U.S. v. Matthews

• Citation: 278 F.3d 880
• Decision Date: 29 January 2002
• Docket Number: No. 98-10499.,98-10499.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Earl MATTHEWS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

278 F.3d 880

UNITED STATES of America, Plaintiff-Appellee, v. James Earl MATTHEWS, Defendant-Appellant.

No. 98-10499.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 24, 2001.

January 29, 2002.

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John C. Lambrose and Paul G. Turner, Assistant Federal Public Defenders, Las Vegas, NV, for the defendant-appellant.

Peter Ko, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellee.

Before: SCHROEDER, Chief Judge, and B. FLETCHER, KOZINSKI, O'SCANNLAIN, FERNANDEZ, T.G. NELSON, GRABER, McKEOWN, WARDLAW, PAEZ, and BERZON, Circuit Judges.

OPINION

PAEZ, Circuit Judge.

Defendant James Earl Matthews ("Matthews") was convicted of one count of being a felon in possession of a firearm and sentenced as an Armed Career Criminal to 280 months in prison under 18 U.S.C. § 924(e) and United States Sentencing Guidelines Manual § 4B1.4(b)(3)(B). Matthews appealed both the underlying conviction and his sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

A three-judge panel of this court affirmed Matthews's conviction, reversed his sentence, and remanded for resentencing on the existing record. We agreed to rehear this case en banc to determine whether, in remanding for resentencing, it was appropriate to limit the district court's discretion to consider additional evidence. We hold, consistent with our past practice, that we generally will not limit the district court's discretion to consider additional evidence when we remand for resentencing. We further hold that the circumstances of this case do not warrant a departure from this general rule. We adopt as our own the portions of the panel opinion affirming the conviction and reversing Matthews's sentence. Contrary to the panel opinion, however, we remand for resentencing without limiting the district court to the existing record.

BACKGROUND¹

Matthews was arrested by agents for the Bureau of Alcohol, Tobacco, and Firearms ("ATF") after he sold three firearms to a paid ATF informant. He was indicted on three counts of being a felon in possession of firearms and two counts of possession of stolen firearms. After a trial, the jury convicted Matthews of all three felon-in-possession counts, but acquitted him of the two stolen firearms counts. The district court subsequently dismissed two of the three felon-in-possession counts as multiplicitous.

The probation officer's Presentence Investigation Report ("PSR") calculated Matthews's base offense level as 24. The officer added one point because the crime involved three guns and two points because the crime involved stolen guns, for an adjusted offense level of 27. The PSR also recommended that the district court sentence Matthews as an Armed Career Criminal under 18 U.S.C. § 924(e) and United States Sentencing Guidelines Manual § 4B1.4(b)(3)(B). According to the PSR, Matthews qualified for an Armed Career Criminal enhancement ("ACC enhancement") because he was at least 18 years old at the time of the crime; the offense charged was a qualifying felony; and he had at least three prior qualifying felony convictions — a conviction for burglary and larceny in 1974, an attempted burglary conviction in 1978, a conviction for burglary and battery with intent to commit a crime in 1985, and a burglary conviction in 1987. The PSR did not specify under which state statutes Matthews had been convicted. The Armed Career Criminal identification enhanced Matthews's sentence to offense level 33, increasing the sentencing range for Matthews from 130-162 months to 235-293 months.

Pursuant to Federal Rule of Criminal Procedure 32(b)(5), Matthews filed written objections to the PSR. Matthews objected to application of the ACC enhancement. He contended that three of the four burglary and attempted burglary convictions that the PSR identified as "violent felonies" did not involve the use of force, threat of force, or use of weapons. Matthews argued that evidence of the use or threat of force was required by 18 U.S.C. § 924(e)² and that, without such evidence, the prior convictions could not be used to classify him as an Armed Career Criminal. The government filed a written response in support of the ACC enhancement, but did not identify the state statutes of conviction or offer any evidence regarding these convictions. At the sentencing hearing, Matthews's counsel also objected to the ACC enhancement on the ground that certified copies of conviction were required. The government did not offer any additional evidence at the hearing; it argued that certified copies of the judgments were unnecessary because the rules of evidence did not apply to sentencing proceedings. The district court overruled Matthews's objections to the PSR and sentenced him to 280 months in prison as an Armed Career Criminal.

Matthews timely appealed both his sentence and the underlying conviction. He challenged, among other things, the sufficiency of the evidence supporting the conviction, the introduction of "other crimes" evidence at trial, the effect on the jury at trial of the multiplicitous indictment, improper prosecutorial vouching during closing argument, and the application of the ACC enhancement. In his appeal, Matthews recast his objection to the ACC enhancement, arguing that the government had failed to show that Matthews's prior felony convictions were qualifying burglaries under § 924(e) because it did not introduce the state statutes of conviction or other evidence that would establish the elements of the statutes.

The panel rejected each of Matthews's challenges to his conviction. It also concluded that the district court erred as a matter of law in sentencing Matthews as an Armed Career Criminal because it did not analyze the statutes of conviction or certified copies of the convictions before imposing the ACC enhancement, as required by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and our subsequent cases, United States v. Potter, 895 F.2d 1231, 1238 (9th Cir.1990), and United States v. Phillips, 149 F.3d 1026, 1033 (9th Cir.1998).

The panel remanded for resentencing, but limited the scope of the district court's sentencing authority to consideration of evidence in the existing record. The panel concluded that the government "patently failed to comply with a critical requirement" by failing to introduce the statutes or certified copies of the convictions and therefore "should not be able to do on remand what it has no excuse for failing to do the first time around." Matthews I, 240 F.3d at 821. In doing so, the panel relied on cases in which our sister circuits have remanded for resentencing on the existing record. Id. at 821-22 (citing United States v. Hudson, 129 F.3d 994, 995 (8th Cir.1997) (per curiam); United States v. Dickler, 64 F.3d 818, 832 (3d Cir.1995); United States v. Leonzo, 50 F.3d 1086, 1088 (D.C.Cir.1995); United States v. Parker, 30 F.3d 542, 553-54 (4th Cir.1994); United States v. Monroe, 978 F.2d 433, 435-36 (8th Cir.1992)). We granted en banc review to consider whether it was appropriate in this case to limit the district court's discretion to consider additional evidence.

DISCUSSION

I. Challenges to the Conviction and Sentence

We adopt as our own the portions of the panel opinion affirming Matthews's conviction. Matthews I, 240 F.3d at 814-19. We also adopt as our own the portion of the panel's opinion, id. at 819-21, that holds that the district court erred in sentencing Matthews as an Armed Career Criminal. We summarize the panel's analysis of the sentencing issue briefly here and address an additional argument raised by the government in its petition for rehearing regarding the sufficiency of Matthews's objection to the application of the ACC enhancement.

We conclude that the district court erred in sentencing Matthews as an Armed Career Criminal because it failed to analyze the statutes under which Matthews was previously convicted to determine whether they satisfied the elements of a "generic burglary" under Taylor. As we recently explained in United States v. Franklin, 235 F.3d 1165, 1170 & n. 5 (9th Cir.2000), Taylor requires that, when the government seeks to apply the ACC enhancement, it must introduce either the statutes of conviction or some other documentary evidence that "clearly establishes" either the statutes under which the defendant was convicted or the elements of those statutes. See also Phillips, 149 F.3d at 1033 (holding that it was sufficient that the government "submitt[ed] unchallenged, certified records of conviction and other clearly reliable evidence"); Potter, 895 F.2d at 1238 (requiring that the sentencing court examine the statutes of conviction to determine whether the convictions constitute qualifying felonies under Taylor). Although the government acknowledges its obligation to establish the statutes of conviction under Taylor, it nevertheless argues that the district court did not err in failing to analyze them because Matthews did not make a proper objection. We disagree.

In his Rule 32 objection, Matthews clearly disputed his classification as an Armed Career Criminal on the basis that the prior convictions relied upon by the prosecution did not qualify under the statute. Although Matthews erroneously argued that the district court should find that the convictions did not qualify because of the circumstances of the individual crimes, rather than the elements of the statutes of conviction as required by Taylor, 495 U.S. at 602, 110 S.Ct. 2143, both the government and the district court recognized that the Taylor standard governed. This is clear because both explicitly discussed Taylor in responding to Matthews's objections. Indeed, the government even quoted the Taylor standard in its written response.

The district court did not, however, analyze the statutes of conviction to determine whether the Taylor standard was in fact...