U.S. v. Permenter, No. 91-6339

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtSEYMOUR
Citation969 F.2d 911
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Martin PERMENTER, Defendant-Appellant.
Docket NumberNo. 91-6339
Decision Date09 July 1992

Page 911

969 F.2d 911
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Martin PERMENTER, Defendant-Appellant.
No. 91-6339.
United States Court of Appeals,
Tenth Circuit.
July 9, 1992.

William P. Earley, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Arlene Joplin, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., and Edward J. Kumiega, Asst. U.S. Atty., with her, on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before SEYMOUR, SNEED, * and MOORE, Circuit Judges.

Page 912

SEYMOUR, Circuit Judge.

Charles Martin Permenter appeals the district court's decision to sentence him pursuant to the provisions of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (1988). Under an agreement with the government, Mr. Permenter conditionally pled guilty to a one count indictment charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (1988). In support of enhancing the sentence under section 924(e), the government offered three prior Oklahoma state court convictions: On June 2, 1980, Mr. Permenter was convicted of robbery with a firearm; and on October 5, 1982, he was convicted of second degree burglary and attempted second degree burglary. Although both of the latter convictions were entered on the same day, the underlying events took place on different occasions. On the basis of the three prior convictions and the enhancement provision of the ACCA, the district court sentenced the defendant to fifteen years in prison.

Mr. Permenter argues that the district court impermissibly relied on the prior Oklahoma conviction for attempted burglary to enhance his sentence pursuant to section 924(e)(1). He also contends that the district court erred by separately counting the two convictions obtained during a single judicial proceeding toward enhancement. This court has since addressed the legal questions Mr. Permenter raises. See United States v. Strahl, 958 F.2d 980 (10th Cir.1992) (attempted burglary under Utah law not counted toward enhancement); United States v. Bolton, 905 F.2d 319 (10th Cir.1990) (convictions may count separately though simultaneously entered with sentences to run concurrently), cert. denied, --- U.S. ----, 111 S.Ct. 683, 112 L.Ed.2d 674 (1991). Applying Strahl, we reverse and remand for resentencing.

I.

We first address Mr. Permenter's contention that the district court improperly enhanced his sentence on the basis of the attempted burglary conviction. Under the statute, any three prior convictions for violent felonies may provide the basis for imposition of the mandatory minimum penalty of fifteen years. " '[V]iolent felony' means any crime ... that ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another...." 18 U.S.C. § 924(e)(1)(B)(ii) (emphasis added). Mr. Permenter concedes that his convictions for robbery and second degree burglary may properly be counted toward enhancement. He contends only that a conviction for attempted burglary does not fulfill the statutory definition and thus may not serve as part of the predicate for imposition of sentence under the ACCA.

The government argues in response that, as the district court concluded, attempted burglary is every bit as much a violent felony as burglary itself. See Rec., vol. I, doc. 7 at 4. The government maintains further that the information underlying Mr. Permenter's conviction for attempted burglary alleged that he attempted to break and enter a building, Dice's Mobile Homes, by prying open the rear door, and was only prevented from completing the crime by the arrival of the police. Brief of Plaintiff-Appellee at 4. The government contends that under this construction of the underlying information, Mr. Permenter's conviction for attempted burglary in Oklahoma can properly be counted toward enhancement under either: (1) the burglary provision; or (2) the "otherwise" clause.

The first contention is disposed of easily. The Supreme Court has recently defined burglary for purposes of section 924. "[A] person has been convicted of burglary ... if he is convicted of any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990) (emphasis added). As discussed in some detail in United States v. Barney, 955 F.2d 635 (10th Cir.1992), Taylor requires

Page 913

categorical analysis of the statute under which a proffered conviction is obtained. If the statute, on its face, defines burglary more broadly than Taylor, "then a conviction obtained under [that] statute may not, except in narrowly defined circumstances, be counted toward enhancement." Barney, 955 F.2d at 638.

Mr. Permenter was convicted under the Oklahoma attempt statute, Okla.Stat. tit. 21, § 42 (1991). That statute provides: "Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable...." Id. Because "any act" may count, a defendant may be found guilty of attempted burglary for merely "casing" the targeted structure. See Strahl, 958 F.2d at 986. Thus, Taylor's requirement of "unlawful or unprivileged entry" is not met on the face of the Oklahoma attempt statute. Moreover, the definition of the object offense, Okla.Stat. tit. 21, § 1435, includes automobiles in its list of structures and is therefore impermissibly...

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26 practice notes
  • United States v. Bowen, No. 17-1011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 3 d2 Setembro d2 2019
    ...McCann v. Bryon L. Rosquist, D.C., P.C., 185 F.3d 1113, 1117 (10th Cir. 1999) (emphasis added) (citing United States v. Permenter, 969 F.2d 911, 913 (10th Cir. 1992) ), judgment vacated on other grounds by Bryon L. Rosquist, D.C., P.C. v. McCann, 529 U.S. 1126, 120 S.Ct. 2003, 146 L.Ed.2d 9......
  • U.S. v. Wicks, No. 92-6070
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 4 d5 Junho d5 1993
    ...separately, though simultaneously entered in a single judicial proceeding, with sentences to run concurrently. United States v. Permenter, 969 F.2d 911, 915 (10th Cir.1992); United States v. Bolton, 905 F.2d 319, 323 (10th Cir.1990), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 6......
  • U.S. v. Phelps, No. 92-3197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 d1 Fevereiro d1 1994
    ...be, and endorsed, in this circuit. See, e.g., United States v. Amos, 984 F.2d 1067, 1070-71 (10th Cir.1993); United States v. Permenter, 969 F.2d 911, 913-14 (10th Cir.1992); Barney, 955 F.2d at 638. The categorical approach requires a court to focus on the specific elements of the particul......
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • 18 d3 Abril d3 2007
    ...key, ‘casing’ the targeted building, obtaining floor plans of a structure, or possessing burglary tools.” United States v. Permenter, 969 F.2d 911, 913 (C.A.10 1992), similarly excluded a conviction under an Oklahoma statute that could be satisfied by the defendant's “merely ‘casing’ the ta......
  • Request a trial to view additional results
26 cases
  • United States v. Bowen, No. 17-1011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 3 d2 Setembro d2 2019
    ...McCann v. Bryon L. Rosquist, D.C., P.C., 185 F.3d 1113, 1117 (10th Cir. 1999) (emphasis added) (citing United States v. Permenter, 969 F.2d 911, 913 (10th Cir. 1992) ), judgment vacated on other grounds by Bryon L. Rosquist, D.C., P.C. v. McCann, 529 U.S. 1126, 120 S.Ct. 2003, 146 L.Ed.2d 9......
  • U.S. v. Wicks, No. 92-6070
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 4 d5 Junho d5 1993
    ...separately, though simultaneously entered in a single judicial proceeding, with sentences to run concurrently. United States v. Permenter, 969 F.2d 911, 915 (10th Cir.1992); United States v. Bolton, 905 F.2d 319, 323 (10th Cir.1990), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 6......
  • U.S. v. Phelps, No. 92-3197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 d1 Fevereiro d1 1994
    ...be, and endorsed, in this circuit. See, e.g., United States v. Amos, 984 F.2d 1067, 1070-71 (10th Cir.1993); United States v. Permenter, 969 F.2d 911, 913-14 (10th Cir.1992); Barney, 955 F.2d at 638. The categorical approach requires a court to focus on the specific elements of the particul......
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • 18 d3 Abril d3 2007
    ...key, ‘casing’ the targeted building, obtaining floor plans of a structure, or possessing burglary tools.” United States v. Permenter, 969 F.2d 911, 913 (C.A.10 1992), similarly excluded a conviction under an Oklahoma statute that could be satisfied by the defendant's “merely ‘casing’ the ta......
  • Request a trial to view additional results

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