UNITED STATES OF AMERICA, PETITIONER V. RANDALL GENE CUNNINGHAM No. 89-1101 In The Supreme Court Of The United States October Term, 1989 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-6a) is reported at 878 F.2d 311; the opinion filed on denial of the petition for rehearing (App., infra, 7a-14a) is unreported. The opinion of the district court (App., infra, 15a-17a) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 27, 1989. A petition for rehearing was denied on November 24, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Title 18, United States Code, Section 922(g), provides in pertinent part: It shall be unlawful for any person -- (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; * * * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. The 1986 version of 18 U.S.C. 924 (1982 & Supp. V 1987), /1/ provides in pertinent part: * * * * (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. (2) As used in this subsection -- * * * * (B) the term "violent felony" means any crime 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. QUESTION PRESENTED Whether the Oregon offense of second degree burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e). STATEMENT 1. Respondent was indicted in the District of Oregon on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). The indictment alleged that respondent had one previous conviction for second degree burglary under Oregon state law, /2/ one previous state conviction for first degree burglary, and one previous conviction for second degree kidnapping, thus subjecting him to a minimum sentence of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V 1987). App., infra, 2a, 15a-16a. /3/ Respondent was convicted after a bench trial. Respondent then filed a motion opposing the government's request for an enhanced sentence. Respondent contended that his Oregon second degree burglary conviction was not a proper predicate offense under Section 924(e)(1) because that offense did not involve conduct that posed a serious potential risk of injury to others. /4/ After a hearing, the district court rejected that argument, concluding that "Congress intended to include for the purposes of sentence enhancement consideration of all previous burglary convictions so long as they are felonies." App., infra, 17a. The court accordingly determined that "(t)he government is entitled to seek sentence enhancement in this case," ibid., and later sentenced respondent to an enhanced term of 20 years' imprisonment under Section 924(e)(1). App., infra, 2a. 2. The court of appeals reversed and remanded for resentencing. App., infra, 1a-6a. The court followed the prior circuit precedent of United States v. Chatman, 869 F.2d 525, 527 (9th Cir. 1989), which held that the term "burglary" as defined in 18 U.S.C. 924(e)(2)(B)(ii) (Supp. V 1987) meant "common law burglary, i.e., 'the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein.'" App., infra, 3a (quoting United States v. Headspeth, 852 F.2d 753, 757 (4th Cir. 1988)). The court of appeals accordingly concluded that "(b)ecause (respondent's) Oregon state burglary conviction does not fit the definition of burglary * * * contained in section 924(e)(2)(B)(ii), it cannot serve as a basis for sentence enhancement." App., infra, 4a. /5/ Circuit Judge Skopil and District Judge McKibben, sitting by designation, filed a separate concurring opinion. App., infra, 4a-6a. Judges Skopil and McKibben stated that they "concur * * * only because (they) are bound by the holding in (Chatman)." Id. at 4a. In their view, "Chatman was wrongly decided." Ibid. They therefore wrote separately "to encourage en banc review of this case to correct the error." Ibid. 3. The government filed a petition for rehearing, together with a suggestion of rehearing en banc. On November 24, 1989, the court of appeals denied the petition. App., infra, 7a-8a. Judge O'Scannlain, joined by Judges Hall, Brunetti, Kozinski, Noonan, Thompson, and Trott, dissented from the denial of the suggestion of rehearing en banc. Id. at 8a-14a. REASONS FOR GRANTING THE PETITION In Taylor v. United States, No. 88-7194, this Court has granted certiorari to resolve the conflict among the circuits concerning the meaning of the term "burglary" under Section 924(e)(2)(B)(ii). In the decision below, the Ninth Circuit held that respondent's second degree burglary conviction was not covered under that statute. The court reasoned that because Congress failed to define the term "burglary" in the 1986 statute, that term must be construed to include only those crimes that would have been considered burglary at common law, i.e., the breaking and entering of a dwelling at night with the intent to commit a felony within. The Fourth Circuit has adopted the same view. See, e.g., United States v. Headspeth, 852 F.2d 753 (1988). On the other hand, the Fifth and Eighth Circuits have adopted a broader view, concluding that a prior state conviction is a conviction for "burglary" within the meaning of Section 924(e) if the State calls the offense burglary, but not otherwise. See, e.g., United States v. Leonard, 868 F.2d 1393 (5th Cir. 1989), petition for cert. pending, No. 88-1885; United States v. Taylor, 864 F.2d 625 (8th Cir.), cert. granted, 110 S. Ct. 231 (1989). The Third, Sixth, Seventh, Tenth, and Eleventh Circuits have taken a third view, holding that the modern, "generic" definition of burglary, which was contained in the predecessor to Section 924(e), the Armed Career Criminal Act of 1984, 18 U.S.C. App. 1202(c)(9) (Supp. II 1984), should be applied to prosecutions under the 1986 version of the statute. See, e.g., United States v. Palmer, 871 F.2d 1202 (3d Cir.), cert. denied, 110 S. Ct. 223 (1989); United States v. Taylor, 882 F.2d 1018 (6th Cir. 1989), petition for cert. pending, No. 89-5962; United States v. Dombrowski, 877 F.2d 520 (7th Cir. 1989), petition for cert. pending, No. 89-5282; United States v. Silkwood, No. 88-2096 (10th Cir. Dec. 28, 1989); United States v. Hill, 863 F.2d 1575 (11th Cir. 1989). /6/ In our submission to the Court in Taylor, /7/ we have explained that, in our view, the last of the three competing views is the correct one. Congress retained the generic definition of burglary that was contained in the predecessor Armed Career Criminal Act of 1984, a definition that reflects the prevailing modern view of the offense of burglary as defined in federal and state law. That interpretation is consistent with the language, legislative history, and purposes of the 1986 amendments to the Armed Career Criminal Act of 1984. In this case, respondent's Oregon second-degree burglary conviction qualifies as a predicate crime, since that state offense, by definition, requires entering a building belonging to another for the purpose of committing a state or federal crime. See note 2, supra. Accordingly, the Ninth Circuit erred in remanding respondent's case for resentencing. Because the Court will be addressing in Taylor precisely the same issue that is presented in this case, this petition should be held for disposition in light of this Court's decision in that case. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of Taylor v. United States, No. 88-7194. Respectfully submitted. KENNETH W. STARR Solicitor General JANUARY 1990 /1/ The 1986 version of Section 924 applies to respondent's offense. Congress has since amended 18 U.S.C. 924(e)(1) in a manner not material to this case. In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7056, 102 Stat. 4402, Congress amended Section 924(e)(1) to provide that the enhanced sentence applies to otherwise qualified felons who have "three previous convictions * * * (for offenses) committed on occasions different from one another." /2/ Oregon state law defines second degree burglary as follows: A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein. Or. Rev. Stat. Section 164.215(1) (1985). /3/ The government also filed a pretrial information, advising respondent that he was subject to an enhanced sentence under 18 U.S.C. 924(e)(1) (Supp. V 1987). /4/ Respondent did not challenge the characterization of his remaining second-degree kidnapping and first-degree burglary convictions as "violent felonies." See 18 U.S.C. 924(e)(2)(B)(i) and (ii) (Supp. V 1987). Respondent is therefore subject to an enhanced sentence if his second-degree burglary conviction qualifies as a conviction for "burglary" within the meaning of Section 924(e)(2)(B)(ii). /5/ The court of appeals also concluded that respondent's Oregon conviction does not fall within the catch-all provision of Section 924(e)(2)(B)(ii) because that offense of second-degree burglary "does not necessarily require behavior causing a serious potential risk to others." App., infra, 3a-4a. /6/ The First Circuit has declined to adopt any of those three constructions. See United States v. Patterson, 882 F.2d 595 (1989), petition for cert. pending, No. 89-5881. Having determined that it "frankly cannot divine how Congress intended to define burglary" in the 1986 version of the Armed Career Criminal Act, the First Circuit refused to hold that a defendant's convictions for "breaking and entering" under Massachusetts law constituted "burglary" within the meaning of Section 924(e)(2)(B)(ii). Nonetheless, the court held that the defendant was subject to an enhanced sentence, because his conduct fell within the catch-all phrase of that section, which defines a "violent felony" to include any "conduct that presents a serious potential risk of physical injury to another." 882 F.2d at 604. /7/ See U.S. Br. at 11-37. We have provided a copy of our brief in Taylor to counsel for respondent in this case. APPENDIX