United States v. Cain

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4059

DANIEL HOWARD CAIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-27-5)

Argued: December 5, 1997

Decided: March 27, 1998

Before WILLIAMS, Circuit Judge, WILSON, Chief United States
District Judge for the Western District of Virginia, sitting by
designation, and MORGAN, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI,
L.C., Wheeling, West Virginia, for Appellant. Thomas Oliver Muck-
low, Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,
Wheeling, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

A jury found Daniel Howard Cain guilty of possessing a firearm
after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). The district court found him to be an armed career crimi-
nal under 18 U.S.C. § 924(e)1 and sentenced him to 235 months
imprisonment. Cain contends that the district court improperly con-
sidered a conviction under a Pennsylvania burglary statute as a predi-
cate offense in making its § 924(e) determination. He also raises
various trial and sentencing errors. We affirm.

I.

Cain is an inveterate criminal. He has been convicted of at least
twenty-five serious offenses, many of which are felonies and some of
which are violent. The evidence in the instant case, viewed in the light
most favorable to the government, establishes the following. Cain
purchased a .22 caliber rifle from Terry Jobes, the stepfather of a
neighbor, Susan Annett Smith. Several days later, in the early morn-
ing hours of September 21, 1995, while in a drunken state, Cain used
the rifle in what appears to have been a sporting event to fill his
rented trailer in Wetzel County, West Virginia full of holes and to
shoot at Ms. Smith's house and at the gas tank of his parked car. Ms.
Smith witnessed part of the event and called the police.

The police went to Cain's trailer later that day but Cain was not
home. Several days later the police returned, questioned Cain about
the incident, and with his consent searched the trailer. They found
_________________________________________________________________
1 Section 924(e) provides that a person who has violated 18 U.S.C.
§ 922(g) and who has three previous convictions for violent felonies or
serious drug offenses shall be fined no more than $25,000 and shall be
imprisoned for at least fifteen years. 18 U.S.C.§ 924(e).

2
nothing in the search. Cain could not behave, however, even during
the brief time the police were there. He assaulted his girlfriend, and
the police arrested him. He never returned to live in the trailer after
that arrest, and in early February 1996, a neighborhood child found
a .22 caliber rifle in a snowbank behind Cain's trailer. Later, Jobes
identified the rifle as the one he sold to Cain.

The government charged Cain with possessing that firearm in vio-
lation of 18 U.S.C. § 922(g)(1), and a jury found him guilty. The pre-
sentence report noted that Cain's three prior convictions for the
violent felonies of armed robbery, burglary, and robbery qualified
him as an armed career criminal under 18 U.S.C.§ 924(e)(1).

Cain objected to the inclusion of the burglary conviction as a predi-
cate offense. That conviction resulted from Cain's 1978 guilty plea in
Pennsylvania to burglarizing an automobile dealership building in
violation of Pennsylvania's burglary statute, 18 Pa. Cons. Stat. Ann.
§ 3502.2 The presentence report described that conviction and two
related theft convictions arising out of an incident on November 29,
1977, as follows:

On that date, a window at the car dealership was broken
and several sets of new car keys were stolen. It was discov-
ered that the defendant used the key to steal a 1978 Buick
valued at $7,249. He drove his car to Pittsburgh, returned to
the dealership and stole a second Buick LaSabre valued at
$7,272. He was driving this car when he was arrested by the
Pittsburgh police.

As a result of the defendant's arrest on December 8,
1977, two Informations were filed in Allegheny County
Common Pleas Court. At CC7708312A, Mr. Cain was
charged with Burglary, the break-in at [the automobile
_________________________________________________________________
2 This statute provides that "[a] person is guilty of burglary if he enters
a building or occupied structure, or separately secured or occupied por-
tion thereof, with intent to commit a crime therein, unless the premises
are at the time open to the public or the actor is licensed or privileged
to enter." 18 Pa. Cons. Stat. Ann. § 3502(a).

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 dealership], and two counts of Theft, one for each of the
stolen Buicks.

Joint Appendix (J.A.) 474.

Cain's objection centered upon his contention that convictions
under Pennsylvania's burglary statute could not qualify as predicate
offenses:

Mr. Cain contends that his burglary conviction does not
qualify as an enhancement in that the predicate offense
involves Pennsylvania burglaries. Pennsylvania burglaries
are different from, and broader than, even the modern
generic definition of burglary contained in the majority of
the States' Criminal Codes.

J.A. 512. Cain never contended, however, that the presentence report
mischaracterized the facts of the incident or his plea to burglary of the
automobile dealership's building.

The government replied to Cain's objection, quoting the specific
charge to which Cain pled guilty:

The actor entered a building or occupied structure or sep-
arately secured or occupied portion thereof; namely a com-
mercial building occupied as a new car Buick agency
occupied by Levine-Jones Buick, Inc., with the intent to
commit a crime therein, at the time when the premises were
not opened to the public and the actor was not licensed or
privileged to enter, in violation of Section 3502 of the Penn-
sylvania Crimes Act of December 6, 1972, 18 Pa. C. S.
§ 3502. (emphasis added)

J.A. 103. Cain neither responded nor challenged at sentencing the
government's recitation of the Pennsylvania charge. The district court
overruled Cain's objection, found the conviction to qualify as a predi-
cate offense, and sentenced Cain as an armed career criminal. After
it sentenced Cain, the district court permitted the government to sup-
plement the record with the Pennsylvania indictment and judgment of
conviction.

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II.

Cain appears to make two challenges to the district court's finding
that he is an armed career criminal under § 924(e)(1). First, he contin-
ues to maintain that no conviction under Pennsylvania's burglary stat-
ute can qualify as a predicate offense. Second, he makes a challenge
he did not make at sentencing. He maintains that even if a conviction
under the statute can qualify, the government failed to prove that his
conviction qualified because the government did not formally intro-
duce into evidence the charging instrument or certified record of con-
viction at sentencing. We reject both challenges.

The sentence enhancement provision of § 924(e) applies if a defen-
dant has three previous violent felony or serious drugs convictions.
"Violent felony" is defined as a crime punishable by more than one
year imprisonment 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 explo-
sives, or otherwise involves conduct that presents a serious
potential risk of visible injury to another.

18 U.S.C. § 924(e)(2)(B). Any generic burglary--burglary as that
term is ordinarily used in most states' criminal codes--qualifies as a
burglary under the statute. United States v. Taylor, 495 U.S. 575, 598
(1990). The Supreme Court in Taylor held that "the generic . . . mean-
ing of burglary contains at least the following elements: an unlawful
or unprivileged entry into, or remaining in, a building or other struc-
ture, with intent to commit a crime." Taylor , 495 U.S. at 598; see also
United States v. Bowden, 975 F.2d 1080, 1083 (4th Cir. 1992).

In determining whether a burglary conviction qualifies, the sen-
tencing court ordinarily should look only to the statutory definition of
the offense and not to the underlying facts of the conviction. Taylor,
495 U.S. at 601. If the statute proscribes conduct that may or may not
qualify as generic burglary, however, the court may look beyond the
fact of conviction and the statutory definition and determine whether

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the indictment and jury instructions, for example, required the jury to
"actually find all the elements of [generic] burglary." United States v.
Cook, 26 F.3d 507, 509 (4th Cir. 1994). The Pennsylvania burglary
statute criminalizes conduct that qualifies as generic burglary because
it prohibits the unlawful entry into a building with the intent to com-
mit a crime. See Pa. Cons. Stat. Ann. § 3502(a). We reject, therefore,
Cain's first challenge that no conviction under that statute can qualify
as a predicate offense. We now turn our attention to Cain's second
challenge, a challenge he did not raise at sentencing--that the govern-
ment failed to prove that his conviction qualifies because it did not
formally introduce at sentencing the charging instrument or certified
record of conviction.

Although the Pennsylvania burglary statute criminalizes conduct
constituting generic burglary, it also criminalizes conduct that would
not qualify as generic burglary. See United States v. Bennett, 100 F.3d
1105, 1109 (3rd Cir. 1996) (holding that Pennsylvania's burglary stat-
ute was broader than the generic definition of burglary because the
definition of "occupied structure" under Pa. Con. Stat. Ann. § 3501
included vehicles and places adapted for "carrying on business").
Consequently, Cain's burglary conviction does not automatically
qualify as a "violent felony" under § 924(e). It qualifies only if the
Pennsylvania trial court that accepted Cain's plea was required to find
all the elements of generic burglary. In this case, that inquiry appro-
priately begins with the presentence report.

The presentence report related the conduct that resulted in Cain's
guilty plea--the break-in of the automobile dealership's building--
and described the charge as a "[b]urglary" charge for the "break-in at
[the automobile dealership]." Cain's objection to the presentence
report focused on the question of whether any violation of the Penn-
sylvania burglary statute could qualify as a predicate offense. Cain
neither challenged the report's description of the charge and conviction3
_________________________________________________________________
3 A defendant has the burden of showing that his presentence report is
inaccurate or unreliable. United States v. Terry , 916 F.2d 157, 162 (4th
Cir. 1990). The defendant may not merely object to a finding in the
report, but must make an affirmative "showing that the information in the
presentence report is unreliable, and articulate the reasons why the facts
contained therein are untrue or inaccurate." Id. If the defendant fails to
make such a showing, "the court `is free to adopt the findings of the [pre-
sentence report] without more specific inquiry or explanation.'" Id.
(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir. 1990)).

6
nor the government's verbatim recitation of the charge. Moreover, at
sentencing, Cain never argued that the government had failed to prove
that he was convicted of burglarizing the automobile dealership's
building or that the proof of that conviction was deficient because the
government had failed to introduce the indictment and judgment of
conviction. As framed by Cain's objection to the presentence report
and Cain's arguments at sentencing, therefore, the issue before the
district court relating to Cain's career criminal status remained simply
whether a conviction under the Pennsylvania burglary statute could
ever qualify as a predicate offense. The introduction of the pertinent
legal documents was unnecessary to resolve that narrow issue. Conse-
quently, we conclude that the district court properly sentenced Cain
as an armed career criminal.4

III.

Cain also complains about the district court's refusal to credit him
with acceptance of responsibility under U.S.S.G.§ 3E1.1. Cain testi-
fied at sentencing that Ms. Smith lied about seeing him with the rifle.
The district court obviously concluded otherwise, and decided instead
that Cain had testified untruthfully about those matters. The district
court did not clearly err in reaching this conclusion and in not credit-
ing Cain with acceptance of responsibility. See United States v.
Gordon, 895 F.2d 932, 937 (4th Cir. 1990).
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4 Because Cain did not challenge the presentence report's description
of his burglary conviction and did not argue at sentencing that the gov-
ernment had failed to satisfy its burden of proof because it failed to intro-
duce the pertinent legal documents, we once again decline to decide
whether a district court may rely on a presentence report's description of
a burglary conviction, when the reliability of that description is in issue.
See United States v. Bowden, 975 F.2d 1080, 1082 n.2 (4th Cir. 1992).
We note, however, that other circuits have held that a sentencing court
in some circumstances may look to a presentence report in analyzing the
nature of a previous conviction for purposes of sentencing pursuant to
§ 924(e). See United States v. Harris, 964 F.2d 1234, 1236 (1st Cir.
1992); United States v. Adams, 91 F.3d 114, 116 (11th Cir.), cert. denied,
117 S. Ct. 623 (1996). Moreover, we agree with the Second Circuit that
absent a challenge to the reliability of the presentence report's descrip-
tion of the predicate offense, a remand is unwarranted. See United States
v. Pearson, 77 F.3d 675, 677 (2d Cir. 1996).

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IV.

After the court sentenced Cain, it permitted the government to sub-
mit the records of Cain's Pennsylvania burglary conviction for pur-
poses of appeal pursuant to Rule 10(e) of the Federal Rules of
Appellate Procedure. Those records contain additional support for the
conclusion that Cain pled guilty to generic burglary. Cain challenges
the district court's decision to supplement the record. In light of our
conclusion that the district court properly sentenced Cain on the
record before it, we need not decide the issue.

V.

Cain contends additionally that the district court erred by refusing
to instruct the jury that the government was required to prove beyond
a reasonable doubt that his possession of the rifle had a substantial
impact on interstate commerce. Cain cites the case of United States
v. Lopez, 514 U.S. 549 (1995), in support of his argument. In Lopez,
the Supreme Court struck down as unconstitutional the Gun-Free
School Zones Act, 18 U.S.C. § 922(q), which prohibited possession
of a firearm in a school zone. The Court found that the provision by
its terms had nothing to do with commerce and that the statute con-
tained no jurisdictional element that would ensure"through a case-by-
case inquiry" that the possessed firearm had affected interstate com-
merce. Lopez, 514 U.S. at 561. Lopez, however, does not stand for the
proposition that the specific conduct of each charged individual must
have a substantial impact on interstate commerce. In fact, "Lopez
expressly reaffirmed the principle that `where a general regulatory
statute bears a substantial relation to commerce, the de minimis char-
acter of individual instances arising under that statute is of no conse-
quence.'" United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995)
(quoting Lopez, 514 U.S. at 558)); see also Perez v. United States,
402 U.S. 146, 154 (1971) ("Where the class of activities is regulated
and that class is within the reach of federal power, the courts have no
power `to excise, as trivial, individual instances' of the class.") (quot-
ing Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)). This court,
subsequent to Lopez, has held that Congress acted within its power
under the Commerce Clause in passing 18 U.S.C. § 922. See United
States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996) (holding that
§ 922(g)'s jurisdictional element requiring the government to prove

8
the firearm's connection to interstate commerce satisfied "the mini-
mal nexus required for the Commerce Clause"). The government,
therefore, does not need to prove that a specific individual's posses-
sion of a firearm had a "substantial" impact on interstate commerce
in order to convict a defendant under § 922. Accord United States v.
Farnsworth, 92 F.3d 1001, 1006-07 (10th Cir.) (holding that the gov-
ernment did not need to show that the individual's firearm possession
substantially affected interstate commerce in order to convict a defen-
dant under § 922), cert. denied, 117 S. Ct. 596 (1996). The district
court, therefore, properly refused Cain's proffered instructions.

VI.

Cain claims the district court erred in a number of its evidentiary
rulings. Such rulings will not be disturbed absent an abuse of discre-
tion. See United States v. ReBrook, 58 F.3d 961, 967 (4th Cir. 1995).
We have reviewed those rulings and find no abuse of discretion.

First, Cain complains about evidence that he possessed a rifle other
than the one described in the indictment. That evidence actually came
in on cross-examination. Cain's counsel cross-examined Jobes about
the date Jobes claimed he sold Cain the rifle described in the indict-
ment, noting that Jobes had given a different date on an earlier occa-
sion. The court permitted Jobes to explain that he had mistaken the
date with the date he sold Cain another rifle. Under the circumstances
it was perfectly appropriate, indeed necessary, for Jobes to explain.
Jobes' explanation had become intertwined with evidence of the
offense charged against Cain, and the court properly admitted it. See
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1995)
("[E]vidence of uncharged conduct is not considered `other crimes'
evidence if it . . . `is necessary to complete the story of the crime (on)
trial.'") (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir.
1989)); United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)
(holding that Rule 404(b) of the Federal Rules of Evidence did not
prohibit evidence of other crimes "when such evidence `furnishes part
of the context of a crime' or is necessary to a`full presentation' of
the case, or is so intimately connected with and explanatory of the
crime charged against the defendant and is so much a part of the set-
ting of the case and its `environment' that its proof is appropriate in
order `to complete the story of the crime on trial by proving its imme-

9
diate context or the `res gestae.'" (footnotes omitted)).5 Moreover, out
of an abundance of caution, the court told the jury to disregard the
evidence of the other rifle. That instruction was broader than required,
and, in any event, was sufficient to avoid any hint of prejudice.

Second, Cain maintains that the court erred in admitting evidence
of the altercation between Cain and his girlfriend. We disagree. We
find that this evidence was intertwined with circumstantial evidence
of the offense charged against Cain and that it was necessary to com-
plete the story of the crime. See Kennedy, 32 F.3d at 85-86. The
police arrested Cain while the search was in progress; Cain never
returned to the trailer to live; and although the police failed to find the
rifle in their search of Cain's trailer, a neighborhood child found the
rifle in a snowbank close to Cain's trailer. Cain's arrest helps to
explain his subsequent absence from the trailer. This absence, in turn,
provides a reason for Cain's failure to retrieve the rifle and explains
why it was still located nearby several months after the shooting. In
our view, therefore, the police officer's testimony regarding Cain's
altercation and arrest is intertwined with a link in the chain of circum-
stantial evidence against Cain, and the court properly admitted it.

Third, Cain maintains that the court erred in admitting evidence
that there were bullet holes in his trailer. We find that evidence to be
corroborative of Ms. Smith's testimony and see no reason why the
court should not have admitted it.
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5 Cain's case is distinguishable from United States v. Tate, 715 F.2d
864 (4th Cir. 1983), in which this court ruled that the district court erred,
pursuant to Rule 404(b) of the Federal Rules of Evidence, by allowing
testimony that the defendant earlier had possessed a gun different from
the firearms involved in the charge against him. In Tate, the government
at trial introduced this evidence in an attempt to rebut the defendant's
testimony that he lacked knowledge of the presence and ownership of the
guns in question. Tate, 715 F.2d at 865. On appeal, the Tate court ruled
that evidence of the earlier firearm had no relevance to these issues. Id.
In Cain's case, by contrast, the government did not affirmatively intro-
duce the disputed testimony. Rather, the testimony was elicited by the
defendant during cross-examination in an attempt to impeach the govern-
ment's witness. The testimony regarding the earlier firearm constituted
an integral part of the witness' answer to defense counsel's attempt to
impeach Jobes.

10
Fourth, and finally, Cain complains about the statement of the offi-
cer that searched his trailer that Cain "really didn't want to answer
any of [his] questions." Cain had moved in limine to exclude Cain's
refusal to answer questions. The government responded to the motion
that it did not intend to offer evidence of Cain's refusal. Despite that
response, the officer testified without further objection that Cain did
not want to answer his questions. Presumably, Cain now maintains
that the officer's statement is an improper comment about Cain's right
to remain silent. We reject Cain's argument.

"The government may comment on a defendant's silence if it
occurred prior to the time that he is arrested and given his Miranda
warnings. . . . In addition, the government may comment on a defen-
dant's silence when it occurs after arrest, but before Miranda warn-
ings are given." United States v. Rivera, 944 F.2d 1563, 1568 (11th
Cir. 1991); see also United States v. Love, 767 F.2d 1052, 1063 (4th
Cir. 1985); Folston v. Allsbrook, 691 F.2d 184, 187 (4th Cir. 1982).
On the record before the court it is impossible to determine whether
or not the comment was improper. Even in the event that the trial
court erred by allowing the officer's testimony, however, that error
was harmless. See Chapman v. California, 386 U.S. 18, 23-24 (1967);
Tuggle v. Netherland, 79 F.3d 1386, 1392 (4th Cir.), cert. denied, 117
S. Ct. 237 (1996). Susan Annett Smith testified that she observed
Cain holding a rifle in his trailer and then saw him shooting a .22 rifle
as he stood outside her bedroom window. Terry Jobes testified that
he had traded a .22 rifle to Cain a few days before the shooting and
identified that rifle as the one later found near Cain's trailer. In the
face of such evidence, we have no trouble finding beyond a reason-
able doubt that the guilty verdict in Cain's case was unattributable to
the police officer's passing comment regarding Cain's reluctance to
answer questions. See Chapman, 386 U.S. at 24; Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993).

VII.

Finally, Cain challenges the sufficiency of the evidence. We must
uphold the jury's verdict "if there is substantial evidence, taking the
the view most favorable to the government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942). We find Cain's challenge to
be without merit.

11
When construed in the light most favorable to the government, we
believe that, based on the evidence detailed above, a rational jury
could have concluded beyond a reasonable doubt that the rifle found
by the neighborhood child near Cain's trailer was the same rifle Cain
possessed on September 21, 1995 and that Cain discarded it there.
We, therefore, reject Cain's final challenge.

VIII.

For the reasons stated above, the judgment of the district court is
affirmed.

AFFIRMED

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