United States v. Bennett

United States Court of Appeals
For the First Circuit

No. 06-1167

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM J. BENNETT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Christopher R. Goddu, Federal Defender Office, District of
Massachusetts, with whom Kevin Fitzgerald, Federal Defender Office,
District of Rhode Island, was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, was on brief, for
appellee.

November 21, 2006
 TORRUELLA, Circuit Judge. Defendant-appellant William J.

Bennett ("Bennett") pled guilty to possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He now appeals the sentencing

enhancements applied pursuant to the Armed Career Criminal Act

("ACCA"), 18 U.S.C. § 924(e), on the basis that (1) the predicate

conviction for breaking and entering a steel storage shed does not

constitute a violent felony, (2) his Sixth Amendment rights were

violated when the judge, rather than a jury, determined that the

conviction constituted a violent felony, and (3) his Fifth and

Sixth Amendment rights were violated when the Government failed to

properly plead and prove the ACCA enhancements. We find no merit

to these arguments and therefore affirm the district court's

decision.

I. Background

On March 15, 2005, the Westerly, Rhode Island police

retrieved a stolen 9 mm handgun, which they were told had been

purchased from Bennett. Bennett later admitted to selling the gun.

On June 15, 2005, a federal grand jury returned a one-count

indictment charging Bennett with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Bennett entered

into a plea agreement with prosecutors on August 22, 2005 and pled

guilty to the charge on September 15, 2005.

Based on three prior Rhode Island convictions for

breaking and entering and related crimes, the United States

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Probation Office ("USPO") concluded that Bennett was subject to a

mandatory minimum sentence of 180 months under the ACCA.1 Bennett

objected to the USPO's determination, arguing that his 1994 Rhode

Island conviction for breaking and entering a steel storage shed

did not constitute a crime of violence and therefore did not

qualify as a predicate for the ACCA sentencing enhancement.

At the plea colloquy, the state prosecutor stated that

the government would be prepared to prove at trial that the

defendant "entered a steel storage shed . . . belonging to

[another] with intent to commit larceny in the nighttime." Bennett

agreed with this statement. Based on a reading of the statute

under which Bennett was convicted and the record before the court,

the district court found that Bennett was properly classified as an

armed career criminal and sentenced him to 180 months imprisonment.

II. Discussion

A. The Taylor Definition of "Burglary"

Under the ACCA, a defendant who violates § 922(g)(1) and

has three previous convictions for violent felonies or serious drug

offenses is subject to a minimum sentence of 180 months. 18 U.S.C.

§ 924(e)(1). The definition of "violent felony" includes, inter

alia, the crime of burglary, but the term "burglary" itself is not

defined in the statute. Id. § 922(e)(2).

1
Absent the USPO's determination that Bennett was an armed career
criminal, Bennett would have been subject to an advisory guideline
range of 24-30 months.

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 The Supreme Court, however, addressed the meaning of

burglary as used in the ACCA in United States v. Taylor, 495 U.S.

575 (1990). The Court first rejected both the view that the

definition depends on the label adopted by the state of conviction

and the idea that Congress meant to include only the common-law

definition of burglary as "breaking and entering of a dwelling at

night, with intent to commit a felony." Id. at 592. Rather, the

Court concluded that

Congress meant by 'burglary' the generic sense
in which the term is now used in the criminal
codes of most states. Although the exact
formulations vary, the generic, contemporary
meaning of burglary contains at least the
following elements: an unlawful or
unprivileged entry into, or remaining in, a
building or other structure, with intent to
commit a crime.

Id. at 598. Thus, an offense qualifies as "burglary" for purposes

of an ACCA sentencing enhancement if it "substantially corresponds

to 'generic' burglary, or the charging paper and jury instructions

actually required the jury to find all the elements of generic

burglary in order to convict the defendant." Id. at 602.

In assessing whether a state conviction qualifies as

generic burglary, a court should take a categorical approach,

"looking only to the statutory definitions of the prior offenses,

and not to the particular facts underlying those convictions." Id.

at 600. When the state statute defines burglary more broadly than

the generic definition, however, the court may then look to whether

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the jury was required to find all the elements of generic burglary.

Id. at 602.

Defendant contends that his conviction for breaking and

entering a steel storage shed does not meet the definition of

generic burglary under Taylor, and therefore does not constitute a

violent felony as determined by the district court, for two

reasons: First, he argues that to qualify as a "building or other

structure" under the Taylor definition, the building or structure

must be "occupiable."2 Second, he argues for the first time on

appeal that the statute under which he was convicted for the

predicate offense did not include an "unlawful or unprivileged

entry" element as required by Taylor.

1. "Building or other structure"

We review the determination that a defendant is subject

to an ACCA sentencing enhancement de novo, United States v.

Mastera, 435 F.3d 56, 59 (1st Cir. 2006), but we review the

district court's factual findings underlying the determination for

clear error, United States v. Delgado, 288 F.3d 49, 52 (1st Cir.

2002). We begin our review with the Rhode Island statute under

which Bennett was convicted for the predicate crime at issue,

2
There is some question as to whether Bennett preserved this
argument for appeal. He certainly did not develop the argument
very well, focusing instead on whether his conviction satisfied the
"otherwise" clause of 18 U.S.C. § 924(e)(2)(B)(ii), but we will
assume for purposes of this decision that he did preserve the
argument below.

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entitled "Breaking and entering other buildings with criminal

intent - Railroad cars - Tractor trailers." R.I. Gen. Laws § 11-8-

5. The first clause of the statute makes it unlawful to "break and

enter or enter in the nighttime, with intent to commit [a crime] in

it, any barn, stable, carriage house, or other building." Id. The

second clause addresses the similar breaking and entering of

railroad cars and tractor trailers. Id.

Because the statute defines burglary more broadly than

Taylor did, including the breaking and entering of more than just

buildings and structures, we look to the record before the court to

determine under which clause Bennett was convicted.3 The

transcript of the plea colloquy clearly shows that Bennett was

convicted under the first clause of the statute, involving the

burglary of "other buildings," and therefore we base our

determination of whether the conviction qualifies as generic

burglary on the elements required for conviction under the "other

buildings" clause.

Bennett contends that to meet the Taylor definition of

generic burglary, the structure involved in a predicate crime must

be "occupiable," in the sense that it must be large enough to

3
In examining the record, a court is "limited to the terms of the
charging document, the terms of a plea agreement or transcript of
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." Shepard v. United States,
544 U.S. 13, 26 (2005).

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accommodate a person. He points to a Ninth Circuit case, United

States v. Sparks, 265 F.3d 825, 835 (9th Cir. 2001), which found

that the burglary of a storage locker that would not accommodate a

person does not fall within the definition of generic burglary.

Bennett also asserts that Rhode Island law suggests a requirement

of habitability or occupiable space.

The types of buildings to which the Rhode Island statute

refers, such as barns, stables, and presumably, steel storage

sheds, clearly fit within Taylor's definition of generic burglary;

they are, by the plain language of the statute, "buildings or other

structures." They clearly do not comprise such items as

automobiles, boats, railroad cars, tents, or vending machines,

which Taylor rejected as "structures" for purposes of generic

burglary. Taylor also rejected the idea that state law defines the

contours of burglary under the ACCA, and therefore we decline to

look to Rhode Island law to resolve this question. Furthermore,

Sparks is inapposite, because the statute at issue plainly concerns

the burglary of "buildings" as opposed to smaller enclosed spaces

such as storage lockers. Bennett was convicted of "entering" into

a steel storage shed, and therefore we know that the structure was

large enough to be entered by a person. Thus this case does not

raise any issue about structures not large enough to permit human

entry.

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 2. "Unlawful or unprivileged entry"

Bennett next contends that his conviction for breaking

and entering a steel storage shed does not meet Taylor's definition

because the statute under which he was convicted did not require an

"unlawful or unprivileged" entry, and the record before the court

did not indicate that his entry was "unlawful or unprivileged."

Bennett did not raise this issue below and therefore we review for

plain error. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). We have not addressed the contours of the "unlawful or

unprivileged" element of generic burglary under Taylor, and there

exists a circuit split on the issue. Compare United States v.

Bowden, 975 F.2d 1080, 1084-85 (4th Cir. 1992) (finding that "the

entry of a man who enters without breaking with intent to commit a

felony or larceny is neither lawful nor privileged, so it must be

within Taylor"), with United States v. Maness, 23 F.3d 1006, 1008-

09 (6th Cir. 1994) (finding that the same statute at issue in

Bowden "does not satisfy Taylor's definition of generic burglary"

because intent to commit a crime is a "separate and distinct

element[]" from unlawful or unprivileged entry). In light of

conflicting case law, any error that might have been committed by

the district court was not "obvious," and therefore not plain

error. United States v. Olano, 507 U.S. 725, 734 (1993) ("At a

minimum, court of appeals cannot correct an error pursuant to Rule

52(b) unless the error is clear under current law.").

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B. Constitutional and statutory claims

Bennett's remaining two claims merit little discussion.

First, he claims that his Sixth Amendment rights were violated

because the judge, rather than a jury, determined that his

predicate conviction constituted a violent felony. Bennett

suggests that United States v. Booker, 543 U.S. 220 (2005),

requires that the nature of his conviction be determined beyond a

reasonable doubt by a jury. We very recently rejected the position

that a jury must determine whether a prior conviction is a violent

felony for purposes of a sentencing enhancement; the determination

is a question of law and therefore for the court, not the jury.

United States v. Bishop, 453 F.3d 30, 32 (1st Cir. 2006).

Second, Bennet claims that his Fifth and Sixth Amendment

rights were violated because the Government failed to properly

plead and prove the ACCA enhancements. He asks us to find that as

a matter of statutory construction, the ACCA requires the

Government to charge his prior convictions in an indictment and

prove them beyond a reasonable doubt. Bennett concedes that he did

not raise this issue below. We thus review for plain error, which

requires that the defendant show "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

Duarte, 246 F.3d at 60. The district court committed no obvious

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error, since the text of the ACCA says nothing about pleading and

proof of predicate convictions. Furthermore, we recently rejected

in United States v. McKenney the constitutional argument that the

Government must charge predicate convictions under the ACCA in an

indictment, reiterating that "[t]he Supreme Court has rejected the

argument that under the Constitution, recidivism must be treated as

an element of the offense, included in the indictment, and proved

to a jury beyond a reasonable doubt." 450 F.3d 39, 45-46 (1st Cir.

2006) (citing Almendarez-Torres v. United States, 523 U.S. 224, 239

(1998)). As a result, the district court did not commit plain

error in failing to apply the doctrine of constitutional avoidance

by reading into the ACCA Bennett's proposed requirement. There is

no constitutional issue and therefore nothing to avoid.

III. Conclusion

For the reasons stated above, we affirm the sentence

imposed by the district court.

Affirmed.

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