U.S. v. Matthews, 02-10445.

• Decision Date: 07 July 2004
• Docket Number: No. 02-10445.,02-10445.
• Citation: 374 F.3d 872
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Earl MATTHEWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

374 F.3d 872

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

No. 02-10445.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2003.

Filed July 7, 2004.

John C. Lambrose, Assistant Federal Public Defender, Las Vegas, NV, for the defendant-appellant.

Peter Ko, Assistant U.S. Attorney, Las Vegas, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CR-S-98-040-PMP(LRL).

Before CUDAHY,^* BEEZER and KLEINFELD, Circuit Judges.

CUDAHY, Circuit Judge:

James Earl Matthews appeals his criminal sentence of 120 months' imprisonment, which was imposed in accordance with U.S.S.G. § 2K2.1(a)(2), because the district court determined that his 1987 burglary of an occupied building qualified as a crime of violence under U.S.S.G. § 4B1.2(a)(2). He argues that burglary of an occupied building in Nevada is not a crime of violence according to the United States Sentencing Guidelines, and that the appropriate Guidelines range is therefore 92-115 months.

I. BACKGROUND

In July 1998, a jury found Matthews guilty of being a felon in possession of a deadly weapon pursuant to 18 U.S.C. § 922(g). The Presentence Investigation Report (PSR) recommended that Matthews qualified for sentencing pursuant to the Armed Career Criminal Act (ACCA), and he was sentenced to 280 months. However, on appeal, we found that the government had failed to prove that Matthews qualified as an armed career criminal, so we vacated his sentence and remanded to the district court for resentencing, without limiting review to the existing record. United States v. Matthews, 278 F.3d 880, 889-90 (9th Cir.2002) (en banc). On remand, the government argued that Matthews' base offense level should be set in accordance with U.S.S.G. § 2K2.1(a)(2) because he had two prior convictions which fit the definition of a crime of violence under U.S.S.G. § 4B1.2(a)(2) and qualify him as a Career Offender. The two convictions proffered were a 1986 battery, whose inclusion Matthews did not contest, and a 1987 conviction in Nevada for burglary of an occupied building, which Matthews argued was not a crime of violence according to the Guidelines. The district court, relying mainly on our decision in United States v. Williams, 47 F.3d 993 (9th Cir.1995), found that the burglary counted as a crime of violence and accordingly sentenced Matthews to the statutory maximum of 120 months, which was below the Guidelines range of 130 to 162 months that otherwise would have applied.

II. DISCUSSION

"We review the district court's interpretation of the Sentencing Guidelines and its determination that ... [the defendant] is a career offender de novo." United States v. Kovac, 367 F.3d 1116, 2004 WL 1058201 at * 1 (9th Cir.2004) (quoting United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.2003)).

United States Sentencing Guidelines Section 2K2.1(a)(2) sets the base offense level for unlawful possession of a firearm at 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of... a crime of violence." According to the Guidelines, a "crime of violence" includes a felony offense that "is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). A determination of whether a prior conviction qualifies as a predicate offense commences with a categorical approach, under which we may not examine the underlying facts of the prior conviction, but instead "look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If the statute is too broad to qualify categorically, but "documentation or judicially noticeable facts ... clearly establish that the conviction is a predicate conviction for enhancement purposes," then the prior conviction may qualify under a modified categorical approach established by the Supreme Court in Taylor. United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S at 602, 110 S.Ct. 2143). The government concedes that the Nevada statute under which Matthews was convicted of burglary, Nev.Rev.Stat. 205.060, encompasses both dwellings and non-dwellings and therefore does not necessarily contemplate a burglary of a dwelling. (Gov't Br. at 3.) In addition, the government concedes that there are no court documents indicating that the building burglarized by Matthews was a dwelling.¹ Id. at 3-4. Therefore, Matthews' conviction is not for a "burglary of a dwelling" under either the categorical or the modified categorical approaches set out in Taylor.

Nonetheless, the government argues that Matthews' burglary conviction in 1987 was a crime of violence under the "otherwise" clause of U.S.S.G. § 4B1.2(a)(2) because it "involve[d] conduct that presents a serious potential risk of physical injury to another," namely, burglary of an occupied building. Matthews counters with two arguments. In a Rule 28(j) filing, he argues that our recent decision in United States v. Wenner, 351 F.3d 969 (9th Cir.2003), precludes us from considering whether any burglary of a non-dwelling, regardless of its particular circumstances, can be treated as a qualifying offense under the "otherwise" clause. But should we nonetheless proceed to determine whether Matthews' burglary of an occupied building qualifies under the "otherwise" clause, he argues that it does not.

A. Can Burglaries of Non-Dwellings Qualify Under the "Otherwise" Clause?

Before we may decide whether the burglary of an occupied building "involves conduct that presents a serious potential risk of physical injury to another," U.S.S.G. § 4B1.2(a), we must first determine whether that decision is in fact foreclosed to us. Matthews would apparently have us interpret our recent decision in Wenner to yield the same result as the Tenth Circuit's approach in United States v. Smith, 10 F.3d 724, 732-34 (10th Cir.1993), in which a determination was made that the Sentencing Commission purposefully chose to omit burglaries other than burglaries of a dwelling from § 4B1.2 on policy grounds. Thus, under a narrow interpretation of the "otherwise" clause, non-dwelling burglaries could not qualify as crimes of violence.²

In Wenner, we examined whether a conviction under a state residential burglary statute that can include as a "dwelling" "a fenced area, a railway car, or cargo container" would by its nature qualify as a crime of violence. Wenner, 351 F.3d at 972 (citing Wash. Rev.Code § 9A.04.110(5)). The majority first held that, under the categorical approach, "burglary of a dwelling" in § 4B1.2(a)(2) refers to a generic burglary as defined by the Supreme Court in Taylor — in other words, unlawfully entering or remaining in a building or structure with intent to commit a crime — that occurred in a dwelling. Thus, the Washington state residential burglary statute addressed by Wenner was broader in scope than a § 4B1.2(a)(2) (Taylor) "burglary of a dwelling" because it additionally included things that are not buildings or structures under federal law. See Wenner, 351 F.3d at 972-73. After determining that the government failed to establish that the defendant had been convicted of a crime of violence under the modified categorical approach, the majority in Wenner went on to hold that residential burglary under the Washington statute was not a crime of violence under the "otherwise" clause, because if "residential burglary, no matter how broadly worded" were to qualify as a crime of violence under the "otherwise" clause, it would "render[] the limitation on the classification of burglaries ... to burglaries of `dwellings' mere surplusage." Wenner, 351 F.3d at 974-75.

Our holding in Wenner is not as restrictive as the Tenth Circuit's holding in Smith, which ascribed to the Sentencing Commission an intent to exclude all other burglaries from the category of crimes of violence by the inclusion of the specific crime, "burglary of a dwelling."³ We did not, in Wenner, overrule our earlier decisions in which we had found that burglaries of buildings that are not dwellings did qualify (under certain circumstances) as crimes of violence under the "otherwise" clause. See, e.g., United States v. Sherman, 928 F.2d 324, 327 (9th Cir.1991) (holding under predecessor definition of "crime of violence" that burglary of any building at night wielding a firearm creates serious risks and is therefore a crime of violence under categorical approach to U.S.S.G. § 4B1.2(a)(2)); Williams, 47 F.3d at 995 (9th Cir.1995) (holding that where defendant pleaded nolo contendere to burglarizing "residence and building occupied by" the victim, his conduct qualified as a crime of violence under the modified categorical approach both because he burglarized a dwelling and because burglary of an occupied structure presented a serious risk of violence). We specifically noted in Wenner "a complete absence of any briefing on the issue" whether an overbroad residential burglary could still qualify as a crime of violence under the "otherwise" clause. Wenner, 351 F.3d at 975 n. 5. And thus, though we did state that it would be "unsound statutory interpretation to use the general, catchall ... provision to include all other burglaries as crimes of violence," id. at 975 (emphasis added), the key to Wenner is that even though certain conduct (whether defined categorically or by a modified categorical approach) may present a serious potential risk of physical injury to another, it may still be excluded under the "otherwise" clause if including it would render the inclusion of "burglary of a dwelling" surplusage. Cf. United States v. Riley, 183 F.3d 1155, 1160 n. 13 (9th Cir.1999) (noting that determination under...