U.S. v. McFalls

• Decision Date: 28 January 2010
• Docket Number: No. 08-5839.,08-5839.
• Citation: 592 F.3d 707
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robby Lee McFALLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

592 F.3d 707

UNITED STATES of America, Plaintiff-Appellee, v. Robby Lee McFALLS, Defendant-Appellant.

No. 08-5839.

United States Court of Appeals, Sixth Circuit.

Argued: December 1, 2009.

Decided and Filed: January 28, 2010.

ARGUED: C. Douglas Thoresen, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Jimmie Lynn Ramsaur, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: C. Douglas Thoresen, Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Jimmie Lynn Ramsaur, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Robby McFalls appeals his classification as a career offender under U.S.S.G. § 4B1.1, based on his prior convictions in South Carolina for four counts of second degree burglary of a dwelling and one count of assault and battery of a high and aggravated nature. McFalls argues on appeal that his four convictions for burglary, sentenced on the same day, should be counted as a single sentence for criminal history purposes. He also argues that conviction under South Carolina's second degree burglary statute does not categorically qualify as a crime of violence because the statute includes crimes as far as 200 feet from the home. Finally, he argues that South Carolina's common-law crime of assault and battery of a high and aggravated nature does not categorically qualify as a crime of violence because the crime includes some actions taken recklessly or negligently rather than intentionally. Each of these three arguments has merit, and together they require a remand for further proceedings.

I.

In 1993 Robby McFalls committed a series of burglaries in South Carolina. After a single arrest, McFalls pleaded guilty to four counts of second degree burglary and was sentenced on November 11, 2005. Although two of the burglaries were indicted as first degree burglary, those charges were reduced to second degree burglary. The indictments for second degree burglary stated that they were for burglary in the second degree (dwelling) and that McFalls "willfully and unlawfully" entered the dwellings of two separate individuals "without consent and with the intent to commit a crime therein."

In 1996, McFalls pleaded guilty to an additional indictment for assault and battery of a high and aggravated nature (ABHAN), a South Carolina common-law crime. The indictment alleged:

That Robby Lee McFalls did in Spartenburg [sic] County on or about July 7, 1996 commit an assault and battery upon the victim, Christopher Self, constituting an unlawful act of violent injury to the person of the said victim, accompanied by circumstances of aggravation, to wit: By striking the victim about the face with an unknown object, in that the victim required medical treatment.

McFalls was sentenced to eight years for this offense, but the sentence was suspended and McFalls was placed on three years' probation.

In 2003, McFalls committed a series of offenses, including two robberies for which he is currently serving a 25-year sentence in state prison, and the bank robbery that is the subject of this appeal. On June 26, 2006, McFalls pleaded guilty to the bank robbery and to using a gun during that robbery, in violation of 18 U.S.C. § 924(c). McFalls was sentenced on November 1, 2007, the day the 2007 version of the Sentencing Guidelines Manual went into effect. At his sentencing hearing for the bank robbery and weapons charge, McFalls argued that although he had a lengthy criminal history, he did not qualify as a career offender for sentencing purposes because he did not have two qualifying convictions for crimes of violence, as required by U.S.S.G. § 4B1.1. McFalls argued that his South Carolina burglary convictions were not burglaries of a dwelling because of the state's expansive definition of "dwelling," but the main focus of his argument before the district court was that he had pleaded guilty to the burglaries with the understanding that South Carolina would classify them as non-violent burglaries. The district court concluded that McFalls' convictions for second degree burglary were crimes of violence, based on two cases—one from the Sixth Circuit and one from the Fourth Circuit— holding that second degree burglary of a dwelling in South Carolina was a crime of violence. Because the Presentence Report was prepared based on the 2005 version of the Sentencing Guidelines Manual and McFalls had four convictions for burglary, the district court held that McFalls qualified as a career offender and therefore had a guidelines range of 188 to 235 months for the bank robbery, plus an additional 84-month sentence for using a weapon during that robbery, to be served consecutively to the bank robbery charge. Without the career-offender enhancement, the bank-robbery charge would have had a guidelines range of 77 to 96 months, in addition to the 84 months for the weapons charge. The Presentence Report also listed the ABHAN conviction as a crime of violence for sentencing-enhancement purposes, and McFalls did not object to that classification. The district court sentenced McFalls to 272 months' imprisonment, the lowest possible sentence within the guidelines range because of McFalls' classification as a career offender. McFalls filed this timely appeal.

II.

McFalls' four prior convictions for violating South Carolina's second degree burglary statute should have been counted as a single sentence under the Sentencing Guidelines because the four convictions were sentenced on the same day and the four offenses were not separated by an intervening arrest. According to the Sentencing Guidelines, "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." U.S.S.G. § 1B1.11(a). The 2007 Sentencing Guidelines Manual became effective November 1, 2007, the day McFalls was sentenced for the bank robbery and the associated weapons charge. For criminal history purposes, the 2007 Guidelines Manual states,

If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.

U.S.S.G. § 4A1.2(a)(2) (emphasis added). Because McFalls' four burglary convictions were not separated by an intervening arrest and were sentenced on the same day, the Guidelines count them as a single sentence for criminal history purposes.

The Government does not contest that McFalls' burglary convictions should count as a single sentence under the 2007 Guidelines. Rather, the Government argues that because McFalls failed to object to sentencing under the 2005 Guidelines in the district court, he must show that it was plain error to use the 2005 Guidelines. The Government argues that no plain error was shown because the error did not affect defendant's substantial rights, as required for plain error reversal under our precedents. E.g., United States v. Davis, 397 F.3d 340, 346 (6th Cir.2005). The requirement that the error affect the defendant's substantial rights "usually means that the error must have affected the outcome of the district court proceedings." Id. (quoting United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). As the Government sees it, the use of the 2007 Guidelines Manual would not have changed the final determination of McFalls' criminal history category and offense level, because McFalls would still have one burglary conviction and one ABHAN conviction, both of which are crimes of violence for sentencing-enhancement purposes. The argument thus turns on the resolution of the two remaining issues on this appeal, concerning whether the burglary and the ABHAN offenses may be counted as crimes of violence for career offender purposes.

III.

McFalls' prior sentence for second degree burglary of a dwelling does not qualify categorically as a crime of violence for purposes of U.S.S.G. § 4B1.1 U.S.S.G. § 4B1.2 defines "crime of violence" as follows:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Thus, the crime of violence definition can be met by satisfying one of three tests: (1) by qualifying as a "burglary of a dwelling," one of the specifically enumerated crimes of violence; (2) by having as an element the use, attempted use, or threatened use of physical force against another; (3) or by presenting a serious potential risk of physical injury to another. See United States v. Wilson, 168 F.3d 916, 927 (6th Cir.1999). South Carolina's second degree burglary statute does not meet these three tests because of its broad definition of "dwelling," which extends to uninhabitable structures as far as 200 yards from a dwelling house.

A. Generic "Burglary of a Dwelling"

First, the South Carolina statute's broad definition of "dwelling" means that the crime encompasses more conduct than the generic definition of "burglary of a dwelling," and thus does not qualify categorically as a "burglary of a dwelling" for sentencing-enhancement purposes. McFalls pleaded guilty to violating S.C.Code Ann. § 16-11-312(A),...