United States v. Raborn

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 11, 2002
• Docket: 01-31417
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31417 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORBEY E. RABORN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CR-50050-ALL -------------------- July 9, 2002 Before JOLLY, WIENER and STEWART, Circuit Judges.

PER CURIAM:*

Norbey E. Raborn appeals his sentence following his guilty-

plea convictions for possession with intent to distribute a

controlled substance and being a felon in possession of

ammunition in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(viii) and 18 U.S.C. § 922(g)(1). Raborn argues that

his sentence was improperly enhanced under 18 U.S.C. § 924(e) and

U.S.S.G. § 4B1.4 because his prior conviction for attempted

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-31417 -2-

simple burglary is not a “violent felony” as that term is defined

in the enhancement statute and the implementing guideline.

In determining whether a prior offense is a violent felony

for purposes of 18 U.S.C. § 924(e), a sentencing court must “look

only to the fact of conviction and the statutory definition of

the prior offense.” Taylor v. United States, 495 U.S. 575, 602

(1990). Under Louisiana law “[s]imple burglary is the

unauthorized entering of any dwelling, vehicle, water craft, or

other structure, movable or immovable, with the intent to commit

a felony or any theft therein . . . .” LA. REV. STAT. ANN. § 14:62

(West 1972). A defendant who has taken steps “tending directly

toward the accomplishing of” a burglary has committed the offense

of attempted burglary. LA. REV. STAT. ANN. § 14:27 (West 1975).

Because the Louisiana law under which Raborn was convicted

does not require proof of the use or threat of physical force in

order to convict a defendant of attempted simple burglary,

Reborn’s prior conviction does not qualify him for sentence

enhancement under 18 U.S.C. § 924(e)(2)(B)(i). Attempted

burglary is not enumerated as a qualifying offense under 18

U.S.C. § 924(e)(2)(B)(ii). Moreover, because, under Louisiana

law, attempted burglary can be committed before a defendant ever

encounters any other person, it does not categorically present a

serious potential risk of physical injury to another. See 18

U.S.C. § 924(e)(2)(B)(ii); see also United States v. Martinez,

954 F.2d 1050, 1053-54 & n.3 (5th Cir. 1992). No. 01-31417 -3-

Raborn’s prior conviction for attempted simple burglary does

not qualify as a violent felony under any of the standards set

forth by 18 U.S.C. § 924(e) and therefore may not be used to

enhance his sentence. Accordingly, the sentence imposed by the

district court is vacated and the case is remanded for

resentencing.

VACATED AND REMANDED.