United States v. Michael Duane Hunt

925 F.2d 1181, 91 Cal. Daily Op. Serv. 1150, 91 Daily Journal DAR 1934, 1991 U.S. App. LEXIS 2250, 1991 WL 17295

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 1991
• Docket: 88-3222
• Status: Published

Opinions

ORDER

The government petitioned for rehearing, urging that our opinion published at 893 F.2d 1028 (9th Cir.1990), misapplied the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). Michael Duane Hunt petitioned for rehearing, inviting this court to reconsider the applicability of good faith reliance by the police on an administrative warrant. We grant the government’s petition and deny the defendant’s petition.

Our original opinion found the § 924(e)(2)(B)(ii) enhancement inapplicable to Hunt because his Oregon conviction was not “burglary” within the meaning of ACCA. Taylor v. United States, — U.S. —, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) requires us to reconsider that position.

Under Taylor, an enhancement for burglary is appropriate if the defendant is convicted of a crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. 110 S.Ct. at 2158. Hunt’s first degree burglary conviction under Or.Rev.Stat. § 164.225 falls within this definition. Section I of our original opinion, 893 F.2d at 1030-31, is ■ withdrawn and the sentence imposed by the district court is reinstated.

We decline the invitation to reconsider whether the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) is applicable in this case. It was adequately disposed of in our January 8, 1990 opinion. See 893 F.2d at 1032.

Judge Tang would grant rehearing. All judges of the panel have recommended against en banc review. The en banc suggestion was circulated to all active judges of the court and none called for a vote. The en banc suggestion is denied.

The government’s petition for rehearing is GRANTED and defendant’s petition for rehearing is DENIED. We WITHDRAW our previous opinion, in so far as it discusses the sentence enhancement under 18 U.S.C. § 924(e)(2)(B)(ii), and REINSTATE the sentence imposed by the district court.