CLYDE DICKERSON, PETITIONER V. UNITED STATES OF AMERICA No. 88-6435 In the Supreme Court of the United States October Term, 1988 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief for the United States in Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. C1-C11) is reported at 857 F.2d 414. JURISDICTION The judgment of the court of appeals was entered on September 15, 1988. A petition for rehearing was denied on October 26, 1988. The petition for a writ of certiorari was filed on December 24, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. IV), where the particular burglary does not involve "conduct that presents a serious potential risk of physical injury to another." STATEMENT After a jury trial in the United States District Court for the Southern District of Illinois, petitioner was convicted of possession of an unregistered firearm, in violation of 26 U.S.C. 5861(d) and 5871 (Count 2), and possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count 3). /1/ He was sentenced to a term of five years' imprisonment on Count 1, and a concurrent term of eight years' imprisonment on Count 2. On Count 3, petitioner was sentenced to a term of four years' imprisonment to run concurrently with the sentence imposed on Count 1, and an additional term of 15 years' imprisonment under the enhancement provision of 18 U.S.C. 924(e)(1) (Supp. IV), the latter enhanced sentence to run consecutively to the sentences imposed on Counts 1 and 2. Pet. C.A. Br. App. I (Judgment and Probation/Commitment Order). The court of appeals affirmed petitioner's conviction but remanded for resentencing. Pet. App. C1-C11. /2/ 1. In the district court, the government filed a pretrial "Amended Information" that charged petitioner with three previous state convictions for burglary and one previous state conviction for robbery, thus subjecting petitioner to the enhanced sentence of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. IV) (Pet. App. B1-B3). /3/ Each burglary involved breaking and entering into vacant residences in order to steal property. Neither petitioner nor his cohorts were armed in the course of any of these burglaries. Two of these burglaries occurred at night. Pet. C.A. Br. App. III, at 3-11 (sentencing hearing). At the sentencing hearing, petitioner contended that his burglary convictions were not proper predicate offenses under Section 924(e)(1) because those crimes did not involve actual or potential injury to others. The district court rejected that argument and sentenced petitioner to an enhanced term of 15 years' imprisonment under Section 924(e)(1). It found that "the plain language of the statute" shows that Congress intended that any "burglary is a violent felony" (Pet. C.A. Br. App. III, at 13, 14). 2. The court of appeals affirmed (Pet. App. C1-C11). /4/ The court dismissed petitioner's argument that Section 924(e) "only applies to felonies that involve actual or potential injury to others" (id. at C10), concluding that "(i)t is clear from the language of the statute that all burglaries satisfy the prerequisites of Section 924" (Pet. App. C10). As the court explained, "if Congress intended to include only crimes in which serious physical injury was involved, it would have worded the statute to say 'burglary, arson, or extortion, and involves use of explosives or otherwise involves conduct that presents a serious risk of physical injury to another'" (id. at C10-C11 (emphasis in original)). ARGUMENT 1. Petitioner renews his contention (Pet. 3-7) that burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. IV), only where the particular burglary "involve(s) actual or potential physical injury to another" (Pet. 3). The language of the statute forecloses that argument. Section 924(e)(2)(B)(ii) clearly defines any "burglary" as a "violent felony" for purposes of the sentence enhancement provision of Section 924(e)(1). As the court of appeals correctly recognized (Pet. App. C10-C11), if Congress had intended to include only crimes that involve a serious risk of physical injury, it would have drafted the statute differently to read "burglary, arson, or extortion, and involves use of explosives or otherwise involves conduct that presents a serious risk of physical injury to another." The statute plainly provides, however, that a "violent felony" is any felony that either "is burglary, arson, or extortion * * * or otherwise involves conduct that presents a serious potential risk of physical injury to another" (18 U.S.C. 924(e)(2)(B)(ii) (Supp. IV)). /5/ Moreover, the legislative history supports this straightforward construction of the statute. The predecessor to Section 924(e)(1), 18 U.S.C. App. 1202 (1982 & Supp. II), was enacted as part of the Armed Career Criminal Act of 1984. Under that provision, anyone in possession of a firearm who had "three previous convictions * * * for robbery or burglary, or both" would be "imprisoned (for) not less than fifteen years * * *." The statute further defined "burglary" as "any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense" (18 U.S.C. App. 1201(c)(9) (1982 & Supp. II)). By its terms, this broad definition did not restrict a "burglary" to those offenses that posed a risk of physical injury. /6/ Enacted as part of the Anti-Drug Abuse Act of 1986, "the Career Criminal Amendments Act of 1986," Pub. L. No. 99-570, Sections 1401-1402, 100 Stat. 3207, 3207-39 to 3207-40 (1986), amended Section 924(e) by including additional predicate acts, such as certain "serious drug offenses," and by eliminating that provision's definition of "burglary." After surveying the pertinent legislative history, one court observed that "the purpose of the 1986 amendments to section 924(e) was to expand the predicate offenses, not restrict them." United States v. Hill, 863 F.2d 1575, 1581 (11th Cir. 1989); see id. at 1578-1581. The legislative history consequently suggests "that Congress intended that any burglary that would have met the definition of burglary under the previous act would fall within the meaning of burglary" under the amended statute (id. at 1582). Petitioner mistakenly relies (Pet. 4) on an excerpt from the House Report, H.R. Rep. No. 849, 99th Cong., 2d Sess. 7 (1986), accompanying an earlier version of Section 924(e) set forth in House Bill 4885. That bill had not specifically listed "burglary" as a "violent felony." Rather, the bill defined "violent felony" as any crime punishable by more than one year in prison that "involves conduct that presents a serious risk of physical injury to another." H.R. 4885, 99th Cong., 2d Sess. Section 2 (1986); see H.R. Rep. No. 849, 99th Cong., 2d Sess. 4, 6-7 (1986). Before enacting the Anti-Drug Abuse Act of 1986, Congress amended that provision to define "violent felony" as a felony that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a potential serious risk of physical injury to another." 18 U.S.C. 924(e)(2)(B)(ii) (Supp. IV) (emphasis added); see United States v. Hill, 863 F.2d at 1581. The insertion of the word "burglary," which had been part of the predecessor statutes, confirms that Congress had no intention of treating burglaries as "violent felonies" only if those offenses involved a "serious potential risk of physical injury to another." 2. Petitioner also asserts (Pet. 3, 8) that the courts of appeals have divided over the question whether Section 924(e) applies only to burglaries that pose a potential risk of physical injury to another. The courts of appeals have adopted conflicting constructions of Section 924(e), but not concerning the issue petitioner presents. Rather, the courts have disagreed over whether the statute includes only those burglaries that would be treated as such under common law, namely, the "breaking and entering a dwelling house of another in the nighttime with intent to commit a felony." 2 W. LaFave & A. Scott, Substantive Criminal Law Section 8.13, at 464 (1986). Two courts of appeals have held that the statutory reference to "burglary" is not limited to the common law definition of burglary. See United States v. Hill, 863 F.2d 1575, 1578-1582 (11th Cir. 1989) (nonviolent daytime burglaries of businesses); United States v. Portwood, 857 F.2d 1221, 1223-1224 (8th Cir. 1988) (nonviolent entry of building for purpose of committing crime). Those courts have concluded that Congress intended to retain the broad definition of burglary already common among the federal government and States today, i.e., the unlawful entering of a building or residence belonging to another for the purpose of committing an offense. E.g., United States v. Hill, 863 F.2d at 1582 & n.5; United States v. Portwood, 857 F.2d at 1223-1224; see 18 U.S.C. 2118(b) (burglaries involving controlled substances); cf. Bell v. United States, 462 U.S. 356, 358-362 (1983) (18 U.S.C. 2113(b) proscribes the crime of obtaining money under false pretenses, statute is not limited to common law larceny); Perrin v. United States, 444 U.S. 37, 41-45 (1979) (bribery under the Travel Act, 18 U.S.C. 1952, not confined to common law definition). On the other hand, the Fourth and the Ninth Circuits have concluded that Section 924(e) includes only those burglaries that meet the strict common law definition, and thus the statute does not cover such offenses as "storehouse breaking," United States v. Headspeth, 852 F.2d 753, 758 (4th Cir. 1988), and "auto burglary," United States v. Chatman, No. 87-5351 (9th Cir. Mar. 9, 1989), slip op. 2006-2008. In our view, as the Eleventh Circuit's decision in United States v. Hill shows convincingly, these latter decisions have misconstrued Congress's intent in reinserting the predicate offense of "burglary" into Section 924(e). Nevertheless, this case is not the proper vehicle for the Court to resolve the issue on which the lower courts are divided. First, no court of appeals has agreed with petitioner's reading of Section 924(e) that the burglary offense must involve a potential risk of physical injury to a person. Even those courts that have adopted the stringent common law reading of the term burglary have not at all suggested that the offense must actually involve a risk of physical injury. Accordingly, until a court has adopted the construction of the statute advocated by petitioner, review by this Court would be premature. Second, petitioner did not present to the court of appeals the argument that has divided the circuits. He did not suggest that the daytime burglary could not be counted against him because it did not fall within the common law definition of burglary. Instead, his argument in the court of appeals was limited to the contention that none of the three burglaries involved actual or potential violence. Petitioner has therefore waived the argument on which the courts of appeals are divided. In light of petitioner's failure to raise the issue below, it is not surprising that the court of appeals did not address it. Thus, the Seventh Circuit has not taken a position on the question that has divided four of the other courts of appeals and there is therefore no reason for this Court to review the issue in this case. Third, it is not at all clear that petitioner would prevail under the interpretation of Section 924(e) adopted by the Fourth and Ninth Circuits. Only one of petitioner's burglary convictions would not meet the traditional common law test because it occurred during "daylight hours" (Pet. C.A. Br. App. III, at 9). To be sure, when rejecting the application of Section 924(e) to offenses that are quite different from common law burglary, such as "auto burglary" and "storehouse breaking," those courts have embraced the strict common law definition of burglary. Those courts, however, have not had an opportunity to consider whether that narrow definition would apply to an offense similar to common law burglary in the potential for physical injury -- breaking and entering a residence during the day in order to commit larceny. Since "(t)here is no jurisdiction (in the United States) which presently requires for all grades of (burglary) that the acts be done in the night," 2 W. LaFave & A. Scott, supra, Section 8.13(d), at 473, the courts might well be reluctant to apply to such facts "a definition of burglary that has become an anachronism," United States v. Hill, 863 F.2d at 1582. /7/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General GEOFFREY R. BRIGHAM Attorney MARCH 1989 /1/ Before trial, petitioner pleaded guilty to interstate transportation of stolen property, in violation of 18 U.S.C. 2314 (Count 1). /2/ The court of appeals agreed with petitioner that the district court erred in imposing two separate sentences on Count 3 (Pet. App. C4-C10). It also found ambiguities in the actual sentence imposed by the district court (id. at C2 n.2). Consequently, the court of appeals remanded the case in order for petitioner to be resentenced on all counts (id. at C11). /3/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) (Supp. IV) applies to previously convicted felons who possess or receive a firearm in violation of 18 U.S.C. 922(g). Title 18, United States Code, Section 924(e)(1), provides in pertinent part: 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 * * *. Title 18, United States Code, Section 922(g)(1), refers to any "convict(ion) in any court of a crime punishable by imprisonment for a term exceeding one year." Title 18, United States Code, Section 924(e)(2)(B), provides: 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. /4/ As mentioned above, see note 2, supra, the court of appeals remanded the case for resentencing. /5/ Indeed, under petitioner's interpretation, the statutory reference to burglary, arson, and extortion would serve no purpose since those terms would be fully comprehended within the catchall category. /6/ The Firearms Owners' Protection Act of 1986, Pub. L. 99-308, Sections 102, 104, 100 Stat. 449, 456-459 (1986), recodified 18 U.S.C. App. 1202 (1982 & Supp. II), without change, as 18 U.S.C. 924(e) (Supp. IV). See United States v. Headspeth, 852 F.2d 753, 757 n.1 (4th Cir. 1988). /7/ In any event, the record shows that apart from committing two offenses of common law burglary, petitioner was previously convicted of robbery, an offense that certainly falls within the meaning of "violent felony" under Section 924(e)(2)(B). See Pet. App. B2, C10; Pet. C.A. Br. App. III, at 9. Accordingly, petitioner would appear to qualify for the sentence enhancement under the approach followed by the Fourth and Ninth Circuits, without ever reaching the question of whether petitioner's daytime burglary falls within the statutory definition.