U.S. v. Bennett, 96-5091

• Decision Date: 18 March 1997
• Docket Number: No. 96-5091,96-5091
• Citation: 108 F.3d 1315
• Parties: 97 CJ C.A.R. 413 UNITED STATES of America, Plaintiff-Appellee, v. Clanton T. BENNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1315

108 F.3d 1315

97 CJ C.A.R. 413

UNITED STATES of America, Plaintiff-Appellee, v. Clanton T. BENNETT, Defendant-Appellant.

No. 96-5091.

United States Court of Appeals, Tenth Circuit.

March 18, 1997.

Thomas Scott Woodward, First Assistant United States Attorney (Stephen C. Lewis, United States Attorney, Northern District of Oklahoma with him on the brief), Tulsa, Oklahoma for Plaintiff-Appellee.

Stephen J. Greubel, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender, Northern District of Oklahoma with him on the brief), Tulsa, Oklahoma for Defendant-Appellant.

Before PORFILIO, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendant Clanton T. Bennett appeals the district court's determination that he was a "career offender" for purposes of sentencing enhancement. Because it was unclear that Mr. Bennett's prior conviction for second-degree burglary was for a "crime of violence," the sentence must be vacated, and the case remanded for resentencing.

I. BACKGROUND

After pleading guilty to a single count of bank robbery under 18 U.S.C. § 2113(a), Mr. Bennett was sentenced to a prison term of 170 months. The district court enhanced the term of Mr. Bennett's sentence based on its determination that he was a "career offender," as defined in United States Sentencing Guidelines ("USSG") § 4B1.1. Section 4B1.1 requires, in pertinent part, that a career offender have "at least two prior felony convictions of ... a crime of violence." USSG Manual § 4B1.1 (1995).

The district court determined that two of Mr. Bennett's prior convictions (burglary in the second degree, and indecent lewd acts with a child under sixteen) constituted crimes of violence. On appeal, Mr. Bennett challenges the use of his second-degree burglary conviction as a predicate crime of violence. He does not contest the use of the indecent lewd acts conviction.

II. ANALYSIS

Whether a defendant was erroneously classified as a career offender is a question of law subject to de novo review. See United States v. Newsome, 898 F.2d 119, 120 (10th Cir.1990). "The government shall bear the burden of proof for sentence increases...." United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir.1990). Further, "we resolve any ambiguity in favor of narrowly interpreting the career offender provisions...." ...." United States v. Smith, 10 F.3d 724, 734 (10th Cir.1993).

In the USSG, a "crime of violence" is defined in part as an offense that "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." USSG Manual § 4B1.2 (1995). Of particular importance in this appeal is that, under the foregoing definition, "burglary of a dwelling" is a crime of violence. Id.

In determining whether a predicate offense qualifies as a crime of violence, courts in this circuit are limited to examining the statutory elements of the crime and the record of the prior proceeding. See United States v. Garcia, 42 F.3d 573, 576 (10th Cir.1994). The statutory elements of Mr. Bennett's second-degree burglary offense are defined as follows:

Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept ... with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree.

Okla. Stat. tit. 21, § 1435 (1991). Because this definition does not include physical force as an element, and does not require that the burglary be "of a dwelling," the statute leaves it unclear whether Mr. Bennett's conviction was for a crime of violence.

The record of Mr. Bennett's prior proceeding is similarly ambiguous. In examining such a record, a sentencing court may look to "the charging papers, judgment of conviction, plea agreement or other statement by the defendant for the record, presentence report adopted by the court, and findings by the sentencing judge." Smith, 10 F.3d at 734.

The parties agree that the record does not include a presentence report, a transcript of court proceedings, or findings by the judge. Whether such documents never existed, or were lost after their creation, is unclear.

From the burglary proceeding, only the information, plea agreement, and judgment of conviction are available. The judgment of conviction is unrevealing, but the information and plea agreement are more instructive. They indicate that Mr. Bennett was initially charged with first-degree burglary and that he later pled to the lesser offense of second-degree burglary. Suppl. rec., def.'s ex. B-1 at 1 (Information dated Feb. 12, 1985), pl.'s ex. 1 at 4 (Plea agreement dated May 1, 1985).

The information charged Mr. Bennett with first-degree burglary as follows:

On or about the 9th day of February, 1985, A.D., the crime of burglary in the first degree was feloniously committed in Oklahoma County, Oklahoma, by Clanton Thomas Bennett who wilfully and knowingly broke and entered 805 SW 28th OKC, Oklahoma, a dwelling house which was in the possession and was under the control of Roger W. King, by entering through the east bedroom window while Roger W. King was present, with the intent to commit a crime therein, contrary to the provisions of section 1431 of Title 21 of the Oklahoma Statutes and against the peace and dignity of the State of Oklahoma.

Suppl. rec., def.'s ex. B-1 at 1. This language clearly charged Mr. Bennett with a crime of violence: the statutory definition of first-degree burglary requires that the burglary be of a "dwelling." Okla. Stat. tit. 21, § 1431. The first-degree burglary statute provides in relevant part: "Every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein ... is guilty of burglary in the first degree." Id.

The fact that Mr. Bennett was charged with a crime of violence, however, is not dispositive for sentencing purposes. The commentary accompanying USSG § 4B1.2 makes plain: "[T]he conduct of which the defendant was convicted [not charged] is the focus of the inquiry." USSG Manual § 4B1.2 cmt. (n.2) (emphasis added). The record of the prior proceeding does not indicate how the wording of the information was amended when Mr. Bennett's charge was reduced from first- to second-degree burglary. Thus whether the word "dwelling" was deleted is unclear.

During the sentencing in federal court, the district judge expressed his opinion that the information could have been lawfully amended only by deleting the words "while Roger W. King was present." The district judge presumed that the information was amended lawfully, and that the quoted words were in fact eliminated. Because such an amendment would have left the word "dwelling" in the information, the district judge concluded that Mr. Bennett was convicted of a crime of violence, and sentenced him as a career offender. See Rec. vol. III at 13-14 (Transcript of sentencing on Mar. 26, 1996).

On appeal, Mr. Bennett argues that the district court was not permitted to speculate about matters unstated in the record of the...