U.S. v. Fell

• Citation: 511 F.3d 1035
• Decision Date: 18 December 2007
• Docket Number: No. 06-1438.,06-1438.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel J. FELL, also known as Romeo, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

511 F.3d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel J. FELL, also known as Romeo, Defendant-Appellant.

No. 06-1438.

United States Court of Appeals, Tenth Circuit.

December 18, 2007.

Stephen M. Wheeler, Wheeler Law Offices, P.C., Evergreen, CO, for Appellant.

James C. Murphy, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the briefs), Denver, CO, for Appellee.

Before TACHA, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant-Appellant, Nathaniel J. Fell, entered a guilty plea to a charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A Presentence Investigation Report ("PSR") recommended that Fell be sentenced as an armed career criminal. See 18 U.S.C. § 924(e). Fell objected to the recommendation, arguing his prior Colorado state conviction for conspiracy to commit second degree burglary is not a violent felony conviction under 18 U.S.C. § 924(e)(2)(B). The district court concluded the Colorado conviction qualifies as a violent felony and sentenced Fell to the statutorily mandated fifteen-year term of imprisonment. Fell appeals his sentence. Applying the framework recently articulated by the Supreme Court in James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we reverse and remand for resentencing.

II. Background

The facts underlying Fell's crime of conviction are not disputed. Fell was charged in a superseding indictment with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 924(e). Pursuant to the terms of a written plea agreement, Fell pleaded guilty to one of the counts and the Government dismissed the second count. The plea agreement also recited the parties' recognition of Fell's three prior Colorado convictions: a 1994 conviction for menacing, a 1995 conviction for conspiracy to commit second degree burglary, and a 1997 conviction for attempted escape. Both the Government and Fell expressed the view that Fell's 1995 conspiracy conviction did not constitute a violent felony for purposes of the application of the armed career criminal sentencing provisions set out in 18 U.S.C. § 924(e). They acknowledged, however, their position was not binding on the district court.

At the change of plea hearing, the district court specifically advised Fell there was a possibility he could be sentenced as an armed career criminal to a minimum of fifteen years' imprisonment. Fell acknowledged he understood and thereafter entered a guilty plea. The district court accepted Fell's plea and ordered a PSR prepared. Contrary to the position of the parties, the PSR recommended that all of Fell's prior Colorado convictions, including his 1995 conviction for conspiracy to commit second degree burglary, be designated violent felonies and that Fell be sentenced pursuant to 18 U.S.C. § 924(e) as an armed career criminal. Fell filed a written objection to the PSR's treatment of his conspiracy conviction and renewed his objections orally at the sentencing hearing. Relying on this court's opinion in United States v. Brown, 200 F.3d 700 (10th Cir. 1999), the district court determined the Colorado conspiracy conviction was a violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B) and sentenced Fell to fifteen years' imprisonment, the statutory minimum.¹ 18 U.S.C. § 924(e)(1).

III. Discussion

Because Fell was convicted of violating 18 U.S.C. § 922(g), the Armed Career Criminal Act ("ACCA") mandates that he be sentenced to a fifteen-year minimum term of imprisonment if he has three prior violent felony convictions. 18 U.S.C. § 924(e)(1). Fell does not dispute that he has been previously convicted of two violent felonies. The only appellate issue he raises is whether his 1995 Colorado conviction for conspiracy to commit second degree burglary qualifies as a violent felony for purposes of the minimum mandatory sentencing provisions of the ACCA. We review this legal question de novo. United States v. Begay, 470 F.3d 964, 967 (10th Cir.2006).

The ACCA defines a violent felony as,

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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)(2)(B). To qualify as a violent felony, Fell's Colorado conspiracy conviction must either (1) fit under § 924(e)(2)(B)(i) because it "has as an element the use, attempted use, or threatened use of physical force against" another individual; (2) be one of the four offenses specifically enumerated in § 924(e)(2)(B)(ii); or (3) fall within the residual clause of § 924(e)(2)(B)(ii) because it involves conduct that "presents a serious potential risk of physical injury to another."

Section 18-2-201 of the Colorado Revised Statutes states:

A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.

The Colorado Supreme Court has clarified that conspiracy is a specific intent crime and a conspirator must have, inter alia, the specific intent to commit the crime which is the object of the conspiracy. Watkins v. People, 655 P.2d 834, 838 (Colo. 1982). In Fell's case, that crime was second degree burglary which, at the time of his conviction, was defined by Colorado law as "knowingly break[ing] an entrance into, or enter[ing], or remain[ing] unlawfully in a building or occupied structure with intent to commit therein a crime against another person or property." Colo.Rev.Stat. § 18-4-203(1). Because Colorado law does not require proof of the use, attempted use, or threatened use of physical force to sustain a conviction for conspiracy to commit second degree burglary, Fell's prior conviction does not qualify as a violent felony pursuant to § 924(e)(2)(B)(i). Neither does it qualify under the first clause of § 924(e)(2)(B)(ii), since it does not involve the use of explosives and it is not burglary, arson, or extortion. Cf. United States v. Strahl, 958 F.2d 980, 986 (10th Cir.1992) ("We cannot conclude that Congress intended implicitly to include attempted burglary as a violent offense when it specified burglary as a violent felony under § 924(e)(2)(B)(ii)."). Consequently, Fell's conspiracy conviction can qualify as a violent felony, if at all, only pursuant to the residual clause of § 924(e)(2)(B)(ii).

This court has previously addressed whether inchoate crimes qualify as violent felonies under the residual clause of the ACCA. In United States v. Strahl, the appellant challenged the district court's use of a Utah attempted burglary conviction to sentence him pursuant to the ACCA. 958 F.2d at 982-83. The Utah burglary statute criminalized entering or unlawfully remaining in a building with the intent to commit a felony, theft, or assault. Id. at 985; see also Utah Code Ann. § 76-6-202(1). The Utah attempt statute required, inter alia, that a defendant "`engage[] in conduct constituting a substantial step toward commission of the offense.'" Strahl, 958 F.2d at 985 (quoting Utah Code Ann. § 76-4-101(1) (2003)). This court rejected the Government's argument that attempted burglary is ineluctably a violent felony because burglary is one of the crimes specifically enumerated in 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 986. After examining the legislative history of the ACCA, we concluded the express inclusion of the completed crime of burglary in the statute was not also an implicit inclusion of attempted burglary. Id. Consequently, we next analyzed whether an attempted burglary conviction under Utah law was a violent felony under the residual clause of § 924(e)(2)(B)(ii). We noted that Utah's attempt statute permitted convictions based on preparatory conduct which, in appellant's case, could have included "making a duplicate key, `casing' the targeted building, obtaining floor plans of a structure, or possessing burglary tools." Id. Concluding such conduct does "not necessarily present circumstances which create the high risk of violent confrontation inherent in a completed burglary," we held the Utah attempted burglary conviction was not a violent felony under the ACCA because Utah law criminalized conduct that is "well outside § 924(e)'s target of `violent' felonies." Id.

Less than a year later, we applied the reasoning in Strahl to reverse a sentence imposed pursuant to the ACCA on a defendant who had previously been convicted of attempted burglary under Oklahoma law. United States v. Permenter, 969 F.2d 911, 915 (10th Cir.1992). The Oklahoma attempt statute provided that "any act" directed toward the commission of the substantive crime could support an attempt conviction. Id. at 913. We concluded the statute, like the Utah statute at issue in Strahl, was overly inclusive and did not necessarily criminalize only conduct presenting a serious potential risk of physical injury to others. Id. Thus, the Oklahoma conviction did not qualify as a violent felony.

We next considered an appeal from a defendant sentenced under the ACCA because of a prior New Mexico conviction for conspiracy to commit armed robbery. United States v. King, 979 F.2d 801, 801 (10th Cir.1992). Consistent with our decisions...