United States v. Randall Gene Cunningham

878 F.2d 311, 1989 U.S. App. LEXIS 9185, 1989 WL 68689

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 1989
• Docket: 88-3046
• Status: Published

Opinions

TANG, Circuit Judge:

Randall Gene Cunningham (Cunningham) appeals the district court’s use of his Oregon second-degree felony burglary conviction for statutory sentence enhancement under the Armed Career Criminal Act (the Act), 18 U.S.C. § 924. We reverse under the authority of United States v. Chatman, 869 F.2d 625 (9th Cir.1989) and remand for resentencing.

FACTS AND PROCEEDINGS

Cunningham was indicted on one count of being a felon in illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At the time of Cunningham’s arraignment, the government filed an information alleging three prior violent felony convictions for purposes of sentence enhancement. Cunningham filed a motion to dismiss the indictment on the ground that 18 U.S.C. § 924(e) was unconstitutional, which the district court denied. Following a bench trial, the court found Cunningham guilty as charged.

After a sentencing hearing was scheduled, Cunningham filed a memorandum in opposition to sentence enhancement on the ground that his prior Oregon state conviction for second degree burglary should not be considered because the conviction does not qualify as a “violent felony” under section 924(e)(2)(B). The court held that the government was entitled to seek sentence enhancement based upon the prior conviction and sentenced Cunningham to 20 years imprisonment. He appeals.

DISCUSSION

Under the Act, an individual who transports a firearm in interstate commerce and has three previous convictions for a violent felony or a serious drug offense, “shall be fined not more than $25,000 and imprisoned not less than fifteen years....” 18 U.S.C. § 924(e)(1). The term “violent felony” is defined in the Act as

any crime punishable by imprisonment for a term exceeding one year that ... (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.

18 U.S.C. § 924(e)(2)(B).

We recently held in United States v. Chatman, 869 F.2d 525, 527 (9th Cir.1989), that the term “burglary” as defined in 18 U.S.C. § 924(e)(2)(B) means common law burglary, i.e., “the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein.” See United States v. Headspeth, 852 F.2d 753, 757 (4th Cir.1988).

Here, one of Cunningham’s previous three convictions is an Oregon state conviction for second degree burglary. Under Oregon law, a person commits burglary in the second degree if he or she enters or remains unlawfully in a building with the intent to commit a crime therein. Or. Rev.St. 164.215(1). This crime may be proved without proving such elements of common law burglary as nighttime entry or that the building entered is a dwelling. See, e.g., State v. Eaton, 43 Or.App. 469, 602 P.2d 1159 (1979) (unoccupied building is not a dwelling and thus entry cannot support first degree burglary conviction, only second degree burglary conviction). Moreover, second degree burglary does not necessarily require behavior causing a serious potential risk to others. Cf. Chatman, 869 F.2d at 527 (possibility that theft from car may result in serious injury does not make all burglaries inherently dangerous crimes).

Because Cunningham’s Oregon state conviction of second degree burglary does not fit the definition of burglary or violent crime contained in section 924(e)(2)(B)(ii), it cannot serve as a basis for sentence enhancement. See Chatman, 869 F.2d at 527-28. Accordingly, we VACATE Cunningham’s sentence and REMAND to the district court for RESENTENCING.