United States v. John Sebero

45 F.3d 1075, 1995 U.S. App. LEXIS 901, 1995 WL 21944
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 17, 1995
Docket94-2274
StatusPublished
Cited by17 cases

This text of 45 F.3d 1075 (United States v. John Sebero) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John Sebero, 45 F.3d 1075, 1995 U.S. App. LEXIS 901, 1995 WL 21944 (7th Cir. 1995).

Opinion

ESCHBACH, Circuit Judge.

John Sebero pleaded guilty to one count of manufacturing, possessing with intent to distribute and distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1) and was sentenced to 163 months’ imprisonment, to be followed by five years of supervised release. Sebero received an enhanced sentenee as a result of the district court’s determination that he was a career offender under § 4B1.1 of the United States Sentencing Guidelines (“Sentencing Guidelines”). Sebero challenges his sentence. We affirm.

I.

John Sebero has found himself on the wrong side of the law on more than one occasion. On July 1, 1976, Sebero was convicted for the burglary of a residential apartment in Waukesha County, Wisconsin. The following year, on November 14,1977, he was convicted for the burglary of a cabin in Mari-nette County, Wisconsin. Most recently, Sebero has been convicted for his involvement in drug-related activities.

On December 8, 1993, a grand jury returned a two-count indictment against Sebe-ro. Count One of the indictment charged Sebero with conspiring to manufacture, possess and distribute methcathinone, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two charged him with manufacturing, possessing with intent to distribute and distributing methcathinone in violation of 21 U.S.C. § 841(a)(1). On March 25, 1994, Sebero and the government entered into a plea agreement, pursuant to which the government dismissed Count One of the indictment and Sebero, in turn, pleaded guilty to Count Two.

On May 20, 1994, the district court held a sentencing hearing. In determining Sebero’s sentence, the court adopted the guideline calculations recommended by the probation officer as set forth in the presentence investigation report. Sebero had an offense level of 29. In addition, Sebero was found to be a “career offender” under U.S.S.G. § 4B1.1 because of his two prior burglary convictions; therefore, his Criminal History Category was increased from III to VI. Based on an offense level of 29 and a Criminal History Category of VI, the sentencing guideline range was 151 to 188 months. 1 The district court sentenced Sebero to 163 months’ imprisonment. Sebero filed a timely appeal, *1077 claiming that the district court committed reversible error in enhancing his sentence pursuant to the career offender provision of the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

The district court classified Sebero as a career offender, and Sebero now challenges that classification. The Sentencing Guidelines state that a defendant is a career offender if “(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a ... controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1. Sebero concedes that the first two elements are satisfied. He also concedes that his 1976 burglary of a residential apartment was a “crime of violence” under U.S.S.G. § 4B1.2. Sebero’s sole contention on appeal is that his prior conviction for burglary in 1977 was not a crime of violence.

Section 4B1.2 defines the term “crime of violence” as any felony 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 of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(1) (emphasis added). Application Note 2 of § 4B1.2 provides some additional guidance, and it enumerates a list of offenses which should be conclusively viewed as crimes of violence. 2 Clearly, burglary of a dwelling is deemed a “crime of violence” under the Sentencing Guidelines. See United States v. Coleman, 38 F.3d 856, 859 (7th Cir.1994) (“Enumerated crimes, like burglary of a dwelling, are conclusively ‘crimes of violence.’ ”) (emphasis added). Thus, the issue in this case is whether the district court properly determined that Sebero’s 1977 burglary conviction constituted burglary of a dwelling. We will not disturb a district court’s sentencing decision under the Sentencing Guidelines “so long as the district court correctly applied the Guidelines to findings of fact that were not clearly erroneous.” United States v. Montgomery, 14 F.3d 1189, 1196 (7th Cir.1994) (quoting United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir.1993)). However, we review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Nelson, 29 F.3d 261, 262 (7th Cir.1994).

In 1977, Sebero was convicted of burglary in violation of § 943.10(l)(a) of the Wisconsin Statutes. 3 The criminal complaint charged Sebero with feloniously and intentionally entering “a building, to-wit: a cabin owned by Kenneth Roger.” The presentence investigation report, which the district court accepted and examined, stated that Kenneth Roger, the owner of the cabin, had recently indicated that the cabin in question is used as a dwelling for those engaged in outdoor ac *1078 tivities, with the heaviest use being during the fall hunting season. The district court concluded that Sebero’s 1977 conviction was for the burglary of a dwelling, which therefore constituted a crime of violence under the Sentencing Guidelines.

Sebero argues that the district court was not allowed to examine the facts behind the 1977 burglary conviction, and consequently the court committed reversible error by considering extrinsic evidence regarding the use of the cabin. Sebero relies on cases such as United States v. Carter, 910 F.2d 1524, 1533 (7th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991), and United States v. Jones, 932 F.2d 624

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Bluebook (online)
45 F.3d 1075, 1995 U.S. App. LEXIS 901, 1995 WL 21944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-sebero-ca7-1995.