U.S. v. Taylor, s. 90-2844

Decision Date01 May 1991
Docket NumberNos. 90-2844,90-2842,s. 90-2844
Citation932 F.2d 703
PartiesUNITED STATES of America, Appellee, v. Arthur Lajuane TAYLOR, Appellant. UNITED STATES of America, Appellee, v. Jackie L. BANKS, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

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

R. Thomas Day of St. Louis, Mo., for appellant Banks.

Richard L. Poehling of St. Louis, Mo., for appellee.

Before LAY, Chief Judge, FRIEDMAN, * Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

Under 18 U.S.C. Sec. 924(e)(1), the sentence of a person convicted of violating 18 U.S.C. Sec. 922(g)(1) (possession of a firearm by a previously convicted felon) is enhanced if the person has three previous convictions for a "violent felony," which the statute defines to include "burglary". See 18 U.S.C. Sec. 924(e)(2)(B)(ii). The question in these two appeals, which we decide in a single opinion, is whether the district court correctly held that prior burglary convictions of each appellant in Missouri state courts were for "burglary" under Sec. 924(e).

In a prior appeal in one of these cases, the Supreme Court held that burglary is used in that section in the "generic" sense of "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). In each of these cases, the district court held that the appellants' burglary convictions were for a crime that constituted "generic" burglary under the Supreme Court test and the court, therefore, imposed an enhanced sentence on each appellant. We affirm.

I.
A. United States v. Taylor.

1. Following Taylor's guilty plea in the United States District Court for the Eastern District of Missouri to possession of a firearm by a convicted felon (18 U.S.C. Sec. 922(g)(1)), the district court imposed an enhanced sentence under 18 U.S.C. Sec. 924(e) of 15 years imprisonment without possibility of parole, based on Taylor's four prior felony convictions. Two of these were for second-degree burglary under Missouri law.

On appeal, Taylor challenged only his enhanced sentence. This court affirmed. United States v. Taylor, 864 F.2d 625 (8th Cir.1989). The court rejected Taylor's contention that second-degree burglary was not a "violent" felony under Missouri law for purposes of 18 U.S.C. Sec. 924(e), ruling that "burglary" in the sentence enhancement statute means "burglary however a state chooses to define it." 864 F.2d at 627 (quoting United States v. Portwood, 857 F.2d 1221, 1224 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2073, 104 L.Ed.2d 638 (1989)).

2. The Supreme Court vacated our judgment of affirmance and remanded the case. The Court first rejected this court's definition of burglary as covering any offense a state designated as burglary, because "[i]t seems to us to be implausible that Congress intended the meaning of 'burglary' for purposes of Sec. 924(e) to depend on the definition adopted by the State of conviction." --- U.S. at ----, 110 S.Ct. at 2154. It ruled that " 'burglary' in Sec. 924(e) must have some uniform definition independent of the labels employed by the various States' criminal codes." --- U.S. at ----, 110 S.Ct. at 2155. On this aspect of the case, the Court concluded that:

Congress meant, by "burglary," the generic sense in which the term is now used in the criminal codes of most States.

Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into or remaining in a building or other structure, with intent to commit a crime.

....

We conclude that a person has been convicted of burglary for purposes of a Sec. 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.

--- U.S. at ----, 110 S.Ct. at 2158 (citation and footnote omitted).

The Court then turned to the application of this standard to Taylor's case. It noted that a few states had defined burglary more broadly than its generic form, and that "[o]ne of Missouri's second-degree burglary statutes in effect at the times of petitioner Taylor's convictions included breaking and entering 'any booth or tent, or any boat or vessel, or railroad car.' Mo.Rev.Stat. Sec. 560.070 (1969) (repealed)." --- U.S. at ----, 110 S.Ct. at 2159. It ruled that where a defendant "has been convicted under a nongeneric-burglary statute, the Government may [not] seek enhancement on the grounds that he actually committed a generic burglary," and that "Sec. 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." --- U.S. at ----, 110 S.Ct. at 2159, (footnote omitted).

The Court ruled that Sec. 924(e)(2)(B)(ii) "generically requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." --- U.S. at ----, 110 S.Ct. at 2160 (footnote omitted). It stated:

We therefore hold that an offense constitutes "burglary" for purposes of a Sec. 924(e) sentence enhancement if either its statutory definition substantially corresponds to "generic" burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.

In Taylor's case, most but not all the former Missouri statutes defining second-degree burglary include all the elements of generic burglary. See n. 1, supra. Despite the Government's argument to the contrary, it is not apparent to us from the sparse record before us which of those statutes were the bases for Taylor's prior convictions. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

--- U.S. at ----, 110 S.Ct. at 2160.

3. On the remand, the district court affirmed the enhanced sentence originally imposed.

                The court rejected Taylor's contention that "because the records of the convictions do not themselves specify the statutes under which defendant was charged, plaintiff is unable to establish the statutes upon which his burglary convictions were based."    United States v. Taylor, No. 87-147CR(1), slip op. at 3 (E.D.Mo. Oct. 18, 1990)
                

The court pointed out that "the charging instruments themselves support conclusions as to which statutes governed the convictions. The 1963 information charged defendant with breaking and entering a dwelling house with the felonious intent to steal property belonging to the owner and resident," conduct which, the court concluded, "could have been charged only" under two Missouri statutes, "both of which applied to dwellings." Id. at 3-4. The court reached a similar conclusion regarding Taylor's 1972 conviction "on the charge of breaking and entering the shop building of a service station with the intent to steal goods inside," a charge which, the court concluded, "could only have been brought under" another Missouri statute "which involved burglaries of buildings other than dwellings." Id. at 4. The court held that these three Missouri statutes all dealt with generic burglary for sentence enhancement purposes.

The court also rejected Taylor's alternative contention that the lack of any jury instructions precluded sentencing enhancement. The court pointed out that there were no such instructions because Taylor had pleaded

guilty to both the 1963 and 1971 charges of second degree burglary. This possibility was not addressed by the Supreme Court in its opinion in the case, but this Court can hardly believe that the Supreme Court intended that the necessary lack of jury instructions in such a case would preclude the sentencing court's examination of the charge to which the defendant pled guilty to determine whether the elements of generic burglary were present. The elements being present in both charges, and the defendant having pled guilty to both crimes, the Court thinks there exists more than abundant foundation for a determination that both the 1963 and 1972 second degree burglary convictions constitute burglary within the meaning of Sec. 924(e) as delimited by the Supreme Court.

Id. at 4-5.

B. United States v. Banks.

Following Banks' conviction in the United States District Court for the Eastern District of Missouri of being a felon in possession of a firearm, the court enhanced the sentence based upon Banks' three convictions for burglary under Missouri law. On appeal, we affirmed the conviction, but vacated the sentence and remanded the case for further proceedings in light of the Supreme Court's decision in Taylor, which was rendered while Banks' appeal was pending. United States v. Banks, 915 F.2d 1576 (8th Cir.1990) (unpublished).

We noted that two of Banks' three burglary convictions were in 1984, "when second degree burglary in Missouri was defined by a single statute clearly meeting the Taylor standards," but that Banks' third burglary conviction was in 1973 "when Missouri had seven different statutes under which a person could be charged with second degree burglary. The record does not disclose which of those former statutes was the basis for Banks' 1973 conviction.... Having found nothing in the record to satisfy us that Banks' 1973 conviction meets the Taylor standards, we must remand to the district court for further findings on this matter." Id. at 3 (footnotes omitted).

On remand, the district court adhered to its prior sentence. It noted that although the record of Banks' 1973 conviction contained no statutory reference and there were no jury instructions since Banks pleaded guilty,

the charging information in the case alleged that...

To continue reading

Request your trial
12 cases
  • U.S. v. McCall
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 15 Marzo 2006
    ...remanded for resentencing in light of Taylor. See United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992); United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 882, 112 S.Ct. 232, 116 L.Ed.2d 188 LAY, with whom WOLLMAN and BYE, Circuit Judges, join, dissenting......
  • U.S. v. Bonat
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Febrero 1997
    ...may consider uncontested current presentence report to determine if defendant was charged with a violent felony); United States v. Taylor, 932 F.2d 703, 709 (8th Cir.), cert. denied, 502 U.S. 882, 112 S.Ct. 232, 116 L.Ed.2d 188 (1991) (district court may rely on transcript from the guilty p......
  • U.S. v. Hill
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 23 Diciembre 1997
    ...plea, to the plea agreement or transcript, in order to determine if the conviction was for 'generic' ... burglary"); United States v. Taylor, 932 F.2d 703, 708 (8th Cir.), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991) (noting that the absence of jury instructions in guil......
  • U.S. v. Smith
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 24 Marzo 1999
    ...guilty, though the papers did not include a reference to the specific section of the state burglary statute. See United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991). On appeal from the remand, we held that it was appropria......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT