Filed: Feb. 27, 2013
Latest Update: Feb. 12, 2020
Summary: Guidelines.United States v. Jonas, 689 F.3d 83, 86 (1st Cir. This, in the end, makes no difference since the parties, agree that Ramírez was convicted of burglary of a dwelling and that, the state court records provide no further information to help, narrow down the offense of conviction.
United States Court of Appeals
For the First Circuit
Nos. 11-2416, 11-2417
UNITED STATES OF AMERICA,
Appellee,
v.
RIGOBERTO RAMÍREZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Charles W. Rankin, with whom Audrey M. Grace and Rankin &
Sultan were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
February 27, 2013
THOMPSON, Circuit Judge. An investigation of gang-
related drug trafficking by the Federal Bureau of Investigation
("FBI") led to the arrest of Appellant Rigoberto Ramírez
("Ramírez"), a key supplier of crack cocaine in his community in
Chelsea, Massachusetts. Ramírez was indicted, pled guilty to one
count of conspiracy to distribute crack cocaine and two counts of
distribution of crack cocaine, and received a thirteen-year
sentence. Ramírez now challenges his sentence on both substantive
and procedural grounds, claiming that his prior felony conviction
did not warrant the career offender enhancement and that the
district court erred in denying his request for resentencing and
failing to adequately explain the reasons for his sentence. After
careful review, we remand to the district court for further
consideration.
BACKGROUND
The Drug Deals
Beginning sometime in 2009, an FBI gang task force began
investigating drug trafficking by suspected gang members operating
in Chelsea, Massachusetts. Ramírez and co-defendant Paul Rodriguez
became targets of that investigation. Ramírez, although not a gang
member himself, was considered a significant source of the crack
cocaine business in Chelsea and used gang members to facilitate it.
One of those gang members was Rodriguez, a member of "Neta," a
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violent prison gang whose members retain their allegiance after
release from prison.
There were two drug deals that eventually gave rise to
the federal charges against Ramírez. The first happened in June
2009 when Ramírez and Rodriguez sold 1.5 grams of crack cocaine to
a cooperating witness ("CW") in a Walgreens parking lot. The
second occurred the following month when Ramírez sold the same CW
three more grams of crack cocaine. During that transaction, the CW
handed the money used to purchase the drugs to a male passenger,
named "BR," who was under 18 years old and sitting in the front
passenger seat. BR counted the money to confirm it was the correct
amount for the drugs purchased.
The Indictment
In January 2010, a federal grand jury in Massachusetts
indicted Ramírez on one count of conspiracy to distribute cocaine
base, in violation of 21 U.S.C. § 846 (Count I), and two counts of
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(Counts II & IV). Count IV of the indictment added that Ramírez
knowingly and intentionally employed, hired, used, persuaded,
induced and enticed a person under 18 years of age to violate §
841(a)(1). Following the indictment, Ramírez was arrested and
entered a plea of not guilty. A little over a year later, he pled
guilty to all charges (more on the change-of-plea hearing later).
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Sentencing
The pre-sentence report ("PSR") first determined that the
offense level was 15.1 That offense level, combined with Ramírez's
criminal history points (placing him in category V) would have set
the Sentencing Guidelines (the "Guidelines") range at 37 to 46
months. The PSR, however, further determined that Ramírez should
receive an enhanced sentence as a career offender under § 4B1.1.
The PSR based the career offender enhancement on two prior
convictions that -- according to the PSR -- satisfied the
definition of a "crime of violence" set forth in § 4B1.2(a): a
1993 Massachusetts conviction for manufacturing, distributing, or
dispensing a Class A substance in a drug-free school zone, and a
1997 Florida conviction for burglary of a dwelling. Applying the
enhancement, the PSR explained that § 4B1.1 directs the offense
level be determined by the statutory maximum for the offenses of
conviction and that the statutory maximum in this case was forty
years (or twice the otherwise applicable statutory maximum penalty
of twenty years) because Ramírez used a juvenile in violation of 21
U.S.C. § 861. The career offender total offense level of 34 was
reduced by three levels under U.S.S.G. § 3E1.1(a) and (b) for
acceptance of responsibility resulting in a career offender total
1
Ramírez's base offense level ("BOL") was 18 under U.S.S.G. §
2D1.1(c)(11), but was reduced to 15 after factoring in the
reduction of three levels under § 3E1.1(a) and (b) for acceptance
of responsibility.
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offense level of 31. According to the PSR, a total offense level
of 31 and a career offender criminal history category of VI set the
guidelines range at 188 to 235 months.2
When it came time for sentencing, Ramírez objected that
burglary of a dwelling under Florida law did not qualify as a
"crime of violence" under the career offender guideline to warrant
a sentence enhancement. Ramírez further objected to any sentence
enhancement under 21 U.S.C. § 861(b) for use of a person under 18
since he did not admit at the change-of-plea hearing that he knew
BR was a minor. Lastly, Ramírez claimed the crime of violence
provision's residual clause, § 4B1.2(a)(2), was unconstitutionally
vague.3
At sentencing, the district court concluded that
Ramírez's Florida burglary of a dwelling conviction qualified as a
"crime of violence" under § 4B1.1. The district court adopted the
2
Once a defendant is classified as a career offender under §
4B1.1(a), his "criminal history category in every case" is elevated
to the highest category, Category VI. U.S.S.G. § 4B1.1(b).
3
As discussed further below, a prior conviction may qualify as
a crime of violence under § 4B1.2(a) if it is an "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 a 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."
U.S.S.G. § 4B1.2(a). We have referred to the clause after the
enumerated offenses as the "residual" or "otherwise" clause.
United States v. Holloway, 630 F.3d 252, 256, 260 (1st Cir. 2011).
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PSR's calculations, finding that Ramírez's career offender total
offense level was 31 and his career offender criminal history
category was VI, resulting in a Guidelines sentencing range of 188
to 235 months. The district court sentenced him to thirteen years
imprisonment (or 156 months) and six years of supervised release.
Post-Sentencing
After sentencing, Ramírez moved to correct the judgment
and for resentencing, arguing that because the district court
credited Ramírez's statement at the change-of-plea hearing that he
did not know BR was a minor, the enhancement under 21 U.S.C. §
861(b) should not apply. Without the enhancement, Ramírez argued,
the correct guidelines sentencing range was 151 to 188 months, the
term of supervised release should be reduced from six to three
years, and resentencing was warranted. The court agreed in part
with Ramírez. The district court reduced the term of supervised
release to three years, but ruled that "there is no need for
resentencing." With the exception of the reduction in the term of
supervised release, the sentence remained unchanged. Ramírez now
appeals.
DISCUSSION
Prior Offense as a "Crime of Violence"
Ramírez first contends that burglary of a dwelling does
not qualify as a "crime of violence" under § 4B1.2(a) of the
Guidelines. We review de novo the classification of a prior
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offense as a crime of violence under the Guidelines. United States
v. Small, 640 F.3d 425, 426 (1st Cir. 2011).
To determine whether a defendant's prior crime qualifies
as a crime of violence, we take a categorical approach. See, e.g.,
United States v. Jonas, 689 F.3d 83, 86 (1st Cir. 2012) (citing
Sykes v. United States, ___ U.S.___,
131 S. Ct. 2267, 2272 (2011)).
Our focus is on "the legal definition of the crime and not the
defendant's particular conduct in committing the offense." United
States v. Davis,
676 F.3d 3, 7 (1st Cir. 2012). We first identify
the offense of conviction and look to see whether the statutory
definition of that offense meets the requirements of the
Guidelines' definition of a "crime of violence" under § 4B1.2(a).
Davis, 676 F.3d at 8; United States v. Brown,
631 F.3d 573, 577
(1st Cir. 2011).
The career offender designation applies to one who, being
18 or older at the time of the offense, commits a felony that is
either a drug offense or a "crime of violence" and who has at least
two other such convictions. U.S.S.G. § 4B1.1(a). A "crime of
violence" is any offense "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 a 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."
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Id. § 4B1.2(a). Thus, to qualify as a crime of violence, Ramírez's
prior offense must contain an element of the threat or use of
force, be one of the enumerated offenses, or fall within the
residual clause. See id.; United States v. Giggey,
551 F.3d 27, 33
(1st Cir. 2008) (en banc) ("Giggey I").
At the time of Ramírez's 1997 burglary of a dwelling
conviction, Florida defined "burglary" as "entering or remaining in
a dwelling, a structure, or a conveyance with the intent to commit
an offense therein, unless the premises are at the time open to the
public or the defendant is licensed or invited to enter or remain."
Fla. Stat. § 810.02(1)(1997). "Dwelling" means "a building or
conveyance of any kind . . . whether such building or conveyance is
temporary or permanent, mobile or immobile, which has a roof over
it and is designed to be occupied by people lodging therein at
night, together with the curtilage thereof." Id. § 810.011(3).
Because burlgary of a dwelling under Florida law has no
element related to the threat or use of physical force, it does not
qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1). We
thus turn to whether Ramírez's conviction can be classified as a
crime of violence under the enumerated "burglary of a dwelling"
offense under § 4B1.2(a)(2). While Ramírez does not dispute that
he was convicted of burglarizing a dwelling, he argues that
Florida's definition of burglary of a dwelling is broader than
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"generic burglary" as defined by the Supreme Court in Taylor v.
United States, 495 U.S. 575, 602 (1990).
Taylor interpreted the term "burglary" as it is used in
the enumerated offense clause of the "violent felony" provision
under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).
495 U.S. at 597-99.4 The definition of "burglary," the Court said,
should not be derived from the common-law because the "contemporary
understanding of 'burglary' has diverged a long way from its
common-law roots."
Id. at 593. In the Court's view, "Congress
meant by 'burglary' the generic sense in which the term is now used
in the criminal codes of most States," but the term "must have some
uniform definition independent of labels employed by the various
States' criminal codes."
Id. at 592, 598. The Court thus
concluded that "the generic, contemporary meaning of burglary" is
"the unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime."
Id.
at 598. Taylor added that state burglary statutes which include
within their reach places "other than buildings," such as
automobiles cannot categorically be considered "generic burglary."
Id. at 599. The Court said that an overly broad statute could
4
We have repeatedly noted that the "substantial similarity"
between the definition of "violent felony" for sentencing
enhancement purposes under the ACCA and the definition of "crime of
violence" under the Guidelines' career offender provision makes
decisions "interpreting one phrase frequently . . . persuasive in
interpreting the other [ ]." United States v. Winter, 22 F.3d 15,
18 n.3 (1st Cir. 1994).
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nonetheless trigger an enhancement under the violent felony
provision of the ACCA if the charging documents and certain other
records establish the defendant was convicted of generic burglary.
Id. at 602. Relying on Taylor, Ramírez argues that Florida's
inclusion of curtilage and conveyances which could include cars and
aircrafts in its definition of "dwelling," Fla. Stat. § 810.011(3),
takes Florida's definition of burglary of a dwelling beyond
Taylor's definition of generic burglary and cannot therefore
constitute "burglary of a dwelling" under U.S.S.G. § 4B1.2(a)(2).
Instead of rebutting that argument, the government assumes Taylor's
definition applies.
We disagree that Taylor's strict definition of "generic
burglary" automatically dictates the Guidelines' definition of
"burglary of a dwelling." The Guidelines' definition of "crime of
violence" and the ACCA's definition of "violent felony" are nearly
identical, so authority construing one frequently informs the
construction of the other. United States v. Willings, 588 F.3d 56,
58 n.2 (1st Cir. 2009). That is not always true, however. As we
have emphasized, Taylor's interpretation of the term "burglary" as
it is used in the ACCA must be "put in context." Giggey
I, 551
F.3d at 35.5 Taylor involved a question of congressional intent,
5
Giggey I addressed Taylor's application to the Guidelines and
held that whether a prior conviction for non-residential burglary
is a "crime of violence" turns on the application of a categorical
approach under § 4B1.2(a)(2)'s residual clause. Id. at 39-41.
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not the Commission's intent, and did not mandate the Commission
restrict the definition of "burglary of a dwelling," based on
Taylor's definition of "generic burglary" under the ACCA. Giggey
I, 551 F.3d at 35-36. The Commission's decision to list the more
limited "burglary of a dwelling" as an enumerated offense "instead
of using the ACCA's broader term 'burglary' or even Taylor's
'generic burglary'" was "deliberate" and affects how we define
"burglary of a dwelling" under the Guidelines.
Id. at 33, 36; see
United States v. Rivera-Oros,
590 F.3d 1123, 1129 (10th Cir. 2009)
(noting that "[a]t least with respect to burglary, the Commission
has reached a different conclusion than Congress did in enacting
the ACCA" in finding Taylor's definition did not apply to the term
"burglary of a dwelling" as used in the Guidelines); United States
v. Murillo-Lopez,
444 F.3d 337, 342 (5th Cir. 2006) (finding that
"Taylor interprets a federal statute" and "does not purport to
define 'burglary of a dwelling' [or] . . . purport to govern the
Guidelines," noting previous decisions interpreting "burglary of a
dwelling" under the Guidelines without citation or reliance upon
Taylor).6 Because Taylor's definition of generic burglary does not
strictly apply here, we must define "burglary of a dwelling" as the
6
The Ninth Circuit has chosen a different approach, construing
"'burglary of a dwelling' as the Taylor definition of burglary,
with the narrowing qualification that the burglary occur in a
dwelling." United States v. Wenner, 351 F.3d 969, 973 (9th Cir.
2003). Like the Tenth Circuit, see
Rivera-Oros, 590 F.3d at 1133,
we disagree that Taylor's strict definition applies.
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term is used in the Guidelines.7 Only then may we consider whether
"the state statute corresponds in substance to the generic meaning
of [the enumerated offense]." See Taylor, 494 U.S. at 599.8
While we have not been called upon to define "burglary of
a dwelling" in the Guidelines' context, at least four circuits have
taken on that task. See Rivera-Oros, 590 F.3d at 1132;
Murillo-Lopez, 444 F.3d at 344-45; United States v. McClenton,
53
F.3d 584, 588 (3d Cir. 1995); United States v. Graham,
982 F.2d
7
The cases the government relies upon in assuming Taylor's
definition of generic burglary controls, involved the violent
felony provision under the ACCA which lists "burglary," not the
Guidelines' more limited "burglary of a dwelling" as an enumerated
offense. See, e.g., United States v. Farrell,
672 F.3d 27, 32 (1st
Cir. 2012) (state statute's inclusion of ships or vessels in the
statute's definition of burglary goes beyond the confines of
"generic burglary" under Taylor); United States v. Sanchez-Ramírez,
570 F.3d 75, 82 n. 7 (1st Cir. 2009) (noting Florida's burglary
statute's inclusion of curtilage brings it outside "generic
burglary" as defined in Taylor and Shepard documents do not exclude
"non-generic" burglary).
8
We, like many of our sister circuits, use Taylor's analytical
framework to determine whether a prior state conviction falls
within the generic definition of the enumerated offense to qualify
as a crime of violence under the Guidelines. See, e.g., United
States v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011) (applying
Taylor's categorical approach in defining generic "manslaughter" as
used in § 4B1.2(a) cmt. 1); United States v. Marrero,
677 F.3d 155,
165 (3d Cir. 2012) (applying Taylor's framework in adopting the
generic definition for "murder" under § 4B1.2(a) Application Note
1); United States v. Lockley,
632 F.3d 1238, 1242 (11th Cir. 2011)
(employing Taylor's approach in determining that Florida's
definition of robbery follows the generic definition of robbery
under the Guidelines to justify the sentencing enhancement); United
States v. Walker,
595 F.3d 441, 445-46 (2d Cir. 2010) (applying
Taylor to determine whether a state's robbery offense "corresponds
substantially to the 'generic meaning' of robbery" to qualify
"categorically as a 'crime of violence' for Guidelines enhancement
purposes").
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315, 316 (8th Cir. 1992). Relying primarily on Black's Law
Dictionary's definition of "dwelling," these courts have concluded
that "dwelling" means an "enclosed space that is used or intended
for use as a human habitation." Rivera-Oros, 590 F.3d at 1130-33
(looking to, inter alia, Black's Law Dictionary's definition of
"dwelling," and the Commission's "heightened concern for harms
associated with residential burglaries" in concluding "dwelling" is
not limited to permanent, immovable structures);
Murillo-Lopez,
444 F.3d at 343-45 (considering the Model Penal Code, LaFave
treatise on criminal law, and Black's Law Dictionary);
McClenton,
53 F.3d at 587-88 (applying Black's Law Dictionary "dwelling"
definition and case law);
Graham, 982 F.2d at 316 (relying on
Black's Law Dictionary's "dwelling" definition); see also United
States v. McFalls,
592 F.3d 707, 712-14 (6th Cir. 2010) (requiring
human habitation in defining "dwelling")(citing Graham, McClenton
and Murillo-Lopez). We agree that the generic definition of
"dwelling" for the purposes of the enumerated "burglary of a
dwelling" offense under the Guidelines, specifically § 4B1.2(a),
must be an enclosed space for use or intended use for human
habitation. See
Rivera-Oros, 590 F.3d at 1132-33 (finding the
definition of "dwelling" includes any "enclosed space that is used
or intended for use as a human habitation");
Murrillo-Lopez, 444
F.3d at 345 (concluding "'burglary of a dwelling'" includes the
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elements of generic burglary" under Taylor "but it also includes,
at a minimum, tents and vessels used for human habitation").
We now turn to the Florida statute to determine whether
it roughly corresponds to the generic definition of burglary of a
dwelling. As previously mentioned, Florida's definition of
burglary includes the "entering or remaining in a dwelling . . .
with the intent to commit an offense therein." Fla. Stat. §
810.02(1)(1997). A "[d]welling," is any "building or conveyance .
. . [which] is temporary or permanent, mobile or immobile, which
has a roof over it and is designed to be occupied by people lodging
therein at night, together with the curtilage thereof." Id. §
810.011(2).9 The curtilage, however, need not be similarly
designed for human habitation at night. While the statute neglects
to define "curtilage," Florida courts have defined it as an area
surrounding a residence which has "some form of an enclosure."
State v. Hamilton,
660 So. 2d 1038, 1044 (Fla. 1995). An enclosed
yard surrounding a residence, for instance, qualifies as curtilage
9
Florida's burglary statute does not define the term
"lodging," but we may "use standard dictionary definitions to
assist in determining the ordinary meaning of statutory language."
Riva v. Mass., 61 F.3d 1003, 1008 n.4 (1st Cir. 1995). "Lodging"
means "a place to live" or "sleeping accommodations." Merriam-
Webster's Collegiate Dictionary (11th ed. 2003), available at
www.meriam-webster.com/dictionary/lodging (defining "lodging" as "a
place to live: dwelling" and "sleeping accommodations") (last
visited February 25, 2013); The American Heritage Dictionary of the
English Language(5th ed. 2011), available at
www.ahdictionary.com/word/search.html?q=lodging (defining "lodging"
as "a place to live" or "sleeping accommodations")(last visited
February 25, 2013).
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in Florida. See id. at 1046 (finding victim's yard bounded only by
"several unevenly spaced trees" did not constitute the residence's
curtilage because it was not enclosed); Chambers v. State,
700
So. 2d 441, 442 (Fla. Dist. Ct. App. 1997) (upholding burglary of a
dwelling conviction where wooden and chain link fence with a ten-to
fifteen-foot gap surrounding the yard was considered part of the
residence's curtilage); see also T.J.T. v. State,
460 So. 2d 508
(Fla. Dist. Ct. App. 1984) (upholding burglary conviction where
defendant attempted to remove a window from a residence with a
fenced-in yard as its curtilage).
Because Florida's definition of burglary of a dwelling
includes both burglary of a building or conveyance and burglary of
such building's or conveyance's curtilage, we cannot tell whether
Ramírez's burglary conviction involved the former, the latter, or
both. The parties agree the appropriate adjudicative documents do
not narrow it down. See United States v. Almenas, 553 F.3d 27, 33
(1st Cir. 2009) (examination of appropriate adjudicative records is
allowed where statutory definition is too broad to determine the
offense of conviction).10 The statute's inclusion of curtilage,
however, matters when comparing Florida's definition of burglary of
10
The parties discussed certain state court records at the
sentencing hearing, but have not submitted those documents as part
of the record on appeal. We have found none in the district court
record. This, in the end, makes no difference since the parties
agree that Ramírez was convicted of burglary of a dwelling and that
the state court records provide no further information to help
narrow down the offense of conviction.
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a dwelling with the generic meaning of the offense under the
Guidelines. Generic burglary of a dwelling requires the dwelling
be an enclosed space used or designed for human habitation. Under
Florida's definition of burglary of a dwelling, the building or
conveyance must be designed for lodging at night, but the curtilage
does not.
In United States v. Gomez-Guerra, 485 F.3d 301, 303-04
(5th Cir. 2007), the Fifth Circuit addressed head-on whether
Florida's burglary of a dwelling, and its inclusion of curtilage,
is categorically the equivalent of burglary of a dwelling under the
Guidelines and concluded it was not. Generic burglary of a
dwelling, the court said, does not cover the burglary of curtilage
-- "the grounds around the dwelling" -- it only prohibits the
unlawful entry into the dwelling itself.
Id. at 304. Because, in
the court's view, the inclusion of "curtilage" extends burglary of
a dwelling in Florida beyond its generic meaning, the court held
that the defendant's 1997 Florida burglary conviction was not a
crime of violence under § 2L1.2(b) of the Guidelines. Id.; accord
United States v. Rodriguez-Lopez, 472 Fed. Appx. 333, 333-34 (5th
Cir. 2012) (finding Florida's inclusion of curtilage in its
definition of dwelling renders the statute outside of the
contemporary meaning of the enumerated burglary of a dwelling crime
of violence under § 2L1.2).
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We agree with the Fifth Circuit and hold the inclusion of
"curtilage" makes Florida's definition of burglary of a dwelling
broader than the generic meaning of burglary of a dwelling under
the Guidelines.11 Human habitation is the sin qua non of a
"dwelling." In cases where courts found a particular state
statute's definition of burglary of a dwelling corresponded with
its generic definition under the Guidelines, each statute limited
"dwelling" to places of human habitation. And, the spaces at issue
in those cases -- tents and vessels in Murillo-Lopez, 444 F.3d at
345, hotel guest rooms in
McClenton, 53 F.3d at 587, and the
unspecified structures used as "weekend fishing retreats" in
Graham, 982 F.2d at 316, all satisfied the human-habitation test.
See, e.g.,
McClenton, 53 F.3d at 587 ("hotel guest room is intended
for use as human habitation, albeit, in most circumstances, on a
transient or temporary basis"). None of the statutes at issue in
those cases broadened the definition of a dwelling to include the
area, surrounding the building or conveyance, which is not used or
intended to be used as a place where people stay or sleep. But
that is precisely the statute before us. See McFalls, 592 F.3d at
712 (finding state's burglary statute did not qualify as a an
enumerated crime of violence because of its broad definition of
11
Albeit based on their own reading of Taylor, the parties
agree that Florida's definition of burglary is broader than
"generic burglary," since Florida's definition of dwelling includes
curtilage.
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"dwelling" which extends to uninhabitable structures as far as 200
yards from a dwelling house). Given the overbreadth of Florida's
definition of "dwelling," we cannot say burglary of a dwelling
under Florida law is categorically the equivalent to the enumerated
burglary of a dwelling offense under the Guidelines. Thus,
Ramírez's Florida burglary conviction does not constitute a crime
of violence under the enumerated offenses clause of U.S.S.G. §
4B1.2(a)(2). That does not end our analysis, however.
As the government argues, Ramírez's prior conviction may
still qualify as a crime of violence under § 4B1.2(a)(2)'s residual
clause -- if it "involves conduct that presents a serious potential
risk of physical injury to another."12 U.S.S.G. § 4B1.2(a)(2).
See, e.g., Brown, 631 F.3d at 578 (turning to the residual clause
and employing the categorical approach to determine whether the
predicate at issue was a crime of violence under § 4B1.2(a)(2)).
To qualify as a crime of violence under the residual
clause, the predicate offense must "in the ordinary case . . .
present[ ] a serious potential risk of physical injury to another,"
similar to the risk presented by the clause's enumerated offenses.
James v. United States, 550 U.S. 192, 208 (2007); Jonas,
689 F.3d
12
Ramírez makes much of the fact that the government raises its
residual clause argument for the first time on appeal. At the time
of sentencing, however, Ramírez argued -- perhaps predicting the
government's position -- that his Florida burglary conviction did
not qualify as a crime of violence under that clause. He cannot
now, therefore, claim any unfair surprise by the government's
argument on appeal.
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at 86-87. "This determination hinges on a commonsense assessment
of the risk of violence that typically ensues during the commission
of the crime." Jonas, 689 F.3d at 87 (citing
Sykes, 131 S. Ct. at
2273–74). The offense must also be "roughly similar in kind to the
enumerated offenses."
Jonas, 689 F.3d at 87;
Sykes, 131 S. Ct. at
2272–74 (reiterating the relevant standards for evaluating whether
an offense is a crime of violence). An offense is similar in kind
to an enumerated offense if it typically "involves purposeful,
violent and aggressive conduct."
Jonas, 689 F.3d at 87;
Farrell,
672 F.3d at 33.
Ramírez does not dispute that his "burglary of a
dwelling" conviction is roughly similar in kind to the "burglary of
a dwelling" offense listed in the enumerated offenses clause. See
Brown, 631 F.3d at 579 (noting that burglary of a building is
"comparable in kind" to burglary of a dwelling)(emphasis in
original). We focus, therefore, on comparability of risk.
The serious potential risk of physical injury of entering
a building or conveyance "which has a roof over it and is designed
to be occupied by people lodging therein at night," or the
curtilage of such building or conveyance, Fla. Stat. § 810.011(2),
under Florida law is comparable to that presented when a generic
burglary of a dwelling occurs. The statute's requirement that the
conveyances or buildings be designed for lodging at night narrows
the types buildings and conveyances that may qualify as dwellings.
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A trailer, for instance, is designed for lodging at night, whereas
a car is not; it is designed for transporting people and things
from one location to another. "Dwellings," we have emphasized, are
intended to be "occupied at all hours by individuals." Brown, 631
F.3d at 579. A structure or conveyance that has a roof over it and
is designed specifically for lodging at night has the same purpose.
Unlike buildings that tend to be "wholly unoccupied at night" which
might make "the threat of violence during the offense [ ] fairly
speculative,"
id., a structure or conveyance where people live or
sleep at night, "creates much of the same risk of physical
confrontation with a property owner, law enforcement official, or
other third party as one who attempts to enter the structure
itself."
James, 550 U.S. at 213. In both instances, the burglar
creates the risk "that an innocent person might appear while the
crime is in progress" and that a confrontation with police or
bystanders attempting to investigate might occur.
Id. at 203.
Indeed, the risk of a possible confrontation with a third party is
heightened here precisely because the building or conveyance must
be designed for a person to sleep there at night.
The same serious risk exists where a defendant breaches
the building's or conveyance's curtilage. As the Supreme Court
explained in James, inclusion of curtilage in Florida's definition
does not decrease the risk of physical confrontation to the extent
that it takes the offense outside of the residual clause. Id. at
-20-
213 (holding prior conviction qualified as a violent felony under
the ACCA's residual clause, despite the inclusion of curtilage in
Florida's burglary statute). The "curtilage adjacent to a
structure is typically enclosed 'to keep out unwanted vistors-
especially those with criminal motives.'" Sanchez-Ramírez,
570
F.3d 82-83 (quoting
James, 550 U.S. at 213). Thus, one who
attempts to enter the curtilage which surrounds the building or
conveyance must be within close "physical proximity to the
structure."
James, 550 U.S. at 213. In attempting to breach that
enclosure, the burglar "creates much the same risk of confrontation
. . . as [ ] one who attempts to enter the structure itself." Id.;
see United States v. Pakala,
568 F.3d 47, 55 (1st Cir. 2009)
(holding defendant's convictions of burglary of a dwelling in
Florida -- involving either a building or the curtilage thereof --
presented a serious risk of physical injury to another and
constituted violent felonies under the ACCA's residual clause); see
also
Sanchez-Ramírez, 570 F.3d at 82-83 (holding the risks to third
parties identified in James were equally prevalent in the predicate
burglary of an unoccupied structure -- a church -- to constitute a
violent felony under the ACCA's residual clause).
While James and Pakala examined Florida's burglary
statute under the residual clause of the ACCA's violent felony
provision, the residual clause in the crime of violence provision
under the Guidelines is identical to it. See 18 U.S.C. §
-21-
924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). Our cases as well as
Supreme Court decisions interpreting whether a prior conviction
qualifies as a violent felony under the residual clause of 18
U.S.C. § 924(e)(2)(B)(ii) are, therefore, highly persuasive in
deciding whether the conviction is a crime of violence under §
4B1.2(a)(2). See United States v. Grupee, 682 F.3d 143, 148-49
(1st Cir. 2012) (relying on circuit precedent that a conviction for
assault and battery of a police officer is a violent felony under
the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) to conclude the
same was a crime of violence under "the identical residual clause"
of U.S.S.G. § 4B1.2(a)(2)). Listing the more limited "burglary of
a dwelling" in the enumerated offenses clause in U.S.S.G. §
4B1.2(a)(2), as Ramírez argues, does indeed affect how we interpret
whether burglary of a dwelling is a crime of violence under the
Guidelines' residual clause. Giggey
I, 551 F.3d at 36. It only
means, however, that we consider the Guidelines' more limited
enumerated burglary of a dwelling offense when comparing the degree
of risk between the enumerated offenses and Ramírez's prior
offense. And here, we find the degree of risk posed by the
enumerated burglary of a dwelling offense in the Guidelines
comparable to that presented by the burglary of a dwelling as
Florida has defined it.
Brown and Farrell, two cases upon which Ramírez heavily
relies to support his argument that burglary of a dwelling under
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Florida law is not a crime of violence under the residual clause,
dealt with breaking and entering into non-dwellings which do not
involve the same considerations of risk where, as here, dwellings,
and enclosed spaces surrounding them, are involved. Brown, 631
F.3d at 575, 578-79 (night-time breaking and entering of a non-
dwelling building);
Farrell, 672 F.3d at 32 (breaking and entering
into a non-structure, such as a vessel or ship). In fact, our
reasoning in Brown only further supports our conclusion that
burglary of a dwelling constitutes a crime of violence within the
meaning of the Guidelines' residual clause. There, we held
burglary of a building was not comparable in risk to burglary of a
dwelling under the Guidelines.
Brown, 631 F.3d at 579. We looked
to the Massachusetts breaking and entering statute at issue and saw
it covered a broad range of structures (including storage sheds and
detached garages) where "one might rarely encounter someone else at
night."
Id. Unlike dwellings, we said, buildings are not intended
to be occupied by individuals at all hours, making the risk that
violence will occur during the offense at night speculative.
Id.
Here, the building or conveyance in the Florida statute must be
designed for occupation at night to constitute a dwelling which, as
we recognized in Brown, increases the serious potential risk of
injury to another. And, that risk is similarly heightened where an
enclosed area surrounding that building or conveyance is breached
by an unwelcomed visitor.
-23-
In sum, we find that burglary of a dwelling under Florida
law is similar in kind and in risk to the enumerated burglary of a
dwelling offense to qualify as a crime of violence under the
Guidelines' residual clause.13 We therefore find no error in the
district court's application of the career offender enhancement.
Use-of-Juvenile Enhancement
Ramírez was sentenced to thirteen years imprisonment --
a downward departure from the lowest possible sentence in his
applicable Guidelines range. On appeal Ramírez avers the district
court's sentence was wrought with procedural error, arguing that
the court miscalculated his Guidelines range by applying 21 U.S.C.
§ 861(b) despite its acknowledgment that Ramírez did not admit to
knowing that BR was a minor at the change-of-plea hearing, and that
the court's explanation for the sentence imposed was inadequate.
We tackle the former issue first, which in the end, leads us to
conclude remand is appropriate.
We generally review claims of procedural error in
sentencing for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Leahy,
668 F.3d 18, 21 (1st
Cir. 2012). Because Ramírez objected repeatedly to the sentencing
13
Ramírez all but abandons his alternative argument that the
residual clause is unconstitutionally vague, recognizing that we
have rejected vagueness challenges to the residual clause. United
States v. Hart, 674 F.3d 33, 41 n.3 (1st Cir. 2012) (citing
James,
550 U.S. at 210 n.6). As we have before, we reject his challenge
here.
-24-
enhancement under § 861(b) and the calculation of the Guidelines
range that resulted from applying it -- objections made prior to
sentencing and in a motion to correct after sentencing -- we review
Ramírez's claim for abuse of discretion.
As we all know, the Guidelines are no longer mandatory
after United States v. Booker, 543 U.S. 220 (2005), but calculating
the correct Guidelines range remains the starting point for
determining a defendant's sentence.
Gall, 552 U.S. at 49–51;
United States v. Gobbi,
471 F.3d 302, 313 (1st Cir. 2006). This
task is of such import that a calculation error will often require
resentencing. United States v. Rodriguez,
630 F.3d 39, 41 (1st
Cir. 2010) (emphasizing that "starting with the Guidelines'
framework - which gives judges an idea of the sentences imposed on
equivalent offenders elsewhere - helps promote uniformity and
fairness" as Congress intended). The sentence given may fall
inside or outside the advisory Guidelines range, provided that it
stays within the statutory range and considers the 18 U.S.C. §
3553(a) sentencing factors. See, e.g.,
Gall, 552 U.S. at 41, 49–50
& n. 6;
Booker, 543 U.S. at 259–60. When it falls below the bottom
of the Guidelines range, a defendant may still challenge the
incorrect Guidelines calculation. United States v. Paneto,
661
F.3d 709, 715 (1st Cir. 2011).
In this case, Ramírez challenges one aspect of the
district court's Guidelines calculation: the enhancement under 21
-25-
U.S.C. § 861(b) for "knowingly or intentionally" using a person who
is a minor when committing the offense under § 841(a)(1). Ramírez
pled guilty to violating § 841(a)(1) which carries the penalties
under § 861(a)(1) when a person "at least eighteen years of age .
. . knowingly and intentionally . . . employ[s], hire[s], use[s] .
. . a person under eighteen years of age" in violating § 841(a)(1).
21 U.S.C. § 861(a)(1). A defendant who knowingly and intentionally
uses a minor in violating § 841(a)(1) is "subject to twice the
maximum punishment otherwise authorized and at least twice any term
of supervised release" and "[e]xcept to the extent a greater
minimum sentence is otherwise provided," a mandatory minimum
sentence of one year imprisonment. 21 U.S.C. § 861(b). The §
861(b) enhancement pushes Ramírez's Guidelines range from 151 to
188 (what Ramírez says it should have been) to 188 to 235 (what the
PSR and judgment say it is).
Ramírez argues that under § 861(a)(1), the government
must prove that he knew BR was a minor and because he did not admit
to knowing that at his change-of-plea hearing, no enhancement
applies. The government disagrees, claiming that no proof of
knowledge is necessary to apply the enhancement. Every circuit to
have considered the use-of-juvenile provision has concluded that
the government is not required to prove the defendant knew the
person used was underage. United States v. Frazier, 213 F.3d 409,
418-19 (7th Cir. 2000); United States v. Cook,
76 F.3d 596, 601
-26-
(4th Cir. 1996); United States v. Chin, 981 F.2d 1275, 1279-80
(D.C. Cir. 1992) (R.B., Ginsburg, J.); United States v. Williams,
922 F.2d 737, 738-39 (11th Cir. 1991); United States v.
Valencia-Roldan,
893 F.2d 1080, 1083 (9th Cir. 1990); United States
v. Carter,
854 F.2d 1102, 1108-09 (8th Cir. 1988).
We need not decide whether we agree with our sister
circuits, as there is a more glaring problem: the record is
inconsistent as to whether the district court actually applied the
enhancement. Without knowing that, we cannot say whether the
district court got the Guidelines calculation right or wrong. As
further explained below, the record raises more questions than it
provides answers.
From the district judge's repeated statements at the
change-of-plea and sentencing hearings that Ramírez had not
admitted to knowing BR was a minor for sentencing purposes, it
appears the judge had decided that proof of knowledge (or admitting
knowledge) was required, which would indicate his disagreement with
our sister circuits on the issue. At the change-of-plea hearing,
Ramírez admitted to using BR in violating 21 U.S.C. § 841, but
denied knowing BR was a minor. Turning to the parties, the judge
asked, "Well, he had to know he's a juvenile, doesn't he?" and
asked whether the statute required that Ramírez know that BR was a
minor or that he "turned out to be" a minor. The government had no
answer and indicated its willingness to brief the issue. The judge
-27-
did not respond whether he would like any briefing. Instead, he
said that "when we come to sentencing, to the extent that this may
impact me, [Ramirez is] not admitting that" and that he would
"credit" Ramírez's denial for sentencing purposes.
At sentencing, when discussing the applicability of
U.S.S.G. § 3B1.4 -- which, like 21 U.S.C. § 861, increases the
Guidelines range if the defendant uses a minor in the crime -- the
judge reiterated that Ramírez had not admitted to knowingly using
a minor at the plea hearing, stating that "if the government had
wanted that, I expect him to admit it at the time of the plea."
Going further, the judge said that Ramírez is "either going to
admit it or a jury's going to find it. I think that's what the
constitution requires." While he made no ruling on whether proof
of knowledge is required, at least on this record, the judge seemed
to be saying it was and that he had no intention of applying the
use-of-juvenile enhancement under § 861 to determine the offense
level and, consequently, the Guidelines range.
The initial judgment, however, turns that reading of the
record on its head. The judgment reflects the judge's acceptance
of the PSR's calculations of the Guidelines range and the
application of § 861(b). To recap, the PSR determined that the
career offender provision applied, that Ramírez's career offender
total offense level was 31 and his criminal history category was
VI, placing him in a Guidelines range of 188 to 235 months. To
-28-
calculate the career offender total offense level, the PSR applied
the statutory maximum of forty years (under the § 861(b)
enhancement for Count IV) consistent with U.S.S.G. § 4B1.1(b)(2).
See U.S.S.G. § 4B1.1(b)(2)(offense statutory maximum of 25 years or
more yields an offense level of 34). By adopting the PSR's
calculations in the judgment, the judge had agreed to apply the 21
U.S.C. § 841(a)(1)'s maximum penalty: forty years imprisonment
under § 861(b) and six years of supervised release for knowingly
using a minor.
Obviously confused by the inconsistency between the
sentence imposed and the judge's in-court statements, Ramírez moved
to correct the sentence. He argued that the judge mistakenly
determined the Guidelines range was 188 to 235 months when he
imposed the 156-month sentence. Ramírez averred that without the
§ 861(b) enhancement, the career offender total offense level
should have been 29, placing him in a Guidelines range of 151 to
188.14 Thus, in his view, the statutory maximum under Count IV
should have been twenty (not forty) years and the term of
supervised release should have been three (not six) years. By
14
If the enhanced statutory maximum of 40 years under § 861(b)
did not apply, Ramírez's career offender total offense level would
be 32 under U.S.S.G. § 4B1.1(b)(3), as the statutory maximum for
his offense would be 20 years under 21 U.S.C. § 841(b)(1)(B) and
(C). The career offender total offense level of 32, after a
reduction of 3 levels for acceptance of responsibility, would
result in a career offender total offense level of 29 which,
combined with his career offender criminal history category of VI,
would yield an advisory Guidelines range of 151 to 188 months.
-29-
reducing the term of supervised release from six to three years in
the corrected judgment, the judge seemed to agree with Ramírez on
the basis for the change: that the § 861 enhancement did not
apply. But, a close look at the amended judgment reveals that the
Guidelines range was left unchanged, as was the career offender
total offense level which remained at 31. That offense level,
however, could stay at 31 only by subjecting Ramírez to twice the
maximum punishment authorized under Count IV for his violations of
§ 841(a)(1) (Counts I and II). See 21 U.S.C. §§ 841(b)(1)(B) &
(C), 861(b).15
The amended judgment does not clarify whether the judge
applied the enhancement. The record fares no better: the judge's
statements at the change-of-plea and sentencing hearings suggest no
enhancement would be applied; the judgment seems to apply the
enhancement; and the amended judgment may or may not have applied
it. And, despite being well-aware of the objection to any
enhancement for use of a minor, the judge never decided whether §
861(a)(1) requires proof of knowledge that the person being used is
a minor.16 Ramírez's argument that the judge erred in calculating
15
Under U.S.S.G. § 5D1.2(c), the term of supervised release is
six years on Count IV (when doubling the three-year supervised
release term from Counts I and II). See U.S.S.G. § 5D1.2(c).
16
Ramírez objected to the enhanced penalty for use of a minor
under § 861 on at least three occasions: in his objections to the
PSR's use of the enhanced penalty prior to sentencing, in his
sentencing memorandum, and in his motion to correct the judgment
and for resentencing.
-30-
the Guidelines range, however, rests upon his assertion that the
government must prove (or the defendant must admit) to knowing the
person was a minor to trigger the § 861 sentencing enhancement. If
the judge's conclusion was that proof of knowledge was required and
he applied the § 861 enhancement, there is no record of his finding
that Ramírez had the requisite knowledge.
Given the ambiguity in the record and the absence of any
ruling by the judge about whether the § 861 enhancement applied,
remand is appropriate to allow the district court to clarify its
decision and make any adjustments it sees fit. United States v.
Levy, 897 F.2d 596, 599 (1st Cir. 1990) (noting that if the record
is ambiguous, a court of appeals may remand for clarification
purposes); see also United States v. Aker,
181 F.3d 167, 174 (1st
Cir. 1999) (vacating the sentence and remanding the case for
further clarification about its ruling on the defendant's request
for possible departure on grounds of significantly diminished
mental capacity). We express no opinion on the outcome at this
stage. See United States v. Quinones,
26 F.3d 213, 220 (1st Cir.
1994). In light of our decision to vacate and remand on these
grounds, we need not reach Ramírez's final argument that the judge
failed to adequately explain his sentence.
CONCLUSION
For the foregoing reasons, we vacate the sentence and
remand for further consideration consistent with this opinion.
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