United States v. Rick Cantrell

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2977
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Rick D. Cantrell, *
*
Appellant. *
___________
Submitted: February 12, 2008
Filed: June 23, 2008
___________
Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
___________
RILEY, Circuit Judge.
A jury convicted Rick D. Cantrell (Cantrell) of possessing methamphetamine
with intent to distribute, conspiracy to manufacture methamphetamine, and possession
of a firearm by a convicted felon and unlawful user of a controlled substance. The
district court1 imposed a sentence of 262 months imprisonment. Cantrell appeals his
conviction and sentence, arguing the district court erred by (1) denying his two pretrial
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
motions to suppress evidence;2 (2) refusing to submit Cantrell’s requested “mere
presence” jury instruction; and (3) determining Cantrell was a career offender under
United States Sentencing Guidelines (U.S.S.G.) § 4B1.1, because his 1988 Missouri
state court conviction for second-degree burglary constituted a “crime of violence”
under U.S.S.G. § 4B1.2. We affirm.
I. BACKGROUND
On October 8, 2004, several police officers drove to the Douglas County,
Missouri home of Debra James (James) to serve arrest warrants on James and Cantrell.
James had an outstanding federal warrant for her arrest, and Cantrell had an
outstanding state warrant for his arrest. Officers had information from a confidential
informant, who had provided reliable information in the past, that Cantrell was living
at the James residence and was currently at the James residence. To access James’s
rural residence, officers had to cross a tract of land owned by James’s father, Charles
James. Approximately two years earlier, Charles James had given officers consent to
enter onto his land to get to the James house if officers believed something illegal was
going on. Charles James’s consent was not limited to a specific time period, nor was
the permission ever withdrawn. As officers drove down the long driveway leading to
the James residence, they observed James in a white Oldsmobile that had been
reported stolen. Officers had received information associating both James and
Cantrell with the stolen vehicle. The officers asked James to step out of the vehicle,
advising James she was under arrest on an outstanding federal warrant.
Deputy Ron Wallace (Deputy Wallace) advised James he also had an
outstanding warrant for Cantrell’s arrest. Deputy Wallace asked James if Cantrell was
inside her home, and James informed the deputy that Cantrell was. Because Deputy
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, United States Magistrate Judge for the Western District of
Missouri.
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Wallace had heard through various informants that Cantrell might be violent, he asked
James if there were any weapons in her home. James advised there were weapons in
her home. Deputy Wallace requested and received James’s permission to enter the
James residence to place Cantrell in custody. When Deputy Wallace and another
officer knocked on the door, Cantrell answered. The officers advised Cantrell he was
under arrest and took Cantrell into custody without incident.
After arresting Cantrell, officers did a protective sweep of the James residence
for their safety to make sure nobody else was in the house. Cantrell told the officers
there was a marijuana cigarette in a Marlboro pack on the kitchen table. During the
protective sweep, officers observed the marijuana cigarette, as well as a brown glass
vial containing a substance that was later determined to be methamphetamine.
During a search of the Oldsmobile, incident to James’s arrest, officers found
pseudoephedrine pills, cut-off straws, two scales, several Ziploc-type baggies, glass
smoking devices with what appeared to be methamphetamine residue, a small bag of
marijuana, methamphetamine in both powder and liquid form, a razor blade, and
several canisters inside a vinyl bag located on the vehicle’s front seat.
Officers then asked James for consent to search her home, informing James they
had found drugs and drug paraphernalia in the car and in her home. James consented
to a search of her home.
Deputy Wallace never asked Cantrell for permission to search. According to
Deputy Wallace, Cantrell never objected to the search. Before the search, Cantrell
even asked Deputy Wallace to retrieve his wallet from inside the residence, telling
Deputy Wallace the wallet was either on the kitchen counter or in the bedroom in
Cantrell’s bag of clothes. On the other hand, James testified Cantrell did object to the
search, “yelling a lot of obscenities” and “saying you get a search warrant.” Cantrell
also said, “Everything in that house is mine.”
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In the kitchen area, officers found a gallon container of denatured alcohol, a
gallon container of mineral spirits, and a gallon container of paint thinner. They found
a syringe on the dining room table. In a bedroom that contained both men’s and
women’s clothing, officers found a green nylon duffel bag partially protruding from
underneath the bed, and a brown rifle case. The green duffel bag contained men’s
clothing and Cantrell’s identification, as well as unused syringes, numerous plastic
sealable bags, and several smaller bags. One of the smaller bags contained marijuana,
and another contained a syringe filled with a brown liquid, a set of digital scales, and
a flashlight. The green duffel bag also contained a salt-like crystal substance; several
packs of pseudoephedrine pills; plastic tubing; razor blades; folded tinfoil; two lithium
batteries that had been separated from their casing; and a plastic bottle of Vitablend,
which is used for diluting methamphetamine. The brown case contained a Marlin .22
caliber rifle and a double-barreled shotgun. In a dresser drawer in the same bedroom,
officers found two Hi-Standard .22 caliber pistols and an Iver Johnson .22 caliber
Magnum pistol with ammunition. A jewelry box on the dresser contained a plastic
bag with a white powder substance that tested positive for methamphetamine.
Officers also found an electronic listening device underneath a partially opened
window.
At the time of the search, Cantrell told officers everything in the house was his.
Cantrell later signed a sworn affidavit in which he took responsibility for all the drugs
and drug paraphernalia found in the James home and in the Oldsmobile James was
driving when she was arrested. In the affidavit, Cantrell claimed he put the drugs and
drug paraphernalia on the James property and in the vehicle without James’s
permission. Cantrell stipulated at trial that all five firearms had traveled across state
lines in interstate commerce, and that on October 8, 2004, he had been convicted of
a crime under the laws of the State of Missouri for which the maximum possible term
of imprisonment was greater than one year.
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On November 17, 2004, Cantrell was charged in a four-count superseding
indictment with possession of methamphetamine with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Count I); conspiracy to
manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846
(Count II); possession of a firearm in furtherance of a drug offense, in violation of 18
U.S.C. § 924(c) (Count III); and possession of a firearm by a convicted felon and
unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g)(1) and
(3) and § 924(a)(2) (Count IV). James filed a motion to suppress, which Cantrell
joined. After a hearing on the motion, the magistrate recommended James’s motion
be denied. After the district court adopted the magistrate’s report and
recommendation and denied James’s motion to dismiss, the magistrate issued a second
report and recommendation, recommending the motion also be denied with respect to
Cantrell. Cantrell then filed a supplemental motion to suppress, arguing James’s
consent to search her home was invalid because Cantrell had objected to the search.
The magistrate recommended Cantrell’s supplemental motion be denied as well, and
the district court adopted both of the magistrate’s reports and recommendations with
respect to Cantrell.
On April 10, 2007, a jury found Cantrell guilty of the offenses charged in
Counts I, II, and IV of the superseding indictment, and not guilty of the offense
charged in Count III. At sentencing, the district court determined Cantrell was a
career offender under U.S.S.G. § 4B1.1 because Cantrell’s 1988 state court conviction
for second-degree burglary constituted a “crime of violence” under U.S.S.G. § 4B1.2.
The district court imposed a sentence of 262 months imprisonment under Counts I and
II, and a concurrent 120-month sentence under Count IV.
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II. DISCUSSION
A. Motions to Suppress
We review the district court’s factual findings underlying its denial of a motion
to suppress for clear error and its legal conclusions de novo. See United States v.
Wright, 512 F.3d 466, 469 (8th Cir. 2008) (citing United States v. Stevens, 439 F.3d
983, 987 (8th Cir. 2006)). Cantrell argues the district court erred by refusing to
suppress the evidence seized during the search of the James home for two reasons
(1) the officers entered the James property without a search warrant and without a
reasonable belief Cantrell was at the James residence; and (2) James’s consent to
search her home was invalid because Cantrell was a lawful co-occupant of the home
who presented substantial and credible evidence he objected to the search. We
address Cantrell’s arguments in turn.
1. Initial Entry onto the James Property to Arrest Cantrell
Cantrell contends the evidence seized during the search of the James home
should be suppressed because officers entered the James property with a warrant for
Cantrell’s arrest, but without a search warrant and without a reasonable belief Cantrell
resided at or was currently at the James residence. “[P]olice officers do not need a
search warrant to enter the home of the subject of an arrest warrant in order to
effectuate the arrest.” United States v. Powell, 379 F.3d 520, 523 (8th Cir. 2004)
(quoting United States v. Boyd, 180 F.3d 967, 977 (8th Cir. 1999)). “An arrest
warrant founded on probable cause implicitly carries with it the limited authority to
enter a dwelling in which the suspect lives when there is reason to believe the suspect
is within.” Id. (citing Steagald v. United States, 451 U.S. 204, 221 (1981)). Officers
may enter a third party’s home to execute an arrest warrant if the officers “have a
reasonable belief that the suspect resides at the [third party’s home] and have reason
to believe that the suspect is present at the time the warrant is executed.” Id. (citations
omitted). Otherwise, officers cannot “legally search for the subject of an arrest in the
home of a third party” without a search warrant, unless exigent circumstances exist
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or officers have obtained the third party’s consent. Id. (citing Steagald, 451 U.S. at
215-16).
In Cantrell’s case, the warrantless entry into the James home to arrest Cantrell
did not violate his Fourth Amendment rights because: (1) officers had a reasonable
belief Cantrell resided at the James home and Cantrell was inside the James home at
the time the warrant was executed; and (2) officers obtained James’s express consent
to enter her home and arrest Cantrell. Officers learned from a confidential informant,
who had provided reliable information in the past, that Cantrell resided at and was
currently at the James home.3 James confirmed the informant’s tip, informing officers
shortly after her arrest that Cantrell was currently inside her home. This information
was more than sufficient to support the officers’ reasonable belief Cantrell resided at
the James home and was inside the home at the time officers executed the warrant.
Even if officers had no reasonable basis for their belief Cantrell was inside the James
home when they served the arrest warrant, James’s consent provided an independent
basis for officers to enter her home to arrest Cantrell. James’s consent was
unequivocal: Deputy Wallace requested permission to get Cantrell from the James
residence to place Cantrell in custody, and James gave her permission. The officers
were not required to obtain a search warrant before entering the James home and
arresting Cantrell.
3
Cantrell asserts the magistrate and the district court should have discounted the
confidential informant’s information because Deputy Wallace gave testimony
regarding the informant’s information that was “not credible, reliable, or consistent.”
However, “[a] district court’s determination as to the credibility of a witness is
virtually unreviewable on appeal.” United States v. Heath, 58 F.3d 1271, 1275 (8th
Cir. 1995) (citations omitted). Cantrell provides no basis for concluding the district
court clearly erred in crediting Deputy Wallace’s testimony that he had reliable
information from an informant saying Cantrell was at the James residence.
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Upon Cantrell’s arrest, a protective sweep like the one officers conducted here
is “permissible without a search warrant or probable cause” when the officers’
legitimate interest in assuring themselves the house in which the suspect has just been
arrested is not harboring anyone who could pose a threat to officer safety “is
‘sufficient to outweigh the intrusion such procedures may entail.’” United States v.
Cash, 378 F.3d 745, 747 (quoting Maryland v. Buie, 494 U.S. 325, 333-34 (1990)).
The level of suspicion required for such a protective sweep is “the same level of
suspicion required for a stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968).” Cash,
378 F.3d at 748. Such a protective sweep requires “‘articulable facts which, taken
together with the rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an individual posing a
danger to those on the arrest scene.’” Id. (quoting Buie, 494 U.S. at 334). The
circumstances of Cantrell’s arrest—particularly James’s acknowledgment there were
weapons in the house—warranted the officers’ protective sweep of the James
residence.
Cantrell completely fails to distinguish between the initial entry into the James
home to effectuate his arrest; the protective sweep immediately following his arrest;
and the subsequent full-scale search of the James home based on James’s consent.
When officers arrested Cantrell just inside the James residence front door, officers did
not search the James home or seize any evidence. During the protective sweep
immediately following Cantrell’s arrest, officers apparently observed only two
contraband items: a marijuana cigarette in a Marlboro pack on the kitchen table, and
a brown vial containing a substance later determined to be methamphetamine. It was
the subsequent full-scale search, conducted pursuant to James’s express consent, that
yielded the five firearms and the extensive evidence of methamphetamine
manufacturing and distribution which Cantrell seeks to suppress. Cantrell does not
argue the consent search was the “poisonous fruit” of the initial entry or the protective
sweep, nor does Cantrell argue the initial entry or the protective sweep otherwise
operated to invalidate James’s consent. As discussed below, Cantrell merely argues
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James’s consent was invalid because Cantrell was a lawful co-occupant who was
present and objected to the search. Thus, even if the initial entry into the James
residence or the protective sweep were somehow unlawful, Cantrell provides no basis
to suppress the evidence seized in the subsequent consent search.4
2. Subsequent Consent Search of the James Home
Cantrell argues the search of the James home, conducted with James’s express
consent, violated his Fourth Amendment rights. Cantrell does not challenge the
voluntary nature of James’s consent or her authority over the premises. Instead,
Cantrell contends James’s consent to search was invalid because Cantrell was a lawful
co-occupant of the home, and Cantrell presented substantial and credible evidence he
objected to the search. To support his argument, Cantrell relies on Georgia v.
Randolph, 547 U.S. 103, 120 (2006), where the Supreme Court held “a warrantless
search of a shared dwelling for evidence over the express refusal of consent by a
physically present resident cannot be justified as reasonable as to him on the basis of
consent given to the police by another resident.” See also United States v. Hudspeth,
518 F.3d 954, 958-61 (8th Cir. 2008) (en banc).
4
In James’s motion to suppress, which Cantrell joined, James argued her Fourth
Amendment rights were violated when officers allegedly trespassed on her father’s,
Charles James’s, property to effectuate her arrest. Cantrell makes a vague reference
to this issue in his brief but does not develop the point with any argument or case
citations. To the extent Cantrell raises this issue, we agree with the district court’s
conclusion no Fourth Amendment violation occurred because officers were clearly
operating under a good faith belief they had consent to enter the Charles James
property. On at least two separate occasions, Charles James had given officers
consent to enter his land any time the officers wanted and to go anywhere the officers
wanted to go to thwart any illegal activity. Although Charles James gave this consent
approximately two years earlier, there was no testimony Charles James’s consent was
limited to a particular time period or was ever withdrawn.
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In Randolph, the co-occupants were spouses with equal rights to the property.
In Cantrell’s case, the government contends it is unclear whether Randolph applies
because “James, as the owner of the house, had a right to exclude or eject Cantrell at
any time, since he was merely an occasional overnight guest.” Indeed, the record
contains conflicting evidence as to the nature of Cantrell’s authority over or interest,
if any, in the property. We need not decide whether Cantrell was a “physically present
resident” or whether the James residence constituted a “shared dwelling” as
contemplated by Randolph because, even assuming Cantrell had a right to object to
the search, the district court did not clearly err in finding Cantrell did not object to the
search.
James testified Cantrell objected to the search, “yelling a lot of obscenities” and
“saying you get a search warrant.” In contrast, Deputy Wallace testified he never
asked Cantrell for permission to search, and Cantrell never objected to the search.
Deputy Wallace further testified that, at one point, Cantrell even asked Deputy
Wallace to retrieve his wallet, which Cantrell left either on the kitchen counter or in
the bedroom in a bag of clothes. The district court expressly found Deputy Wallace’s
testimony was credible and James’s testimony that Cantrell “spontaneously and loudly
disclaimed a grant of consent” was incredible. The district court also noted Cantrell’s
supposed vehement objection to the search was inconsistent with Cantrell’s request
that Deputy Wallace retrieve his wallet from the kitchen or bedroom. “A district
court’s determination as to the credibility of a witness is virtually unreviewable on
appeal.” Heath, 58 F.3d at 1275 (citations omitted). We find no basis to conclude the
district court erred, much less clearly erred.
B. Cantrell’s Request for a “Mere Presence” Instruction
Cantrell argues the district court erred by refusing to submit his requested “mere
presence” jury instruction. We review the rejection of a defendant’s proposed “mere
presence” jury instruction for an abuse of discretion. See United States v. Jara, 474
F.3d 1018, 1022 (8th Cir. 2007), United States v. Serrano-Lopez, 366 F.3d 628, 637
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(8th Cir. 2004). We will affirm if “the instructions given as a whole . . . fairly and
adequately submitted the issues to the jury.” United States v. Meads, 479 F.3d 598,
601 (8th Cir. 2007) (quoting United States v. Johnson, 278 F.3d 749, 752 (8th Cir.
2002)). “A [criminal] defendant is entitled to a theory of [the] defense instruction,”
such as a “mere presence” instruction, if the instruction “is timely requested,
supported by the evidence, and correctly states the law.” Id. (citing United States v.
Claxton, 276 F.3d 420, 423 (8th Cir. 2002)). However, “a defendant is not entitled
to a particularly worded instruction where the instructions given by the trial judge
adequately and correctly cover the substance of the requested instruction.” United
States v. Manning, 618 F.2d 45, 48 (8th Cir. 1980) (citations omitted) (per curiam).
A “mere presence” instruction is unnecessary where it “would have duplicated the
instructions outlining the elements of the offense, the definition of possession, and the
burden of proof.” Serrano-Lopez, 366 F.3d at 637 (citations omitted).
Cantrell proposed the following instruction:
Mere presence or proximity to a firearm at the scene is not enough to
support a finding that defendant knowingly possessed a firearm, unless
you find beyond a reasonable doubt that the defendant knew that the
firearms were present, and intended to exercise dominion and control
over the firearms either directly or through others.
The district court rejected Cantrell’s proposed instruction. The district court
submitted an instruction which required the jury to find beyond a reasonable doubt
Cantrell “knowingly possessed” one or more of the five firearms found during the
search of the James residence. The district court also submitted an instruction which
defined the term “possession” as follows:
The law recognizes several kinds of possession. A person may
have actual possession or constructive possession. A person may have
sole or joint possession.
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A person who knowingly has direct physical control over a thing,
at a given time, is then in actual possession of it.
A person who, although not in actual possession, has both the
power and the intention at a given time to exercise dominion or control
over a thing, either directly or through another person or persons, is then
in constructive possession of it.
If one person alone has actual or constructive possession of a
thing, possession is sole. If two or more persons share actual or
constructive possession of a thing, possession is joint.
Whenever the word “possession” has been used in these
instructions it includes actual as well as constructive possession and also
sole as well as joint possession.
The parties agree Cantrell’s proposed instruction was timely requested and correctly
stated the law. The government argues Cantrell’s requested instruction was
unsupported by the evidence.
We agree there was simply no evidence Cantrell was “merely present” when the
guns were found. On the contrary, Cantrell’s clothes and his identification were in the
bedroom. The house contained methamphetamine and numerous items of
methamphetamine paraphernalia, all of which Cantrell stipulated belonged to him.
Cantrell told police shortly after he was arrested that everything in the house was his.
Cantrell argues this statement referred only to the drug-related evidence in plain view,
not to the hidden guns. Even assuming Cantrell’s statement was not intended to claim
ownership of the guns, the fact Cantrell claimed ownership of the numerous items
relating to the manufacture and distribution of methamphetamine strongly refutes the
notion Cantrell was “merely present” when police found the guns. Cantrell did not
present any witnesses or other evidence to support giving his “mere presence”
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instruction. Thus, the district court did not abuse its discretion by refusing to submit
Cantrell’s “mere presence” instruction.5
Even if some basis existed for giving a “mere presence” instruction, the district
court did not abuse its discretion by rejecting Cantrell’s instruction because the jury
was correctly instructed on the burden of proof, the definition of “possession,” and the
requirement that the government prove beyond a reasonable doubt Cantrell
“knowingly” possessed a weapon. These instructions were sufficient to preclude
conviction based on Cantrell’s “mere presence” at the James home when the police
discovered the guns. As in Serrano-Lopez, a “mere presence” instruction was
unnecessary in Cantrell’s case because it “would have duplicated the instructions
outlining the elements of the offense, the definition of possession, and the burden of
proof.” Serrano-Lopez, 366 F.3d at 637 (citations omitted). We therefore conclude
the district court’s instructions adequately and correctly covered the substance of
Cantrell’s requested “mere presence” instruction.
C. Cantrell’s Second-Degree Burglary Conviction
Cantrell argues the district court erred in determining Cantrell was subject to
an increased range of punishment as a career offender under U.S.S.G. § 4B1.1 because
Cantrell’s 1988 Missouri state court conviction for second-degree burglary constituted
a “crime of violence” as defined in U.S.S.G. § 4B1.2. We review de novo the district
court’s conclusion a particular offense constitutes a “crime of violence” under the
5
Cantrell’s reliance on United States v. Manning is misplaced. In Manning, the
defendant claimed to be an unwitting backseat passenger in a car when the front seat
passenger dropped an unregistered gun out the front window. 618 F.2d at 46-47. We
reversed the conviction in Manning for failure to submit a “mere presence” instruction
because, unlike in Cantrell’s case, the defendant in Manning presented testimony
regarding his role in the offense (“merely a backseat passenger”) which supported a
“mere presence” instruction. Id. at 46, 48.
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“career offender” provision of § 4B1.1. See United States v. LeGrand, 468 F.3d 1077,
1081 (8th Cir. 2006) (citation omitted).
Under U.S.S.G. § 4B1.2(a), a “crime of violence” is defined, in relevant part,
as “any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that . . . is burglary of a dwelling [or other specified offenses] or
otherwise involves conduct that presents a serious potential risk of physical injury to
another.” The official “Commitment Report” in Cantrell’s burglary case states:
On or about [the] 14th day of May, 1988, in the County of Wright, State
of Missouri, the Defendant violated Section 569.170 RSMo by
committing the Class C felony of Burglary second degree punishable
upon conviction under Sections 558.011.1(3) and 560.011 RSMo in that
the Defendant knowingly entered unlawfully in an inhabitable structure
. . . for the purpose of committing stealing therein.
Under Mo. Rev. Stat. § 569.170, “A person commits the crime of burglary in the
second degree when he knowingly enters unlawfully or knowingly remains unlawfully
in a building or inhabitable structure for the purpose of committing a crime therein.”
Cantrell’s “Commitment Report” does not specify what type of “inhabitable structure”
Cantrell entered unlawfully. Under Mo. Rev. Stat. § 569.010(2):
“Inhabitable structure” includes a ship, trailer, sleeping car, airplane,
or other vehicle or structure:
(a) Where any person lives or carries on business or other calling; or
(b) Where people assemble for purposes of business, government,
education, religion, entertainment or public transportation; or
(c) Which is used for overnight accommodation of persons. Any such
vehicle or structure is “inhabitable” regardless of whether a person is
actually present[.]
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Cantrell argues, based on the limited information in the “Commitment Report”
and the broad definition of “inhabitable structure” in the Missouri statute, it was
impossible for the district court to determine whether Cantrell burglarized a
“dwelling” or whether his offense constituted a “burglary” as defined in Taylor v.
United States, 495 U.S. 575 (1990). In Taylor, the Supreme Court grappled with how
to define “burglary” within the meaning of the Armed Career Criminal Act (ACCA),6
when convicting states’ definitions of “burglary” varied. Id. at 580. The Court
reasoned the definition of “burglary” should be uniform, so as to avoid sentencing
disparities for identical conduct in different states. Id. at 590-92. Thus, the Court held
an offense constitutes “burglary” under the ACCA, regardless of differences in
individual states’ definitions of “burglary,” when the offense contains the basic
elements of a “generic burglary,” which are “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Id. at 598-99.
It appears Cantrell’s offense fits within Taylor’s definition of “burglary.” In
Cantrell’s case, however, we need not analyze whether Cantrell’s conviction
constituted “burglary” as defined in Taylor, because Cantrell’s offense was clearly a
“crime of violence” under the “otherwise involves conduct that presents a serious
potential risk of physical injury to another” clause of § 4B1.2(a).7 Indeed, Taylor
6
The relevant language in the ACCA is almost identical to the language in
U.S.S.G. § 4B1.2(a).
7
At Cantrell’s sentencing, in an effort to show Cantrell burglarized a
“dwelling,” the government presented Cantrell’s deposition testimony from a 2006
civil case, in which Cantrell testified his 1988 conviction was for burglarizing a house
that was being built. Cantrell objected, arguing the district court was precluded from
considering his deposition testimony under Taylor, 495 U.S. at 602 (explaining the
general requirement that sentencing judges “look only to the fact of conviction and the
statutory definition of the prior offense,” excepting “a narrow range of cases,” to
determine whether an offense constituted “generic burglary”) and Shepard v. United
States, 544 U.S. 13, 16 (2005) (further explaining a sentencing court may not examine
police reports or complaint applications to determine whether an earlier guilty plea
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made clear “[t]he [g]overnment remains free to argue that any offense—including
offenses similar to generic burglary—should count towards enhancement as one that
‘otherwise involves conduct that presents a serious potential risk to another[.]’” Id.at 600 n.9.
In concluding Cantrell’s second-degree burglary conviction was a “crime of
violence,” under the “otherwise involves” clause, the district court correctly
anticipated the Supreme Court’s decision in James v. United States, 550 U.S. __, 127
S. Ct. 1586 (2007), which was decided after Cantrell’s sentencing. In James, the
Court held attempted burglary, as defined by Florida law, is a “violent felony” under
the “otherwise involves” provision of the ACCA. Id. at 1597-98. The Court
examined whether the risks posed by attempted burglary were similar to the risks
posed by the most closely related enumerated offense—completed burglary. Id. at
1594. In concluding attempted burglary posed a “serious risk of potential physical
injury to another,” the Court reasoned:
The main risk of burglary arises not from the simple physical act of
wrongfully entering onto another’s property, but rather from the
possibility of a face-to-face confrontation between the burglar and a third
party—whether an occupant, a police officer, or a bystander —who
comes to investigate. That is, the risk arises not from the completion of
the burglary, but from the possibility that an innocent person might
appear while the crime is in progress.
Id. at 1595-96.
supports a conviction for “generic burglary”). The district court admitted Cantrell’s
deposition testimony as an exhibit, but stated, “I want to hear the rest of the argument
before I’ll make a decision as to whether it’ll be part of my decision-making here.”
After hearing arguments, the district court made clear it did not find it necessary to
consider the deposition, regardless of the type of “inhabitable structure” Cantrell
burglarized or whether his crime constituted “generic burglary” as defined in Taylor,
because Cantrell’s crime was a “crime of violence” under the “otherwise involves”
clause of § 4B1.1.
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This reasoning applies with equal force in Cantrell’s case. Cantrell unlawfully
entered an “inhabitable structure” “for the purpose of committing stealing therein.”
Missouri law limits the definition of “inhabitable structure” to only those structures
where people live, carry on business, assemble, or spend the night. See Mo. Rev. Stat.
§ 569.010(2). Thus, regardless of whether the “inhabitable structure” Cantrell
unlawfully entered was a house, car, boat, airplane, or other “inhabitable structure,”
there existed the risk of a violent confrontation between Cantrell and the occupant, the
police, or another third party. We therefore conclude the district court did not err in
determining, regardless of whether Cantrell’s state court burglary conviction was a
“generic burglary” as defined in Taylor, Cantrell was subject to an increased range of
punishment as a career offender under U.S.S.G. § 4B1.1, because Cantrell’s state court
second-degree burglary conviction constituted a “crime of violence” under the
“otherwise involves conduct that presents a serious potential risk of physical injury
to another” clause of U.S.S.G. § 4B1.2.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
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