IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30311
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT CLAIBORNE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
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January 6, 1998
Before JONES and SMITH, Circuit Judges, and SHAW,* District Judge.
PER CURIAM:
Robert Claiborne challenges his sentence, arguing that the
district court erred in treating the attempted unauthorized entry
of an inhabited dwelling as a “crime of violence” for purposes of
the career offender provisions of the United States Sentencing
Guidelines. We affirm.
*
District Judge of the Western District of Louisiana, sitting by
designation.
I.
Claiborne was indicted on six counts of bank robbery in
violation of 18 U.S.C. § 2113(a). He pleaded guilty to all counts.
At sentencing, the district court applied the Guidelines' career
offender provisions, U.S.S.G. §§ 4B1.1, 4B1.2, based on Claiborne's
prior convictions for burglary of a residence and for attempted
unauthorized entry of an inhabited dwelling. Claiborne objected on
grounds that the latter offenseSSattempted unauthorized entrySSwas
not a “crime of violence” under U.S.S.G. § 4B1.2(a) and thus could
not support sentencing under the harsher provisions for career
offenders. Although the government did not oppose the objection,
the district court overruled it and sentenced Claiborne to a term
of 188 months.
II.
The sole issue on appeal is whether the district court erred
in characterizing Claiborne's prior conviction as a crime of
violence. The government joins Claiborne in arguing that the
district court misapplied the Guidelines. We will uphold a
sentence unless it was imposed in violation of the law, resulted
from an erroneous application of the Guidelines, or represents an
unreasonable departure from the authorized range. United States v.
Kirk, 111 F.3d 390, 393 (5th Cir. 1997). We review a district
court's interpretation of the Guidelines de novo, and its findings
of fact for clear error. United States v. Hawkins, 69 F.3d 11, 12
(5th Cir. 1995).
2
A.
Defendants deemed career offenders are subject to longer
sentences under the Guidelines. To earn career offender status, a
defendant must satisfy three requirements: He must have been at
least eighteen years old at the time of the instant offense of
conviction; the instant offense of conviction must be a felony that
is either a crime of violence or a controlled substance offense;
and 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. Claiborne does not dispute that he meets the
first two requirements; his focus, and ours, is on the third.
The term “crime of violence” is defined in U.S.S.G. §
4B1.2(a):
(a) The term “crime of violence” means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year,
that SS
(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.
We agree with Claiborne that attempted unauthorized entry cannot be
characterized as a crime of violence under subsection (a)(1).
Claiborne violated LA. REV. STAT. 14:62.3 (the unauthorized entry
statute) and LA. REV. STAT. 14:27 (the attempt statute). The former
provides in relevant part: “Unauthorized entry of an inhabited
3
dwelling is the intentional entry by a person without authorization
into any inhabited dwelling or other structure belonging to another
and used in whole or in part as a home or place of abode by a
person.”2 Because force, or the attempted or threatened use of
force, is not an element of the offense, attempted unauthorized
entry cannot qualify as a crime of violence under
subsection (a)(1). Nor is attempted unauthorized entry one of the
enumerated crimes listed in the first half of subsection (a)(2).
We disagree, however, with Claiborne's reading of the second
half of that subsectionSSthe residual clauseSSwhich defines a
violent crime as any offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
For the reasons discussed below, we interpret this language as
encompassing the offense of attempted unauthorized entry of a
dwelling. Accordingly, we hold that the district court did not
misapply the Guidelines when sentencing Claiborne.
Claiborne launches a double-barreled attack on this
2
The attempt statute, LA. REV. STAT. 14:27, provides in relevant part:
A. Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward
the accomplishing of his object is guilty of an attempt to commit
the offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient
to constitute an attempt; but lying in wait with a dangerous weapon
with the intent to commit a crime, or searching for the intended
victim with a dangerous weapon with the intent to commit a crime,
shall be sufficient to constitute an attempt to commit the offense
intended.
C. An attempt is a separate but lesser grade of the intended
crime; and any person may be convicted of an attempt to commit a
crime, although it appears on the trial that the crime intended or
attempted was actually perpetrated by such person in pursuance of
such attempt.
4
conclusion. First, he argues that his offense cannot be classified
as violent under Taylor v. United States, 495 U.S. 575 (1990).
There, the Court held that a conviction under a state burglary
statute may qualify as a violent felony if the statute contains
“the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime.” Id. at 599 (emphasis added). Claiborne correctly observes
that the Louisiana unauthorized entry statute lacks a criminal
intent requirement, but he downplays a crucial distinctionSSthe
Taylor Court was construing a single word in 18 U.S.C. § 924(e),
not the provision at issue here: the residual clause of U.S.S.G.
§ 4B1.2. The Court did not specify what statutory elements must be
present before a crime may be classified as violent, but instead
answered a far narrower questionSSwhat types of offenses Congress
meant by the word “burglary” in the context of sentence enhancement
under § 924(e).
Even if we accept the government's argument that cases
construing § 924(e) may be applied in a Guidelines context,3 all
Taylor tells us is that unauthorized entry is not burglary;
accordingly, Claiborne's sentence may not be upheld on grounds that
3
A questionable proposition at best, given our remarks in United States
v. Guerra, 962 F.2d 484 (5th Cir. 1992), where we construed “crime of violence”
for purposes of U.S.S.G. § 4B1.2. We noted that United States v. Martinez,
954 F.2d 1050 (5th Cir. 1992), a case arising under 18 U.S.C. § 924(e), “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).
However, in adopting and amending § 4B1.2, the Sentencing Commission chose to
implement a different standard than the one Congress enacted in § 924(e).
Therefore, the meaning of 'crime of violence' for purposes of the career offender
guideline is not the same as what we interpreted 'violent felony' to include for
purposes of the Armed Career Criminal Act in Martinez.” Guerra, 962 F.2d at 487
(footnote and internal citations omitted).
5
he committed “burglary.” Taylor does not answer the question
whether Claiborne's offense “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
We have upheld sentences on the basis of other crimes not
enumerated in the Guidelines, but that qualified as violent under
the residual clause. For example, in Kirk, we concluded that the
offense of sexual indecency with a child involving sexual contact
qualified as a crime of violence under the residual clause.
Similarly, in United States v. Hawkins, 69 F.3d 11, 13 (5th Cir.
1995), we relied on the residual clause in holding that felony
theft from a person was a crime of violence. Accepting Claiborne's
argument that we must confine ourselves to the statutory elements
of the crime would render the residual clause a nullity.
Claiborne next argues that his offense did not pose a risk of
physical injury because, unlike a burglar, an individual convicted
of unauthorized entry does not necessarily act with criminal
intent. We do not agree that a home invader's nonfelonious mindset
eliminates the risk of physical injury to his victims. As noted in
United States v. Guadardo, 40 F.3d 102, 104 (5th Cir. 1994), in
which we held that burglary of a habitation under the Texas Penal
Code is a crime of violence for purposes of 18 U.S.C. § 16,
“whenever a private residence is broken into, there is always a
substantial risk that force will be used” (emphasis in original).
See also United States v. Jackson, 22 F.3d 583, 584-85 (5th Cir.
1994) (distinguishing between burglaries of private residences and
burglaries of unoccupied buildings for purposes of U.S.S.G.
6
§ 4B1.2). A homeowner's surprise confrontation with an intruder is
laced with the potential for violence, regardless of whether the
intruder is a burglar or merely an unauthorized entrant.4
Although Claiborne himself eschews this argument, the
government pounces on the distinction between a conviction for
unauthorized entry and a conviction for attempted unauthorized
entry. It invokes United States v. Martinez, 954 F.2d 1050 (5th
Cir. 1992), as authority that attempted entry poses no significant
risk of physical injury. In Martinez, we concluded that “the crime
of attempted burglary simply cannot be said to present the sort of
categorical danger of serious risk of injury to others that is
required to count an offense as a 'violent felony.'” Id. at
1054 n.3. But the government ignores application note 1 of the
commentary to U.S.S.G. § 4B1.2, which explicitly provides that
“'crime of violence' and 'controlled substance offense' include the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.”5
In Martinez, we had no need to confront this language, because
the case arose not under the Guidelines, but under 18 U.S.C.
4
In determining whether a defendant committed a crime of violence for
purposes of U.S.S.G. § 4B1.2, we may consider his specific conduct that resulted
in conviction. Kirk, 111 F.3d at 395 n.8; Jackson, 22 F.3d at 585. The
underlying facts of Claiborne's conviction for attempted unauthorized entry are
not set forth in the briefs, but the presentence report notes that he,
accompanied by two men, attempted to enter the inhabited dwelling of a woman
living in New Orleans.
5
Commentary in the Guidelines Manual “is authoritative unless it violates
the Constitution or a federal statute, or is inconsistent with . . . that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
7
§ 924(e), which was silent as to the treatment of attempt.6 In
promulgating U.S.S.G. § 4B1.2, the Sentencing Commission erased the
very distinction the government urges us to recognize. For
purposes of the Guidelines' career offender provisions, the
defendant's conviction for an attempted crime is treated as though
he completed the act.
AFFIRMED.
6
We observed that “if Congress had wished to include attempted burglary
as an offense warranting sentence enhancement, it easily could have done so. .
. . [I]f 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 burglarySSor any other attemptSSwhen
it was considering § 924(e).” Martinez, 954 F.2d at 1053.
8