United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 1997 Decided December 23, 1997
No. 96-3113
United States of America,
Appellee
v.
William D. Hill,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00312-01)
Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for appellant, with whom A.J. Kramer,
Federal Public Defender, was on the briefs. Lisa B. Wright,
Assistant Federal Public Defender, entered an appearance.
Carolyn E. Becker, Assistant United States Attorney, ar-
gued the cause for appellee, with whom Eric H. Holder, Jr.,
United States Attorney at the time the brief was filed, John
R. Fisher, Thomas C. Black, and Robert A. Spelke, Assistant
United States Attorneys, were on the brief.
Before: Edwards, Chief Judge, Wald and Randolph,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Concurring opinion filed by Circuit Judge Randolph.
Wald, Circuit Judge: Appellant William D. Hill was arrest-
ed by police after he fled from his car carrying a gun
following a traffic stop for allegedly failing to display a
Vehicle Identification Number ("VIN") on the temporary tags
of his recently purchased car. In the district court, Hill filed
a motion to suppress the handgun discovered by police in the
yard where he threw it after fleeing the car, arguing that it
was the fruit of an illegal search. The district court denied
the motion, and Hill entered a conditional plea of guilty to one
count of unlawful possession of a firearm by a felon in
violation of 18 U.S.C. s 922(g)(1)(1994). The district court
imposed a sentence of 96 months in prison followed by a
three-year term of supervised release. Hill now seeks review
of the district court's denial of suppression of the handgun
and challenges the sentence imposed by the court. We hold
that the district court failed to apply the correct legal stan-
dard in determining that the traffic stop was legal and
therefore denied Hill's motion to suppress on an improper
ground. Additionally, we hold that the district court imper-
missibly relied solely on the indictment in concluding that
Hill's prior conviction for attempted robbery constituted a
"crime of violence" and thus improperly set Hill's base sen-
tencing offense level at 24. Accordingly, we reverse the
conviction and remand for further proceedings consistent
with this opinion.
I. Background
On the evening of November 7, 1995, Hill was traveling
southbound on 11th Street near Irving Street in Northwest
Washington, D.C. in a car that he had recently purchased.
The car was driven by a friend of Hill's; Hill was in the front
passenger seat and two additional passengers were in the
back. At approximately 9:20 p.m., two officers in a patrolling
police car observed the car, which one of the officers later
testified did not have a VIN on its temporary D.C. tags. The
police activated their emergency lights to stop the car, but
the car continued for one and a half blocks before stopping.
At the suppression hearing, the arresting officer testified
that after the car stopped, Hill jumped out of the passenger
side of the car, took a few steps, and then slipped on the wet
ground. The officer saw a silver handgun fall from Hill's
waist area and land in front of him. According to the officer,
Hill picked up the gun and ran down the street into an alley.
After a brief chase during which the police observed Hill
throw the gun over a high fence, the police seized Hill. They
later found the gun in a yard near the alley in which they
apprehended Hill. During the police officers' chase of Hill, the
car drove off with the remaining passengers. As a result, the
police did not have an opportunity to verify the temporary tag
number or the absence of a VIN on the tags. See Transcript
of Motions Hearing and Plea Agreement at 12-24, 31-32
(Mar. 25, 1996) ("Tr.").
Harry Proctor, a records historian for the D.C. Department
of Motor Vehicles, testified at Hill's trial that Department
records indicated that a set of temporary tags were issued to
the auto dealer that sold the car to Hill, and then to Hill when
he purchased the car.1 Tr. at 40-42. Hill testified that the
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1 Apparently, Hill did not provide the car dealership with the
identification ordinarily required of a new owner. According to
Proctor, the dealer is supposed to get identification from the new
owner and include that person's driver's license number on the
temporary registration. Instead, the registration for the temporary
tag submitted by the car dealership that sold the Chevy to Hill
included the driver's license number of Darrin Gilliam, a friend of
Hill's who accompanied him to the dealership. In addition, the
application for title, which must contain the social security number
of the owner, contained a number that "came up no record" of a
driver's license. (In the District of Columbia, a person's driver's
temporary tags issued in his name contained a VIN when
they were issued and that the VIN was on the tags on the
night of the arrest. Tr. at 72, 82-83. The tags contained a
VIN at the time they were entered into evidence by Hill's
counsel. See Appendix for Appellant at 15-16 (Defendant's
Exhibit 2) ("App.").
Hill filed a motion to suppress the handgun on the grounds
that it was the fruit of an unlawful traffic stop. The district
court denied the motion after a hearing. Hill then entered a
conditional guilty plea to Count One of the grand jury's
indictment--which charged Hill with possession of a firearm
after having been convicted of a felony in violation of 18
U.S.C. s 922(g)(1)--while reserving the right to appeal the
court's adverse suppression ruling. The court thereafter
ordered that a presentencing report be prepared.
The presentencing report recommended an offense level of
24 based on the fact that Hill had two prior felony convictions
that qualified as a "crime of violence" under U.S.S.G. s 2k2.1
(1997). At the sentencing hearing, defense counsel argued
for an offense level of 20, noting that one of the convictions--
for attempted robbery under D.C. law--should not count as a
"crime of violence" because it was remote in time and did not
have as an element the use of physical force. The court
found that Hill's conviction for attempted robbery qualified as
a "crime of violence" under U.S.S.G. s 2k2.1 and determined
on that basis that Hill's offense level was 24. Accordingly,
the court sentenced Hill to 96 months in prison, followed by a
three-year term of supervised release.
II. Analysis
A. The Motion to Suppress
Hill filed a motion to suppress the handgun discovered by
police after the stop of Hill's car arguing that its seizure was
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license number is generally identical to his or her social security
number.) Moreover, although the D.C. government usually makes
a copy of identification for its files, there was no copy of any
identification belonging to Hill with the registration documents.
See Tr. at 50-64.
the fruit of an unlawful stop. The district court denied the
motion to suppress on the ground that the police officer that
stopped Hill's car believed that he had violated the traffic
laws. Hill challenges the district court's decision, claiming
that the district court applied a subjective, rather than objec-
tive, reasonableness test to the actions of the officers in this
case. We agree that the district court failed to make any
findings regarding the objective reasonableness of the offi-
cer's decision to stop Hill's car, and we therefore reverse the
district court's denial of the motion to suppress the handgun
and remand for consideration of whether it was objectively
reasonable for the officers that observed Hill's car to conclude
that a traffic violation had occurred.2
The Supreme Court has held that "[a]n automobile stop is
... subject to the constitutional imperative that it not be
'unreasonable' under the circumstances." Whren v. United
States, 116 S. Ct. 1769, 1772 (1996). It is well-settled that in
evaluating the reasonableness of a particular traffic stop, "it
is imperative that the facts be judged against an objective
standard: would the facts available to the officer at the
moment of the seizure or the search 'warrant a man of
reasonable caution in the belief' that the action taken was
appropriate?" Terry v. Ohio, 392 U.S. 1, 21-22 (1968). In
other words, reasonable suspicion to stop and search a motor-
ist depends on "the events which occurred leading up to the
stop or search, and then the decision whether these historical
facts, viewed from the standpoint of an objectively reasonable
police officer, amount to reasonable suspicion." Ornelas v.
United States, 116 S. Ct. 1657, 1661-62 (1996). The constitu-
tional reasonableness of a traffic stop therefore does not
depend on the actual motivations of the individual officers
involved. See Whren, 116 S. Ct. at 1774. Instead, the
relevant determination is whether the "circumstances, viewed
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2 In reviewing a denial of a motion to suppress, "[w]e review the
trial court's findings of fact under a clearly erroneous standard and
its legal conclusions de novo." See United States v. Garrett, 959
F.2d 1005, 1007 (D.C. Cir. 1992).
objectively, justify" the action taken. Scott v. United States,
436 U.S. 128, 138 (1978); see Whren, 116 S. Ct. at 1774.
Here, the district court denied Hill's motion to suppress the
gun because it found that the police officer that stopped the
car believed that the temporary tags on the car did not
contain a VIN. At the district court hearing, Hill submitted
the temporary tags and bill of sale for his car, both of which
contained a VIN. In addition, Hill testified that he had seen
the dealer write the VIN on the temporary tags, that he had
seen the dealer put the tags on his car, that the tags had not
been tampered with, and that the tags were on his car the
night of the stop. See Tr. at 69, 72, 82-83, 86. There was,
however, testimony by a police officer indicating that he
thought that the tags might have been altered. See Tr. at 25.
Faced with this conflicting evidence, the court concluded that
it was impossible to determine whether Hill's temporary tags
actually had a VIN on them at the time Hill's car was
stopped. The court therefore decided to base its suppression
decision on the testimony of the parties involved in the stop,
choosing to credit the officer's testimony that "he believed
that the car did not have a VIN number," see Tr. at 136, over
the testimony of Hill. The court explained:
... The evidence that I have heard indicates that a
police officer believed that a vehicle was using the streets
of the District of Columbia and that vehicle had tempo-
rary tags on it and that the officer did not see a VIN
number.
I can't say whether the tags had a VIN number on
them or not. But I know I can accept as true the
officer's testimony that he believed that the car did not
have a VIN number.
Id.
We agree with Hill that the district court failed to apply
the correct test to the officer's decision to stop Hill's car.
The above-quoted portion of the transcript indicates that the
district court applied a subjective reasonableness test to the
officer's decision to stop Hill's car, rather than the objective
reasonableness test that is required in such situations. The
court noted that it accepted the officer's testimony that "he
believed that the car did not have a VIN number," but the
court never explicitly stated whether or not this belief was
objectively reasonable. Indeed, the record before us contains
no information regarding the conditions under which the
officer first observed Hill's car--e.g., how far away the police
cruiser was from Hill's car at the time the officer first
observed the tags, the quality of the lighting, how quickly
Hill's car was moving, etc.--and whether, given those condi-
tions, it was objectively reasonable for the officer to conclude
that the tags were missing a VIN.3 We therefore reverse the
district court's denial of Hill's motion to suppress and remand
to the district court for a determination of whether it was
objectively reasonable for the officer that observed Hill's car
to conclude that a traffic violation had occurred. See United
States v. Williams, 951 F.2d 1287, 1291 (D.C. Cir. 1991)
(noting that remand to the district court is appropriate where
neither the legal reasoning nor factual findings supporting
the denial of a motion to suppress are apparent because it is
not clear "[o]ne, that the district court asked the right legal
questions in making its ruling; two, that it actually weighed
the evidence bearing on the facts needed to answer them");
see also United States v. Dale, 991 F.2d 819, 840 (D.C.Cir.)
(per curiam), cert. denied, 510 U.S. 1030 (1993) (noting that
court had previously remanded to the district court for clarifi-
cation of its legal conclusions and factual findings); United
States v. Jordan, 951 F.2d 1278, 1283 (D.C. Cir. 1991) (re-
manding for clarification of factual finding), appeal after
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3 It was not necessary for the court to determine whether or not a
VIN actually appeared on Hill's temporary tags at the time of the
traffic stop. Even if the court assumed that, contrary to the
testimony of the police officer, the tags contained a VIN at the time
of the stop, the stop was still permissible as long as the officer's
belief that the VIN was missing was objectively reasonable. See
Hill v. California, 401 U.S. 797, 804 (1971) (noting that "sufficient
probability, not certainty, is the touchstone of reasonableness under
the Fourth Amendment"); United States v. Glover, 725 F.2d 120,
122 (D.C. Cir.), cert. denied, 466 U.S. 905 (1984) (quoting Hill v.
California, 401 U.S. 797).
remand, 958 F.2d 1085 (D.C. Cir. 1992); United States v.
Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983), cert. denied, 465
U.S. 1037 (1984) (noting that " 'where the correctness of the
lower court's decision depends upon a determination of fact
which only a [fact-finder] could make but which has not been
made, the appellate court cannot take the place of the [fact-
finder]' ") (citation omitted). The district court may hold a
new hearing to make the appropriate factual findings and to
determine whether the stop complied with the relevant legal
and constitutional standards. See United States v. Hodge, 19
F.3d 51, 53 (D.C. Cir. 1994) (remanding to district court for a
new evidentiary hearing on a motion to suppress).
If the district court concludes that under the circumstances
it was objectively reasonable for the police to believe that the
car did not have a VIN on its temporary tags, we agree with
the government that the absence of the VIN did " 'warrant a
man of reasonable caution in the belief' " that a traffic stop
was justified. Terry, 392 U.S. at 22. The District of Colum-
bia traffic regulations require that a VIN be placed on all
temporary tags. The D.C. Municipal Regulations state that
"[s]pecial use identification tags shall contain ... [a] descrip-
tion setting forth the vehicle's trade name, model, year as
given by the manufacturer, body type, and vehicle identifica-
tion number." 18 D.C. Mun. Reg. s 426.11 (1995). It is
irrelevant that under the D.C. municipal regulations, the car
dealer is required to "prepare a special use certificate by
printing or typing all of the information required on the
certificate," D.C. Mun. Reg. s 506.7 (1995). Regardless of
whom the regulations are directed to, the absence of a VIN
on temporary tags can provide a sufficient reason to "suspect
a violation of traffic laws" and therefore to stop the car for
further investigation. United States v. Mitchell, 951 F.2d
1291, 1295 (D.C. Cir. 1991), cert. denied sub. nom. Zollicoffer
v. United States, 504 U.S. 924 (1992). Indeed, we have
repeatedly found that " '[e]ven a relatively minor offense that
would not of itself lead to an arrest can provide a basis for a
stop for questioning and inspection of the driver's permit and
registration.' " Id. (citations omitted).4
B. Sentencing
Hill claims that the base sentencing offense level recom-
mended in the presentencing report and adopted by the
district court below is incorrect. The base sentencing offense
level, Hill contends, should be set at 20, rather than at 24,
because his 1976 conviction for attempted robbery was incor-
rectly designated as a "crime of violence." In particular, Hill
argues that the offense of attempted robbery in D.C. is broad
and includes non-violent offenses and therefore cannot consti-
tute a "crime of violence" for purposes of setting Hill's base
offense level under the sentencing guidelines. In response,
the government argues that the substance of the indictment
to which Hill pled guilty (albeit to a lesser included offense)
makes clear that the offense was properly classified as a
crime of violence. Contrary to the government's claim, we
find that when a defendant pleads guilty to a lesser included
offense of the offense charged in the indictment and the
statutory definition of the lesser offense allows conviction for
conduct that does not meet the definition of a "crime of
violence," the indictment alone does not provide a sufficient
basis for designating an offense a "crime of violence." We
therefore reverse the district court's decision to set Hill's
base sentencing level at 24 and remand for reconsideration of
whether Hill's 1976 conviction for attempted robbery was
properly classified a "crime of violence." 5
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4 This conclusion is consistent with decisions of this and other
courts holding that expired license tags, Pennsylvania v. Mimms,
434 U.S. 106, 109 (1977) (per curiam), absence of a license plate,
United States v. Russell, 655 F.2d 1261, 1263 (D.C. Cir. 1981),
vacated in part on other grounds, 670 F.2d 323 (D.C. Cir. 1982),
cert. denied, 457 U.S. 1108 (1982), an illegible expiration date on a
tag, United States v. Hill, 458 F. Supp. 31, 32 (D.D.C. 1978), and
the absence of a front tag, Lewis v. United States, 632 A.2d 383, 388
n.12 (D.C. Cir. 1993), justified the police officers' decisions to
engage in a traffic stop.
5 The district court's determination that a prior conviction quali-
fies as a "crime of violence" under U.S.S.G. s 2K2.1 is a question of
The sentencing guidelines provide for a base offense level
of 24 if the offender has two prior felony convictions of a
"crime of violence." U.S.S.G. s 2K2.1(a)(2). A "crime of
violence" is defined in the sentencing guidelines as an offense,
punishable by more than one year in prison, that:
(1)has as an element the use, attempted use, or threat-
ened 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. s 4B1.2(a). The commentary to the guidelines fur-
ther explains that the term "crime of violence" includes "the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses." U.S.S.G. s 4B1.2 Commentary 1.
Hill bases his challenge to his base sentencing offense level
on the Supreme Court's decision in Taylor v. United States,
495 U.S. 575 (1990), and this court's decision in United States
v. Mathis, 963 F.2d 399 (D.C. Cir. 1992).6 As this court noted
in Mathis, Taylor established that "when deciding whether a
prior conviction qualifies as a predicate offense, the sentenc-
ing court must look only to the statutory definition, not to the
underlying facts or evidence presented." Mathis, 963 F.2d at
408 (citing Taylor, 495 U.S. at 602). The courts " 'should not
examine the actual conduct underlying the offense' when
determining whether to include it as a predicate offense
under ' 924(e).' " Id. (citation omitted). The court may
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law we review de novo. See United States v. Mathis, 963 F.2d 399,
404 (D.C. Cir. 1992).
6 Although Taylor and Mathis involved the interpretation of 18
U.S.C. s 924(e), rather than s 4B1.2 of the sentencing guidelines,
the cases are nonetheless controlling here because the language
defining a "violent felony" under ' 924(e) is identical in all relevant
respects to the language defining a "crime of violence" under
s 4B1.2 of the sentencing guidelines. Indeed, s 4B1.2 of the
sentencing guidelines was explicitly derived from s 924(e). See
U.S.S.G. app. C, amend. 268.
consider only the statutory definitions of the offenses of which
the defendant has been convicted; the particular circum-
stances under which the predicate crime was committed are
irrelevant in determining whether the conviction was for a
felony that includes as an essential element the use, attempt-
ed use or threatened use or physical force. See Taylor, 495
U.S. at 600-02. Alternatively, the sentencing court can con-
sider the charging documents and jury instructions. See id.
at 602. As the Taylor Court explained:
We therefore hold that an offense constitutes 'burglary'
for purposes of a s 924(e) sentence enhancement if either
its statutory definition substantially corresponds to 'ge-
neric' burglary, or the charging paper and jury instruc-
tions actually required the jury to find all the elements of
generic burglary in order to convict the defendant.
Id.
In Mathis, this court applied these principles to hold that
"robbery" as defined in D.C. Code Ann. s 22-2901, includes
conduct that is not a "violent felony" as defined by section
924(e). See 963 F.2d at 409. That is, because the offense of
"robbery" includes a non-violent taking " 'by sudden or steal-
thy seizure or snatching,' " the offense cannot be classified as
a "violent felony" under section 924 on the basis of its
statutory definition alone. Id. at 408-09. As this court
explained, " 'stealthy seizure' under section 22-2901 is not a
'violent felony' within the meaning of s 924(e), because the
proof required to satisfy the element of force in the local
statute falls below that which Congress intended in enacting
s 924(e)." Id. at 409. This court remanded to the district
court for a determination of whether the indictment and/or
jury instructions required the jury to find use or threatened
use of physical force in order to convict the defendant of the
offense of "robbery."
The case at hand resembles Mathis in some aspects. Hill
pled guilty to an unindicted offense, "Count K," which
charged simply "attempted robbery." This offense is a lesser
included offense of Count Two of the indictment, which
charged "robbery by force and violence and against resistance
and by putting in fear." App. at 33-36. The statute to which
Hill pled guilty defines attempted robbery as: "Whoever
attempts to commit robbery, as defined in s 22-2901, by an
overt act, shall be imprisoned for not more than 3 years or be
fined no more than $500, or both." D.C. Code. s 22-2902.
The statute includes attempts to commit robbery "by sudden
or stealthy seizure or snatching." D.C. Code s 22-2901.
Thus, as in Mathis, the defendant was convicted of an offense
that includes non-violent crimes. Consequently, the statutory
definition of the offense for which Hill was convicted does not
meet the definition of a "crime of violence."
This case differs from Mathis, however, in two important
ways. First, Hill pled guilty to the offense of attempted
robbery, therefore there were no jury instructions to which
the sentencing court could refer to determine whether Hill's
conviction met the definition of a "crime of violence." Sec-
ond, Hill pled guilty to a lesser included offense of the
indicted offense, rather than to the indicted offense itself.
Consequently, although the indictment of Hill does suggest
that the attempted robbery of which Hill pled was not
committed "by sudden or stealthy seizure or snatching," 7 it is
inappropriate for the sentencing court to rely upon this
indictment alone as the basis for a determination that the
offense constituted a crime of violence. The rationale for this
principle is clear: The crime charged is not the crime of
which the defendant was convicted.8 It is therefore impossi-
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7 Count Two of the indictment reads: "On or about February 28,
1975, within the District of Columbia, William D. Hill, Jr., and
Herman B. Brisbon, by force and violence and against resistance
and by putting in fear, stole and took from the person and from the
immediate actual possession of Ricky Chaviz, property of value
belonging to Ricky Chavis, consisting of money." App. at 36.
8 See United States v. Bennett, 108 F.3d 1315, 1317 (10th Cir.
1997) ("The fact that [the defendant] was charged with a crime of
violence ... is not dispositive for sentencing purposes.... '[T]he
conduct of which the defendant was convicted [not charged] is the
focus of the inquiry.' "); United States v. Spell, 44 F.3d 936, 940
(11th Cir. 1995) (holding that "a district court may not rely on a
charging document without first establishing that the crime charged
ble for the court to know, without more, what aspects of the
indicted offense can be appropriately read into the lesser
included offense to which the defendant pled guilty. More-
over, as the Taylor Court itself noted, "if a guilty plea to a
lesser ... offense was the result of a plea bargain, it would
seem unfair to impose a sentence enhancement as if the
defendant had pleaded guilty [to the charged conduct]." Tay-
lor, 495 U.S. at 601-02.
This does not mean, of course, that a defendant can escape
application of U.S.S.G. s 2K2.1(a)(2) by simply pleading
guilty to a lesser included offense of a charged offense.
Several circuits have considered what to do in the situation
where a defendant pleads guilty to an offense, and there is no
jury instruction to examine. They have concluded that the
government may use some means other than a jury instruc-
tion to establish that a prior conviction resulted from a
burglary involving force for purposes of base offense level
enhancement under section 924(e). Eight circuits have held
that where no jury instruction is available, the court may
examine various court documents to determine whether a
prior conviction resulted from a crime of violence.9 Such an
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was the same crime for which the defendant was convicted"); cf.
United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995) (holding
that when a defendant pled nolo contendere to a lesser included
offense of an indicted offense, the district court could examine "only
those charges in the indictment that are essential to the offense to
which defendant entered his plea" and the defendant's plea agree-
ment) (citation omitted).
9 See United States v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992)
(noting that where defendant has pled guilty, sentencing court can
look to the indictment, guilty plea, or presentence report to deter-
mine whether a prior offense constitutes a predicate offense);
United States v. Damon, 127 F.3d 139, 147-48 (1st Cir. 1997)
(noting that if the statute of conviction, charging instrument, and
jury instructions do not indicate whether the offense is a crime of
violence, the sentencing court may look to other "accurate, judicially
noticeable sources"); United States v. Garza, 921 F.2d 59, 61 (5th
Cir.), cert. denied, 502 U.S. 825 (1991) (noting that the "absence of
jury instructions in a guilty plea setting does not negate the
Note 9--Continued
application of the second half of Taylor's generic burglary rubric");
United States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994) (en
banc) ("When the defendant's conviction is by way of guilty plea, it
is appropriate under Taylor to look to the indictment and guilty
plea."); United States v. Maness, 23 F.3d 1006, 1009-10 (6th Cir.),
cert. denied, 513 U.S. 906 (1994) (reviewing transcript of guilty
pleas and indictments to determine whether defendant actually
committed generic burglary when he pled guilty to charges that
contained all of the elements of a generic burglary); United States
v. Rutherford, 54 F.3d 370, 372 n.4 (7th Cir.), cert. denied, 116 S. Ct.
323 (1995) ("If necessary to resolve an ambiguity in the charging
document, the courts may also, in some circumstances, examine the
presentence report, plea agreement, or factual findings of the
sentencing court."); United States v. White, 997 F.2d 1213, 1217-18
(7th Cir. 1993) (examining charging paper and preliminary hearing
transcript in effort to determine whether the district court properly
counted a burglary conviction for sentence enhancement purposes);
United States v. Gallman, 907 F.2d 639, 645 n.7 (7th Cir. 1990),
cert. denied, 499 U.S. 908 (1991) (noting that when faced with an
ambiguous statute, "a court should refer to the 'indictment or
information and jury instructions,' or, in the case of a guilty plea, to
the plea agreement or transcript, in order to determine if the
conviction was for 'generic' ... burglary"); United States v. Taylor,
932 F.2d 703, 708 (8th Cir.), cert. denied, 502 U.S. 888 (1991) (noting
that the absence of jury instructions in guilty plea proceedings does
not negate the application of the second half of Taylor's generic
burglary rubric); United States v. Bonat, 106 F.3d 1472, 1476 (9th
Cir.), cert. denied, 118 S. Ct. 192 (1997) (holding that because "there
are no jury instructions to consider when a defendant has pled
guilty, courts must be able to consider documents other than the
charging paper and the jury instructions," including the indictment,
judgment of conviction, a signed guilty plea, plea transcript and
other " 'documentation or judicially noticeable facts that clearly
establish that the conviction is a predicate conviction for enhance-
ment purposes' ") (citation omitted); United States v. Wood, 52
F.3d 272, 275 (9th Cir. 1995), cert. denied, 116 S. Ct. 217 (1995)
(holding that "sentencing courts may consider the statutory defini-
tion of the crime, any conduct charged in the indictment or informa-
tion, the defendant's guilty plea or plea agreement, and any jury
instructions"); United States v. Hill, 53 F.3d 1151, 1154 (10th Cir.)
(en banc), cert. denied, 116 S. Ct. 258 (1995) (holding
approach, these courts have noted, is consistent with the
principles established in Taylor and with the guidelines and
commentary thereto. We agree. We therefore hold that in
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Note 9--Continued
that court may consider the text of a guilty plea and/or other
documents that, coupled with the charging instrument, enable the
court to determine that defendant's prior conviction constitutes a
violent felony); United States v. Gacnik, 50 F.3d 848, 856 (10th Cir.
1995) (holding that the court can examine the "charging papers,
judgment of conviction, plea agreement or other statement by the
defendant for the record, presentence report adopted by the court,
and findings by the sentencing judge" to determine whether a prior
offense was a crime of violence); United States v. Smith, 10 F.3d
724, 733-34 (10th Cir. 1993) (per curiam) (holding that "a court can
look beyond the statutory count of conviction in order to resolve a
patent ambiguity caused by a broad state statute," however, the
examination is limited to "the charging papers, judgment of convic-
tion, plea agreement or other statement by the defendant for the
record, presentence report adopted by the court, and findings by
the sentencing judge") (citation omitted); United States v. Strahl,
958 F.2d 980, 984 (10th Cir. 1992) (" '[W]here enhancement is
sought on the basis of a conviction obtained through a guilty plea,
the sentencing court may look to the underlying indictment or
information and the text of the guilty plea to determine whether the
defendant was charged with and admitted conduct which falls
without question within the ambit of Taylor's generic definition.' ")
(citation omitted); United States v. Adams, 91 F.3d 114, 116 (11th
Cir.) (per curiam), cert. denied, 117 S. Ct. 623 (1996) ("[U]nder
Taylor the government may use some means, other than a jury
instruction, to establish that the prior conviction resulted from a
generic burglary."); cf. United States v. Barney, 955 F.2d 635, 639-
40 (10th Cir. 1992) (holding that "where enhancement is sought on
the basis of a conviction obtained through a guilty plea, the sentenc-
ing court may look to the underlying indictment or information and
the text of the guilty plea to determine whether the defendant was
charged with and admitted conduct wich falls without question
within the ambit of Taylor's generic definition," but "[t]o the extent
that the district court considered convictions of Mr. Barney not
noticed and only mentioned in the presentence report, it erred").
determining whether a prior conviction constitutes a predi-
cate offense for purposes of U.S.S.G. s 2K2.1(a)(2) when the
statutory description of the offense includes non-violent as
well as violent crimes and when the defendant has pled guilty
to a lesser included offense of a charge in the indictment, the
sentencing court may not rely solely on the indictment to
determine whether the offense of which the defendant was
convicted was a crime of violence. Instead, the court must
consult other available indices to verify that the defendant
was indeed convicted of a crime of violence.10 These other
indices may include the judgment of conviction, plea agree-
ment or other statement by the defendant on the record,
presentencing report adopted by the court, and the findings
of the sentencing judge. Accordingly, we remand for a new
sentencing hearing to determine whether Hill's 1976 convic-
tion for attempted robbery was properly classified a "crime of
violence." 11
For the foregoing reasons, we reverse the district court's
denial of Hill's motion to suppress and the district court's
decision to set Hill's base sentencing offense level at 24, and
remand for further proceedings consistent with this opinion.
So ordered.
__________
10 Because "[t]he burden is on the government to prove facts in
support of a sentence enhancement by a preponderance of the
evidence," United States v. Washington, 115 F.3d 1008, 1010 (D.C.
Cir. 1997), it is the responsibility of the government to produce such
documents as are necessary to establish that a prior offense can be
properly designated a "crime of violence."
11 We recently held that "upon a resentencing occasioned by a
remand, unless the court of appeals expressly directs otherwise, the
district court may consider only such new arguments or new facts
as are made newly relevant by the court of appeals' decisionC
whether by the reasoning or by the result." United States v.
Whren, 111 F.3d 956, 960 (D.C. Cir. 1997). Accordingly, we note
that on remand, the district court may consider any of the docu-
ments discussed above in determining whether the defendant's
conviction for attempted robbery can be appropriately designated a
"crime of violence."
Randolph, Circuit Judge, concurring: I agree that the
sentencing judge must look beyond the indictment to decide
whether Hill's prior conviction was for a crime of violence.
But I wonder whether there is any longer a good purpose for
treating this factual inquiry differently than the other factual
inquiries routinely required by the Sentencing Guidelines.
The Supreme Court adopted a categorical approach to
deciding whether a prior conviction was a "violent felony"
within the meaning of 18 U.S.C. s 924(e), permitting the
sentencing court to look at the "charging paper and jury
instructions" only in a "narrow range of cases." Taylor, 495
U.S. at 602. After Taylor, we held in Mathis that "when
deciding whether a prior conviction qualifies as a predicate
offense, the sentencing court must look only to the statutory
definition, not to the underlying facts or evidence presented."
963 F.2d at 408. This approach breaks down when the
defendant's earlier conviction resulted from a plea agreement.
And so we now join other circuits in concluding that an
examination may be made of certain readily available court
documents, including presentencing reports and plea tran-
scripts. My question is why the sentencing court ought to be
under any restrictions. Why, in other words, should the
inquiry for the purposes of U.S.S.G. s 2K2.1(a)(2) be any
more restricted than for other instances of sentencing en-
hancement?
The Guidelines have pretty much rendered obsolete the
concern, relied upon in Taylor, 495 U.S. at 601, that sentenc-
ing hearings should not become mini-trials. Under the bifur-
cated fact-finding scheme of the Guidelines, certain factual
issues allocated to the sentencing phrase can play a disposi-
tive role in determining a defendant's sentence. A court
must, for instance, consider all related acts proved by a
preponderance of the evidence at sentencing, even if the
defendant was not convicted of them. See U.S.S.G. s 1B1.3.
A defendant's base offense level is increased according to
"specific offense characteristics"Csuch as the discharge of a
firearm, more than minimal planning, or quantity of drugs
involved. See, e.g., U.S.S.G. s 2A2.2(b)(2)(A). Further ad-
justments in sentencing depend on the status of the victim,
the defendant's role in the offense, and whether the defen-
dant willfully obstructed justice. See U.S.S.G. ss 3A1.1-
3C1.2. Evidence about such matters may be presented to the
court through statements of counsel, affidavits of witnesses,
or evidentiary hearings. See s 6A1.3, comment. Further-
more, sentencing judges are not restricted to information that
would be admissible at trial. See s 6A1.3(a). They may
consider any information, provided it has "sufficient indicia of
reliability to support its probable accuracy." Id.
The time has come to rethink the subject and to consider
whether the same sort of evidentiary presentation permitted
for other sentencing issues ought to be allowed to prove or
disprove the violent nature of a defendant's previous offense.
Having said this, I recognize that the rethinking might have
to be done by the Sentencing Commission or by Congress.
See maj. op. at 10 & n.6.