United States v. Giggey

United States Court of Appeals
For the First Circuit

No. 07-2317

UNITED STATES OF AMERICA,

Appellee,

v.

TIMOTHY GIGGEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella, Boudin, Lipez, and Howard, Circuit Judges.

James S. Hewes for appellant.
Judith H. Mizner, Assistant Federal Public Defender, for the
Federal Public Defender for the Districts of Massachusetts, New
Hampshire and Rhode Island, amicus curiae.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

OPINION EN BANC

December 22, 2008
 LYNCH, Chief Judge. The court took this case en banc to

consider again whether a conviction for a non-residential burglary

is per se a "crime of violence" under the Career Offender

Sentencing Guideline, U.S.S.G. § 4B1.2. A career offender finding

may lead to a longer sentence for a federal defendant. This court

has for some time held that a prior conviction for a burglary which

is not of a dwelling is per se a "crime of violence" under the

Guidelines. United States v. Sawyer, 144 F.3d 191, 195-96 (1st

Cir. 1998); United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir.

1992). We now reverse course and hold that a prior conviction for

burglary not of a dwelling is not per se a "crime of violence." We

hold that whether a prior conviction for non-residential burglary

is a "crime of violence" turns on the application of a categorical

approach under § 4B1.2(a)(2)'s residual clause. We did not grant

en banc review or receive briefing on any other issue.

We decided to reconsider whether non-residential burglary

is per se a "crime of violence" under the Guideline for several

reasons. One is that the question still affects the length of the

sentence received. The Guidelines, while now advisory and not

mandatory, remain the starting point for a district court's

sentencing decision. Gall v. United States, 128 S. Ct. 586, 596

(2007) ("[A] district court should begin all sentencing proceedings

by correctly calculating the applicable Guidelines range.").

Although the sentencing judge now has considerable leeway to vary

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from the Guidelines range, see Kimbrough v. United States, 128 S.

Ct. 558, 570 (2007), the sentencing judge must still consider the

extent of deviation between the Guidelines range and the sentence

given and ensure the justification is sufficiently compelling to

support the degree of variance, Gall, 128 S. Ct. at 597; see also

United States v. Thurston, 544 F.3d 22, 25 (1st Cir. 2008); United

States v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008) (noting that

sentencing judges may depart from the Guidelines range on the basis

of a policy disagreement with the Guidelines). As a result, the

Guidelines range may substantially influence a particular

defendant's sentence, especially when the large increases imposed

on career offenders are involved. In this case, the Guidelines

range for defendant Timothy Giggey increased to 151 to 188 months

under § 4B1.2, instead of 63 to 78 months had he not been found a

career offender. The sentencing judge made clear that if he were

not bound by our prior law interpreting § 4B1.2, he would have

given a lower sentence. United States v. Giggey, 501 F. Supp. 2d

237, 245 (D. Me. 2007).

Further, our earlier per se approach has been criticized

as sweeping within its reach defendants who are not violent career

offenders, and so do not pose such risks to the public as to

warrant prolonged imprisonment. The human and fiscal costs of such

unnecessary imprisonment are considerable. Accordingly, two

conscientious district judges in this circuit have asked this court

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to reconsider en banc and alter our interpretation of § 4B1.2 as to

whether a defendant's conviction for burglary of a non-dwelling

structure is always a "crime of violence." See Boardman, 528 F.3d

at 87 (discussing the district judge's comments at sentencing);

Giggey, 501 F. Supp. 2d at 239.

Another reason we reexamine the issue is that there is no

sign that the Sentencing Commission will resolve the ambiguity

about its intentions in the Career Offender Guideline; an ambiguity

has now existed for nearly twenty years regarding whether non-

residential burglary is a career offender predicate. In the

absence of such guidance, the circuits have struggled with the

question and taken at least three different positions on it. The

per se approach which we earlier adopted is distinctly a minority

position.1

Also, very recent Supreme Court opinions interpreting

identical language in the residual clause of the Armed Career

1
Of the circuits that have considered the issue, the
Second and Eighth have also held that non-residential burglary is
per se a "crime of violence" under § 4B1.2. See United States v.
Brown, 514 F.3d 256, 268-69 (2d Cir. 2008); United States v.
Hascall, 76 F.3d 902, 905-06 (8th Cir. 1996).
Three circuits have held that non-residential burglary is
per se not a "crime of violence" under § 4B1.2. See United States
v. Harrison, 58 F.3d 115, 119 (4th Cir. 1995); United States v.
Spell, 44 F.3d 936, 938-39 (11th Cir. 1995) (per curiam); United
States v. Smith, 10 F.3d 724, 732-33 (10th Cir. 1993) (per curiam).
Four others have rejected both per se rules. See United
States v. Matthews, 374 F.3d 872, 880 (9th Cir. 2004); United
States v. Hoults, 240 F.3d 647, 652 (7th Cir. 2001); United States
v. Wilson, 168 F.3d 916, 926-29 (6th Cir. 1999); United States v.
Jackson, 22 F.3d 583, 585 (5th Cir. 1994).

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Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), give us reason

to reconsider our approach. See United States v. Begay, 128 S. Ct.

1581 (2008); James v. United States, 127 S. Ct. 1586 (2007).

Finally, other relevant areas of the law have changed

since we adopted our earlier rule in Fiore and Sawyer. Fiore was

decided in 1992. It relied on the Supreme Court's decision in

Taylor v. United States, 495 U.S. 575 (1990), although recognizing

that Taylor construed the ACCA. The Fiore court could not have

anticipated the Commission's post-1992 actions on the question of

non-residential burglaries, which affect our construction of the

Guideline in 2008.

In addition, this court's decision in Sawyer, considering

a prior conviction under Maine's burglary statute, interpreted

Fiore as holding that all burglaries of non-dwelling buildings

which otherwise include the elements of a generic burglary under

Taylor are crimes of violence under the Career Offender Guideline.

144 F.3d at 195. Sawyer did not address the later and significant

history of the Commission's deliberations on the Guideline. Sawyer

also held that the per se approach it considered Fiore to have

adopted precluded any consideration of whether the differences

between the Maine statute and the Rhode Island statute in Fiore

would produce different results utilizing a categorical approach.

Sawyer did not have the benefit of the Supreme Court's 2005

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explanation of the categorical approach in Shepard v. United

States, 544 U.S. 13 (2005).

I.

A. Giggey's Federal Crime

On December 19, 2006, Giggey, then age twenty-seven, his

slightly younger brother, and a juvenile male decided to burglarize

a building on Lisbon Street in Lewiston, Maine. They chose the

building thinking that it contained valuables because it appeared

to have a security alarm on its outer door. To create a diversion,

the three set a series of small fires in a nearby vacant building.

That building was planned for restoration into new residential,

commercial, and office space. The three went outside to see if the

fires were visible from the street and returned after twenty

minutes to set additional fires. The three left the burning

building when an alarm sounded and then fled to their homes,

fearing that they had been seen.

No one was injured by the fires. But the flames spread

to neighboring buildings and ultimately destroyed four buildings

owned by Greely Capital, LLC, as to which Greely Capital had

received a $50,000 federal rehabilitation grant from the Department

of Housing and Urban Development, which was administered by the

City of Lewiston. The destruction of a federally funded

rehabilitation project brought into play a federal criminal

statute, 18 U.S.C. § 844(f)(1), which provides: "Whoever

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maliciously damages or destroys . . . by means of fire . . . any

building . . . in whole or in part owned or possessed by . . . any

institution or organization receiving Federal financial assistance,

shall be imprisoned for not less than 5 years and not more than 20

years, fined under this title, or both."

On December 22, 2006, Giggey was arrested and held on a

state arson charge relating to the fires. On April 9, 2007, the

U.S. Attorney's Office filed a one-count information against

Giggey, charging him under 18 U.S.C. § 844(f). That same day,

Giggey waived indictment and pled guilty to violating 18 U.S.C.

§ 844(f). Giggey's state arson charge was dismissed upon entry of

his guilty plea to the federal crime. Only Giggey's sentence, not

his guilt, is therefore at issue.

B. Giggey's Prior State Court Convictions

At the time of his sentencing, Giggey had several prior

adult convictions for violations of Maine's criminal laws. Two are

important to this appeal. The first is a burglary conviction from

2000. The relevant count in Giggey's indictment for that crime

charged:

That on or about and between March 23, 2000,
and March 25, 2000 in Raymond, Cumberland
County, Maine, TIMOTHY ALBERT GIGGEY did enter
or surreptitiously remain in a structure
namely a garage owned by David Millay located
at 100 Wild Acres Road, knowing he was not
licensed or privileged to do so, with the
intent to commit the crime of theft inside.

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On December 7, 2000, Giggey pled guilty to the burglary charged in

that count, a Class C crime punishable by up to five years'

imprisonment under Maine law. See Me. Rev. Stat. Ann. tit. 17-A,

§§ 401, 1252(2)(C). For his 2000 burglary conviction, Giggey

received a two year sentence with all but ninety days suspended.

Giggey's second relevant state offense is a burglary

conviction from 2004. On June 22, 2004, Giggey waived indictment

and pled guilty to "burglary, Class C, alleged to have occurred on

February 21st of this year at the Pit Stop Redemption." He

received a thirty month sentence with all but four months suspended

for that burglary.

Both the 2000 and 2004 offenses were charged under

Maine's burglary statute, which provided:

1. A person is guilty of burglary if he
enters or surreptitiously remains in a
structure, knowing that he is not licensed or
privileged to do so, with the intent to commit
a crime therein.
2. Burglary is classified as:
A. A Class A crime if the defendant was
armed with a firearm, or knew that an
accomplice was so armed; and
B. A Class B crime if:
(1) The defendant intentionally or
recklessly inflicted or attempted to inflict
bodily injury on anyone during the commission
of the burglary or an attempt to commit the
burglary or in immediate flight after the
commission or attempt;
(2) The defendant was armed with a
dangerous weapon other than a firearm or knew
that an accomplice was so armed;
(3) The violation was against a
structure that is a dwelling place; . . . .
. . . .

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 C. All other burglary is a Class C
crime.

Me. Rev. Stat. Ann. tit. 17-A, § 401 (2000).2

Under Maine law, a crime's classification determines its

maximum possible punishment. A Class A crime is punishable by up

to thirty years in prison; a Class B crime, ten years; and a Class

C crime, five years. Id. § 1252(2).

Maine's criminal code also defines the term "structure"

to mean "a building or other place designed to provide protection

for persons or property against weather or intrusion, but does not

include vehicles and other conveyances whose primary purpose is

transportation of persons or property unless such vehicle or

conveyance, or a section thereof, is also a dwelling place." Id.

§ 2(24).

The text of the general burglary provision, id. § 401(1),

under which Giggey was convicted in 2000 and 2004 itself contained

no element involving "the use, attempted use, or threatened use of

physical force against the person of another." U.S.S.G.

§ 4B1.2(a)(1).

2
Maine's burglary statute changed slightly between
Giggey's 2000 and 2004 convictions. Those differences are not
important for our purposes.

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C. Giggey's Federal Sentencing

At his sentencing for the federal arson crime, the

central issue was whether Giggey qualified as a career offender

under the Guidelines. To be a career offender: (1) the defendant

must be "at least eighteen years old at the time the defendant

committed the instant offense of conviction"; (2) the defendant's

instant offense must be "a felony that is either a crime of

violence or a controlled substance offense"; and (3) the defendant

must have "at least two prior felony convictions of either a crime

of violence or a controlled substance offense." U.S.S.G.

§ 4B1.1(a).

Only the third requirement was at issue. Giggey was

twenty-seven years old at the time he committed his arson offense,

satisfying the age requirement in § 4B1.1. Additionally, Giggey's

federal offense is a "crime of violence" under the Guideline

because arson is one of the enumerated crimes in § 4B1.2(a)(2).

Thus, at sentencing, the key issue became whether Giggey's two

predicate state burglary convictions were for crimes of violence

under § 4B1.2.

Applying this circuit's per se rule, the district court

treated Giggey's two burglary offenses as career offender

predicates. Giggey, 501 F. Supp. 2d at 245. Giggey's career

offender status set his Guidelines range at 151 to 188 months,

instead of the 63 to 78 month range he would have received if he

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were not a career offender. Ultimately, the district court chose

to vary from the Guidelines range after considering the 18 U.S.C.

§ 3553(a) factors and sentenced Giggey to ninety-five months'

imprisonment.

D. Giggey's Appeal

Giggey timely appealed his sentence to this court. On

June 10, 2008, we chose to hear this case en banc to address two

issues:

(1) to reconsider whether to adhere to the
court's holding in United States v. Fiore, 983
F.2d 1 (1st Cir. 1992), that a conviction
under state law for burglary of a commercial
structure is to be treated automatically as a
crime of violence under the career offender
guideline, U.S.S.G. [§] 4B1[.2](a)(2); and,(2)
if the court does abandon the per se rule
adopted in Fiore, to consider what approach
should be taken in determining whether, in a
particular case, burglary of a commercial
structure falls within the residual clause
embracing "conduct that presents a serious
potential risk of physical injury to another."

We invited supplemental briefing on these issues from the parties

and amici. The Federal Public Defender for the Districts of

Massachusetts, New Hampshire and Rhode Island filed a brief as

amicus curiae.

II.

A. Is Non-Dwelling Burglary Per Se a "Crime of Violence"
Under the Career Offender Guideline?

The question before us is one of the intentions of the

Commission expressed in the Guidelines. Congress authorized the

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Commission to enact the Career Offender Guideline in 28 U.S.C.

§ 994(h), but it left the choice of the language for the Guideline

to the Commission.

The language of the Guideline effective at the time of

Giggey's sentencing was:

The term "crime of violence" means any
offense under federal or state law, punishable
by imprisonment for a term exceeding one year,
that --
(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 the 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) (2004).

From the text of § 4B1.2, there are three ways that an

offense can constitute a "crime of violence." First, the crime can

be one that "has as an element the use, attempted use, or

threatened use of physical force against the person of another."

Second, it can be one of the four enumerated offenses in

§ 4B1.2(a)(2). Third, the offense can be, under the residual

clause, one that "otherwise involves conduct that presents a

serious potential risk of physical injury to another."

In determining the Commission's intent in adopting the

Career Offender Guideline, we could apply either of two time-

honored interpretative methods. The first is to look to the text

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of § 4B1.2 itself and, if needed, to the history of the

Commission's actions. See, e.g., Wilson, 168 F.3d at 926-29.

An alternative method is to draw an analogy to how the

courts and Congress have treated identical or nearly identical

language in other recidivist sentencing statutes. See, e.g.,

United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994); United

States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). The Supreme

Court in James noted the analogy between the Career Offender

Guideline and the ACCA. 127 S. Ct. at 1596. Because non-

residential burglary under the Maine statute does not have "the

use, attempted use, or threatened use of physical force against the

person of another" as an element of the offense, the first clause

of § 4B1.2(a) is not involved in our analysis. The question

concerns the Commission's intent as to last two clauses, the

enumerated crimes and the "otherwise" clause.

1. The Text and History of § 4B1.2(a)

We start by considering the text of § 4B1.2(a)'s second

clause, which lists the enumerated offenses. Had the Commission

intended all non-residential burglaries to be per se crimes of

violence, it could have easily said so in the enumerated offenses,

or referred to the definition contained in the ACCA, see 18 U.S.C.

§ 924(e)(2)(B) ("[T]he term 'violent felony' means any crime . . .

that . . . is burglary . . . ."), or used the term "generic

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burglary" and referred to Taylor. But the Commission chose not to

take any of these approaches.

Given these choices, the Commission's restriction in the

enumerated clause to only "burglary of a dwelling" was deliberate.

This deliberateness is also reflected in the application notes

accompanying the Guideline which, at the time of Giggey's

sentencing, explained:

"Crime of violence" includes murder,
manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit,
and burglary of a dwelling. Other offenses
are included as "crimes of violence" if (A)
that offense has as an element the use,
attempted use, or threatened use of physical
force against the person of another, or (B)
the conduct set forth (i.e., expressly
charged) in the count of which the defendant
was convicted involved use of explosives
(including any explosive material or
destructive device) or, by its nature,
presented a serious potential risk of physical
injury to another.

U.S.S.G. § 4B1.2 cmt. n.1 (2004). "[C]ommentary in the Guidelines

Manual that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline." Stinson v. United States, 508 U.S. 36, 38 (1993). The

Commission's failure to include any burglary other than "burglary

of a dwelling" in its extensive list of examples in the commentary

to § 4B1.2 suggests that the Commission did not intend non-

residential burglary always to be a "crime of violence."

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 The history of the Commission's action relating to

§ 4B1.2 also demonstrates its decision to treat non-dwelling

burglaries differently from burglaries of dwellings. As the

Guideline was originally adopted in 1987, the Commission defined

"crime of violence" merely by reference to 18 U.S.C. § 16. That

statute provided:

The term "crime of violence" means --
(a) an offense that has as an element
the use, attempted use, or threatened use of
physical force against the person or property
of another, or
(b) any other offense that is a felony
and that, by its nature, involves a
substantial risk that physical force against
the person or property of another may be used
in the course of committing the offense.

The original commentary accompanying § 4B1.2 explained:

The Commission interprets ["crime of
violence"] as follows: murder, manslaughter,
kidnapping, aggravated assault, extortionate
extension of credit, forcible sex offenses,
arson, or robbery are covered by this
provision. Other offenses are covered only if
the conduct for which the defendant was
specifically convicted meets the above
definition. For example, conviction for an
escape accomplished by force or threat of
injury would be covered; conviction for an
escape by stealth would not be covered.
Conviction for burglary of a dwelling would be
covered; conviction for burglary of other
structures would not be covered.

U.S.S.G. § 4B1.2 cmt. n.1 (1987) (emphasis added). In 1989, the

Commission amended the text of § 4B1.2 to eliminate its definition

by reference to 18 U.S.C. § 16, replacing it with language modeled

after the ACCA's definition of "violent felony" and enumerating

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"burglary of a dwelling" as a "crime of violence." In the 1989

amendments, the Commission also listed "burglary of a dwelling" as

a "crime of violence" in the commentary accompanying § 4B1.2 but

omitted generic burglary. The relevant text of § 4B1.2 defining

"crime of violence" and its related commentary have remained much

the same since the Commission's 1989 amendments.

In 1992, after Fiore was decided, the Commission

considered amending § 4B1.2 "to include all burglaries, and not

just burglaries of a dwelling." 57 Fed. Reg. 62,832, 62,856 (Dec.

31, 1992). The proposed amendment explained: "In including all

burglaries, this amendment conforms the definition of 'crime of

violence' for the purpose of the career offender guidelines to the

definition required by statute for the armed career criminal

guideline." Id. at 62,856-57. The Commission ultimately rejected

this amendment.

In 1993, the Commission considered amending the

commentary to § 4B1.2 to clarify that "[t]he term 'crime of

violence' includes burglary of a dwelling (including any adjacent

outbuilding considered part of the dwelling). It does not include

other kinds of burglary." 58 Fed. Reg. 67,522, 67,533 (Dec. 21,

1993). The proposed amendment explained:

This amendment clarifies the operation of
§ 4B1.2 (Definitions of Terms Used in Section
4B1.1) and addresses an inter-circuit
conflict. In United States v. Fiore, 983 F.2d
1 (1st Cir. 1992), the First Circuit read
§ 4B1.2 to include all types of burglary

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 despite the express listing of burglary of a
dwelling in § 4B1.2(1)(ii). In contrast, the
Fourth Circuit has held that burglary of a
commercial structure is not a "crime of
violence" under § 4B1.2. United States v.
Talbott, 902 F.2d 1129 (4th Cir. 1990).
Similarly, the Tenth Circuit has held that
non-residential burglary is not a crime of
violence under § 4B1.2. United States v.
Smith, [10 F.3d 724 (10th Cir. 1993)].

Id. The Commission ultimately rejected this amendment.

Although we are cautious about drawing conclusions from

the Commission's failure to act, these failures reinforce our sense

that the Commission chose not to equate all burglaries with crimes

of violence.

2. The Analogy to the ACCA as to the Enumerated
Crimes and Residual Clause

If that were the whole story, we could confidently say

that the Commission did not want non-residential burglary always to

be included within the definition of "crime of violence." But the

matter is complicated by the Commission's choice to model its

definition of "crime of violence" after the ACCA's definition of

"violent felony" in 18 U.S.C. § 924(e)(2)(B) and to use identical

language to the ACCA as to the "otherwise" clause.

A time-honored rule for divining intent is that similar

interpretation should be given to language in one source which is

borrowed from another legal source. See Greenwood Trust Co. v.

Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992); see also Oscar

Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979). Indeed, courts

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typically consult the judicial decisions interpreting the original

source to inform our understanding of the drafters' intent in using

that language in a new context. Greenwood Trust, 971 F.2d at 827.

Here, the Commission borrowed § 924(e)(2)(B)'s definition of

"violent felony" and used it with only minor changes in § 4B1.2.

Because the Career Offender definition of "'crime of violence'

closely tracks [the] ACCA's definition of 'violent felony,'" James,

127 S. Ct. at 1596, it is entirely understandable that this court

and others have turned to that statutory language and the Supreme

Court's interpretation of it in Taylor when interpreting

§ 4B1.2(a)(2)'s residual clause.

The Supreme Court's interpretation of the ACCA in Taylor

must, nonetheless, be put in context. Taylor did not involve a

question of the Commission's intent, but of congressional intent.

495 U.S. at 580. The Taylor issue arose because Congress listed

generic burglary as a "violent felony" under the ACCA, but did not

define "burglary" in the statute. The Supreme Court determined

that the term "burglary" as used in the ACCA was broad enough to

include both residential and non-residential offenses. Id. at 598

("[B]urglary for purposes of a § 924(e) enhancement . . .

[includes] any crime, regardless of its exact definition or label,

having the basic elements of unlawful or unprivileged entry into,

or remaining in, a building or structure, with intent to commit a

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crime."). Taylor did not go farther and mandate the Commission to

define burglary similarly for Guidelines purposes.

It is also a truism that similar language used in

different sources of law may be interpreted differently. United

States v. Granderson, 511 U.S. 39, 50-51 (1994); see also United

States v. Meade, 175 F.3d 215, 221 (1st Cir. 1999) ("[T]he case for

construing one statute in a manner similar to another is weakest

when the two have significant differences."). Here, the

Commission's listing of the more limited "burglary of a dwelling"

instead of using the ACCA's broader term "burglary" or even

Taylor's "generic burglary" affects the interpretation of the

Guideline's "otherwise" clause.

By contrast to the ACCA, the Career Offender Guideline's

enumerated burglary offense is narrower than the parallel provision

in the ACCA, and the Commission is obviously cognizant of this

difference. See U.S.S.G. § 4B1.4 cmt. n.1 (2007) ("It is to be

noted that the definitions of 'violent felony' and 'serious drug

offense' in 18 U.S.C. § 924(e)(2) are not identical to the

definitions of 'crime of violence' and 'controlled substance

offense' used in § 4B1.1 (Career Offender) . . . ."). Furthermore,

the language of § 4B1.2 may well reflect the Commission's view in

light of detailed data and empirical analysis. See James, 127 S.

Ct. at 1596; see also U.S.S.G. ch. 1, pt. A, introductory cmt. n.5

(1987) (stating that in developing the Guidelines, "[the

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Commission] has relied upon estimates of existing sentencing

practices as revealed by its own statistical analyses, based on

summary reports of some 40,000 convictions, a sample of 10,000

augmented presentence reports, the parole guidelines and policy

judgments"). That alone would provide a basis for the Commission

to reach different conclusion as to what it meant by "crime of

violence" than the Court did in answering the question of

congressional intent in Taylor. We think the Commission intended

the scope of § 4B1.2 not to be coextensive with generic burglary,

even as to the "otherwise" clause.3

3. Whether the Commission's Interpretation of
§ 4B1.2 Contravenes Congressional Intent

The government contended for the first time at oral

argument that it was the intent of Congress that non-residential

burglary always be treated as a "crime of violence" under the

Career Offender Guideline and thus Congress constrained any power

by the Commission to decide otherwise. "[E]xcept in extraordinary

circumstances, arguments not raised in a party's initial brief and

3
Our decision to change course affects only the procedure
by which a district court calculates a defendant's sentence. It
does not "prohibit criminal punishment for certain types of primary
conduct" or "forbid the imposition of certain categories of
punishment for a particular class of defendants" and so is not a
retroactive substantive change in the law. Sepulveda v. United
States, 330 F.3d 55, 59 (1st Cir. 2003) (discussing the rule from
Teague v. Lane, 489 U.S. 288 (1989)). It also is not a "watershed"
change in the law any more than United States v. Booker, 543 U.S.
220 (2005), which we held non-retroactive. Cirilo-Muñoz v. United
States, 404 F.3d 527, 532-33 (1st Cir. 2005).

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instead raised for the first time at oral argument are considered

waived." United States v. Pizarro-Berios, 448 F.3d 1, 5 (1st Cir.

2006). We bypass the government's waiver, however, in light of the

en banc nature of these proceeding and the need for clarity.

Even considering the argument, we note that the

government has offered nothing to show that Congress has taken a

position either way on this issue. As to the authorization for the

Career Offender Guideline, Congress in 28 U.S.C. § 994(h) simply

instructed the Commission to:

assure that the guidelines specify a sentence
to a term of imprisonment at or near the
maximum term authorized for categories of
defendants in which the defendant is eighteen
years old or older and . . . has been
convicted of a felony that is . . . a crime of
violence . . . and has previously been
convicted of two or more prior felonies, each
of which is . . . a crime of violence . . . .

Had Congress intended to direct the Commission that non-residential

burglary should be a "crime of violence" under the Career Offender

Guideline, it could have required the Commission to include all

burglary offenses explicitly under § 4B1.2. Until Congress

instructs otherwise, the Commission may -- and did -- take a

different approach as to what is a "crime of violence."

B. What Rule Applies in Place of Our Prior Per Se Approach?

Having abandoned our former per se approach, we now

address what rule applies in its place.

-21-
 1. Rejection of Per Se Rule That Non-Residential
Burglary May Never Be a "Crime of Violence"

Giggey suggests that we adopt an opposite per se rule

that non-residential burglary may never be a "crime of violence."

We reject such a rule.4 That is not the Commission's intent, as

4
We recognize that the opposite per se rule has been
adopted by three circuits. In Smith, the Tenth Circuit concluded
that the Commission intended never to include non-residential
burglary under § 4B1.2(a)(2)'s residual clause, relying in part
upon the Commission's failure in 1992 to adopt an amendment that
would have included generic burglary among the Guideline's
enumerated offenses. 10 F.3d at 733. Although the Commission's
treatment of the proposed 1992 amendment is strong evidence that
the Commission did not intend as a per se rule to include all
burglary under § 4B1.2, that is only half of the story. Smith did
not have the benefit of the Commission's rejection of the proposed
1993 amendment that would have explicitly excluded non-residential
burglary from § 4B1.2's definition of a "crime of violence." This
circuit adopted its own per se rule in Fiore before the 1992 and
1993 proposed amendments.
Likewise, in Spell, 44 F.3d at 938, the Eleventh Circuit
held that "[b]y explicitly including the burglary of a dwelling as
a crime of violence, the Guidelines intended to exclude from the
violent crime category those burglaries which do not involve
dwellings and occupied structures." Based upon the Career Offender
Guideline's amendment history and the Commission's choice to model
§ 4B1.2's definition of "crime of violence" after the ACCA's
definition of "violent felony," we think the Commission's
intentions are not so clear.
Finally, in Harrison, 58 F.3d at 119, the Fourth Circuit
determined that non-residential burglaries are per se excluded from
§ 4B1.2's definition of a "crime of violence." Yet, in our view,
the Commission's failure to adopt the proposed 1993 amendment that
would have explicitly excluded non-residential burglary still
leaves open the possibility that certain non-residential burglary
offenses could qualify as a "crime of violence" under the Career
Offender Guideline. An earlier case from the Fourth Circuit,
United States v. Talbott, 902 F.2d 1129, 1133 (4th Cir. 1990),
relied on the original 1987 version of the commentary accompanying
§ 4B1.2 to reach the same result. Although the original commentary
to § 4B1.2 may have supported Talbott's holding, see U.S.S.G.
§ 4B1.2 cmt. n.1 (1987) ("Conviction for burglary of a dwelling
would be covered; conviction for burglary of other structures would

-22-
evident from the language and history of the Guideline. Further,

such a rule would be inconsistent with the analysis of the question

under the Guideline's residual "otherwise" clause. And it would

offend common sense. Non-residential burglary may well present "a

serious potential risk of physical injury to another."

Notably absent from the Career Offender Guideline's text

and commentary is an express exclusion for non-residential

burglary. Had the Commission intended non-residential burglary

never to be counted as a "crime of violence" it could have easily

said so, e.g. § 4B1.2 cmt. n.1 ("'Crime of violence' does not

include the offense of unlawful possession of a firearm by a felon,

unless the possession was of a firearm described in 26 U.S.C.

§ 5845(a)."), but it did not.

Indeed, as we have said, the Commission considered in

1993 -- and ultimately rejected -- a proposal to amend the

commentary to § 4B1.2 that would have explicitly excluded non-

residential burglary from the Guideline's definition of a "crime of

violence." See 58 Fed. Reg. at 67,533 (proposing an additional

paragraph in the commentary following § 4B1.2 stating: "The term

'crime of violence' includes burglary of a dwelling (including any

adjacent outbuilding considered part of the dwelling). It does not

include other kinds of burglary.").

not be covered."), we cannot reach the same outcome today in view
of the Guideline's current commentary, which contains no express
exclusion for non-residential burglary.

-23-
 2. Adoption of Categorical Approach to Interpret
§ 4B1.2(a)(2)'s Residual Clause

In determining whether a prior offense is a "violent

felony" under the ACCA, the Supreme Court in a series of cases has

consistently adhered to a categorical approach. See Begay, 128 S.

Ct. at 1584; James, 127 S. Ct. at 1594; Shepard, 544 U.S. at 17;

Taylor, 495 U.S. at 602. The categorical approach requires that

federal courts "look only to the fact of conviction and the

statutory definition of the prior offense." James, 127 S. Ct. at

1594 (quoting Shepard, 544 U.S. at 17). Federal courts "do not

generally consider the 'particular facts disclosed by the record of

conviction.'" Id. (quoting Shepard, 544 U.S. at 17). "That is, we

consider whether the elements of the offense are of the type that

would justify its inclusion within the residual provision, without

inquiring into the specific conduct of this particular offender."

Id. (emphasis in original).

The Commission, in our view, intended that this

categorical approach be utilized in interpreting the Career

Offender Guideline, by using identical language to the ACCA in the

residual clause and through its commentary.5 This has been our

5
In particular, the Commission's advice that the
Guideline's residual clause includes an offense if "by its nature,
[it] present[s] a serious potential risk of physical injury to
another," U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added), directs the
sentencing judge to consider the nature of the offense of
conviction. Furthermore, the Commission instructed sentencing
judges to consider the conduct "expressly charged." Id. The
Commission added the "expressly charged" language to the commentary

-24-
consistent approach in post-Shepard cases where the predicate

crimes were not burglary offenses. See United States v. Williams,

529 F.3d 1, 4 (1st Cir. 2008).

The other circuits uniformly apply a categorical approach

when considering whether non-burglary crimes are included under

§ 4B1.2(a)(2)'s residual clause.6

accompanying § 4B1.2 in 1991 to "clarif[y] that the application of
§4B1.2 is determined by the offense of conviction (i.e., the
conduct charged in the count of which the defendant was
convicted)." U.S.S.G. app. C, amend. 433. Other circuits have
recognized that the 1991 amendment repudiated earlier cases
applying a fact-intensive, case-by-case approach to determine
whether a particular defendant's crime is a "crime of violence."
See United States v. Walker, 393 F.3d 819, 821 (8th Cir. 2005),
abrogated on other grounds by United States v. McCall, 439 F.3d 967
(8th Cir. 2006) (en banc); United States v. Arnold, 58 F.3d 1117,
1123 (6th Cir. 1995); United States v. Fitzhugh, 954 F.2d 253, 255
(5th Cir. 1992); United States v. Johnson, 953 F.2d 110, 113 (4th
Cir. 1991) ("[T]he revised commentary appears to disfavor a
wideranging inquiry into the specific circumstances surrounding a
conviction.").
6
See United States v. Alexander, 543 F.3d 819, 823 (6th
Cir. 2008); United States v. Savage, 542 F.3d 959, 964 (2d Cir.
2008); United States v. Archer, 531 F.3d 1347, 1350 (11th Cir.
2008); United States v. Curtis, 481 F.3d 836, 838 (D.C. Cir. 2007);
United States v. Siegel, 477 F.3d 87, 90 (3d Cir. 2007); United
States v. Garcia, 470 F.3d 1143, 1148 (5th Cir. 2006); United
States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006); United
States v. Kendrick, 423 F.3d 803, 809 (8th Cir. 2005); United
States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002); United States v.
Pierce, 278 F.3d 282, 286 (4th Cir. 2002); United States v. Zamora,
222 F.3d 756, 764 (10th Cir. 2000).

-25-
 Those circuits which have rejected either per se rule

regarding non-residential burglary convictions also apply a

categorical approach to burglary crimes.7

Under the categorical approach, it is a question of

federal law whether the state statute of conviction meets the

definition in the sentencing provision's residual clause --

"otherwise involves conduct that presents a serious potential risk

of physical injury to another." United States v. Peterson, 233 F.3d

101, 107 (1st Cir. 2000). That federal law conclusion does not turn

on what the individual defendant actually did, but on comparing the

elements of the state crime against the residual "otherwise" clause

and drawing some conclusions. Because the underlying state crimes

may vary, the use of the categorical approach to non-dwelling

burglaries may produce different results in different states. For

example, applying the categorical approach, the Seventh and Ninth

Circuits have found certain prior state law burglary convictions not

to be crimes of violence under the Guideline's residual clause,

depending upon the statutory elements of the offense charged. See

Hoults, 240 F.3d at 652; Matthews, 374 F.3d at 880.

The government argues that there is a loss to national

uniformity in the application of the Career Offender Guideline if

we abandon our per se approach. That is true to a certain extent,

7
See Matthews, 374 F.3d at 877; United States v. Turner,
305 F.3d 349, 351 & n.3 (5th Cir. 2002); Hoults, 240 F.3d at 650;
Wilson, 168 F.3d at 928-29.

-26-
but not persuasive. That loss results, however, from the choice the

Commission made. The government made very similar arguments in

Shepard, which were rejected. 544 U.S. at 21-23. It is not

uncommon for federal sentencing to be affected by the states'

various articulations of their own criminal statutes. E.g.,

U.S.S.G. § 4A1.1 (making the calculation of criminal history

category dependent upon prior state sentencing decisions). Indeed,

"[t]o the extent that enhancement provisions are 'intended to

supplement the States' law enforcement efforts against career

criminals,' it is more fundamentally fair to act in ways 'consistent

with the prerogatives of the States in defining their own

offenses.'" United States v. Damon, 127 F.3d 139, 146 (1st Cir.

1997) (citation omitted) (quoting Taylor, 495 U.S. at 581, 582)

(internal quotation marks omitted).

The Supreme Court has provided some rules as to how the

categorical approach is to be applied. There is a procedural

aspect, which limits the sources of information to which a federal

sentencing court may look. In all cases, the sentencing court looks

at the statutory definition of the prior offense. There is a

restricted list of other documents8 to which a court may look in "a

8
For convictions resulting from a jury verdict, these
additional sources include the charging instruments and jury
instructions. Taylor, 495 U.S. at 602. For guilty pleas, the
federal sentencing court may review the "charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented." Shepard, 544 U.S. at 16.

-27-
narrow range of cases." Shepard, 544 U.S. at 17 (quoting Taylor,

495 U.S. at 602). As Taylor held: "This categorical approach,

however, may permit the sentencing court to go beyond the mere fact

of conviction in a narrow range of cases where a jury was actually

required to find all the elements of generic burglary." 495 U.S.

at 602. This includes both states with burglary statutes that

provide "a broader definition of burglary," Shepard, 544 U.S. at 17,

and states with statutes not labeled as burglary statutes, Taylor,

495 U.S. at 599. Taylor gave as an example "a State whose burglary

statutes include entry of an automobile as well as a building," id.

at 602, and permitted the court to look to "the indictment or

information and jury instructions," id., to see if "the defendant

was charged only with a burglary of a building, and that the jury

necessarily had to find an entry of a building to convict," id.; see

also Shepard, 544 U.S. at 17; Damon, 127 F.3d at 142.

Both Taylor and Shepard rejected a fact-specific

approach, saying "the practical difficulties and potential

unfairness of a factual approach are daunting." Shepard, 544 U.S.

at 20 (quoting Taylor, 495 U.S. at 601). The approach adopted

avoids "subsequent evidentiary enquiries into the factual basis for

the earlier conviction." Id. Shepard articulated a strong interest

in avoiding collateral trials and confining the inquiry to certain

judicial records. Id. at 23.

-28-
 Under the categorical approach, a federal sentencing

court may not create a series of federal subcategorizations to fit

the facts of a particular case. We reject the argument made by the

Federal Defender Office that the federal court should go beyond the

state definition of the offense of conviction to create

subcategories based on facts, such as whether the burglary was

during business versus non-business hours. If the state statute

does not contain such a distinction, the federal court may not

create one for Career Offender Guideline purposes.

Recent interpretative guidance on the categorical

approach comes from James and Begay. James holds that attempted

burglary poses the same risks of physical injury to another as the

completed crime. 127 S. Ct. at 1595. To define the elements of a

particular offense, James also reinforces that a court must consider

the statutory language on its face of the prior crime of conviction

and the authoritative interpretations of it from the state's courts

at the outset of its analysis under the categorical approach. Id.

at 1594.

Under James, the sentencing court looks to whether that

risk is comparable to its closest analog among the enumerated

offense in the Guideline, 127 S. Ct. at 1594 -- here, "burglary of

dwelling." James spoke of this analysis as being probabilistic and

stressed that not "every conceivable factual offense covered by a

statute must necessarily present a serious potential risk of injury

-29-
before the offense can be deemed a violent felony." Id. at 1597

(citing Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)).

"Rather, the proper inquiry is whether the conduct encompassed by

the elements of the offense, in the ordinary case, presents a

serious potential risk of injury to another." Id. James was thus

concerned with the degree of risk posed by the state crime

considered in the abstract.

In Begay, the court added a refinement: the predicate

offense must be at least "roughly similar, in kind as well as in

degree of risk," to the enumerated crimes to conclude that it is

within the intended reach of the residual clause. 128 S. Ct. at

1585. Begay assumed that the state offense of driving under the

influence ("DUI") did "present[] a serious potential risk of

physical injury to another" within the meaning of the ACCA, but the

Court held that DUI is not similar in kind to the enumerated crimes

and so does not fall within the ACCA's residual clause. Id. at

1588.

Neither the comparative degree of risk analysis nor the

similarity in kind inquiry within the categorical approach will

always lead to clear answers. It is quite possible that using the

categorical analysis will turn on fine distinctions. See, e.g.,

Peterson, 233 F.3d at 108 (finding that Rhode Island's breaking and

entering statute was not a "violent felony" under the ACCA because,

unlike burglary as defined in Taylor, the breaking and entering

-30-
crime had no requirement that the defendant intended to commit a

crime inside the structure).

The categorical approach, as we have noted before, will

produce results which may seem to the public to be anomalous.

Damon, 127 F.3d at 145. Some offenders who in fact committed a

prior violent offense under a statute whose elements do not involve

the risk of violence will not be found to be career offenders;

whereas others who in fact committed a non-violent offense under a

statute whose elements do involve the risk of violence will be found

to be career offenders. The new flexibility given to sentencing

judges under the advisory Guidelines can be used to consider such

anomalies when determining the defendant's actual sentence.

In this case, we did not invite and have not received

briefs on the application of the categorical approach, including the

recent James and Begay refinements, to the crimes of conviction

under the Maine statute. That issue is remanded to the district

court for decision after full briefing. We express no view now as

to any sentence which Giggey may ultimately receive.

III.

We vacate Giggey's sentence and remand for resentencing

consistent with this opinion.

-Concurring Opinions Follow-

-31-
 TORRUELLA, Circuit Judge (Concurring in the opinion and

judgment). I concur in Chief Judge Lynch's opinion which I believe

states the law appropriately under the present circumstances. I

also register my agreement with the concerns raised by Judge Lipez

in his concurrence regarding how this approach will be applied.

However, I believe that this en banc case is not the appropriate

forum to address these issues.

-Concurring Opinion Follows-

-32-
 LIPEZ, Circuit Judge, concurring in the judgment. I

agree with the majority that we should reject Fiore's rule that all

non-residential burglaries are per se crimes of violence within the

meaning of the Career Offender Guideline. I also agree that it is

far from clear that the Commission intended the opposite per se

rule, which would require excluding all non-residential burglaries

from the group of career offender predicate offenses. Furthermore,

the majority is correct that the opposite per se rule might offend

common sense. Certain kinds of non-residential burglaries may well

"present[] a serious potential risk of physical injury." All of

this supports the adoption of a middle ground allowing district

courts to decide whether the particular kind of non-residential

burglary at issue is a crime of violence within the meaning of the

residual clause.

The more difficult question is how district courts should

make such judgments. Regrettably, the majority's decision leaves

that issue in a state of uncertainty. After declaring that courts

should use the categorical approach to distinguish between non-

residential burglaries, the majority also states that a federal

court should not "go beyond the state definition of the offense of

conviction to create subcategories based on facts, such as whether

the burglary was during business versus non-business hours."

However, if the defendant was convicted under a broadly worded

burglary statute comparable to the generic burglary statute

-33-
described by the Supreme Court in Taylor v. United States, 495 U.S.

575, 298 (1990) -- "an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit

a crime" -- how is the court to determine if the non-residential

burglary resulting in a conviction under that statute "present[ed]

a serious potential risk of physical injury"? May it consider the

specific facts of the crime set forth in the limited set of

documents that the majority acknowledges may be consulted in the

categorical approach? In rejecting factual sub-categories, the

majority appears to say no. If that appearance is deceiving, and

the majority does think that some non-element facts may be examined,

I do not see how sub-categories can be avoided. As a matter of the

common sense invoked by the majority, certain facts (such as the

non-residential structure's proximity to a dwelling or whether it

was occupied at the time of the crime) will indicate the serious

potential risk of physical injury contemplated by the residual

provision, thereby creating factual sub-categories of non-

residential burglaries.

The Ninth Circuit has allowed such sub-categorization by

considering whether a burglarized non-residential structure was

physically occupied at the time of the offense. See United States

v. Matthews, 374 F.3d 872, 879-80 (9th Cir. 2004); United States v.

Williams, 47 F.3d 993, 995 (9th Cir. 1995). The Seventh Circuit

suggested in United States v. Hoults, 240 F.3d 647, 652 (7th Cir.

-34-
2001), that non-residential burglaries are not crimes of violence

unless particularized, case-by-case facts indicate otherwise.

Inevitably, as I have noted, such fact-based distinctions between

non-residential burglaries would lead over time to sub-categories

of violent and non-violent non-residential burglaries.

To some extent, I understand the majority's reluctance to

endorse fact-based sub-categories of non-residential burglaries.

Classically, the categorical approach of Taylor, applied by the

Supreme Court in cases like James v. United States, 127 S. Ct. 1586

(2007), and Begay v. United States, 128 S. Ct. 1581 (2008), focuses

on the elements of a state-defined statute in deciding whether the

crime at issue falls within the residual clause of the Career

Offender Guideline or the Armed Career Criminal Act ("ACCA"). The

facts underlying a particular conviction may be considered only to

determine if the defendant committed a predicate offense where the

statute at issue is broadly written to encompass both predicate and

non-predicate crimes. Shepard v. United States, 544 U.S. 13, 16

(2005). By contrast, the creation of sub-categories of

characteristics for distinguishing between types of non-residential

burglaries requires examination of non-element facts to decide if

the offense of conviction is a crime of violence within the meaning

of the residual clause.

But I am not convinced that the Supreme Court's

categorical approach to predicate offenses precludes such an

-35-
analysis. Two primary concerns underlie the categorical analysis

articulated in cases like Taylor and Shepard. First, the Supreme

Court concluded that Congress opted for a "general approach of using

uniform, categorical definitions for predicate offenses." Taylor,

495 U.S. at 591. Therefore, "'the meaning of the federal statute

should not be dependent on state law.'" Id. at 592 (quoting United

States v. Turley, 352 U.S. 407, 411 (1957)). Second, the Court

found no evidence that Congress had "meant to adopt an approach that

would require the sentencing court to engage in an elaborate

factfinding process regarding the defendant's prior offenses."

Taylor, 495 U.S. at 601. For that reason, the Supreme Court

concluded in Shepard that the inquiry into

whether a plea of guilty to burglary defined
by a nongeneric statute necessarily admitted
elements of the generic offense is limited to
the terms of the charging document, the terms
of a plea agreement or transcript of a
colloquy between judge and defendant in which
the factual basis for the plea was confirmed
by the defendant, or to some comparable
judicial record of this information.

544 U.S. at 26. If a federal district court confined itself to

these documents for the purpose of determining whether a particular

kind of non-residential burglary met the requirements of the

residual clause of the ACCA or the Career Offender Guideline, it is

difficult to see why such an approach would be contrary to the

categorical approach formulated by the Supreme Court.

-36-
 Moreover, the language of the residual clause itself

seems to acknowledge the relevance of conduct underlying an offense

of conviction. The provision defines "crime of violence" as any

offense which 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." U.S.S.G. § 4B1.2

(emphasis added). Thus, in direct contrast to the first part of the

provision, which focuses on the elements of an offense, the residual

clause focuses on the conduct involved.

I acknowledge that an application note to the Career

Offender Guideline explains that such conduct must be "expressly

charged" in the count of which the defendant was convicted.

U.S.S.G. § 4B1.2, cmt. n.1. This language suggests that any conduct

of a defendant considered for the purpose of a crime-of-violence

determination under the Career Offender Guideline must be set forth

in a charging document. A reference to that conduct in a plea

agreement or the transcript of a change of plea proceeding might not

be relevant to the crime-of-violence determination. Nevertheless,

even this limited reference to the conduct expressly charged

suggests that such conduct may be considered in this crime-of-

violence determination even if such consideration has the effect of

creating a sub-category of non-residential burglaries.

-37-
 Indeed, we have precedent in this circuit that seems to

contemplate the creation of sub-categories in the context of the

Career Offender Guideline. In United States v. Sacko, 178 F.3d 1,

2 (1st Cir. 1999), we considered a statutory rape law that protected

males and females between the ages of fourteen and sixteen. As we

explained in an order denying a petition for rehearing en banc in

that case, “this court has been willing on the authority of certain

language in Taylor to consider statutory rape statutes as if they

encompassed different subordinate offenses depending on the ages of

the participants, at least where the specific ages could be

ascertained by resort to permissible sources.” Id. at 7. This

precedent makes the majority's outright rejection of sub-

categorization even more puzzling. Exactly what is the majority

asking the district court to do in drawing distinctions among non-

residential burglaries if sub-categorization is off the table? I

cannot answer that question. I anticipate that the district courts

will have the same problem.

The difficulty posed by the majority's prohibition on

judicial sub-categorization is less acute where, as here, the

burglary statute under consideration explicitly draws distinctions

between types of burglaries based, at least in part, on the

potential for violence. At the time of Giggey's conviction for the

state burglaries at issue here, the Maine provision defined burglary

as a Class A crime if the defendant was armed with a firearm and a

-38-
Class B crime if the defendant carried any other dangerous weapon,

burglarized a dwelling, intentionally inflicted physical harm, or

intended to inflict physical harm. The statute grouped all other

variants of the crime together, simply stating that "[a]ll other

burglary is a Class C crime."

Giggey's burglaries were all Class C crimes. Thus, the

district court presumably could focus solely on that subsection and

consider whether, as a matter of federal law, "the conduct

encompassed by the elements of the offense, in the ordinary case,

presents a serious potential risk of injury to another." James, 127

S. Ct. at 1597. Because the Maine provision seemingly excludes many

of the classic indicia of violence – including use of a firearm or

other dangerous weapon and infliction of physical harm – the

district court in all likelihood would find that a conviction under

the "all other burglary" provision of Maine's burglary statute would

not be a crime of violence within the meaning of the Career Offender

Guideline. Indeed, with the creation of sub-categories of non-

residential burglaries based on non-element facts off the table, I

do not know what else the district court could do on remand.

But if the analysis is ultimately that simple, we should

just do it ourselves, or at least invite the briefing that would

allow us to give the district court some meaningful guidance on the

application of the categorical approach to non-residential

burglaries. If we had done that, we might have concluded that the

-39-
majority's rejection of sub-categories of non-residential burglaries

based on facts was premature. Instead, the majority has failed to

work through the implications of our sensible change in the law,

relying instead on the district court to solve the puzzle we have

created. That is an unwise confusion of roles.

-40-