U.S. v. Washington

• Decision Date: 15 April 2005
• Docket Number: No. 03-4867.,03-4867.
• Citation: 404 F.3d 834
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gay Sanford WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

404 F.3d 834

UNITED STATES of America, Plaintiff-Appellee, v. Gay Sanford WASHINGTON, Defendant-Appellant.

No. 03-4867.

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2004.

Decided: April 15, 2005.

ARGUED:

Jonathan David Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Joshua Clarke Hanks, Assistant United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellee.

ON BRIEF:

Mary Lou Newberger, Federal Public Defender, Edward H. Weis, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellee.

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN concurred. Judge LUTTIG wrote a dissenting opinion.

KING, Circuit Judge:

Gay Sanford Washington appeals from the sentence imposed upon him in the Southern District of West Virginia after his plea of guilty to a single offense of felonious possession of a firearm, in contravention of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Washington contends that he was sentenced erroneously when the district court determined that his prior conviction for breaking and entering constituted a "crime of violence" under United States Sentencing Guidelines Manual §§ 2K2.1(a)(4) and 4B1.2(a)(2) (2003), and enhanced his sentence accordingly. As explained below, we vacate Washington's sentence and remand for further proceedings consistent with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, ___ L.Ed.2d ___ (2005).

I.

On April 1, 2003, Washington entered a plea of guilty to being a felon in possession of a firearm. The applicable provision of the Sentencing Guidelines, § 2K2.1(a), provides for a base offense level of 14, and for an enhanced base offense level of 20 when the defendant has been previously convicted of a "crime of violence." USSG § 2K2.1(a)(4). In 1996, Washington was convicted in Putnam County, West Virginia, of the state law felony of breaking and entering. See W. Va.Code § 61-3-12. Washington's initial Presentence Report ("PSR") revealed that his prior conviction was for breaking and entering the offices of a drug and violent crime task force, and it characterized the offense as a "crime of violence." The probation officer accordingly recommended that Washington's offense level be fixed at the enhanced level of 20. Washington objected, asserting to the probation officer that his prior offense was not a "crime of violence" under the Guideline, or under our decision in United States v. Harrison, 58 F.3d 115 (4th Cir.1995) (concluding that defendant's burglary of commercial building was not crime of violence). The probation officer accepted the objection and revised Washington's PSR accordingly, lowering his base offense level to 14.

At Washington's first sentencing hearing, on June 17, 2003, the Government objected to the PSR as revised. In objecting, the Government relied on § 4B1.2(a)(2) of the Guidelines, which provides that a "crime of violence" includes an offense which "is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk of physical injury to another."¹ In support of this position, the Government contended that the circumstances of Washington's prior offense, the breaking and entering of a drug and violent crime task force, "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another," USSG § 4B1.2(a)(2), bringing it within the Guideline definition.

In conducting the hearing, the sentencing court posed a series of pertinent questions to counsel on the crime of violence issue, including questions as to the specifics of Washington's prior offense. It first inquired as to the title, function, and location of the Task Force whose offices were burglarized. In response, the Assistant United States Attorney represented to the court:

Your Honor, I believe . . . that the building that was broken into housed this particular Drug and Violent Crime Task Force. In that particular building rests a great deal of potential for violence. Not only does it house evidence, narcotics, weapons, it frequently has — I believe this particular office has surveillance equipment, security alarms. It is frequently manned at all hours of the day and night, although I don't believe it is routinely a 24-hour manned facility. I believe . . . that an individual who breaks into such an office certainly creates this other type of potential for risk of violent injury. . . .

(J.A. 61). The court inquired further as to the specifics of the offense, asking: "What else do you know about the circumstances of the break-in?" and "[y]ou don't know the hour of the break-in or the day?" (J.A. 62). The court then continued the sentencing hearing to a later date, directing the parties to brief both the issue of what material the court could consider in determining whether Washington's prior offense was a "crime of violence," and what specific conduct was at issue in the prior offense.² The court also advised, "the government has the burden of proof on the matter."

On June 19, 2003, the Government filed a sentencing memorandum setting forth a variety of allegations regarding Washington's prior conviction. The memorandum advised that the crime was committed "[i]n the early morning hours of December 11, 1995," when the "defendant along with two accomplices broke into the office of the Midwestern Task Force by breaking a ground-level window." It also related, inter alia, that Washington and his "two accomplices" had stolen firearms and several varieties of drugs. The Government attached the police report and criminal investigation report to its memorandum.³

The factual background of Washington's prior state conviction, as spelled out in the prosecution's sentencing memorandum, was not contained in or suggested by the indictment itself, which merely alleged in Count 1 that Washington "did unlawfully and feloniously break and enter a building of the City of Hurricane . . . occupied by the Midwestern Drug and Violent Crime Task Force with intent to . . . steal" Task Force "goods and property."⁴ Likewise, the plea materials of record in the state court proceeding provided no other details on the breaking and entering conviction.

At Washington's final sentencing hearing on August 29, 2003, the court applied the "crime of violence" enhancement and sentenced accordingly. In so ruling, the court looked to the provisions of § 4B1.2(a)(2), specifying that a "crime of violence" includes a crime that "involves conduct that presents a serious potential risk of physical injury to another," and to the accompanying Application Note. Because the break-in underlying Washington's prior conviction was not of a dwelling, the court concluded that the earlier offense was not, in the abstract, a crime of violence. The court then made a two-tiered determination, characterized in the Statement of Reasons section of its Judgment Order as "findings of fact and conclusions of law" made by a "preponderance of the evidence." (J.A. 165) (emphasis added). It ruled that the conduct "expressly charged" in the indictment warranted the conclusion that "breaking and entering of a government-owned building to steal the goods and property of a drug and violent crime task force is conduct that, by its nature, presents a serious potential risk of physical injury to another." The court explained that conclusion as follows:

Based on common experience, it is reasonable to expect that quarters occupied by a drug and violent crime unit would contain both drugs and guns that are protected from theft; that, even if no one affiliated with the task force was present at the time of a breaking and entering into its quarters, one or more members or employees of the task force may show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work; and such persons would be armed.

The act of breaking and entering such a facility is a reckless, dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another.

(J.A. 166-67). Based on this assessment, the court fixed Washington's base offense level at the enhanced level of 20, applied a three-level reduction for acceptance of responsibility, for a final offense level of 17, and sentenced Washington to thirty months of imprisonment.

II.

Washington has appealed his sentence, maintaining that the district court misapplied circuit precedent and the Guidelines in determining that his prior breaking and entering offense constituted a crime of violence. On appeal, he also contends that his sentence violated the Sixth Amendment, relying on Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Because Washington did not raise his Blakely claim in the district court, we review that contention for plain error only. See Fed.R.Crim.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the district court."). In order for Washington to prevail under Rule 52(b), "there must be an `error' that is `plain' and that `affect[s] substantial rights.'" United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Moreover, because "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals," we may exercise our discretion to recognize plain error only when "the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted).

III.

This appeal presents the question of the scope of the "fact of a prior...