Case: 10-60147 Document: 00511369792 Page: 1 Date Filed: 02/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 2, 2011
No. 10-60147 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
KEITH DARRELL O’CONNOR,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellee Keith Darrell O’Connor pleaded guilty to the offense
of possessing a firearm as a convicted felon. The government urged that
O’Connor’s sentence be increased under the U.S. Sentencing Guidelines
(“Guidelines”) because he had been convicted previously of two crimes of
violence, including the Louisiana offense of unauthorized entry of an inhabited
dwelling. The district court determined that unauthorized entry was not a crime
of violence under the Guidelines and rejected the government’s request for an
increased sentence. The government appeals the sentence imposed. We vacate
and remand for resentencing.
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No. 10-60147
I. FACTS & PROCEEDINGS
A. Facts
O’Connor was charged under 18 U.S.C. § 922(g) and § 924(a)(2), which
make it a crime for a convicted felon to possess a firearm. He pleaded guilty and
was convicted. Initially, O’Connor’s presentence investigation report (PSR)
recommended assessing O’Connor a base offense level of 24 pursuant to the
Guidelines because O’Connor had been previously convicted in Louisiana of two
crimes of violence: (1) simple burglary of an inhabited dwelling and
(2) unauthorized entry of an inhabited dwelling. O’Connor objected to the
sentence recommendation, asserting that the unauthorized entry conviction did
not constitute a crime of violence. His PSR was revised to reduce the
recommended base offense level from 24 to 20 accordingly.
B. Proceedings
At the sentencing hearing, the government objected to the PSR’s reduction
of O’Connor’s base offense level. The government claimed that, pursuant to our
decision in United States v. Claiborne,1 O’Connor’s unauthorized entry conviction
should be considered a crime of violence.
The district court overruled the government’s objection. Relying on the
Supreme Court’s analysis in Begay v. United States,2 the district court concluded
that unauthorized entry of an inhabited dwelling did not present a potential risk
of physical injury to another person and was, therefore, not a crime of violence
under the Guidelines. The district court sentenced O’Connor according to the
lesser Guidelines range recommended in his revised PSR, after which the
government timely filed a notice of appeal.
1
132 F.3d 253 (5th Cir. 1998) (per curiam).
2
553 U.S. 137 (2008).
2
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II. ANALYSIS
A. Standard of Review
We review a district court’s interpretation and application of the
Guidelines de novo and that court’s findings of fact for clear error.3
B. Louisiana’s Offense of “Unauthorized Entry of an Inhabited
Dwelling” Is a Crime of Violence under the Guidelines
The Guidelines assign a base offense level of 24 to a defendant who has
previously been convicted of at least two felony offenses that are crimes of
violence.4 Guidelines § 4B1.2(a) defines a “crime of violence” as an offense
“punishable by imprisonment for a term exceeding one year” that either:
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.5
Louisiana defines the crime of “unauthorized entry of an inhabited dwelling” as
“the intentional entry by a person without authorization into any inhabited
dwelling or other structure belonging to another and used in whole or in part as
a home or place of abode by a person.” 6
It is undisputed that, even though the offense of unauthorized entry of an
inhabited dwelling is punishable by imprisonment for a term exceeding one year,
it does not qualify as a crime of violence under § 4B1.2(a)(1) because it does not
have as an element the use, attempted use, or threatened use of physical force
against the person of another. The government nevertheless asserts that
unauthorized entry does present “a serious potential risk of physical injury to
3
See United States v. Hawkins, 69 F.3d 11, 12 (5th Cir. 1995) (citation omitted).
4
U.S.S.G. § 2K2.1(a)(2).
5
Id. § 4B1.2(a).
6
LA . REV . STAT . § 14:62.3(A).
3
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another” per § 4B1.2(a)(2) and cites our holding in United States v. Claiborne for
support.
In Claiborne, we held that Louisiana’s offense of unauthorized entry
qualified as a crime of violence under § 4B1.2(a)(2).7 We likened the offense to
burglary despite the fact that unauthorized entry does not require “the intent to
commit a felony or any theft therein”8 as is required for the Louisiana offense of
simple burglary.9 Nevertheless, we concluded that “a home invader’s
nonfelonious mindset [does not] eliminate[] the risk of physical injury to his
victims,” based on the reasoning that “[a] homeowner’s surprise confrontation
with an intruder is laced with the potential for violence, regardless of whether
the intruder is a burglar or merely an unauthorized entrant.” 10
O’Connor challenges our Claiborne holding, however, asserting that our
conclusion is undermined by the Supreme Court’s subsequent analysis in Begay
v. United States, as relied on by the district court. In Begay, the Supreme Court
did not address the crime of unauthorized entry but did provide guidance for
interpreting the Guidelines’ provision defining crimes of violence. The Court
explained that the Guidelines’ inclusion of offenses that present a serious
potential risk of physical injury in § 4B1.2(a)(2) is not “all-encompassing”
because “if Congress meant [§ 4B1.2(a)(2)] to include all risky crimes, why would
it have included [§ 4B1.2(a)(1)]?”11 The Court specifically instructed that “we
should read the examples [of burglary, arson, extortion, and use of explosives]
7
132 F.3d at 255-56.
8
LA . REV . STAT . § 14:62.1(A)
9
See Claiborne, 132 F.3d at 256.
10
Id.
11
Begay, 553 U.S. at 142.
4
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as limiting the crimes that [§ 4B1.2(a)(2)] covers to crimes that are roughly
similar, in kind as well as in degree of risk posed, to the examples themselves.” 12
Applying this understanding of the relevant Guidelines provision, the
Court concluded that the defendant’s crime of driving under the influence of
alcohol was not a violent crime:
[C]rimes involving intentional or purposeful conduct (as in burglary
and arson) are different than DUI, a strict liability crime. In both
instances, the offender’s prior crimes reveal a degree of callousness
toward risk, but in the former instance they also show an increased
likelihood that the offender is the kind of person who might
deliberately point the gun and pull the trigger.13
This assessment of the Guidelines, if anything, only bolsters our
conclusion in Claiborne. The Louisiana crime of unauthorized entry is expressly
defined as the “intentional entry by a person without authorization.” 14 Even
though a defendant convicted of unauthorized entry need not possess an intent
to commit a felony once he enters the residence, he still must act intentionally
and purposefully to enter it, and his actions still are “roughly similar, in kind as
well as in degree of risk posed,” to burglary.
O’Connor also relies on Chambers v. United States,15 in which the
Supreme Court addressed whether the crime of “failure to report to a penal
institution” constituted a crime of violence under the Guidelines. The Court held
that it did not because “[c]onceptually speaking, the crime [of failure to report]
amounts to a form of inaction . . . . While an offender who fails to report must of
course be doing something at the relevant time, there is no reason to believe that
12
Id. at 143.
13
Id. at 146.
14
LA . REV . STAT . § 14:62.3(A) (emphasis added).
15
129 S. Ct. 687 (2009)
5
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the something poses a serious potential risk of physical injury.”16 Here, the crime
of unauthorized entry is undoubtedly an “active” crime, so the Chambers holding
does not undermine our conclusion. The Chambers Court reiterated that “[t]he
question is whether such an offender is significantly more likely than others to
attack, or physically to resist, an apprehender, thereby producing a ‘serious
potential risk of physical injury.’”17 Again, because unauthorized entry requires
the intentional act of entering the home of another—where “[a] homeowner’s
surprise confrontation with an intruder is laced with the potential for
violence”18 —unauthorized entry comes within this category of violent crimes.
Finally, O’Connor points to our decision in United States v.
Armendariz-Moreno,19 in which we held that the Texas crime of “unauthorized
use of a vehicle” was not a violent crime under the Guidelines. Specifically, we
explained:
[The Supreme Court opinions in Begay and Chambers] hold that the
generic crime of violence or aggravated felony must itself involve
purposeful, violent and aggressive conduct. The risk of physical
force may exist where the defendant commits the offense of
unauthorized use of a vehicle, but the crime itself has no essential
element of violent and aggressive conduct.20
Even though unauthorized use of a vehicle must be intentional,21 like the crime
of unauthorized entry, it does not by its nature involve the same threat of
16
Id. at 692 (emphases in original and citations omitted).
17
Id.
18
Claiborne, 132 F.3d at 256.
19
571 F.3d 490 (5th Cir. 2009) (per curiam).
20
Id. at 491.
21
Texas law defines the crime of “unauthorized use of a vehicle” as a person
“intentionally or knowingly operat[ing] another’s boat, airplane, or motor-propelled vehicle
without the effective consent of the owner.” TEX . PENAL CODE ANN . § 31.07(a).
6
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violence. Simply put, entering an inhabited dwelling that is used at least in part
as a home by another person presents a much more serious risk of a violent
conflict than does the use of another person’s vehicle without permission. In that
way, unauthorized entry is akin to burglary—a listed § 4B1.2(a)(2)
crime—whereas unauthorized use of a vehicle is not. Consequently, both
Claiborne and Armendariz-Moreno are consistent with the Supreme Court’s
analysis in Begay and Chambers.
We hold that Claiborne remains good law and that the district court erred
in its application of the Guidelines by not treating O’Connor’s Louisiana
conviction of unauthorized entry as a crime of violence.
III. CONCLUSION
For the foregoing reasons, we vacate O’Connor’s sentence and remand to
the district court for resentencing.
VACATED and REMANDED.
7