FILED
United States Court of Appeals
Tenth Circuit
July 8, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA
Plaintiff - Appellee,
v. No. 07-8004
RICHARD LEE CUMMINGS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:06-CR-00225-ABJ)
Daniel G. Blythe, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with him on the briefs), Cheyenne, WY, for Defendant -
Appellant
Kerry J. Jacobson, Assistant United States Attorney (Matthew H. Mead, United
States Attorney, with her on the brief), Lander, WY, for Plaintiff - Appellee
Before MCCONNELL, SEYMOUR, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Richard Cummings appeals his fifteen-year statutory
mandatory minimum sentence imposed pursuant to 18 U.S.C. § 924(e).
Cummings contends that his three prior burglary convictions under Maine law do
not qualify as “violent felonies” for the purposes of § 924(e). We disagree. The
district court properly sentenced Cummings pursuant to § 924(e) because the
Maine burglary statute is consistent with the generic definition of burglary the
Supreme Court adopted in Taylor v. United States, 495 U.S. 575 (1990). We have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
I.
On October 23, 2006, Cummings, pursuant to a plea agreement, pleaded
guilty to one count of felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). This guilty plea subjected Cummings to a possible sentence of not more
than ten years pursuant to 18 U.S.C. § 924(a)(2) and a possible sentence
enhancement to a statutory mandatory minimum sentence of fifteen years
pursuant to the Armed Career Criminal Act (“ACCA” or the “Act”), 18 U.S.C.
§ 924(e). Prior to sentencing, the United States Probation Office prepared a
presentence investigation report (“PSR”) that described Cummings’s criminal
history, which included one robbery conviction, three burglary convictions, one
car burglary conviction, and one reckless conduct conviction. Based on these
convictions and pursuant to the Armed Career Criminal provision in the
sentencing guidelines, U.S.S.G. § 4B1.4, the Probation Office recommended an
offense level of 31, which also reflected a three-level reduction for Cummings’s
acceptance of responsibility.
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At sentencing, Cummings contested the Government’s claim that he
qualified for sentencing under the ACCA. He asserted that the three Maine
burglary convictions did not qualify as “violent felonies” under 18 U.S.C.
§ 924(e) because the Maine statute was broader than the generic burglary
definition the Supreme Court adopted in Taylor v. United States, 495 U.S. 575
(1990). The district court disagreed and sentenced Cummings to the mandatory
minimum sentence pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.
Subsequent to sentencing, Cummings filed this timely appeal raising his
objections to the sentence. 1
II.
The ACCA mandates a fifteen-year statutory minimum sentence for any
person that violates 18 U.S.C. § 922(g) and has three prior convictions for
“violent felonies.” See 18 U.S.C. § 924(e). 2 The ACCA’s definition of “violent
1
In addition to his argument that convictions pursuant to the Maine
burglary statute do not qualify as violent felonies, Cummings also contends that
his one car burglary conviction does not count as a violent felony. Because we
conclude that his three burglary convictions constitute the predicate offenses
necessary for a sentence imposed pursuant to § 924(e), we do not reach this issue.
2
18 U.S.C. § 924(e) provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense,
or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than
fifteen years . . .
(2)(B) the term “violent felony” means any crime punishable
(continued...)
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felony” includes, but does not define, burglary. The Supreme Court, however,
has interpreted § 924(e) to apply to all “generic” burglaries with the following
elements: “[1] an unlawful or unprivileged entry into, or remaining in, [2] a
building or other structure, [3] with intent to commit a crime.” Taylor, 495 U.S.
at 598.
A.
To determine whether a particular burglary conviction qualifies as a violent
felony, we apply a two-step analysis. First, we look only to “the fact of
conviction and the statutory definition of the prior offense” to determine if that
definition fits within the generic meaning of burglary. Id. at 602. Pursuant to the
terms of this “categorical approach,” id., we do not apply “legal imagination to a
state statute’s language.” Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822
(2007). Thus, to conclude that a statutory definition extends beyond the generic
definition of a crime “requires a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls outside the generic
definition of a crime.” Id. If we conclude that the statutory definition is
congruent with the generic definition, our inquiry ends. Taylor, 495 U.S. at 602.
If instead, we conclude that the statute covers conduct that is broader than the
2
(...continued)
by imprisonment for a term exceeding one year . . . that–
...
(ii) is burglary . . .
18 U.S.C. § 924(e).
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generic definition, we turn to the second step of our analysis and review the
charging documents, plea agreement, and plea colloquy or comparable judicial
documents to determine if the facts of the case limit the crime to fit within the
bounds of the generic definition. Shepard v. United States, 544 U.S. 13, 26
(2005).
The Maine statutory definition of burglary is remarkably similar to the
generic definition: “enter[ing] or surreptitiously remain[ing] in a structure
knowing that that person is not licensed or privileged to do so, with the intent to
commit a crime therein.” Me. Rev. Stat. Ann. tit. 17-A, § 401. Unlike the Taylor
definition—which leaves “structure” undefined—the Maine statute defines
structure as “a building or other place designed to provide protection for persons
or property against weather or intrusion, but does not include vehicles or other
conveyances whose primary purpose is transportation.” Id. § 2(24).
In spite of these similarities, Cummings contends that we should move
beyond the categorical approach and look to the charging documents because the
definition of “structure”—specifically the phrase “or other place designed to
provide protection”—pushes the Maine statutory definition beyond the bounds of
the generic definition. We find this argument unconvincing for three reasons.
First, the generic definition broadly construes the possible settings for burglary.
Taylor, 495 U.S. at 598. The Taylor Court did not restrict the definition to
include only buildings; instead, the definition addresses conduct in “a building or
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other structure.” Id. (emphasis added). In light of this explicit language, we
decline Cummings’s invitation to find the phrase “or other structure” superfluous.
The phrase dictates that the generic definition encompasses both buildings and
less complete structures. Therefore, we conclude that the Maine statute is
consistent with the generic definition.
Second, decisions from other federal courts—which have interpreted the
Maine statute in a similar fashion—bolster our conclusion. The United States
District Court for the District of Maine concluded that a conviction pursuant to
the Maine burglary statute “would constitute a ‘violent felony’ within the
meaning of the ACCA.” United States v. Bishop, 350 F. Supp. 2d 127, 131–32
(D. Me. 2004). Similarly, in its analysis of the Maine statute for purposes of the
sentencing guidelines, the First Circuit determined that “[a]ll of the elements of
generic burglary are included in the [Maine] statute.” United States v. Sawyer,
144 F.3d 191, 196 (1st Cir. 1998).
Finally, how the Maine courts have applied the burglary statute indicates
that there is not a “realistic probability” that the statute strays beyond the generic
definition. See Duenas-Alvarez, 127 S. Ct. at 822. We have found no case where
the Maine courts applied the burglary statute to a setting that would suggest that
the statute encompasses conduct that strays beyond the bounds of the generic
definition. Accordingly, there is no realistic probability that the Maine courts
construe the statute in the expansive manner underlying Cummings’s argument.
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In light of this and the above mentioned reasons, we hold that the Maine burglary
statute is coterminous with the Taylor generic definition of burglary.
B.
Although the categorical approach fully resolves the issue raised in this
appeal, we briefly note that the charging documents also corroborate our
conclusion. Each charging document explicitly states that Cummings “enter[ed] a
certain structure.” Thus, the plain language of each charging document
demonstrates that the burglary settings are consistent with the generic definition.
See United States v. King, 422 F.3d 1055, 1058 (10th Cir. 2005) (holding that the
district court properly sentenced the defendant under the ACCA because the
charging document used the word “structure” and therefore “establish[ed] that
[the defendant] was convicted for unlawfully entering a structure.”).
III.
To prevail on appeal, Cummings must demonstrate that his three Maine
burglary convictions are inconsistent with the generic definition the Court
adopted in Taylor. Pursuant to the categorical approach, it is clear that the Maine
statute is coterminous with the generic definition, and thus, the district court
properly sentenced Cummings under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.
Accordingly, we AFFIRM the sentence.
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