United States v. Martin

• Decision Date: 05 June 2014
• Docket Number: No. 12–5001.,12–5001.
• Citation: 753 F.3d 485
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Romelus Pentroy MARTIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

753 F.3d 485

UNITED STATES of America, Plaintiff–Appellee,

v.Romelus Pentroy MARTIN, Defendant–Appellant.

No. 12–5001.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 30, 2014.

Decided: June 5, 2014.

ARGUED:Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Paul Nitze, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and LIAM O'GRADY, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge DIAZjoined. Judge DIAZ wrote a separate concurring opinion. Judge O'GRADY wrote a dissenting opinion.

TRAXLER, Chief Judge:

Romelus Pentroy Martin appeals the 77–month sentence imposed after he pleaded guilty to unlawful possession of a firearm by a convicted felon. See18 U.S.C. § 922(g)(1). We agree with Martin that the district court erred by increasing his sentence after determining that Martin's prior conviction for fourth-degree burglary constituted a crime of violence under U.S.S.G. § 2K2.1(a)(2), and we therefore vacate Martin's sentence and remand for resentencing.

I.

The Sentencing Guideline applicable to § 922(g) violations sets a base offense level of 24 for defendants who commit the offense after “sustaining at least two felony convictions of ... a crime of violence,” U.S.S.G. § 2K2.1(a)(2), and a base offense level of 20 for defendants with only one prior conviction for a crime of violence, see id. § 2K2.1(a)(4)(A).

When Martin pleaded guilty to the felon-in-possession charge in August 2012, he had three prior convictions, including a 2007 Maryland conviction for conspiracy to commit robbery and a 2009 Maryland conviction for fourth-degree burglary. The district court held that both the 2007 conviction and the 2009 conviction amounted to crimes of violence as defined by the Guidelines, and the court therefore assigned Martin a base-offense level of 24. After adjusting the offense level to reflect Martin's acceptance of responsibility, the district court determined that Martin's advisory sentencing range was 77–96 months, and the court sentenced Martin to 77 months' imprisonment.

On appeal, Martin concedes that his 2007 conviction was properly treated as a crime of violence, but he contends that the district court erred by treating the 2009 conviction as a crime of violence. If the district court had not treated the 2009 conviction as a crime of violence, Martin's base-offense level would have been 20 instead of 24, and his advisory sentencing range would have been 51–63 months.

II.

For purposes of U.S.S.G. § 2K2.1, a “crime of violence” is defined as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a); see id. § 2K2.1, cmt. 1 (defining “crime of violence” through cross-reference to § 4B1.2(a)). When determining whether a prior conviction qualifies as a crime of violence under the Guidelines, we apply a categorical approach, focusing on “the fact of conviction and the statutory definition of the prior offense” rather than the conduct underlying the offense. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see United States v. Carthorne, 726 F.3d 503, 511 (4th Cir.2013), cert. denied,––– U.S. ––––, 134 S.Ct. 1326, 188 L.Ed.2d 337 (2014).¹

Maryland's fourth-degree burglary statute encompasses four separate crimes: breaking and entering the dwelling of another, seeMd.Code Ann., Crim. Law § 6–205(a); breaking and entering the storehouse of another, see id. § 6–205(b); being in a dwelling or storehouse of another (or the yard or other area belonging to such dwelling or storehouse) with the intent to commit theft, see id. § 6–205(c); and possessing burglar's tools with intent to use, see id. § 6–205(d). Although there was some disagreement below, the parties now agree that the relevant charging documents establish that Martin was convicted of violating subsection (a), which provides that “[a] person may not break and enter the dwelling of another.” Id. § 6–205(a).

Because fourth-degree burglary does not have “as an element the use, attempted use, or threatened use of physical force against the person of another,” it is not a crime of violence under U.S.S.G. § 4B1.2(a)(1).

And as the government concedes, the crime likewise does not constitute the enumerated crime of “burglary of a dwelling.” U.S.S.G. § 4B1.2(a)(2). Under the categorical approach, “a prior conviction constitutes a conviction for [an] enumerated offense if the elements of the prior offense correspond in substance to the elements of [an] enumerated offense.” United States v. Cabrera–Umanzor, 728 F.3d 347, 350 (4th Cir.2013) (internal quotation marks and alteration omitted). “[W]here Congress has not indicated how a prior offense enumerated in a sentencing enhancement statute is to be interpreted, it should be understood to refer to ‘the generic, contemporary meaning’ of the crime.” United States v. Rangel–Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143).

In Taylor, the Supreme Court defined generic “burglary” under the ACCA as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Generic “burglary of a dwelling” under the Guidelines follows the Taylor definition, “with the additional requirement that a burglary qualifying as a ‘crime of violence’ must involve a dwelling.” United States v. Bonilla, 687 F.3d 188, 190 n. 3 (4th Cir.2012), cert. denied,––– U.S. ––––, 134 S.Ct. 52, 187 L.Ed.2d 47 (2013). Because § 6–205(a) does not require that the defendant have the intent to commit a crime when he enters the dwelling, fourth-degree burglary is not generic burglary of a dwelling under § 4B1.2(2). Accordingly, Martin's 2009 conviction is a crime of violence only if it satisfies the requirements of the “residual clause” of § 4B1.2(a)(2)—if the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). We turn to that inquiry now.

III.

When determining whether a prior conviction falls within the residual clause, our inquiry remains a categorical one, “consider[ing] whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The parties disagree,however, about the precise scope of the residual-clause inquiry.

In James, the Supreme Court explained that the enumerated offenses preceding the residual clause “provide a baseline against which to measure the degree of risk that a nonenumerated offense must ‘otherwise’ present in order to qualify” as a crime of violence. Id. at 208, 127 S.Ct. 1586 (emphasis added). The Court held that attempted burglary is a violent felony under the ACCA's residual clause because the risk posed by an attempted burglary crime presents a risk of physical injury “comparable to that posed by its closest analog among the enumerated offenses—here, completed burglary.” Id. at 203, 127 S.Ct. 1586.

In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), a case involving a prior conviction for driving under the influence, the Court added an additional layer to the degree-of-risk analysis. The Court held that, in addition to establishing the baseline degree of risk, the enumerated offenses also “illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another.” Id. at 142, 128 S.Ct. 1581 (first emphasis added; internal quotation marks omitted). The Begay Court thus held that the enumerated offenses must be understood “as limiting the crimes that [the residual clause] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 143, 128 S.Ct. 1581 (emphasis added). The Court concluded that the ACCA's enumerated crimes “all typically involve purposeful, violent, and aggressive conduct,” id. at 144–45, 128 S.Ct. 1581 (internal quotation marks omitted), and the Court distinguished those crimes from offenses that—like DUI—“impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all,” id. at 145, 128 S.Ct. 1581. Concluding that DUI is not purposeful, violent, or aggressive, the Court held that it was not similar in kind to the enumerated offenses and thus was not a crime of violence. See id. at 145–46, 128 S.Ct. 1581.

In Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), however, the Court returned to the comparable-degree-of-risk approach, explaining that “[i]n general, levels of risk divide crimes that qualify [under the residual clause] from those that do not.” Id. at 2275 (emphasis added). As to the Begay test, the Court stated that

[t]he phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate ...