United States v. Spigler , 261 F. App'x 603 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES ARDINGER SPIGLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00389-RDB)
Submitted: December 21, 2007 Decided: January 15, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan R. L. Bussard, Towson, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Gregory Welsh, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Ardinger Spigler pled guilty to being a convicted
felon in possession of a firearm and ammunition, in violation of 18
U.S.C. §§ 922(g)(1), 924(e) (2000). He was sentenced to the
statutory mandatory minimum sentence as an armed career criminal of
one hundred eighty months’ imprisonment, under 18 U.S.C. §
924(e)(1) (2000). Spigler appeals his armed career criminal
sentence. Finding no error, we affirm.
This court reviews the district court’s application of
the sentencing enhancements de novo and factual findings with
respect to sentencing for clear error. United States v. Bollin,
264 F.3d 391, 415 (4th Cir. 2001). A person who violates
§ 922(g)(1) and has three prior convictions for violent felonies or
serious drug offenses is an armed career criminal subject to
enhanced penalties. See 18 U.S.C. § 924(e)(1). Under § 924(e),
the definition of a “violent felony” is a crime punishable by
imprisonment for a term exceeding one year that is one of several
numerated offenses, including burglary, or a crime that otherwise
“involves conduct that presents a serious risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (2000).
Spigler challenges the court’s finding that his prior
Maryland fourth degree burglary conviction was a violent felony
under § 924(e). In Taylor v. United States, 495 U.S. 575, 598-99
(1990), the Supreme Court held that “burglary,” for purposes of §
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924(e), is limited to “generic” burglary, defined as the “unlawful
or unprivileged entry into, or remaining in, a building or
structure with intent to commit a crime.” When the issue is
contested, and the district court must determine whether a prior
conviction constitutes a violent felony, the court generally must
“look only to the fact of conviction and the statutory definition
of the prior offense.” Id. at 602; see James v. United States, 127
S. Ct. 1586, 1594 (2007) (“We consider whether the elements of the
offense are of the type that would justify its inclusion within the
residual provision [of the armed career criminal statute], without
inquiring into the specific conduct of this particular offender.”);
United States v. Mathias, 482 F.3d 743, 746 (4th Cir. 2007) (“Under
the categorical approach, we consider the nature of the offense as
defined by statute, not the conduct and circumstances underlying a
specific conviction.”), petition for cert. filed, 76 U.S.L.W. 3046
(U.S. July 12, 2007) (No. 07-61). However, because some states
define burglary broadly, the district court in such cases may
examine the indictment or information to determine whether the
defendant was charged with entry of a building. See Shepard v.
United States, 544 U.S. 13, 16-17 (2005).
At the time of sentencing, the court had available to it
the statement of probable cause and court’s docket, which alleged
that Spigler “did unlawfully break and enter the storehouse of
[another] with the intent to commit (a theft/a crime of
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violence/arson in the second degree) in violation of Art. 27, Sec.
30(a).” However, Spigler pled guilty to a lesser charge of
burglary in the fourth degree under Md. Code Art. 27, § 32. The
fourth degree burglary statute in effect in 1997 provided:
(a) Breaking and entering dwelling or storehouse.—
(1) A person may not break and enter the dwelling
of another.
(2) A person may not break and enter the
storehouse of another.
(b) Intent to commit theft.—A person may not be in or
on the dwelling or storehouse of another or any
yard, garden, or other area belonging to the
dwelling or storehouse of another with the intent
to commit theft.
(c) Possession of burglar’s tools.—A person may not
possess burglar’s tools with the intent to use or
permit the use of the tools in the commission of
any violation of this subheading.
Md. Code. Ann. art. 27, § 32. The charging documents do not
indicate under which subsection of the statute Spigler was
convicted.
Because the Maryland statute defines three ways Spigler
could have committed burglary in the fourth degree under Art. 27,
§ 32, and under at least one of those definitions there is no
serious risk of physical injury, the district court could not use
the categorical approach of examining the statutory elements of the
crime to determine whether it was a crime of violence set forth in
Taylor. See United States v. Brandon, 247 F.3d 186, 188 (4th Cir.
2001). When the fact of a prior conviction does not categorically
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establish the nature of the prior offense, the sentencing court
generally may consider only “the charging document, the terms of a
plea agreement, the plea colloquy, the statutory definition, or any
explicit finding of the trial judge to which the defendant assented
or other admissions of the defendant” to resolve the issue. United
States v. Collins, 412 F.3d 515, 521 (4th Cir. 2005) (citing
Shepard, 544 U.S. at 25).
However, here, the district court correctly utilized the
statement of probable cause to review the facts underlying the
burglary conviction. See United States v. Simms, 441 F.3d 313, 317
(4th Cir.), cert. denied, 127 S. Ct. 233 (2006) (finding the
district court’s reliance on an application for charge to determine
that a defendant’s prior conviction qualified as a crime of
violence under § 924(e) did not violate Shepard because the
“application . . . was later explicitly incorporated into
Maryland’s statement of charges against [defendant].”); United
States v. Coleman, 158 F.3d 199 (4th Cir. 1998) (holding that,
under Maryland law, affidavit setting forth facts demonstrating
probable cause is part of the charging papers); and United States
v. Kirksey, 138 F.3d 120 (4th Cir. 1998) (same). The facts in the
statement of probable cause were incorporated into Maryland’s
Information, stating the charges against Spigler to which he pled
guilty, and providing, as to the count Spigler pled guilty to, that
he “did unlawfully break and enter the storehouse of [another] in
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violation of Art. 27, Sec. 32.” Thus, it is clear Spigler was
convicted under subsection (a)(2) of Art. 27, § 32, breaking and
entering the storehouse of another. Because breaking and entering
does provide the requisite “serious potential risk of physical
injury to another” under § 924(e)(2)(B)(ii), see James v. United
States, 127 S. Ct. 1586, 1594-95 (2007), the district court did not
err in finding the prior fourth degree burglary conviction
qualified as a violent felony for the purposes of an enhanced
sentence under § 924(e).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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