U.S. v. Melton

• Decision Date: 24 September 2003
• Docket Number: No. 02-30234.,02-30234.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Len MELTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

344 F.3d 1021

UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Len MELTON, Defendant-Appellant.

No. 02-30234.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 11, 2003 — Anchorage, Alaska.

Filed September 24, 2003.

Mary C. Geddes, Assistant Federal Defender, District of Alaska, Anchorage, Alaska, for the appellant.

Timothy M. Burgess, United States Attorney; Stephan A. Collins, Assistant United States Attorney, District of Alaska, Anchorage, Alaska, for the appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-02-00009-a-JKS.

Before: Harry Pregerson, William C. Canby, Jr., and M. Margaret McKeown, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

This case arises out of Jeffrey Len Melton's conviction for being a felon in possession of a firearm and the district court's imposition of a sentence enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The district court concluded that Melton had the requisite three prior violent felony convictions to qualify for an enhancement under the ACCA. We agree and affirm.

BACKGROUND

In 2002, federal agents arrested Melton after he arrived at a friend's house in Wasilla, Alaska to pick up a handgun that Melton had mailed from Colorado. After a search of Melton's vehicle revealed that he had a rifle in his back seat, Melton was charged in a two-count indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

Melton pled guilty under a written plea agreement to one of the felon-in-possession counts, and the Government agreed to dismiss the other count. The plea agreement contemplated that Melton's sentence might be subject to the ACCA, which imposes a mandatory fifteen-year minimum sentence for violators of § 922(g) who have three prior convictions for violent felonies. Melton preserved the right to argue that he was not subject to the ACCA.

In its Presentence Investigation Report ("PSR"), the United States Probation Office concluded that Melton was subject to sentencing under the ACCA because he had at least four prior felony convictions that met the definition of "violent felony" under the statute: two 1976 convictions in Alexandria, Virginia for armed robbery and statutory burglary; a 1982 conviction in Arizona for residential burglary; and a 1984 conviction in Fairbanks, Alaska for Robbery and Nighttime Burglary in an Occupied Dwelling. The PSR also listed, as part of Melton's criminal history, a 1990 conviction in Palmer, Alaska for second degree sexual abuse of a minor.

At his sentencing hearing, Melton conceded that the 1984 Fairbanks conviction qualified as a predicate felony under the ACCA. He contested the inclusion of the remaining convictions. The district court did not count the 1982 Arizona burglary as an ACCA predicate felony because there was insufficient documentation of the conviction. The court concluded, however, that Melton still met the prerequisites for an ACCA sentencing enhancement because the other convictions qualified as violent felonies. Although the court found that either of the 1976 Virginia convictions could count as a violent felony, it counted only one of the convictions for sentencing purposes because the convictions did not occur on different occasions, as required under § 924(e)(1) of the ACCA. The court sentenced Melton to the statutory minimum of fifteen years.

DISCUSSION

The ACCA's penalty enhancement provisions are applicable if a defendant has been convicted, on separate occasions, of three violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). A "violent felony" is defined as:

any crime punishable by imprisonment for a term exceeding one year ... that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

Id. at § 924(e)(2)(B).

Melton challenges the district court's conclusion that his 1976 Virginia convictions for burglary and robbery, as well as his 1990 Alaska sexual abuse conviction, meet § 924(e)'s violent felony definition. In reviewing these convictions which we consider separately, we are guided by the Supreme Court's directive in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), that courts must use a formal "categorical approach" in determining whether a given conviction qualifies as a predicate under the ACCA. That is, we look only to the fact of conviction and "the statutory definitions of the prior offenses, ... not to the particular facts underlying those convictions." Id. at 600, 110 S.Ct. 2143. If a statute fails to qualify categorically, Taylor permits us to look to certain documentation or judicially noticeable facts that "clearly establish" that the defendant was convicted for an offense qualifying as a violent felony under the ACCA. United States v. Franklin, 235 F.3d 1165, 1170 & n. 5 (9th Cir. 2000) (internal quotation marks omitted) (identifying the types of documentation permitted under the second step of Taylor).

I. 1976 VIRGINIA BURGLARY CONVICTION

Under Taylor, we first determine the fact of conviction under a particular statute. Where the conviction is under a state burglary statute, we compare the elements listed in that statute with those of "burglary" as defined by the ACCA. Mindful that the definition of burglary may vary from state to state, the Supreme Court has held that the term "burglary," as used in § 924(e)(2)(B)(ii), refers to "generic" burglary, meaning any offense that has "the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599, 110 S.Ct. 2143. If a state statute defines burglary more broadly than this generic definition and would allow a defendant to be convicted without all of the above elements being met, then the conviction fails to qualify categorically as an ACCA predicate. See United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir.1997).

Had the district court been presented with Melton's statute of conviction, a certified judgement of conviction, or some other documentary evidence that "clearly establishes" the burglary statute under which Melton was convicted, United States v. Matthews, 278 F.3d 880, 884 (9th Cir. 2002) (en banc) (internal quotation marks omitted), the analysis under the first step of Taylor would be straightforward. But no such documentation was offered. The record before the sentencing court consisted only of an indictment and a PSR, and the PSR did not list the statute under which Melton was ultimately convicted. Instead, the PSR relied directly on the indictment, which charged Melton with "break[ing] and enter[ing], in the nighttime," the shop and storehouse of the Temple View Garage ... with the intent to commit larceny, in violation of Va.Code § 18.1-89. This information, although establishing the crime for which Melton was charged, is insufficient to establish that Melton was actually convicted of any particular crime or under any specific statute. See United States v. Sandoval-Venegas, 292 F.3d 1101, 1108 (9th Cir.2002) ("The charging papers are inadequate unless they are combined with documents that demonstrate the conviction was for the offense as charged.").

The Government contends that the fact of conviction under § 18.1-89 is self-evident because Melton mentioned in his sentencing memorandum to the district court that he was convicted in 1976 under Va.Code § 18.1-89. This argument ignores that a lone reference in a defendant's sentencing memorandum, without more, does not qualify as the type of documentary evidence that clearly establishes the fact of conviction under a particular statute. See Sandoval-Venegas, 292 F.3d at 1106 (listing a certified judgment of conviction or a clear, uncontested PSR as examples of permissible sources).

Further, even if the documentation were sufficient, the statutes cited by the Government do not contain elements that demonstrate Melton was convicted of generic burglary. The version of § 18.1-89 relied upon by the Government is a penalty provision for certain violations of § 18.1-88 and does not contain any elements of an offense at all. Section 18.1-88, now codified at § 18.2-90, is entitled "Entering dwelling house, etc. with intent to commit murder, rape or robbery"¹ and does contain substantive elements. However, § 18.1-88 is broadly defined, prohibiting breaking and entering not only into certain specified structures, but into ships, vessels, river crafts, and railroad cars, as well as automobiles used for human habitation. This definition exceeds the Supreme Court's definition of generic burglary. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143 (limiting generic burglary to include only buildings or structures).

The record contains no qualifying statute under which Melton was convicted. Nor does the record contain any judicially noticeable qualifying facts that would, under the second step of the Taylor analysis, establish that Melton's conviction is a predicate conviction for enhancement purposes. The only documents in the record were a charging instrument stating that Melton burglarized the shop and storehouse of the Temple View Garage, and a PSR that reiterates the same information. The district court erroneously relied solely on the charging instrument's description of the crime in concluding that Melton was convicted for a violent felony. We have consistently held that such documentation is insufficient to establish that a defendant pled guilty to the elements of the generic definition of a crime. See, e.g., United States v. Corona-Sanchez, 291 F.3d 1201, 1212-13 (9th Cir.2002) (en banc); United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir.2000...