United States v. Bacote

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 03-4908
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT ANDRE BACOTE,
Defendant - Appellant.
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Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-159)
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Submitted: March 24, 2006 Decided: July 10, 2006
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Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P.,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Andre Bacote pled guilty to robbery interfering
with commerce, 18 U.S.C. § 1951 (2000) (Hobbs Act), and to using
and carrying a firearm during and in relation to a crime of
violence, 18 U.S.C.A. §§ 924(c), 2 (West 2000 & Supp. 2005). He
was sentenced as a career offender, U.S. Sentencing Guidelines
Manual § 4B1.1 (2001),1 to a term of 165 months imprisonment for
the robbery and a consecutive eighty-four months for the § 924(c)
conviction. In a supplemental brief filed after United States v.
Booker, 543 U.S. 220 (2005), and Shepard v. United States, 544 U.S.
13 (2005), Bacote contests the career offender sentence, arguing
that the district court erred in deciding that his 1996 North
Carolina breaking and entering conviction was a crime of violence
under USSG § 4B1.2 and in applying the guidelines as mandatory.
For the reasons explained below, we vacate the sentence and remand
for resentencing. We deny Bacote’s motions for a specific oral
argument date and for a continuance of oral argument.
A defendant is a career offender if (1) he was at least
eighteen years old when he committed the instant offense; (2) the
instant offense is a felony that is either a crime of violence or
a drug offense; and (3) he has at least two prior felony
1
Although Bacote was sentenced in November 2003, the probation
officer used the 2001 Guidelines Manual to avoid a possible
violation of the Ex Post Facto Clause.
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convictions of either a crime of violence or a drug offense. USSG
§ 4B1.1(a).
Under USSG § 4B1.2(a), to be a “crime of violence” for
career offender purposes, a prior offense must be one that
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
In this case, the presentence report contained
information about Bacote’s prior breaking and entering conviction
taken from police reports, which stated that Bacote entered a
garage attached to the victim’s residence through a side door and
stole a motorcycle and a go-cart by raising the garage door from
the inside. Bacote was initially charged with second degree
burglary but pled guilty to the lesser offense of felonious
breaking and entering. Bacote objected to the career offender
sentence and was permitted to testify at the sentencing hearing.
He maintained that the offense involved entry into a storage shed
some forty feet from the house, not an attached garage.
The only documents available to the sentencing court from
the prior proceeding were the original bill of information charging
second degree burglary of a dwelling and a judgment revoking the
sentence of probation five months later. The judgment of
revocation stated only that Bacote’s offense was breaking and
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entering in violation of N.C. Gen. Stat. § 14-54(a) (2003). The
court determined that it could not engage in fact finding
concerning the nature of the prior offense, and instead was bound
to follow the categorical approach mandated by Fourth Circuit
precedent to determine whether Bacote’s breaking and entering
offense was a crime of violence. See United States v. Smith, 359
F.3d 662, 664 (4th Cir. 2004) (in determining whether an offense is
a crime of violence, the “sentencing court must confine its factual
inquiry to those facts charged in the indictment”) (quoting United
States v. Johnson, 953 F.2d 110, 113 (4th Cir. 1991)). The court
decided that it could, consistent with the categorical approach,
consider the facts alleged in the information that charged Bacote
with second degree burglary of a dwelling. The court thus
determined that the breaking and entering offense to which Bacote
pled guilty “contained the elements of a crime of violence” and
should be considered a predicate offense for a career offender
sentence.
Because Bacote did not challenge his career offender
status on Sixth Amendment grounds in the district court, our review
is for plain error. United States v. Olano, 507 U.S. 725, 732-37
(1993) (unpreserved error may be corrected only if error occurred,
that was plain and affects substantial rights, and if failure to
correct error would seriously affect the fairness, integrity, or
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public reputation of judicial proceedings); United States v.
Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005) (same).
Because Bacote pled guilty to a lesser offense, the
conduct set out in the original charging document is not the
conduct for which Bacote was convicted. United States v. Martin,
215 F.3d 470, 473 (4th Cir. 2000). Even if the district court may
consider facts alleged in the original charging document, it is
limited to those facts that correspond to the elements of the
lesser included offense. Id. (assuming without deciding that, when
a prior conviction is for a lesser included offense, the district
court may consider facts in the original indictment to determine
whether the offense was a crime of violence).
Breaking and entering is not one of the offenses
enumerated in § 4A1.2(a)(2), and could, under N.C. Gen. Stat. § 14-
54, be committed by unlawful entry into either a dwelling or a non-
dwelling building. The elements of the offense are: the breaking
or entering (2) of any building (3) with the intent to commit any
felony or larceny within. State v. Litchford, 338 S.E.2d 575 (N.C.
Ct. App. 1986). Thus, the only fact alleged in the original bill
of information that the district court could consider is the
allegation that Bacote unlawfully entered an unspecified type of
building. N.C. Gen. Stat. § 14-54(a).
Although this court held in United States v. Bowden, 975
F.2d 1080, 1085 (4th Cir. 1992), that a violation of N.C. Gen.
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Stat. § 14-54 is “generic burglary,” see Taylor v. United States,
495 U.S. 575 (1990), and constitutes a “violent felony,” as defined
in 18 U.S.C.A. § 924(e)(2)(B)(ii) (West 2000 & Supp. 2005), for
purposes of sentencing a defendant as an armed career criminal, the
definition of a “crime of violence” used in § 4B1.2(a)(2) for a
career offender sentence is narrower, and includes only burglary of
a dwelling.
Because the offense to which Bacote pled guilty did not
have as an element the use, attempted use, or threatened use of
physical force against another, § 4B1.2(a)(1), and was not burglary
of a dwelling, § 4B1.2(a)(2), the district court should have taken
the next step in the categorical approach and determined whether it
was an offense that, by its nature, “involves conduct that presents
a serious potential risk of physical injury to another.”
§ 4B1.2(a)(2); United States v. Washington, 404 F.3d 834, 837 (4th
Cir. 2005). Instead, by finding that Bacote’s prior offense
involved breaking and entering of a dwelling, a fact Bacote
disputed, the district court resolved a factual dispute about the
prior conviction by taking as true an allegation not contained in
the charging document that pertained to the offense to which Bacote
pled guilty. Because the district court enhanced Bacote’s sentence
based on its factual finding about the prior conviction, a Sixth
Amendment error occurred. See Shepard, 544 U.S. at 16 (holding
that sentencing court may not refer to police reports or complaint
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applications to determine nature of prior conviction because Sixth
Amendment protections apply to disputed facts about a prior
conviction that are not evident from “the conclusive significance
of a prior judicial record”); United States v. Collins, 412 F.3d
515, 522-24 (4th Cir. 2005) (career offender sentence did not
violate Sixth Amendment because court not required to determine any
disputed fact about prior convictions); Washington, 404 F.3d at 843(district court’s determination, after fact-finding, that prior
conviction was a crime of violence did not come within Apprendi2
exception for “fact of a prior conviction”).
Without the challenged career offender enhancement,
Bacote’s offense level would be 20. With twelve criminal history
points, he would be in category V. For purposes of determining
Booker error, this court uses the guideline range based on the
facts the defendant admitted before the range is adjusted for
acceptance of responsibility. United States v. Evans, 416 F.3d
298, 300 n.4 (4th Cir. 2005). Because Bacote was in criminal
history category V, the guideline range under this calculation
would be 63-78 months, with a consecutive sentence of eighty-four
months for the § 924(c) conviction. The total punishment possible
without a departure would be 162 months. The 249-month sentence
imposed by the district court exceeds the maximum authorized based
on the facts Bacote admitted, and thus violated the Sixth
2
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
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Amendment. The sentence constituted plain error under Booker and
Hughes, and the error affected Bacote’s substantial rights. We
therefore exercise our discretion to notice the error.3
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 543 U.S. at 264. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Id. If that sentence falls outside the guidelines
range, the court should explain its reasons for imposing a non-
guidelines sentence as required by 18 U.S.C.A. § 3553(c)(2). Id.The sentence must be “within the statutorily prescribed range and
. . . reasonable.” Id.Accordingly, we vacate the sentence imposed by the
district court and remand for resentencing consistent with Booker
and Shepard. We deny Bacote’s motions for a specific oral argument
3
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Bacote’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).
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date and for a continuance of argument. 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.
VACATED AND REMANDED
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