U.S. v. Solomon
| Decision Date | 12 July 1993 |
| Docket Number | No. 92-2931,92-2931 |
| Citation | 998 F.2d 587 |
| Parties | UNITED STATES of America, Appellee, v. Gerard SOLOMON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Scott F. Tilsen (argued), Minneapolis, MN (Virginia G. Villa and Chris A. Anderson, on brief), for appellant.
Michael W. Ward, Minneapolis, MN, for appellee.
Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
After a jury trial, Gerard Solomon was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court 1 enhanced his sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Solomon appeals his sentence and we affirm.
In 1992, Solomon was convicted of being a felon in possession of a firearm. Because he had three prior convictions, each of which the court found to be a violent felony as defined in the ACCA, the district court enhanced Solomon's sentence. See 18 U.S.C. § 924(e). The three prior convictions the district court used to enhance Solomon's sentence were a 1988 burglary conviction, a 1989 burglary conviction, and a 1990 conviction for attempted burglary. Neither party contests the characterization of the two burglary convictions as "violent felonies." See 18 U.S.C. § 924(e)(2)(B)(ii) (). Solomon contends, however, that the district court was not permitted to use his attempted burglary conviction to enhance his sentence because (1) attempted burglary is not a "violent felony" for § 924(e) purposes and, in the alternative, (2) his plea of guilty to the attempted burglary charge was obtained by coercion. We address each of Solomon's contentions.
Pursuant to 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm faces a minimum term of fifteen years' imprisonment if he or she has three prior convictions for violent felonies. Section 924(e) reads in relevant part:
(1) In the case of a person who violates section 922(g) [] of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony ... committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....
18 U.S.C. § 924(e)(1). The statute then defines "violent felony" as follows:
(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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[.]
18 U.S.C. § 924(e)(2)(B)(i)-(ii). The parties agree that under Minnesota law attempted burglary does not include "as an element the use, attempted use, or threatened use of physical force against the person of another" as required by subsection (i). They also agree that attempted burglary is not "burglary" as that term has been defined for the purposes of the ACCA. See Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990) (). The issue before this court, therefore, is whether a Minnesota state law conviction for attempted burglary falls within the catch-all provision of the enhancement statute, which classifies any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" as a "violent felony" under the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii).
Minnesota state law defines second degree burglary as follows:
Burglary in the second degree. Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if:
(a) the building is a dwelling;
(b) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force;
(c) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or
(d) when entering or while in the building, the burglar possesses a tool to gain access to money or property.
Minn.Stat. § 609.582 subd. 2 (1988). The statutory definition of attempt provides:
Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime....
Minn.Stat. § 609.17 subd. 1 (1986). Solomon argues that a conviction for attempted burglary in Minnesota does not require conduct that poses a sufficiently serious risk of physical injury to fall within the catch-all provision of § 924(e)(2)(B)(ii) and thus that his attempted burglary conviction may not be used to enhance his sentence. We disagree.
The essential elements of the crime of attempt in Minnesota are: "(1) an intent to commit a crime, and (2) a substantial step taken toward the crime's commission." Matter of Welfare of R.L.N., 371 N.W.2d 84, 86 (Minn.Ct.App.1985) (citing State v. Olkon, 299 N.W.2d 89, 104 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981)). Mere preparation, without an overt act or an attempt to commit the intended crime, is not enough to sustain a conviction for attempt. State v. Geshick, 283 Minn. 380, 168 N.W.2d 331, 332 (1969) (citation omitted). The Advisory Committee Comment to Minnesota's attempt statute reaffirms the limits of the statute's application by concluding that "[w]hat the courts appear to seek is a demonstration that the defendant lacks the capacity to refrain from committing the crime and, therefore, would have committed it except for intervening circumstances." 2 Minn.Stat. § 609.17 advisory committee's comment. In this case, the intended crime is second degree burglary, which requires entry into a building without consent and thus imposes a serious risk of harm to occupants, returning occupants, or interested passersby. See Minn.Stat. § 609.581 subd. 2 (1983) () (emphasis added); see also Taylor, 495 U.S. at 586-90, 110 S.Ct. at 2152-53 (). Construing the law of attempt in the context of the definition of second degree burglary, we conclude that under Minnesota law only conduct that carries a serious potential risk of physical injury to another may result in a conviction for attempted second degree burglary. In so concluding, we distinguish a conviction for attempted burglary in Minnesota from similar convictions in other states and find the concerns expressed by the courts analyzing those convictions for § 924(e) purposes to be inapplicable to this case. See United States v. Permenter, 969 F.2d 911 (10th Cir.1992) (); United States v. Strahl, 958 F.2d 980, 986 (10th Cir.1992) (); United States v. Martinez, 954 F.2d 1050, 1054 n. 3 (5th Cir.1992) ().
We conclude that the crime of attempted second degree burglary in Minnesota falls within the catch-all provision of § 924(e)(2)(B)(ii) that includes any crime which "involves conduct that presents a serious potential risk of physical injury to another" and thus amounts to a violent felony for the purposes of § 924(e). See United States v. O'Brien, 972 F.2d 47 (3d Cir.1992) (); United States v. Payne, 966 F.2d 4 (1st Cir.1992) (); United States v. Fish, 928 F.2d 185 (6th Cir.) (attempted breaking and entering in Michigan is a catch-all violent felony for § 924(e) purposes), cert. denied, --- U.S. ----, 112 S.Ct. 115, 116 L.Ed.2d 84 (1991); United States v. Lane, 909 F.2d 895 (6th Cir.1990) (), cert. denied, 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 977 (1991). But see United States v. Permenter, 969 F.2d 911 (10th Cir.1988) (); United States v. Strahl, 958 F.2d 980 (10th Cir.1992) (); United States v. Martinez, 954 F.2d 1050 (5th Cir.1992) ().
II.
Solomon also asserts that the district court erred when it denied his request for a hearing to determine the validity of his conviction for...
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