U.S. v. Wenner

• Decision Date: 12 December 2003
• Docket Number: No. 02-30022.,02-30022.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Allen WENNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.3d 969

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Allen WENNER, Defendant-Appellant.

No. 02-30022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2003 — Seattle, Washington.

Filed December 12, 2003.

COPYRIGHT MATERIAL OMITTED

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Andrew C. Friedman, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CR 01-5470 RJB.

Before J. CLIFFORD WALLACE, STEPHEN S. TROTT, and A. WALLACE TASHIMA, Circuit Judges.

OPINION

TASHIMA, Circuit Judge.

We must decide whether Washington residential burglary is a "crime of violence" under the Sentencing Guidelines. For the reasons hereinafter stated, we conclude that it is not.

Timothy Wenner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In 1995, Wenner pled guilty to the state crimes of residential burglary, Wash. Rev.Code § 9A.52.025(1), and attempted residential burglary, Id. § 9A.28.020(1), both felonies under Washington law. Id. § 9A.52.025(2); Id. § 9A.28.020(3)(c). At sentencing, the district court found that these two crimes were crimes of violence, and therefore held his base offense level to be 24. U.S.S.G. § 2K2.1(a)(2). Wenner appeals, arguing that these convictions are not crimes of violence under the Guidelines. We have jurisdiction over this timely appeal pursuant 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We reverse and remand for resentencing.¹

ANALYSIS

Under the Guidelines, a crime of violence is "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). An attempt to commit a crime of violence is itself a crime of violence. U.S.S.G. § 4B1.2 cmt. n. 1.

To determine whether Wenner's state convictions are burglaries of dwellings, as the government contends, we first use the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990) (extending Taylor's categorical approach to the Guidelines). Under this approach, we do not look to the specific conduct of his state convictions, but only to the statutory definition of the crime. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. If the state statute criminalizes conduct that is not a crime of violence under § 4B1.2(a)(2), then his conviction is not a categorical match. Taylor also permits us "to go beyond the mere fact of conviction in a narrow range of cases." 495 U.S. at 602, 110 S.Ct. 2143. In cases where a state statute criminalizes both conduct that does and does not qualify as a crime of violence, we review the conviction using a modified categorical approach. "Under the modified categorical approach, we conduct a limited examination of documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute was facially overinclusive." Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (citing United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc)).

A. Categorical Approach

Wenner's conviction for residential burglary is defined as "enter[ing] or remain[ing] unlawfully in a dwelling other than a vehicle" with the intent to commit a crime. Wash. Rev.Code § 9A.52.025(1). Washington defines a "dwelling" as "any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging." Wash. Rev.Code § 9A.04.110(7). In Washington, a "building" can include a fenced area, a railway car, or cargo container. Wash. Rev.Code § 9A.04.110(5).

Taylor held that "burglary" under the Armed Career Criminal Act ("ACCA") is "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." 495 U.S. at 598, 110 S.Ct. 2143. Wenner argues that a "burglary of a dwelling" under the Guidelines must be a "burglary" under Taylor (i.e., it must involve entry into a building), and the burglary must be of a "dwelling" under federal law (which might differ from Washington's definition of a "dwelling"). We agree that Taylor's definition of "burglary" applies to the definition of "burglary of a dwelling." Thus, burglary of a dwelling must involve a "building or structure" under Taylor. Some things that are dwellings under Washington law (e.g., fenced areas, railway cars, and cargo containers) are not buildings or structures under federal law, and so cannot support a conviction for generic "burglary" under Taylor. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143 (noting that a few states define burglary more broadly than the federal definition "by including places ... other than buildings," such as automobiles, vending machines, booths, tents, boats and railway cars); United States v. Bonat, 106 F.3d 1472, 1477 (9th Cir.1997) (observing that burglary of a railway car would not be "burglary" under Taylor); United States v. Pluta, 144 F.3d 968, 975-76 (6th Cir.1998) (remarking that burglary of neighbor's backyard is not "burglary" under Taylor). Thus, we agree with Wenner that the Washington statute is broader than federal law; burglarizing a fenced area that doubles as a dwelling is a residential burglary under Washington law, but not a "burglary" under Taylor, and thus not a burglary of a dwelling under the Guidelines.

The dissent rejects the view that the Taylor definition of burglary extends to the Guidelines contending that "we do not apply Taylor's general definition to more specific types of burglary." Although we have not explicitly held that the Taylor definition of burglary provides the definition of "burglary" in § 4B1.2, the reasons given by the Supreme Court in Taylor for establishing a uniform definition of burglary under the ACCA apply here. That is, the Guidelines also seek to promote uniformity in sentencing and to avoid reliance on outdated common law definitions. See Taylor, 495 U.S. at 590-95, 110 S.Ct. 2143; U.S.S.G. ch. 1, pt. A, intro., p.s. 3. (stating that a fundamental purpose of the Sentencing Guidelines is "reasonable uniformity in sentencing" among federal districts). Moreover, we have previously treated the ACCA definition established in Taylor as informative of the definition of "burglary" in § 4B1.2(a)(2). In United States v. Williams, 47 F.3d 993 (9th Cir.1995), we held that a plea of nolo contendere to a charge of unlawfully entering a residence and building with intent to commit larceny constituted a conviction of a "crime of violence" under U.S.S.G. § 4B1.2(1). We relied on an ACCA case, United States v. Dunn, 946 F.2d 615, 620 (9th Cir.1991), citing it for the Taylor definition of burglary. Williams, 47 F.3d at 995. Thus, the most logical and sensible reading of the Guidelines and the reading that is consistent with our cases is to construe "burglary of a dwelling" as the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling.² Under this definition and the categorical approach required by Taylor and Becker, it is clear that the scope of Washington's residential burglary statute exceeds the federal definition. As the dissent acknowledges, under Washington law, a "dwelling" can include a fenced area, a railway car or a cargo container. Wash. Rev.Code § 9A.04.110(5). And Taylor limits burglary to buildings or other structures. 495 U.S. at 598, 110 S.Ct. 2143.

The dissent relies on the dictionary definition of a "dwelling" quoted in United States v. McClenton, 53 F.3d 584, 587 (3d Cir.1995), and United States v. Graham, 982 F.2d 315, 316 (8th Cir.1992); however, neither case holds that burglary as broad as residential burglary under Washington law would qualify as "burglary of a dwelling" under the Guidelines. McClenton involved burglary of a hotel guest room, 53 F.3d at 587, and Graham involved burglary of "shelters used for weekend fishing retreats," 982 F.2d at 316.³ Because the dictionary definition urged by the dissent is broader than the uniform federal definition of "burglary of a dwelling," we decline to adopt it as controlling under § 4B1.2(a)(2). Cf. Williams, 47 F.3d at 994 (concluding that burglary under California law is "broader than the conduct defined in § 4B1.2(1) because the statute encompasses burglaries of buildings other than dwellings in situations that might not present a serious potential risk of physical injury to another").

The dissent's analysis of the Washington statute strays from the categorical approach required by Taylor and would create an unnecessary tension with our cases applying Taylor to guideline cases. Under the proper analysis, the necessary conclusion is that residential burglary under Washington law does not meet the definition of "burglary of a dwelling" under § 4B1.2(a)(2).

B. Modified Categorical Approach

Citing Bonat, 106 F.3d at 1477, the government argues that we can find that Wenner's conviction matched the federal definition of burglary because the information charged Wenner with "enter[ing] or remain[ing] unlawfully in a dwelling other than a vehicle, the residence of Mike Jewell." The government does not point to a signed plea agreement or judgment of conviction that would demonstrate that Wenner was convicted as charged and our independent review of the record does not disclose any such document. It is well-established that we may not rely on an information alone to determine the elements of conviction. See United States v. Parker, 5 F.3d 1322, 1327 (9th Cir.1993) (A "sente...