IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-8080 _____________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO MARTINEZ-CORTEZ,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court for the Western District of Texas
(April 13, 1993)
Before GOLDBERG, JOLLY, and WIENER, Circuit Judge:
WIENER, Circuit Judge:
In this appeal from the enhancement of his sentence under 18
U.S.C. § 924(e) for, inter alia, a prior burglary conviction,
Defendant-Appellant Antonio Martinez-Cortez asserts that the
evidentiary basis of the enhancement was insufficient under the
United States Supreme Court's decision in United States v. Taylor.
Although, under the requirements of the Taylor decision, we find
error in the district court's acceptance of the government's
evidence as adequate for enhancement, we do not find the
enhancement to be reversible when we review the sentence under the
standard here applicable. We therefore affirm the sentence as
enhanced. I
FACTS AND PROCEDURAL HISTORY
In December 1991, Martinez-Cortez was found guilty of
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1). In February 1992, he was sentenced by the
district court to serve the maximum statutory term of incarceration
(ten years). The district court enhanced Martinez-Cortez's
sentence an additional five years pursuant to 18 U.S.C. § 924(e).1
Martinez-Cortez's Presentence Investigation Report (PSR)
listed three prior convictions on which the district court relied
in support of enhancement: (1) a 1959 conviction for assault with
intent to rob; (2) a 1971 conviction for burglary of a habitation;
and (3) a 1986 conviction for unlawful delivery of heroin. The
government asserts that there were four prior convictions
supporting enhancement: "assault with intent to rob, burglary, and
two felony convictions for possession of a controlled substance, to
wit: heroin." As an preliminary matter, Martinez-Cortez claims
that one of the drug convictions that the government points to on
appeal was for mere possession of heroin, and that this conviction
does not support enhancement because it is not a "serious drug
offense." Although Texas law classifies simple possession of
heroin as a second-degree felony,2 Martinez-Cortez avers correctly
1 See 18 U.S.C.S. § 924(e)(Supp. 1992). Martinez-Cortez received a sentence of 180 months, which is to be followed by three years of supervised release. 2 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.032, 481.102, 481.115 (Vernon 1992).
2 that without "intent to distribute," a conviction for possession of
a controlled substance does not qualify as a "serious drug offense"
for purposes of enhancement.3 Our review of the record confirms
that one of Martinez-Cortez's drug convictions was for "possession
of a controlled substance" (no mention of intent to distribute).
Consequently, this conviction cannot be used to support
enhancement, and the government must succeed on the strength of the
other three convictions or lose enhancement.
Sentence enhancement under § 924(e) requires three prior
convictions of either "violent felonies" or "serious drug
offenses." That Martinez-Cortez's 1959 and 1986 convictions
support enhancement under § 924(e) is not contested. Moreover,
Martinez-Cortez does not challenge the truth of the limited
evidence in the PSR that he was convicted for burglary in 1971; he
complains only that the district court erred in accepting that
evidence as legally sufficient for purposes of enhancement. And,
as shall be explained below, it is both undisputed and central to
the ultimate result of this appeal that at no time during the
sentencing phase of his trial did Martinez-Cortez object either to
the admission of the pre-sentence report or to the inclusion in
that report of the statement regarding the 1971 burglary
conviction. He thus raises for the first time here the issue of
sufficiency of proof of the burglary conviction to support
enhancement of his sentence under § 924(e).
3 See 18 U.S.C.S. § 924 (e)(2)(A)(ii).
3 II
ANALYSIS
A. Standard of Review
As Martinez-Cortez asserts, the general rule is that whether
prior convictions have been proved sufficiently for purposes of
sentence enhancement is a question of law; thus, review is de
novo.4 In the instant case, however, it appears as above noted
that Martinez-Cortez failed to object in any way during sentencing
to the introduction of information regarding his prior burglary
conviction. As he failed to object, "[h]e may not raise an
objection now . . . absent plain error."5
This court has stated that "plain error" is error that "when
examined in the context of the entire case, is so obvious and
substantial that failure to notice and correct it would affect the
fairness, integrity or public reputation of judicial proceedings."6
"It is a mistake so fundamental that it constitutes a 'miscarriage
of justice.'"7 When a new factual or legal error is raised for the
first time on appeal, "plain error occurs whe[n] our failure to
4 United States v. Vidaure, 861 F.2d 1337, 1338 (5th Cir. 1988), cert. denied, 489 U.S. 1088 (1989); see United States v. Silva, 957 F.2d 157, 161 (5th Cir.), cert. denied, 113 S. Ct. 250 (1992). 5 United States v. Lopez, 923 F.2d 47, 49 (5th Cir.)(citing United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990)), cert. denied, ___ U.S. ___, 111 S. Ct. 2032 (1991). 6 Id. at 50 (citing United States v. Guzman, 781 F.2d 428, 431-32 (5th Cir.), cert. denied, 475 U.S. 1143 (1986)). 7 Id. (citing Brunson, 915 F.2d at 944, and Matter of Johnson, 724 F.2d 1138, 1140 (5th Cir. 1984)).
4 consider the question results in 'manifest injustice.'"8
B. Martinez-Cortez's Assertion of Error
Martinez-Cortez's sole ground for appeal is that the district
court erred in accepting the 1971 burglary conviction as supporting
the § 924(e) enhancement. Significantly, he does not assert that
the information concerning that conviction, as set forth in the
PSR, was inaccurate or that the burglary for which he was convicted
was not the kind that can be used to support enhancement. He rests
his appeal entirely on the proposition that the government failed
to present the kind of evidence of his burglary conviction that the
Supreme Court has held to be required. As such, he asserts, the
district court erred in enhancing the sentence in reliance on the
inadequate evidence that was presented.9
None disputes that burglary is one of the "violent felonies"
listed in § 924, the prior conviction of which supports
enhancement.10 In Taylor v. United States,11 however, the Supreme
Court limited the use of state law burglary convictions in sentence
enhancement when it recognized that among the several states
burglary is defined in many different ways. The Court then held
8 Id. (citing Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)). 9 In oral argument, counsel for Martinez-Cortez at least impliedly conceded that the 1971 burglary conviction was of the type that supports enhancement. He did not dispute the facts concerning the 1971 burglary conviction stated in the PSR. 10 See 18 U.S.C.S. § 924(e)(2)(B)(ii) (Supp. 1992). 11 495 U.S. 575 (1990).
5 that only convictions for "generic" burglary could support § 924
enhancement. The Court then defined generic burglary:
We conclude that a person has been convicted of burglary for the purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.12
To complete the picture the Court next identified the kind of
proof required when the government seeks to use a state burglary
conviction for purposes of a § 924(e) enhancement. In part IV of
the Taylor opinion,13 the Court held that the government could prove
a prior conviction for committing a generic burglary by introducing
(1) the fact of the prior conviction (presumably by introducing a
certified or validated copy of the judgment) and (2) a true copy of
the state statute under which the conviction was attained.
Additionally, if the defendant had been convicted of burglary in a
state where elements of the statutory crime corresponded to the
Taylor court's definition of generic burglary (with minor
variations in terminology), "then the trial court need find only
that the state statute corresponds in substance to the generic
meaning of burglary."14 The Court thus found that "the only
plausible interpretation of § 924(e)(2)(B)(ii) is that it generally
requires the trial court to look only to the fact of conviction and
12 Id. at 599. 13 Id. at 599-602. 14 Id. at 599.
6 the statutory definition of the prior offense."15
Nevertheless, the Taylor Court's pronouncement goes on to
create one (but only one) tightly drawn exception to the
"categorical approach" of looking only to the statutory definition
of the prior conviction. In defining this sole exception, the
Court stated:
The categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.16
Martinez-Cortez argues that to enhance his sentence under
Taylor's interpretation of § 924(e), the trial court must have
before it either 1) proper copies of the statutes under which the
defendant was previously convicted or 2) the indictment and the
jury instructions under which the defendant was previously
convicted. It follows, Martinez-Cortez asserts, that enhancement
by the sentencing court in the absence of proof sufficient under
one of the two alternative methods set out in Taylor is an absolute
nullity))i.e., that it is void ab initio and must be vacated.
Although we agree with Martinez-Cortez's first assertion (that the
government must produce proof meeting one of the two Taylor options
in order to obtain an enhancement), we disagree with his second
15 Id. at 602. 16 Id. (emphasis added)(footnote omitted).
7 assertion (that failure to do so produces a void rather than
voidable sentence).
This court has interpreted the Taylor decision, and its
prerequisites to sentence enhancement, in four cases. In three of
the four, we affirmed the enhancement assessed by the district
court. In United States v. Rodolfo Martinez,17 we affirmed an
enhancement of a sentence in which copies of the judgments of the
prior convictions had been introduced to the trial court (the
relevant penal code sections were cited to the district court by
the government). In United States v. Silva,18 we affirmed an
enhancement that had been proved to the district court by the
government's presentation of "certified copies of Silva's Texas
state conviction records evidencing that he had two prior
convictions for 'burglary of a habitation' and one prior conviction
for 'burglary of a building' pursuant to Texas Penal Code § 30.02."
And in United States v. Garza,19 we affirmed a sentence enhancement
that the government had proved by demonstrating that the burglary
indictment under which the conviction was obtained was a "generic"
burglary under Taylor.20
17 962 F.2d 1161, 1167-68 (5th Cir. 1992). 18 957 F.2d at 161. 19 921 F.2d 59, 60 (5th Cir.), cert. denied, 112 S. Ct. 91 (1991). 20 In Garza this court rejected the prisoner's argument that, in light of Thomas, proof of the burglary conviction had to be offered with both the indictment and the jury instructions. The court reasoned that as there were situations in which there are no jury instructions but an enhancement would be proper (e.g., there are no jury instructions in a plea arrangement under
8 In the forth appeal in which we construed Taylor, we did
reverse a sentence enhancement based on a prior conviction for
"burglary." In United States v. Raul Martinez,21 we rejected the
government's argument that a prior conviction for attempted
burglary satisfied both methods of proof allowed by Taylor. Under
the first Taylor option, the elements of the attempted burglary
statute facially were not the same as the "basic elements" of
generic burglary. As to the second or alternative method of proof
under Taylor, we stated:
[T]he Government has not shown, by means of the charging papers or jury instructions from Martinez' prior convictions for attempted burglary, that entry into or remaining within the building was an element of Martinez' prior crimes. Indeed, the Government did not offer the charging papers or jury instructions from Martinez' prior convictions. In sum, the Government has not demonstrated that Martinez' prior convictions . . . satisfy the [Taylor] requirements . . . .22
For these and other reasons, we vacated Raul Martinez's sentence
and remanded his case for re-sentencing.
FED. R. CRIM. P. 11), the court would not require the jury instructions when "the charging papers, the indictments, clearly reflect that [the] prior burglary convictions meet Taylor's generic burglary definition." Id. at 61. Even though the holding in Garza appears to disregard Taylor's conjunctive "and" (charging papers and jury instructions) in favor of the disjunctive "or," we note the subsequent concurrence in the disjunctive reading of the Taylor alternative by our colleagues on the Ninth Circuit. See United States v. Sweeten, 933 F.2d 765, 769-70 (9th Cir. 1991); United States v. Harkey, 923 F.2d 138, 138 n.1 (9th Cir. 1991). But see Taylor, 495 U.S. at 602 ("[A] sentencing court [may] go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. (emphasis added)); infra notes 23-28. 21 954 F.2d 1050 (5th Cir. 1992). 22 Id. at 1053 (emphasis added).
9 In the instant case, as in Raul Martinez, the government
prosecutor offered neither the charging papers nor the jury
instructions from Martinez-Cortez's 1971 burglary conviction.
Neither did the government offer a copy of the state burglary
statute under which the defendant was previously convicted. In
fact, the only evidence introduced by the government concerning the
prior burglary conviction was a single, cryptic entry in the PSR,
which stated:
According to available reports, on February 7, 1971, a witness observed the Defendant enter an establishment through a window he had broken. The witness made a comment to Cortez and he approached her with an open knife and made threatening gestures to her. The witness left and called the Police Department. Police Officers apprehended Cortez and two other individuals, as they carried a typewriter and a camera. Officers also found an opened knife in Cortez' pants pocket.
Martinez-Cortez argues that, standing alone, that statement from
the PSR could not provide an adequate basis under Taylor))either
legal or factual))for the sentence enhancement. He insists, and we
agree, that the kind of evidence specified by the Taylor Court for
at least one of the two alternative but exclusive methods of
proving generic burglary must be offered by the government. Here,
we find beyond serious question that within its four corners the
government's meager evidence of the 1971 burglary conviction did
not even come close to meeting the clear requirements of either of
the two exclusive alternative methods of proof of generic burglary
set forth in Taylor.
Simply put, the Taylor decision dictates in scrupulous detail
the exact kind of proof the government is required to introduce
10 when one or more of the prior convictions being used for
enhancement is burglary; and here the government failed woefully to
meet such requirements, just as it did in Raul Martinez. A single,
second hand, non-specific hearsay statement, gleaned from an
unidentified source and set forth in the PSR, has no resemblance
whatsoever to the kind of evidentiary support required by the Court
under Taylor for purposes of sentence enhancement. If Martinez-
Cortez had objected and the government had failed to respond by
adducing Taylor evidence, enhancement based on the 1971 "burglary"
conviction would surely have been reversible error, leaving us no
choice but to vacate Cortez's sentence and remand.
Disagreeing with our interpretation of Taylor, our specially
concurring co-panelist "would read Taylor as requiring presentation
of either the statute under which the defendant was previously
convicted, or the indictment, or the bill of information, or any
other form of equally reliable proof showing that the defendant
indeed had committed a 'generic' burglary."23 This is not a
"reading" of Taylor; it is a re-writing of Taylor.
By his expansive "reading," our colleague would impermissably
broaden Taylor to require the sentencing courts to engage in
elaborate factfinding procedures, accepting "any . . . form of
equally reliable proof [of the prior conviction]." Try as we
might, we cannot square that stretch with Part IV of the Taylor
opinion, in which the Court expressly rejects such free-wheeling
factual determinations in favor of a "categorical approach" with
23 Special Concurrence at 1-2 (some emphasis added).
11 but one tightly drawn exception.24 In Taylor, the unanimous Court
stated: "The Courts of Appeals uniformly have held that § 924(e)
mandates a formal categorical approach, looking only to the
statutory definitions of the prior offenses and not to the
particular facts underlying those convictions."25
The special concurrence also criticizes our decision for its
refusal to accept "Garza's path to common-sense interpretation of
the Supreme Court's requirements in Taylor," arguing that "[i]n
Garza, we rejected a literal reading of Taylor that seemed to
require the presentation of both the indictments and the jury
instructions."26 But the Taylor opinion does not "seem" to require
such a conjunctive presentation; it expressly requires it.27 The
24 Taylor, 495 U.S. at 600. 25 Id. (citing, inter alia, Vidaure, 861 F.2d at 1340 (5th Cir. 1988)). The Court continued, stating that "[i]f Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate fact-finding process regarding the defendant's prior offenses, surely this would have been mentioned somewhere in the legislative history." Id. at 601. 26 Special Concurrence at 2 (some emphasis added). 27 See Taylor, 495 U.S. at 602. Moreover, because of its concern with unfettered factfinding by the sentencing court, the Court specifically rejected the proposition that enhancement based on the charging papers alone))even in the case of a guilty plea))could be sufficient, stating: [T]he practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant's actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was. In some cases, the indictment or other charging paper might reveal the theory or theories of the case presented to the jury. In other cases, however, only the Government's actual proof at trial would indicate whether the defendant's conduct constituted generic burglary. Would the Government be permitted to introduce the trial transcript before the
12 Supreme Court clearly considered all of the arguments made in the
special concurrence, and just as clearly (and unanimously) rejected
them. Instead the Court adopted a "categorical approach" with its
one exception. In a nutshell, neither we nor our co-panelist may
wrap ourselves in the banner of "common sense" in order to depart
from the clear and unambiguous language of a Supreme Court opinion.
The government insists (and our concurring colleague agrees)
that the instant case is controlled by United States v. Fields.28
Not so. In Fields, we held that a convicted felon whose sentence
had been enhanced under § 924(e) could not challenge the
evidentiary basis of the enhancement because "no objection to the
report" had been made during the sentencing phase of the trial. We
stated that "[a]s a result [of the lack of an objection], the
report provided an adequate basis for the sentencing judge to
sentencing court, or if no transcript is available present the testimony of witnesses? Could the defense present witnesses of its own and argue that the jury might have returned a guilty verdict on some theory that did not require a finding that the defendant committed generic burglary? If the sentencing court were to conclude, from its own review of the record, that the defendant actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to a jury trial? Also, in cases where the defendant pleaded guilty, there often is no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary. Taylor, 495 U.S. at 601-02 (emphasis added). 28 923 F.2d 358, 360-61 (5th Cir.), cert. denied, 111 S. Ct. 2066 (1991).
13 determine that Fields had committed three prior felonies."29 The
issue in Fields was one of reliability of the facially adequate
evidence in the PSR. Here, neither the reliability nor truth of
the information in Martinez-Cortez's PSR is at issue; it is not
even challenged as being unreliable. Rather, the evidence of the
subject burglary conviction is challenged as being legally
inadequate under Taylor.
In relying on Fields, the presumption upon which the
government's assertion here rests is that simple statements in the
PSR can be adequate to prove a prior burglary conviction for
purposes of a § 924(e) sentence enhancement. Although we do not
question that truism as an abstract statement, a straight-forward
reading of Taylor eschews the applicability of any such presumption
under the instant circumstances. Taylor allows two))but only
two))optional standards of proof of a prior burglary conviction to
support enhancement under § 924(e).30 Introduction of nothing more
29 Id. at 361 (citing United States v. Ruiz, 580 F.2d 177, 177-78 (5th Cir.), cert. denied, 439 U.S. 1051 (1978)). 30 Our co-panelist's special concurrence also finds support in Fields, stating that the issue in Taylor, like that in Fields, is merely reliability of the evidence presented to prove the prior conviction. His argument that Fields applies in this case relies on the premise that "any other equivalent form of proof" is acceptable to prove the prior conviction. Moreover, he argues that "[t]o say otherwise reduces Taylor to an arbitrary standard devoid of reason." Special Concurrence at 3. Our co-panelist is simply incorrect. A rule that requires specific types of proof is not "devoid of reason" merely because the Supreme Court believed that extensive factfinding in the sentencing court would be inappropriate. Although Fields held that the evidentiary basis of statements in a PSR cannot be challenged on appeal without a proper objection in the trial court, that holding has no relevance in a sentence enhancement case in which a PSR standing alone can never be adequate, under Supreme Court
14 than some undefined report from some unidentified source via the
probation officer's second hand statement in a presentence
investigation report obviously does not comply with either of
Taylor's two alternatives.31 The fact that on appeal we cannot look
behind the facts in a PSR which was not objected to at sentencing
simply does not address, much less resolve, the challenge that the
introduction of the PSR))even when accepted as true and reliable))is
legally inadequate to prove that the crime of the prior conviction
was generic burglary.
C. The Effect of "Plain Error"
But as we have already noted, no contemporaneous objection was
made to the introduction of the PSR in the district court or to its
adequacy as proof of the prior burglary conviction for purposes of
sentence enhancement. Therefore, we are severely limited in our
review of that issue by the "plain error" standard.32 We must treat
the issue, raised first on appeal, in the same manner as any other
issue not raised in the district court: "An exception [to the
general rule of non-reviewability] is usually made whe[n] the newly
raised issue concerns a pure question of law and a refusal to
authority, to prove a prior burglary conviction. 31 We note that at least one of the twelve convictions for which Fields's sentence was enhanced was for burglary. See Fields, 923 F.2d at 359 n.1. Fields was decided after Taylor. It is clear, however, that simply because a prior panel did not flesh out a issue such as this, we are not precluded from its investigation. 32 See supra notes 5-8 and accompanying text.
15 consider it would result in a miscarriage of justice."33
Although the sufficiency of the evidence needed to enhance the
sentence is unquestionably a "pure question of law,"34 we conclude
that no miscarriage of justice will result from our refusal to
vacate the sentence in the instant case. This is so because the
record before us makes clear that the burglary for which Martinez-
Cortez was convicted in 1971 was a "generic" burglary under Taylor.
By definition, no "manifest injustice" occurs when a sentence
imposed in error by the district court is nonetheless one that
would have been lawful had extant evidence of the prior conviction
been introduced.
The sentencing error of the district court here was enhancing
the sentence in reliance on woefully inadequate PSR evidence of the
1971 burglary conviction instead of requiring the kind of evidence
that would meet one or the other of the Taylor requirements. We
find from the record that the type of Taylor evidence regarding the
1971 burglary conviction did exist. If it had been introduced, the
enhancement of Martinez-Cortez's sentence would have been
sustainable. First, the Texas statutes under which he was
convicted were sufficiently narrow to be classified as "generic
burglary." We held in Silva that the current Texas burglary
statute, which was codified in 1974, was sufficiently narrow to be
33 Volkswagen of Am., Inc. v. Robertson, 713 F.2d 1151, 1166 (5th Cir. 1983)(emphasis added)(citing Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1364 (5th Cir. 1983)); see Lopez, 923 F.2d at 50; supra notes 7-8. 34 See Vidaure, 861 F.2d at 1338.
16 "generic" under Taylor.35 The applicable Texas Penal Code articles
that existed prior to the 1974 codification))those under which
Martinez-Cortez was convicted in 1971))were even narrower than the
current Texas law. The commentary that accompanies the 1974
codification notes: "The types of intrusions made burglarious by
Section 30.02 are more varied than in prior law."36 The commentary
then lists several examples of how the law was broadened in 1974.
As the pre-1974 statute indisputably did not comprise any non-
generic burglary, that such statute would have supported
enhancement had a true copy of it been submitted in accordance with
Taylor is equally indisputable.
In addition to the generic nature of the statute under which
Martinez-Cortez was convicted, the crime of which he was convicted
in 1971 actually was a generic burglary. Martinez-Cortez's counsel
acknowledged that his client has never disputed the factual
accuracy of the statement in the PSR describing the 1971
conviction, contending only that those facts do not satisfy Taylor.
Even though Martinez-Cortez was initially informed, by means of an
enhancement notice attached to the indictment, of the government's
intention to seek enhancement, he neither objected to the inclusion
of the reference to the 1971 conviction in the PSR nor attempted to
prove that the burglary was non-generic. As Martinez-Cortez did
35 See Silva, 957 F.2d at 161; TEX. PENAL CODE ANN. § 30.02 (West 1989). The concern of the Taylor court was that state burglary statutes might be more broad than the "generic" definition (e.g., might criminalize thefts from cars (which would be non-generic) as well as buildings or structures). 36 (Emphasis added).
17 not object to or question the accuracy of the report as reflecting
the 1971 conviction, we must assume that the charging papers and
the verdict of guilty by the state court jury mirror the statement
in the PSR. Although the elements of generic burglary are not
expressed precisely in that statement, when we read it in pari
materia with the narrow statute under which Martinez-Cortez was
convicted we have no difficulty in concluding that the crime he
committed in 1971 was "generic" burglary. His entry into the
"establishment" was certainly unauthorized and his threat to the
witness and subsequent apprehension while armed and apparently in
possession of contraband eschew any conclusion but that the purpose
of his forcible entry into the establishment was to commit a crime.
Having thus determined that both the burglary Martinez-Cortez
committed in 1971 and the burglary statute under which he was
convicted were in fact of the generic type that would support
enhancement under Taylor's interpretation of § 924(e), the "plain
error" standard interdicts our vacatur of the enhanced sentence
even though it was grounded in the erroneous acceptance of the
government's production of inadequate evidence.37 Again, had
Martinez-Cortez raised this issue in the district court and the
government adduced no additional evidence concerning generic
burglary, our standard of review would have been de novo and the
37 Our post-hoc rationalization of the enhancement is clearly in line with the standard of review. When the enhancement given was predicated on convictions that met the enhancement's requirements, no "manifest injustice" can result merely because the government did not proffer the correct evidence at the sentencing.
18 result we would have reached under it would likely have been quite
different. We speculate, however, that had such an objection been
made it would have prompted the government to do what it should
have been done initially))introduce evidence sufficient to meet
either or both of Taylor's alternative proof requirements.
D. Double Jeopardy
Martinez-Cortez asserts that, as his conviction was enhanced
on insufficient evidence, any reapplication of the sentence
enhancement provisions on remand would require adducing additional
evidence and thereby constitute double jeopardy. We do not have to
address this claim because we do not find reversible error and thus
do not vacate the enhanced sentence an remand it for further
proceedings.
III
CONCLUSION
Under our analysis of the requirements of the Supreme Court's
Taylor decision for sentence enhancement under § 924(e), we find
that the district court erred in accepting as sufficient the
government's inadequate evidence of Martinez-Cortez's prior
burglary offense. The Taylor decision sets out specific proof
requirements that must be met when burglary is a prior offense used
to support sentence enhancement under § 924(e). Nevertheless, as
the applicable standard of review here is plain error))and as we do
19 not find plain error in the circumstances of the instant case))the
sentence imposed is
AFFIRMED.
E. GRADY JOLLY, specially concurring:
I write separately to say that a fair interpretation of the
United States Supreme Court's opinion in Taylor v. U.S.38 does not
bind us to an inflexible reading of Taylor's "requirements."
The majority reads Taylor as establishing two "alternative but
exclusive methods" which the government may use to prove that a
defendant's prior burglary conviction was in fact for a "generic"
burglary. In addition to proving the fact of the prior conviction,
the government must--on pain of reversal--present the trial court
with either (1) "proper copies" of the burglary statute under which
the defendant was previously convicted; or (2) copies of the
indictment or the jury instructions under which the defendant was
previously convicted.39 Thus, the majority establishes a per se
rule that in my view was not intended by the Taylor court.
38 495 U.S. 575, 110 S.Ct. 2143 (1990). 39 To be sure, the Supreme Court in Taylor stated that "if the indictment or information and jury instructions show that the defendant was charged with a [generic] burglary..., and that the jury necessarily had to find [the elements of a generic burglary] to convict, then the Government should be allowed to use the conviction for enhancement." 495 U.S. at 602, 110 S.Ct. at 2160 (emphasis added). This circuit has previously interpreted this passage from Taylor in a flexible, common sense manner, holding that either the indictment or the bill of information or the jury instructions will suffice to prove a "generic" burglary sufficient to meet § 924(e)'s requirements. As will be discussed later, the majority offers no reason why such a common sense interpretation cannot be applied to the portion of the Taylor opinion currently before the court.
20 I would read Taylor as requiring presentation of either the
statute under which the defendant was previously convicted, or the
indictment, or the bill of information, or any other form of
equally reliable proof showing that the defendant indeed had
committed a "generic" burglary. I see the specific forms of proof
enumerated by the Court as illustrative, not exclusive. Under the
majority's literal interpretation, anomalous results will obtain;
for example, if a defendant knowingly admits committing a generic
burglary, the uncontested voluntary admission would yet be
insufficient to uphold a § 924(e) enhancement. Surely, such a
result could not have been intended by the Supreme Court.
I favor the rationale adopted by this circuit in the Garza
case, in which the court refused to adhere to a rigid reading of
Taylor's requirements when such an application produces nonsensical
results. In Garza40, we rejected a literal reading of Taylor that
seemed to require the presentation of both the indictments and the
jury instructions. There we recognized the serious flaw of a rigid
application because in guilty pleas, jury instructions are
obviously never formulated; instead we sensibly read the Supreme
Court's command as allowing proof of the indictments alone. The
majority in this case rejects Garza's path to common-sense
interpretation of the Supreme Court's requirements in Taylor.
Further, the majority rejects still another blazed trail to a
sound interpretation of Taylor. In U.S. v. Fields41, the defendant
objected to the presentence report as means of proof of his prior
40 United States v. Garza, 921 F.2d 59 (5th Cir. 1991). 41 923 F.2d 358 (5th Cir. 1991). felony convictions. In rejecting Fields's argument, we
unequivocally stated that "the report provided an adequate basis
for the sentencing judge to determine that Fields had committed
three prior felonies."42 The majority dismisses Fields in its
entirety by stating: "[t]he issue in Fields was one of reliability
of the facially adequate evidence of the PSR. Here, the
reliability or truth of the information in Martinez-Cortez's PSR is
not at issue....Rather, the evidence of the subject burglary
conviction is challenged as being legally inadequate under
Taylor."43 The majority fails to recognize that Taylor is also
concerned with reliability. It requires that the elements of the
statute be established through a reliable source: either the
statute itself, the indictment, the bill of information, or--in my
view--any other equivalent form of proof, such as an uncontested
voluntary admission of a fact. To say otherwise reduces Taylor to
an arbitrary standard devoid of reason. Fields illustrates that
this circuit has previously accepted PSRs as "legally adequate"
proof to be used in § 924(e) enhancement proceedings. How the
majority can conclude that an uncontested PSR (the equivalent of an
admission) that proves the elements of a generic burglary is
"legally inadequate" (to use the majority's words), escapes me.
In truth, I think that the majority does a disservice to the
42 Fields, 923 F.2d at 361. 43 Majority opinion at 11.
-22- 22 Taylor opinion by construing its literal language so mechanically.
We should endorse a common sense, reasonable interpretation of the
opinion that allows equally reliable forms of proof of a generic
burglary. In the light of the Fields opinion, I believe that the
uncontested PSR upon which the trial judge relied in the instant
case, which described the actual burglary of which the defendant
was convicted, certainly provided sufficient proof of the
conviction under Taylor to allow its use in § 924(e) enhancement
proceedings. In any event, the majority's creation of a per se
rule in this case is both unnecessary and unwarranted. For these
reasons, while concurring in the result, I respectfully take
exception to the majority's application of Taylor.
-23- 23