U.S. v. Maines
| Citation | 920 F.2d 1525 |
| Decision Date | 10 December 1990 |
| Docket Number | No. 89-5089,89-5089 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles Gene MAINES, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Tony M. Graham, U.S. Atty., and Susan W. Pennington, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.
June E. Tyhurst, Asst. Federal Public Defender, Tulsa, Okl., for defendant-appellant.
Before HOLLOWAY, Chief Judge, BALDOCK, Circuit Judge, and BRIMMER, Chief District Judge *.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
On June 8, 1988, the defendant-appellant, Charles Gene Maines (Maines), was charged in a one-count indictment with having violated 18 U.S.C. Sec. 922(g)(1), which prohibits the possession of a firearm by a convicted felon. 1 That section subjects violators to a statutory sentencing range of zero to five years' imprisonment. In January 1989 the government filed an enhancement of sentence information pursuant to Sec. 924(e)(1), charging that Maines had committed three previous "violent felonies." 2 Section 924(e)(1) provides for significantly greater punishment than Sec. 922(g)(1), subjecting Maines, inter alia, to a mandatory minimum sentence of fifteen years' imprisonment to life, with no opportunity for probation. 18 U.S.C. Sec. 924(e)(1). 3
On January 9, 1989, Maines entered a plea of guilty to the one-count indictment involving Sec. 922(g)(1), but pled not guilty to the government's information for sentence enhancement under Sec. 924(e)(1). Maines asserted that one of the three previous "violent felonies" that the government charged him with in the sentence enhancement information, a 1973 conviction for burglary in Texas, was not a "violent felony" as defined in Sec. 924(e)(1). He conceded that the two other prior convictions contained in the Information constituted "violent felonies" under Sec. 924(e)(1).
On February 1, 1989, the court held a hearing on the appropriateness of applying Sec. 924(e)(1) to Maines. The trial court entered a written order on May 10, 1989, addressing the contentions concerning sentence enhancement under Sec. 924(e)(1). The court found that by stipulation and introduction of court documents three felony convictions were introduced: (1) a December 1973 conviction in Grayson County, Texas, "of burglary [of a residence];" (2) a 1978 conviction in Bryan County, Oklahoma, of manslaughter in the first degree; and (3) a 1984 conviction in Bryan County, Oklahoma, "of shooting with intent to kill--AFCF." The court noted that convictions (2) and (3) were conceded to fall within the violent felony provisions of Sec. 924(e)(1), but that defendant Maines asserted a constitutional challenge to the government's reliance on conviction (1).
The order quoted from the Information of December 19, 1973, which charged defendant with the offense in Grayson County, Texas, and contained the following terms on or about the 7th day of October A.D.1973, and anterior to the filing of this information, in the County of Grayson, and State of Texas, CHARLIE GENE MAINES did then and there unlawfully, by force, threats, and fraud, break and enter a house then and there occupied and controlled by Marion Harris hereinafter called "Injured Party" with the intent then and there to fraudulently take therefrom corporeal personal property therein being and then and there belonging to the said Injured Party from the possession of the said Injured Party, without the consent of said Injured Party, and with the intent then and there to deprive the said Injured Party, of the value of the same, and to appropriate the same to the use and benefit of the said Defendant, CHARLIE GENE MAINES against the peace and dignity of the State.
Defendant does not dispute that it was this 1973 charge respecting conviction (1) to which defendant pled guilty in the Texas court and was sentenced to five years' confinement, the defendant being placed on probation by the Texas court. The order of the federal district court noted a discourse by the court with defense counsel. The order referred to the charge document, quoted above, and stated that defense counsel conceded that conviction (1) was a result of a guilty plea or a verdict and finding of guilty "of that particular residential burglary." Order at 4.
The district court's order rejected defendant Maines' constitutional claims that 18 U.S.C. Sec. 924(e)(1) violated due process in that defendant was denied the right to be sentenced on the particular facts of his case, and that due process was infringed because Sec. 924(e)(1) does not bear a reasonable relation to a legitimate legislative purpose. The order concluded that defendant's claim of violation of the equal protection component of the Due Process Clause also failed. It was argued that there is a wide disparity between the states as to the elements of burglary. The court held, however, that the concluding provision of Sec. 924(e)(1) was applicable here because the defendant's conduct concerning conviction (1) in Texas presented a serious potential risk of personal injury to another within the meaning of the concluding catchall provision of Sec. 924(e)(1). The order lastly held that the sentencing enhancement mandated by Sec. 924(e)(1) did not amount to cruel and unusual punishment.
The district judge sentenced Maines to 15 years' imprisonment without parole, with credit for time served in jail under the federal offense, and four years' supervised release.
Maines appeals his enhanced sentence, reasserting objections to application of Sec. 924(e)(1) in his sentencing. He argues: that his 1973 Texas conviction for "burglary" was not common law burglary, which definition the statute adopted, and thus not a "violent felony" under Sec. 924(e)(1); that construing burglary as variously defined by the several states violates equal protection principles; and that the district court erred in holding that his 1973 Texas conviction was for an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," under the concluding catchall provision of the enhancement statute.
We are of the opinion that our review is one of legal determinations made by the district court in its order and sentence, in considering the claims of error asserted here by Maines. 4 In doing so we have a controlling recent decision of the Supreme Court, which the district judge did not have, Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607. Taylor made several rulings of particular significance here. Because of the decision it is unnecessary to address specifically the district court's thoughtful review of Maines' equal protection concerns since Taylor established a uniform definition of the term "burglary" for the purpose of sentence enhancement under Sec. 924(e). 5 The Court made clear its construction of the term "burglary" in Taylor, 110 S.Ct. at 2158:
We conclude that a person has been convicted of burglary for purposes of Sec. 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
This court had previously applied the definition of burglary as it appeared in the Armed Career Criminal Act: " 'burglary' is 'any felony 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.' " United States v. Silkwood, 893 F.2d 245, 250 (10th Cir.1989). This definition is similar to that adopted by the Supreme Court in Taylor, quoted above, but we will, of course, apply the precise definition from Taylor, as we do here.
Taylor is also instructive in holding that Sec. 924(e) mandates a formal categorical approach in deciding whether a prior crime may be considered for enhancement purposes--"looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor, 110 S.Ct. at 2159.
Following the approved procedure, we conclude that Maines' 1973 burglary conviction does come within the enhancement provisions of Sec. 924(e). The evidence offered by the government consisted of the 1973 Information, quoted earlier, which charged that Maines did "by force, threats, and fraud, break and enter a house...." The Texas court did not state which statute the conviction of Maines was under, saying only that his guilty plea was received and entered, and finding that "Defendant is guilty of the offense of burglary...." The court imposed a sentence of five years' confinement but placed Maines on probation. 6 Maines' brief on appeal states that the offense must be for a violation of Article 1390, Vernon's Texas Statutes Annotated, which provides:
"Burglary" by breaking. He is also guilty of burglary who, with intent to commit a felony or theft, 7 by breaking, enters a house in the daytime.
We agree that Article 1390 is the burglary statute that appears to apply, considering the Information to which Maines pled guilty and the terms of that Texas " 'Burglary' by breaking" law. The Information did not allege entry of a house at night, or that during either day or night Maines entered and remained concealed therein. These are requirements, among others, of Article 1389, "Burglary," and are not alleged. Therefore, we agree with Maines that Article 1390 should be viewed as the statute of conviction. The government makes no argument addressing the applicable Texas statute.
Turning back to the generic burglary definition adopted...
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