US v. Weekley, CR-91-072-JLQ.
| Decision Date | 03 April 1992 |
| Docket Number | No. CR-91-072-JLQ.,CR-91-072-JLQ. |
| Citation | 790 F. Supp. 223 |
| Parties | UNITED STATES of America, Plaintiff, v. Edward Harry WEEKLEY, Defendant. |
| Court | U.S. District Court — District of Washington |
Thomas O. Rice, Asst. U.S. Atty., Spokane, Wash., for plaintiff.
Michael D. Kinkley, Spokane, Wash., for defendant.
BEFORE THE COURT is Plaintiff's Request to Enhance Defendant's Sentence in the above-entitled matter heard on April 1, 1992. Assistant United States Attorney Thomas O. Rice appeared for the Plaintiff. The Defendant appeared personally and through his court-appointed attorney Michael D. Kinkley. Having reviewed the record, heard from counsel and being fully advised in this matter, this Opinion is intended to memorialize the oral rulings of the court. IT IS HEREBY ORDERED that Plaintiff's Request to Enhance Sentence is DENIED for the following reasons.
On November 14, 1991, the Defendant Edward Harry Weekley was convicted by a jury for being a felon in possession of a firearm. A sentencing hearing was held on January 9, 1991. Mr. Weekley's presentence investigation report indicates that he has an extensive juvenile and adult criminal history of thefts and burglaries. At the January 9, 1991 hearing, the Government urged the court to enhance Mr. Weekley's sentence pursuant to 18 U.S.C. § 924(e). The court took the request under advisement, and the parties have provided supplemental briefing on the issue, which the court has now reviewed.
18 U.S.C. § 924(e)(1) provides that a person convicted of certain firearm offenses, including a charge of being a felon in possession of a firearm, and who has three prior convictions for a "violent felony" or a serious drug offense; or both, committed on occasions different from one another, shall be sentenced to a mandatory 15 years, without possibility of probation or parole. 18 U.S.C. § 924(e)(2)(B) defines "violent felony".
The Government continues to maintain that Mr. Weekley is subject to an enhancement of his sentence pursuant to 18 U.S.C. § 924(e). The Defendant contends he does not have three prior convictions for a "violent felony", and therefore, that his sentence should not be enhanced pursuant to § 924(e). Mr. Weekley's past convictions relevant to the issue here are:
It is not disputed that Mr. Weekley's two prior convictions for second degree burglary constitute two prior convictions for "violent crimes". The issue is whether the conviction for attempted second degree burglary satisfies the requirement as the third predicate conviction for a "violent crime" necessary for enhancement under 18 U.S.C. § 924(e).
Under 18 U.S.C. § 924(e), a prior conviction is for a "violent felony" if it fits within one of three categories: (1) the offense has as an element, the use, or attempted or threatened use of physical force against another person under § 924(e)(2)(B)(i); (2) the offense is the equivalent of the enumerated crimes of burglary, arson, extortion, or use of explosives under the first provision of § 924(e)(2)(B)(ii); or (3) the offense otherwise involves conduct that presents a serious potential risk of physical injury to another under the second provision of § 924(e)(2)(B)(ii).
18 U.S.C. § 924(e)(2)(B)(i)
The Government has not suggested that Mr. Weekley's attempted burglary conviction falls under § 924(e)(2)(B)(i). Clearly, neither the Washington second degree burglary statute, nor the Washington attempt statute require, as an element, the use or threat of physical force against another person. See RCW 9A.52.030 and RCW 9A.28.020, infra. Therefore, the only question is whether an attempted second degree burglary conviction qualifies as a conviction for a "violent felony" under either provision of § 924(e)(2)(B)(ii).
18 U.S.C. § 924(e)(2)(B)(ii)
Any discussion of § 924(e)(2)(B)(ii) necessarily begins with the landmark decision of United States v. Taylor, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in which the Supreme Court resolved a conflict among the circuits as to what Congress meant by the word "burglary" as used in the first provision of 18 U.S.C. § 924(e)(2)(B)(ii). The Court held that (1) "burglary", within the meaning of § 924(e), refers to conviction of any crime, regardless of its exact definition or label under state law, which has the basic elements of a generic burglary, i.e. an unlawful or unprivileged entry into, or remaining in, a building or structure, with the intent to commit a crime; or (2) if the charging papers and/or jury instructions actually required a finding of all elements of a generic burglary in order to convict a defendant. For example, in a State whose burglary statutes include entry of an automobile, as well as a building, and if the indictment or information and/or jury instructions indicate that a defendant was charged only with a burglary of a building, and the jury necessarily had to find entry of a building to convict, the Government should be allowed to use that conviction for enhancement under § 924(e). Id. 110 S.Ct. at 2160.
The Court further held that a sentencing court must generally adopt a formal categorical approach, looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the underlying facts of any particular case. Id. at 2159.
The Ninth Circuit has not yet addressed the question of whether an attempted burglary conviction constitutes a predicate "violent felony" for purposes of § 924(e)(2)(B)(ii). However, in United States v. Sherbondy, 865 F.2d 996 (9th Cir.1988), the court first determined that the California Witness Intimidation Statute was not a "violent felony" for sentence enhancement pursuant to § 924(e)(2)(B)(i) because the statute does not require proof of force or threat of force against persons.
The court then turned to a discussion of § 924(e)(2)(B)(ii) and concluded that the first provision of subsection (ii) sets forth categorical property offenses, and that the "otherwise clause" of the second provision of subsection (ii) is a generalized version of that categorical approach. Id. at 1008. The court observed:
We do not view the "otherwise" clause as an indication by Congress of its intention to abandon the categorical approach it uses throughout the section in favor of one that requires courts to examine individual acts in the case of the unspecified offenses; rather we construe it as an attempt to set forth a general description that serves to expand the intended categories beyond the four explicitly listed.
Id. at 1008. Thus, the court concluded "that subsection (ii) does not permit inquiry into the individual defendant's specific conduct in committing the prior offense." Id. at 1009.
The Supreme Court in Taylor found the reasoning of Sherbondy to be persuasive, stating that "the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Taylor, supra, 110 S.Ct. at 2160. The Court further observed that the language of § 924(e) and the legislative history of the enhancement statute indicate that Congress chose a categorical rather than a factual approach to predicate offenses, noting that "the practical difficulties and potential unfairness of a factual approach are daunting." Id. at 2159.
Thus, when determining whether a prior conviction is a "violent felony", for purposes of § 924(e)(2)(B), reference is made to the statutes under which the conviction was obtained rather than the actual conduct involved. Accordingly, the inquiry in this case is whether attempted burglary under Washington statutes is a crime for which Mr. Weekley's sentence may be enhanced either as a "generic burglary" as enumerated in the first provision of subsection (ii), or else falls under the "otherwise clause" of the second provision of subsection (ii).
Congress enacted the original version of § 924 in 1984, in an effort to target armed career criminals for stiffer sentences. See Taylor, supra, 110 S.Ct. at 2149 (citing H.R.Rep. No. 98-1073, 98th Cong., 2d Sess. 1, 3). That version of the enhancement statute included only burglary and robbery as predicate offenses. Id.
In 1986, Congress amended § 924(e) to the version applicable here. Thus, Congress shifted the focus of the predicate offenses toward "violent crimes" and "serious drug offenses". One of the issues Congress debated in its efforts to amend § 924(e) was whether burglary should remain a predicate offense in light of the new focus on violence and drugs. See Taylor, supra at 2150-2153. Congress eventually decided to retain burglary as a predicate offense, both because burglary is an offense often committed by career criminals, who remained targets of the enhanced sentences, and because of the high risk of violent confrontation inherent in the crime of burglary. Id. at 2152-2153. However, attempted burglary, was not enumerated as a predicate offense.
Significantly, Congress did not specifically include convictions for attempts to commit burglary as predicate offenses for sentence enhancement under 924(e) ... In two previous versions of the Armed Career Criminal Act that were passed by the Senate but never enacted into law, the...
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