United States v. Timothy Allen Wenner

TASHIMA, Circuit Judge.

We must decide whether Washington residential burglary is a “crime of violence” under the Sentencing Guidelines. For the reasons hereinafter stated, we conclude that it is not.

Timothy Wenner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In 1995, Wenner pled guilty to the state crimes of residential burglary, Wash. Rev.Code § 9A.52.025(1), and attempted residential burglary, Id. § 9A.28.020(1), both felonies under Washington law. Id. § 9A.52.025(2); Id. § 9A.28.020(3)(c). At sentencing, the district court found that these two crimes were crimes of violence, and therefore held his base offense level to be 24. U.S.S.G. § 2K2.1(a)(2). Wenner appeals, arguing that these convictions are not crimes of violence under the Guidelines. We have jurisdiction over this timely appeal pursuant 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We reverse and remand for resentencing.¹

ANALYSIS

Under the Guidelines, a crime of violence is “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). An attempt to commit a crime of violence is itself a crime of violence. U.S.S.G. § 4B1.2 cmt. n. 1.

To determine whether Wenner’s state convictions are burglaries of dwellings, as the government contends, we first use the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990) (extending Taylor’s categorical approach to the Guidelines). Under this approach, we do not look to the specific conduct of his state convictions, but only to the statutory definition of the crime. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. If the state statute criminalizes conduct that is not a crime of violence under § 4B1.2(a)(2), then his conviction is not a categorical match. Taylor also permits us “to go beyond the mere fact of conviction in a narrow range of cases.” 495 U.S. at 602, 110 S.Ct. 2143. In cases where a state statute criminalizes both conduct that does and does not qualify as a crime of violence, we review the conviction using a modified categorical approach. “Under the modified categorical approach, we conduct a limited examination of documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute was facially overinclusive.” Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (citing United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc)).

A. Categorical Approach

Wenner’s conviction for residential burglary is defined as “entering] or remain[ing] unlawfully in a dwelling other than a vehicle” with the intent to commit a crime. Wash. Rev.Code § 9A.52.025(1). Washington defines a “dwelling” as “any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging.” Wash. Rev.Code § 9A.04.110(7). In Washington, a “building” can include a fenced area, a railway car, or cargo container. Wash. Rev.Code § 9A.04.110(5).

Taylor held that “burglary” under the Armed Career Criminal Act (“ACCA”) is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598, 110 S.Ct. 2143. Wenner argues that a “burglary of a dwelling” under the Guidelines must be a “burglary” under Taylor (i.e., it must involve entry into a building), and the burglary must be of a “dwelling” under federal law (which might differ from Washington’s definition of a “dwelling”). We agree that Taylor’s definition of “burglary” applies to the definition of “burglary of a dwelling.” Thus, burglary of a dwelling must involve a “building or structure” under Taylor. Some things that are dwellings under Washington law (e.g., fenced areas, railway cars, and cargo containers) are not buildings or structures under federal law, and so cannot support a conviction for generic “burglary” under Taylor. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143 (noting that a few states define burglary more broadly than the federal definition “by including places ... other than buildings,” such as automobiles, vending machines, booths, tents, boats and railway cars); United States v. Bonat, 106 F.3d 1472, 1477 (9th Cir.1997) (observing that burglary of a railway car would not be “burglary” under Taylor); United States v. Pluta, 144 F.3d 968, 975-76 (6th Cir.1998) (remarking that burglary of neighbor’s backyard is not “burglary” under Taylor). Thus, we agree with Wenner that the Washington statute is broader than federal law; burglarizing a fenced area that doubles as a dwelling is a residential burglary under Washington law, but not a “burglary” under Taylor, and thus not a burglary of a dwelling under the Guidelines.

The dissent rejects the view that the Taylor definition of burglary extends to the Guidelines contending that “we do not apply Taylor’s general definition to more specific types of burglary.” Although we have not explicitly held that the Taylor definition of burglary provides the definition of “burglary” in § 4B1.2, the reasons given by the Supreme Court in Taylor for establishing a uniform definition of burglary under the ACCA apply here. That is, the Guidelines also seek to promote uniformity in sentencing and to avoid reliance on outdated common law definitions. See Taylor, 495 U.S. at 590-95, 110 S.Ct. 2143; U.S.S.G. ch. 1, pt. A, intro., p.s. 3. (stating that a fundamental purpose of the Sentencing Guidelines is “reasonable uniformity in sentencing” among federal districts). Moreover, we have previously treated the ACCA definition established in Taylor as informative of the definition of “burglary” in § 4B1.2(a)(2). In United States v. Williams, 47 F.3d 993 (9th Cir.1995), we held that a plea of nolo contendere to a charge of unlawfully entering a residence and building with intent to commit larceny constituted a conviction of a “crime of violence” under U.S.S.G. § 4B1.2(1). We relied on an ACCA case, United States v. Dunn, 946 F.2d 615, 620 (9th Cir.1991), citing it for the Taylor definition of burglary. Williams, 47 F.3d at 995. Thus, the most logical and sensible reading of the Guidelines and the reading that is consistent with our cases is to construe “burglary of a dwelling” as the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling.² Under this definition and the categorical approach required by Taylor and Becker, it is clear that the scope of Washington’s residential burglary statute exceeds the federal definition. As the dissent acknowledges, under Washington law, a “dwelling” can include a fenced area, a railway car or a cargo container. Wash. Rev.Code § 9A.04.110(5). And Taylor limits burglary to buildings or other structures. 495 U.S. at 598, 110 S.Ct. 2143.

The dissent relies on the dictionary definition of a “dwelling” quoted in United States v. McClenton, 53 F.3d 584, 587 (3d Cir.1995), and United States v. Graham, 982 F.2d 315, 316 (8th Cir.1992); however, neither case holds that burglary as broad as residential burglary under Washington law would qualify as “burglary of a dwelling” under the Guidelines. McClenton involved burglary of a hotel guest room, 53 F.3d at 587, and Graham involved burglary of “shelters used for weekend fishing retreats,” 982 F.2d at 316.³ Because the dictionary definition urged by the dissent is broader than the uniform federal definition of “burglary of a dwelling,” we decline to adopt it as controlling under § 4B1.2(a)(2). Cf Williams, 47 F.3d at 994 (concluding that burglary under California law is “broader than the conduct defined in § 4B 1.2(1) because the statute encompasses burglaries of buildings other than dwellings in situations that might not present a serious potential risk of physical injury to another”).

The dissent’s analysis of the Washington statute strays from the categorical approach required by Taylor and would create an unnecessary tension with our cases applying Taylor to guideline cases. Under the proper analysis, the necessary conclusion is that residential burglary under Washington law does not meet the definition of “burglary of a dwelling” under § 4B1.2(a)(2).

B. Modified Categorical Approach

Citing Bonat, 106 F.3d at 1477, the government argues that we can find that Wenner’s conviction matched the federal definition of burglary because the information charged Wenner with “enter[ing] or remain[ing] unlawfully in a dwelling other than a vehicle, the residence of Mike Jewell.” The government does not point to a signed plea agreement or judgment of conviction that would demonstrate that Wenner was convicted as charged and our independent review of the record does not disclose any such document. It is well-established that we may not rely on an information alone to determine the elements of conviction. See United States v. Parker, 5 F.3d 1322, 1327 (9th Cir.1993) (A “sentencing court may not rely upon the charging paper alone in determining if a prior jury conviction was for a ‘violent felony.’ ”); Bonat, 106 F.3d at 1477-78 (stating that, if district court had relied solely on charging document, instead of also considering the Judgment on Plea of Guilty, it would have been error).

Moreover, the sentencing transcript indicates that the district court did not assess Wenner’s prior convictions under the modified categorical approach, but rather appears to have presumed that the statutes constituted a categorical match. We conclude that the government did not carry its burden of establishing that Wenner was convicted of a crime of violence under the modified categorical approach. See United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.2003) (stating that the burden is on the government to prove the basis for enhancements under the modified categorical approach).

C. Catchall Provision

Although the government eschews the argument that residential burglary is a crime of violence, apart from the argument that it can be a “burglary of a dwelling,” the dissent insists that because residential burglary “involves conduct that presents a serious potential risk of physical injury to another,” residential burglary, no matter how broadly worded, should qualify as a crime of violence under the catchall provision of § 4B1.2(a)(2).⁴ Because this approach renders the limitation on the classification of burglaries as a crime of violence to burglaries of “dwellings” mere surplus-age, we respectfully disagree with the dissent. Under the dissent’s reasoning all burglaries, whether or not they are burglaries of a dwelling, would qualify for an enhancement under § 4B1.2(a)(2). Wbat then, one must ask, was the purpose of the Sentencing Commission in specifically listing “burglary of a dwelling” as a crime of violence?⁵

It is a fundamental canon of statutory construction that a statute should not be construed so as to render any of its provisions mere surplusage. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (noting that statutory language should not be construed so as to render certain words or phrases mere surplusage); Bowsher v. Merck & Co., 460 U.S. 824, 833, 103 S.Ct. 1587, 75 L.Ed.2d 580 (1983) (restating “the settled principle of statutory construction that we must give effect ... to every word of the statute”). The dissent’s approach also violates another fundamental principle of statutory construction that the specific trumps the general. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (“A general statutory rule usually does not govern unless there is no more specific rule.”); Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957) (“Specific terms prevail over the general in the same or another statute which otherwise might be controlling.”) (citation and internal quotation marks omitted); Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1013 (9th Cir.2000) (“It is fundamental that a general statutory provision may not be used to nullify or to trump a specific provision”). Finally, the dissent’s approach eviscerates the requirement that the state statute of conviction not exceed the scope of the federal definition. See United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990) (holding that the categorical approach established in Taylor applies to the Sentencing Guidelines). Here, the Guidelines specifically provide that “burglary of a dwelling” is a “crime of violence.” Given that specific inclusion, it is unsound statutory interpretation to use the general, catchall “conduct that presents a serious potential risk of physical injury” provision to include all other burglaries as crimes of violence.

The dissent bases its analysis on United States v. M.C.E., 232 F.3d 1252 (9th Cir.2000). Although M.C.E. addressed the Washington statute under which Wenner was convicted, it did not assess whether Washington residential burglary met the Sentencing Guidelines’ definition of a crime of violence under § 4B1.2(a). Rather, M.C.E. determined that Washington residential burglary is a crime of violence only for the purpose of transferring a juvenile to adult prosecution under 18 U.S.C. § 5032. Id. at 1257. Unlike the Sentencing Guidelines, however, § 5032 does not separately and specifically list “burglary of a dwelling” as a crime of violence. Thus, our decision in M.C.E., unlike the dissent, did not render any statutory language in the statute involved, § 5032, superfluous. That decision also did not favor a general statutory provision over a specific one.

In M.C.E., we noted that the language in § 5032 is “virtually identical” to the language used in Becker, in which we held that residential burglary under a California statute constituted a crime of violence because it was an offense “ ‘that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing that offense.’ ” M.C.E. 232 F.3d at 1256 (quoting Becker, 919 F.2d at 569). Significantly, however, in Becker we considered an earlier version of the Sentencing Guidelines, which did not list any specific crimes in defining a crime of violence.⁶ Becker, 919 F.2d at 572. Thus, neither M.C.E. nor Becker considered whether a state conviction for residential burglary constitutes a crime of violence because it is “burglary of dwelling” for the reason that neither the 1988 version of the Guidelines nor 18 U.S.C. § 5032 limited eligible burglaries to burglary of a dwelling.⁷

For these reasons, we decline to adopt the dissent’s broad reading of § 4B1.2(a)(2)’s catchall provision, which would render the specific inclusion of “burglary of a dwelling” in the same section surplusage.

D. Attempt Conviction

Finally, we turn to whether Wenner’s conviction for attempted residential burglary is a crime of violence. Under the Guidelines, an attempt to commit a crime of violence is itself a crime of violence. U.S.S.G. § 4B1.2, cmt. 1. Because, as we have concluded above, Washington residential burglary is not a crime of violence, Wenner’s state conviction for attempted residential burglary also is not a crime of violence under the Guidelines.

CONCLUSION

Because neither Washington residential burglary nor attempted residential burglary is a crime of violence, the district court erred in enhancing Wenner’s sentence under § 2K2.1(a)(l). We therefore vacate the sentence and remand for resentencing. See United States v. Matthews, 278 F.3d 880, 885-90 (9th Cir.) (en banc), cert. denied, 535 U.S. 1120, 122 S.Ct. 2345, 153 L.Ed.2d 173 (2002).

VACATED and REMANDED.

1 . We review de novo the district court's interpretation of the Guidelines. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002).

2 . The Guidelines' definition is necessarily narrower than the ACCA definition of burglary. See U.S.S.G. § 4B1.2, comment, (n.l); U.S.S.G. § 4B1.4, comment, (n.l) (explaining that “violent felony” under the ACCA and "crime of violence” are not identically defined). Additionally, the Supreme Court has rejected the argument that “burglary” under the ACCA should be construed to apply to a narrow subclass of burglaries because Congress did not provide narrowing language. See Taylor, 495 U.S. at 593-94, 110 S.Ct. 2143. It is thus particularly incongruous for the dissent to conclude that Washington residential burglary is broader than Taylor burglary but still narrow enough to meet the Guidelines’ definition.

3 . Because of the narrowness of the holdings in McClenton and Graham, our holding creates no inter-circuit conflict on the scope of "burglary of a dwelling” under § 4B1.2(a).

4 . This section provides:

(a) The term "crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B 1.2(a).

5 . The dissent, while acknowledging that "the sentencing court’s rationale is not crystal clear,” asserts that the district court likely "relied on section 4B1.2(a)(2)'s catch-all provision.” We find no record support for this assertion. After prefacing its remarks with the observation that "[t]here’s only a tenuous relationship between the Sentencing Guidelines and the purposes of sentencing, but we’re stuck with these guidelines,” the district court’s only reference to the controlling guideline provision was its remark that “I think that both residential burglary and the attempted residential burglary are crimes of violence — not actual violence, but violence as that term is misused in the guidelines.” This sheds no light on whether the district concluded that Washington residential burglary was a crime of violence because it was equivalent to burglary of a dwelling or because it met the "conduct” requirement of the catchall provision. The parties' briefs do not discuss the catchall provision at all — there is a complete absence of any briefing on the issue on which the dissent would decide this case.

6 . The 1988 version of U.S.S.G. § 4B1.2 at issue in Becker employed the definition of crime of violence from 18 U.S.C. § 16 (1988), which provided that a crime of violence was:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (1988).

7 . The dissent’s reliance on the ejusdem generis canon of statutory construction is also misplaced. For contrary to established practice, see, e.g., Wash. Dep’t of Social & Health Serv. v. Estate of Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 1025, 154 L.Ed.2d 972 (2003), the dissent employs the canon expansively, rather than restrictively, such that the catchall provision would "swallow[ ] up the rest of the statute.” Peretz v. United States, 501 U.S. 923, 955, 111 S.Ct. 2661, 115 L.Ed.2d 808 (Scalia, J., dissenting) (1991). Under the dissent’s view, burglary of "a fenced area, railway car, or cargo container” would qualify as a crime of violence "whether or not this conduct constitutes 'burglary of a dwelling’ under federal law.” But application of the dissent's principle would not stop there: Its expansive principle would apply equally to the burglary of an automobile, boat, warehouse, or even a bam.