U.S. v. Taylor, 88-1408

• Decision Date: 07 March 1989
• Docket Number: No. 88-1408,88-1408
• Citation: 864 F.2d 625
• Parties: UNITED STATES of America, Appellee, v. Arthur Lajuane TAYLOR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 625

864 F.2d 625

UNITED STATES of America, Appellee, v. Arthur Lajuane TAYLOR, Appellant.

No. 88-1408.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 19, 1988.

Decided Jan. 4, 1989.

Rehearing and Rehearing En Banc Denied March 7, 1989.

Bruce D. Livingston, St. Louis, Mo., for appellant.

David M. Rosen, St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

McMILLIAN, Circuit Judge.

Arthur Lajuane Taylor pleaded guilty in the District Court ¹ for the Eastern District of Missouri to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). The district court enhanced Taylor's sentence under 18 U.S.C. Sec. 924(e)(1) because of his previous felony convictions and sentenced him to fifteen years in prison with no possibility of probation or parole. For reversal, Taylor argues that the district court erred in considering his prior convictions for burglary in the second degree under Missouri law for purposes of the sentence enhancement provisions of 18 U.S.C. Sec. 924(e)(1). For the reasons discussed below, we affirm the sentence imposed by the district court.

Taylor appeals only from the imposition of the enhanced sentence. ² Because the imposition of the sentence arose out of a guilty plea pursuant to a plea agreement, there are no disputed factual issues. The issue on appeal is one of law only.

We have recently considered the issue of whether burglary in the second degree is a "violent felony" in United States v. Portwood, 857 F.2d 1221 (8th Cir.1988) and United States v. Black, 857 F.2d 1221 (8th Cir.1988) (consolidated for appeal, hereinafter Portwood ). The reasoning of Portwood applies with equal weight to this case.

The sentence enhancement provisions of 18 U.S.C. Sec. 924(e) come into play when one who has been convicted under 18 U.S.C. Sec. 922(g)(1) has three previous convictions for either a "violent felony or a serious drug offense, or both." 18 U.S.C. Sec. 924(e)(1). The statute 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.

18 U.S.C. Sec. 924(e)(2)(B).

Burglary in the second degree is defined in the Missouri Revised Statutes as:

knowingly enter[ing] unlawfully or knowingly remain[ing] unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.

Mo.Rev.Stat. Sec. 569.170.1.

As a felony, burglary in the second degree is punishable by imprisonment for a term of more than one year. Mo.Rev.Stat. Sec. 556.016.2. The Missouri statutory definition of burglary in the second degree falls squarely within the crimes delineated in 18 U.S.C. Sec. 924(e) as predicate crimes which are to be considered for sentence enhancement purposes.

Taylor argues, however, that burglary in the second degree is not a "violent felony ... that ... involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. Sec. 924(e)(2)(B). The gist of his argument is that Missouri law distinguishes between burglary in the first degree which involves the potential for violence and burglary in the second degree which does not. According to Taylor, if any burglary presents a risk of potential injury to an innocent person, it automatically triggers the application of the more serious charge of burglary in the first degree. Mo.Rev.Stat. Sec. 569.160.1(3). In contrast, a charge of burglary in the second degree is triggered when a burglary of an empty building occurs. Mo.Rev.Stat. Sec. 569.170. Taylor argues that such a burglary carries with it no potential for violence since there is no one present who can be harmed during the commission of the offense. As such, he argues that burglary in the second degree cannot be a "violent felony" in the sense that Congress intended when it enacted 18 U.S.C. Sec. 924(e)(2)(B).

In response to an argument identical to the one posed by Taylor, we held in Portwood that "burglary" in the sentence enhancement statute means "burglary" however a state chooses to define it. We stated that:

Congress could quite reasonably conclude that no matter what the felon's intent upon breaking in, the property owner may return, a neighbor may investigate, or a law enforcement official may respond. All of these scenarios present a grave threat of harm to persons. A person with ... prior convictions for burglary, regardless of the details of each burglary, presents the type of potential threat to society that Congress sought to control by the enactment of Sec. 924(e).

857 F.2d at 1224. Based on the reasoning of Portwood, we hold that the district court did not err in considering Taylor's prior convictions for Missouri burglary in the second degree as predicate offenses which, in conjunction with his other prior convictions, subject him to an enhanced sentence under 18 U.S.C. Sec. 924(e).

Accordingly, the judgment of the district court is affirmed.

BRIGHT, Senior Circuit Judge, dissenting.

I dissent.

The majority follows the holding of United States v. Portwood, 857 F.2d 1221 (8th Cir.1988). In Portwood, the court held that Missouri's second degree burglary statute satisfies the definition of burglary as used by Congress in 18 U.S.C. Sec. 924(e). According to Portwood, "the statute says 'burglary,' and we take that to mean 'burglary,' however a state may choose to define it." Portwood, 857 F.2d at 1223-24. Neither Portwood, nor this case, can be justified on careful examination of the federal statute and its legislative history.

Section 924(e) does not define "burglary." As a matter of statutory construction, "[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981). See also Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288 (1952).

"Burglary" has a common law meaning: "the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony." W. LaFave & A. Scott, Jr., Criminal Law 792 (2d ed. 1986). Modern statutes setting out offenses denominated as burglary may or may not possess the common law elements of burglary. As such, burglary does not have an established "modern" meaning. Moreover, no language in the enhancement statute dictates a meaning other than the common law meaning. See United States v. Headspeth, 852 F.2d 753, 757-58 (4th Cir.1988).

The Eighth Circuit's interpretation of the statute produces an anomalous result, demonstrated by a comparison to Headspeth. In Headspeth, the court considered the application of section 924(e) to a defendant with two convictions for robbery and a third conviction, there in question, for the crime of "storehouse breaking," under Maryland law. Conduct amounting to storehouse breaking in Maryland (breaking into a storehouse in day or night with intent to commit a felony or theft of property of the value of $300 or more) would be at least second degree burglary in Missouri. ¹ Compare id. at 756 (quoting Md.Ann.Code art. 27, Sec. 32 (1971)), with majority op. at 626-27. Headspeth concluded that storehouse breaking did not constitute burglary under the enhancement provision and thus an enhanced penalty did not apply to the defendant.

The majority, however, subjects Taylor to the enhanced penalty because the State labeled his conduct burglary. Following the majority's analysis to its logical conclusion, a traffic offense of wrongful parking, i.e., the taking of someone else's privilege of using a parking space, if labeled burglary by a state, could be used to enhance a sentence under section 924.

I do not believe the application of a federal sentence enhancement provision should turn on the differing labels given to similar conduct by the various states. Such application treats similarly situated persons differently for the purpose of a federally imposed sentence. I find it unlikely Congress would have intended such a result. Cf. U.S.Sent.Comm.Sent. Guidelines at 2 (Oct. 1987) (Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.) Unfortunately, neither the majority nor Portwood gives consideration to section 924's legislative history. Headspeth's analysis of the legislative history is instructive and dispositive. The opinion by Circuit Judge Phillips of the Fourth Circuit stated:

The government argues, however, that the legislative history and purpose of the Sec. 924(e) sentence enhancement provision demonstrate that Congress intended the term burglary to have a more expansive definition than obtained at common law. We disagree.

At one point, Sec. 924(e) did indeed contain a definition of burglary which would encompass Maryland's storehouse breaking offense. As originally enacted, Sec. 924(e)'s sentence enhancement provision was triggered only by previous convictions for either "robbery" or "burglary." Section 924(e)(2)(B) then specifically defined "burglary" as "any crime punishable by a term of imprisonment exceeding one year and consisting of entering or remaining surreptitiously within a building that is the property of another with intent to engage in conduct constituting a Federal or State offense." This definition of burglary, which was considerably broader than its common law counterpart, would of course cover storehouse breaking, as that offense is defined in Maryland.

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