UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-5225
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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(May 30, 1994)
Before WISDOM and JONES, Circuit Judges, FITZWATER*, District
Judge.
EDITH H. JONES, Circuit Judge:
Albert Jackson was caught trafficking in cocaine but pled
guilty to using or carrying a firearm during and in relation to a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (1988)
and to being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g) (1988). Jackson was sentenced to the mandatory 60
months of imprisonment under § 924(c)(1) to be served consecutively
with 54 months of imprisonment for the felon in possession
*
District Judge of the Northern District of Texas, sitting by
designation.
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violation. Jackson appeals only his sentence on the felon in
possession count. Because we agree that the district court erred
in characterizing the defendant's prior state court conviction for
burglary of a building as a "crime of violence" in calculating
Jackson's base offense level under the Guidelines, we VACATE
Jackson's sentence and REMAND to the district court for
resentencing consistent with this opinion.
Jackson maintains that the district court erred in
assigning him a base offense level of 20 because his prior state
conviction for burglary of a building did not constitute a "crime
of violence."1 See U.S.S.G. § 2K2.1(a)(4). Under the Guidelines,
a "crime of violence" is defined as:
any offense under federal or state law
punishable by imprisonment for a term
exceeding one year that -- (i) has as an
element the use, attempted use, or threatened
use of physical force against the person of
another, or (ii) is burglary 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(1) (emphasis added). The district court,
responding to the defendant's objections to the presentence report,
apparently read § 4B1.2 to include any burglary as a crime of
violence. The court noted that "[t]he specific facts of
1
In relevant part, § 2K2.1 provides for a base offense level of 20
"if the defendant -- (A) had one prior felony conviction of either a crime of
violence or a controlled substance offense ..." U.S.S.G. § 2K2.1(a)(4). Had the
sentencing court correctly classified his prior burglary conviction, Jackson
maintains that his base offense level would only have been 14, thereby resulting
in a lesser sentence. See U.S.S.G. § 2K2.1(a)(6).
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defendant's burglary do not change the classification as this as
[sic] a crime of violence." Id. at 289.
For his part, the appellant relies on the presentence
report's description of his prior burglary conviction. The report
states that Jackson was convicted in Texas state court of burglary
of a building with intent to commit theft. Jackson was not
convicted of burglary of a dwelling, which this court has
previously held is a "crime of violence" under § 4B1.2(1). See
United States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989).
Jackson also argues that the circumstances surrounding the
burglary -- the suspects were found in the backyard of a vacant
house from which they were trying to take parts from an air
conditioning unit -- did not "involve[] conduct that presents a
serious potential risk of physical injury to another." U.S.S.G.
§4B1.2(1).
The government focuses on the fact that the building
burglarized was a dwelling and urges that its lengthy vacancy does
not detract from its characterization as a dwelling. The
government further argues that Jackson's conduct did pose a serious
potential risk of physical injury "since any neighbor or passerby
or even the owner could happen upon the crime."
This court will uphold a sentence imposed under the
Guidelines so long as it is the product of a correct application of
the Guidelines to factual findings which are not clearly erroneous.
See United States v. Alfaro, 919 F.2d 962, 964 (5th Cir. 1990).
Determination of legal principles are reviewed de novo and factual
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findings for clear error. See United States v. Mourning, 914 F.2d
699, 704 (5th Cir. 1990).
In determining whether the offense is a "crime of
violence," the guideline commentary emphasizes the conduct of which
the defendant was convicted. See § 4B1.2 n.2; see also Stinson v.
United States, 113 S.Ct. 1913, 1915 (1993) (holding that commentary
in the Guidelines Manual "is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent
with . . . that guideline."). Jackson's offense of conviction,
burglary of a building with intent to commit theft, is
distinguished under the Texas Penal Code from burglary of a
habitation. A habitation is defined in relevant part by the Code
as "a structure or vehicle that is adapted for the overnight
accommodation of persons." Tex. Penal Code Ann. § 30.01(1) (1989)
(emphasis added). By contrast, a building "means any enclosed
structure intended for use or occupation as a habitation or for
some purpose of trade, manufacture, ornament, or use." Id. at
§ 30.01(2) (emphasis added).
Relying on Flores, supra, this court has specifically
held that the burglary of a habitation under Tex. Penal Code Ann.
§ 30.02 (1989) is a "crime of violence" for purposes of § 4B1.2.
See United States v. Cruz, 882 F.2d 922, 923 (5th Cir. 1989).
Critical to the conclusion in Flores and Cruz is the idea that
"whenever a private residence is broken into, there is always a
substantial risk that force will be used." Flores, 875 F.2d at
1113; Cruz, 882 F.2d at 923 (quoting Flores). However, when a
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burglary of a building is involved, it cannot be said that there is
always a substantial risk that force will be used. This
proposition finds support in § 4B1.2 and accompanying commentary
which specify only a "burglary of a dwelling" as a "crime of
violence". In sum, the district court's apparent uniform treatment
of burglaries as "crimes of violence" is incorrect.
While not constituting burglary of a dwelling, Jackson's
conduct might still constitute a "crime of violence" if it
presented "a serious potential risk of physical injury to another."
The description of the burglary in the presentence report, however,
dispels any such notion. Cf. Flores, 875 F.2d at 1112 (concluding
that presentence report coupled with testimony from probation
office employee was sufficiently reliable for district court to
rely upon). The house had been vacant for seven years; Jackson was
found in the backyard attempting to take some parts from an air
conditioning unit. Notwithstanding the government's assertions
that neighbors, passersby, or the owner were at risk, the report
provides absolutely no facts upon which to base a conclusion that
a serious potential risk of physical injury was posed to anyone.
Finally, the government's argument that the nature of the
dwelling did not change by virtue of the seven year vacancy is
unconvincing. Logically, whether by vacancy, physical
deterioration, altered use, or otherwise, a point in time exists at
which a dwelling loses its character as a residence and becomes a
"mere" building. Texas criminal law recognizes the distinction by
distinguishing burglary of a habitation and burglary of a building,
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and Jackson was convicted of the lesser offense of burglary of a
building. The district court therefore erred in considering
Jackson's prior state court conviction for burglary of a building
as a "crime of violence" for sentencing purposes.
Jackson raises two additional arguments that merit little
attention. First, Jackson argues that the sentencing court erred
in calculating his criminal history by adding two points for his
Feb. 14, 1978 conviction for auto theft. Under the Guidelines,
defendant's one-year sentence for auto theft must have been imposed
"within ten years of the defendant's commencement of the instant
offense" in order to be counted in the calculation of criminal
history points. U.S.S.G. § 4A1.2(e)(2) (emphasis added). Jackson
contends that his Feb. 14, 1978 sentence was not imposed within ten
years of Nov. 29, 1991, the date on which he was arrested with the
firearm in possession. Appellant defines "instant offense" to
include only the offenses to which he pled guilty -- namely the
firearms violations -- and to exclude the dismissed conspiracy and
substantive drug offense counts.
We need not reach the merits of Jackson's argument. As
the government correctly points out and as counsel for Jackson
conceded at oral argument, even assuming that the guidelines were
applied incorrectly, reducing Jackson's criminal history points
from twelve to ten would leave him in the same criminal history
category and would not affect his sentence. Any error in
application is harmless.
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Similarly meritless is Jackson's final argument. At the
sentencing hearing, the government declined to file a "substantial
assistance" motion notwithstanding their admission that Jackson had
cooperated with DEA and Customs agents. See U.S.S.G. § 5K1.1.
Appellant now argues his cooperation merited such a motion.
Jackson's argument is foreclosed by Wade v. United
States, 112 S.Ct. 1840 (1992). In Wade, the Supreme Court held
that district courts may review the government's refusal to file a
substantial assistance motion and grant a remedy "if they find that
the refusal was based on an unconstitutional motive." Id. at 1844.
Significantly, the Court further concluded "that a claim that a
defendant merely provided substantial assistance will not entitle
a defendant to a remedy or even to discovery or an evidentiary
hearing." Id. Jackson's claim is merely that his cooperation
merited the motion. He makes no claim of unconstitutional motive,
nor does he assert that the government breached its plea agreement,
which committed to its sole discretion the decision whether to move
for a downward departure.
For the foregoing reasons, we VACATE Jackson's sentence
and REMAND to the district court for resentencing consistent with
this opinion.
VACATED and REMANDED.
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