U.S. v. Strahl, No. 90-4116

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SEYMOUR, EBEL; BABCOCK
Citation958 F.2d 980
Decision Date04 March 1992
Docket NumberNo. 90-4116
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Allen STRAHL, Defendant-Appellant.

Page 980

958 F.2d 980
UNITED STATES of America, Plaintiff-Appellee,
v.
James Allen STRAHL, Defendant-Appellant.
No. 90-4116.
United States Court of Appeals,
Tenth Circuit.
March 4, 1992.

Page 982

Dee Benson, U.S. Atty., Gordon Campbell, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

James Allen Strahl, pro se.

Before SEYMOUR, EBEL, Circuit Judges, and BABCOCK, * District Judge.

BABCOCK, District Judge.

Defendant appeals from the district court's denial of his Fed.R.Crim.P. 35(a) motion to correct an illegal sentence, challenging the sentence imposed upon his conviction for possession of firearms by a felon, 18 U.S.C. § 922(g), and enhanced under 18 U.S.C. § 924(e). 1 The primary issue presented by this appeal is whether the district court erred in enhancing Defendant's sentence based upon a prior Utah conviction for attempted burglary and a prior California conviction for burglary. We reverse the district court's decision and remand for resentencing.

A threshold issue presented is whether this court, has jurisdiction to consider the merits of this appeal. See McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir.1989) (appellate court has duty to inquire into its own jurisdiction). The district court filed its order denying Defendant's Rule 35 motion on July 19, 1990. Several days later, Defendant filed a reply to Plaintiff's response to that motion, apparently unaware that the district court had already denied relief. Upon receiving notice of the district court's order, Defendant filed a motion for reconsideration on July 25, and again on July 27, requesting the district court reconsider its order in light of Defendant's reply before finally ruling on the motion. On July 30, with his motions for reconsideration still pending, Defendant filed a notice of appeal from the district court's order denying relief. On August 2, the district court granted the motions for reconsideration and reviewed Defendant's reply, but again denied relief. Defendant never filed a second notice of appeal following the district court's August 2 order. Nonetheless, because the motions for reconsideration tolled the time for filing the notice of appeal, those motions held the prematurely filed notice of appeal in abeyance. See United States v. Jackson, 950 F.2d 633, 634-35 (10th Cir.1991). Plaintiff's notice of appeal became effective upon the district court's disposition of the motions to reconsider. Id. at 635. This court, therefore, has jurisdiction to consider the merits of Defendant's appeal.

On March 16, 1988, Defendant entered a guilty plea to possession of firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g) (Supp.1987). A defendant convicted under § 922(g) is subject to a term of imprisonment for not more than five years. 18 U.S.C. § 924(a) (Supp.1987) (subsequently amended). A sentence imposed for the violation of § 922(g), however, may be enhanced under § 924(e) if the defendant has had "three previous convictions ... for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1) (Supp.1987). Relying on Defendant's 1968 California conviction for burglary, 1975 Utah conviction for attempted burglary of a dwelling, and 1979 Utah conviction for burglary of a dwelling, the district court enhanced Defendant's sentence under § 924(e), imposing a sentence of fifteen years' imprisonment without possibility of parole.

Defendant filed this Rule 35 motion, challenging the district court's use of the Utah conviction for attempted burglary to enhance his sentence. The district court denied the motion. Defendant appeals, challenging

Page 983

the district court's reliance on both the Utah attempted burglary conviction and the California burglary conviction to enhance his sentence. We review the district court's decision de novo. See United States v. Barney, 955 F.2d 635, at 638 (10th Cir.1992).

A preliminary issue presented by this appeal is whether this court can consider Defendant's argument challenging the use of the California burglary conviction to enhance his sentence, raised for the first time on appeal. This court will ordinarily not consider an argument not presented initially to the district court, except under exceptional circumstances or where necessary to prevent manifest injustice. See, e.g., Doelle v. Mountain States Tel. & Tel., 872 F.2d 942, 944 n. 4 (10th Cir.1989). Because the issue presented here for the first time raises a compelling challenge to a term of imprisonment, because the legal precedent Defendant asserts in support of his argument did not exist until after he filed his notice of appeal in this case, and because this court's consideration of the issue would, in any event, be de novo, we will consider the merits of this argument.

Section 924(e)(1)(Supp.1987) provides that

[i]n 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 or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

Section 922(g)(1)(Supp.1987) refers to convictions in any court of a crime punishable by imprisonment for a term exceeding one year. Section 924(e)(2)(B)(Supp.1987) defines "violent felony" 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.

The question presented by Defendant's challenge to the use of his California burglary conviction is whether the California conviction falls within the term burglary as used in § 924(e): "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). In determining whether the state burglary conviction comes within this definition, Congress intended a categorical approach, focusing on the statutory elements of the state offense rather than the particular facts underlying that specific conviction. Id. 110 S.Ct. at 2159-60.

The California burglary statute, Cal. Penal Code § 459, defines burglary in terms broader than the Taylor Court's definition, "[b]oth because it extends beyond buildings and structures and because it does not require entry to be unlawful." United States v. Bermudez, 744 F.Supp. 217, 220 (C.D.Cal.1990). See Taylor, 110 S.Ct. at 2158-59 ("A few States' burglary statutes ... define burglary more broadly, e.g., by eliminating the requirement that the entry be unlawful, or by including places, such as automobiles and vending machines, other than buildings.").

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56 practice notes
  • U.S. v. Phelps, No. 92-3197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 28, 1994
    ...the interpretation of this statute de novo. See United States v. Johnson, 973 F.2d 857, 859 (10th Cir.1992); United States v. Strahl, 958 F.2d 980, 983 (10th Cir.1992) (citing United States v. Barney, 955 F.2d 635, 638 (10th Cir.1992)); United States v. Tisdale, 921 F.2d 1095, 1098 (10th Ci......
  • U.S. v. Custis, Nos. 92-5211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 30, 1993
    ...is occurring."). See also United States v. Lane, 909 F.2d 895, 903 (6th Cir.1990) (attempted burglary). But see United States v. Strahl, 958 F.2d 980, 986 (10th Cir.1992) (holding that attempted burglary does not qualify as a violent felony for section 924(e)); United States v. Martinez, 95......
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...burglary is sufficient to mandate that attempted burglary in Wisconsin constitutes a violent felony”). 4. In United States v. Strahl, 958 F.2d 980, 986 (1992), the Tenth Circuit held that attempted burglary under Utah law did not qualify as an ACCA predicate offense because a conviction cou......
  • US v. Hines, Crim. No. 91-10298-K
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 24, 1992
    ...facts that clearly establish that the conviction is a predicate conviction for enhancement purposes"). See also United States v. Strahl, 958 F.2d 980, 983-84 (10th Cir.1992); United States v. Garza, 921 F.2d 59, 60-61 (5th Cir.1991). See 18 U.S.C. § 3661; USSG § 1B1.4; United States v. Wilk......
  • Request a trial to view additional results
56 cases
  • U.S. v. Phelps, No. 92-3197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 28, 1994
    ...the interpretation of this statute de novo. See United States v. Johnson, 973 F.2d 857, 859 (10th Cir.1992); United States v. Strahl, 958 F.2d 980, 983 (10th Cir.1992) (citing United States v. Barney, 955 F.2d 635, 638 (10th Cir.1992)); United States v. Tisdale, 921 F.2d 1095, 1098 (10th Ci......
  • U.S. v. Custis, Nos. 92-5211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 30, 1993
    ...is occurring."). See also United States v. Lane, 909 F.2d 895, 903 (6th Cir.1990) (attempted burglary). But see United States v. Strahl, 958 F.2d 980, 986 (10th Cir.1992) (holding that attempted burglary does not qualify as a violent felony for section 924(e)); United States v. Martinez, 95......
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...burglary is sufficient to mandate that attempted burglary in Wisconsin constitutes a violent felony”). 4. In United States v. Strahl, 958 F.2d 980, 986 (1992), the Tenth Circuit held that attempted burglary under Utah law did not qualify as an ACCA predicate offense because a conviction cou......
  • US v. Hines, Crim. No. 91-10298-K
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 24, 1992
    ...facts that clearly establish that the conviction is a predicate conviction for enhancement purposes"). See also United States v. Strahl, 958 F.2d 980, 983-84 (10th Cir.1992); United States v. Garza, 921 F.2d 59, 60-61 (5th Cir.1991). See 18 U.S.C. § 3661; USSG § 1B1.4; United States v. Wilk......
  • Request a trial to view additional results

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