U.S. v. Barney, s. 90-8094

Citation955 F.2d 635
Decision Date27 January 1992
Docket NumberNos. 90-8094,90-8101,s. 90-8094
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Fred Leon BARNEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clyde TROMBLEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

James H. Barrett of Cheyenne, Wyo., for defendant-appellant Barney.

Gay Woodhouse, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., and Maynard D. Grant, Sp. Asst. U.S. Atty., with her on the brief), Cheyenne, Wyo., for plaintiff-appellee in No. 90-8094.

Robert A. Hampe of Cheyenne, Wyo., for defendant-appellant Trombley.

Richard A. Stacy, U.S. Atty., and Gay Woodhouse, Asst. U.S. Atty., for plaintiff-appellee in No. 90-8101.

Before SEYMOUR and EBEL, Circuit Judges, and MATSCH, * District Judge.

SEYMOUR, Circuit Judge.

Fred Barney and Claude Trombley separately appeal sentences imposed pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (1988). 1 Each man was sentenced to serve 15 years in prison in accord with the enhancement provisions of the statute. Id. Both men contend that the district court erred in counting their Wyoming burglary convictions toward enhancement under section 924(e)(2)(B)(ii), arguing that the state burglary statutes under which they were convicted do not fall within the meaning of the word "burglary" in the ACCA. We vacate Mr. Barney's sentence, and remand for resentencing. We affirm Mr. Trombley's sentence.

I.

Both Mr. Barney and Mr. Trombley were convicted as felons in possession of firearms in violation of the ACCA. 18 U.S.C. § 922(g) (1988). A defendant convicted under this section is subject to imprisonment for not more than ten years. Id. § 924(a)(2). This sentence is subject to enhancement under section 924(e) if the defendant has had three prior convictions "for a violent felony or a serious drug offense, or both." Id. § 924(e)(1). The relevant statutory section defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year ... that-- ... (ii) is burglary...." Id. § 924(e)(2)(B).

In the instant cases, defendants' sentences were enhanced to fifteen years on the basis of three prior Wyoming convictions for burglary. In support of its motion for enhancement of Mr. Barney's sentence, the Government offered his convictions for two burglaries on September 2, 1980, and one burglary on October 17, 1985, 2 each based on a guilty plea. Rec supp. vol. I, doc. 34; Addendum to Brief of Appellee at exhibit 1, C, D. In support of enhancement of Mr. Trombley's sentence, the Government offered Mr. Trombley's convictions of burglary on April 1, 1983, and July 29, 1985, rec., vol. I, doc. 49, and of breaking and entering on September 16, 1966. Id. All of these crimes took place in Wyoming, and each conviction was supported by a guilty plea. Id.

II.

As a preliminary matter, this court has previously decided that review of sentence enhancement under section 924 is a legal issue subject to de novo review. United States v. Maines, 920 F.2d 1525, 1527 n. 4 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 263, 116 L.Ed.2d 216 (1991). We review the entire record and supporting documentation to determine the legitimacy of the sentences imposed below. The question common to both appeals is whether the enhancements were proper given the broad definition of burglary in the applicable Wyoming statutes, and the more narrow definition of burglary attached to the ACCA by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In approaching this question, we follow the analytic framework adopted by the Court in Taylor. Id. at 110 S.Ct. 2160.

The statute's use of the term "burglary" without definition is problematic. See United States v. Silkwood, 893 F.2d 245, 249-250 (10th Cir.1989) (defining burglary for purposes of the enhancement provision), cert. denied, 496 U.S. 908, 110 S.Ct. 2593, 110 L.Ed.2d 274 (1990). The statutory language led some circuits to conclude that any conviction denominated "burglary" by the convicting state could serve as a predicate for enhancement. See United States v. Leonard, 868 F.2d 1393, 1395 (5th Cir.1989), cert. denied, 496 U.S. 904, 110 S.Ct. 2585, 110 L.Ed.2d 266 (1990); United States v. Portwood, 857 F.2d 1221, 1223-1224 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2073, 104 L.Ed.2d 638 (1989). Consequently, those courts unfairly assessed whether a particular conviction could be used for enhancement purposes based on the label assigned to an offense rather than on its elements. See Taylor, 110 S.Ct. at 2153. In response to this danger, the Court in Taylor held that "a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 2158.

In determining whether a person has been convicted of a crime which may be counted toward enhancement under Taylor, a court must employ a "categorical approach," rather than inquire into underlying facts. Id. at 2159. This requires a comparison of the elements of the relevant state statute with the basic elements of burglary identified in the Taylor decision. Id. If the relevant statute is in substantial accord with the definition adopted in Taylor, the conviction may be used for enhancement purposes. If, however, the statute "define[s] burglary more broadly, e.g., by eliminating the requirement that the entry be unlawful, or by including places, such as automobiles and vending machines, other than buildings," then a conviction obtained under such a statute may not, except in narrowly defined circumstances, be counted toward enhancement. Id. at 2158-2160. Our first step therefore is to determine whether the statutes under which Mr. Barney and Mr. Trombley were convicted comport with the generic definition of burglary adopted by the Taylor court. See, e.g., Maines, 920 F.2d at 1528.

Both defendants' sentences were enhanced in part on the basis of Wyoming Statute section 6-7-201. Mr. Barney was convicted of two 1980 offenses under this statute and Mr. Trombley was convicted of a 1982 offense under this statute. The statute provides that:

"(a) Whoever, intentionally enters, or attempts to enter, any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than fourteen (14) years:

(i) Any building or dwelling; or

(ii) An enclosed railroad car; or

(iii) An enclosed portion of any automobile, vehicle, or aircraft; or

(iv) A locked enclosed cargo portion of a truck or trailer; or

(v) A room within any of the above."

Wyo.Stat. § 6-7-201 (1977). While this Wyoming statute contains the elements that make up the Taylor definition of burglary, it defines burglary more broadly than does Taylor. Consequently, convictions obtained under this statute may not, as a categorical matter, provide the basis for enhancement under the ACCA. See United States v. Payton, 918 F.2d 54, 55 (8th Cir.1990) (Iowa burglary statute, which included boats and railroad cars, too broad to count automatically toward enhancement under Taylor without further specific information).

Both men also had convictions under Wyoming Statute section 6-3-301 counted toward enhancement. Mr. Barney was convicted of a 1985 violation of section 6-3-301, and Mr. Trombley was convicted of a 1985 offense. This statute provides: "A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein." Wyo.Stat. § 6-3-301(a) (1988) (emphasis added). Consequently, this statute also defines burglary too broadly for a conviction obtained under its provisions to support enhancement under Taylor. Unauthorized entry of a vehicle with the requisite intent constitutes burglary under the Wyoming statute, but is not burglary within the definition adopted in Taylor. See 110 S.Ct. at 2158-2159.

Finally, the district court counted Mr. Trombley's 1966 conviction toward enhancement. The parties agree it is not clear from the order in the 1966 case which statute provided the basis for Mr. Trombley's conviction. The Government urges two potentially applicable statutes upon this court. Wyo.Stat. §§ 6-129, -130 (1957). Section 6-129 was succeeded by and included the same elements as section 6-7-201, discussed above, and is too broad for the same reasons. Similarly, section 6-130 is too broad because while it required unlawful breaking and entering it included railroad cars and did not require that the perpetrator harbor an intent to commit a separate crime. 3 Since both proffered statutes defined burglary more broadly than does Taylor, we reject the Government's contention that, purely as a categorical matter, the 1966 conviction was properly counted toward enhancement of Mr. Trombley's sentence.

III.

There is more to our analysis, however. Taylor allows "the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary." 110 S.Ct. at 2160.

"For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement."

Id. (emphasis added).

We join other circuits which have considered this question in holding that where enhancement is sought on the basis of a conviction obtained through a guilty plea, the sentencing court may look to the underlying...

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