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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2004 Decided April 16, 2004
No. 03–3032
UNITED STATES OF AMERICA,
APPELLEE
v.
ROMONE L. GABRIEL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00216–01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Neil H. Jaffee, Assis-
tant Federal Public Defender, entered an appearance.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard, Jr., U.S. Attorney, and John R. Fisher and Eliza-
beth Trosman, Assistant U.S. Attorneys.
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
WILLIAMS.
Circuit Judge HENDERSON concurs in the judgment.
WILLIAMS, Senior Circuit Judge: Following a search of his
home, Romone Gabriel was charged with four offenses: two
counts of illegal possession of a firearm or ammunition by a
felon under 42 U.S.C. § 922(g), possession of heroin under 21
U.S.C. § 844(a), and possession of an unregistered firearm
under 26 U.S.C. § 5861(d). A jury found him guilty on all
counts. On two of the issues raised on appeal, the govern-
ment agrees with the defendant not only that the challenged
rulings were error but also that they require a remand for
resentencing. Of the remaining issues, only two require
discussion: the empanelling of a juror who lived near Ga-
briel’s home and the classification of burglaries committed by
the defendant in 1986 as ‘‘crimes of violence’’ under the
Sentencing Guidelines. As to these we find no reversible
error.
* * *
The first of the discussion-worthy claims is that the district
court erred in not striking Juror #1021 for cause. During
voir dire, the district court asked if any potential juror lived
or worked in the vicinity of Gabriel’s home, where the weap-
ons and drugs had been found, or was familiar with the area;
Juror #1021 answered affirmatively. As a result, the follow-
ing colloquy took place between her and the district court:
The Court: Would your familiarity with the area influ-
ence you in any way in hearing this case?
Juror #1021: That’s why I put a question mark. I wish
I knew for sure. I don’t know for sure. I don’t think so.
I think I could be impartial. This is my neighborhood.
3
The Court: Why do you think that might influence you?
Juror #1021: Guns. There are guns in my neighbor-
hood. I just—I don’t know. I went back to the office
and I watched the news today [about the then at-large
Washington, D.C., snipers] so I am a little upset about
guns today. I don’t know. I don’t think it would but it
could. I don’t know. I can’t honestly answer.
The Court: You can honestly but you just can’t be sure.
Juror #1021: I can’t be sure. I can’t be sure. I just
think it’s important to—I am very familiar with the area.
The Court: Would you make every effort to put out of
your mind the fact that it is in an area you have some
familiarity with and try to be fair and impartial?
Juror #1021: I would. I would. I believe that that is
what I’m trying to do.
(Tr. 10/07/02 PM at 34–35.) Neither lawyer questioned the
potential juror, and she was ultimately included on the panel.
Gabriel now for the first time questions Juror #1021’s impar-
tiality, asserting plain error in the court’s failure to dismiss
her for cause on its own motion. See Fed. R. Civ. Pro. 52(b).
In assessing whether a venireman whose impartiality is in
question should have been excused for cause, ‘‘The relevant
question is TTT whether the jurors TTT had such fixed opin-
ions that they could not judge impartially the guilt of the
defendant.’’ Patton v. Yount, 467 U.S. 1025, 1035 (1984).
Even when objection is timely made, a district court finding
that a juror is sufficiently impartial can be overturned only
for manifest error. Mu’Min v. Virginia, 500 U.S. 415, 428
(1991). We find no error, much less plain error.
In claiming that the judge should have stricken Juror
#1021 for want of impartiality, the defendant stresses the
uncertainty reflected in her answers, which he says ‘‘failed to
assure’’ that she could render a fair and impartial verdict.
But certainty on such an issue is hard to achieve. Wain-
wright v. Witt, 469 U.S. 412, 424–26 (1985). The candidate
most ready to proclaim his impartiality may be the one least
likely to be impartial. It ‘‘is the rare juror who could
4
honestly ‘guarantee’ that his feelings about the particular
type of crime alleged would in no way affect his delibera-
tions.’’ United States v. Nelson, 277 F.3d 164, 202 (2d Cir.
2002) (quoting United States v. Murray, 618 F.2d 892, 899 (2d
Cir. 1980)) (internal quotes omitted). Instead, courts have
focused on the intent of the juror, finding impartiality suffi-
ciently established if the potential juror expresses a clear
intent to try to be open-minded. See, e.g., United States v.
Powell, 226 F.3d 1181, 1189 (10th Cir. 2000); United States v.
Hines, 943 F.2d 348, 353 (4th Cir. 1991); United States v.
Jones, 865 F.2d 188, 190 (8th Cir. 1989); see also Nelson, 277
F.3d at 202–03 (making assurance of ‘‘best efforts’’ necessary
to empanelling of venireman who has expressed doubts).
Given the inevitable uncertainties, coupled with the trial
judge’s superior opportunity to assess the venireman’s can-
dor, see Wainwright, 469 U.S. at 428; United States v.
Haldeman, 559 F.2d 31, 67 n.51 (D.C. Cir. 1976), we think the
clear expression of intent to try, credited by the judge, should
be sufficient. The district court’s failure to excuse Juror
#1021 was not error, and therefore necessarily not plain
error.
Gabriel next asserts three sentencing claims. The parties
agree that the court made two errors that require a remand
for resentencing. In the third claim, Gabriel asserts that in
calculating his ‘‘base offense level’’ the district court should
not have classified his 1986 convictions for burglary as a
‘‘crime of violence’’ under U.S.S.G. § 2K2.1(a)(1).1 Applica-
tion Note 5 to U.S.S.G. § 2K2.1 provides that the term ‘‘crime
of violence’’ in that section shall have ‘‘the meaning given that
term in § 4B1.2(a) and Application Note 1 of the Commen-
tary to § 4B1.2.’’ Accordingly we turn to § 4B1.2(a):
(a) The term ‘‘crime of violence’’ means any offense
under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
1 Because Gabriel was sentenced in 2003, all U.S.S.G. cites
refer to the November 1, 2002 version of the Guidelines.
5
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves con-
duct that presents a serious potential risk of physical
injury to another.
See U.S.S.G. § 4B1.2(a). (Although Gabriel had two 1986
convictions for second degree burglary, they resulted from a
single proceeding. Thus, under § 4A1.2(a)(2) ‘‘[p]rior sen-
tences imposed in related cases are to be treated as one
sentence for purposes of § 4A1.1(a), (b), and (c),’’ and the two
burglaries (assuming they count as ‘‘crimes of violence’’)
count as only one such crime. Both parties apparently
assume (without any obvious error) that the discussion of
‘‘sentences’’ in §§ 4A1.1 and 4A1.2 applies to that of ‘‘convic-
tions’’ in § 2K2.1.)
Gabriel’s 1986 burglary convictions were for second degree
burglary under the D.C. Code § 22–801(b). That offense
does not require the use (or intended or threatened use) of
force against another. Nor is it confined to burglary of a
dwelling—the only other basis for classification of these con-
victions as a crime of violence under § 4B1.2(a).
In Taylor v. United States, 495 U.S. 575 (1990), the Court
prescribed the methodology that has come to govern whether
a prior conviction meets Guidelines criteria. Interpreting 18
U.S.C. § 924(e), which provides that the sentences of persons
convicted under 18 U.S.C. § 922(g) should be enhanced for
prior convictions of a ‘‘violent felony,’’ the Court emphatically
rejected claims that a prior conviction could be so classified
simply on a basis of evidence as to the actual facts of the
prior crime. It reasoned that the statutory language pointed
to a categorical approach and that ‘‘the practical difficulties
and potential unfairness of a factual approach are daunting.’’
Id. at 601. So far as burglary was concerned, the Court
generally approved enhancement only if the statute of convic-
tion required a finding of the elements of ‘‘ ‘generic’ burgla-
ry.’’ Id. at 598–99, 602. Nonetheless, despite excoriating the
‘‘factual approach,’’ it approved the sentencing court’s going
beyond the statutory elements of the crime ‘‘in a narrow
range of cases,’’ where, although the statute allowed convic-
6
tion without all the elements of ‘‘generic burglary,’’ ‘‘a jury
was actually required to find all the elements of generic
burglary.’’ Id. at 602. Summarizing, it said:
We therefore hold that an offense constitutes ‘‘burgla-
ry’’ for purposes of a § 924(e) sentence enhancement if
either its statutory definition substantially corresponds
to ‘‘generic’’ burglary, or the charging paper and jury
instructions actually required the jury to find all the
elements of generic burglary in order to convict the
defendant.
Id.
In United States v. Hill, 131 F.3d 1056, 1061–65 (D.C. Cir.
1997), we found this methodology equally applicable to the
issue of deciding whether a conviction was for a ‘‘crime of
violence’’ for purposes of calculating ‘‘base offense levels’’
under the Guidelines. And we joined eight other circuits in
extending Taylor’s ‘‘narrow’’ exception to guilty pleas. Id. at
1063–64 & n.9. For such pleas, we allowed a finding of a
‘‘crime of violence,’’ even where the statutory elements were
not adequately confining, on the basis of various ‘‘indices’’
including ‘‘the judgment of conviction, plea agreement or
other statement by the defendant on the record, presentenc-
ing report adopted by the court, and the findings of the
sentencing judge.’’ Id. at 1065. Thus the ‘‘narrow range’’ for
factual inquiry, though definitely constrained, has grown well
beyond what Taylor specified. Here it is not altogether clear
whether Gabriel’s 1986 convictions arose out of a jury trial or
a guilty plea.
As second degree burglary under District law is not con-
fined to burglary of dwellings, the convictions could satisfy
the requirements of § 4B1.2 only if the jury had been re-
quired to find, or if documents in connection with a plea
showed, that the burglaries (or one of them) were of a
‘‘dwelling.’’ (Gabriel doesn’t contest the government’s suppo-
sition that second degree burglary in the District meets the
criteria of ‘‘ ‘generic’ burglary.’’) The government failed to
offer the sort of documents required by Taylor and Hill for
going beyond the statutory elements. As the burden is on
7
the government to produce these documents, see Hill, 131
F.3d at 1065 n.10, use of the convictions to establish the ‘‘base
offense level’’ was error.
But Gabriel raised no objection, so we review under the
standard of plain error. Although the prejudice requirement
for plain error in sentencing is somewhat ‘‘less exacting than
it is in the context of trial errors,’’ United States v. Saro, 24
F.3d 283, 287 (D.C. Cir. 1994), it still requires that the
defendant demonstrate ‘‘a reasonable likelihood that the sen-
tencing court’s obvious errors affected his sentence,’’ id. at
288. As Gabriel has offered nothing on that score other than
highly speculative inferences from the wording of the Presen-
tence Report, see Reply Br. at 18–20, he has failed to show
the requisite likelihood. United States v. Williams, 358 F.3d
956, 966–67 (D.C. Cir. 2004).
Gabriel seeks to deflect the Williams holding by noting
that there we alluded to statements in the government’s brief
and at oral argument indicating that if the documents had
been offered, Williams’s sentence would in fact not have been
lower. Id. at 967. But the government’s assurances were by
no means necessary to the outcome; indeed, to have treated
them as pivotal would in effect have relieved the defendant of
the burden of showing the requisite ‘‘reasonable likelihood’’ of
prejudice. (There might be cases where the defendant and
his counsel for some reason couldn’t obtain access to the
relevant records of the prior conviction, but there is no
suggestion that that is true here.) That is not the way plain
error works, even as leavened by Saro in the sentencing
context.
Accordingly, we remand for resentencing because of the
errors that the parties agree require a remand; in all other
respects the decision of the district court is affirmed.
So ordered.