U.S. v. Blahowski, 01-3302.

• Decision Date: 04 April 2003
• Docket Number: No. 02-2973.,No. 01-3930.,No. 01-3302.,01-3302.,01-3930.,02-2973.
• Citation: 324 F.3d 592
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Joseph BLAHOWSKI, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Michael Allen Francisco, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ramon Emilio Rascon, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

324 F.3d 592

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Joseph BLAHOWSKI, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Michael Allen Francisco, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Ramon Emilio Rascon, Defendant-Appellant.

No. 01-3302.

No. 01-3930.

No. 02-2973.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2002.

Submitted: October 30, 2002.

Filed: April 4, 2003.

Rehearing and Rehearing En Banc Denied: May 23, 2003.^*

Virginia G. Villa, argued, Asst. Federal Public Defender, Minneapolis, MN, for appellants Blahowski and Francisco.

Appellant Rascon's appeal was submitted on the briefs without oral argument. Andrew H. Mohring, Asst. Federal Public Defender, Minneapolis, MN, submitted appellant Rascon's brief.

Joseph T. Dixon, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.

Assistant U.S. Atty., Lisa A. Biersay submitted the brief in the Rascon matter.

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Daniel Blahowski, Michael Francisco, and Ramon Rascon appeal the sentences imposed on them pursuant to their guilty pleas. These appeals arose out of unrelated events. Blahowski pleaded guilty to possessing more than fifty grams of methamphetamine with intent to distribute, under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (2000), Francisco pleaded guilty to unarmed bank robbery, under 18 U.S.C. § 2113(a) (2000), and Rascon pleaded guilty to being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1) (2000). Each appellant was sentenced as a career offender under U.S.S.G. § 4B.1. In each case, the district court's¹ application of the career offender enhancement was predicated on at least one conviction for burglary of a commercial building, which under United States v. Hascall, 76 F.3d 902 (8th Cir.1996), satisfies the definition of a "crime of violence" under Guideline § 4B1.2. We have consolidated these appeals because each raises the same issue: did amendment 568 (1997) to the Sentencing Guidelines reject our conclusion in Hascall and require the district court to examine the defendant's actual conduct that formed the evidentiary basis for his prior conviction for burglary of a commercial building in order to determine whether that burglary conviction constitutes a crime of violence under § 4B1.2? We conclude that it did not and affirm the sentences imposed by the district courts.

I.

Daniel Blahowski was charged with both possession with intent to distribute methamphetamine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and distribution of methamphetamine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) following his arrest on March 26, 2001. He pleaded guilty only to the possession count. The government argued that Blahowski should be sentenced as a career offender under Guideline § 4B1.1 based on two predicate offenses: a 1989 felony conviction in Wisconsin for delivery of a controlled substance and a 1990 conviction in South Dakota for third-degree burglary of a jewelry store. Blahowski argued that although burglary of a commercial building is categorically treated as a crime of violence in this Circuit, his burglary offense did not involve any actual violence and should not be treated as such. The district court disagreed, concluded that these convictions required it to treat Blahowski as a career offender, and sentenced him to 188 months.

Michael Francisco pleaded guilty to a charge under 18 U.S.C. § 2113(a) for the robbery of the Twin City Federal National Bank in Crystal, Minnesota on May 17, 2001. At sentencing, the government did not request that Francisco be sentenced as a career offender, since it had overlooked the possibility that the career offender guideline might apply when it formulated its plea agreement with Francisco. The district court nevertheless applied § 4B1.1 to Francisco on the basis of his prior convictions in Minnesota for second-degree burglary of a gas station and third-degree burglary of a local business and sentenced him to 151 months.

Ramon Rascon pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) following the sale of a firearm to an undercover police officer in Raymond, Minnesota on August 1, 2001. At sentencing, the government sought to classify Rascon as a career offender on the basis of several convictions, including one conviction for an attempted third-degree burglary of a local business in Minnesota. At the time of sentencing, Blahowski's and Francisco's appeals were already before this court. The district court applied the career offender guideline to Rascon, finding his attempted burglary conviction to be a crime of violence, and sentenced Rascon to ninety-two months. On October 30, 2002, we consolidated the Rascon appeal with Blahowski and Francisco.

II.

In United States v. Hascall, 76 F.3d 902, 906 (8th Cir.1996), we held that burglary of a commercial building is a "crime of violence" as defined in § 4B1.2. We observed that this Guideline specifically designates "burglary of a dwelling" as a crime of violence, but does not refer to burglary of a commercial building. U.S.S.G. § 4B1.2(1)(ii). Nevertheless, we recognized that the clause in § 4B1.2 defining a crime of violence as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" contained identical language to the definition of "violent felony" under 18 U.S.C. § 924(e)(B)(ii) of the Armed Career Criminal Act. Hascall, 76 F.3d at 904. We had previously held that attempted second-degree burglary posed a serious risk of physical injury under this definition in section 924(e). Id. (citing United States v. Solomon, 998 F.2d 587, 590 (8th Cir.1993)). Since there was no reason to conclude that these two identically worded clauses had different meanings, and since burglary of a commercial building posed at least as serious if not greater risk of physical injury than attempted second-degree burglary, we concluded that burglary of a commercial building was a crime of violence under the "otherwise clause" of § 4B1.2(1)(ii) of the Sentencing Guidelines. Id. The evidentiary facts specific to a defendant's actual conduct in the course of committing a burglary are irrelevant in determining whether that conviction is a predicate offense under the career offender guideline. We have since followed Hascall on a number of occasions. United States v. Stevens, 149 F.3d 747, 749 (8th Cir.1998) ("the burglary of non-residential property qualifies as a crime of violence"); United States v. Nation, 243 F.3d 467, 471, n. 1 (8th Cir.2001) (stating that burglary of a commercial building is a crime of violence under Hascall); United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir.2002), cert. denied ___ U.S. ___, 123 S.Ct. 246, 154 L.Ed.2d 103 (2002) ("We have already held that burglary of a commercial building is a crime of violence within the meaning of § 4B1.2(a)"); United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir.2002) ("burglary of commercial property is a crime of violence in this Circuit").²

Here, the appellants do not ask that we overrule our decision in Hascall but argue that we are not bound to follow Hascall in light of amendment 568, effective November 1, 1997, which amended the application notes governing § 4B1.2. The appellants contend that this amendment introduced for the first time language that states: "[t]herefore, in determining whether an offense is a crime of violence or a controlled substance offense for the purposes of § 4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of which the defendant was convicted) is the object of inquiry." Amendment 568, U.S.S.G.App. C (adopted Nov. 1, 1997). They claim that this language requires the sentencing court to examine the specific evidence of the defendant's actual conduct during the course of committing the particular commercial burglary used as a predicate offense, in order to determine whether the defendant engaged in conduct that posed a serious potential risk of physical injury to another. Furthermore, appellants claim that since the commentary to the Sentencing Guidelines binds the federal courts in the same way as agency regulations, Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), an amendment to that commentary in the application notes represents a change in the underlying law and requires us to apply the amended version of the commentary in lieu of any inconsistent precedent. Cf. United States v. Hanna, 153 F.3d 1286, 1288 (11th Cir.1998) (stating that a change in statutory law is sufficient grounds for overruling the decision of a previous panel); Davis v. Estelle, 529 F.2d 437, 441 (5th Cir.1976) (same).

We reject the appellants' argument because the 1997 amendments to the Guidelines commentary did not materially alter the application notes as they existed when we decided Hascall and thus do not provide grounds for overruling that decision. Before 1997, application note 2 to § 4B1.2 read in part:

Other offenses are included [as crimes of violence] where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted... by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of inquiry.

(Emphasis added). In 1997, amendment 568 incorporated the language above into the second paragraph of a new version of application note 1 to § 4B1.2, with the exception of the last sentence. After this amendment, the version of application note 3³ upon which the defendants rely reads in part:

"Section 4B1.1 (Career Offender) expressly provides that the instant and prior offenses must be crimes of violence or...