United States v. Scanlan, 10–3377.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: PER CURIAM.
• Citation: 667 F.3d 896
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eric S. SCANLAN, Defendant–Appellant.
• Docket Number: No. 10–3377.,10–3377.
• Decision Date: 27 January 2012

667 F.3d 896

UNITED STATES of America, Plaintiff–Appellee,
v.
Eric S. SCANLAN, Defendant–Appellant.

No. 10–3377.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 2011.Decided Jan. 27, 2012.

[667 F.3d 897]

Bridget J. Domaszek (argued), Brian J. Resler, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Brian T. Fahl (argued), Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Defendant–Appellant.

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

PER CURIAM.

Eric S. Scanlan pleaded guilty to possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). The district court set a base offense level of 24, see U.S.S.G. § 2K2.1(a)(2), relying in part on a California burglary conviction that the district court considered a crime of violence. Scanlan argues that the district court committed plain error by treating the burglary conviction as a crime of violence. We affirm the sentence.

Police in Milwaukee, Wisconsin, arrested Scanlan after receiving a tip that he would be arriving in town by bus from California wearing a bulletproof vest and carrying drugs and a firearm. Scanlan was indicted for possession of a firearm and body armor by a felon, 18 U.S.C. §§ 922(g)(1), 931(a)(7), and pleaded guilty to the firearm charge.

A probation officer prepared a presentence investigation report setting Scanlan's base offense level at 24 under U.S.S.G. § 2K2.1(a)(2). That calculation was based in part on a California conviction for “burglary” which the probation officer characterized

[667 F.3d 898]

as a crime of violence. By default the base offense level under § 2K2.1 for a violation of § 922(g)(1) is 14, but that starting point is raised to 20 for a defendant with one prior conviction for either a crime of violence or a controlled substance offense, and to 24 if the defendant has two such convictions. U.S.S.G. § 2K2.1(a)(2), (4)(A), (6). An offense qualifies as a crime of violence if it 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.” Id. §§ 4B1.2(a)(2), 2K2.1 cmt. n. 1.

Scanlan's lawyer initially objected that, in drafting the presentence report, the probation officer had impermissibly relied on police reports from the California case rather than judicial records, and thus lacked a permissible basis for concluding that Scanlan had burglarized a residence rather than some other type of structure. By the time of sentencing, however, counsel had received a copy of the charging document and judgment for the California offense, which conclusively establish that Scanlan was convicted of first-degree residential burglary under California Penal Code § 459. Counsel thus withdrew his objection. The district court adopted the guidelines imprisonment range of 77 to 96 months from the presentence report and imposed a term of 93 months.

Defense counsel filed a motion to withdraw, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but we rejected the motion and ordered briefing on whether, for guidelines purposes, the crime of “burglary” as defined by California law fits the definition of burglary articulated in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor the Supreme Court explained that “burglary” traditionally has been defined as an “unlawful or unprivileged” entry into a building or structure with intent to commit a crime, 495 F.3d at 599. California has not defined burglary under § 459 to include as an element of the offense an unprivileged entry or unlawful presence; entering with the intent to commit a felony, even if the entry is by invitation, constitutes burglary. See People v. Letner, 50 Cal.4th 99, 112 Cal.Rptr.3d 746, 235 P.3d 62, 115 (2010); People v. Lynch, 50 Cal.4th 693, 114 Cal.Rptr.3d 63, 237 P.3d 416, 465 n. 23 (2010).

Taylor holds that a conviction for “burglary” does not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), unless “its statutory definition substantially corresponds to ‘generic’ burglary.” 495 U.S. at 602, 110 S.Ct. 2143. We have said that the definition of “crime of violence” in § 4B1.2(a) and the ACCA definition of “violent felony” are “identical ... except that the...