05-5462-cr USA v. Brown
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 - - - - - -
4 August Term, 2007
5 (Argued: October 17, 2007 Decided: January 30, 2008)
7 Docket No. 05-5462-cr
8 _________________________________________________________
9 UNITED STATES OF AMERICA,
10 Appellee,
11 - v. -
12 SEAN BROWN,
13 Defendant-Appellant. 14 _________________________________________________________
15 Before: KEARSE and HALL, Circuit Judges, and RAKOFF,
16 District Judge*.
17 Appeal from a judgment of the United States District Court
18 for the Eastern District of New York, Sterling Johnson, Jr., Judge,
19 following a remand pursuant to United States v. Crosby, 397 F.3d 103
20 (2d Cir. 2005), resentencing defendant to 84 months' imprisonment in
21 light of his prior state-law conviction of third-degree burglary,
22 considered as a crime of violence, and his possession of firearms
23 whose serial numbers had been obliterated.
24 Affirmed; remanded for clerical correction of judgment.
* Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 1 ADAM ABENSOHN, Assistant United States 2 Attorney, Brooklyn, New York (Roslynn R. 3 Mauskopf, United States Attorney for the 4 Eastern District of New York, Emily Berger, 5 Assistant United States Attorney, Brooklyn, New 6 York, on the brief), for Appellee.
7 MICHAEL S. POLLOK, New York, New York, filed a 8 brief for Defendant-Appellant.
9 KEARSE, Circuit Judge:
10 Defendant Sean Brown, who pleaded guilty in the United
11 States District Court for the Eastern District of New York before
12 Sterling Johnson, Jr., Judge, to one count of unlicensed gun
13 dealing, in violation of 18 U.S.C. § 922(a)(1)(A), and seven counts
14 of being a felon in possession of a firearm, in violation of 18
15 U.S.C. § 922(g)(1), appeals from a judgment entered following a
16 remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.
17 2005) ("Crosby"), sentencing him under the advisory Sentencing
18 Guidelines principally to 84 months' imprisonment, to be followed by
19 a three-year term of supervised release. On appeal, Brown contends
20 that the district court erred in increasing his offense level on the
21 grounds (a) that on some of the firearms he possessed the serial
22 numbers had been obliterated, and (b) that his prior crime of third-
23 degree burglary constituted a crime of violence. He also contends
24 that his sentence is unreasonable on the grounds that the district
25 court (a) failed to consider, inter alia, some of the sentencing
26 factors set forth in 18 U.S.C. § 3553(a), and (b) reimposed a
27 sentence that the court had originally indicated was inappropriate.
-2- 1 For the reasons that follow, we find no basis for reversal.
2 I. BACKGROUND
3 The events leading to this prosecution are not in dispute.
4 In a series of transactions in late 2002 and early 2003, Brown sold
5 seven guns to undercover police officers. On two of those guns, the
6 serial numbers were obliterated. Brown was indicted on, inter alia,
7 one count of unlicensed gun dealing, in violation of 18 U.S.C.
8 § 922(a)(1)(A), and seven counts of being a felon in possession of
9 a firearm, in violation of 18 U.S.C. § 922(g)(1). Brown pleaded
10 guilty to those eight counts. The indictment also charged him with
11 two counts of knowingly possessing firearms with obliterated serial
12 numbers, in violation of 18 U.S.C. § 922(k); the court refused to
13 accept a plea of guilty to those two counts because Brown maintained
14 that he did not know the serial numbers on the guns were
15 obliterated.
16 A. The Guidelines Calculations
17 A presentence report ("PSR") prepared on Brown initially
18 calculated that his recommended range of imprisonment under the 2003
19 version of the Guidelines ("2003 Guidelines"), which was applied to
20 him, was 57-71 months. The PSR described Brown's criminal record,
21 which included three convictions for felonies under New York State
22 ("State") law: a 1989 conviction for criminal possession of a
23 weapon, a 1991 conviction for attempted burglary, and a 1993
24 conviction for burglary. As to the 1993 burglary conviction, the
-3- 1 PSR stated that, according to his State presentence report, Brown
2 had explained to a State parole officer that someone had owed him
3 money and that, when Brown had not received payment for several
4 months, he broke into the home of his debtor's mother and stole her
5 jewelry.
6 The above three convictions gave Brown nine criminal
7 history points and placed him in criminal history category ("CHC")
8 IV. The PSR calculated Brown's base offense level as 20 on the
9 premise that he had committed the instant offenses after having been
10 convicted of one prior crime of violence, see 2003 Guidelines
11 § 2K2.1(a)(4)(A), to wit, the attempted burglary of which he was
12 convicted in 1991. See also id. § 2K2.1 Application Note 5
13 (stating, in pertinent part, that "[f]or purposes of this guideline
14 . . . '[c]rime of violence' has the meaning given that term in
15 § 4B1.2(a)"). The PSR also stated that at least two of the firearms
16 sold by Brown had obliterated serial numbers. After a two-step
17 increase for possession of firearms with obliterated serial numbers,
18 see id. § 2K2.1(b)(4), a two-step increase on the ground that
19 Brown's offenses involved seven firearms, see id. § 2K2.1(b)(1), and
20 a three-step decrease for acceptance of responsibility, see id.
21 § 3E1.1(b), Brown's total offense level was 21.
22 However, the PSR was subsequently amended to increase that
23 level. An addendum stated that a closer examination of New York
24 statutes and this Court's decision in United States v. Andrello,
25 9 F.3d 247 (2d Cir. 1993) ("Andrello"), cert. denied, 510 U.S. 1137
26 (1994), revealed that Brown's 1993 burglary was a crime of violence,
27 and hence that Brown's record included two crimes of violence rather
-4- 1 than one as stated in the original PSR. The base offense level of
2 a defendant with two such prior convictions was 24. See 2003
3 Guidelines § 2K2.1(a)(2). Thus, the amended PSR concluded that,
4 with the other adjustments remaining the same, Brown's total offense
5 level was 25. That offense level, combined with a CHC of IV,
6 resulted in a Guidelines-recommended imprisonment range of 84-105
7 months.
8 B. The March 2004 Sentencing
9 Brown made no objections to the statements or calculations
10 in the PSR, either as originally issued or as amended, except with
11 respect to the recommended two-step increase in offense level for
12 possession of firearms with obliterated serial numbers. He did not
13 suggest that the serial numbers were not in fact obliterated;
14 rather, he contended that the enhancement was inappropriate because
15 he did not know they were obliterated, and because the district
16 court had refused to accept his plea of guilty to the § 922(k)
17 charges that he had "knowingly" possessed firearms with obliterated
18 serial numbers. Brown argued that his Guidelines imprisonment
19 range, without that enhancement, should be 70 to 87 months. (See,
20 e.g., Sentencing Transcript March 26, 2004 ("2004 S.Tr."), at 7.)
21 The government responded that while 18 U.S.C. § 922(k)
22 itself applies only if the defendant had knowledge that a firearm's
23 serial number was removed, altered, or obliterated, the pertinent
24 Guidelines section stated simply, "[i]f any firearm . . . had an
25 altered or obliterated serial number, increase by 2 levels," 2003
26 Guidelines § 2K2.1(b)(4). The government pointed out that the
-5- 1 commentary to that guideline provided that the enhancement under
2 subsection (b)(4) for a "[f]irearm with altered or obliterated
3 serial number applies whether or not the defendant knew or had
4 reason to believe that the firearm had an altered or obliterated
5 serial number." (2004 S.Tr. at 6 (referring to 2003 Guidelines
6 § 2K2.1 Application Note 19).) Thus, the guideline had no scienter
7 requirement.
8 Judge Johnson addressed both sides' positions, stating as
9 follows:
10 Problem I have with the government's position is the 11 fact that the defendant had pled to eight counts for 12 aggregating [sic] circumstances, the government 13 wants to charge him basically with ten [sic] guns, 14 two which he said he didn't know the guns were -- 15 the serial numbers were obliterated and while 16 according to the law the government has the right to 17 do that, it is not the right thing to do.
18 The government's calculations with respect to 19 their position is 84 to 105 months. The defendant's 20 position is that it should be 70 to 87 months. The 21 problem that I have with the defendant's position is 22 that he is in a criminal category history four. It 23 is not that this is his first contact with the 24 criminal justice system.
25 If he were not a criminal category history 26 four, notwithstanding Sentencing Guidelines as 27 related by the government, I would sentence him to 28 70 months. However, I'm going to sentence the 29 defendant to the custody of the Attorney General or 30 his duly authorized representative for a period of 31 84 months.
32 (2004 S.Tr. at 20-21.)
33 Judgment was entered on March 31, 2004, and Brown timely
34 appealed. On appeal, Brown was represented by new counsel, and his
35 new attorney filed a brief pursuant to Anders v. California, 386
36 U.S. 738 (1967), and moved to withdraw as counsel, stating that
-6- 1 Brown had no nonfrivolous issues for appeal. The government moved
2 for summary affirmance. In January 2005, the United States Supreme
3 Court decided United States v. Booker, 543 U.S. 220 (2005), holding
4 that the Guidelines are not mandatory but advisory. Thereafter,
5 this Court granted Brown's new attorney's motion to withdraw; but we
6 denied the government's motion for summary affirmance, instructed
7 that new counsel be appointed for Brown, and, without reaching any
8 merits questions, summarily remanded the case to the district court,
9 in accordance with Crosby, 397 F.3d at 119, to permit the court to
10 determine whether its original sentence would have been nontrivially
11 different under the post-Booker advisory-Guidelines regime.
12 C. The Sentencing on Remand
13 On remand, Judge Johnson decided to resentence Brown; the
14 attorney who had represented Brown throughout virtually all of the
15 prior district court proceedings was appointed to represent him.
16 Thereafter, the parties submitted written arguments and the court
17 held a hearing, attended by counsel and Brown. Brown's attorney
18 reiterated his prior argument that notwithstanding the fact that the
19 Guidelines § 2K2.1(b)(4) enhancement was, on its face, applicable
20 even if the defendant did not know the serial numbers were
21 obliterated, Brown should not have his punishment increased on
22 account of a fact that he denied knowing. (See, e.g., Sentencing
23 Transcript September 23, 2005 ("2005 S.Tr."), at 5 ("Even though it
24 is something the defendant doesn't have to know, he still has not
25 pled guilty to that.").)
26 Brown's attorney also advanced a new contention, saying he
-7- 1 had "missed it the first time around," arguing that Brown's 1993
2 felony of third-degree burglary should not have been considered a
3 crime of violence. (2005 S.Tr. at 3.) He argued that that burglary
4 conviction resulted from Brown's plea of guilty to burglary of a
5 "building"; that burglary of a "building" did not fall within the
6 Guidelines definition of crime of violence, which referred to
7 burglary of a "dwelling," see Guidelines 2003 § 4B1.2(a); and that
8 that conviction thus could not justify a base offense level of 24
9 under § 2K2.1(a)(2). (2005 S.Tr. at 4.) Brown's attorney pointed
10 out that if the 1993 burglary were not treated as a crime of
11 violence and the enhancement for the obliterated serial numbers were
12 eliminated, Brown's advisory Guidelines-recommended imprisonment
13 range would be 46-57 months. (See 2005 S.Tr. at 7.)
14 The government opposed Brown's contentions, citing this
15 Court's decision in Andrello, 9 F.3d 247, and the Guidelines
16 themselves. The Assistant United States Attorney ("AUSA") argued
17 that Andrello "deem[ed] burglary in the third degree under New York
18 law . . . to constitute [a] crime[] of violence" (2005 S.Tr. at 8)
19 and hence foreclosed Brown's contention that his 1993 burglary
20 should not be considered a crime of violence under § 4B1.2(a). The
21 AUSA also reiterated the government's position that Guidelines
22 § 2K2.1(b)(4), calling for an offense-level increase for possession
23 of a gun with an obliterated serial number, is "a strict liability
24 provision" that did not require knowledge (2005 S.Tr. at 8).
25 After hearing counsel's arguments and a statement from
26 Brown, the district court resentenced Brown under the post-Booker
27 sentencing regime and imposed the same 84-month term of imprisonment
-8- 1 it had imposed originally. The court stated as follows:
2 The sentencing landscape has been changed by Booker 3 . . . .
4 . . . Crosby tells us that the court must 5 consider the guidelines because they are advisory 6 and then look at the factors in 3553(a) and if you 7 look at the factors in 3553(a)(2)(A), to reflect the 8 seriousness of the offense and to promote respect 9 for the law and to provide just punishment for an 10 offense and in this situation the defendant is a 11 prior felon who was selling a number of firearms to 12 undercover police officers . . . .
13 . . . .
14 . . . And then 3553(a)(2)(B) says to afford 15 adequate deterrence to criminal conduct. This 16 defendant is not unfamiliar with the criminal 17 justice system. He has numerous run-ins with the 18 criminal justice system and there are at least two 19 felonies that he's been convicted of; is that 20 correct?
21 MR. ABENSOHN [the AUSA]: I believe there are 22 three prior felonies but two qualify as crimes of 23 violence for purposes of the statute, Your Honor.
24 THE COURT: And 3553(a)(2)(C) says to protect 25 the public from further crimes of the defendant and 26 this defendant on one instance had escaped custody 27 for a state conviction and while in that escape 28 status committed another felony . . . .
29 . . . .
30 . . . Well, I have taken all of this into 31 consideration and I have looked at the guidelines 32 and I am going to impose the same sentence that I 33 imposed before. I sentence the defendant to the 34 custody of the Attorney General or his duly 35 authorized representative for a period of 84 months 36 to run concurrent on each count . . . .
37 (2005 S.Tr. at 10-12.) Judgment was entered, and this appeal
38 followed.
39 II. DISCUSSION
-9- 1 On this appeal, Brown contends principally (a) that his
2 1993 burglary should not have been considered a crime of violence,
3 (b) that his advisory-Guidelines offense level should not have been
4 increased on account of the guns' obliterated serial numbers, and
5 (c) that his sentence is unreasonable because the district court did
6 not consider some of the § 3553(a) sentencing factors and because
7 the judge reimposed the same 84-month sentence despite having,
8 according to Brown, "specifically stated at the initial sentencing
9 that he would have sentenced [Brown] to 70 months if he had the
10 choice" (Brown brief on appeal at 10). For the reasons that follow,
11 we find no merit in his contentions.
12 A. Standard of Review
13 Following the Supreme Court's decision in Booker, holding
14 that the Guidelines are advisory rather than mandatory, a sentencing
15 court must determine an appropriate sentence by considering the
16 factors set forth in 18 U.S.C. § 3553(a). See, e.g., Booker, 543
17 U.S. at 259-60; Crosby, 397 F.3d at 111. Since those factors
18 include the sentencing ranges established for "the applicable
19 category of offense committed by the applicable category of
20 defendant as set forth in the guidelines" issued by the Sentencing
21 Commission, 18 U.S.C. § 3553(a)(4)(A), the court is required to make
22 a "determination of the applicable Guidelines range, or at least
23 identification of the arguably applicable ranges," despite the fact
24 that such ranges are now advisory. Crosby, 397 F.3d at 113; see,
- 10 - 1 e.g., Gall v. United States, 128 S. Ct. 586, 596 (2007) ("[A]
2 district court should begin all sentencing proceedings by correctly
3 calculating the applicable Guidelines range. . . . [T]he Guidelines
4 should be the starting point and the initial benchmark."); United
5 States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006); United
6 States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005). Other
7 § 3553(a) factors that the sentencing court must consider include
8 "the nature and circumstances of the offense," 18 U.S.C.
9 § 3553(a)(1), "the history and characteristics of the defendant,"
10 id., and the need for the sentence that is imposed to, inter alia,
11 "reflect the seriousness of the offense, . . . promote respect for
12 the law, . . . provide just punishment for the offense[,] . . .
13 afford adequate deterrence to criminal conduct[, and] . . . protect
14 the public from further crimes of the defendant," id.
15 §§ 3553(a)(2)(A), (B), and (C).
16 In the post-Booker era, we review sentences for
17 reasonableness, see Booker, 543 U.S. at 261-62, a standard that is
18 "akin to review for abuse of discretion," United States v.
19 Fernandez, 443 F.3d 19, 27 (2d Cir.) ("Fernandez"), cert. denied,
20 127 S. Ct. 192 (2006); see, e.g., Gall, 128 S. Ct. at 594 ("[T]he
21 Booker opinion made it pellucidly clear that the familiar abuse-of-
22 discretion standard of review now applies to appellate review of
23 sentencing decisions."); Crosby, 397 F.3d at 114. "Reasonableness
24 review involves consideration of both the length of the sentence
25 (substantive reasonableness) and the procedures used to arrive at
26 the sentence (procedural reasonableness)." United States v. Canova,
27 485 F.3d 674, 679 (2d Cir. 2007).
- 11 - 1 As to substantive reasonableness, the "numerous
2 [§ 3553(a)] factors that guide sentencing . . . . guide appellate
3 courts . . . in determining whether a sentence is unreasonable."
4 Booker, 543 U.S. at 261. Thus, in reviewing a sentence for
5 "substantive reasonableness, . . . we consider whether the length of
6 the sentence is reasonable in light of the factors outlined in 18
7 U.S.C. § 3553(a)." United States v. Rattoballi, 452 F.3d at 132.
8 In reviewing for procedural reasonableness, we consider, inter alia,
9 whether the sentencing judge treated the Guidelines as advisory and
10 whether he considered the Guidelines and all of the other factors
11 listed in § 3553(a). See, e.g., id. at 131-32. A sentence would be
12 procedurally unreasonable if, for example, the sentencing judge
13 misinterpreted a relevant guideline or failed to consider the
14 factors listed in § 3553(a).
15 We have not insisted that sentencing judges slavishly
16 follow any particular formula in considering the § 3553(a) factors.
17 See, e.g., Crosby, 397 F.3d at 113 ("[W]e will no more require
18 'robotic incantations' by district judges [post-Booker] than we did
19 when the Guidelines were mandatory."). Instead,
20 we presume, in the absence of record evidence 21 suggesting otherwise, that a sentencing judge has 22 faithfully discharged her duty to consider the 23 statutory factors. . . . [A]nd we will not conclude 24 that a district judge shirked her obligation to 25 consider the § 3553(a) factors simply because she 26 did not discuss each one individually or did not 27 expressly parse or address every argument relating 28 to those factors that the defendant advanced.
29 Fernandez, 443 F.3d at 30. "As long as the judge is aware of both
30 the statutory requirements and the sentencing range or ranges that
31 are arguably applicable, and nothing in the record indicates
- 12 - 1 misunderstanding about such materials or misperception about their
2 relevance, we will accept that the requisite consideration has
3 occurred." United States v. Fleming, 397 F.3d 95, 100 (2d Cir.
4 2005).
5 B. Third-Degree Burglary as a Crime of Violence
6 Brown contends that the district court committed
7 procedural error by interpreting § 4B1.2(a), the Guidelines
8 definition of "crime of violence," as encompassing his 1993 New York
9 felony of third-degree burglary. We conclude, in light of (a) the
10 residual clause at the end of the § 4B1.2(a) definition, (b) the
11 identically worded residual clause in 18 U.S.C. § 924(e)'s
12 definition of "violent felony," (c) the interpretation of § 924(e)
13 by the Supreme Court in Taylor v. United States, 495 U.S. 575
14 (1990), and this Court in Andrello, 9 F.3d 247, with respect to the
15 nature of burglaries, (d) this Court's parallel constructions of
16 § 4B1.2(a)'s concept of "crime of violence" and § 924(e)'s concept
17 of "violent felony" in analyzing non-burglary felonies, and (e) the
18 absence of a relevant statement by the Sentencing Commission
19 interpreting § 4B1.2(a)'s residual clause, that the district court
20 did not misinterpret the Guidelines definition.
21 The Guidelines definition of "crime of violence" provided
22 that that term
23 means any offense under federal or state law, 24 punishable by imprisonment for a term exceeding one 25 year, that--
26 (1) has as an element the use, attempted 27 use, or threatened use of physical force 28 against the person of another, or
- 13 - 1 (2) is burglary of a dwelling, arson, or 2 extortion, involves use of explosives, or 3 otherwise involves conduct that presents a 4 serious potential risk of physical injury to 5 another.
6 2003 Guidelines § 4B1.2(a) (emphases added); see also Guidelines
7 § 4B1.2(a) (2007) (same). In determining whether a given crime fits
8 within the definition of the relevant predicate offenses, we take a
9 "categorical" approach; that is, we generally look only to the
10 statutory definition of the prior offense of conviction rather than
11 to the underlying facts of that offense. Taylor, 495 U.S. at 600.
12 Under New York law, "[a] person is guilty of burglary in
13 the third degree when he knowingly enters or remains unlawfully in
14 a building with intent to commit a crime therein." N.Y. Penal Law
15 § 140.20 (McKinney 1999). Plainly, "building[s]" include structures
16 other than "dwelling[s]"; hence, the New York crime of third-degree
17 burglary does not categorically fit within the first clause of
18 § 4B1.2(a)(2)'s definition of crime of violence, i.e., "burglary of
19 a dwelling." The question thus is whether third-degree burglary
20 fits within the last clause of the § 4B1.2(a)(2) definition, i.e.,
21 the residual clause encompassing any felony that "otherwise involves
22 conduct that presents a serious potential risk of physical injury to
23 another."
24 Most of our Sister Circuits dealing with state laws
25 defining crimes of burglary have struggled to determine whether
26 interpreting § 4B1.2(a)(2)'s residual "otherwise involves" clause to
27 include burglary of a building that is not a dwelling is foreclosed
28 by that definition's earlier specific mention of "burglary of a
- 14 - 1 dwelling" (emphasis added). Some Circuits have answered this
2 question in the affirmative, concluding that only burglaries of
3 dwellings are to be considered crimes of violence under
4 § 4B1.2(a)(2). See, e.g., United States v. Harrison, 58 F.3d 115,
5 119 (4th Cir. 1995); United States v. Spell, 44 F.3d 936, 938-39
6 (11th Cir. 1995); United States v. Smith, 10 F.3d 724, 733 (10th
7 Cir. 1993). Others have concluded that burglary of a commercial
8 building involves conduct that presents a serious potential risk of
9 physical injury to another, and hence burglary of such a non-
10 dwelling is also a crime of violence, falling within the scope of
11 § 4B1.2(a)(2)'s last clause. See, e.g., United States v. Hascall,
12 76 F.3d 902, 906 (8th Cir.) ("Hascall"), cert. denied, 519 U.S. 948
13 (1996); United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992),
14 cert. denied, 507 U.S. 1024 (1993). Still other Circuits have ruled
15 that whether burglary of a building other than a dwelling should be
16 considered a crime of violence within the meaning of the residual
17 clause of § 4B1.2(a)(2) depends on the circumstances of the crime.
18 See, e.g., United States v. Matthews, 374 F.3d 872, 880 (9th Cir.
19 2004); United States v. Hoults, 240 F.3d 647, 651-52 (7th Cir.
20 2001); United States v. Wilson, 168 F.3d 916, 928-29 (6th Cir. 1999)
21 ("Wilson"); United States v. Jackson, 22 F.3d 583, 585 (5th Cir.
22 1994).
23 The Sentencing Commission, for its part, has not since
24 1989 clarified the intended reach of § 4B1.2's definition of crime
25 of violence. As the Sixth Circuit noted in Wilson,
26 [t]he Sentencing Commission has considered and 27 failed to adopt various amendments to section 4B1.2 28 over the years which would address the question of
- 15 - 1 whether "burglary of a dwelling" should be 2 interpreted broadly or narrowly. For example, in 3 December 1992, the Commission considered a proposed 4 amendment to the definition of a crime of violence 5 which would have amended that section "to include 6 all burglaries, and not just burglaries of a 7 dwelling." 57 Fed.Reg. 62832, 62856-57 (proposed 8 Dec. 31, 1992). This proposed change was rejected. 9 Subsequently, in 1993, another proposed amendment 10 sought to add language to application note 2 which 11 would have clarified that, "The term 'crime of 12 violence' includes burglary of a dwelling (including 13 any adjacent outbuilding considered part of the 14 dwelling). It does not include other kinds of 15 burglary." 58 Fed.Reg. 67522, 67533 (proposed 16 December 21, 1993). The Commission also failed to 17 adopt this approach.
18 168 F.3d at 928 (emphases added). The Wilson court concluded:
19 "'[w]e fail to see how the Commission's inconsistent path supports
20 a particular view on this issue.'" Id. (quoting Hascall, 76 F.3d at
21 906).
22 We note that at one time the Sentencing Commission had
23 taken the position that the Guidelines definition of crime of
24 violence did not include burglaries of non-dwellings. The original
25 Guidelines defined crime of violence by adopting the definition of
26 that term as it appeared in 18 U.S.C. § 16. Guidelines § 4B1.2(1)
27 (1987) (renumbered § 4B1.2(a) in 1997, Guidelines Appendix C, Vol.
28 I, Amendment 568, at 526 (eff. Nov. 1, 1997)); see 18 U.S.C. § 16
29 (defining crime of violence to encompass any "felony . . . that, by
30 its nature, involves a substantial risk that physical force against
31 the person or property of another may be used in the course of
32 committing the offense"). The commentary to the original § 4B1.2
33 stated that the Commission interpreted the crime-of-violence
34 definition to mean that "[c]onviction for burglary of a dwelling
35 would be covered" but that "conviction for burglary of other
- 16 - 1 structures would not be covered." Guidelines § 4B1.2 Application
2 Note 1 (1987) (emphasis added). However, this stated interpretation
3 was short-lived.
4 In 1989, the Commission amended § 4B1.2 "to clarify" the
5 definition of crime of violence. Guidelines Appendix C, Vol. I,
6 Amendment 268 (eff. Nov. 1, 1989) ("Amendment 268"), at 133. The
7 reference to 18 U.S.C. § 16 was deleted; the clarified Guidelines
8 definition used the § 4B1.2(a) wording quoted in the second
9 paragraph of this Part II.B. (wording that has remained the same
10 through 2007), i.e., listing, inter alia, burglary of a dwelling and
11 any felony that "otherwise involves conduct that presents a serious
12 potential risk of physical injury to another," Amendment 268, at
13 131-33. The original commentary was replaced by commentary that
14 continued to note that crimes of violence include burglary of a
15 dwelling; but the statement that "burglary of other structures would
16 not be covered" was omitted. Id. at 132. No subsequent version of
17 § 4B1.2 or of its commentary has stated that burglaries of non-
18 dwelling buildings are excluded from the Guidelines definition of
19 crime of violence.
20 This Court has not previously decided whether the New York
21 crime of third-degree burglary is a "crime of violence" within the
22 definition set out in Guidelines § 4B1.2(a). In Andrello, 9 F.3d at
23 249-50, however, we held that attempted third-degree burglary under
24 New York law is a "violent felony" within the meaning of 18 U.S.C.
25 § 924(e), a section that provides enhanced penalties for a
26 previously convicted felon who is convicted of possessing a gun in
27 violation of 18 U.S.C. § 922(g) and who has "three previous
- 17 - 1 convictions . . . for a violent felony," 18 U.S.C. § 924(e)(1). The
2 term "violent felony" as used in § 924(e) includes a felony that
3 is burglary, arson, or extortion, involves use of 4 explosives, or otherwise involves conduct that 5 presents a serious potential risk of physical injury 6 to another.
7 Id. § 924(e)(2)(B)(ii) (emphasis added). Although that definition
8 does not specify that violent felonies include attempts, we
9 concluded in Andrello that attempted third-degree burglary under New
10 York law is a violent felony under § 924(e)(2)(B)(ii)'s residual
11 clause. In reaching this conclusion, we were guided by the Supreme
12 Court's decision in Taylor, 495 U.S. 575, with regard to burglary
13 itself.
14 As discussed in Taylor, the legislative history of
15 § 924(e)'s sentence-enhancing provisions repeatedly revealed
16 Congress's view that burglary is an offense that inherently poses a
17 risk of physical injury to victims, bystanders, and law enforcement
18 personnel. For example, the Taylor Court noted that testimony at
19 congressional hearings focusing on burglary pointed out that
20 even though injury is not an element of the offense, 21 it is a potentially very dangerous offense, because 22 when you take your very typical residential burglary 23 or even your professional commercial burglary, there 24 is a very serious danger to people who might be 25 inadvertently found on the premises.
26 Taylor, 495 U.S. at 585 (internal quotation marks omitted) (emphases
27 added). The Court noted that
28 [t]he fact that an offender enters a building to 29 commit a crime often creates the possibility of a 30 violent confrontation between the offender and an 31 occupant, caretaker, or some other person who comes 32 to investigate.
33 Taylor, 495 U.S. at 588. The legislative history
- 18 - 1 indicate[d] that Congress singled out burglary (as 2 opposed to other frequently committed property 3 crimes such as larceny and auto theft) for inclusion 4 as a predicate offense . . . because of its inherent 5 potential for harm to persons.
6 Id. (emphases added).
7 Consistent with these views of the nature of burglary, the
8 Supreme Court has most recently ruled that attempted burglary of a
9 "structure," see Fla. Stat. § 810.02(1) (1993); id. § 777.04(1)
10 (attempts), is a violent felony within the meaning of § 924(e)
11 because it involves conduct that "presents a serious potential risk
12 of injury to another," James v. United States, 127 S. Ct. 1586,
13 1597-98 (2007). The James Court noted that the
14 main risk of burglary arises not from the simple 15 physical act of wrongfully entering onto another's 16 property, but rather from the possibility of a face- 17 to-face confrontation between the burglar and a 18 third party--whether an occupant, a police officer, 19 or a bystander . . . .
20 Id. at 1594.
21 In Andrello, this Court, noting Taylor's description of
22 Congress's view of burglary as reflected in the legislative history
23 of § 924(e), concluded that attempted third-degree burglary under
24 New York law is a violent felony within the meaning of the residual
25 clause of § 924(e)(2)(B)(ii), i.e., that the attempt involves
26 conduct that presents a serious potential risk of physical injury to
27 another. See 9 F.3d at 249-50. The major premise leading to that
28 conclusion was that "burglary itself is a crime that inherently
29 involves a risk of personal injury," id. at 249.
30 Andrello's major premise is instructive for purposes of
31 the present case because the residual clause of the
- 19 - 1 § 924(e)(2)(B)(ii) definition of "violent felony" and the residual
2 clause of the Guidelines § 4B1.2(a)(2) definition of "crime of
3 violence" are identical; both definitions end with the inclusion of
4 any felony that "otherwise involves conduct that presents a serious
5 potential risk of physical injury to another." Indeed, the
6 Guidelines § 4B1.2 "'definition of crime of violence'" was "'derived
7 from 18 U.S.C. § 924(e).'" United States v. Palmer, 68 F.3d 52, 55
8 (2d Cir. 1995) ("Palmer") (quoting Amendment 268, at 133).
9 Given the identical language of the two definitions'
10 residual clauses, this Court, in determining whether a defendant's
11 prior non-burglary felonies were violent felonies within the meaning
12 of § 924(e), has been guided by cases interpreting Guidelines
13 § 4B1.2(a)(2). See United States v. Jackson, 301 F.3d 59, 62 (2d
14 Cir. 2002) ("We . . . look to cases construing U.S.S.G. § 4B1.2
15 (career offender), which defines a 'crime of violence' in wording
16 substantially identical to the definition of 'violent felony' under
17 § 924(e)."), cert. denied, 539 U.S. 952 (2003). And conversely, in
18 determining whether a defendant's prior non-burglary felonies were
19 crimes of violence within the meaning of Guidelines § 4B1.2(a), we
20 have been guided by cases interpreting § 924(e). See, e.g., Palmer,
21 68 F.3d at 55 ("The term 'violent felony'" is "defined by
22 § 924(e)(2)(B) in terms that are substantially identical to the
23 definition of 'crime of violence' in USSG § 4B1.2(1).").
24 Given the substantial similarity between the . . . 25 definition of "violent felony[]" [in] 18 U.S.C. 26 § 924(e)(2)(B), and the Sentencing Commission's 27 definition of "crime of violence," U.S.S.G. 28 § 4B1.2(1), authority interpreting one phrase 29 frequently is found to be persuasive in interpreting 30 the other phrase.
- 20 - 1 Palmer, 68 F.3d at 55 (quoting United States v. Winter, 22 F.3d 15,
2 18 n.3 (1st Cir. 1994)).
3 Such analytical cross-referencing between Guidelines
4 § 4B1.2(a)(2) and 18 U.S.C. § 924(e)(2)(B)(ii) rests not only on the
5 fact that the residual clauses of the two provisions are identical,
6 but also on the recognition that the inquiry into whether a
7 particular type of conduct has the potential to present a serious
8 risk of physical injury to another person focuses on the nature of
9 the conduct. The inherent nature of the conduct is not dependent on
10 the location of a provision prescribing punishment for that conduct.
11 And where the language of two such provisions is identical, we
12 cannot conclude that those provisions have disparate applicability
13 to a type of conduct that inherently involves the risk specified in
14 both provisions.
15 Having reasoned in Andrello that attempted third-degree
16 burglary of "a building" falls within the residual clause of
17 18 U.S.C. § 924(e)(2)(B)(ii) because third-degree "burglary itself
18 is a crime that inherently involves a risk of personal injury,"
19 9 F.3d at 249, we can only conclude that third-degree burglary
20 inherently poses that same risk within the meaning of the
21 identically worded residual clause of Guidelines § 4B1.2(a)(2).
22 Accordingly, we conclude that in ruling that Brown's 1993
23 third-degree burglary in violation of New York law was a crime of
24 violence within the meaning of the last clause of Guidelines
25 § 4B1.2(a)(2), and thus that his record included two crimes of
26 violence, making his base offense level 24, the district court did
27 not misinterpret the Guidelines.
- 21 - 1 C. The Enhancement for Obliterated Serial Numbers
2 Brown's contention that the obliterated-serial-numbers
3 enhancement should not have been applied to him because he did not
4 know the numbers were obliterated does not warrant extended
5 discussion. The Guidelines provided for a two-level enhancement
6 "[i]f any firearm . . . had an altered or obliterated serial
7 number." 2003 Guidelines § 2K2.1(b)(4). The commentary to § 2K2.1
8 provided that the enhancement applied "whether or not the defendant
9 knew or had reason to believe that the firearm . . . had an altered
10 or obliterated serial number." 2003 Guidelines § 2K2.1 Application
11 Note 19. Thus, in United States v. Williams, 49 F.3d 92 (2d Cir.
12 1995), we upheld the strict-liability nature of this provision,
13 stating that while "18 U.S.C. § 922(k), which criminalizes the
14 possession of a firearm with an obliterated serial number, contains
15 a scienter requirement, . . . Congress has not required . . . that
16 the § 2K2.1(b)(4) sentencing enhancement contain a scienter
17 requirement." Id. at 93. We noted that the strict-liability nature
18 of the enhancement "reasonably imposes the burden upon a felon who
19 illegally possesses a firearm to ensure that the serial number is
20 not obliterated," and such an obligation does not violate due
21 process. Id.
22 To the extent that Brown may also be arguing that the
23 § 2K2.1(b)(4) enhancement could not be applied to him because the
24 fact that serial numbers were obliterated was not proven by the
25 government beyond a reasonable doubt to a jury (see Brown brief on
26 appeal at 17-18), his argument fares no better. "Judicial authority
27 to find facts relevant to sentencing by a preponderance of the
- 22 - 1 evidence survives Booker." United States v. Garcia, 413 F.3d 201,
2 220 n.15 (2d Cir. 2005). Here, the PSR stated unequivocally that on
3 at least two of the guns sold by Brown, the serial numbers were
4 obliterated; and Brown made no objection to that statement. His
5 argument to the district court was that he "under oath stated he was
6 not aware of the defaced weapon." (2004 S.Tr. at 3 (emphasis
7 added).)
8 Finally, Brown points out that at his original sentencing
9 hearing, the district court stated that while "the government has
10 the right" to seek the Guidelines obliterated-serial-number
11 enhancement despite not pursuing the criminal charges under
12 18 U.S.C. § 922(k), "it is not the right thing to do" (2004 S.Tr. at
13 20). Brown argues that the application of that enhancement to him
14 on remand, after the Guidelines were declared advisory, was thus
15 unreasonable. We reject this argument, given that the purpose of a
16 Crosby remand is to permit the district court to determine whether
17 to impose a different sentence knowing that the Guidelines--which
18 had given the government the right to seek that enhancement--are not
19 mandatory. On the remand in this case, the court acknowledged the
20 advisory nature of the Guidelines, and it obviously concluded that
21 the enhancement was appropriate even under the advisory Guidelines.
22 We see no error or abuse of discretion in that conclusion.
23 D. Other Contentions
24 Brown's other challenges to his sentence, alleging
25 procedural and substantive unreasonableness, need not detain us
26 long.
- 23 - 1 1. The Alleged Failure To Consider the Sentencing Factors
2 Brown's contention that the district court failed to
3 consider the § 3553(a) sentencing factors is meritless. As
4 discussed in Part II.A. above, we have not required a sentencing
5 judge to engage in robotic incantations either to demonstrate that
6 he has discharged his duty to "consider" the required factors or to
7 "address every argument relating to those factors that the defendant
8 advanced." Fernandez, 443 F.3d at 30.
9 In the present case, the record, including those segments
10 quoted in Part I.C. above, reveals that the court was aware both of
11 the statutory requirements and of the recommended sentencing range
12 and that it considered the required factors. Nothing in the record
13 indicates that the court misunderstood the sentencing factors or
14 their relevance.
15 2. The Alleged Unreasonableness of Imposing the Same Sentence
16 Brown also contends that the district court's resentencing
17 him to the same 84-month sentence it had imposed originally was
18 substantively unreasonable on the ground that the judge had
19 "specifically stated at the initial sentencing that he would have
20 sentenced [Brown] to 70 months if he had the choice" (Brown brief on
21 appeal at 10). We reject this contention because the court did not
22 make that statement.
23 What the district court said at the original sentencing
24 was that it would have imposed a shorter prison term if Brown had
25 not had such an extensive criminal record:
26 The problem that I have with the defendant's
- 24 - 1 position is that he is in a criminal category 2 history four. It is not that this is his first 3 contact with the criminal justice system.
4 If he were not a criminal category history 5 four, notwithstanding Sentencing Guidelines as 6 related by the government, I would sentence him to 7 70 months.
8 (2004 S.Tr. at 20-21.) Plainly the court did not state that it
9 would have imposed the shorter sentence if only the Guidelines were
10 not mandatory; to the contrary, the court said that if Brown had not
11 had such an extensive criminal record, it "would" have sentenced him
12 more leniently "notwithstanding [the] Sentencing Guidelines."
13 Nothing about Brown's criminal record changed between the
14 original sentencing and the sentencing on remand. And the court's
15 decisions in sentencing and resentencing Brown reveal that the court
16 took seriously its obligation to consider, inter alia, "the history
17 and characteristics of the defendant," 18 U.S.C. § 3553(a)(1).
18 E. Correction of the Judgment
19 Finally, we note nostra sponte that the judgment from
20 which Brown has appealed does not accurately describe the counts of
21 conviction. Although it initially states--accurately--that Brown
22 "pleaded guilty to count(s) one through eight of the indictment,"
23 Judgment dated September 23, 2005, at 1, it lists his offense of
24 "UNLAWFUL FIREARMS DEALING" as count "2," instead of count 1; and it
25 lists "POSSESSION OF A FIREARM" as count "3," rather than counts 2-
26 8, id. On remand, an amended judgment should be entered, accurately
27 reflecting the counts of conviction.
- 25 - 1 CONCLUSION
2 We have considered all of Brown's arguments on this appeal
3 and have found them to be without merit. The sentence is affirmed;
4 the matter is remanded for clerical correction of the judgment.
- 26 -