United States v. Timothy Allen Wenner

KLEINFELD, it not de- Judge, its mistaken belief could Circuit the have been part, logical in sentence would dissenting part. part in concurring months, guidelines the bottom of the majority’s I the I in Part concur range. judge That the chose to sentence from Part respectfully dissent opinion and months, to 51 a term Arellano-Gallegos II. middle of right applicable the the appeal for majority remands this judge’s range, in combination with the because “the district court resentencing possibility depar- comment the about un- acknowledge it expressly did not future, disallowed in the being tures depart.”1 authority the to it had derstood judge no doubt that the leaves me with clarification when to remand for We are authority but de- depart understood his to from the to determine rec- “we are unable so, That lack being clined to do so. ruling the district court’s was ord whether jurisdiction the court’s decision.4 to review a legal of its an discretion exercise authority the to that it did have ruling” merely not exist

depart.2 But doubt does ac- judge “expressly does not

because the authority that he the to

knowledge” has

depart. opposite.3 The law is the

Here, clearly district court indicated the authority to understanding depart its of its America, UNITED STATES of discussing possi- guidelines. from In Plaintiff-Appellee, again if the en- ble sentences defendant v. illegally, States court tered the United Timothy WENNER, Allen stated, quite frankly, going get “And it’s to Defendant-Appellant. worse, fact, sentencing not better. trying any possi- out is to take commission No. 02-30022. indicates that quote ble This departures.” Appeals, States Court of that it court cur- district understood Ninth Circuit. authority depart. to rently possessed sentence, Further, imposing the dis- 2003. Argued and Submitted Jan. stated, you trict court “I’ll treat as Filed Dec. 2003. V, history the sen- category criminal but going 51 months tence is still to be ... range is 46 to 57

custody. The for V If, I best can do.”

That’s the court argues, district would

defendant him less time but for

have sentenced to guideline range instead sentences within Op. 1. at 968. depart, departing. Therefore failure is silent on the issue of when the record Dickey, 2. v. 924 F.2d United States imposed within the authority, and sentence (9th Cir.1991). range, applicable guideline not unlawful basis.”). appealable and is on that Garcia-Garcia, 3. See United (“We ... hold Smith, affirmatively 4. United States obligation has no court district Cir.2003). authority depart it has when state that WALLACE, TROTT, and Before TASHIMA, Judges. Circuit TASHIMA, Judge. Circuit Washington must decide We whether “crime of is a vio- lence” under Guidelines. stated, reasons hereinafter For that it is conclude not.

Timothy pled guilty Wenner be firearm, possession a felon 922(g)(1). § violation of 18 U.S.C. pled guilty to the state crimes Wenner burglary, Wash. Rev.Code 9A.52.025(1), § and attempted residential burglary, Id. 9A.28.020(1), § both felonies Id. law. 9A.28.020(3)(c). Id. 9A.52.025(2); § § At found sentencing, the district court violence, these two crimes were crimes of level therefore held his base offense 2K2.1(a)(2). § be 24. U.S.S.G. arguing that convictions appeals, these crimes of violence under Guide jurisdiction over this We have time lines. § pursuant 1291 and ly appeal 28 U.S.C. 3742(a). § reverse re U.S.C. We resentencing.1 for mand ANALYSIS Gunn, Deputy F. Public Carlton Federal Guidelines, a crime vio- Under Defender, CA, Angeles, defen- Los for the or “any offense federal state lence is dant-appellant. by for imprisonment punishable Friedman, Andrew C. Assistant United ... exceeding one is bur- year, term Seattle, WA, Attorney, States for dwelling ... otherwise in- glary of a plaintiff-appellee. po- presents volves conduct serious physical injury to another.”

tential risk of 4B1.2(a)(2). attempt An U.S.S.G. Alexander, (9th Cir.2002). 1. We de novo the court's inter- review district pretation of the Guidelines. United commit temporary, thereof, a crime of violence is itself a crime portion or a which is ordinarily violence. U.S.S.G. 4B1.2 cmt. n. 1. used or used 9A.04.110(7). lodging.” Wash. Rev.Code To determine whether Wenner’s In Washington, “building” can include a burglaries state convictions are of dwell car, fenced cargo con- contends, ings, government as the we first 9A.04.110(5). tainer. Wash. Rev.Code categorical approach use the outlined States, Taylor v. United that “burglary” held under the (1990). S.Ct. 109 L.Ed.2d 607 Unit (“ACCA”) Armed Career Criminal Act ed States v. “an into, unlawful or unprivileged entry or Cir.1990) (extending Taylor’s categorical in, structure, remaining building a or other Guidelines). approach to the Under this with to intent commit a crime.” 495 U.S. approach, we do not look to specific 598, at 110 S.Ct. 2143. argues convictions, conduct only of his state but “burglary that a of a dwelling” under the statutory definition of the crime. Tay Guidelines must be a “burglary” under lor, 495 at U.S. 110 S.Ct. 2143. If the Taylor (i.e., it must entry involve into a state statute criminalizes conduct that is building), burglary and the must be of a a crime of violence under (which “dwelling” under federal law might 4B1.2(a)(2), then his conviction a is not Washington’s differ from definition of a categorical Taylor match. permits also us “dwelling”). agree Taylor’s We defi- go beyond “to the mere fact of conviction “burglary” applies nition of to the defini- in range a narrow of cases.” 495 at Thus, tion of of a dwelling.” 602, 110 S.Ct. 2143. cases where a burglary of a dwelling must involve a state statute criminalizes both conduct that “building structure” Taylor. under does qualify and does not aas crime of things Some that are dwellings under violence, we review using the conviction a areas, Washington (e.g., railway law fenced categorical approach. modified “Under cars, containers) cargo are not build- the modified categorical approach, we con law, ings or structures under federal duct a limited examination of documents in support so cannot a conviction generic for the record of conviction to determine if “burglary” Taylor. Taylor, under 495 there is sufficient evidence to conclude U.S. at (noting 110 S.Ct. 2143 that a that a defendant was convicted of the ele burglary broadly few states define more generically ments of the defined crime “by than the federal including definition though even facially his her statute was places ... buildings,” other than such as INS, Chang overinclusive.” 307 F.3d automobiles, vending machines, booths, (9th Cir.2002) (citing United tents, railway cars); boats and Corona-Sanchez, States v. Bonat, States v. (9th Cir.2002) (en banc)). Cir.1997) (observing that burglary of a railway car “burglary” would not be under Categorical Approach A. Pluta, Taylor); United F.3d Wenner’s conviction for residential 975-76 (remarking that burglary is defined “entering] as or re burglary neighbor’s backyard of is not main[ing] unlawfully in dwelling Thus, a other “burglary” Taylor). under we than a vehicle” with agree the intent to commit a Washington with Wenner that the 9A.52.025(1). crime. Wash. Rev.Code law; statute is broader than federal bur- Washington “dwelling” “any defines a glarizing a fenced area that doubles as a structure, building or though movable or dwelling burglary is a residential under law, “burglary” reading un- Guidelines and the that is consis but not Washington and thus not a Taylor, der tent with is to “burgla our cases construe under the Guidelines. dwelling ry of a as the Taylor definition burglary, qualifica with the narrowing rejects the view dissent dwelling.2 tion that occur Taylor extends to definition categorical Under this definition and the contending that “we do not the Guidelines by approach required Taylor and apply general definition more Taylor’s scope Washington’s it is clear that the Although burglary.” types statute exceeds the explicitly Taylor have held that federal As the burglary provides defini- definition. dissent acknowl definition 4B1.2, § “burglary” “dwelling” tion of reasons edges, Taylor given Supreme Court can include a fenced car or establishing burgla- a uniform definition cargo container. Wash. Rev.Code is, ry apply the ACCA here. That 9A.04.110(5). burgla And limits promote the Guidelines also seek to unifor- other buildings or structures. mity sentencing and on in to avoid reliance 598, 110 at U.S. S.Ct. 2143. law outdated common definitions. See dictionary The dissent relies on the defi- 2143; 590-95, Taylor, at 110 S.Ct. of in “dwelling” quoted nition United A, 1, intro., pt. p.s. (stating ch. 3. U.S.S.G. (3d McClenton, 53 587 F.3d the purpose that fundamental of Sen- Cir.1995), Graham, and United States uniformi- is “reasonable

tencing Guidelines (8th Cir.1992); however, F.2d 982 316 districts). sentencing” inty among federal neither holds that as burglary case broad Moreover, previously have we treated the burglary Washington as residential under Taylor as ACCA definition established qualify “burglary law would as of a dwell- “burglary” definition of informative of the in- ing” under the Guidelines. McClenton 4B1.2(a)(2). § States v. room, burglary guest volved of hotel 53 (9th Williams, Cir.1995), 47 F.3d 993 burgla- at F.3d and Graham involved plea held of contendere to a that nolo fishing of used for “shelters weekend charge unlawfully entering residence retreats,” F.2d at 982 316.3 Because the building larceny and with intent to commit urged dictionary definition the dissent constituted a conviction of a “crime of vio- broader the uniform federal defini- than 4B1.2(1). § lence” re- under U.S.S.G. We dwelling,” tion of we decline “burglary case, lied on an ACCA United States v. controlling to under adopt Dunn, Cir.1991), 620 4B1.2(a)(2). Williams, § 47 F.3d at citing Taylor burgla- it for the definition Cf that under Cali- Williams, Thus, (concluding 994 ry. at F.3d 995. the conduct reading most of the fornia law is “broader than the logical sensible necessarily incongruous particularly 2143. thus 2. definition is nar- It is The Guidelines' burglary. Washington the rower than ACCA definition resi- the dissent to conclude that comment, 4B1.2, (n.l); See U.S.S.G. dential than bur- broader comment, 4B1.4, (n.l) (explaining U.S.S.G. enough meet still narrow to the but felony” that “violent under the ACCA and Guidelines’ definition. identically of violence” are not de- "crime fined). Additionally, Supreme Court has holdings 3. the narrowness of the Because of rejected argument “burglary” Graham, holding our cre- McClenton apply be to the ACCA should construed to scope no conflict on the ates inter-circuit burglaries because narrow subclass Con- 4B1.2(a). "burglary of a gress provide narrowing language. did 593-94, Taylor, at S.Ct. 1.2(1) document, § 4B solely charging defined in because the statute on instead of encompasses burglaries buildings other considering also Judgment on Plea of dwellings might than in situations that error). Guilty, it would have been present a serious Moreover, sentencing transcript in another”). injury to dicates that the district court did not as analysis of the The dissent’s prior sess Wenner’s convictions under the strays categorical ap- statute from the categorical approach, modified but rather proach required by Taylor and would cre- appears presumed have the stat unnecessary ate an with tension our cases utes categorical constituted a match. We applying Taylor guideline cases. Under government conclude that the did not car analysis, proper necessary conclu- ry its establishing burden of that Wenner sion is that under was convicted of a crime of violence under Washington law does not meet the defini- the modified categorical approach. See tion of of a dwelling” under Pimentel-Flores, United States v. 4B1.2(a)(2). F.3d (stating that the burden is government prove on the Categorical Approach B. Modified the basis for enhancements under Bonat, Citing 106 F.3d at categorical approach). modified government argues that we can find Wenner’s conviction matched the federal C. Catchall Provision definition because the informa Although government the eschews charged tion “enter[ing] Wenner with or argument the that residential is a unlawfully in a remain[ing] dwelling other violence, apart crime of argument from the vehicle, than a the residence of Mike Jew that it can be a a dwelling,” of ell.” government not point does to a the dissent insists that because residential signed plea agreement judgment or of con burglary “involves conduct that presents a viction that would demonstrate that Wen potential serious risk of physical injury to ner charged was convicted as in and our another,” burglary, no matter dependent review the record does not broadly worded, how qualify should any disclose as a such document. It is well- provi crime violence under the catchall may established that rely we not on an 4B1.2(a)(2).4 sion of Because ap information alone to this determine the ele proach ments of renders the limitation on conviction. See United v. the classi States Parker, Cir.1993) (A burglaries 5 fication of F.3d crime of violence 1327 “sentencing burglaries to rely “dwellings” surplus- court upon the mere charging paper age, respectfully disagree alone in if a determining with the dis prior jury conviction was for a ‘violent sent. Under the reasoning dissent’s all ”); Bonat, felony.’ at burglaries, they 1477-78 whether or not burgla that, (stating if district court had dwelling, qualify relied ries of a would for an (2) arson, provides: 4. This section dwelling, aof or ex- tortion, (a) explosives, The term involves the use of "crime of violence” means or any pun- offense under federal or state presents otherwise involves conduct that by imprisonment ishable term exceed- potential physical injury serious risk of ing year, one that— another. (1) use, attempted as an has element the 1.2(a). U.S.S.G. 4B use, physical or threatened use of force another, against

975 (“It (9th Cir.2000) 4B1.2(a)(2). 1013 fundamen- Wbat enhancement statutory provision may ask, general of the tal that then, purpose was the one must nullify trump specif- used to or to list- be specifically Sentencing Commission Finally, provision”). ap- ic the dissent’s dwelling” as a crime “burglary of a proach requirement eviscerates the that violence?5 statute of conviction not exceed the state statutory canon of It is a fundamental scope of the federal definition. See not be that a statute should construction v. 570 United States provi its as to render construed so (9th Cir.1990) (holding categorical that the See, e.g., surplusage. sions mere Ratzlaf approach Taylor applies established States, 135, 140-41, 114 v. United Guidelines). Here, Sentencing (1994) (noting L.Ed.2d 615 126 S.Ct. specifically provide Guidelines “bur- statutory language should not be con is a “crime of vio- as to render certain words strued so inclusion, specific lence.” Given that it is Bowsher v. surplusage); mere phrases statutory interpretation unsound to use Co., 824, 833, 103 S.Ct. Merck & U.S. catchall “conduct that general, pres- (1983) (restating L.Ed.2d 580 ents serious statutory con principle of “the settled all other bur- injury” provision to include ... give that we must effect struction violence. glaries as crimes of statute”). The dissent’s every word of analysis The dissent its on United another fundamen bases approach also violates M.C.E., 232 F.3d 1252 Cir. statutory construction principle tal 2000). Although M.C.E. addressed the trumps general. specific Co., Washington statute under which Wenner Laundry Mach. v. Bock Green convicted, 504, 524, L.Ed.2d was it did not assess whether S.Ct. (1989) (“A burglary met the statutory rule usu general definition of a there is no Guidelines’ ally govern does not unless 4B1.2(a). rule.”); Rath crime of violence under Fourco Glass Co. more 222, er, Washington determined that Corp., Prods. 353 U.S. M.C.E. Transmirra (1957) burglary is a crime of violence 228-29, 1 L.Ed.2d 786 residential 77 S.Ct. transferring juve general only purpose for the (“Specific prevail terms over the under 18 prosecution oth nile to adult U.S.C. in same or another statute which (citation § at 1257. the Sentenc controlling.”) and 5032. Id. Unlike might erwise be however, Guidelines, § omitted); 5032 does Cal. ex quotation internal marks “burglary of separately specifically list Quality Metro. Air rel. Sacramento Thus, States, dwelling” as a crime of violence. Mgmt. Dist. dissent, burglary attempted are crimes of acknowledging "the residential 5. The while violence, crystal sentencing court’s rationale is not violence as violence —not actual but clear,” likely the district court asserts guidelines.” This is misused in the that term 4B1.2(a)(2)'s pro- catch-all "relied on section light on whether the district con- sheds no support for this vision.” We find no record Washington burglary residential cluded that prefacing with assertion. After its remarks equiv- because it was was a crime of violence only a the observation that tenuous "[t]here’s dwelling burglary or because it alent relationship Guide- between the requirement of the catch- "conduct” met the sentencing, purposes but lines and the parties' do not dis- provision. all briefs guidelines,” the district we’re stuck with these is a provision at all —there cuss the catchall controlling only to the court’s reference any briefing on the complete absence of issue guideline provision was its remark that “I case. would decide this on which the dissent burglary residential and the think that both M.C.E., 4B1.2(a)(2)’s dissent, § in our decision unlike the catchall provision, which any statutory did not render in language specific would render the inclusion of “bur- involved, § superfluous. the statute glary of a in the same section That decision also did not favor a general surplusage.

statutory provision over a one. Attempt D. Conviction M.C.E., language we noted that the in “virtually

§ 5032 is identical” to the lan- Finally, we turn to whether Wenner’s Becker, guage used which we held attempted conviction for residential bur- that residential under a Califor- glary is a crime of violence. Under the nia statute constituted a crime violence Guidelines, attempt an commit crime “ an felony because was offense ‘that ais of violence is itself a crime violence. that, nature, its involves substan- 4B1.2, Because, cmt. U.S.S.G. 1. as we tial risk that against force above, have concluded Washington resi- property of another be used violence, dential burglary is not a crime of ” committing the course of that offense.’ Wenner’s attempted state conviction for Becker, M.C.E. 232 F.3d at (quoting residential also is not a crime of 569). however, 919 F.2d at Significantly, violence under the Guidelines. in Becker we an considered earlier version Sentencing Guidelines, of the which did not CONCLUSION any specific defining list crimes in a crime Because neither of violence.6 919 F.2d at 572. attempted nor burgla Thus, neither M.C.E. nor Becker consid- violence, ais crime of the district court ered whether a state conviction for resi- in enhancing erred Wenner’s sentence un dential constitutes a crime of vio- 2K2.1(a)(l). der We therefore vacate lence because it is “burglary the sentence and resentencing. remand for for the reason that neither the 1988 ver- Matthews, United States sion of the Guidelines nor 18 U.S.C. 5032 (9th Cir.) (en banc), 885-90 cert. de eligible burglaries limited to burglary of a nied, S.Ct. dwelling.7 (2002). L.Ed.2d 173 reasons, For these we decline to adopt dissent’s broad reading VACATED and REMANDED. 6. The 1988 Keffeler, version of U.S.S.G. 4B1.2 at v. Estate 123 S.Ct. employed issue in 1017, 1025, Becker the definition of (2003), 154 L.Ed.2d 972 the dis- (1988), § crime of violence from 18 U.S.C. 16 employs expansively, sent the canon rather provided which that a crime of violence was: restrictively, than provi- such that the catchall (a) an offense that has as an element the up sion would "swallow[ ] the rest of the use, use, attempted or threatened use of States, statute.” v. United Peretz physical against person proper- force or 923, 955, 2661, 111 S.Ct. 115 L.Ed.2d 808 another, ty of or (Scalia, J., (1991). dissenting) Under the dis- (b) any other felony offense that is a view, sent’s of "a fenced rail- that, nature, by its involves a substantial car, way cargo or qualify container” would as physical against person risk that force a crime of violence "whether or not this con- property or of another be used in the 'burglary dwelling’ duct constitutes aof under committing course of the offense. application federal law.” But of the dissent's (1988). 18 U.S.C. 16 principle stop expansive would not there: Its ejusdem generis 7. The dissent’s reliance on the principle apply equally would to the statutory canon of automobile, construction is also mis boat, warehouse, of an or even a placed. contrary practice, For to established bam. see, e.g., Dep’t Wash. Social & Health Serv. ... of a ... WALLACE, Judge, dissenting. year, dwelling Circuit or involves conduct that pres- otherwise “a guilty burglarizing pled ents a serious vehicle, residence of dwelling other than a injury to another.” To decide whether majority concludes Mike Jewell.” “burgla- Wenner’s conviction constitutes a “burglary of did not commit a that Wenner dwelling” of a under federal “crime of vio- or other compare Washington’s must crime of “bur- under the lence” as defined glary “burglary of a residence” with of a majority’s from the I dissent Guidelines. 4B1.2(a)(2), dwelling” under section look- of federal law. interpretation strained ing exclusively statutory to the definition affirmed for The district court should be specific of the crime rather than to the First, we use the cate- two reasons. while underlying conduct Wenner’s conviction. outlined in gorical approach If Taylor, 495 U.S. at 110 S.Ct. 2143. States, 110 S.Ct. U.S. United the state statute criminalizes conduct that (1990), 109 L.Ed.2d a crime of violence would not be under States v. 4B1.2(a)(2), section Wenner’s conviction Taylor’s categorical (applying support higher cannot base offense Guidelines), to the we do approach jury actually unless “the was re- level generic bur- Taylor’s extend definition quired to find all the elements” of a crime of- to the Guidelines’ more Taylor, of violence. 495 U.S. at Second, dwelling.” of a “burglary fense S.Ct. 2143. be- the district court should be affirmed cause, Washington if defines residen- even II. broadly

tial more than the Guide- dwelling,” “burglary lines’ of a follows. argument proceeds Wenner’s as a crime of violence burglary is nonetheless First, provision. catch-all under the Guidelines’ way must be defined the same Guidelines “burglary” under Taylor defined I. (ACCA), i.e., Act Armed Career Criminal convicted in state court of Wenner was entry building. it must involve into a burglary, Washington which de- Second, at 110 S.Ct. 2143. “entering] remaining] fines or unlaw- “building” federal definition of is narrower fully dwelling in a other than vehicle” of a “dwell- Washington’s than definition with the intent to commit crime. Wash. things some deemed ing.” Consequently, 9A.52.025(1). “dwelling” A Rev. Code (e.g., law residences structure, “any though movable building areas, cars, cargo fenced con- thereof, portion or a which temporary, 9A.52.025(1), tainers, Wash. Rev. Code ordinarily is used or used 9A.04.110(5)) buildings or struc- 9A.04.110(7). lodging.” Id. Wash- federal law and so cannot tures under “building” can include a fenced ington, a generic “burglary” a conviction for support car, railway cargo a or a container. Bonat, v. Taylor. under See United States 9A.04.110(5). §Id. Cir.1997) (9th (burgla- 1477 106 F.3d railway “burglary” car not under of vio- of a is conviction is a “crime Wenner’s ACCA); Taylor and the United States Sentencing lence” under Guidelines Cir.1998) 4B1.2(a)(2) Pluto, if 144 F.3d 975-76 represents offense “an[ ] law, backyard is not punishable by (burglary neighbor’s under federal or state ACCA). Taylor under and the exceeding “burglary” for a term one imprisonment sum, generic blindly contends that the Wash- definition to the Guidelines’ Wenner burglary statute is ington’s “burglary dwelling.” residential more of a 4B1.2(a)(2), broader than section because The issue before us is not resi- whether burglarizing a fenced area that doubles as burglary “burglary” dential under the burglary a a dwelling is It ACCA. whether residential bur- “burglary” but not a un- glary Taylor’s satisfies definition of “bur- Taylor, burglary der and therefore not a glary” or whether fenced areas dwelling a the Guidelines. Instead, “buildings” under federal law. assumes, majority and the the issue is whether Washington’s resi- Taylor’s “burgla- definition of agrees, that burglary dential than statute is broader ry” applies to the Guidelines’ offense “bur- “burglary the federal definition of of a dwelling,” burglary of a a thus dwelling.” precisely, More we must de- in- dwelling a under the Guidelines must burglary cide whether the of fenced ar- “building Tay- a or structure” under volve eas, cars, railway cargo containers accept Tay- I do not this conclusion. lor. lodging used for “burglary constitutes run-of-the-mill lor defined under the To Guidelines. this ACCA, in appears word 18 TJ.S.C. I turn. 924(e)(2)(B)(ii); apply Tay- we do not Eighth The Third and Circuits define a general definition to more specific lor’s for “dwelling” purposes these as a “build types burglary. thereof, tent, or portion a mobile instance, for Suppose, Sentencing home, a space vehicle other enclosed a provision Commission were add to the which is used or intended for use as to increase a Guidelines defendant’s base habitation, human home or residence.” offense level for a vehicular con- McClenton, United States v. 53 F.3d Surely Taylor’s ge- viction. definition of (3d Cir.1995), quoting Black’s Law apply, neric would not “burglary” else the Dictionary (6th ed.1990); transpire vehicular would have to Graham, INS, building. Sareang Ye v. inside same). (quoting interpret If we (9th Cir.2000) 1132-33 “burglary of a dwelling” to cover “en (recognizing Taylor’s general defini- space which closed is used or intended for “burglary” tion of does not include “vehicle habitation, home, as a human use or resi burglary”). A who stole car from dence,” Washington’s (such lot) a fenced area as a parking would statute is no broader than the uniform not have burglary. committed vehicular A federal definition. fenced area is an just majori- This absurd result is what the space,” “enclosed as are cars and ty’s logic commands. See, cargo e.g., containers. Black's Law (7th ed.1999) Dictionary compels Reason me to (defining conclude that Taylor’s “burglary” definition of actually does “enclosed land” as “land that is fences”); apply every time that word appears enclosed and surrounded 1926.21(b)(6)(h) Sentencing Guidelines. (defining does not C.F.R. “en purport “burglary space” safety regula to define of a closed and health employed spaces as that term is including “open top section tions as more 4B1.2(a)(2). Thus, general obligation depth”). our than four Rather than feet to apply Taylor’s categorical approach majority’s illogical embrace conclusion interpreting when that generic “burglary” Guide- require dwelling” buildings, lines does not us I to extend its must both involve Sentencing that the suggest residential Court Com- Washington’s that hold would 4B1.2(a)(2) authority the a than mission lacks delimit no broader burglary is . specific burglary category along categorical ap- more Taylor’s and thus satisfies Taylor’s that departs ge- these lines from proach. neric definition. its definition majority asserts that The majority argues that a not create The also “resi- of a does “burglary a dence” under federal law must be “build- McClenton Gra split a circuit because Williams, ing” for under United States v. merely Taylor’s narrow definition ham (9th Cir.1995). 4B1.2(a)(2) Although F.3d by requir of section purposes does include a reference to building that is also a Williams entry into Thompson’s “building or structure” lan- somewhat dwelling. Although Graham is it plain guage, does not address the issue raised point, on this McClenton’s ambiguous Williams, In majority’s construc in this case. we cited the language defies Thompson support holding as for our that Sentencing Commission has tion: “The sentence could enhanced not- approach to the de Williams’s be adopted categorical withstanding fact that the underlying an of the indictment termination of whether specific not “unlaw- employ violence’ within section did the terms is a ‘crime of fense 4B1.2, entry” required by ful unprivileged invasion deciding that Parker, presents an United States v. F.3d place people where reside (9th Cir.1993). n. 2 and must be & Because Williams’s unacceptable risk of harm in an place “occupied McClen took struc- as a crime of violence.” classified ture,” ton, By “burglary we did not have occasion to consider defining 53 F.3d at 588. entry Taylor’s illegal whether into an alternative dwelling” differently from space “burgla- residential would constitute generic burglary, for McClenton definition Thus, dwelling.” of a we did not con- directly majority’s contradicts the decision. definition Taylor’s general sider whether alternative, majority In the contends ordinary mean- “burglary” restricts the interpretation of section that McClenton’s in section ing of “residence” as used 4B1.2(a)(2) cannot be correct because “the 4B1.2(a)(2). rejected argument has Supreme Court majority’s opinion draws under the should be Given that the ‘burglary’ ACCA the Third this circuit into conflict with apply construed to to narrow subclass Circuit, highly I find it ironic Contrary majority’s to the burglaries.” assertion, majority my reading of section pos- faults Taylor did foreclose 4B1.2(a)(2) undermining for the Guidelines’ sibility Commission uniformity in sentenc- goal promote “to might depart general from its definition majority’s holding frustrates identify ing.” cate- “burglary” more uniformity by un- sentencing reality, the Third Circuit’s inter-circuit gorizations. necessarily extending generic definition “burglary of a dwell- generic definition of to a context where the Sen- “burglary” and narrower than ing” is both broader clearly anticipate a defi- tencing Guidelines Sentencing Guidelines’ definition apply that would to all residential “burglary”: it is broader nition run-of-the-mill reasons, I definition, would inter- applies spaces. it For these Taylor’s than because under section buildings, spaces pret that are not to residential 4B1.2(a)(2) narrower, broadly encompass considerably be- more it is also but Washington’s spaces covered apply to nonresidential cause does statute. buildings. Taylor does Nowhere novo, III. review de United States Alcarez (9th Camacho, Cir.2003), 340 F.3d ma- Regardless my conflict with the we are not bound to decide the case based above, jority theory there an alternative solely sentencing on the court’s rationale upon which we can and should affirm the or the for dismissing district court’s reason district court. I now turn to this alterna- petition. the habeas We can affirm if the tive. record sentencing got shows the court majority argues may we right but for another reason. See id. consider whether Wenner’s acts “other- (‘Whether sentencing guidelines apply the that presents involve[ wise conduct a ] question to an offense is a of law reviewed potential physical injury serious risk of to novo, de without deference to the sentenc- parties another” because the did not brief (internal ing interpretation.” quota- court’s this issue and the district court did not omitted)); tions and citation Pollard 4B1.2(a)(2)’s apply provi- section catch-all White, sentencing sion. The court stated: (“We review district court’s dismissal of appreciate argument I the that defen- petition may a habeas de novo and affirm narrowing- trying dant nar- makes — record, any ground supported by on the things get row—these around what is even if it from the rationale of differs the statute, apparently the intent the court.”). Therefore, district assum- even just guideline, frankly the but I don’t burglary that Wenner’s residential was buy it. I think if look at the ordi- not a dwelling under section nary used and the terms statutes and 4B1.2(a)(2), I believe we should affirm the what Mr. fact did based on Wenner district court under the section’s catch-all cases, the records of those I think that provision, because conviction involves both the residential and the presents “conduct that potential serious attempted physical injury risk of to another.” violence, crimes of violence—not actual Under con- Wenner’s but violence as that term is misused in necessarily viction involved a delimited guidelines. That be unfortu- space ordinarily “used or nate, used government but I believe that the lodging.” simply argu- has better side of that Rev. Wash. Code 9A.04.110(7). ment, prior I Our decisions dic- guideline and so think the work- presents tate that this offense up is correct. serious physical injury to another. Although sentencing court’s rationale Thus, Washington’s clear, crystal is not its decision to “look at statute is no broader than the Guidelines’ ordinary terms what Mr. used[and] provision. catch-all Wenner fact did based on the records of suggests likely those cases” that it consid- For a state crime to be a crime of ered, part, at least in applying “burglary of 4B1.2(a)(2)’s violence under section catch- a dwelling” and relied on section all provision, we need not—and cannot— 4B1.2(a)(2)’s provision. catch-all look to particular facts that occasioned Rather,

But this a non-dispositive issue. the conviction. apply we must court sentencing categorical approach, Whether in fact relied under which we look on the catch-all provision only statutory is not determina- at the definition. United M.C.E., tive for purposes analysis. of our Because States v. Cir.2000).

the Sentencing applicability Guidelines’ We need consider whether particular question burglarized offense is of law we the residence ac- was

981 required a burglary. 18 U.S.C. 5032 “substantial occupied during the tually 1.2(a)(2) Weinert, risk,” 1 4B requires F.3d 891 while section States v. Cir.1993). (9th All that matters is that the only potential a “serious risk.” Accord conduct that only criminalizes (daytime state statute 919 F.2d at 571-72 bur- physi- of potential risk a serious presents of a a crime of residence is violence injury to another. Guidelines, cal under the 1988 which defined a including felony crime of violence as a that statutory provision inter-

The federal inherently involves “a substantial risk” of a of vio- defines crime preted M.C.E. force). compels therefore physical M.C.E. very “by crime that its lence to include that conviction the conclusion Wenner’s nature, a risk that involves substantial Washington’s of anoth- against force physical un- statute constitutes crime of violence may committing the offense.” er be used provision. der the Guidelines’ catch-all analyzed M.C.E. 18 U.S.C. 5032. at issue here and same statute response It is no to assert that this violence that it was a crime of concluded reading of the catch-all provision would § 5032 “because the under 18 U.S.C. specific provision “burgla render the more entry into a dwell- unlawful perpetrator’s surplusage. mere Catch to commit a crime therein ing with intent provisions designed all to catch what may risk that he en- creates a substantial most, At specific provisions leave behind. an occupant, perhaps or counter the lawful 4B1.2(a)(2)’s provision catch-all section officer, resulting thus investigating police subject may ejusdem generis be to the 232 F.3d at in a violent confrontation.” “[wjhere canon, gener which dictates differences Notwithstanding 1255. of specific al words follow the enumeration “[cjourts definitions, that have faced state things, general classes of words must question have come to the conclusion this things of the be construed as restricted tell) can (unanimously as far as we type specifically as those enumerat same of burglary is indeed crime Constructors, Aqua-Marine ed.” Inc. v. inherently Id. Such conduct is violence.” Banks, (9th Cir.1997); 677 dangerous, place not because it take Singer, 2A citing Norman J. Sutherland building,” or but rather in a “structure 47.17, Statutory Construction at 188-90 if highly likely violence to occur because is ed.1992); Dep’t also rev. see Wash. occu- perpetrator encounters lawful Social and Health Serv. v. Estate Id.; officer. see United pant police Keffeler, 371, 384-85, 123 S.Ct. Pinto, F.2d States v. (2003) (applying prin this 154 L.Ed.2d Cir.1989) (“[R]esidential burglary has been actually Ejusdem generis supports ciple). a violent offense for hundreds considered 4B1.2(a)(2), my however. reading section for dec- years.... No one has doubted an commentary explains, As the section’s that residential ‘violent ades (i.e., of violence unlisted offense is a crime offense, may- potential because of the e specifically type of “th same as those burglar if encounters a resi- hem enumerated”) nature, “by if its the conduct Davis, ”); F.2d dent.’ United States physi (11th Cir.1989) (“In presented a serious accord with 4B1.2, cmt. 1. The circuits, injury.” cal U.S.S.G. ... of the federal the settled law majority seriously dispute does not conclude that the of a dwell- remaining in a fenced illegally entering or nature a substantial risk its creates car, force.”). used cargo container reasoning ’s M.C.E. commit a with intent in the instant case since residence even more forceful physi- impermissibly neglects section poses crime therein a serious risk 4B1.2(a)(2)’s injury, cal whether or not this conduct catch-all provision. Under constitutes tests, both the district court should be federal law. concluding affirmed in that Wenner’s sta- telaw conviction for residential 4B1.2(a)(2)’s

Reading catch-all section I constitutes crime of violence. there- to include this conduct does not provision fore dissent. specific reference to render the statute’s superfluous. of a On contrary, “burglary dwelling” pro- of a paradigmatic example against vides the

which we must evaluate whether Wenner’s Burglary

conviction a of violence. is crime car, or cargo

of a fenced

container used as a residence constitutes a precise-

crime of violence because raises BIEHL; Biehl, Frank Barbara ly safety the same concerns raised oth- Petitioners-Appellants, types burglary. er of residential This analogical approach common sense to sec- 1.2(a)(2) tion 4B is consistent with COMMISSIONER OF INTERNAL

and tracks our sister circuits’ recent hold- REVENUE, Respondent- ings. Taylor, 495 U.S. at 599 n. Appellee. (“The S.Ct. 2143 Government remains free argue including of- offense— No. 02-72723. generic burglary fenses similar to —should count toward enhancement as one that of Appeals, Court that presents ‘otherwise involves conduct Ninth Circuit. potential physical injury serious risk Argued and Submitted Nov. 2003. ”); another’.... United States v. Sun Bear, (8th Cir.2002) Filed Dec. 2003. (deciding that vehicle theft meets this test). sum, ejusdem generis confirms the

conclusion that Wenner’s state law convic-

tion poses involves conduct that a “serious injury anoth- is,

er.” That even if did not tech-

nically burglarize “dwelling” under the definition,

majority’s ill-conceived he still a crime

committed of violence

catch-all provision. To conclude otherwise

is to disregard provision’s the catch-all purpose

clear improperly restrict

provision’s scope.

IV. incorrectly majority defines “bur- under the Guidelines

Case Details

Case Name: United States v. Timothy Allen Wenner

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 12, 2003

Citation: 351 F.3d 969

Docket Number: 02-30022

Court Abbreviation: 9th Cir.