*1 recognition The Fifth Circuit decided that a rule in claimant adopted our Adams “strong acquire federal interest status as a seaman if he fact that the could were fostering activity” assigned permanently commercial maritime to a number ves- legitimate outweighed the interest State’s sels for of maintenance and re- regulating conduct its borders. pair. Id. at 528. Adams, 528 F.2d at 439. The Fifth inapplica- Circuit decisions are ble Stanfield for two reasons. nor the

Neither the rule presupposes “fleet per- seaman” doctrine permits a conclusion that of Adams assignment manent operating navigable water to number of vessels was Traveler injury. plying navigable It does the time of Stanfield’s waters. not en- compass arising Kings Fork of the River was land South service to a irrigation. Second, There in non-navigable used vessel waters. used, suggestion ever permanently assigned is no that it was Stanfield was be, artery shipping. could as an injury. ever Traveler at the his time of He was dredging by the Traveler for serving that, done no other vessel. The fact irrigation originally to purposes of was periods employment, different he land, by equipment operating on done on other worked vessels Shellmaker that landowner determine that too much waters, navigable were located on damage be done to environmental alter the case before There us. is no diffi- accordingly the shore. The Traveler culty finding perma- herein a “more or less dredge. subsequently in to trucked nent connection” with vessel. Estate of dredging non-navigable Wenzel, used on waters 709 F.2d at 1327. The connection Napa pond Traveler, in the Sanitation District sewer tois the vessel and it was not in settling in a pond the Chevron navigation navigable waters at the time Richmond, Company Chemical Califor injury. Stanfield’s activities, though Its they nia. commercial CONCLUSION were, did not South convert the Fork into judgment of the district court waters, navigable scope AFFIRMED. admiralty jurisdiction or the Jones Act.

FLEET SEAMAN DOCTRINE despite

Stanfield the Travel operation non-navigable waters,

er’s he

qualifies as a seaman “fleet sea doctrine

man” as it has articulated been Fifth Circuit. v. Jackson Braniff America, UNITED STATES Inc., Avenue-Gretna Ferry, F.2d 523 Plaintiff-Appellee, (5th Cir.1960); Higginbotham v. Mobil Oil (5th Cir.1977), Corp., 545 F.2d 422 reversed CHATMAN, Gregory grounds, Lee on other 436 U.S. 98 S.Ct. Defendant-Appellant. (1978); 56 L.Ed.2d Guidry Co., Continental Oil F.2d 523 No. 87-5351. Cir.), Appeals, States Court 70 L.Ed.2d 87 Ninth Circuit. assume, Even we without decid ing, that the ap Argued “fleet seaman” doctrine Aug. and Submitted plies circuit, in this no is of use to Stan- Decided March field. That doctrine was devised to ease requirement that, seaman, to be “assigned claimant had to be permanently

to a vessel.” Braniff, 280 F.2d at 526. *2 FLETCHER, CANBY and

Before O’SCANNLAIN, Judges. Circuit CANBY, Judge: Circuit

INTRODUCTION Congress en- States In 1984 the United Act, 18 the Armed Career Criminal acted 1202(a)(repealed U.S.C.App. and later § 924(e)(1))(“the corporated into 18 U.S.C. § Act”). provides mandatory 15 Act prison person for “a year sentence ... 922(g) violates section [firearm offense] by any previous has three convictions felony____” for Violent court ... a violent provi- felony is to include “burglary.” sions 18 U.S.C. §

Appellant Gregory L. was Chatman caught stealing property from an unoccu- gun A pied patdown car. search revealed He was in his waistband. indicted 922(g)(1) being for felon possession of firearm. Chatman sentenced under the Armed Career Crimi- Act, 924(e)(1), fifteen nal U.S.C. prison, possi- years without parole, suspension bility probation or a previously had of sentence. Chatman pleaded guilty three other counts of burglary” “auto under California law. instances, prior each of the Chatman unarmed.

ISSUE Chatman attacks his enhanced sentence grounds. most on several We not reach them,1 following for find the issue dis- we Steward, Dean H. Federal Defend- Public positive: ers, Cal., Ana, defendant-appel- for Santa burglary,” Does “auto defined Cali- lant. fornia to unarmed from an theft Rolnick, Cal., Harriet Angeles, M. Los unoccupied vehicle, qualify as a plaintiff-appellee. 924, under U.S.C. year prison

mandates a fifteen sentence prior for violators with three convictions Wicks, lapping 1. Chatman contends that the court erred see district time. But United States v. denied, 192, (9th Cir.1987), refusing collaterally permit him to attack 833 F.2d cert. -, prior his convictions. See States v. Claw U.S. S.Ct. United 102 L.Ed.2d son, (9th Cir.1987), (1988). Finally, 831 F.2d cert. de he contends that his 15 —nied, Ü.S. -, punish L.Ed.2d sentence constituted cruel and unusual Baker, requisite But He also contends that the ment. see United States v. 850 F.2d serial, (9th Cir.1988). prior convictions must be not over- Cir.1988). specifically including Because we wish to felony,” “violent avoid creat ing unnecessary intercircuit conflict “burglary”? e.g., issue, see this novel States not. We there- does We conclude Gwaltney, 1388 n. 4 sentence and re- vacate Chatman’s fore Cir.1986) resentencing. mand S.Ct. 94 L.Ed.2d 187 be agree cause we with the Fourth Circuit’s STANDARD REVIEW OF *3 Headspeth, we hold Interpretation application and the leaving undefined, the term Con Act calls for Career Criminal de Armed gress intended it to have its United e.g., novo review. See States v. meaning. “Burglary” therefore the means Henderson, (9th Cir.1984) 746 F.2d 619 breaking entering and the 321, 106 aff'd, S.Ct. 90 L.Ed. another, nighttime, house of the the with (1986). penal it is a 2d 299 Because stat felony intent to commit a therein. Head strictly ute, Act is to construed in the be speth, F.2d at of the accused. United States v. favor not by statute does its terms define Gilbert, (9th Cir.) 813 F.2d “burglary,” suggests but the context -, U.S. S.Ct. something had mind more dan- (1987) (citing to United States L.Ed.2d 127 gerous than theft from a locked vehicle. (9th Cir.1976)). Kelly, 527 F.2d v. provision The enhancement refers statute the penal A must “define criminal arson, extortion, burglary, crime that “is or with sufficient definiteness that or offense explosive, involves use of or otherwise people can what conduct dinary understand presents a potential serious risk physi- prohibited is and in a manner that does not injury cal to another.” 18 U.S.C. encourage arbitrary discriminatory and en 924(e)(2)(B)(ii)(emphasis added). Burgla- Lawson, forcement.” Kolender v. 461 ry entirely place out of that list unless 352, 357, 103 U.S. S.Ct. 75 L.Ed. it is defined so that describes a crime (1983). 2d 903 engendering injury per- Although government sons. DISCUSSION theft from an automobile end rationale, injury, such based on mere Burglary Auto every make possibility, virtually would Chatman that auto property crime violent. words of felony is not violent simply support statute such a broad responds Act. The Government reading. burglaries all “violent felonies” en legislative history, Neither does the compassed within the Act’s aspects of which we examined in United “burglary.” provides The Act as follows: States (9th felony” “violent means [t]he Cir.1988). scope Act was punishable imprisonment crime for a subject of and the much debate final ver- exceeding that— one sion of the bill amendments overrode use, (i) has as an attempted element the sought define specifically to the term “bur- use, physical or threatened use force glary.” rejected provision A would have another; against person or expanded the See Arm- term. common law (ii) arson, burglary, extortion, or Legislation: Hearing ed Career Criminal explosives, use of volves otherwise on H.R. H.R. and 4768 Before physi- Comm, Subcomm. on Crime Home cal to another. on the Judiciary, 99th Cong., 2d Sess. The Fourth 1986) Cir- (May (“Hearing”). re- Another recently term “burglary” cuit held that the jected provision would have led ato broad in the Armed Career Criminal Act is to property inclusion of crimes. H.R. given definition. Cong., 99th 2d An Sess. amend- Headspeth, States F.2d predi- ment which would have defined the define criminal statutes to “an element State by reference offenses cate range multiplicity ways. Definitions use, attempted use [involving] view, entering a from the common law physical against force use of threatened felony, to building intent to commit a with another,” 99th H.R. person of simple W. La shoplifting. generally, turned down Cong., 2d Sess. Scott, A. Criminal Fave and Substantive crimes exclude violent would because it Law”). (“Substantive Law, Criminal 8.13 sought The final version against property. en- Yet of the view that those bridge gap between put Act “would not hancement variety crimes include wide having position Federal courts offenses and those who robbery interpret laws on State against per- of force element in Federal criminal trials.” 865 F.2d at 1007. son. See 5-6, Cong. H.R.Rep. 1073 at 1984 U.S.Code Specter, principal sponsor Arlen Senator Nor did & Admin.News purpose bill, stated “It punish the state crime itself. intend *4 incapacitate to small legislation was Crime], appeared to the Subcommittee [on population segment the criminal of therefore, although there need was a great majority of responsible for to aid to these extend Federal curb Cong.Rec. (daily 18080 ed. crimes. 180 S. reser- career criminals there were serious 4, 1984). In view of the need to re- prose- Oct. the appropriateness vations as to of in burglaries traditional role enforce- local or un- spect the states’ cutions of robberies crimes, in H.R. light and of der a Federal statute.” 1073 at ment of common Cong. investigative 1984 U.S.Code & Admin.News resources and scarce federal 3664. mandatory prison space, the law’s limited aimed strike at “career term to overwhelming impression created among the criminals would be worst [who] legislative history is the same as deserving being of and most incarcerated.” gleaned of which we from the structure Cong.Rec. ed. (daily S. Feb. 924(e)(2)(B)(ii):Congress section intended 1984) (statement by Specter). The Sen. particular to be crime of dan- a us it hard to

record before makes believe ger person, not to all of and here, dealing that this we are is what property the common offenses that states reprehensible property to steal as be might burglary. choose to denominate as from locked automobiles. Sherbondy, provision As in as we said finally specific enacted “includes four cate- designed keep Act was to distance crime, gories property of each which between state and federal criminal law. Congress believed involves conduct which crime, a new Federal create Unit- poses particularly ‘risk of West, ed States v. ” to another.’ 865 F.2d 1009. Cir.1987), merely penalty enhances the The California statute which existing relating for the Federal offenses previously provides Chatman was convicted permit to “It would not firearms. the Fed- pertinent part: prosecution eral individual who prosecuted house, Every person could under current Fed- enters any be law, room, apartment, warehouse, store, trespass upon any shop, eral would not prosecution ... vehicle State Federal the Vehicle courts [or] locked, Code are when doors ... with Cong.Rec. to law.” 130 State S. petit grand larceny intent to commit (statement 1984) Oct. (daily ed. or any felony guilty burglary. Specter). Sen. did seek a jurisdiction expansion “radical of Federal Cal.Penal Code Each information over H.R.Rep. common law crimes.” No. under Chatman was convicted Cong., Sess., 2d 98th re- charged him with violation this printed Cong. date, particular U.S.Code & Admin. on a he “did willful- News ly unlawfully enter a motor vehicle per burglary, his last [described], car and that cir- [named being son], the doors said motor vehicle cumstance can well indicate a serious risk locked, Thus, larceny.” injury. argument goes, commit with the intent to category quali- no force auto does not as Under against proved; entry fy meaning need be vehicle within wing some auto by way 924(e)(2)(B)(ii), burglaries window that is section unable ought qualify, clause, has been held be if not under be fastened Malcolm, People Cal.App.3d then as crimes that “otherwise a] Cal.Rptr. are of physical injury We unable burglary2 Id. square this definition with the another.” congressional intent embodied rejected very We similar proposition in 924(e)(2)(B)(ii). where held we that the Califor- inap- Because the California definition is nia witness intimidation statute did not de- propriate, and federal statute does not fine “violent felony” one, provide we follow the Fourth Circuit of section Concerning that selecting the common law definition. “Ab- subsection, entire we stated: more persuasive sent evidence that Con- One conclusion we draw from our re- gress ‘burglary’ intended legislative view history is that 924(e)(2)(B)to amended section mean some- Congress consistently discussed subsec- thing else, depart we reluctant (ii) i.e., tion in categorical terms; usual presumption in- terms what offenses it would include. given tended is no There indication that *5 meaning.” Headspeth, law at F.2d particular statutory tended that a a 758. “When uses common law common law crime would in some circum- burglary like a federal criminal felony stances constitute a violent and in it, defining statute without otherwise Con- not, other depending circumstances gress presumed adopt to the how the offense was committed. Id. given that term at law.” at common Sherbondy, pointed 865 F.2d at 1008. We States, to Morrissette United (citing prior out that treatment of oth- convictions 240, 249, 96 er than categorically would involve the sen- (1952). L.Ed. 288 tencing federal court a series of “ad hoc Moreover, the common law elements of long mini-trials” after the events issue breaking entering a house noted Id. at 1008. Finally, we passed. had nighttime embody high risk of injury a cate- adopted had Fourth Circuit persons, to far more that accompany- than inquiry holding that its approach, gorical ing general run of offenses. offense to the nature of the limited definition, therefore, common law only “offenses in the state defined statute: Congress’ well suited purposes. It very na- pose by their defined, which, strikes at “worst and most injury to potential risk of ture a serious criminals, deserving” Cong.Rec. felonies” qualified as “violent another” (daily 23, 1984), ed. Feb. and avoids such meaning of the catchall “bizarre results” as enhancement on the (ii). F.2d at of subsection of shoplifting. basis such crimes as See La Headspeth, at (quoting 1006-07 Scott, Fave & Substantive Criminal Law 759). 8.13 (referring at 477 to Model Code defi- Sherbondy and Head- nition of burglary). speth, analysis, as well as our own causes government’s government’s brief reject one us to individualized approach prior other approach. 924(e)(2)(B)(ii) Chatman’s convic- Section addresses tions. crimes, It that categories Chatman was armed both in reference examples presented (i.e., 2. Other shoplifting). Califor- the intent to commit theft Wilson, Burglary entry nia statute. People Cal.App.2d includes of a store 325 P.2d open public, hours when it is Instead, Congress clearly expected to it. reference and its catchall it present[ burglary conviction as finds take a state “otherwise ] crimes rap anoth- it on sheet. physical injury to a defendant’s potential express in the absence At least er.” fifty my survey the laws con- legislative history direction indi- the District Columbia states and lenity requires us so rule trary, the states, Maryland two only cates that F.2d interpret it. See Virginia, elements of the common retain all Headspetk, 852 F.2d at & n. (and these law crime even two 758-59. “night- states seem to use definition of approach, result categorical Under used at common time” different by the burglary, as defined Auto is clear. law). Thus, every conviction Code, proved with- may be Penal except two would jurisdiction these establishing elements out inquiry court to conduct an into a federal proved with- also more whether one or elements necessary elements establishing, as out procedure been satisfied. Not is this conduct conviction cumbersome, likely it seems “presents Congress had intended federal courts to auto Convictions for to another.” harm procedure investigat- follow unusual consequently as a cannot serve ing factual of individual circumstances enhancement under section basis applying the crimes for sen- Sherbondy, 865 F.2d at 924(e)(2)(B)(ii).See tence enhancement statute that addition, I explicitly. have so find said it hard to would have believe CONCLUSION in a included bur- prior convictions auto merely Chatman’s to reach statute convic- subject him to an enhanced glary Maryland do not tions under the laws of and Vir- 924(e)(2)(B)(ii) ginia. sentence under crime, because Second, the common law definition of not meet does statute defy easy burglary is so esoteric as to *6 it burglary. Nor is a crime definition Congress application, that very presents “otherwise

that nature attempt did intend the federal courts to injury risk of to anoth- a serious law, apply it. At common each element er,” that section. of the crime was in extreme elaborated sentence and remand We vacate Chatman’s detail, and most were defined so as to resentencing. to the district court types differentiate between of action that VACATED, REMANDED SENTENCE practically indistinguishable, seem at least FOR RESENTENCING. point from danger of view of created. example, “breaking” For an actual was re- O’SCANNLAIN, Judge, Circuit through quired entry open an door win- dissenting: insufficient, although coming dow was holding, majority’s chimney I dissent from the down the was considered break- ing. Similarly, night generally which follows the Fourth Circuit’s recent holding Congress enough that intended to as the time which there was daylight person’s common law definition of to discern face. Com- implementing interpreted en mon sentence law decisions likewise “dwelling-house” extremely particu- hancement statute. See United States (4th Cir.1988). sense, Headspeth, 852 including buildings F.2d 753 larized is, barns, stables, Although, majority, “curtilage,” nearby like I am loath near, using unnecessary split, dairy create an circuit houses or within “bow-shot” many building. unlikely commonlaw definition creates so of the main It seems practical interpretive Congress contemplated difficulties that I that federal persuaded am attempt did not intend courts would to reinstate these types sufficiently between viates arcane distinctions various what might of offenses. tended the courts be forced to state that no conviction under the statute would Theoretically, some these difficulties 924(e)(1) count for section enhancement might by using be avoided the catchall matter, purposes. practical As a the likeli- poten- term “otherwise remote, hood of such event is majori- tial physical another” ty’s opinion contrary notwithstand- enhance the of those sentences convicted view, ing. my existing none of the state “burglary,” does not fit the statutory definitions of fall into However, approach this definition. category. this problems. essentially two reads the term out of the surprising is not all to me that only apply because the will to an now dignifies high- California its citizen’s car as extremely small number of fit cases which Indeed, ly as one’s home. all the convolutions one’s car indeed be more sacrosanct Second, definition. I think approach this dwelling. than one’s could not majority will still not reach the vast of possibly have penalize meant to the citizens statutes, categori- state under the thinking California for contents analysis correctly adopted by cal court. of a car are entitled to as much Most state statutes offenses protection from theft as the contents of an necessarily do not involve apartment. another, because, physical injury like reasons, Judge For these I affirm case, they pun- the statute at this issue Keller in his determination that the crime the burglary unoccupied ish structures. committed was a “burglary” and therefore burgla- Even the common law definition of felony” a “violent under the federal sen- ry house tence enhancement statute. occupied at the time of the Thus, congressional contrary purposes,

crimes generally defined as enhancement, qualify for sentence un-

less we read the catchall

much proposed broader sense than in the

opinion. view,

In my probable it seems more assume that Congress meant the federal HAIRE, Sr., Robert William courts to language examine Plaintiff-Appellant, relevant generally state statutes and ac cept the statutory definitions of bur glary. This does not mean that courts *7 America; UNITED STATES of Malcolm accept purposes for Commerce; Secretary Unit- Baldrige, section 924 whatever definition the state Commerce, Department De- ed States give chooses to As Supreme it. Court fendants-Appellees. noted, borrowing law, “spe when No. 88-1627. cific aberrant or hostile state rules provide appropriate standards for federal Appeals, United States Court of law.” States Little Lake Misere Ninth Circuit. Co., Land Argued and Submitted Jan. (1973). Thus, L.Ed.2d example, the fact a state defined the Decided March jaywalking offense of not satisfy the definition of 924 if of section classifying such

an offense as Con

gress’ intent. Where the state statute de-