have recently rejected similar challenges to sentence enhancement under Sec. 924(e)(1) based on the plain language of the statute. In United States v. Dickerson, 857 F.2d 414, 418-19 (7th Cir.1988), the Seventh Circuit rejected an appellant's argument that his three prior burglary convictions did not qualify as "violent felonies" because he was unarmed when he committed them. After reviewing the language of the statute, the court concluded:

It is clear from the language of the statute that all burglaries satisfy the prerequisites of Sec. 924. As the trial judge correctly noted, if Congress intended to include only crimes in which serious physical injury was involved, it would have worded the statute to say "burglary, arson, or extortion, and involves use of explosives or otherwise involves conduct that presents a serious risk of physical injury to another.

857 F.2d at 419 (emphasis in original).

Similarly, in United States v. Portwood, 857 F.2d 1221 (8th Cir.1988), the Eighth Circuit rejected appellants' claim that their prior convictions for second-degree burglary under Missouri law did not justify enhanced punishment under Sec. 924(e)(1). ³ While conceding that the definition of "violent felony" at Sec. 924(e)(2)(B) included "burglary," appellants argued that the meaning of that term was ambiguous since the statute did not define it. The court disagreed, stating:

[W]e find very little ambiguity on the face of the statute and, thus, no occasion to explore the legislative history. In our view, the statute says "burglary," and we take that to mean "burglary," however a state may choose to define it. 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 three 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 1223-24. Accord United States v. Taylor, 864 F.2d 625 (8th Cir.1989) (rejecting argument that second degree burglary is improper basis for sentence enhancement because, unlike first degree burglary, it involves no potential for violence).

We find further support for our conclusion in the Ninth Circuit's recent decision in United States v. Sherbondy, 865 F.2d 996 (9th Cir.1988). In that case, the Ninth Circuit considered whether a prior conviction for preventing or dissuading a witness from testifying qualified as a "violent felony." As part of its inquiry, the court considered whether that offense fell within the scope of Sec. 924(e)(2)(B)(ii) as a crime which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The court conducted an exhaustive inquiry into the legislative history of the statute to determine whether subsection (ii) contemplates an inquiry into the specific conduct underlying the prior conviction or whether the court should consider the offense only in its generic sense.

One conclusion we draw from our review of the legislative history is that Congress consistently discussed subsection (ii) in categorical terms: i.e., in terms of what offenses it would include. There is no indication that Congress intended that a particular statutory or common law crime would in some circumstances constitute a violent felony and in other circumstances not, depending upon how the offense was committed. The first part of subsection (ii) sets forth specific property offenses that Congress expressly wanted to cover: that part, like subsection (i), is clearly categorial; a burglar, for example, cannot claim as a defense that his or her particular conduct was non-violent.

865 F.2d at 1008.

The Ninth Circuit went on to...