*1 damages may seeks re- tion of the Steele SKOPIL, Before TANG and Circuit wage quire interpretating the scale estab- McKIBBEN, Judges, and District collective-bargaining agree- lished Judge.* Again, it would not follow that preempted. As the Su- Steele’s claim ORDER preme Lingle: noted in Court agreement collective-bargaining A 5.4(c)(4)(A) petition Pursuant G.O. course, contain information such may, rehearing for re- pay and other economic bene- as rate of presented to the hearing en banc has been might helpful determining fits that reject has voted to full court which prevail- damages to which a worker rehearing en Fed.R. suggestion for banc. suit is entitled. Al- a state law 35(b). App.P. though govern the in- federal law would rehearing is denied and agreement to deter- terpretation of the rehearing en suggestion for banc proper damages, underlying mine the rejected. claim, pre-empt- not otherwise state law the decision re- Thus, ed, general stand. Judge hearing authored Circuit en banc claim de- proposition, a state law joined O’SCANNLAIN upon pend its resolution both BRUNETTI, KOZINSKI, HALL, Judges collective-bargaining interpretation of and TROTT THOMPSON separate state law agreement and a agree- filed herewith. analysis that does not turn on the McKibben, D. actually *The Honorable Howard constitutes fraud 5. Whether or not this Nevada, Judge law is irrelevant for for the District of States District Only preemption appeal. issue is before sitting by designation. us. *2 O’SCANNLAIN, “burglary.” 18 U.S.C. Judge, with fined to include 924(e)(2)(B)(ii). Judges CYNTHIA whom Circuit § HALL, BRUNETTI, HOLCOMB Cunningham’s prior convic- One of three KOZINSKI, DAVID Oregon an for second- tions was concur, THOMPSON, and TROTT law, Oregon degree burglary. Under a dissenting from the order burglary in second de- commits rehearing en banc. unlawfully in gree if he “enters or remains building a intent commit a crime with By rejecting government’s sugges- 164.215(1) (1985). therein.” Or.Rev.Stat. to rehear this case en the court tion Cunningham’s objection Over that second- utterly lets stand unfortunate and need- degree burglary Oregon law is not a hindrance to effective law enforce- less imposed “violent the district court clearly, has stated years im- twenty an enhanced sentence of policy, matter of national that armed career prisonment. very criminals are a threat to the health of panel society. our modern Sentence enhance- of this court reversed the district Oregon burglary court and held that precise ment is the antidote identified legislative prob- could not be counted as one of the three branch to deal with the panel relying felonies. except, lem nationwide. Nationwide it now becomes, Arizona, on this court’s recent in Alaska, decision for the states of Idaho, California, Hawaii, Montana, Cir. Neva- 1989), “burglary” which held that da, the term Oregon, Washington, plus the terri- 924(e)(2)(B)(ii) as used in 18 U.S.C. means tories of Mariana § Guam Northern breaking burglary law Nationwide, is, except Islands. —“the another, entering dwelling of house of twenty percent population about nighttime, with the intent to commit country and half its land For mass. Id. at 527. The Cun- a therein.” burglary this court now rules that convic- ningham panel “[bjecause found that [an] tions in nine states and two territories can state conviction of second longer no taken into account to enhance fit does not the definition of bur- sentences under the Armed Career Crimi- 924(2)(B)(ii) glary in ... contained section ruling nal Act of 1984. Because this of- [sic], it cannot serve as a basis for sentence sense, contrary fends common Cunningham, v.U.S. enhancement.” intent, congressional and contravenes the In other overwhelming weight authority from words, burglary might a because have oc- circuits, respectfully I other dissent. during day building, curred in an office it be counted. cannot I Judges Skopil specially and McKibben concurred because felt bound Randall was indicted on one judges Chatman. Both stated their belief possession count for of a firearm decided, felon, wrongly how- previously in convicted violation of ever, they encouraged en banc review 922(g)(1) (Supp. 1987). 18 U.S.C. V At § Cunningham, “to correct the error.” arraignment, the time of government alleging filed an information prior felony
that he had three convictions II 924(e) (Supp. of 18 U.S.C. V 1987), provides for enhanced sen- Contrary to the court’s decision Chat- defendants, man, parole tences compounded without where by its decision in now Cunningham, 922(g)(1), who are convicted under section never intended to previous have three or more limit convictions the definition of felony.” burglary.1 a “violent is de- to common law “Violent U.S.C. § majority placed weight 1. The it determinative the fact in Chatman erred because bills, 924(e), misread the one limited the conceived, derstood that the amendment would serve originally the Armed Career As “burglary” in Act of 1984 defined to “broaden the definition career crimi Criminal [of broad, “any felony con- generic greater sweep terms as so that we have a nal] entering remaining surrepti- sisting of important and more effective use of this building property that is tiously within Act statute.” Armed Career Criminal *3 engage in conduct another with intent to Hearing on H.R. and Amendments: 4639 constituting a Federal or offense.” State on Subcomm. Crime 4768 Before 1202(c)(9)(1982 Supp. II U.S.C.App. & 18 Judiciary, Comm. on 1984) legislative history re- (repealed). The Cong., 99th 2d Sess. 44 To achieve why definition was chosen: veals the broad goal, the Bill the so-called “broaden[ed] burglaries and are the most Robberies predicate drug crimes to include violations society. Robberies damaging crimes to and certain other serious violent acts.” greater burglaries occur with far and (1986) (statement Cong.Rec. felonies, frequency than other af- violent Specter). Representative Wyden, Ron Sen. cause the many people, fect more and (a sponsor of H.R. 4639 House bill person forty times greatest losses. amendment), precursor which was a robbery likely to a victim of more explained that while the Act had been a rape. than of success, it “would be much more effective [*] [*] [*] [*] [*] [*] if the predicate extended offenses were beyond robbery to include Burglaries invasion of involve [inno- drug crimes of violence and serious of workplaces, homes cent individuals’] Armed Career Criminal Act fenses.” privacy, of their and loss violation Hearing Amendments: on S. 2312 Before posses- personal their most and valued sions. Most robberies [*] burglaries [*] [*] are com- * * * Senate Cong., Subcomm. 2d Sess. 6 Comm, on (1986) Criminal Law of (emphasis Judiciary, added). 99th Congress burglary, thus intended that mitted career criminals ... [who] burglaries robberies and inter- defined under the Armed Career Criminal commit changeably. continue to serve as a Act of would Moreover, in- Congress offense. H.R.Rep. Cong., No. 98th 2d Sess. 3 expand variety tended to the number and (statement (1984) Specter) (empha- of Sen. give would rise to sen- of offenses which added). sis Act. There enhancement under the tence Amendments Act of The Career Criminal absolutely no indication that preexisting definition 1986 eliminated giving rise sought to restrict the offenses provided no substitute. But See United enhancement. to sentence Amendment’s shows Hill, v. 863 F.2d States intended to broaden rather to intro- This court’s decision than to restrict the number offenses nine a restriction for the western duce such give sentence enhance- rise to Pacific territories flies and two Specter, who states ment. Senator Arlen intro- bill, Congress. the will of original criminal un- the face of duced the career "burglary" under section crimes involv- did not constitute definition of "violent use, use, amended, "burglary” attempted limited to its "the or threatened use of against person Headspeth, physical of another.” At least force law definition. Chatman, rendering F.2d at 527-28. See also United of not has the merit unlike (4th Cir.1988). Headspeth, part Career Criminal Act a of the Armed "violent Even under this definition of Two its Circuit’s boundaries. dead letter within Burglary burglary surely is a must be included. comprising the Fourth of the five states nature, that, by its involves substantial “burglary" statutes all the in their seem to retain against physical Indeed, of an- force risk of crime. of the common law elements other. only two such states nationwide. are the at deciding 869 F.2d Headspeth, See dissenting). Circuit in The Fourth breaking” Maryland’s offense "storehouse III Complaint of Glenn Matter of the In the appeals which have All circuit courts HECHINGER, as Charterer have held since the issue
decided the TRAWLER Pro Hac Vice of Owner not limited to that the term Exoneration from or D II for WYNN These courts law definition. its common Liability, Limitation of Three to the issue. approaches take two carry forward simply circuits HECHINGER, Glenn R. “burglary” contained definition of Hill, 924(e). original version v. 1581-82;2 United States 863 F.2d v. Dombrowski, Cir. CASKIE, Defendant-Appellant. Stewart Palmer, 1989); 871 F.2d *4 (3d the one I recom approach is The other States Court of United my Chatman —to mended any applicable treat section under state defined 13, Argued April 1989. Submitted F.2d at 530-31 law. Decided Nov. dissenting). Both the this tack. Eighth take Fifth and Circuits Quintero, F.2d
See United States (5th Cir.1989); (8th Cir.1989), Taylor, - U.S.-, 110 S.Ct. granted,
cert. L.Ed.2d second-
Defendant qualify under either of the five courts. adopted by these
rationales
IV en
By refusing to take its commitment this circuit reaffirms rejected anachronism a medieval circuit. Con-
every legislature in this state ancient notions
gress never intended to control crime pleading
common law century. Let us in the twentieth
fighting Ninth do
hope that the states career crimi- for armed
not a haven become the deliberate beyond the reach of
nals policy set Con-
sentence enhancement
gress. on, alia, our Chatman deci based inter subsequent Eleventh Circuit reversal 2. A decision of the States, awaiting Carter v. United applying principle certiorari sion. Cir.1989), filed, cert. No. 88-7307 Supreme peti- Court in a consideration 22, 1989). urging (May tion filed the convicted