UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10617
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID EARL TURNER,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth
September 6, 2002
Before DUHÉ, BARKSDALE and DENNIS, Circuit Judges.
DUHÉ, Circuit Judge:
David Turner appeals his sentence following a guilty plea to
possession of a firearm by a convicted felon. His appeal presents
the question whether a prior conviction of burglary of a building
constitutes a “crime of violence” for purposes of increasing the
base offense level under the Sentencing Guidelines. Because that
determination turns on the conduct expressly charged in the
indictment for the prior conviction, which is not in the record, we
vacate and remand for resentencing.
The district court determined Turner’s base offense level
under Guideline § 2K2.1(a)(4)(A), which provides a level of 20 for
a defendant who has a prior felony conviction of a “crime of
violence.” Application Note 5 following that section refers us to
Guideline § 4B1.2 for a definition of “crime of violence.” We
review the district court's interpretation and application of the
Guidelines de novo. United States v. Charles, No. 01-10113, – F.3d
–, 2002 WL 1764147, at *2 (5th Cir. July 31, 2002)(en banc). The
district court relied in part upon United States v. Rodriguez-
Guzman, 56 F.3d 18, 21 (5th Cir. 1995), which concluded that a
felony burglary of a nonresidential building under the Texas Penal
Code is a crime of violence as defined in 18 U.S.C. § 16(b). This
Court has recently repudiated use of jurisprudence under 18 U.S.C.
§ 16(b), however, in determining what constitutes a crime of
violence under the Guidelines. See Charles at *2 (overruling cases
conflating the 18 U.S.C. § 16(b) definition of “crime of violence”
with that of USSG § 4B1.2(a)).
Charles requires us to focus on only Guideline § 4B1.2 and its
accompanying commentary. Charles at *2. Section 4B1.2(a) defines
“crime of violence” as any offense under federal or state law
punishable by imprisonment for more than 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 use of explosives, or
otherwise involves conduct that presents a serious potential risk
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of physical injury to another.” The Commentary enumerates
additional offenses and clarifies that an offense not listed is a
“crime of violence” either (A) if it has as an element the use,
attempted use, or threatened use of physical force against the
person of another, or (B) if “the conduct set forth (i.e.,
expressly charged) in the count of which the defendant was
convicted involved . . . explosives . . . or, by its nature,
presented a serious potential risk of physical injury to another.”
USSG § 4B1.2, cmt. n.1 para. 2, parts (A)&(B).
The first aspect of the test is whether the elements include
the use of physical force. USSG § 4B1.2(a)(1). The Government
contends that under Taylor1 the statutory elements of burglary of
a building make it a crime of violence per se. Defining “burglary”
as used in 18 U.S.C. § 924(e) for purposes of the sentencing
enhancement for career criminals, Taylor noted preliminarily that
burglary “often creates the possibility of a violent
confrontation.” Taylor, 495 U.S. at 588, 100 S. Ct. at 2153. This
observation differs from the test for purposes of the Guideline,
which is whether the offense “has as an element the use [actual,
attempted, or threatened] of physical force against the person of
another.” USSG § 4B1.2(a)(1). The statutory elements of burglary
of a building do not make it a per se crime of violence, because
they do not necessarily involve use of physical force against the
1
Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109
L.Ed.2d 607 (1990).
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person of another. See Tex. Pen. Code § 30.02(a) (West 1994)2; see
also United States v. Jackson, 22 F.3d 583, 585 (5th Cir.
1994)(“Jackson I”)3 (rejecting uniform treatment of burglary of a
building as a crime of violence).
The second aspect of the test for crime of violence is whether
the offense is in the enumerated list of crimes, involves
explosives, or meets the “otherwise” part of the definition of
crime of violence. USSG § 4B1.2(a)(2). Since this crime neither
2
The elements of burglary in Texas are that a person must
without the effective consent of the owner . . . :
(1) enter[] . . . a building . . . not then open to the
public, with intent to commit a felony, theft, or an
assault; or
(2) remain[] concealed, with intent to commit a felony,
theft, or an assault, in a building . . . ; or
(3) enter[] a building . . . and commit[] or attempt[] to
commit a felony, theft, or an assault.
Tex. Penal Code § 30.02 (West 1994). If the theft or felony
involved does not involve the use of force against the person of
another, then the burglary would not be a crime of violence.
3
After making this initial determination, Jackson I then
considered the factual description of the burglary contained in the
PSR to determine whether the defendant’s conduct during the
particular burglary at issue presented a serious potential risk of
physical injury to another so as to constitute a crime of violence
under part (B) of the analysis. Jackson I at 585. This aspect of
Jackson I conflicts with United States v. Fitzhugh, 954 F.2d 253,
254 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), which
requires that in determining whether the offense involves conduct
that presents a serious potential risk of physical injury to
another, we consider only whether the conduct described in the
charging instrument presents such a risk. Fitzhugh describes the
correct approach. Billiot v. Puckett, 135 F.3d 311, 316 (5th
Cir.)(noting that if two previous opinions conflict, the earlier
controls as binding precedent), cert. denied, 525 U.S. 966 (1998).
See generally the discussion of Fitzhugh and Jackson I in United
States v. Jackson, 220 F.3d 635, 637-39 (5th Cir. 2000)(“Jackson
II”), cert. denied, 532 U.S. 988, 121 S. Ct. 1640 (2001), overruled
on other grounds by Charles, at *4.
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involves explosives nor is in the enumeration of crimes in the
Guideline or its Commentary, we must determine only whether the
offense “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id.
The Government maintains that burglary of a building presents
the sort of risk contemplated by the Guideline. The charging
instrument pertaining to defendant’s prior conviction is not in the
record. The Guidelines and our jurisprudence require that for this
part of the analysis, we consider only the conduct charged in the
count of which the defendant was convicted. We therefore must
remand for resentencing. See United States v. Kinder, 980 F.2d
961, 963 (5th Cir. 1992) (“We seek justice and truth and therefore
do not preclude the introduction of information helpful in
determining a proper sentence.”), cert. denied, 508 U.S. 923
(1993). The district court can then make the required
determination whether the conduct set forth in the count of which
the defendant was convicted “presents a serious potential risk of
physical injury to another.” USSG § 4B1.2(a)(2); United States v.
Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992) (restricting
consideration to conduct in count, not other facts beyond the face
of the indictment), cert. denied, 510 U.S. 895 (1993); Charles at
*3 (same).
We therefore VACATE the judgment of sentence, and REMAND the
matter for resentencing in the light of this opinion.
VACATED and REMANDED.
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