U.S. v. Bowden

• Decision Date: 21 September 1992
• Docket Number: No. 91-5333,91-5333
• Citation: 975 F.2d 1080
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glynn BOWDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1080

975 F.2d 1080

UNITED STATES of America, Plaintiff-Appellee, v. Glynn BOWDEN, Defendant-Appellant.

No. 91-5333.

United States Court of Appeals, Fourth Circuit.

Argued April 10, 1992.

Decided Sept. 21, 1992.

Wayne James Payne, Powell & Payne, Shallote, N.C., argued for defendant-appellant.

Richard Bruce Conely, Sr., Asst. U.S. Atty., Raleigh, N.C., argued (Margaret Person Currin, U.S. Atty., on brief), for plaintiff-appellee.

Before WIDENER, Circuit Judge, BUTZNER, Senior Circuit Judge, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WIDENER, Circuit Judge:

Glynn Bowden appeals from the sentence imposed upon him by the United States District Court for the Eastern District of North Carolina following his conviction on pleas of guilty to federal firearms charges. Bowden received an enhanced sentence as an armed career criminal pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. He now challenges that enhancement, claiming that certain of his prior state convictions should not be counted as predicate "violent felonies" as defined in § 924(e). Finding no merit in this argument, we affirm.

On January 8, 1991, a federal grand jury handed down an indictment charging Bowden with one count of possession of firearms by a convicted felon, a violation of 18 U.S.C. § 922(g)(1), and one count of possession of an unregistered firearm, a rifle with a barrel length of approximately 5 3/8 inches and an overall length of approximately 14 1/8 inches, a violation of 26 U.S.C. §§ 5841, 5845(a)(3), and 5861(d). Bowden was also charged with a separate violation of § 922(g)(1) in a second indictment returned that same day. On February 20, 1991, the government served notice on Bowden that he would be subject to the enhanced penalty provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Plea negotiations ensued, and on February 25, 1991, the parties executed a plea agreement. Bowden agreed to plead guilty to both counts of the first indictment. For its part the government agreed to dismiss the second indictment at the time of his sentencing. The plea agreement recognized that the enhanced sentencing provision of § 924(e) "[would be] applicable" to the sentence imposed on the § 922(g)(1) count. Also on February 25, a plea acceptance hearing was held pursuant to Fed.R.Crim.P. 11. At that hearing Bowden again acknowledged the plea agreement that the Armed Career Criminal Act enhancement would apply to the § 922(g)(1) charge.

The probation officer submitted a presentence report on April 19, 1991. The presentence report stated that the prerequisites for application of the armed career criminal enhancement had been satisfied, and accordingly recommended that Bowden be sentenced to an enhanced prison term pursuant to § 924(e) and U.S.S.G. § 4B1.4. The probation officer thus set Bowden's total offense level at 32, with a criminal history category of VI, yielding an imprisonment range of between 210 to 262 months. Bowden filed certain objections to the presentence report; among them was a challenge to the applicability of the armed career criminal enhancement.

Bowden went before the district court for sentencing on June 10, 1991. The court considered and rejected each of Bowden's objections to the presentence report, including the objection to the armed career criminal enhancement. The court then adopted the factual findings and guideline calculations contained in the presentence report and sentenced Bowden to a prison term of 210 months. Bowden timely appealed, and we now turn to his claims of error. ¹

The sentencing enhancement provision principally relevant here, the Armed Career Criminal Act, provides in relevant part as follows:

(e)(1) In the case of a person who violates [18 U.S.C. § 922(g) ] and has three previous convictions ... for a violent felony ... committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years

....

(2) As used in this subsection--

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ..., that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

....

18 U.S.C. § 924(e). Thus, § 924(e) imposes a mandatory minimum 15-year prison sentence on any person convicted of any of the federal firearms offenses set out in 18 U.S.C. § 922(g) who also has three prior convictions for "violent felonies" as defined in § 924(e)(2)(B). Having pleaded guilty in this case to a violation of 18 U.S.C. § 922(g)(1), Bowden's appeal turns on whether his prior state convictions qualify as such violent felonies.

The record reveals that at the time of his arrest on the instant firearms charges Bowden had a rather extensive history of criminal activity. Relevant to the applicability of the § 924(e) enhancement are the following groups of North Carolina state felony convictions that Bowden received prior to his conviction on the charges in the instant case.

First, Bowden pleaded guilty to three counts of "[b]reaking or entering buildings generally," in violation of N.C.G.S. § 14-54, and three counts of larceny, in violation of N.C.G.S. § 14-72, for conduct that occurred on December 3, 1985. The probation officer reported in the presentence report that "[a]ccording to court files, these offenses involved the breaking and entering of three separate residences in Wilmington, North Carolina, wherein various items, including stereo systems, guns, jewelry and clothing items, were stolen, having a total value of approximately $7,388." ²

Second, Bowden pleaded guilty to one count of common-law robbery. The presentence report describes that offense as follows: "New Hanover County Clerk of Court records reflect that on December 29, 1985, the defendant did steal and carry away from Patricia Lipscomb one lady's purse containing personal items and various credit cards in wallet, having a total value of $125." ²

Third, Bowden again pleaded guilty to charges of "breaking or entering" and larceny, in violation of N.C.G.S. §§ 14-54, 14-72. As to these crimes the presentence report states that

[a]ccording to N.C. Department of Correction records, on October 26, 1987, Bowden and two codefendants broke into a residence located in Leland, North Carolina, and stole one television, jewelry, silver cups, stereo system, VCR and a .22 caliber pistol, having a total value of $2,159. The defendant was apprehended by authorities immediately following the offense and all stolen items were recovered. ²

Finally, though we need not consider any further prior convictions for purposes of the issue at hand, we note that Bowden later pleaded guilty to yet another set of breaking or entering and larceny charges arising out of yet another home burglary, this one occurring on January 15, 1988. ²

The parties are agreed that Bowden's conviction on the common-law robbery charge qualifies as a predicate violent felony under 18 U.S.C. § 924(e)(2)(B)(i), as common-law robbery plainly "has as an element the use, attempted use, or threatened use of physical force against the person of another." See, e.g., State v. Herring, 322 N.C. 733, 370 S.E.2d 363, 368 (1988). Thus, Bowden properly was sentenced as an armed career criminal only if any two of his other felony convictions, as set out above, fall within the definition of a violent felony.

Because it appears from the nature of the charges that Bowden's other convictions were in the nature of burglaries, the natural place to begin in classifying them is in § 924(e)(2)(B)(ii), which begins with a non-exclusive list of enumerated offenses that constitute predicate violent felonies. One of those enumerated crimes indeed is "burglary." Until recently the circuits were divided on the question of how properly to define the word "burglary" as used in the Armed Career Criminal Act. This court held that only crimes fitting the common-law definition of burglary qualified, see United States v. Headspeth, 852 F.2d 753 (4th Cir.1988), while others accepted any felony that relevant state law labelled burglary. See, e.g., United States v. Leonard, 868 F.2d 1393 (5th Cir.1989), cert. denied, 496 U.S. 904, 110 S.Ct. 2585, 110 L.Ed.2d 266 (1990).

In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court resolved the circuit split as to the definition of burglary in § 924(e)(2)(B)(ii). The Court rejected both the argument that only common-law burglary qualified and the argument that state statutory labels controlled. Instead, the Court held that:

We believe 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 § 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.

Taylor, 495 U.S. at 598-99, 110 S.Ct. at 2158 (citations and footnote omitted). Thus, for purposes of § 924(e)(2)(B)(ii) "burglary" means generic burglary, a crime consisting of three necessary elements: 1) an unlawful or unprivileged entry or remaining in; 2) a building or other structure; 3) with intent to commit a crime.

In addition to providing the definition of generic burglary, the Court addressed an important...