U.S. v. Sweeten

• Citation: 933 F.2d 765
• Decision Date: 07 May 1991
• Docket Number: No. 90-30343,90-30343
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Willy Elmer SWEETEN, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 765

933 F.2d 765

59 USLW 2771

UNITED STATES of America, Plaintiff-Appellant, v. Willy Elmer SWEETEN, Defendant-Appellee.

No. 90-30343.

United States Court of Appeals Ninth Circuit.

Submitted May 7, 1991 ^*.

Decided May 20, 1991.

As Amended on Denial of Rehearing and Rehearing En Banc

Aug. 30, 1991.

Ronald W. Skibbie, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellant.

Richard W. Sanger, Sanger & Bartoletta, Spokane, Wash., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT and O'SCANNLAIN, Circuit Judges, and MacBRIDE, ^** District Judge.

PER CURIAM:

We must review the district court's decision not to enhance a convicted defendant's sentence under the mandatory minimum-sentence provision of the Firearms Owners' Protection Act, as amended by the Career Criminals Amendment Act of 1986 and the Anti-Drug Abuse Act of 1988. 18 U.S.C. Sec. 924(e) (1988) (original version enacted as part of the Armed Career Criminal Act of 1984). Because we agree with the government that the district court's decision was in error, we vacate and remand for resentencing.

I

It is unlawful for any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to ... possess ... any firearm or ammunition." Id. Sec. 922(g)(1). The Firearms Owners' Protection Act, as amended, imposes a mandatory minimum sentence upon "career criminals" who violate this law:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, 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.

(2) As used in this subsection--

* * * * * *

(B) The term "violent felony" means 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. Sec. 924(e) (emphasis added).

On May 22, 1990, Willy Elmer Sweeten was convicted on his own plea of being a felon in possession of a firearm. At the time of sentencing, the government presented evidence of three predicate convictions and contended that Sweeten is an armed career criminal who qualifies for the mandatory minimum sentence under section 924(e). The three convictions are (1) a 1972 Oregon conviction for robbery, (2) a 1979 Texas conviction for burglary of a habitation, and (3) a 1985 Ohio conviction for aggravated assault. There is no dispute that the Oregon and Ohio convictions qualify as predicate convictions for purposes of sentence enhancement: each is a "violent felony" within the meaning of section 924(e)(2)(B)(i). The question is whether the Texas conviction also qualifies as a predicate conviction under either section 924(e)(2)(B)(i) or section 924(e)(2)(B)(ii). The district court concluded that the Texas conviction does not qualify under either subsection and declined to enhance Sweeten's sentence to a minimum of fifteen years.

First, the court concluded that there was no judicially noticeable evidence that Sweeten's Texas conviction had been for a violent felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. Sec. 924(e)(2)(B)(i). The court noted that the state court's judgment describes Sweeten's offense as "burglary of a habitation with intent to commit theft," a description that both on its face and under applicable Texas law bears no indication of the use or threat of physical force.

In response, the government presented the court with a certified nunc pro tunc order, dated July 31, 1990, from the district court of Harris County, Texas, which indicated that the original 1979 judgment had mischaracterized Sweeten's offense due to a typographical error. The order rephrased Sweeten's offense as "burglary of a habitation with intent to commit aggravated assault." This language more closely tracks the language in Sweeten's indictment and signed guilty plea, both of which the government also presented to the court and which describe Sweeten's offense as "unlawfully without the effective consent of ... the Complainant, intentionally enter[ing] a habitation owned by the Complainant, and commit[ting] the attempt to commit the felony of Aggravated Assault."

The district court, however, refused to credit these additional materials. Citing the Supreme Court's recent decision in Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the court held that it was only permitted to consider the original 1979 judgment and the underlying state statute in determining whether the Texas conviction qualified as a predicate conviction for purposes of sentence enhancement. The court also noted that the consideration of an ex parte, nunc pro tunc order would implicate serious due process concerns. Accordingly, the court declined to take Sweeten's Texas conviction into account under section 924(e)(2)(B)(i).

Second, the court concluded that the Texas conviction did not qualify as a prior conviction for "burglary" within the meaning of section 924(e)(2)(B)(ii). Here, again, the court relied upon the Supreme Court's recent decision in Taylor. As an initial matter, the court noted that the applicable Texas statute defines "habitation" to include vehicles, whereas the Taylor Court appeared to define "burglary" in a generic sense that would not contemplate burglary of vehicles. It appeared conceivable, therefore, that Sweeten had been convicted for an offense that would not qualify as a predicate burglary under the Taylor definition. So long as that was conceivable, the court reasoned, the Texas conviction could not be considered.

Moreover, even if reference to the state court record might indisputably establish that Sweeten's conviction had been for a burglary within the Taylor definition, as the court had already concluded, Taylor itself barred any inquiry into the facts underlying any predicate conviction. Accordingly, the district court declined to take Sweeten's Texas conviction into account under section 924(e)(2)(B)(ii) as well.

The government challenges the court's reading of both subsections in this timely appeal.

II

Ordinarily, "[t]rial judges are accorded virtually unfettered discretion in determining what sentence to impose on a defendant." United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir.1989). For example:

[w]e have held that we lack jurisdiction to review a district court's discretionary decision not to depart downward from the sentencing guidelines. United States v. Morales, 898 F.2d 99 (9th Cir.1990). We have also held that appellate review of a sentence that is within the applicable guideline range, and was not imposed in violation of law, is unavailable. United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir.1990). And it is clear that a district court has no obligation to state reasons for imposing a sentence at a particular point within the guideline range, so long as the range does not exceed 24 months. 18 U.S.C. Sec. 3553(c)(1); United States v. Howard, 894 F.2d 1085 (9th Cir.1990).

United States v. Garcia-Garcia, 927 F.2d 489, 490 (9th Cir.1991).

When Congress enacted the sentence-enhancement provision in question, however, it clearly intended to limit the courts' discretion. A minimum sentence of fifteen years is mandatory for all convicts whose criminal records satisfy the provision's terms. See 18 U.S.C. Sec. 924(e)(1) (1988); see also United States Sentencing Commission, Guidelines Manual, Sec. 5G1.1(c)(2) (Nov.1990) (a district court may impose a sentence "at any point within the applicable guideline range, provided that the sentence is not less than any statutorily required minimum sentence"). We must therefore review de novo, as a question of law, the district court's determination that section 924(e) does not apply. See United States v. Potter, 895 F.2d 1231, 1235 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3247, 111 L.Ed.2d 757 (1990).

III

We address sequentially the district court's analysis under each of the two subsections, 924(e)(2)(B)(i) and 924(e)(2)(B)(ii).

A

In Taylor, the Supreme Court offered guidance with respect to what materials a sentencing court may consider in determining whether a prior conviction satisfies the terms of section 924(e). The Court first recognized that "[t]he Courts of Appeals uniformly have held that Sec. 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor, 110 S.Ct. at 2159 (citing, inter alia, United States v. Sherbondy, 865 F.2d 996, 1006-10 (9th Cir.1988)). In adopting this "formal categorical approach," the Court then offered three reasons for why it found "the reasoning of these cases persuasive:"

First, the language of Sec. 924(e) generally supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions....

Second, ... the legislative history of the enhancement statute shows that Congress generally took a categorical approach to predicate offenses. There was considerable debate over what kinds of...