U.S.A v. Knight

• Decision Date: 04 June 2010
• Docket Number: No. 09-4282.,09-4282.
• Citation: 606 F.3d 171
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Shonitha Lynette KNIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

606 F.3d 171

UNITED STATES of America, Plaintiff-Appellee,v.Shonitha Lynette KNIGHT, Defendant-Appellant.

No. 09-4282.

United States Court of Appeals, Fourth Circuit.

Argued: March 26, 2010.

Decided: June 4, 2010.

ARGUED: Ann Loraine Hester, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Matthew Theodore Martens, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Kevin Tate, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Kelli H. Ferry, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge GREGORY and Judge AGEE joined.

OPINION

TRAXLER, Chief Judge:

Shonitha Knight pleaded guilty to a felon-in-possession charge see 18 U.S.C.A. § 922(g) (West 2000), and was sentenced to 60 months' imprisonment. Knight appeals, raising various challenges to the calculation of her Guidelines sentence. Finding no error that warrants reversal, we affirm.

I.

Knight lived in a hotel in Gastonia, North Carolina. Police knocked on her door after getting reports about an unusual amount of activity around her room; Knight opened the door and consented to a search. The police found some marijuana hidden in the toilet and a loaded pistol with obliterated serial numbers under the mattress. There were three men in the hotel room when the police arrived, but Knight did not suggest that the gun belonged to any of the men. Instead, Knight told the police that she bought the gun for protection. Knight also admitted that because she had a prior felony conviction, she knew she was not supposed to have a gun.

Knight was arrested on a federal felon-in-possession charge on December 8, 2006, and was released on bond and placed under pre-trial supervision. She failed to appear at a calendar call in May 2007, and she stopped contacting her attorney and pre-trial services around the same time. Knight was arrested almost a year later in the Southern District of Texas and was brought back to North Carolina.

Knight pleaded guilty to the felon-in-possession charge. Her advisory Guidelines sentencing range as calculated in the presentence report and accepted by the district court was 92-115 months. The district court, however, concluded that a downward variance was appropriate and sentenced Knight to 60 months.

II.

Knight first contends that the district court improperly relied on a prior arson conviction to increase her base offense level. We disagree.

Sentencing for a felon-in-possession charge is governed by U.S.S.G. § 2K2.1 (2007), which sets a base offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” Id. § 2K2.1(a)(4)(A). The application notes specify that “ ‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” Id. cmt. n. 1 Section 4B1.2 defines “crime of violence” as “burglary of a dwelling, arson, or extortion, [a crime that] involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

Knight has a prior conviction in Texas for second-degree arson. See Tex. Penal Code Ann. § 28.02. Although the Guidelines specify that burglary, arson, and extortion are crimes of violence, the Guidelines do not define those crimes, and the offense-level enhancement is not automatically applicable in every case where a defendant's record shows a conviction for one of the listed crimes. Instead, to determine whether Knight's arson conviction qualifies under § 4B1.2(a)(2), we apply the approach set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which requires us to ask whether the state crime substantially corresponds to the contemporary, generic definition of the crime at issue. ¹ See id. at 589, 590, 110 S.Ct. 2143 (concluding that, with regard to burglary as a predicate offense, Congress “had in mind a modern ‘generic’ view of burglary, roughly corresponding to the definitions of burglary in a majority of the States' criminal codes,” “regardless of technical definitions and labels under state law”); see also United States v. Whaley, 552 F.3d 904, 907 (8th Cir.2009) (“Consistent with Taylor, we hold that an offense constitutes arson ... if ... its statutory definition substantially corresponds to generic arson ....” (alteration and internal quotation marks omitted)); United States v. Hathaway, 949 F.2d 609, 610 (2d Cir.1991) (per curiam) (“[I]f Vermont's definition of third degree arson substantially corresponds to a modern generic definition of arson, then appellant's conviction may be counted as ‘arson’ for purposes of the federal sentencing statute.”). When determining the generic, contemporary definition of a crime, we look to the general consensus of contemporary state law. See Taylor, 495 U.S. at 589, 110 S.Ct. 2143.

In its common-law form, the crime of arson was defined as the “malicious burning of the dwelling house of another.” John W. Poulos The Metamorphosis of the Law of Arson, 51 Mo. L.Rev. 295, 299 (1986). The common-law offense was intended “to protect the dwellers from the risks of injury or death created when the dwelling house is burned.” Id. at 297. The contemporary crime of arson, however, is largely a creature of statute, and those statutes have significantly altered the scope of the crime, focusing on the protection of property as much as people. In most jurisdictions, the crime is no longer limited to dwellings, or even structures. Instead, a clear majority of the states extend the crime of arson to the burning (or damaging by fire or explosion) of personal property. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1230-31 & n. 2 (9th Cir.2005) (noting that 36 states extend arson to the burning of personal property); Poulos, 51 Mo. L.Rev. at 384 (noting that in 1986, 31 states defined arson to include the burning of any personal property). Given this statutory development, we agree with the other circuits that have considered the issue and conclude that the modern, generic crime of arson involves the burning of real or personal property.²See United States v. Velez-Alderete, 569 F.3d 541, 544 (5th Cir.2009) (per curiam) (“[T]he consensus among state statutes ... defines contemporary arson as involving the malicious burning of property, personal or real, without requiring that the burning threaten harm to a person.”); Whaley, 552 F.3d at 907 (“[T]he generic offense of arson, for purposes of the sentence enhancement in § 924(e), has as elements the malicious burning of real or personal property of another.”); Velasquez-Reyes, 427 F.3d at 1230, 1231 (explaining that “[t]he modern generic definition of arson includes a ‘willful and malicious burning’ of property,” and noting the “ ‘interstate consensus' that the burning of personal property constitutes arson”); see also Hathaway, 949 F.2d at 610 (“The essential element of third degree arson in Vermont is a wilful and malicious burning of personal property. Appellant does not and could not argue that this is an unusual definition of arson.” (citation omitted)).

Knight does not disagree with this definition. Instead, she contends that the Texas statute, which includes in its definition the burning of any vegetation on open land see Tex. Penal Code Ann. § 28.02(a)(1), is broader than the generic definition of arson. Knight thus argues that the government was required to establish, through appropriate documents, that she was actually convicted of a crime that meets the generic definition. See, e.g., Johnson v. United States, --- U.S. ----, ----, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010) (“When the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which [qualify as predicate offenses] and some of which do not, the modified categorical approach ... permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record-including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” (internal quotation marks omitted)). Knight contends that the government did not present such documents and that the district court therefore erred by using the arson conviction to increase her base offense level.

We do not believe that the Texas statute is broader than the generic definition simply because it includes in its definition the burning of vegetation. Several states similarly define arson to explicitly include the burning of grass, brush, or other vegetation,³ and many more states define arson as the burning of “property” or “any property,” ⁴ a definition that would certainly seem broad enough to encompass the burning of another person's vegetation. Given the current view of the states as to the kind of activity that constitutes arson, we have no difficulty concluding, as has the Fifth Circuit, that the Texas arson statute substantially corresponds to the generic, contemporary definition of arson. See Velez-Alderete, 569 F.3d at 544 (concluding that “the full range of conduct prohibited by the Texas arson statute falls under the generic, contemporary meaning of arson” such that a conviction under the Texas statute is a crime of violence for Guidelines purposes). The district court therefore did not err in relying on Knight's arson conviction to increase her base offense level to 20.

III.

Knight...