U.S. v. Hill

• Decision Date: 25 January 1989
• Docket Number: No. 88-5092,88-5092
• Citation: 863 F.2d 1575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Eugene HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1575

863 F.2d 1575

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Eugene HILL, Defendant-Appellant.

No. 88-5092.

United States Court of Appeals, Eleventh Circuit.

Jan. 25, 1989.

Henry M. Bugay, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Linda Collins Hertz, Sonia Escobio O'Donnell, and Eric A. Dubelier, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Raymond Eugene Hill pled guilty to a one-count indictment that charged him with possession of a firearm by a convicted felon, a violation of 18 U.S.C. Sec. 922(g)(1). The district court imposed an enhanced fifteen year mandatory minimum sentence pursuant to 18 U.S.C. Sec. 924(e). ¹ In entering his guilty plea, Hill reserved the right to appeal the district court's denial of his Motion to Dismiss or Strike Enhancement From Indictment and this appeal followed. Hill argues that his four previous convictions do not fall within the enumerated crimes that justify an enhanced sentence under section 924(e). We Affirm.

I.

On August 1, 1987 several Metro-Dade police officers apprehended Hill after he was seen leaving the Metro-Dade Training Facility firing range. A subsequent search revealed three revolvers stolen from the Metro-Dade County Police Department in the trunk of the car Hill was driving. The federal government elected to prosecute Hill under 18 U.S.C. Sec. 922(g) and sought an enhanced penalty under 18 U.S.C. Sec. 924(e) because Hill had four prior felony convictions.

The parties stipulated to the following facts relating to Hill's prior felony convictions:

Case No. 1

In case No. 75-1285-A (BREAKING AND ENTERING A BUILDING), it is agreed as follows:

That the Defendant was not armed during the commission of the offense. No assault or battery was effected during the commission of the offense. That the building entered was a business and not a home or residence where people dwell at night. That the offense took place on January 30, 1975 at the hour of 8:55 p.m.

Case No. 2

In case No. 78-14829 (BURGLARY OF STRUCTURE), it is agreed as follows:

That the Defendant was not armed during the commission of the offense. No assault or battery was effected during the commission of the offense. That the building entered was a business and not a home or residence where people dwell at night. That the offense took place on September 27, 1978 at the hour of 4:30 p.m. That it was a daytime offense.

Case No. 3

In case No. 80-15895-A (BURGLARY OF STRUCTURE), it is agreed as follows:

That the Defendant was not armed during the commission of the offense. No assault or battery was effected during the commission of the offense. That the building entered was a business and not a home or residence where people dwell at night. That the offense took place on August 27, 1980 at the hour of 10:35 a.m. That it was a daytime offense.

Case No. 4

In case No. 80-17802-A (BURGLARY OF STRUCTURE), it is agreed as follows:

That the Defendant was not armed during the commission of the offense. No assault or battery was effected during the commission of the offense. That the building was a business and not a home or residence where people dwell at night. That the offense took place on September 20, 1980 at the hour of 8:45 a.m. That it was a daytime offense.

Section 924(e) imposes a minimum mandatory prison term of fifteen years without possibility of parole for a person who violates section 922(g) and has been convicted three (or more) times of a "violent felony or a serious drug offense." The section 924(e)(2)(B) definition of "violent felony" includes "burglary," but does not go on to define burglary. Hill argues that the district court erred as a matter of law when it concluded that the four prior burglary convictions--all of which were burglaries of business establishments, and three of which took place during the daytime--were within the meaning of "burglary" as that term is used in section 924(e)(2)(B), even though they would not be burglaries at common law.

II.

"The starting point in every case involving construction of a statute is the language itself." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976). Here, the statute does not expressly define burglary. This might lead to the reasonable conclusion that any crime that a State denominates "burglary" will serve as a predicate offense. Indeed, the Eighth Circuit reasoned just this way:

[W]e find very little ambiguity on the face of the statute and, thus, no occasion to explore the legislative history. In our view, the statute says "burglary," and we take that to mean "burglary," however a state may choose to define it.

United States v. Portwood, 857 F.2d 1221, 1223-24 (8th Cir.1988).

Against this seemingly inescapable logic, appellant offers the canon of interpretation that when Congress uses a common law term and does not otherwise define it, we presume that Congress intended to adopt the meaning of the term at common law. Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-50, 96 L.Ed. 288 (1952); United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir.1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983). At common law, in 1789, it might safely be said that a burglary was defined as the breaking and entering of the dwelling place of another in the nighttime with the intent to commit a felony. See, e.g., 4 Blackstone, Commentaries on the Laws of England 224 (1789); 3 Coke, Institutes of the Laws of England 63 (1644). Because none of Hill's prior felony convictions involved the breaking and entering of a dwelling place, and only one took place in the nighttime, he would not have any prior convictions for the purposes of section 924(e) if we use the old common law definition. This is the result that the Fourth Circuit reached in United States v. Headspeth, 852 F.2d 753 (1988).

We are reluctant, however, to apply the common law definition and end our inquiry so quickly. The canon of interpretation that would have us supply the common law definition does so because, as a general matter, it will best approximate the intent of Congress. When it is apparent that Congress intended something else, however, we need not mechanically apply the common law definition, for to do so would raise a rule of judicial guidance above Congress's intent. Moreover, the canon of construction that would have us imply the common law definition has less force when we are looking at the effect of amendments to a statute. Where, as here, Congress sought to change a statute already on the books, it is proper for us to look at the text of the statute as it stood before the amendment, the actual amendment itself, and at any expression of intent made during the legislative process. Our goal first and foremost is to give effect to Congress's intent, thus, we turn to what interpretative means we have on hand.

III.

A.

The genealogy of section 924 traces back to the Armed Career Criminal Act of 1984, which was enacted as a part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Sec. 1801, 98 Stat. 1837, 2185. The Armed Career Criminal Act amended 18 U.S.C.App. Sec. 1202(a) to impose a mandatory minimum fifteen year sentence for "a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any [State or Federal] court ... for robbery or burglary, or both...." The Act defined burglary as "any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense." Section 1202 in turn defined "felony" as an "offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less." 18 U.S.C.App. Sec. 1202(c)(2) (repealed).

Less than two years after Congress passed the Armed Career Criminal Act, it revisited the area. In the Firearms Owners' Protection Act, Pub.L. No. 99-308, Sec. 104, 100 Stat. 449, 456-59 (1986), Congress repealed Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.App. Secs. 1201 et seq.), reincorporating many of the repealed provisions into section 924. The Armed Career Criminal Act became section 924(e).

The recodified Armed Career Criminal Act imposed the same minimum mandatory fifteen year sentence on "a person who violates section 922(g) of this title (e.g., a convicted felon who possesses a firearm) and has three previous convictions by any court ... for robbery or burglary, or both...." "Burglary" was in turn defined as "any crime punishable by a term of imprisonment exceeding one year and consisting of entering and remaining surreptitiously within a building that is the property of another with intent to engage in conduct constituting a Federal or State offense." The new definition, however, did not distinguish State misdemeanor burglary punishable by term in prison of two years or less from felony burglary.

Were this case presented under section 924(e) as originally enacted, our task would be quite simple because that section defined burglary as "any crime punishable by a term of imprisonment exceeding one year and consisting of entering or remaining surreptitiously within a building that is the property of another with intent to engage in conduct constituting a Federal or State offense." Thus, Hill's previous convictions for daylight burglaries of business establishments would unquestionably fall within the enumerated offenses that permit sentence enhancement. Congress,...