U.S. v. Fitzhugh, 91-8211

• Decision Date: 28 January 1992
• Docket Number: No. 91-8211,91-8211
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mark Lynn FITZHUGH, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 253

954 F.2d 253

UNITED STATES of America, Plaintiff-Appellant, v. Mark Lynn FITZHUGH, Defendant-Appellee.

No. 91-8211

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 28, 1992.

Walter M. Reaves, Jr., West, Tex. (court-appointed), for plaintiff-appellant.

LeRoy M. Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., Mark L. Frazier, Asst. U.S. Atty., Waco, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case concerns the issue of whether a district court may consider conduct of which the defendant was not charged and convicted in determining whether his offense is a "crime of violence" for the purposes of the career offender provision of the Sentencing Guidelines. Although we have held that such a practice was appropriate under a prior version of this provision, amendments to the Guidelines in 1989 and 1991 make clear that the sentencing court should not consider such conduct. Because the district court considered underlying conduct here, we vacate the defendant's sentence and remand for resentencing.

I.

In October of 1990, defendant Mark Lynn Fitzhugh, a convicted felon, broke into a U.S. Marshal's house to steal firearms. Fitzhugh was on methamphetamine at the time. Unbeknownst to him, the marshal's fourteen-year-old daughter was hiding in her bedroom during the burglary. She tried to dial 9-1-1 to summon help, but was unsuccessful because Fitzhugh had disconnected the phone downstairs. Fitzhugh stole a loaded .38 caliber revolver and moved but did not steal a sawed-off shotgun.

Fitzhugh later pled guilty to one count of possession of a firearm by a felon. 18 U.S.C. § 922(g)(1). He also conceded that he had been convicted of at least three prior burglary offenses, and was therefore subject to sentence enhancement under the Armed Career Criminal provision of 18 U.S.C. § 924(e). See also U.S.S.G. § 4B1.4. Fitzhugh's Presentence Investigation Report recommended application of the career offender provision of the Guidelines, reasoning that the circumstances surrounding his possession of the firearm made his offense a "crime of violence." U.S.S.G. §§ 4B1.1, 4B1.2. In the alternative, the Report recommended increasing his base offense level by three points because the victim was a U.S. Marshal, U.S.S.G. § 3A1.2, and denial of the two point reduction for acceptance of responsibility. U.S.S.G. § 3A1.1.

The district court agreed with the presentence report, with the exception that it granted the reduction for acceptance of responsibility. The career-offender provision resulted in an offense level of 37. The district court apparently subtracted two points for acceptance of responsibility and added three points for the victim's status as a U.S. Marshal to arrive at a total offense level of 38. Fitzhugh's criminal history category was VI. The sentencing range for an offense level of 38 and a criminal history category of VI is 360 months to life. The district court sentenced Fitzhugh to 480 months. Fitzhugh now appeals.

II.

Fitzhugh argues that the district court is not permitted to consider the facts underlying the offense of conviction to determine whether the offense is a crime of violence for the purposes of the career-offender provision of the Guidelines. U.S.S.G. §§ 4B1.1, 4B1.2. The term "crime of violence" is defined in part as "any offense under federal or state law punishable by imprisonment for a term exceeding one year that ... involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1)(ii). In United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990), we explained that the sentencing court is "permitted to look beyond the face of the indictment and consider all facts disclosed by the record" to determine whether the applicable offense is a crime of violence. Fitzhugh contends, however, that Goodman is not controlling here because the commentary to § 4B1.2 was amended in November of 1989 to state that the term "crime of violence" includes offenses where "the conduct set forth in the count of which the defendant was convicted ... by its nature presented a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2, Application Note 2 (emphasis added). Although Goodman was decided in 1990, it applied the version of § 4B1.2 that existed before the November 1, 1989 amendments. Fitzhugh argues that the new commentary makes clear that only conduct charged in his indictment may be considered.

We agree. By amending § 4B1.2, the Sentencing Commission made clear that only conduct "set forth in the count of which the defendant was convicted" may be considered in determining whether the offense is a crime of violence. We think this amendment shows that § 4B1.2 does not intend to define "crime of violence" by reference to conduct underlying the offense when the defendant is not charged and convicted of such conduct. In short, the Commission has repudiated Goodman...