United States Court of Appeals
For the First Circuit
No. 06-1167
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM J. BENNETT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Christopher R. Goddu, Federal Defender Office, District of
Massachusetts, with whom Kevin Fitzgerald, Federal Defender Office,
District of Rhode Island, was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, was on brief, for
appellee.
November 21, 2006
TORRUELLA, Circuit Judge. Defendant-appellant William J.
Bennett ("Bennett") pled guilty to possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He now appeals the sentencing
enhancements applied pursuant to the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), on the basis that (1) the predicate
conviction for breaking and entering a steel storage shed does not
constitute a violent felony, (2) his Sixth Amendment rights were
violated when the judge, rather than a jury, determined that the
conviction constituted a violent felony, and (3) his Fifth and
Sixth Amendment rights were violated when the Government failed to
properly plead and prove the ACCA enhancements. We find no merit
to these arguments and therefore affirm the district court's
decision.
I. Background
On March 15, 2005, the Westerly, Rhode Island police
retrieved a stolen 9 mm handgun, which they were told had been
purchased from Bennett. Bennett later admitted to selling the gun.
On June 15, 2005, a federal grand jury returned a one-count
indictment charging Bennett with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Bennett entered
into a plea agreement with prosecutors on August 22, 2005 and pled
guilty to the charge on September 15, 2005.
Based on three prior Rhode Island convictions for
breaking and entering and related crimes, the United States
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Probation Office ("USPO") concluded that Bennett was subject to a
mandatory minimum sentence of 180 months under the ACCA.1 Bennett
objected to the USPO's determination, arguing that his 1994 Rhode
Island conviction for breaking and entering a steel storage shed
did not constitute a crime of violence and therefore did not
qualify as a predicate for the ACCA sentencing enhancement.
At the plea colloquy, the state prosecutor stated that
the government would be prepared to prove at trial that the
defendant "entered a steel storage shed . . . belonging to
[another] with intent to commit larceny in the nighttime." Bennett
agreed with this statement. Based on a reading of the statute
under which Bennett was convicted and the record before the court,
the district court found that Bennett was properly classified as an
armed career criminal and sentenced him to 180 months imprisonment.
II. Discussion
A. The Taylor Definition of "Burglary"
Under the ACCA, a defendant who violates § 922(g)(1) and
has three previous convictions for violent felonies or serious drug
offenses is subject to a minimum sentence of 180 months. 18 U.S.C.
§ 924(e)(1). The definition of "violent felony" includes, inter
alia, the crime of burglary, but the term "burglary" itself is not
defined in the statute. Id. § 922(e)(2).
1
Absent the USPO's determination that Bennett was an armed career
criminal, Bennett would have been subject to an advisory guideline
range of 24-30 months.
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The Supreme Court, however, addressed the meaning of
burglary as used in the ACCA in United States v. Taylor, 495 U.S.
575 (1990). The Court first rejected both the view that the
definition depends on the label adopted by the state of conviction
and the idea that Congress meant to include only the common-law
definition of burglary as "breaking and entering of a dwelling at
night, with intent to commit a felony." Id. at 592. Rather, the
Court concluded that
Congress meant by 'burglary' the generic sense
in which the term is now used in the criminal
codes of most states. Although the exact
formulations vary, the generic, contemporary
meaning of burglary contains at least the
following elements: an unlawful or
unprivileged entry into, or remaining in, a
building or other structure, with intent to
commit a crime.
Id. at 598. Thus, an offense qualifies as "burglary" for purposes
of an ACCA sentencing enhancement if it "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. at 602.
In assessing whether a state conviction qualifies as
generic burglary, a court should take a categorical approach,
"looking only to the statutory definitions of the prior offenses,
and not to the particular facts underlying those convictions." Id.
at 600. When the state statute defines burglary more broadly than
the generic definition, however, the court may then look to whether
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the jury was required to find all the elements of generic burglary.
Id. at 602.
Defendant contends that his conviction for breaking and
entering a steel storage shed does not meet the definition of
generic burglary under Taylor, and therefore does not constitute a
violent felony as determined by the district court, for two
reasons: First, he argues that to qualify as a "building or other
structure" under the Taylor definition, the building or structure
must be "occupiable."2 Second, he argues for the first time on
appeal that the statute under which he was convicted for the
predicate offense did not include an "unlawful or unprivileged
entry" element as required by Taylor.
1. "Building or other structure"
We review the determination that a defendant is subject
to an ACCA sentencing enhancement de novo, United States v.
Mastera, 435 F.3d 56, 59 (1st Cir. 2006), but we review the
district court's factual findings underlying the determination for
clear error, United States v. Delgado, 288 F.3d 49, 52 (1st Cir.
2002). We begin our review with the Rhode Island statute under
which Bennett was convicted for the predicate crime at issue,
2
There is some question as to whether Bennett preserved this
argument for appeal. He certainly did not develop the argument
very well, focusing instead on whether his conviction satisfied the
"otherwise" clause of 18 U.S.C. § 924(e)(2)(B)(ii), but we will
assume for purposes of this decision that he did preserve the
argument below.
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entitled "Breaking and entering other buildings with criminal
intent - Railroad cars - Tractor trailers." R.I. Gen. Laws § 11-8-
5. The first clause of the statute makes it unlawful to "break and
enter or enter in the nighttime, with intent to commit [a crime] in
it, any barn, stable, carriage house, or other building." Id. The
second clause addresses the similar breaking and entering of
railroad cars and tractor trailers. Id.
Because the statute defines burglary more broadly than
Taylor did, including the breaking and entering of more than just
buildings and structures, we look to the record before the court to
determine under which clause Bennett was convicted.3 The
transcript of the plea colloquy clearly shows that Bennett was
convicted under the first clause of the statute, involving the
burglary of "other buildings," and therefore we base our
determination of whether the conviction qualifies as generic
burglary on the elements required for conviction under the "other
buildings" clause.
Bennett contends that to meet the Taylor definition of
generic burglary, the structure involved in a predicate crime must
be "occupiable," in the sense that it must be large enough to
3
In examining the record, a court is "limited to the terms of the
charging document, the terms of a plea agreement or transcript of
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." Shepard v. United States,
544 U.S. 13, 26 (2005).
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accommodate a person. He points to a Ninth Circuit case, United
States v. Sparks, 265 F.3d 825, 835 (9th Cir. 2001), which found
that the burglary of a storage locker that would not accommodate a
person does not fall within the definition of generic burglary.
Bennett also asserts that Rhode Island law suggests a requirement
of habitability or occupiable space.
The types of buildings to which the Rhode Island statute
refers, such as barns, stables, and presumably, steel storage
sheds, clearly fit within Taylor's definition of generic burglary;
they are, by the plain language of the statute, "buildings or other
structures." They clearly do not comprise such items as
automobiles, boats, railroad cars, tents, or vending machines,
which Taylor rejected as "structures" for purposes of generic
burglary. Taylor also rejected the idea that state law defines the
contours of burglary under the ACCA, and therefore we decline to
look to Rhode Island law to resolve this question. Furthermore,
Sparks is inapposite, because the statute at issue plainly concerns
the burglary of "buildings" as opposed to smaller enclosed spaces
such as storage lockers. Bennett was convicted of "entering" into
a steel storage shed, and therefore we know that the structure was
large enough to be entered by a person. Thus this case does not
raise any issue about structures not large enough to permit human
entry.
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2. "Unlawful or unprivileged entry"
Bennett next contends that his conviction for breaking
and entering a steel storage shed does not meet Taylor's definition
because the statute under which he was convicted did not require an
"unlawful or unprivileged" entry, and the record before the court
did not indicate that his entry was "unlawful or unprivileged."
Bennett did not raise this issue below and therefore we review for
plain error. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). We have not addressed the contours of the "unlawful or
unprivileged" element of generic burglary under Taylor, and there
exists a circuit split on the issue. Compare United States v.
Bowden, 975 F.2d 1080, 1084-85 (4th Cir. 1992) (finding that "the
entry of a man who enters without breaking with intent to commit a
felony or larceny is neither lawful nor privileged, so it must be
within Taylor"), with United States v. Maness, 23 F.3d 1006, 1008-
09 (6th Cir. 1994) (finding that the same statute at issue in
Bowden "does not satisfy Taylor's definition of generic burglary"
because intent to commit a crime is a "separate and distinct
element[]" from unlawful or unprivileged entry). In light of
conflicting case law, any error that might have been committed by
the district court was not "obvious," and therefore not plain
error. United States v. Olano, 507 U.S. 725, 734 (1993) ("At a
minimum, court of appeals cannot correct an error pursuant to Rule
52(b) unless the error is clear under current law.").
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B. Constitutional and statutory claims
Bennett's remaining two claims merit little discussion.
First, he claims that his Sixth Amendment rights were violated
because the judge, rather than a jury, determined that his
predicate conviction constituted a violent felony. Bennett
suggests that United States v. Booker, 543 U.S. 220 (2005),
requires that the nature of his conviction be determined beyond a
reasonable doubt by a jury. We very recently rejected the position
that a jury must determine whether a prior conviction is a violent
felony for purposes of a sentencing enhancement; the determination
is a question of law and therefore for the court, not the jury.
United States v. Bishop, 453 F.3d 30, 32 (1st Cir. 2006).
Second, Bennet claims that his Fifth and Sixth Amendment
rights were violated because the Government failed to properly
plead and prove the ACCA enhancements. He asks us to find that as
a matter of statutory construction, the ACCA requires the
Government to charge his prior convictions in an indictment and
prove them beyond a reasonable doubt. Bennett concedes that he did
not raise this issue below. We thus review for plain error, which
requires that the defendant show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
Duarte, 246 F.3d at 60. The district court committed no obvious
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error, since the text of the ACCA says nothing about pleading and
proof of predicate convictions. Furthermore, we recently rejected
in United States v. McKenney the constitutional argument that the
Government must charge predicate convictions under the ACCA in an
indictment, reiterating that "[t]he Supreme Court has rejected the
argument that under the Constitution, recidivism must be treated as
an element of the offense, included in the indictment, and proved
to a jury beyond a reasonable doubt." 450 F.3d 39, 45-46 (1st Cir.
2006) (citing Almendarez-Torres v. United States, 523 U.S. 224, 239
(1998)). As a result, the district court did not commit plain
error in failing to apply the doctrine of constitutional avoidance
by reading into the ACCA Bennett's proposed requirement. There is
no constitutional issue and therefore nothing to avoid.
III. Conclusion
For the reasons stated above, we affirm the sentence
imposed by the district court.
Affirmed.
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