United States v. Roy Schmidt, III , 623 F.3d 257 ( 2010 )


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  •      Case: 09-31138   Document: 00511256291   Page: 1   Date Filed: 10/07/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 7, 2010
    No. 09-31138                   Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    ROY L. SCHMIDT, III
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    Before DAVIS, WIENER, and DENNIS, Circuit Judges.
    WIENER, Circuit Judge:
    Defendant-Appellant Roy Schmidt III appeals his designation as an Armed
    Career Criminal (“ACC”) under the Armed Career Criminal Act, 
    18 U.S.C. § 924
    (e) (“the ACCA”). Schmidt pleaded guilty to conspiracy to possess a pipe
    bomb and to being a convicted felon in possession of a pipe bomb. He now
    challenges the district court’s sentencing determination that a prior conviction
    for theft of a firearm from a licensed gun dealer, in violation of 
    18 U.S.C. § 922
    (u), is a violent felony for purposes of the ACCA. We affirm.
    Case: 09-31138        Document: 00511256291       Page: 2   Date Filed: 10/07/2010
    No. 09-31138
    I. Facts & Proceedings
    On and before December 31, 2007, Schmidt agreed with “Individual A” for
    him to buy parts and build, and for Schmidt to receive and possess, one
    unregistered “pipe bomb.”             Schmidt provided the funds for Individual A to
    purchase the bomb components from a Lowes Building Supply store and a Home
    Depot Building Supply store in Jefferson, Louisiana.              Both Schmidt and
    Individual A provided the explosive powders for at least three pipe bombs. On
    December 31, 2007, Schmidt, Individual A, and Individual B constructed three
    pipe bombs at Individual A’s house. Afterwards, Schmidt took possession of one
    the bombs.
    Schmidt was indicted in October 2008 for conspiring to possess an
    unregistered pipe bomb,1 conspiring to commit an offense against or to defraud
    the United States,2 and illegal possession of such a bomb.3             In June 2009,
    Schmidt pleaded guilty as charged, without entering into a plea agreement. The
    next month, after being advised of his rights, Schmidt signed a notarized
    statement admitting to having pipe bombed of a vehicle on January 1, 2008.
    Schmidt’s sentencing hearing was held in November 2009.                      The
    government produced documents supporting Schmidt’s state court convictions
    for (1) a December 4, 1993 attempted robbery while armed with a dangerous
    weapon in violation of La. Rev. Stat. §§ 14:27 and 64; (2) a July 21, 1993, simple
    burglary of an automobile in violation of LA. Rev. Stat. § 14:62; (3) an August 8
    1996, possession of stolen things valued at over $500.00 in violation of La. Rev.
    Stat. § 14:69; (4) an August 7, 1996, simple arson of property with a value over
    1
    
    26 U.S.C. § 5861
    (d) (2010).
    2
    
    18 U.S.C. § 371
     (2010).
    3
    
    Id.
     § 922(g)(1) (2010).
    2
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    $500 in violation of La. Rev. Stat. § 14:52; and (5) an August 7, 1996, simple
    burglary of an inhabited dwelling in violation of La. Rev. Stat. § 14:62:2.
    The presentence report (“PSR”) concluded that Schmidt’s prior convictions
    for attempted armed robbery, arson, and simple burglary of an inhabited
    dwelling were crimes of violence and assigned Schmidt a base offense level of 24
    pursuant to U.S.S.G. § 2K2.1. Schmidt was assigned additional enhancements
    based on use of a pipe bomb, use of a firearm in connection with another felony
    offense, leadership role in the offense, and involving a minor in the offense.
    Schmidt received a downward adjustment for his acceptance of responsibility.
    The PSR determined that Schmidt qualified as an ACC on the basis of the
    convictions listed above as well as another conviction for stealing firearms from
    a federally licensed dealer. The PSR set Schmidt’s Guidelines sentencing range
    at 188-235 months in prison on the firearms charge and 60 months in prison on
    the conspiracy charge.
    Schmidt objected to the PSR, contending that he was not an ACC because
    (1) theft from a firearms dealer is not a crime of violence, and (2) he had not
    involved a minor in the offense. The district court accepted Scmidt’s objection
    to the latter, but rejected his assertion that theft of a firearm from a firearms
    dealer is not a crime of violence. These rulings reduced Schmidt’s guidelines
    sentencing range to 151-188 months in prison.
    In November 2009, the district court sentenced Schmidt to five years
    imprisonment on count one (conspiracy to possess an unregistered destructive
    device), pursuant to 
    26 U.S.C. § 5861
    (d), and to a concurrent term of fifteen
    years as an ACC on count two (convicted felon in possession of a firearm),
    pursuant to 
    18 U.S.C. § 924
    (e). Schmidt timely filed a notice of appeal.
    II. Analysis
    A. Standard of Review
    3
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    A sentencing court’s determination whether theft of firearms from a
    licensed dealer qualifies as a violent felony is a statutory interpretation that we
    review de novo.4        We also review a sentencing court’s interpretation of the
    Guidelines de novo.5 The Supreme Court held, in a similar case, that when a
    court determines whether a conviction qualifies as a violent felony under the
    ACCA, it engages in statutory interpretation and not in judicial fact finding.6
    Therefore, there is no Sixth Amendment issue under Apprendi v. New Jersey.7
    B. The ACCA
    Schmidt raises only one issue in his appeal: whether his 
    18 U.S.C. § 922
    (u)
    conviction for theft of firearms from a licensed dealer qualifies as a violent felony
    for ACCA purposes. One of the ways a defendant is determined to be an ACC
    when his current conviction constitutes a violation of the pipe-bomb statute, §
    922(g), and he has at least three prior convictions for violent felonies.8            For
    ACCA purposes, a violent felony is one that “(i) has as an element the use,
    attempted use, or threatened use of physical force against the person of another;
    or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
    involves conduct that presents a serious potential risk of physical injury to
    another.”9 Thus, an offense will qualify as violent if: (1) “physical force against
    the person of another” is an element of the offense; (2) the crime is burglary,
    arson or extortion, being the offenses enumerated in the ACCA; or (3) the crime
    4
    James v. United States, 
    550 U.S. 192
    , 214 (2007).
    5
    United States v. Calderon-Pena, 
    383 F.3d 254
     (5th Cir. 2004).
    6
    
    Id.
    7
    
    530 U.S. 466
     (2000).
    8
    
    18 U.S.C. § 924
    (e)(1) (2010).
    9
    
    Id.
     § 924(e)(2)(B)(ii) (2010).
    4
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    comes under the ACCA’s residual clause, by constituting a “potential risk of
    physical injury to another.” 10
    C. Physical Force as an Element of the Offense
    Schmidt insists that theft of firearms from a federally licensed dealer does
    not include, as a required element, the use, attempted use or threatened use of
    physical force against a person. The statute specifies that;
    It shall be unlawful for a person to steal or unlawfully take or carry
    away from the person or the premises of a person who is licensed to
    engaged in the business of importing, manufacturing, or dealing in
    firearms, any firearm in the licensee’s business inventory that has
    been shipped or transported in interstate or foreign commerce.11
    Schmidt contends that when determining whether an offense qualifies as a
    violent felony, the court is only allowed to look at the terms of the statute and
    may not consider the underlying facts of the case.
    Schmidt is correct that a court may only consider the elements of the
    conviction statute and not the specific conduct of the offender. The Supreme
    Court has mandated a categorical approach for deciding whether a prior
    conviction is a violent felony for the purposes of the ACCA.12 This is because
    “the language of § 924(e) [the ACCA] generally supports the inference that
    Congress intended the sentencing court to look only to the fact that the
    defendant had been convicted of crimes falling within certain categories, and not
    to the facts underlying the prior convictions.”13 This approach is necessary
    because, otherwise, a particular crime might be considered a violent offense and
    10
    Id. § 924(e)(2)(B) (2010).
    11
    Id. § 922(u) (2010).
    12
    Taylor v. United States, 
    495 U.S. 575
    , 600 (1990).
    13
    
    Id.
    5
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    count towards enhancement on some occasions and not on others, depending on
    the discrete facts. In addition, anything but the categorical approach would
    require sentencing courts to engage in elaborate fact finding about the
    defendant’s prior offenses. This is why the sentencing court must “consider not
    how the defendant committed the crime, but how the crime is generally
    committed.” 14
    Schmidt was not convicted under the “person” prong of § 922(u) but rather
    under its “premises” prong, because (1) the indictment charges that he “did steal
    and unlawfully take and carry away from the premises and inventory of A-1 Gun
    Repair, a licensed dealer” and (2) his factual basis states that the defendants
    broke the front window of the shop, entered it, and stole 11 handguns. Stealing
    from such a premises does not necessarily involve the use, attempted use, or
    threatened use of physical force against a person because it can be completed
    without anyone else being present. Therefore, this offense is not a violent
    offense under the first prong of the ACCA.
    D. The Enumerated Offenses under the ACCA
    The government asserts that the language of § 922(u) matches the generic
    crime of burglary and therefore qualifies as a violent offense under the ACCA.
    This court defines the key elements of generic burglary as the “unlawful or
    unprivileged entry into, or remaining in” the premises “with intent to commit a
    crime.” 15
    14
    United States v. Hughes, 
    602 F.3d 669
    , 674 (5th Cir. 2010).
    15
    United States v. Ortega-Gonzaga, 
    490 F.3d 393
    , 395 (5th Cir. 2007). The Supreme
    Court defined burglary for the purposes of the ACCA similarly:
    [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.
    Taylor, 
    495 U.S. at 599
    .
    6
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    To determine whether an offense falls under the ACCA’s enumerated
    felony of burglary, we employ a “common sense approach.” 16 This involves the
    application of a three part test to determine whether a particular provision falls
    within the enumerated offenses.             First, we determine the crime’s generic,
    contemporary, ordinary meaning. Second, we distill the definitions to identify
    the crime’s basic elements. Third, we compare the generic definition to the
    statute governing the prior conviction.17           If the statute follows the generic
    definition, has only minor variations, or is narrower than the generic definition,
    the sentence may be enhanced.18
    Schmidt raises the strong point that a § 922(u) firearm theft does not
    require that the entry into or presence inside the premises be unlawful or
    unprivileged. Although Schmidt did actually break into the premises, for the
    purposes of identifying whether a violation of § 922(u) is a burglary enumerated
    in the ACCA, only the elements of the offense, and not the specific conduct of the
    defendant, should be considered. And Schmidt is correct that, under the terms
    of § 922(u), unlawful entry or presence is not required. In contrast, the generic
    definition of burglary always requires an element of unlawful or unprivileged
    entry or presence. Although theft of firearms from a licensed dealer does have
    much in common with burglary, such theft ultimately lacks the element of
    unlawful or unprivileged entry that would make it identical to burglary.
    Therefore, § 922(u) does not qualify as a violent felony under the enumerated-
    crimes prong of the ACCA.
    E. The Residual Clause of the ACCA
    16
    United States v. Santiesteban-Hernandez, 
    469 F.3d 376
    , 378-79 (5th Cir. 2006).
    17
    
    Id. at 379
    .
    18
    
    Id.
    7
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    The residual clause of the ACCA defines a violent felony as one that
    “involves conduct that presents a serious potential risk of physical injury to
    another.”19 The apparent purpose of the residual clause is to include those
    offenses that indicate the offender is a violent person who is likely to harm
    others. For example, in Begay v. United States, the Supreme Court held that
    recidivist drunk driving does not qualify as a violent crime under the ACCA’s
    residual-clause because the offense does not involve “purposeful, violent, and
    aggressive” conduct that presents a serious potential risk of physical injury to
    another.20 In contrast, noted the Supreme Court, a person who commits a
    violent felony is the kind of person who shows “an increased likelihood that [he]
    might deliberately point [a] gun and pull the trigger,” the sort of behavior we
    associate with armed career criminals.21
    Again, the proper inquiry is the categorical approach, as set forth in
    Taylor.22 In a later case, the Supreme Court summarized this approach: “The
    proper inquiry is whether the conduct encompassed by the elements of the
    offense, in the ordinary case, presents a serious potential risk of injury to
    another.”23       When the statute under consideration presents disjunctive
    alternatives, the court may consider certain other documents to determine which
    alternative was applied.24          In addition, the Guidelines approve of a court’s
    determination that an offense is a crime of violence when “the conduct was set
    forth (i.e. expressly charged) in the count of which the defendant was convicted
    19
    
    18 U.S.C. § 924
    (e)(2)(B)(ii) (2002).
    20
    Begay v. United States, 
    553 U.S. 137
    , 144-45 (2008).
    21
    
    Id. at 147
    .
    22
    
    495 U.S. 575
    .
    23
    James v. United States, 
    550 U.S. 192
    , at 208 (2007).
    
    24 Hughes, 602
     F.3d at 674.
    8
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    involved use of explosives. . .or, by its nature, presented a serious potential risk
    of physical injury to another.”25 Review of the record is “generally limited to the
    charging document, written plea agreement, transcript of the plea colloquy, and
    any explicit factual findings by the trial judge to which the defendant
    assented.” 26
    In the instant case, the factual basis of the plea to the indictment stated:
    On January 9, 1996, the A-1 Gun Repair Shop on West Esplanade
    Avenue in Metairie, Louisiana was burglarized. The front window
    was broken, and eleven (11) handguns were stolen. The owner of
    the shop would testify to the burglary and the eleven guns stolen.
    This information allowed the sentencing court to identify Schmidt’s offense as
    stealing guns from the premises of a licensed firearms dealer. Schmidt contends
    that the judge erred by: (1) finding that stealing from the premises of a federally
    licenced firearms dealer creates a serious potential risk of physical harm to
    another; and (2) relying on Schmidt’s specific conduct to decide whether the
    ACCA’s residual clause was satisfied.
    Schmidt notes that shoplifting is one of the crimes included in stealing
    from the premises of a licensed dealer, and that shoplifting posses no serious
    risk of physical injury to another person. Schmidt cites a number of cases to
    support this proposition.27 He relies on United States v. Mohr 28 to argue that,
    when deciding whether the conviction is for a crime of violence, courts must
    consider the least culpable conduct that violates the applicable elements of a
    25
    U.S.S.G. § 4B1.2, cmt. 1 (2009).
    26
    United States v. Gonzalez-Chavez, 
    432 F.3d 334
    , 337-38 (5th Cir. 2005).
    27
    See United States v. Jackson, 
    113 F.3d 249
    , 252 (D.C. Cir. 1997) (government does
    not contend shoplifting is a violent felony); United States v. Parson, 
    955 F.2d 858
    , 865 n.8 (3d
    Cir. 1992).
    28
    
    554 F.3d 604
    , 607 (5th Cir.), cert. denied, 
    130 S. Ct. 56
     (2009).
    9
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    statute. Therefore, asserts Schmidt, we must analyze theft of a firearm under
    § 922(u) as a shoplifting statute, as it is the least culpable conduct that violates
    the elements of the statute. Mohr is inapposite because Schmidt’s indictment
    is not silent as to the elements of the offense charged. Therefore, we need only
    consider whether stealing firearms from the premises of a licensed dealer
    presents a serious potential risk of inquiry to another.29
    The determinative question revolves around whether the elements of theft
    of a firearm from a federally licenced dealer include a serious threat of harm to
    another and whether this offense is similar in kind to the enumerated offenses
    listed in the ACCA. In Begay, the Supreme Court set out a two-prong test for
    determining whether an offense qualifies as a violent felony under the residual
    clause of the ACCA.30 The first prong asks whether the offense inherently
    “present[s] a serious potential risk of physical injury to another.”31 We have
    emphasized that such a determination should be made through a categorical
    approach, not on the basis of the circumstances of a particular case.32
    Additionally, Begay does not suggest that we undertake a comparative risk
    analysis,33 but rather an inquiry to assess whether the offense must involve
    “purposeful, violent, and aggressive conduct.” 34
    Section 922(u) qualifies as a purposeful, violent, and aggressive offense
    under the first prong of the Begay test because at least one of the elements of the
    29
    See James, 
    550 U.S. at 208
     (“[T]he proper inquiry is whether the conduct
    encompassed by the elements of the offense, in the ordinary case, presents a serious potential
    risk of injury to another.”).
    30
    
    553 U.S. at 137
    .
    31
    
    Id. at 142
    .
    32
    United States v. Charles, 
    301 F.3d 309
    , 313-14 (5th Cir. 2002) (en banc).
    33
    See Begay, 
    553 U.S. at 142-43
    .
    34
    Chambers v. United States, 
    129 S. Ct. 687
    , 692 (2009) (citation omitted).
    10
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    offense includes the presence of a serious potential risk of physical injury to
    another. The key elements of the offense are: (1) stealing or unlawfully taking
    away or carrying (2) from the person or premises of a licensed firearms dealer
    (3) any firearm in the licensee’s business inventory.35               Although the first
    element, by itself, presents no serious potential risk of physical injury because
    it can be accomplished without confrontation, the second and third elements do
    present serious potential risks of physical harm to others. The second element
    requires that, to constitute an offense, the firearms be stolen from an
    individual—the licensee—who, by definition, is likely to posses or have easy
    access to a firearm himself. An important factor used to determine if an offense
    is a crime of violence is whether the action is inherently dangerous, and that fact
    is well known and well documented.36 Persons who steal firearms from a dealer
    have to know that doing so is inherently dangerous because they are stealing
    from a person who probably either possesses or has easy access to firearms with
    which to defend themselves and their property. Likewise, the third element
    undoubtedly presents a serious potential risk of physical injury because stolen
    firearms are more likely to be used in connection with illegal and inherently
    harmful activities than are lawfully possessed guns: persons who lawfully obtain
    firearms almost always do so for legitimate purposes, such as hunting or target
    shooting.
    The second prong of the Begay test asks whether an offense is “roughly
    similar, in kind as well as in degree of risk posed, to the [statutory] examples”
    of burglary, arson, extortion and offenses that involve use of explosives.37 The
    35
    
    18 U.S.C. § 922
    (u) (2002).
    36
    Cf. United States v. DeSantiago-Gonzalez, 
    207 F.3d 261
    , 263 (5th Cir. 2000) (holding
    that Driving While Intoxicated is a crime of violence for the purposes of U.S.S.G. §
    2L1.2(b)(1)(B)).
    37
    Begay, 
    553 U.S. at 143
    .
    11
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    purpose of this prong is to narrow the scope of the residual clause of the ACCA
    by distinguishing this crime from the set of all crimes that present a serious
    potential risk of physical injury.38 Obviously, from among the crimes listed in
    the ACCA, burglary most closely resembles theft of firearms from a licensed
    dealer.      Even though, as discussed above, § 922(u) firearm theft is not
    sufficiently close to burglary to qualify as enumerated under the ACCA, it is
    sufficiently similar to burglary to be deemed similar in kind and risk. In the
    instant case, the offense constituted a burglary, but the perpetrators were
    charged under a different statute because of the nature of the items stolen. It
    is likely that many of the crimes charged under § 922(u) could also be charged
    under a burglary statute. But, as noted, the theft of firearms is more dangerous
    than simple shoplifting or petty theft because it involves victims who are often
    armed themselves and loot that is likely to be used for violent purposes. We are
    satisfied that theft of a firearm from a licensed federal dealer is sufficiently
    similar to burglary to qualify as a violent offense under the residual-clause prong
    of the ACCA.
    III. Conclusion
    Whether a § 922(u) conviction qualifies as a crime of violence for ACCA
    purposes is a novel issue. The ACCA has three disjunctive prongs, under any
    one of which an offense may be deemed a crime of violence. The first is when the
    offense has an element that encompasses the use of force; but § 922(u) contains
    no such element. The second is when the offense is encompassed in one of the
    ACCA’s enumerated felonies. Here, the closest enumerated felony is burglary,
    but because § 922(u) lacks the element of unlawful or unprivileged entry, §
    922(u) cannot be treated as burglary per se. The third prong is the residual-
    38
    Id. at 142.
    12
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    clause prong, under which we must determine whether the offense constitutes
    a potential risk of serious harm to others and whether it is similar in risk and
    kind to one of the enumerated offenses. We conclude that, under the third
    prong, § 922(u) qualifies as a violent offense. Accordingly, Schmidt’s sentence
    is AFFIRMED.
    13