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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2003 Decided December 12, 2003
No. 03–3009
UNITED STATES OF AMERICA,
APPELLEE
v.
NORMAN WILLIAMS,
APPELLANT
–————
Appeal from the United States District Court
for the District of Columbia
(02cr00113–01)
–————
Nicholas H. Cobbs, appointed by the court, argued the
cause and filed the briefs for appellant.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Roy W.
McLeese, III, and Alyse Graham, Assistant U.S. Attorneys.
Before: SENTELLE, RANDOLPH, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Pursuant to an agreement with
the government, Norman Williams pled guilty to the charge
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
of unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). The dis-
trict court identified U.S.S.G. § 2K2.1(a)(2) as the relevant
Guideline for determining Williams’ base offense level. The
court placed this at 24 because Williams had two prior felony
convictions in the District of Columbia for — in the words of
§ 2K2.1(a)(2) — a ‘‘crime of violence.’’ One of the convictions
was for burglary, the other for attempted burglary. The
issue presented on appeal is whether Williams’ sentence of 86
months’ imprisonment should be set aside on the ground that
attempted burglary is not a ‘‘crime of violence’’ within the
meaning of § 2K2.1(a)(2) — or more accurately, whether the
district court committed plain error in finding that it was.
Williams claims that plain error is the wrong standard in
light of the presentence report. He believes the report
reflects a sufficient objection to using the attempted burglary
conviction to increase his base offense level. The presentence
report is under seal, as are the portions of the briefs discuss-
ing its contents. We therefore cannot give details about what
the presentence report contains. It is enough to point out
that under Rule 51(b) of the Federal Rules of Criminal
Procedure, ‘‘a party may preserve a claim of error by inform-
ing the court — when the court ruling or order is made or
sought — of the action the party wishes the court to take, or
the party’s objection to the court’s action and the grounds for
that objection.’’ The relevant time for objection is thus at the
time of the court’s sentencing decision, not at the presentence
stage when the probation office is conducting its investigation
and preparing the report. At sentencing, Williams’ counsel
stated that he had no corrections to offer regarding the facts
recited in the report (other than a typographical error), and
neither he nor the prosecutor voiced any objection to the
court’s setting of the base offense level (other than on a
matter not relevant here). Plain error is therefore the cor-
rect standard of review. See FED. R. CRIM. P. 52(b); United
States v. Washington, 115 F.3d 1008, 1010 (D.C. Cir. 1997).
According to Application Note 5 to § 2K2.1 of the Guide-
lines, ‘‘crime of violence’’ is defined by U.S.S.G. § 4B1.2(a)
3
and its Application Note 1. Section 4B1.2 specifies that a
crime punishable by more than one year’s imprisonment
qualifies as a ‘‘crime of violence’’ if one of two conditions is
met. The crime must have (1) ‘‘as an element the use,
attempted use, or threatened use of physical force against the
person of another,’’ or (2) the crime 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.’’ U.S.S.G. § 4B1.2(a)(1) & (2).
Application Note 1 states that ‘‘crimes of violence’’ include
‘‘the offenses of aiding and abetting, conspiring, and attempt-
ing to commit such offenses.’’
On the face of it, attempted burglary thus falls within the
definition of ‘‘crime of violence’’: burglary is such a crime
and, Application Note 1 tells us, attempts to commit a crime
of violence are also such crimes. Such commentary is ‘‘au-
thoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of,’’ the guideline it interprets. Stinson v. United States, 508
U.S. 36, 38 (1993).
All of this is fairly straightforward. Williams’ counterargu-
ment is more involved: § 4B1.2(a)(1) specifically includes
crimes having as an element the ‘‘attempted use’’ of physical
force; § 4B1.2(a)(2) identifies certain offenses as ‘‘crimes of
violence’’ but does not mention attempts to commit those
crimes; therefore, the drafters did not intend to include
attempts to commit the listed crimes as ‘‘crimes of violence’’;
it follows that Application Note 1 is inconsistent with
§ 4B1.2(a). Williams adds that some courts of appeals, inter-
preting ‘‘crimes of violence’’ as used in the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) — which has lan-
guage identical to § 4B1.2(a) — have ruled that attempted
burglary is not such a crime. United States v. Weekley, 24
F.3d 1125, 1127 (9th Cir. 1994); United States v. Martinez,
954 F.2d 1050, 1053–54 (5th Cir. 1992); United States v.
Strahl, 958 F.2d 980, 986 (10th Cir. 1992). Other courts of
appeals interpreting this statute have decided that attempted
burglary is covered. United States v. Bureau, 52 F.3d 584,
591 (6th Cir. 1995); United States v. Andrello, 9 F.3d 247,
4
249–50 (2d Cir. 1993) (per curiam); United States v. O’Brien,
972 F.2d 47, 51 (3d Cir. 1992).
Whatever one might say about the merits of Williams’
argument, it certainly does not leap from the text of the
Guideline and the commentary. We could hardly expect the
district court to come up with it sua sponte. Still less could
we expect the court to hold that the commentary conflicted
with the Guideline when a moment’s research would have
shown that four other courts of appeals have upheld Applica-
tion Note 1’s reading of § 4B1.2 that attempted burglary is a
‘‘crime of violence.’’ See United States v. Claiborne, 132 F.3d
253, 256 (5th Cir. 1998); United States v. Sandles, 80 F.3d
1145, 1150 (7th Cir. 1996); United States v. Carpenter, 11
F.3d 788, 791 (8th Cir. 1993); United States v. Jackson, 986
F.2d 312, 313 (9th Cir. 1993). If what occurred here was an
error, a subject on which we express no view, it was far from
an obvious one, and thus was not ‘‘plain’’ under FED. R. CRIM.
P. 52(b). See United States v. Olano, 507 U.S. 725, 734
(1993).
Affirmed.