U.S. v. Bonat

• Decision Date: 14 February 1997
• Docket Number: No. 95-10556,95-10556
• Citation: 106 F.3d 1472
• Parties: 97 Cal. Daily Op. Serv. 1047, 97 Daily Journal D.A.R. 1547 UNITED STATES of America, Plaintiff-Appellee, v. Richard BONAT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1472

106 F.3d 1472

97 Cal. Daily Op. Serv. 1047, 97 Daily Journal

D.A.R. 1547

UNITED STATES of America, Plaintiff-Appellee, v. Richard BONAT, Defendant-Appellant.

No. 95-10556.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 8, 1996.

Decided Feb. 14, 1997.

John E. Charland, Phoenix, Arizona for defendant-appellant.

Frederick A. Battista, Assistant United States Attorney, Phoenix, Arizona for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CR 94-00367-PGR.

Before: HUG, Chief Judge, REAVLEY ^* and LEAVY, Circuit Judges.

HUG, Chief Judge:

Richard Leno Bonat appeals his sentence enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Bonat claims that the three prior burglary convictions the district court relied upon in determining the ACCA applied were not violent felonies, thus the ACCA is not applicable to him and his sentence should be reduced. Bonat's primary contention is that the district court improperly considered the transcript from the plea proceedings of two of his convictions to determine that he pled guilty to generic burglary. We hold that examining the plea transcript was not an impermissible factual inquiry and therefore the district court properly considered the transcript. Bonat also claims that both the ACCA and 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) are unconstitutional exercises of the commerce clause power, and that his 15-year sentence was unconstitutionally disproportionate to the crime he committed. We have jurisdiction under 28 U.S.C § 1291 and 18 U.S.C. § 3742 and affirm.

I.

On September 21, 1993, detectives from the Chandler, Arizona police department went to an apartment in Mesa, Arizona with the intention of interviewing an individual, other than Bonat, concerning a drug investigation. After several knocks on the apartment door, Bonat emerged. During the ensuing discussion one of the officers noticed a handgun in Bonat's waistband. The officers confiscated the gun, and after learning that Bonat was a felon, arrested him and charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Government sought a sentence enhancement for this charge pursuant to 18 U.S.C. § 924(e) because Bonat had three previous burglary convictions which the Government contended were violent felonies. On August 30, 1995, in the District of Arizona, Bonat pled guilty to being a felon in possession of a firearm. Under the terms of the guilty plea, Bonat admitted he had been convicted of the three prior burglaries but he did not concede that these convictions were for violent felonies. The district court determined that all three burglaries were violent felonies under § 924(e), thus the ACCA mandated a minimum sentence of 15 years. The plea agreement preserved Bonat's right to appeal the determination that the burglaries were violent felonies and to appeal the constitutionality of the ACCA and its application to him.

II.

Bonat first claims that none of the three prior burglaries were violent felonies for purposes of 18 U.S.C. § 924(e). Whether a conviction is a predicate felony under the ACCA is reviewed de novo. United States v. Kilgore, 7 F.3d 854, 855 (9th Cir.1993).

Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of a felony to possess a firearm. Under 18 U.S.C. § 924(e), anyone who has been convicted of three violent felonies and is subsequently convicted of a § 922(g)(1) violation shall receive a minimum sentence of 15 years in prison. ¹ "Burglary" is specifically mentioned as a violent felony. ² Because the definition of burglary varies from state to state, and because the ACCA does not define burglary, the Supreme Court determined that "burglary" should be given a generic, nationwide definition. Taylor v. United States, 495 U.S. 575, 592-93, 110 S.Ct. 2143, 2154-55, 109 L.Ed.2d 607 (1990). For a statute to constitute generic burglary, it must contain at least the following elements: " an unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 599, 110 S.Ct. at 2158.

In determining whether a prior conviction was for generic burglary, the sentencing court must apply a categorical approach. Id. at 600, 110 S.Ct. at 2159. That is, the sentencing court may only look to the statutory definitions of the prior offenses and may not examine the particular facts underlying the convictions. Id. If the statute is broader than generic burglary and would allow a defendant to be convicted even if a jury was not required to find all of the above elements, the conviction is not for generic burglary and thus cannot be considered a violent felony for purposes of the ACCA.

Taylor provides an exception to this categorical approach in a "narrow range of cases where a jury was actually required to find all the elements of generic burglary." Id. at 602, 110 S.Ct. at 2160. For example, if a burglary statute allowed conviction if a defendant unlawfully entered either an automobile or a building with the intent to commit a crime, that statute would be too broad because it did not require that the defendant enter a building or other structure. Id. However, if the defendant was only charged with entering a building and the jury "necessarily" had to find an entry into a building to convict, this would satisfy Taylor even though the statute on its face was broader than generic burglary. Id. As with the categorical approach, inquiry into the underlying facts of the conviction is also prohibited under this exception. United States v. O'Neal, 937 F.2d 1369, 1373 (9th Cir.1991). Therefore, an offense constitutes "burglary" for the purposes of the ACCA "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." Taylor, 495 U.S. at 602, 110 S.Ct. at 2160. With this background, we turn to the specifics of the burglary convictions that the district court relied upon in enhancing Bonat's sentence.

a. Arizona Convictions

In 1989, Bonat pled guilty to two separate charges of the same Arizona statute for second degree burglary. This statute, on its face, meets the definition of generic burglary. ³ However, the Arizona courts have expanded the statute beyond generic burglary because they have interpreted the statute to allow a conviction even if the intent to commit the crime was formed after entering the structure and/or the entry was privileged. See State v. Belcher, 161 Ariz. 133, 134, 776 P.2d 811 (Ct.App.1989) ("The requisite intent to commit burglary may be formed after a person enters a store in all innocence."); State v. McGuire, 131 Ariz. 93, 96, 638 P.2d 1339 (1981) (defendant's crime constituted second degree burglary under A.R.S. § 13-1507 even though the defendant's entry into the home was privileged). Because the statute as construed by the Arizona courts expands the definition of burglary beyond generic burglary, reliance on these convictions is only appropriate if Taylor 's narrow exception is met. See, e.g., Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513, 53 S.Ct. 244, 245, 77 L.Ed. 463 (1933) ("[W]e are bound by the decision of [the state] court as though the meaning as fixed by the court has been expressed in the statute itself in specific words.").

In deciding that Bonat pled guilty to two counts of generic burglary in Arizona state court, the district court considered the Information and the Sentence of Imprisonment for those convictions, but primarily relied on Bonat's statements from the Arizona change of plea proceedings. Without considering Bonat's statements from the plea proceedings, the record was insufficient to support a finding of generic burglary because neither the Information nor the Sentence of Imprisonment included the requisite "intent" element. Bonat claims the district court's reliance on the plea allocution is a factual inquiry that is forbidden by Taylor.

It is well accepted that the Taylor analysis applies not only to convictions resulting from a jury finding of guilt, it also applies when the defendant has pled guilty. O'Neal, 937 F.2d at 1373; United States v. Sweeten, 933 F.2d 765, 769 (9th Cir.1991). Because there are no jury instructions to consider when a defendant has pled guilty, courts must be able to consider documents other than the charging paper and the jury instructions, the two documents Taylor specifically mentioned. E.g., United States v. Adams, 91 F.3d 114, 116 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 623, 136 L.Ed.2d 546 (1996) (collecting cases). Therefore, the critical issue facing this court is to decide what documentation may properly be considered in determining whether a conviction was for generic burglary. In deciding this issue, we are mindful of the evil Taylor sought to prevent--inquiries into the underlying facts that would essentially turn the sentencing hearings into mini-trials on the issue of whether the prior crimes were committed. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159-60.

We have previously decided that in determining if a defendant pled guilty to generic burglary, considering the indictment and the judgment of conviction does not constitute a factual inquiry forbidden by Taylor. O'Neal, 937 F.2d at 1373. We have also determined that it is proper for the district courts to consider a signed guilty plea. Sweeten, 933 F.2d at 772. In Sweeten, we determined that not only could the district court consider a signed guilty plea to determine if the defendant pled guilty to generic burglary, we held that it was error not to consider "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement...