UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-5574
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GERALD GUERRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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(May 28, 1992)
Before SNEED,1 REAVLEY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
Appealing only his sentence, Gerald Guerra contends that his
Guidelines § 4B1.1 career offender enhancement was improper,
specifically challenging the holding that his predicate conviction
for attempted burglary is a "crime of violence" within the meaning
of the guideline. Because we find a guidelines application note
dispositive, we AFFIRM.
I.
Guerra pleaded guilty to distribution of cocaine, in violation
of 21 U.S.C. § 841(a)(1). At sentencing, he unsuccessfully opposed
the career offender enhancement requested by the government,
1
Senior Circuit Judge of the Ninth Circuit sitting by
designation.
asserting that attempted burglary was not one of the crimes of
violence enumerated in the guideline and did not otherwise meet the
guidelines definition.2 Guerra was sentenced to 168 months'
imprisonment, at the bottom end of the applicable career offender
sentencing range.3
II.
The holding that Guerra's attempted burglary conviction
qualifies as a predicate offense for § 4B1.1 enhancement is a
conclusion of law, reviewed de novo. E.g., United States v. Shano,
955 F.2d 291, 294 (5th Cir.), cert. dismissed, __ U.S. __, 112 S.
Ct. 1520 (1992).
"A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time of the instant offense, (2)
the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense, and (3) the
defendant has at least two prior felony convictions of either a
2
The initial pre-sentence investigation report (PSI)
recommended that he be sentenced as a career offender under
U.S.S.G. §§ 4B1.1 and 4B1.2, because of prior convictions for
aggravated assault and burglary of a habitation. Because the
probation officer subsequently determined, on Guerra's objection,
that the aggravated assault conviction did not qualify as one of
the two requisite predicate offenses for enhancement purposes, a
revised PSI did not include the enhancement recommendation. The
government objected to the revised PSI and proposed that Guerra's
conviction for attempted burglary of a habitation was the requisite
second predicate conviction. At sentencing, the government
contended that the attempted burglary was a "crime of violence" for
enhancement purposes because it "involve[d] conduct that presents
a serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(1)(ii). As discussed infra, we need not reach this issue.
3
Without the enhancement, Guerra's sentencing range was 24 to
30 months; with it, 168 to 210.
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crime of violence or a controlled substance offense." U.S.S.G. §
4B1.1. The term "crime of violence" is defined in § 4B1.2 as
any offense under federal or state law punishable
by imprisonment for a term exceeding one year that
--
(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(ii) 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(1)(i)-(ii). Importantly for this appeal,
application note 1 in the official commentary to § 4B1.2 specifies
that "[t]he term[] `crime of violence' ... include[s] the offense[]
of ... attempting to commit such offense[]." U.S.S.G. § 4B1.2,
comment. (n.1).
Guerra does not dispute that the instant offense, distribution
of cocaine, is a "controlled substance offense". Nor does he
challenge the designation of his prior conviction for burglary as
a "crime of violence". The only issue is whether the attempted
burglary qualifies as the other predicate conviction (a "crime of
violence") for enhancement purposes.
In district court, the government did not rely upon
application note 1; it did not even mention it. Instead, as
discussed in note 2, supra, it relied upon the residual clause in
§ 4B1.2(1)(ii), that the attempted burglary "presente[d] a serious
potential risk of physical injury to another." In its initial
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brief here, it took the same position.4 But, note 1 answers
Guerra's objection. The guideline specifically designates
"burglary of a dwelling" as an eligible predicate offense for
enhancement, and the commentary states that the term "crime of
violence" includes attempts to commit the offenses enumerated in
the guideline. See United States v. Liranzo, 944 F.2d 73, 78 (2d
Cir. 1991) (prior conviction for attempted criminal possession of
cocaine was a predicate offense for § 4B1.1 enhancement because
"[t]he plain language of Application Note 1 made the `attempt'
conviction a `controlled substance offense.'").
This court relies on the official commentary to determine the
intent of the Sentencing Commission. For example, in United States
v. Arellano-Rocha, 946 F.2d 1105, 1108 (5th Cir. 1991), we utilized
the application notes to determine the definition of "prior
sentence" because they "furnish[ed] a clear answer to the
objection [the defendant] raise[d], they support[ed] the district
court's interpretation, and their ... interpretation of `prior
sentence' [was] consistent with the guidelines' approach
generally." See also United States v. Gaitan, 954 F.2d 1005, 1010
(5th Cir. 1992) (lack of commentary on issue of guidelines
interpretation was "telling" as to whether Sentencing Commission
intended to favor government's interpretation); United States v.
4
Because we hold that the Sentencing Commission intended
attempted burglary to be an enumerated offense within the career
offender guideline, i.e., the enumerated "burglary" includes
"attempting to commit" burglary by application of note 1, we need
not decide whether attempted burglary falls within the residual
clause of § 4B1.2(1)(ii).
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Brigman, 953 F.2d 906, 908 (5th Cir. 1992) (Sentencing Commission
intended amendments to guidelines' commentary to clarify
guidelines' application; failure to follow commentary could
constitute grounds for reversal on appeal).
Guerra advances several reasons for not relying on the note;
none is persuasive.5 First, he emphasizes that: the district
court was not aware of the application note concerning attempts,
because the government did not point it out; and, the government
did not raise the issue on appeal -- instead, we asked for, and
received, supplemental briefs from both parties on the point. In
short, he asserts that the government waived relying upon the note.
We can ground our decision on the official commentary, even
though the government did not cite it in the district court or in
its initial brief. Guidelines § 1B1.7 covers the role the
Sentencing Commission intended courts to give the commentary,
including the application notes. It states in part:
5
One contention, totally lacking in merit, is that the note "is
a vestige of an early version of the career offender guideline" and
has been rendered invalid by the change, in 1989, of the definition
for "crime of violence". Note 1 provides that "[t]he terms `crime
of violence' and `controlled substance offense' include the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses." U.S.S.G. § 4B1.2, comment. (n.1). It is
similar to part of the pre-1989 version of note 2 to § 4B1.2
(defining only "controlled substance offense"). Note 1 became
effective November 1, 1989, as part of amendments designed "to
clarify the definitions of crime of violence and controlled
substance offense" in the career offender guideline. U.S.S.G. App.
C, amend. 268. That same amendment added to § 4B1.2(1) a
definition of crime of violence that was derived from 18 U.S.C. §
924(e). Id. (See infra for a discussion of § 924(e).) Although
the Sentencing Commission again clarified the definition of crime
of violence in an amendment effective November 1, 1991, it did not
change note 1. See id., amend. 433. Guerra was sentenced in March
1991.
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The Commentary that accompanies the guideline
sections may serve a number of purposes. First, it
may interpret the guideline or explain how it is to
be applied. Failure to follow such commentary
could constitute an incorrect application of the
guidelines, subjecting the sentence to possible
reversal on appeal. See 18 U.S.C. § 3742.
(Emphasis added.) The commentary to § 1B1.7 analogizes commentary
to "legislative history or other legal material that helps
determine the intent of a drafter." See Arellano-Rocha, 946 F.2d
at 1108. Obviously, even if never cited by a party, we can --
indeed must -- consider the commentary to the guideline used by the
district court.6
Second, Guerra contends that interpreting "crime of violence"
to encompass attempted burglary conflicts with our recent holding
in United States v. Martinez, 954 F.2d 1050, 1054 (5th Cir. 1992),
that "a conviction under Texas law for attempted burglary does not
qualify as a sentence-enhancing `violent felony' under the language
of [18 U.S.C.] § 924(e)(2)(B)(ii)."7 Section 924(e), part of the
Armed Career Criminal Act, "provides a sentence enhancement for a
defendant who is convicted under 18 U.S.C. § 922(g) (unlawful
6
Guerra is incorrect that our decision in United States v.
Garcia-Pillado, 898 F.2d 36 (5th Cir. 1990) supports his position.
Garcia-Pillado held that the government waived its objection to
imposition of a guidelines sentence that was less than the
statutory minimum when it did not object in the district court.
Id. at 38-40. Here, the government did not fail to raise its
contention -- that attempted burglary is a crime of violence -- in
the district court; rather, on appeal -- at our suggestion -- it
relies on a new legal authority, or basis, for a position it has
already taken.
7
Because Martinez was not rendered until after briefing in this
appeal was completed, our request for supplemental briefs included
its applicability vel non.
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possession of a firearm) and who has three prior convictions for
specified types of offenses, including `burglary.'" Taylor v.
United States, 495 U.S. 575, 577-78 (1990).
Martinez does not control this case. It is true that the
guidelines' definition of "crime of violence" is derived from the
definition of "violent felony" in § 924(e).8 See note 5, supra;
U.S.S.G. App. C, amend. 268; United States v. Parson, 955 F.2d 858,
866 n.10, 867 (3d Cir. 1992). However, in adopting and amending §
4B1.2, the Sentencing Commission chose to implement a different
standard than the one Congress enacted in § 924(e). See U.S.S.G.
§ 4B1.4, comment. (n.1) ("The term[] `violent felony' ... [is]
defined in 18 U.S.C. § 924(e)(2). It is to be noted that the
definition[] of `violent felony' ... in [that statute] [is] not
identical to the definition[] of `crime of violence' ... used in §
4B1.1 (Career Offender)".); Parson, 955 F.2d at 870 ("The
Sentencing Commission has told us ... that the definitions in
U.S.S.G. § 4B1.2(1) and 18 U.S.C. § 924(e)(2)(B) differ.")
Therefore, the meaning of "crime of violence" for purposes of the
career offender guideline is not the same as what we interpreted
8
Section 924(e) defines "violent felony" as "any crime
punishable by imprisonment for a term exceeding one year ... that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another".
18 U.S.C. § 924(e)(2)(B)(i)-(ii).
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"violent felony" to include for purposes of the Armed Career
Criminal Act in Martinez.
Furthermore, because of the Sentencing Commission's
determination that attempted burglary should be a predicate offense
for enhancement, as contrasted with the lack of any such indication
in § 924(e), a different outcome is appropriate. In Martinez, we
said that
if Congress had wished to include attempted
burglary as an offense warranting sentence
enhancement, it easily could have done so. Section
924(e) explicitly mentions burglary; if Congress
believed that the attempt should be treated the
same way as the crime itself, it could have said so
with virtually no effort. The Government, however,
presents no argument from the legislative history
that the Congress even considered including the
crime of attempted burglary -- or any other attempt
-- when it was considering § 924(e).
954 F.2d at 1053. This case is different. Our task, obviously, is
to discern the Sentencing Commission's intent, see Parson, 955 F.2d
at 868, whereas the Martinez court, in applying a statutory
enhancement, was interpreting Congressional intent. And, here, we
know from reading note 1 that the Commission intended for attempts
to commit the enumerated offenses to be included as predicate
offenses for the career offender guideline. In sum, we should not
deviate from a plain reading of the guidelines and their official
commentary. Concomitantly, the use of note 1, instead of the
residual clause to § 4B1.2(1)(ii), avoids uncertainty, promotes
simplicity, and fosters uniformity and consistency in this aspect
of sentencing (career offender enhancements), thereby comporting
with salutary goals of the guidelines.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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