U.S. v. Gonzales
| Decision Date | 16 March 2009 |
| Docket Number | No. 06-8082.,06-8082. |
| Citation | 558 F.3d 1193 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mark E. GONZALES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Vicki Mandell-King, Assistant Federal Public Defender, Denver, CO (Raymond P. Moore, Federal Public Defender, and Robert R. Rogers, Assistant Federal Public Defender, Cheyenne, WY, with her on the briefs), for Defendant-Appellant.
Lisa E. Leschuck, Assistant United States Attorney (Matthew H. Mead and Kelly H. Rankin, United States Attorneys, District of Wyoming, and Gregory A. Phillips, Assistant United States Attorney, with her on the briefs), Cheyenne, WY, for Plaintiff-Appellee.
Before McCONNELL, SEYMOUR and EBEL, Circuit Judges.
Defendant-Appellant Mark E. Gonzales pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Gonzales' presentence report ("PSR") recommended that he be sentenced to a minimum of 15 years' imprisonment on the ground that he came within the enhancement provisions of 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). This recommendation was based on the PSR's conclusion that Mr. Gonzales had three prior convictions for "violent felonies": (1) burglary, (2) attempted voluntary manslaughter, and (3) battery/domestic violence.
Mr. Gonzales challenged the PSR's recommendation, asserting that his prior burglary conviction was not a "burglary" for purposes of § 924(e). The district court rejected Mr. Gonzales' argument and sentenced him to 15 years' imprisonment. Mr. Gonzales now appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
On its own motion, this court raised the question whether Mr. Gonzales' battery/domestic violence conviction qualified as a violent felony. After considering the parties' supplemental briefs, however, we conclude Mr. Gonzales is not entitled to relief from his sentence on that basis, either.1
The events that gave rise to this case occurred on March 23, 2005. It was on this day that Mr. Gonzales was riding in his girlfriend's van with his girlfriend and her daughter. During the ride, Mr. Gonzales became upset, removed a .25 caliber pistol from the van's glove compartment, and threatened suicide. Law enforcement officials were called, and upon their arrival, Mr. Gonzales was eventually apprehended. Thereafter, Mr. Gonzales admitted that he was a convicted felon, and further admitted that he had possessed the gun.
Based on these events, Mr. Gonzales was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Gonzales pled guilty to the charge. In exchange for his guilty plea, the government agreed to recommend that Mr. Gonzales' criminal offense level be reduced by a total of three levels for acceptance of responsibility. The plea agreement advised that Mr. Gonzales faced 10 years' imprisonment.
Following Mr. Gonzales' guilty plea, the probation office prepared a PSR. Pursuant to U.S.S.G. § 4B1.4(b)(3)(B),2 the PSR recommended that Mr. Gonzales' adjusted criminal offense level be set at 30 (), because according to the PSR, Mr. Gonzales' criminal history brought him within the ambit of 18 U.S.C. § 924(e).3 This conclusion was based on the determination that Mr. Gonzales had three prior convictions for "violent felonies": (1) burglary, (2) attempted voluntary manslaughter, and (3) battery/domestic violence.
Mr. Gonzales objected to his burglary conviction being classified as a "burglary" for purposes of § 924(e). In making this objection, Mr. Gonzales offered the information and plea colloquy relating to this conviction. These documents shed more light on the circumstances surrounding Mr. Gonzales' burglary offense.
The information provides in relevant part that
Mark E. Gonzales ... did unlawfully and feloniously, without authority, enter or remain in a building, occupied structure or vehicle, or separately secured portion thereof, with intent to commit larceny or a felony therein, to wit: did unlawfully and feloniously, without authority from the Cheyenne Airport Restaurant and Cloud Nine Bar, the owner or occupant, enter a building located at Laramie County, Wyoming, with intent to commit larceny or a felony therein, and did steal food and beer items, contrary to W.S. 6-3-301(a), 1977 Republished Edition.
The plea colloquy offers Mr. Gonzales' recollection of the events:
Q: In your own words, would you tell the Court what happened?
....
Gonzales: Douglas was the one that had the whole plan planned out because he had said there was a key in there that he can open up all the doors with....
Q: How did you get entry into the bar and restaurant?
Gonzales: Well, me, Doug and my brother stayed in the bathroom until closing time. And Doug was the one that did all the work by getting in, into the bar and stuff. Alls [sic] I got out of it was a couple cases of beer, which I couldn't drink because I was on Antabuse at the time, and a couple packs of steaks and $50. If possible I will pay restitution if you will take that into consideration too.
Q: Did you break the door down or—
Gonzales: Well, Doug used a clothes hanger to get in there.
Q: Okay.
Gonzales: From the top of the door, pulled the bolt open.
Q: Okay. Reached over with a clothes hanger and lifted the bolt?
Gonzales: Yeah, yeah, I was still—even when I was in there I was still thinking well, heck, I might as well just get out of here and just let them go ahead and get in trouble if they want, you know. But there wasn't no way I could open the door from the inside to get out. So I couldn't get out. So I had to stay in there whether I liked it or not until there was a way to get out.
Based on the circumstances surrounding this conviction, Mr. Gonzales argued that it should not be classified as a "burglary" for purposes of § 924(e). Specifically, Mr. Gonzales asserted that the underlying facts giving rise to the conviction did not fall within the definition of "burglary" articulated by the Supreme Court to govern such enhancements. The district court disagreed, and pursuant to its belief that Mr. Gonzales thereby came within the ambit of § 924(e), sentenced Mr. Gonzales to 15 years' imprisonment. Mr. Gonzales now appeals, asserting solely that his Wyoming burglary conviction is not a "burglary" for purposes of the § 924(e).
Following oral argument, this court, on its own motion, raised a concern whether Mr. Gonzales' battery/domestic violence conviction qualified as a violent felony. At the court's request, the parties filed supplemental briefs addressing that question.
"We review a sentence enhancement under 18 U.S.C. § 924(e) de novo." United States v. Green, 55 F.3d 1513, 1515 (10th Cir.1995). Mr. Gonzales' argument that his prior burglary conviction is not a "burglary" for purposes of § 924(e) rests on Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, the Supreme Court "conclude[d] 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 [(1)] unlawful or unprivileged entry into, or remaining in, [(2)] a building or structure, [(3)] with intent to commit a crime." Id. at 599, 110 S.Ct. 2143.
The Wyoming statute under which Mr. Gonzales was convicted defines burglary more broadly than the Supreme Court's generic definition of the term:
[a] person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit a larceny or a felony therein.
Wyo. Stat. § 6-3-301(a). "We therefore must address the question whether, in the case of [Mr. Gonzales,] who [was] convicted under a nongeneric-burglary statute, the Government may seek enhancement on the ground that he actually committed a generic burglary." Taylor, 495 U.S. at 599-600, 110 S.Ct. 2143. "For example, in a State whose burglary statutes include entry of an automobile as well as a building, [such as Wyoming], if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement." Id. at 602, 110 S.Ct. 2143.
"[W]hen determining whether a prior conviction resulting from a guilty plea is a violent felony for purposes of the ACCA, a court is limited to an examination of the language of the statute of conviction, `the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant ..., or to some comparable judicial record of this information.'" United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir.2005) (quoting Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Mr. Gonzales maintains that based on the material contained in these documents, it cannot be concluded that he committed a burglary for purposes of a § 924(e) enhancement. We disagree.
As discussed in United States v. Barney, 955 F.2d 635, 640 (10th Cir.1992), "the categorical problem with section 6-3-301, under which [Mr. Gonzales was convicted], is its inclusion of vehicles among the places that can be burglarized." Just as in Barney, however, "[t]he information surmounts this obstacle by making clear that" Mr. Gonzales' burglary conviction did not involve the "alleged burglary of a vehicle." Id. To this end, the information provides that Mr. Gonzales
did unlawfully and...
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