United States Court of Appeals
For the First Circuit
No. 07-2317
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY GIGGEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Boudin, Lipez, and Howard, Circuit Judges.
James S. Hewes for appellant.
Judith H. Mizner, Assistant Federal Public Defender, for the
Federal Public Defender for the Districts of Massachusetts, New
Hampshire and Rhode Island, amicus curiae.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
OPINION EN BANC
December 22, 2008
LYNCH, Chief Judge. The court took this case en banc to
consider again whether a conviction for a non-residential burglary
is per se a "crime of violence" under the Career Offender
Sentencing Guideline, U.S.S.G. § 4B1.2. A career offender finding
may lead to a longer sentence for a federal defendant. This court
has for some time held that a prior conviction for a burglary which
is not of a dwelling is per se a "crime of violence" under the
Guidelines. United States v. Sawyer, 144 F.3d 191, 195-96 (1st
Cir. 1998); United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir.
1992). We now reverse course and hold that a prior conviction for
burglary not of a dwelling is not per se a "crime of violence." We
hold that whether a prior conviction for non-residential burglary
is a "crime of violence" turns on the application of a categorical
approach under § 4B1.2(a)(2)'s residual clause. We did not grant
en banc review or receive briefing on any other issue.
We decided to reconsider whether non-residential burglary
is per se a "crime of violence" under the Guideline for several
reasons. One is that the question still affects the length of the
sentence received. The Guidelines, while now advisory and not
mandatory, remain the starting point for a district court's
sentencing decision. Gall v. United States, 128 S. Ct. 586, 596
(2007) ("[A] district court should begin all sentencing proceedings
by correctly calculating the applicable Guidelines range.").
Although the sentencing judge now has considerable leeway to vary
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from the Guidelines range, see Kimbrough v. United States, 128 S.
Ct. 558, 570 (2007), the sentencing judge must still consider the
extent of deviation between the Guidelines range and the sentence
given and ensure the justification is sufficiently compelling to
support the degree of variance, Gall, 128 S. Ct. at 597; see also
United States v. Thurston, 544 F.3d 22, 25 (1st Cir. 2008); United
States v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008) (noting that
sentencing judges may depart from the Guidelines range on the basis
of a policy disagreement with the Guidelines). As a result, the
Guidelines range may substantially influence a particular
defendant's sentence, especially when the large increases imposed
on career offenders are involved. In this case, the Guidelines
range for defendant Timothy Giggey increased to 151 to 188 months
under § 4B1.2, instead of 63 to 78 months had he not been found a
career offender. The sentencing judge made clear that if he were
not bound by our prior law interpreting § 4B1.2, he would have
given a lower sentence. United States v. Giggey, 501 F. Supp. 2d
237, 245 (D. Me. 2007).
Further, our earlier per se approach has been criticized
as sweeping within its reach defendants who are not violent career
offenders, and so do not pose such risks to the public as to
warrant prolonged imprisonment. The human and fiscal costs of such
unnecessary imprisonment are considerable. Accordingly, two
conscientious district judges in this circuit have asked this court
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to reconsider en banc and alter our interpretation of § 4B1.2 as to
whether a defendant's conviction for burglary of a non-dwelling
structure is always a "crime of violence." See Boardman, 528 F.3d
at 87 (discussing the district judge's comments at sentencing);
Giggey, 501 F. Supp. 2d at 239.
Another reason we reexamine the issue is that there is no
sign that the Sentencing Commission will resolve the ambiguity
about its intentions in the Career Offender Guideline; an ambiguity
has now existed for nearly twenty years regarding whether non-
residential burglary is a career offender predicate. In the
absence of such guidance, the circuits have struggled with the
question and taken at least three different positions on it. The
per se approach which we earlier adopted is distinctly a minority
position.1
Also, very recent Supreme Court opinions interpreting
identical language in the residual clause of the Armed Career
1
Of the circuits that have considered the issue, the
Second and Eighth have also held that non-residential burglary is
per se a "crime of violence" under § 4B1.2. See United States v.
Brown, 514 F.3d 256, 268-69 (2d Cir. 2008); United States v.
Hascall, 76 F.3d 902, 905-06 (8th Cir. 1996).
Three circuits have held that non-residential burglary is
per se not a "crime of violence" under § 4B1.2. See United States
v. Harrison, 58 F.3d 115, 119 (4th Cir. 1995); United States v.
Spell, 44 F.3d 936, 938-39 (11th Cir. 1995) (per curiam); United
States v. Smith, 10 F.3d 724, 732-33 (10th Cir. 1993) (per curiam).
Four others have rejected both per se rules. See United
States v. Matthews, 374 F.3d 872, 880 (9th Cir. 2004); United
States v. Hoults, 240 F.3d 647, 652 (7th Cir. 2001); United States
v. Wilson, 168 F.3d 916, 926-29 (6th Cir. 1999); United States v.
Jackson, 22 F.3d 583, 585 (5th Cir. 1994).
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Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), give us reason
to reconsider our approach. See United States v. Begay, 128 S. Ct.
1581 (2008); James v. United States, 127 S. Ct. 1586 (2007).
Finally, other relevant areas of the law have changed
since we adopted our earlier rule in Fiore and Sawyer. Fiore was
decided in 1992. It relied on the Supreme Court's decision in
Taylor v. United States, 495 U.S. 575 (1990), although recognizing
that Taylor construed the ACCA. The Fiore court could not have
anticipated the Commission's post-1992 actions on the question of
non-residential burglaries, which affect our construction of the
Guideline in 2008.
In addition, this court's decision in Sawyer, considering
a prior conviction under Maine's burglary statute, interpreted
Fiore as holding that all burglaries of non-dwelling buildings
which otherwise include the elements of a generic burglary under
Taylor are crimes of violence under the Career Offender Guideline.
144 F.3d at 195. Sawyer did not address the later and significant
history of the Commission's deliberations on the Guideline. Sawyer
also held that the per se approach it considered Fiore to have
adopted precluded any consideration of whether the differences
between the Maine statute and the Rhode Island statute in Fiore
would produce different results utilizing a categorical approach.
Sawyer did not have the benefit of the Supreme Court's 2005
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explanation of the categorical approach in Shepard v. United
States, 544 U.S. 13 (2005).
I.
A. Giggey's Federal Crime
On December 19, 2006, Giggey, then age twenty-seven, his
slightly younger brother, and a juvenile male decided to burglarize
a building on Lisbon Street in Lewiston, Maine. They chose the
building thinking that it contained valuables because it appeared
to have a security alarm on its outer door. To create a diversion,
the three set a series of small fires in a nearby vacant building.
That building was planned for restoration into new residential,
commercial, and office space. The three went outside to see if the
fires were visible from the street and returned after twenty
minutes to set additional fires. The three left the burning
building when an alarm sounded and then fled to their homes,
fearing that they had been seen.
No one was injured by the fires. But the flames spread
to neighboring buildings and ultimately destroyed four buildings
owned by Greely Capital, LLC, as to which Greely Capital had
received a $50,000 federal rehabilitation grant from the Department
of Housing and Urban Development, which was administered by the
City of Lewiston. The destruction of a federally funded
rehabilitation project brought into play a federal criminal
statute, 18 U.S.C. § 844(f)(1), which provides: "Whoever
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maliciously damages or destroys . . . by means of fire . . . any
building . . . in whole or in part owned or possessed by . . . any
institution or organization receiving Federal financial assistance,
shall be imprisoned for not less than 5 years and not more than 20
years, fined under this title, or both."
On December 22, 2006, Giggey was arrested and held on a
state arson charge relating to the fires. On April 9, 2007, the
U.S. Attorney's Office filed a one-count information against
Giggey, charging him under 18 U.S.C. § 844(f). That same day,
Giggey waived indictment and pled guilty to violating 18 U.S.C.
§ 844(f). Giggey's state arson charge was dismissed upon entry of
his guilty plea to the federal crime. Only Giggey's sentence, not
his guilt, is therefore at issue.
B. Giggey's Prior State Court Convictions
At the time of his sentencing, Giggey had several prior
adult convictions for violations of Maine's criminal laws. Two are
important to this appeal. The first is a burglary conviction from
2000. The relevant count in Giggey's indictment for that crime
charged:
That on or about and between March 23, 2000,
and March 25, 2000 in Raymond, Cumberland
County, Maine, TIMOTHY ALBERT GIGGEY did enter
or surreptitiously remain in a structure
namely a garage owned by David Millay located
at 100 Wild Acres Road, knowing he was not
licensed or privileged to do so, with the
intent to commit the crime of theft inside.
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On December 7, 2000, Giggey pled guilty to the burglary charged in
that count, a Class C crime punishable by up to five years'
imprisonment under Maine law. See Me. Rev. Stat. Ann. tit. 17-A,
§§ 401, 1252(2)(C). For his 2000 burglary conviction, Giggey
received a two year sentence with all but ninety days suspended.
Giggey's second relevant state offense is a burglary
conviction from 2004. On June 22, 2004, Giggey waived indictment
and pled guilty to "burglary, Class C, alleged to have occurred on
February 21st of this year at the Pit Stop Redemption." He
received a thirty month sentence with all but four months suspended
for that burglary.
Both the 2000 and 2004 offenses were charged under
Maine's burglary statute, which provided:
1. A person is guilty of burglary if he
enters or surreptitiously remains in a
structure, knowing that he is not licensed or
privileged to do so, with the intent to commit
a crime therein.
2. Burglary is classified as:
A. A Class A crime if the defendant was
armed with a firearm, or knew that an
accomplice was so armed; and
B. A Class B crime if:
(1) The defendant intentionally or
recklessly inflicted or attempted to inflict
bodily injury on anyone during the commission
of the burglary or an attempt to commit the
burglary or in immediate flight after the
commission or attempt;
(2) The defendant was armed with a
dangerous weapon other than a firearm or knew
that an accomplice was so armed;
(3) The violation was against a
structure that is a dwelling place; . . . .
. . . .
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C. All other burglary is a Class C
crime.
Me. Rev. Stat. Ann. tit. 17-A, § 401 (2000).2
Under Maine law, a crime's classification determines its
maximum possible punishment. A Class A crime is punishable by up
to thirty years in prison; a Class B crime, ten years; and a Class
C crime, five years. Id. § 1252(2).
Maine's criminal code also defines the term "structure"
to mean "a building or other place designed to provide protection
for persons or property against weather or intrusion, but does not
include vehicles and other conveyances whose primary purpose is
transportation of persons or property unless such vehicle or
conveyance, or a section thereof, is also a dwelling place." Id.
§ 2(24).
The text of the general burglary provision, id. § 401(1),
under which Giggey was convicted in 2000 and 2004 itself contained
no element involving "the use, attempted use, or threatened use of
physical force against the person of another." U.S.S.G.
§ 4B1.2(a)(1).
2
Maine's burglary statute changed slightly between
Giggey's 2000 and 2004 convictions. Those differences are not
important for our purposes.
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C. Giggey's Federal Sentencing
At his sentencing for the federal arson crime, the
central issue was whether Giggey qualified as a career offender
under the Guidelines. To be a career offender: (1) the defendant
must be "at least eighteen years old at the time the defendant
committed the instant offense of conviction"; (2) the defendant's
instant offense must be "a felony that is either a crime of
violence or a controlled substance offense"; and (3) 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(a).
Only the third requirement was at issue. Giggey was
twenty-seven years old at the time he committed his arson offense,
satisfying the age requirement in § 4B1.1. Additionally, Giggey's
federal offense is a "crime of violence" under the Guideline
because arson is one of the enumerated crimes in § 4B1.2(a)(2).
Thus, at sentencing, the key issue became whether Giggey's two
predicate state burglary convictions were for crimes of violence
under § 4B1.2.
Applying this circuit's per se rule, the district court
treated Giggey's two burglary offenses as career offender
predicates. Giggey, 501 F. Supp. 2d at 245. Giggey's career
offender status set his Guidelines range at 151 to 188 months,
instead of the 63 to 78 month range he would have received if he
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were not a career offender. Ultimately, the district court chose
to vary from the Guidelines range after considering the 18 U.S.C.
§ 3553(a) factors and sentenced Giggey to ninety-five months'
imprisonment.
D. Giggey's Appeal
Giggey timely appealed his sentence to this court. On
June 10, 2008, we chose to hear this case en banc to address two
issues:
(1) to reconsider whether to adhere to the
court's holding in United States v. Fiore, 983
F.2d 1 (1st Cir. 1992), that a conviction
under state law for burglary of a commercial
structure is to be treated automatically as a
crime of violence under the career offender
guideline, U.S.S.G. [§] 4B1[.2](a)(2); and,(2)
if the court does abandon the per se rule
adopted in Fiore, to consider what approach
should be taken in determining whether, in a
particular case, burglary of a commercial
structure falls within the residual clause
embracing "conduct that presents a serious
potential risk of physical injury to another."
We invited supplemental briefing on these issues from the parties
and amici. The Federal Public Defender for the Districts of
Massachusetts, New Hampshire and Rhode Island filed a brief as
amicus curiae.
II.
A. Is Non-Dwelling Burglary Per Se a "Crime of Violence"
Under the Career Offender Guideline?
The question before us is one of the intentions of the
Commission expressed in the Guidelines. Congress authorized the
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Commission to enact the Career Offender Guideline in 28 U.S.C.
§ 994(h), but it left the choice of the language for the Guideline
to the Commission.
The language of the Guideline effective at the time of
Giggey's sentencing was:
The term "crime of violence" means any
offense under federal or state law, punishable
by imprisonment for a term exceeding 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 the use of explosives,
or otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a) (2004).
From the text of § 4B1.2, there are three ways that an
offense can constitute a "crime of violence." First, the crime can
be one that "has as an element the use, attempted use, or
threatened use of physical force against the person of another."
Second, it can be one of the four enumerated offenses in
§ 4B1.2(a)(2). Third, the offense can be, under the residual
clause, one that "otherwise involves conduct that presents a
serious potential risk of physical injury to another."
In determining the Commission's intent in adopting the
Career Offender Guideline, we could apply either of two time-
honored interpretative methods. The first is to look to the text
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of § 4B1.2 itself and, if needed, to the history of the
Commission's actions. See, e.g., Wilson, 168 F.3d at 926-29.
An alternative method is to draw an analogy to how the
courts and Congress have treated identical or nearly identical
language in other recidivist sentencing statutes. See, e.g.,
United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994); United
States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). The Supreme
Court in James noted the analogy between the Career Offender
Guideline and the ACCA. 127 S. Ct. at 1596. Because non-
residential burglary under the Maine statute does not have "the
use, attempted use, or threatened use of physical force against the
person of another" as an element of the offense, the first clause
of § 4B1.2(a) is not involved in our analysis. The question
concerns the Commission's intent as to last two clauses, the
enumerated crimes and the "otherwise" clause.
1. The Text and History of § 4B1.2(a)
We start by considering the text of § 4B1.2(a)'s second
clause, which lists the enumerated offenses. Had the Commission
intended all non-residential burglaries to be per se crimes of
violence, it could have easily said so in the enumerated offenses,
or referred to the definition contained in the ACCA, see 18 U.S.C.
§ 924(e)(2)(B) ("[T]he term 'violent felony' means any crime . . .
that . . . is burglary . . . ."), or used the term "generic
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burglary" and referred to Taylor. But the Commission chose not to
take any of these approaches.
Given these choices, the Commission's restriction in the
enumerated clause to only "burglary of a dwelling" was deliberate.
This deliberateness is also reflected in the application notes
accompanying the Guideline which, at the time of Giggey's
sentencing, explained:
"Crime of violence" includes murder,
manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit,
and burglary of a dwelling. Other offenses
are included as "crimes of violence" if (A)
that offense has as an element the use,
attempted use, or threatened use of physical
force against the person of another, or (B)
the conduct set forth (i.e., expressly
charged) in the count of which the defendant
was convicted involved use of explosives
(including any explosive material or
destructive device) or, by its nature,
presented a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2 cmt. n.1 (2004). "[C]ommentary in the Guidelines
Manual that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson v. United States, 508 U.S. 36, 38 (1993). The
Commission's failure to include any burglary other than "burglary
of a dwelling" in its extensive list of examples in the commentary
to § 4B1.2 suggests that the Commission did not intend non-
residential burglary always to be a "crime of violence."
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The history of the Commission's action relating to
§ 4B1.2 also demonstrates its decision to treat non-dwelling
burglaries differently from burglaries of dwellings. As the
Guideline was originally adopted in 1987, the Commission defined
"crime of violence" merely by reference to 18 U.S.C. § 16. That
statute provided:
The term "crime of violence" means --
(a) an offense that has as an element
the use, attempted use, or threatened use of
physical force against the person or property
of another, or
(b) any other offense that is a felony
and that, by its nature, involves a
substantial risk that physical force against
the person or property of another may be used
in the course of committing the offense.
The original commentary accompanying § 4B1.2 explained:
The Commission interprets ["crime of
violence"] as follows: murder, manslaughter,
kidnapping, aggravated assault, extortionate
extension of credit, forcible sex offenses,
arson, or robbery are covered by this
provision. Other offenses are covered only if
the conduct for which the defendant was
specifically convicted meets the above
definition. For example, conviction for an
escape accomplished by force or threat of
injury would be covered; conviction for an
escape by stealth would not be covered.
Conviction for burglary of a dwelling would be
covered; conviction for burglary of other
structures would not be covered.
U.S.S.G. § 4B1.2 cmt. n.1 (1987) (emphasis added). In 1989, the
Commission amended the text of § 4B1.2 to eliminate its definition
by reference to 18 U.S.C. § 16, replacing it with language modeled
after the ACCA's definition of "violent felony" and enumerating
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"burglary of a dwelling" as a "crime of violence." In the 1989
amendments, the Commission also listed "burglary of a dwelling" as
a "crime of violence" in the commentary accompanying § 4B1.2 but
omitted generic burglary. The relevant text of § 4B1.2 defining
"crime of violence" and its related commentary have remained much
the same since the Commission's 1989 amendments.
In 1992, after Fiore was decided, the Commission
considered amending § 4B1.2 "to include all burglaries, and not
just burglaries of a dwelling." 57 Fed. Reg. 62,832, 62,856 (Dec.
31, 1992). The proposed amendment explained: "In including all
burglaries, this amendment conforms the definition of 'crime of
violence' for the purpose of the career offender guidelines to the
definition required by statute for the armed career criminal
guideline." Id. at 62,856-57. The Commission ultimately rejected
this amendment.
In 1993, the Commission considered amending the
commentary to § 4B1.2 to clarify that "[t]he term 'crime of
violence' includes burglary of a dwelling (including any adjacent
outbuilding considered part of the dwelling). It does not include
other kinds of burglary." 58 Fed. Reg. 67,522, 67,533 (Dec. 21,
1993). The proposed amendment explained:
This amendment clarifies the operation of
§ 4B1.2 (Definitions of Terms Used in Section
4B1.1) and addresses an inter-circuit
conflict. In United States v. Fiore, 983 F.2d
1 (1st Cir. 1992), the First Circuit read
§ 4B1.2 to include all types of burglary
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despite the express listing of burglary of a
dwelling in § 4B1.2(1)(ii). In contrast, the
Fourth Circuit has held that burglary of a
commercial structure is not a "crime of
violence" under § 4B1.2. United States v.
Talbott, 902 F.2d 1129 (4th Cir. 1990).
Similarly, the Tenth Circuit has held that
non-residential burglary is not a crime of
violence under § 4B1.2. United States v.
Smith, [10 F.3d 724 (10th Cir. 1993)].
Id. The Commission ultimately rejected this amendment.
Although we are cautious about drawing conclusions from
the Commission's failure to act, these failures reinforce our sense
that the Commission chose not to equate all burglaries with crimes
of violence.
2. The Analogy to the ACCA as to the Enumerated
Crimes and Residual Clause
If that were the whole story, we could confidently say
that the Commission did not want non-residential burglary always to
be included within the definition of "crime of violence." But the
matter is complicated by the Commission's choice to model its
definition of "crime of violence" after the ACCA's definition of
"violent felony" in 18 U.S.C. § 924(e)(2)(B) and to use identical
language to the ACCA as to the "otherwise" clause.
A time-honored rule for divining intent is that similar
interpretation should be given to language in one source which is
borrowed from another legal source. See Greenwood Trust Co. v.
Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992); see also Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979). Indeed, courts
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typically consult the judicial decisions interpreting the original
source to inform our understanding of the drafters' intent in using
that language in a new context. Greenwood Trust, 971 F.2d at 827.
Here, the Commission borrowed § 924(e)(2)(B)'s definition of
"violent felony" and used it with only minor changes in § 4B1.2.
Because the Career Offender definition of "'crime of violence'
closely tracks [the] ACCA's definition of 'violent felony,'" James,
127 S. Ct. at 1596, it is entirely understandable that this court
and others have turned to that statutory language and the Supreme
Court's interpretation of it in Taylor when interpreting
§ 4B1.2(a)(2)'s residual clause.
The Supreme Court's interpretation of the ACCA in Taylor
must, nonetheless, be put in context. Taylor did not involve a
question of the Commission's intent, but of congressional intent.
495 U.S. at 580. The Taylor issue arose because Congress listed
generic burglary as a "violent felony" under the ACCA, but did not
define "burglary" in the statute. The Supreme Court determined
that the term "burglary" as used in the ACCA was broad enough to
include both residential and non-residential offenses. Id. at 598
("[B]urglary for purposes of a § 924(e) enhancement . . .
[includes] any crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to commit a
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crime."). Taylor did not go farther and mandate the Commission to
define burglary similarly for Guidelines purposes.
It is also a truism that similar language used in
different sources of law may be interpreted differently. United
States v. Granderson, 511 U.S. 39, 50-51 (1994); see also United
States v. Meade, 175 F.3d 215, 221 (1st Cir. 1999) ("[T]he case for
construing one statute in a manner similar to another is weakest
when the two have significant differences."). Here, the
Commission's listing of the more limited "burglary of a dwelling"
instead of using the ACCA's broader term "burglary" or even
Taylor's "generic burglary" affects the interpretation of the
Guideline's "otherwise" clause.
By contrast to the ACCA, the Career Offender Guideline's
enumerated burglary offense is narrower than the parallel provision
in the ACCA, and the Commission is obviously cognizant of this
difference. See U.S.S.G. § 4B1.4 cmt. n.1 (2007) ("It is to be
noted that the definitions of 'violent felony' and 'serious drug
offense' in 18 U.S.C. § 924(e)(2) are not identical to the
definitions of 'crime of violence' and 'controlled substance
offense' used in § 4B1.1 (Career Offender) . . . ."). Furthermore,
the language of § 4B1.2 may well reflect the Commission's view in
light of detailed data and empirical analysis. See James, 127 S.
Ct. at 1596; see also U.S.S.G. ch. 1, pt. A, introductory cmt. n.5
(1987) (stating that in developing the Guidelines, "[the
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Commission] has relied upon estimates of existing sentencing
practices as revealed by its own statistical analyses, based on
summary reports of some 40,000 convictions, a sample of 10,000
augmented presentence reports, the parole guidelines and policy
judgments"). That alone would provide a basis for the Commission
to reach different conclusion as to what it meant by "crime of
violence" than the Court did in answering the question of
congressional intent in Taylor. We think the Commission intended
the scope of § 4B1.2 not to be coextensive with generic burglary,
even as to the "otherwise" clause.3
3. Whether the Commission's Interpretation of
§ 4B1.2 Contravenes Congressional Intent
The government contended for the first time at oral
argument that it was the intent of Congress that non-residential
burglary always be treated as a "crime of violence" under the
Career Offender Guideline and thus Congress constrained any power
by the Commission to decide otherwise. "[E]xcept in extraordinary
circumstances, arguments not raised in a party's initial brief and
3
Our decision to change course affects only the procedure
by which a district court calculates a defendant's sentence. It
does not "prohibit criminal punishment for certain types of primary
conduct" or "forbid the imposition of certain categories of
punishment for a particular class of defendants" and so is not a
retroactive substantive change in the law. Sepulveda v. United
States, 330 F.3d 55, 59 (1st Cir. 2003) (discussing the rule from
Teague v. Lane, 489 U.S. 288 (1989)). It also is not a "watershed"
change in the law any more than United States v. Booker, 543 U.S.
220 (2005), which we held non-retroactive. Cirilo-Muñoz v. United
States, 404 F.3d 527, 532-33 (1st Cir. 2005).
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instead raised for the first time at oral argument are considered
waived." United States v. Pizarro-Berios, 448 F.3d 1, 5 (1st Cir.
2006). We bypass the government's waiver, however, in light of the
en banc nature of these proceeding and the need for clarity.
Even considering the argument, we note that the
government has offered nothing to show that Congress has taken a
position either way on this issue. As to the authorization for the
Career Offender Guideline, Congress in 28 U.S.C. § 994(h) simply
instructed the Commission to:
assure that the guidelines specify a sentence
to a term of imprisonment at or near the
maximum term authorized for categories of
defendants in which the defendant is eighteen
years old or older and . . . has been
convicted of a felony that is . . . a crime of
violence . . . and has previously been
convicted of two or more prior felonies, each
of which is . . . a crime of violence . . . .
Had Congress intended to direct the Commission that non-residential
burglary should be a "crime of violence" under the Career Offender
Guideline, it could have required the Commission to include all
burglary offenses explicitly under § 4B1.2. Until Congress
instructs otherwise, the Commission may -- and did -- take a
different approach as to what is a "crime of violence."
B. What Rule Applies in Place of Our Prior Per Se Approach?
Having abandoned our former per se approach, we now
address what rule applies in its place.
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1. Rejection of Per Se Rule That Non-Residential
Burglary May Never Be a "Crime of Violence"
Giggey suggests that we adopt an opposite per se rule
that non-residential burglary may never be a "crime of violence."
We reject such a rule.4 That is not the Commission's intent, as
4
We recognize that the opposite per se rule has been
adopted by three circuits. In Smith, the Tenth Circuit concluded
that the Commission intended never to include non-residential
burglary under § 4B1.2(a)(2)'s residual clause, relying in part
upon the Commission's failure in 1992 to adopt an amendment that
would have included generic burglary among the Guideline's
enumerated offenses. 10 F.3d at 733. Although the Commission's
treatment of the proposed 1992 amendment is strong evidence that
the Commission did not intend as a per se rule to include all
burglary under § 4B1.2, that is only half of the story. Smith did
not have the benefit of the Commission's rejection of the proposed
1993 amendment that would have explicitly excluded non-residential
burglary from § 4B1.2's definition of a "crime of violence." This
circuit adopted its own per se rule in Fiore before the 1992 and
1993 proposed amendments.
Likewise, in Spell, 44 F.3d at 938, the Eleventh Circuit
held that "[b]y explicitly including the burglary of a dwelling as
a crime of violence, the Guidelines intended to exclude from the
violent crime category those burglaries which do not involve
dwellings and occupied structures." Based upon the Career Offender
Guideline's amendment history and the Commission's choice to model
§ 4B1.2's definition of "crime of violence" after the ACCA's
definition of "violent felony," we think the Commission's
intentions are not so clear.
Finally, in Harrison, 58 F.3d at 119, the Fourth Circuit
determined that non-residential burglaries are per se excluded from
§ 4B1.2's definition of a "crime of violence." Yet, in our view,
the Commission's failure to adopt the proposed 1993 amendment that
would have explicitly excluded non-residential burglary still
leaves open the possibility that certain non-residential burglary
offenses could qualify as a "crime of violence" under the Career
Offender Guideline. An earlier case from the Fourth Circuit,
United States v. Talbott, 902 F.2d 1129, 1133 (4th Cir. 1990),
relied on the original 1987 version of the commentary accompanying
§ 4B1.2 to reach the same result. Although the original commentary
to § 4B1.2 may have supported Talbott's holding, see U.S.S.G.
§ 4B1.2 cmt. n.1 (1987) ("Conviction for burglary of a dwelling
would be covered; conviction for burglary of other structures would
-22-
evident from the language and history of the Guideline. Further,
such a rule would be inconsistent with the analysis of the question
under the Guideline's residual "otherwise" clause. And it would
offend common sense. Non-residential burglary may well present "a
serious potential risk of physical injury to another."
Notably absent from the Career Offender Guideline's text
and commentary is an express exclusion for non-residential
burglary. Had the Commission intended non-residential burglary
never to be counted as a "crime of violence" it could have easily
said so, e.g. § 4B1.2 cmt. n.1 ("'Crime of violence' does not
include the offense of unlawful possession of a firearm by a felon,
unless the possession was of a firearm described in 26 U.S.C.
§ 5845(a)."), but it did not.
Indeed, as we have said, the Commission considered in
1993 -- and ultimately rejected -- a proposal to amend the
commentary to § 4B1.2 that would have explicitly excluded non-
residential burglary from the Guideline's definition of a "crime of
violence." See 58 Fed. Reg. at 67,533 (proposing an additional
paragraph in the commentary following § 4B1.2 stating: "The term
'crime of violence' includes burglary of a dwelling (including any
adjacent outbuilding considered part of the dwelling). It does not
include other kinds of burglary.").
not be covered."), we cannot reach the same outcome today in view
of the Guideline's current commentary, which contains no express
exclusion for non-residential burglary.
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2. Adoption of Categorical Approach to Interpret
§ 4B1.2(a)(2)'s Residual Clause
In determining whether a prior offense is a "violent
felony" under the ACCA, the Supreme Court in a series of cases has
consistently adhered to a categorical approach. See Begay, 128 S.
Ct. at 1584; James, 127 S. Ct. at 1594; Shepard, 544 U.S. at 17;
Taylor, 495 U.S. at 602. The categorical approach requires that
federal courts "look only to the fact of conviction and the
statutory definition of the prior offense." James, 127 S. Ct. at
1594 (quoting Shepard, 544 U.S. at 17). Federal courts "do not
generally consider the 'particular facts disclosed by the record of
conviction.'" Id. (quoting Shepard, 544 U.S. at 17). "That is, we
consider whether the elements of the offense are of the type that
would justify its inclusion within the residual provision, without
inquiring into the specific conduct of this particular offender."
Id. (emphasis in original).
The Commission, in our view, intended that this
categorical approach be utilized in interpreting the Career
Offender Guideline, by using identical language to the ACCA in the
residual clause and through its commentary.5 This has been our
5
In particular, the Commission's advice that the
Guideline's residual clause includes an offense if "by its nature,
[it] present[s] a serious potential risk of physical injury to
another," U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added), directs the
sentencing judge to consider the nature of the offense of
conviction. Furthermore, the Commission instructed sentencing
judges to consider the conduct "expressly charged." Id. The
Commission added the "expressly charged" language to the commentary
-24-
consistent approach in post-Shepard cases where the predicate
crimes were not burglary offenses. See United States v. Williams,
529 F.3d 1, 4 (1st Cir. 2008).
The other circuits uniformly apply a categorical approach
when considering whether non-burglary crimes are included under
§ 4B1.2(a)(2)'s residual clause.6
accompanying § 4B1.2 in 1991 to "clarif[y] that the application of
§4B1.2 is determined by the offense of conviction (i.e., the
conduct charged in the count of which the defendant was
convicted)." U.S.S.G. app. C, amend. 433. Other circuits have
recognized that the 1991 amendment repudiated earlier cases
applying a fact-intensive, case-by-case approach to determine
whether a particular defendant's crime is a "crime of violence."
See United States v. Walker, 393 F.3d 819, 821 (8th Cir. 2005),
abrogated on other grounds by United States v. McCall, 439 F.3d 967
(8th Cir. 2006) (en banc); United States v. Arnold, 58 F.3d 1117,
1123 (6th Cir. 1995); United States v. Fitzhugh, 954 F.2d 253, 255
(5th Cir. 1992); United States v. Johnson, 953 F.2d 110, 113 (4th
Cir. 1991) ("[T]he revised commentary appears to disfavor a
wideranging inquiry into the specific circumstances surrounding a
conviction.").
6
See United States v. Alexander, 543 F.3d 819, 823 (6th
Cir. 2008); United States v. Savage, 542 F.3d 959, 964 (2d Cir.
2008); United States v. Archer, 531 F.3d 1347, 1350 (11th Cir.
2008); United States v. Curtis, 481 F.3d 836, 838 (D.C. Cir. 2007);
United States v. Siegel, 477 F.3d 87, 90 (3d Cir. 2007); United
States v. Garcia, 470 F.3d 1143, 1148 (5th Cir. 2006); United
States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006); United
States v. Kendrick, 423 F.3d 803, 809 (8th Cir. 2005); United
States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002); United States v.
Pierce, 278 F.3d 282, 286 (4th Cir. 2002); United States v. Zamora,
222 F.3d 756, 764 (10th Cir. 2000).
-25-
Those circuits which have rejected either per se rule
regarding non-residential burglary convictions also apply a
categorical approach to burglary crimes.7
Under the categorical approach, it is a question of
federal law whether the state statute of conviction meets the
definition in the sentencing provision's residual clause --
"otherwise involves conduct that presents a serious potential risk
of physical injury to another." United States v. Peterson, 233 F.3d
101, 107 (1st Cir. 2000). That federal law conclusion does not turn
on what the individual defendant actually did, but on comparing the
elements of the state crime against the residual "otherwise" clause
and drawing some conclusions. Because the underlying state crimes
may vary, the use of the categorical approach to non-dwelling
burglaries may produce different results in different states. For
example, applying the categorical approach, the Seventh and Ninth
Circuits have found certain prior state law burglary convictions not
to be crimes of violence under the Guideline's residual clause,
depending upon the statutory elements of the offense charged. See
Hoults, 240 F.3d at 652; Matthews, 374 F.3d at 880.
The government argues that there is a loss to national
uniformity in the application of the Career Offender Guideline if
we abandon our per se approach. That is true to a certain extent,
7
See Matthews, 374 F.3d at 877; United States v. Turner,
305 F.3d 349, 351 & n.3 (5th Cir. 2002); Hoults, 240 F.3d at 650;
Wilson, 168 F.3d at 928-29.
-26-
but not persuasive. That loss results, however, from the choice the
Commission made. The government made very similar arguments in
Shepard, which were rejected. 544 U.S. at 21-23. It is not
uncommon for federal sentencing to be affected by the states'
various articulations of their own criminal statutes. E.g.,
U.S.S.G. § 4A1.1 (making the calculation of criminal history
category dependent upon prior state sentencing decisions). Indeed,
"[t]o the extent that enhancement provisions are 'intended to
supplement the States' law enforcement efforts against career
criminals,' it is more fundamentally fair to act in ways 'consistent
with the prerogatives of the States in defining their own
offenses.'" United States v. Damon, 127 F.3d 139, 146 (1st Cir.
1997) (citation omitted) (quoting Taylor, 495 U.S. at 581, 582)
(internal quotation marks omitted).
The Supreme Court has provided some rules as to how the
categorical approach is to be applied. There is a procedural
aspect, which limits the sources of information to which a federal
sentencing court may look. In all cases, the sentencing court looks
at the statutory definition of the prior offense. There is a
restricted list of other documents8 to which a court may look in "a
8
For convictions resulting from a jury verdict, these
additional sources include the charging instruments and jury
instructions. Taylor, 495 U.S. at 602. For guilty pleas, the
federal sentencing court may review the "charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented." Shepard, 544 U.S. at 16.
-27-
narrow range of cases." Shepard, 544 U.S. at 17 (quoting Taylor,
495 U.S. at 602). As Taylor held: "This categorical approach,
however, may permit the sentencing court to go beyond the mere fact
of conviction in a narrow range of cases where a jury was actually
required to find all the elements of generic burglary." 495 U.S.
at 602. This includes both states with burglary statutes that
provide "a broader definition of burglary," Shepard, 544 U.S. at 17,
and states with statutes not labeled as burglary statutes, Taylor,
495 U.S. at 599. Taylor gave as an example "a State whose burglary
statutes include entry of an automobile as well as a building," id.
at 602, and permitted the court to look to "the indictment or
information and jury instructions," id., to see if "the defendant
was charged only with a burglary of a building, and that the jury
necessarily had to find an entry of a building to convict," id.; see
also Shepard, 544 U.S. at 17; Damon, 127 F.3d at 142.
Both Taylor and Shepard rejected a fact-specific
approach, saying "the practical difficulties and potential
unfairness of a factual approach are daunting." Shepard, 544 U.S.
at 20 (quoting Taylor, 495 U.S. at 601). The approach adopted
avoids "subsequent evidentiary enquiries into the factual basis for
the earlier conviction." Id. Shepard articulated a strong interest
in avoiding collateral trials and confining the inquiry to certain
judicial records. Id. at 23.
-28-
Under the categorical approach, a federal sentencing
court may not create a series of federal subcategorizations to fit
the facts of a particular case. We reject the argument made by the
Federal Defender Office that the federal court should go beyond the
state definition of the offense of conviction to create
subcategories based on facts, such as whether the burglary was
during business versus non-business hours. If the state statute
does not contain such a distinction, the federal court may not
create one for Career Offender Guideline purposes.
Recent interpretative guidance on the categorical
approach comes from James and Begay. James holds that attempted
burglary poses the same risks of physical injury to another as the
completed crime. 127 S. Ct. at 1595. To define the elements of a
particular offense, James also reinforces that a court must consider
the statutory language on its face of the prior crime of conviction
and the authoritative interpretations of it from the state's courts
at the outset of its analysis under the categorical approach. Id.
at 1594.
Under James, the sentencing court looks to whether that
risk is comparable to its closest analog among the enumerated
offense in the Guideline, 127 S. Ct. at 1594 -- here, "burglary of
dwelling." James spoke of this analysis as being probabilistic and
stressed that not "every conceivable factual offense covered by a
statute must necessarily present a serious potential risk of injury
-29-
before the offense can be deemed a violent felony." Id. at 1597
(citing Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)).
"Rather, the proper inquiry is whether the conduct encompassed by
the elements of the offense, in the ordinary case, presents a
serious potential risk of injury to another." Id. James was thus
concerned with the degree of risk posed by the state crime
considered in the abstract.
In Begay, the court added a refinement: the predicate
offense must be at least "roughly similar, in kind as well as in
degree of risk," to the enumerated crimes to conclude that it is
within the intended reach of the residual clause. 128 S. Ct. at
1585. Begay assumed that the state offense of driving under the
influence ("DUI") did "present[] a serious potential risk of
physical injury to another" within the meaning of the ACCA, but the
Court held that DUI is not similar in kind to the enumerated crimes
and so does not fall within the ACCA's residual clause. Id. at
1588.
Neither the comparative degree of risk analysis nor the
similarity in kind inquiry within the categorical approach will
always lead to clear answers. It is quite possible that using the
categorical analysis will turn on fine distinctions. See, e.g.,
Peterson, 233 F.3d at 108 (finding that Rhode Island's breaking and
entering statute was not a "violent felony" under the ACCA because,
unlike burglary as defined in Taylor, the breaking and entering
-30-
crime had no requirement that the defendant intended to commit a
crime inside the structure).
The categorical approach, as we have noted before, will
produce results which may seem to the public to be anomalous.
Damon, 127 F.3d at 145. Some offenders who in fact committed a
prior violent offense under a statute whose elements do not involve
the risk of violence will not be found to be career offenders;
whereas others who in fact committed a non-violent offense under a
statute whose elements do involve the risk of violence will be found
to be career offenders. The new flexibility given to sentencing
judges under the advisory Guidelines can be used to consider such
anomalies when determining the defendant's actual sentence.
In this case, we did not invite and have not received
briefs on the application of the categorical approach, including the
recent James and Begay refinements, to the crimes of conviction
under the Maine statute. That issue is remanded to the district
court for decision after full briefing. We express no view now as
to any sentence which Giggey may ultimately receive.
III.
We vacate Giggey's sentence and remand for resentencing
consistent with this opinion.
-Concurring Opinions Follow-
-31-
TORRUELLA, Circuit Judge (Concurring in the opinion and
judgment). I concur in Chief Judge Lynch's opinion which I believe
states the law appropriately under the present circumstances. I
also register my agreement with the concerns raised by Judge Lipez
in his concurrence regarding how this approach will be applied.
However, I believe that this en banc case is not the appropriate
forum to address these issues.
-Concurring Opinion Follows-
-32-
LIPEZ, Circuit Judge, concurring in the judgment. I
agree with the majority that we should reject Fiore's rule that all
non-residential burglaries are per se crimes of violence within the
meaning of the Career Offender Guideline. I also agree that it is
far from clear that the Commission intended the opposite per se
rule, which would require excluding all non-residential burglaries
from the group of career offender predicate offenses. Furthermore,
the majority is correct that the opposite per se rule might offend
common sense. Certain kinds of non-residential burglaries may well
"present[] a serious potential risk of physical injury." All of
this supports the adoption of a middle ground allowing district
courts to decide whether the particular kind of non-residential
burglary at issue is a crime of violence within the meaning of the
residual clause.
The more difficult question is how district courts should
make such judgments. Regrettably, the majority's decision leaves
that issue in a state of uncertainty. After declaring that courts
should use the categorical approach to distinguish between non-
residential burglaries, the majority also states that a federal
court should not "go beyond the state definition of the offense of
conviction to create subcategories based on facts, such as whether
the burglary was during business versus non-business hours."
However, if the defendant was convicted under a broadly worded
burglary statute comparable to the generic burglary statute
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described by the Supreme Court in Taylor v. United States, 495 U.S.
575, 298 (1990) -- "an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit
a crime" -- how is the court to determine if the non-residential
burglary resulting in a conviction under that statute "present[ed]
a serious potential risk of physical injury"? May it consider the
specific facts of the crime set forth in the limited set of
documents that the majority acknowledges may be consulted in the
categorical approach? In rejecting factual sub-categories, the
majority appears to say no. If that appearance is deceiving, and
the majority does think that some non-element facts may be examined,
I do not see how sub-categories can be avoided. As a matter of the
common sense invoked by the majority, certain facts (such as the
non-residential structure's proximity to a dwelling or whether it
was occupied at the time of the crime) will indicate the serious
potential risk of physical injury contemplated by the residual
provision, thereby creating factual sub-categories of non-
residential burglaries.
The Ninth Circuit has allowed such sub-categorization by
considering whether a burglarized non-residential structure was
physically occupied at the time of the offense. See United States
v. Matthews, 374 F.3d 872, 879-80 (9th Cir. 2004); United States v.
Williams, 47 F.3d 993, 995 (9th Cir. 1995). The Seventh Circuit
suggested in United States v. Hoults, 240 F.3d 647, 652 (7th Cir.
-34-
2001), that non-residential burglaries are not crimes of violence
unless particularized, case-by-case facts indicate otherwise.
Inevitably, as I have noted, such fact-based distinctions between
non-residential burglaries would lead over time to sub-categories
of violent and non-violent non-residential burglaries.
To some extent, I understand the majority's reluctance to
endorse fact-based sub-categories of non-residential burglaries.
Classically, the categorical approach of Taylor, applied by the
Supreme Court in cases like James v. United States, 127 S. Ct. 1586
(2007), and Begay v. United States, 128 S. Ct. 1581 (2008), focuses
on the elements of a state-defined statute in deciding whether the
crime at issue falls within the residual clause of the Career
Offender Guideline or the Armed Career Criminal Act ("ACCA"). The
facts underlying a particular conviction may be considered only to
determine if the defendant committed a predicate offense where the
statute at issue is broadly written to encompass both predicate and
non-predicate crimes. Shepard v. United States, 544 U.S. 13, 16
(2005). By contrast, the creation of sub-categories of
characteristics for distinguishing between types of non-residential
burglaries requires examination of non-element facts to decide if
the offense of conviction is a crime of violence within the meaning
of the residual clause.
But I am not convinced that the Supreme Court's
categorical approach to predicate offenses precludes such an
-35-
analysis. Two primary concerns underlie the categorical analysis
articulated in cases like Taylor and Shepard. First, the Supreme
Court concluded that Congress opted for a "general approach of using
uniform, categorical definitions for predicate offenses." Taylor,
495 U.S. at 591. Therefore, "'the meaning of the federal statute
should not be dependent on state law.'" Id. at 592 (quoting United
States v. Turley, 352 U.S. 407, 411 (1957)). Second, the Court
found no evidence that Congress had "meant to adopt an approach that
would require the sentencing court to engage in an elaborate
factfinding process regarding the defendant's prior offenses."
Taylor, 495 U.S. at 601. For that reason, the Supreme Court
concluded in Shepard that the inquiry into
whether a plea of guilty to burglary defined
by a nongeneric statute necessarily admitted
elements of the generic offense is limited to
the terms of the charging document, the terms
of a plea agreement or transcript of a
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.
544 U.S. at 26. If a federal district court confined itself to
these documents for the purpose of determining whether a particular
kind of non-residential burglary met the requirements of the
residual clause of the ACCA or the Career Offender Guideline, it is
difficult to see why such an approach would be contrary to the
categorical approach formulated by the Supreme Court.
-36-
Moreover, the language of the residual clause itself
seems to acknowledge the relevance of conduct underlying an offense
of conviction. The provision defines "crime of violence" as any
offense which either 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." U.S.S.G. § 4B1.2
(emphasis added). Thus, in direct contrast to the first part of the
provision, which focuses on the elements of an offense, the residual
clause focuses on the conduct involved.
I acknowledge that an application note to the Career
Offender Guideline explains that such conduct must be "expressly
charged" in the count of which the defendant was convicted.
U.S.S.G. § 4B1.2, cmt. n.1. This language suggests that any conduct
of a defendant considered for the purpose of a crime-of-violence
determination under the Career Offender Guideline must be set forth
in a charging document. A reference to that conduct in a plea
agreement or the transcript of a change of plea proceeding might not
be relevant to the crime-of-violence determination. Nevertheless,
even this limited reference to the conduct expressly charged
suggests that such conduct may be considered in this crime-of-
violence determination even if such consideration has the effect of
creating a sub-category of non-residential burglaries.
-37-
Indeed, we have precedent in this circuit that seems to
contemplate the creation of sub-categories in the context of the
Career Offender Guideline. In United States v. Sacko, 178 F.3d 1,
2 (1st Cir. 1999), we considered a statutory rape law that protected
males and females between the ages of fourteen and sixteen. As we
explained in an order denying a petition for rehearing en banc in
that case, “this court has been willing on the authority of certain
language in Taylor to consider statutory rape statutes as if they
encompassed different subordinate offenses depending on the ages of
the participants, at least where the specific ages could be
ascertained by resort to permissible sources.” Id. at 7. This
precedent makes the majority's outright rejection of sub-
categorization even more puzzling. Exactly what is the majority
asking the district court to do in drawing distinctions among non-
residential burglaries if sub-categorization is off the table? I
cannot answer that question. I anticipate that the district courts
will have the same problem.
The difficulty posed by the majority's prohibition on
judicial sub-categorization is less acute where, as here, the
burglary statute under consideration explicitly draws distinctions
between types of burglaries based, at least in part, on the
potential for violence. At the time of Giggey's conviction for the
state burglaries at issue here, the Maine provision defined burglary
as a Class A crime if the defendant was armed with a firearm and a
-38-
Class B crime if the defendant carried any other dangerous weapon,
burglarized a dwelling, intentionally inflicted physical harm, or
intended to inflict physical harm. The statute grouped all other
variants of the crime together, simply stating that "[a]ll other
burglary is a Class C crime."
Giggey's burglaries were all Class C crimes. Thus, the
district court presumably could focus solely on that subsection and
consider whether, as a matter of federal law, "the conduct
encompassed by the elements of the offense, in the ordinary case,
presents a serious potential risk of injury to another." James, 127
S. Ct. at 1597. Because the Maine provision seemingly excludes many
of the classic indicia of violence – including use of a firearm or
other dangerous weapon and infliction of physical harm – the
district court in all likelihood would find that a conviction under
the "all other burglary" provision of Maine's burglary statute would
not be a crime of violence within the meaning of the Career Offender
Guideline. Indeed, with the creation of sub-categories of non-
residential burglaries based on non-element facts off the table, I
do not know what else the district court could do on remand.
But if the analysis is ultimately that simple, we should
just do it ourselves, or at least invite the briefing that would
allow us to give the district court some meaningful guidance on the
application of the categorical approach to non-residential
burglaries. If we had done that, we might have concluded that the
-39-
majority's rejection of sub-categories of non-residential burglaries
based on facts was premature. Instead, the majority has failed to
work through the implications of our sensible change in the law,
relying instead on the district court to solve the puzzle we have
created. That is an unwise confusion of roles.
-40-
United States v. Giggey
Court: Court of Appeals for the First Circuit
Date filed: 2008-12-22
Citations: 551 F.3d 27
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