U.S. v. Sherman

• Decision Date: 18 March 1991
• Docket Number: No. 89-50552,89-50552
• Citation: 928 F.2d 324
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Frederick SHERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 324

928 F.2d 324

UNITED STATES of America, Plaintiff-Appellee, v. David Frederick SHERMAN, Defendant-Appellant.

No. 89-50552.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 1, 1990.

Submission Deferred Oct. 9, 1990.

Resubmitted Oct. 31, 1990.

Decided March 18, 1991.

Kevin R. Brehm, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Robert R. Calo, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, BEEZER and TROTT, Circuit Judges.

BOOCHEVER, Circuit Judge:

OVERVIEW

David Frederick Sherman pled guilty to five counts of bank robbery and attempted bank robbery. His sentence was adjusted under the career offender provisions of the Sentencing Guidelines for having two prior convictions for crimes of violence. He appeals this adjustment, arguing that the district judge erred in determining that a prior state conviction for "burglary in the first degree using a firearm" was a crime of violence under Sec. 4B1.2 of the Guidelines. We affirm.

BACKGROUND

On July 14, 1989, Sherman pled guilty to five of fifteen counts of bank robbery and attempted bank robbery. In applying the Sentencing Guidelines in its presentence report, the Probation Office calculated that Sherman's total offense level was 32, his criminal history category was VI, and, thus, his imprisonment range was 210-262 months.

Sherman challenges the determination that he is a career offender having at least two prior felony convictions for crimes of violence. Specifically, Sherman contests the conclusion his 1978 conviction for burglary of the Boise Holiday Inns manager's office constitutes a crime of violence under the Guidelines.

The district court initially characterized the hotel burglary as a burglary of a nondwelling. Although it believed that a Guidelines' application note ordinarily proscribed treating nondwelling burglaries as crimes of violence, the court nonetheless concluded that the facts of Sherman's burglary, namely the use of a sawed-off shotgun in its perpetration, converted the offense into a crime of violence. As a result, Sherman was sentenced to a 210-month term of imprisonment and a three-year term of supervised release.

DISCUSSION

We review de novo challenges to the proper application of the Guidelines. See United States v. Williams, 891 F.2d 212, 214 (9th Cir.1989) (citation omitted), cert. denied, --- U.S. ----, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990).

Under the Guidelines, "[a] defendant is a career offender if (1) the defendant was at At the time of Sherman's sentencing Sec. 4B1.2(1) referred to 18 U.S.C. Sec. 16 for the definition of "crime of violence." Section 16 provided that:

                least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."    United States Sentencing Commission, Guidelines Manual, Sec. 4B1.1.  The sole issue on appeal pertains to the last of these conditions--specifically, whether Sherman's Idaho burglary constitutes a crime of violence
                

The term "crime of violence" means--

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. Sec. 16 (1988). ¹ The Sentencing Commission interpreted Sec. 16 to mean that

murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson or robbery are covered by [18 U.S.C. Sec. 16(a) ]. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of force would be covered; conviction for an escape by stealth would not be covered. Conviction for burglary of a dwelling would be covered; conviction for burglary of other structures would not be covered.

Sec. 4B1.2, Application note 1 (Nov. 1988).

Sherman contends that, because the application note considers convictions for burglaries of nondwellings uncovered, the district judge erred in determining that the burglary of a nondwelling was a crime of violence even though it involved the use of a firearm. Sherman insists that it was an error for the judge to consider the underlying conduct and particular circumstances of his burglary in assessing whether the burglary involved a substantial risk that physical force would be used in committing the offense. He reads the career offender provisions to require a categorical approach in determining whether a prior conviction is a crime of violence.

After we heard argument in this case, we decided United States v. Becker, 919 F.2d 568 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991). In Becker we held that "we do not look to the specific conduct which occasioned [a defendant's prior] convictions, but only to the statutory definition of the crime." Id. at 570. We further noted that by doing so we adopt the "so-called 'categorical' approach that the Supreme Court has held is appropriate for determining whether someone is a career criminal under the Armed Career Criminal Act...." Id. (citation omitted).

While Sherman criticizes the government for adopting a fact-based rather than categorical approach, he does the same when it behooves him. He looks to the underlying facts of his conviction to characterize his offense as burglary of a nondwelling. ² Yet Sherman was convicted of "burglary in the first degree using a firearm." Contrary to his implied contention, Idaho law does not distinguish between dwelling and nondwelling burglaries. Burglary is defined under Idaho law as follows:

                in Becker we clearly proscribed a fact-based approach.  We noted that "the categorical approach looks to the 'particular provision of a statute' under which the defendant was convicted."    Becker, at 570 (citation omitted)
                

Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, closed vehicle, closed trailer, airplane or railroad car, with intent to commit any theft or any felony, is guilty of burglary.

Idaho Code Sec. 18-1401 (1987). First degree burglary is simply any burglary committed in the nighttime. Id. at Sec. 18-1402. While the burglary provisions do not contain any reference to the use of a firearm during the commission of a burglary, it appears that another count of the Idaho state indictment, for possession of a firearm during the commission of a crime, see id. at Sec. 19-2520, was subsumed into the count to which Sherman pled guilty. Section 19-2520 imposes additional imprisonment to be served consecutively upon persons convicted of certain crimes, including burglary, who "displayed, used, threatened, or attempted to use a firearm" during its commission.

The Idaho courts have noted consistently that Sec. 19-2520 "does not define or create a separate offense, but is merely a sentence enhancing statute that comes into play after a defendant is convicted of one of the enumerated offenses." State v. Galaviz, 104 Idaho 328, 658 P.2d 999, 1000-1001 (App.1983) (citation omitted); see also State v. Smith, 103 Idaho 135...