On November 12, 1992, Yolanda was arrested for first degree retail fraud. Following a plea of nolo contendere, she was fined and sentenced to two years probation on January 27, 1993. In August of 1996, an indictment charged Yolanda with the cocaine conspiracy at issue here. The indictment alleged that the conspiracy began in the Spring of 1994, which falls within the two year probationary period. In computing her criminal history category, the district court added two points in accordance with U.S.S.G. § 4A1.1(d) because it found that Yolanda conspired to distribute cocaine during her probation.5 (J.A. 335).

Yolanda asserts that the cocaine she supplied to the Merriweather Group in 1994 was too remote in time to be part of the offense of conviction. The evidence adduced at trial reveals that the Wilsons' cocaine trafficking during 1994, 1995, and 1996 constituted a singular and on-going conspiracy. The indictment included the 1994 transactions with the Merriweather Group as part of the instant offense. Count I reads: "From in or about the spring of 1994, and continuing thereafter through and including February of 1996, ... YOLANDA "LONNIE" WILSON, and MARLON WILSON did knowingly, willfully and unlawfully combine, conspire, confederate and agree together and with Leon Merriweather, Derrick Farr, Kevin Freeman and other persons, both known and unknown to the Grand Jury to distribute and possess with intent to distribute ... cocaine." (J.A. 14). Although Yolanda's transactions with the Merriweather Group ceased for a period of time, the drug trafficking continued with other individuals, such as Michael Harris. Therefore, the 1994 conduct is not uncharged, or part of a separate offense, but is part of one ongoing conspiracy. As our discussion of Marlon Wilson's fatal variance claim, infra, explains, there is no question that the 1994 cocaine sales were part of the same charged conspiratorial conduct as the later sales. Because Yolanda participated in the cocaine conspiracy while she was on probation for a prior felony, the district court did not err in computing her criminal history category. The district court is AFFIRMED on this issue, and therefore is AFFIRMED as to all claims of error raised by Yolanda Wilson.

For the first time on appeal, Marlon claims that the district court allowed a fatal variance between the conspiracy set forth in the indictment and the proof of conspiracy at trial. Because he did not raise this claim at trial, he has forfeited it. A claim of error that has been forfeited is reviewed only for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). Plain error occurs when the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 732, 113 S. Ct. 1770. (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)); United States v. Thomas, 11 F.3d 620, 629-30 (6th Cir.1993).

In order to obtain reversal due to a variance between the indictment and the evidence, a two-prong test must be satisfied. United States v. Kelley, 849 F.2d 999 (6th Cir.1988), cert. denied, 488 U.S. 982, 109 S. Ct. 532, 102 L. Ed. 2d 564 (1988). The defendant must show: (1) a variance and (2) that the variance affected some substantial right of the defendant. Id. at 1002. A "resulting variance between the indictment and the proof is reversible error if the appellant can show that he was prejudiced thereby." United States v. Warner, 690 F.2d 545, 548 (6th Cir.1982) (citing Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). The mere fact that a conspiracy can be subdivided, however, does not mean that multiple conspiracies existed. United States v. Rugiero, 20 F.3d 1387, 1392 (6th Cir.1994). As long as the different sub-groups are committing acts in furtherance of one overall plan, the jury can still find a single, continuing conspiracy. United States v. Warner, 690 F.2d 545, 550, n. 8 (1982)(citing United States v. Boyd, 595 F.2d 120, 123 (3d Cir.1978)).

Marlon claims that the indictment alleged one conspiracy, while the evidence at trial supported a finding of multiple conspiracies. Marlon relies primarily upon a statement made by the Assistant U.S. Attorney, in closing argument, that Michael Harris was unconnected to the Merriweather Group. "Totally different. He's separate from them ... This is a totally separate drug dealer not connected with them." (J.A. 322-23). Marlon asserts that his involvement with the Merriweather Group was limited, and that his primary dealings were with Michael Harris. He thus concludes that because Michael Harris was, in the AUSA's words, totally separate from the Merriweather Group, the government proved two conspiracies instead of one.

Marlon's contention is unpersuasive.6 We are satisfied that the record evidence supported a finding of a single conspiracy. Leon Merriweather testified that he became acquainted with Marlon in 1994 when Marlon met with the Merriweather Group in order to assure them that the two kilograms of cocaine that they ordered from Lonnie for $50,000 would be delivered, albeit late. (J.A. 196-97). Thus Marlon was involved in Merriweather Group transactions in 1994 and again during 1995-96, following the one year "break." (J.A. 206). This one year break does not result in two separate conspiracies. The indictment charged the Wilsons with drug trafficking with the Merriweather Group, "and other persons, both known and unknown to the Grand Jury." (J.A. 14). The Wilsons continued distributing drugs to others during the "Merriweather break," including Michael Harris, and Shontae Washington, and resumed their transactions with the Merriweather Group after the hiatus. As this Court noted in United States v. Warner, 690 F.2d 545 (6th Cir.1982), the fact that individuals may intermittently involve themselves in a conspiracy does not preclude a finding that the conspiracy was singular in nature.

The agreement may continue for a long period of time and may include the performance of many transactions. New parties may join the agreement at any time while others may terminate their relationship. The parties are not always identical, but this does not mean that there are separate conspiracies.

Id.,(quoting United States v. Varelli, 407 F.2d 735, 742 (7th Cir.1969)). Accord United States v. Boyd, 595 F.2d 120, 123 (3d Cir.1978).

Marlon cannot demonstrate a variance, so we need not reach the issue of prejudice. The district court committed no error and is AFFIRMED on this issue.

B. District Court's Determination of the Amount of Cocaine Attributable to Marlon

This court reviews the district court's factual findings that underlie the application of the sentencing guidelines for clear error. United States v. Mahaffey, 53 F.3d 128, 131 (6th Cir.1995)(citing United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991)). The district court's determination of the amount of drugs for which a defendant is responsible is a factual finding which must be accepted unless it is clearly erroneous. United States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir.1990), cert. denied 498 U.S. 906, 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990).

Marlon claims the district court clearly erred in attributing 16.5 kilograms of cocaine to him, placing him at a base offense level of 34. U.S.S.G. § 2D1.1(c)(3). Instead, Marlon argues he should have been held responsible for a range of at least 5 kilograms, but less than 15 kilograms, placing his base offense level at 32. U.S.S.G. § 2D1.1(c)(3). In support of his argument, Marlon claims that the district court attributed to him large quantities of cocaine for which Yolanda was primarily responsible. Marlon recognizes that "a participant is responsible for other conspirators' conduct only if that conduct was reasonably foreseeable to him and in furtherance of the execution of the jointly undertaken criminal activity." United States v. Jenkins, 4 F.3d 1338, 1346 (6th Cir.1993). He argues, however, that he should not be held responsible for "the periodic drug transactions in late 1995 involving Yolanda Wilson and Leon Merriweather ..." (Final Brief of Appellant Marlon Wilson at 18).

Marlon's argument must fail. As explained by this Court in United States v. Jenkins, 4 F.3d 1338 (6th Cir.1993), a district court's determination of the amount of cocaine attributable to an individual involved in a conspiracy can be characterized as two-fold. First, the court must determine the scope of the criminal activity the particular defendant agreed to jointly undertake. Id. at 1347, quoting U.S.S.G. § 1B1.3, application note 2. Once that determination is made, the court must then consider what amount of cocaine was reasonably foreseeable, within the scope of the defendant's joint undertaking. This dual inquiry is based upon U.S.S.G. § 1B1.3. As this Court stated in Jenkins: "A co-conspirator is not necessarily responsible for the total amount of cocaine involved in the conspiracy for purposes of establishing his base offense level. Rather, a participant is responsible for other conspirators' conduct only if the conduct was reasonably foreseeable to him and in furtherance of the jointly undertaken criminal activity." Id. at 1346; see also U.S.S.G. § 1B1.3, application note 2.

With this standard in mind, a review of the district court's colloquy at the sentencing hearing establishes that no error was committed. The district court made specific references to testimony in the record relating to the scope of Marlon's involvement in the drug trafficking conspiracy. The district court observed that the testimony regarding Marlon's involvement in selling drugs to Michael Harris and to Shontae Washington in quantities of 18 to 36 ounces at a time was unrefuted. The district court also noted that there were no internal inconsistencies concerning the testimony. The court relied upon Leon Merriweather's testimony that Marlon knew what was going on during the time frame involved in the indictment. Trial testimony established that Marlon was involved in the conspiracy as early as 1994 when he met with Merriweather in an attempt to resolve the misunderstanding concerning the $50,000 payment for the two kilograms which were not delivered on time. (J.A. 196-97). Furthermore, to the extent that Marlon argues he should not be held accountable for "transactions between Yolanda Wilson and Leon Merriweather in late 1995," this argument fails because the testimony reveals not only that Marlon participated in weighing cocaine for Merriweather, but also that he sold drugs directly to Merriweather in late 1995. (J.A. 199). Therefore, the scope of Marlon's involvement in the conspiracy spanned the length of the charged conspiracy, as the district court found.

We do not agree with Marlon's argument that he should be held accountable for only those transactions in which he played some small role. The scope of his responsibility is determined by the reasonable foreseeability of the amount of cocaine involved in the conspiracy. As with the amount of cocaine attributable to Yolanda, the district court did not clearly err in attributing 16.5 kilograms of cocaine to Marlon. The district court was conservative in its calculation, recognizing that, "there was at least 15 kilos, and most probably more." (J.A. 350). Marlon was cognizant of the volume of cocaine involved in the conspiracy, and it was not clearly erroneous to attribute more than 15 kilograms of cocaine to him for sentencing purposes in this matter. The district court is AFFIRMED on this issue.

C. The District Court's Application of the Career Offender Guideline Based on Marlon's Burglary Conviction

Lastly, Marlon argues that the district court erred in qualifying him as a career offender for sentencing purposes. The district court's determination based on the guidelines is a question of law subject to de novo review. United States v. Arnold, 58 F.3d 1117, 1120 (6th Cir.1995), cert. denied, 519 U.S. 1019, 117 S. Ct. 535, 136 L. Ed. 2d 420 (1996); United States v. Bondurant, 39 F.3d 665, 667 (6th Cir.1994).

A defendant qualifies as a career offender for sentencing purposes if:

(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1.

The district court treated Marlon as a career offender because (1) he was over eighteen at the time he committed the instant offense; (2) the instant offense involved a controlled substance; and (3) he had a prior armed robbery conviction and a prior Illinois burglary conviction, which the district court deemed to be crimes of violence. As a result, Marlon's base offense level was increased from 34 to 37, and his criminal history category was adjusted upward from III to VI. (J.A. 366). Marlon now contends that his 1980 conviction for burglarizing a liquor store in Illinois should not have been considered a crime of violence.

The Courts of Appeals are split over whether burglary of a building that is not a dwelling is a "crime of violence" under the Sentencing Guidelines.7 We conclude that such a burglary is not a crime of violence per se as that term is defined in U.S.S.G. § 4B1.2(1)(ii), but that burglary of a non-dwelling may, under certain circumstances, be considered a crime of violence under that section's "otherwise clause." We adopt this approach based on the specific language of the Guideline because the history surrounding its adoption renders the Commission's intent difficult to ascertain. Our plain meaning approach respects the Commission's definition of "crime of violence" which has remained unchanged since 1989, and leaves open the possibility that violent burglaries of non-dwellings may constitute crimes of violence.

The term "crime of violence" is defined in the Sentencing Guidelines as,

any offense under federal or state law punishable by imprisonment for a term exceeding one year that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary 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(1)(emphasis added).

The application notes following this section clarify the definition. As explained in application note 2,

"Crime of violence" includes murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its very nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of inquiry.

U.S.S.G. § 4B1.2 (application note 2).

Based on section 4B1.2 and its commentary, the Sentencing Commission envisioned three ways in which a prior conviction could be considered a "crime of violence": "(1) the prior conviction is for a crime that is among those specifically enumerated ...; (2) the prior conviction is for a crime that, although not specifically enumerated, has as an element of the offense the use, attempted use, or threatened use of physical force; or (3) the prior conviction is for a crime that, although neither specifically enumerated nor involving physical force as an element of the offense, involves conduct posing a serious potential risk of physical injury to another." United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995)(quoting United States v. John, 936 F.2d 764, 767 (3d Cir.1991)).

Marlon was convicted under 720 ILCS 5/19-1 which provides, "[a] person commits burglary when without authority he knowingly enters or without authority remains within a building, house trailer, water craft, aircraft, motor vehicle ..., railroad car, or any part thereof, with intent to commit therein a felony or theft.... This offense shall not include ... the offense of residential burglary." 720 ILCS 5/19-1(a). The statute does not contain as an element the use, attempted use, or threatened use of physical force against another. Therefore it does not fit the definition for a crime of violence under part (i) of U.S.S.G. § 4B1.2(1), and the Court must focus its attention upon part (ii) of the definition. Accordingly, we must determine whether Defendant's burglary conviction was a crime of violence because it is covered by the enumerated felony "burglary of a dwelling," or alternatively because it "otherwise involve[d] conduct that presents a serious risk of physical injury to another."8

A brief review of the history surrounding the adoption of the "crime of violence" definition places this issue in context. When the Sentencing Commission promulgated the career offender provision and definition, it originally sought to define "crime of violence" by reference to the broad categories set forth in 18 U.S.C. § 16. Section 16 reads, "The term 'crime of violence' means (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. However, in 1989, the Commission abandoned this broad approach and replaced this definition with another, patterned after the definition of "violent felony" in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).9 See U.S.S.G. Manual, Appendix C, Amendment 268, effective November 1, 1989 (1997).

The Armed Career Criminal Act (ACCA) provides for sentence enhancements for persons convicted under section 922(g) who have three prior convictions for specified types of offenses, including burglary. While Congress did not specifically define burglary in the statute, the United States Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), held that Congress intended the "generic" term of burglary, which includes unlawful entry into any building or structure with the intent to commit a crime. Id. at 599, 110 S. Ct. 2143.

Although the Sentencing Commission derived its definition of "crime of violence" from the ACCA, the Commission chose to omit burglary from the definition, with the single exception of "burglary of a dwelling." U.S.S.G. § 4B1.2(1)(ii) (Nov.1989). The Commission has retained this wording since. See U.S.S.G. § 4B1.2(1)(ii) (Nov.1998). Therefore, the definition of a crime of violence in the career offender section of the Sentencing Guidelines is similar to, but contains an important distinction from, the definition of a violent felony under the ACCA. The Commission's retention of the wording "burglary of a dwelling" indicates its reluctance to adopt the ACCA-Taylor broad definition of burglary.

Yet, the Commission's intent is far from clear. The Sentencing Commission has considered and failed to adopt various amendments to section 4B1.2 over the years which would address the question of whether "burglary of a dwelling" should be interpreted broadly or narrowly. For example, in December 1992, the Commission considered a proposed amendment to the definition of a crime of violence which would have amended that section "to include all burglaries, and not just burglaries of a dwelling." 57 Fed.Reg. 62832, 62856-57 (proposed Dec. 31, 1992). This proposed change was rejected. Subsequently, in 1993, another proposed amendment sought to add language to application note 2 which would have clarified that, "The term 'crime of violence' includes burglary of a dwelling (including any adjacent outbuilding considered part of the dwelling). It does not include other kinds of burglary." 58 Fed.Reg. 67522, 67533 (proposed December 21, 1993). The Commission also failed to adopt this approach.

The Commission's conflicting history on this point makes it impossible to fairly ascertain its intent. The other Circuits that have considered this issue have had similar difficulty. As the Eight Circuit noted in United States v. Hascall, 76 F.3d 902 (8th Cir.1996), "[w]e fail to see how the Commission's inconsistent path supports a particular view on this issue." Id. at 906. Therefore, we are left to a plain reading of the Guideline, keeping in mind the canon of construction "expressio unius est, exclusio alterius" (the expression of one means the exclusion of all others). See United States v. Spell, 44 F.3d 936, 938-39 (11th Cir.1995) (holding that "by explicitly including the burglary of a dwelling as a crime of violence, the Guidelines intended to exclude from the violent crime category those burglaries which do not involve dwellings and occupied structures.")

A plain reading of section 4B1.2(1)(ii) indicates that only burglaries of dwellings, not all burglaries, should be considered crimes of violence per se. Thus Marlon Wilson's prior commercial burglary conviction, under a statute which specifically excludes residential burglary,10 cannot be included within the specifically enumerated felony "burglary of a dwelling."

Nonetheless, the "otherwise clause" leaves open the possibility that burglaries of structures other than dwellings could fall within the definition of a crime of violence if the crime, "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1)(ii). The plain language of application note 2 supports this interpretation. The commentary reads:

"Crime of violence" includes murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives ... or, by its nature, presented a serious potential risk of physical injury to another. Under this section the conduct of which the defendant was convicted is the focus of inquiry.

U.S.S.G. § 4B1.2 (application note 2)(emphasis added).

A straightforward reading of the application note suggests that other offenses fall within the definition of a crime of violence where the crime, by its nature, creates a serious potential risk of injury to another person. Therefore, where a defendant commits an offense that involves such conduct, that offense could be covered by the otherwise clause without being a felony specifically mentioned by that section or that section's application note. In such cases, it is possible that the burglary of a non-dwelling may be a crime of violence.

In United States v. Arnold, 58 F.3d 1117 (6th Cir.1995), which circumscribed the ability of a sentencing court to consider the facts of a Defendant's prior conviction, we suggested that where a

statute does not clearly establish that the offense involves the 'use, attempted use, or threatened use of physical force,' the court may then look at the charge in the indictment to which the defendant pled guilty or was adjudged guilty to determine if the offense involved a serious potential risk of physical injury to others. In the case of a guilty plea, the district court may also consider the plea agreement relating to the prior offense.

Id. at 1124. As noted above, the statute under which Marlon was convicted does not contain as an element the use, attempted use, or threatened use of physical force. See 720 ILCS 5/19-1. Therefore, the conduct set forth in the indictment upon which Marlon Wilson's 1980 burglary was based can be used in deciding whether the offense should be considered a crime of violence for purposes of the career offender guideline.

The indictment that led to Marlon's prior conviction is not part of the record on appeal. Therefore, on remand, the district court may consider the charge in the burglary indictment to determine whether the offense presented a serious potential risk of physical injury to another. In addition, if the defendant entered a plea in the prior action, it is appropriate for the district court to consider any plea agreement in making its determination. That determination should be made in light of our holding here that the burglary of a non-dwelling is not a crime of violence per se under U.S.S.G. § 4B1.2(1)(ii).11

Accordingly, Marlon Wilson's sentence is VACATED, and the matter is REMANDED for resentencing.12

Based on the discussion above, the district court is AFFIRMED on all issues raised by the Appellants with the exception of classifying Marlon Wilson as a career offender for sentencing purposes. In light of our holding on that issue, Marlon Wilson's sentence is VACATED and this matter is REMANDED for resentencing.