USA v. Roy Schmidt, III

Filing

REVISED PUBLISHED OPINION FILED. [6644757-2] [09-31138]

USA v. Roy Schmidt, III se: 09-31138 Ca

Document: 00511271095 Page: 1 Date Filed: 10/22/2010

Doc. 0

REVISED October 22, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 09-31138 October 7, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. R O Y L. SCHMIDT, III D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana

B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. W I E N E R , Circuit Judge: D efen d a n t-A p p e lla n t Roy Schmidt III appeals his designation as an Armed C a r e e r Criminal ("ACC") under the Armed Career Criminal Act1 ("the ACCA"). S c h m id t pleaded guilty to conspiracy to possess a pipe bomb and to being a c o n v ic t e d felon in possession of a pipe bomb. He now challenges the district c o u r t's sentencing determination that a prior conviction for theft of a firearm fr o m a licensed gun dealer, in violation of 18 U.S.C. § 922(u), is a violent felony fo r purposes of the ACCA. We affirm.

1

18 U.S.C. § 924(e).

Dockets.Justia.com

Case: 09-31138 Document: 00511271095 Page: 2 Date Filed: 10/22/2010

No. 09-31138 I . Facts & Proceedings O n and before December 31, 2007, Schmidt agreed with "Individual A" for h im to buy parts and build, and for Schmidt to receive and possess, one u n r e g is t e r e d "pipe bomb." Schmidt provided the funds for Individual A to

p u r c h a s e the bomb components from a Lowes Building Supply store and a Home D e p o t Building Supply store in Jefferson, Louisiana. Both Schmidt and

I n d iv id u a l A provided the explosive powders for at least three pipe bombs. On D e c e m b e r 31, 2007, Schmidt, Individual A, and Individual B constructed three p ip e bombs at Individual A's house. Afterwards, Schmidt took possession of one t h e bombs. S c h m id t was indicted in October 2008 for conspiring to possess an u n r e g is t e r e d pipe bomb,2 conspiring to commit an offense against or to defraud t h e United States,3 and illegal possession of such a bomb.4 In June 2009,

S c h m id t pleaded guilty as charged, without entering into a plea agreement. The n e x t month, after being advised of his rights, Schmidt signed a notarized s t a t e m e n t admitting to having pipe bombed a vehicle on January 1, 2008. S c h m id t 's sentencing hearing was held in November 2009. The

g o v e r n m e n t produced documents supporting Schmidt's state court convictions fo r (1) a December 4, 1993 attempted robbery while armed with a dangerous w e a p o n in violation of La. Rev. Stat. §§ 14:27 and 64; (2) a July 21, 1993, simple b u r g la r y of an automobile in violation of LA. Rev. Stat. § 14:62; (3) an August 8, 1 9 9 6 , possession of stolen things valued at over $500.00 in violation of La. Rev. S t a t. § 14:69; (4) an August 7, 1996, simple arson of property with a value over

2

26 U.S.C. § 5861(d) (2010). 18 U.S.C. § 371 (2010). Id. § 922(g)(1) (2010).

3

4

2

Case: 09-31138 Document: 00511271095 Page: 3 Date Filed: 10/22/2010

No. 09-31138 $ 5 0 0 in violation of La. Rev. Stat. § 14:52; and (5) an August 7, 1996, simple b u r g la r y of an inhabited dwelling in violation of La. Rev. Stat. § 14:62:2. T h e presentence report ("PSR") concluded that Schmidt's prior convictions fo r attempted armed robbery, arson, and simple burglary of an inhabited d w e llin g were crimes of violence and assigned Schmidt a base offense level of 24 p u r s u a n t to U.S.S.G. § 2K2.1. Schmidt was assigned additional enhancements b a s e d on use of a pipe bomb, use of a firearm in connection with another felony o ffe n s e , leadership role in the offense, and involving a minor in the offense. Schmidt received a downward adjustment for his acceptance of responsibility. The PSR determined that Schmidt qualified as an ACC on the basis of the c o n v ic t io n s listed above as well as another conviction for stealing firearms from a federally licensed dealer. The PSR set Schmidt's Guidelines sentencing range a t 188-235 months in prison on the firearms charge and 60 months in prison on t h e conspiracy charge. S c h m id t objected to the PSR, contending that he was not an ACC because (1 ) theft from a firearms dealer is not a crime of violence, and (2) he had not in v o lv e d a minor in the offense. The district court accepted Scmidt's objection t o the latter, but rejected his assertion that theft of a firearm from a firearms d e a le r is not a crime of violence. These rulings reduced Schmidt's guidelines s e n te n c in g range to 151-188 months in prison. I n November 2009, the district court sentenced Schmidt to five years im p r is o n m e n t on count one (conspiracy to possess an unregistered destructive d e v ic e ), pursuant to 26 U.S.C. § 5861(d), and to a concurrent term of fifteen y e a r s as an ACC on count two (convicted felon in possession of a firearm), p u r s u a n t to 18 U.S.C. § 924(e). Schmidt timely filed a notice of appeal.

I I . Analysis A . Standard of Review 3

Case: 09-31138 Document: 00511271095 Page: 4 Date Filed: 10/22/2010

No. 09-31138 A sentencing court's determination whether theft of firearms from a lic e n s e d dealer qualifies as a violent felony is a statutory interpretation that we r e v ie w de novo.5 We also review a sentencing court's interpretation of the

G u id e lin e s de novo.6 The Supreme Court held, in a similar case, that when a c o u r t determines whether a conviction qualifies as a violent felony under the A C C A , it engages in statutory interpretation and not in judicial fact finding.7 T h e r e fo r e , there is no Sixth Amendment issue under Apprendi v. New Jersey.8

B . The ACCA S c h m id t raises only one issue in his appeal: whether his 18 U.S.C. § 922(u) c o n v ic t io n for theft of firearms from a licensed dealer qualifies as a violent felony fo r ACCA purposes. One of the ways a defendant is determined to be an ACC w h e n his current conviction constitutes a violation of the pipe-bomb statute, § 9 2 2 (g ) , and he has at least three prior convictions for violent felonies.9 For

A C C A purposes, a violent felony is one that "(i) has as an element the use, a t t e m p t e d use, or threatened use of physical force against the person of another; o r (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise i n v o lv e s conduct that presents a serious potential risk of physical injury to a n o t h e r ."1 0 Thus, an offense will qualify as violent if: (1) "physical force against t h e person of another" is an element of the offense; (2) the crime is burglary, a r s o n or extortion, being the offenses enumerated in the ACCA; or (3) the crime

5

James v. United States, 550 U.S. 192, 214 (2007). United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004). Id. 530 U.S. 466 (2000). 18 U.S.C. § 924(e)(1) (2010). Id. § 924(e)(2)(B)(ii) (2010).

6

7

8

9

10

4

Case: 09-31138 Document: 00511271095 Page: 5 Date Filed: 10/22/2010

No. 09-31138 c o m e s under the ACCA's residual clause, by constituting a "potential risk of p h y s ic a l injury to another." 11

C . Physical Force as an Element of the Offense S c h m id t insists that theft of firearms from a federally licensed dealer does n o t include, as a required element, the use, attempted use or threatened use of p h y s ic a l force against a person. The statute specifies that: I t shall be unlawful for a person to steal or unlawfully take or carry a w a y from the person or the premises of a person who is licensed to e n g a g e d in the business of importing, manufacturing, or dealing in fir e a r m s , any firearm in the licensee's business inventory that has b e e n shipped or transported in interstate or foreign commerce.1 2 S c h m id t contends that when determining whether an offense qualifies as a v io le n t felony, the court is only allowed to look at the terms of the statute and m a y not consider the underlying facts of the case. Schmidt is correct that a court may only consider the elements of the c o n v ic t io n statute and not the specific conduct of the offender. The Supreme C o u r t has mandated a categorical approach for deciding whether a prior c o n v ic t io n is a violent felony for the purposes of the ACCA.1 3 This is because " t h e language of § 924(e) [the ACCA] generally supports the inference that C o n g r e s s intended the sentencing court to look only to the fact that the d e fe n d a n t had been convicted of crimes falling within certain categories, and not t o the facts underlying the prior convictions."1 4 This approach is necessary b e c a u s e , otherwise, a particular crime might be considered a violent offense and

11

Id. § 924(e)(2)(B) (2010). Id. § 922(u) (2010). Taylor v. United States, 495 U.S. 575, 600 (1990). Id.

12

13

14

5

Case: 09-31138 Document: 00511271095 Page: 6 Date Filed: 10/22/2010

No. 09-31138 c o u n t towards enhancement on some occasions and not on others, depending on t h e discrete facts. In addition, anything but the categorical approach would r e q u ir e sentencing courts to engage in elaborate fact finding about the d e fe n d a n t 's prior offenses. This is why the sentencing court must "consider not h o w the defendant committed the crime, but how the crime is generally c o m m it t e d ." 15 S c h m id t was not convicted under the "person" prong of § 922(u) but rather u n d e r its "premises" prong, because (1) the indictment charges that he "did steal a n d unlawfully take and carry away from the premises and inventory of A-1 Gun R e p a ir , a licensed dealer" and (2) his factual basis states that the defendants b r o k e the front window of the shop, entered it, and stole 11 handguns. Stealing fr o m such a premises does not necessarily involve the use, attempted use, or t h r e a te n e d use of physical force against a person because it can be completed w it h o u t anyone else being present. Therefore, this offense is not a violent o ffe n s e under the first prong of the ACCA.

D . The Enumerated Offenses under the ACCA T h e government asserts that the language of § 922(u) matches the generic c r im e of burglary and therefore qualifies as a violent offense under the ACCA. This court defines the key elements of generic burglary as the "unlawful or u n p r iv ile g e d entry into, or remaining in" the premises "with intent to commit a c r im e ." 1 6

15

United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010).

United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007). The Supreme Court defined burglary for the purposes of the ACCA similarly: [A] person has been convicted of burglary for the purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Taylor, 495 U.S. at 599.

16

6

Case: 09-31138 Document: 00511271095 Page: 7 Date Filed: 10/22/2010

No. 09-31138 T o determine whether an offense falls under the ACCA's enumerated fe lo n y of burglary, we employ a "common sense approach." 1 7 This involves the a p p lic a t io n of a three part test to determine whether a particular provision falls w it h in the enumerated offenses. First, we determine the crime's generic,

c o n t e m p o r a r y , ordinary meaning. Second, we distill the definitions to identify t h e crime's basic elements. Third, we compare the generic definition to the s t a tu te governing the prior conviction.1 8 If the statute follows the generic

d e fin it io n , has only minor variations, or is narrower than the generic definition, t h e sentence may be enhanced.19 S c h m id t raises the strong point that a § 922(u) firearm theft does not r e q u i r e that the entry into or presence inside the premises be unlawful or u n p r iv ile g e d . Although Schmidt did actually break into the premises, for the p u r p o s e s of identifying whether a violation of § 922(u) is a burglary enumerated in the ACCA, only the elements of the offense, and not the specific conduct of the d e fe n d a n t , should be considered. And Schmidt is correct that, under the terms o f § 922(u), unlawful entry or presence is not required. In contrast, the generic d e fin it io n of burglary always requires an element of unlawful or unprivileged e n tr y or presence. Although theft of firearms from a licensed dealer does have m u c h in common with burglary, such theft ultimately lacks the element of u n la w fu l or unprivileged entry that would make it identical to burglary. Therefore, § 922(u) does not qualify as a violent felony under the enumeratedc r im e s prong of the ACCA.

E . The Residual Clause of the ACCA

17

United States v. Santiesteban-Hernandez, 469 F.3d 376, 378-79 (5th Cir. 2006). Id. at 379. Id.

18

19

7

Case: 09-31138 Document: 00511271095 Page: 8 Date Filed: 10/22/2010

No. 09-31138 T h e residual clause of the ACCA defines a violent felony as one that " in v o lv e s conduct that presents a serious potential risk of physical injury to a n o t h e r ."2 0 The apparent purpose of the residual clause is to include those o ffe n s e s that indicate the offender is a violent person who is likely to harm o t h e r s . For example, in Begay v. United States, the Supreme Court held that r e c id iv is t drunk driving does not qualify as a violent crime under the ACCA's residual-clause because the offense does not involve "purposeful, violent, and a g g r e s s iv e " conduct that presents a serious potential risk of physical injury to a n o t h e r .2 1 In contrast, noted the Supreme Court, a person who commits a v io le n t felony is the kind of person who shows "an increased likelihood that [he] m ig h t deliberately point [a] gun and pull the trigger," the sort of behavior we a s s o c ia t e with armed career criminals.2 2 A g a in , the proper inquiry is the categorical approach, as set forth in T a y lo r .2 3 In a later case, the Supreme Court summarized this approach: "The p r o p e r inquiry is whether the conduct encompassed by the elements of the o f f e n s e , in the ordinary case, presents a serious potential risk of injury to a n o t h e r ."2 4 When the statute under consideration presents disjunctive

a lt e r n a t iv e s , the court may consider certain other documents to determine which a lt e r n a t iv e was applied.2 5 In addition, the Guidelines approve of a court's

d e t e r m in a t io n that an offense is a crime of violence when "the conduct was set fo r t h (i.e. expressly charged) in the count of which the defendant was convicted

20

18 U.S.C. § 924(e)(2)(B)(ii) (2002). Begay v. United States, 553 U.S. 137, 144-45 (2008). Id. at 147. 495 U.S. 575. James v. United States, 550 U.S. 192, 208 (2007). Hughes, 602 F.3d at 674.

21

22

23

24

25

8

Case: 09-31138 Document: 00511271095 Page: 9 Date Filed: 10/22/2010

No. 09-31138 in v o lv e d use of explosives. . .or, by its nature, presented a serious potential risk o f physical injury to another."2 6 Review of the record is "generally limited to the c h a r g in g document, written plea agreement, transcript of the plea colloquy, and a n y explicit factual findings by the trial judge to which the defendant a s s e n t e d ." 2 7 I n the instant case, the factual basis of the plea to the indictment stated: O n January 9, 1996, the A-1 Gun Repair Shop on West Esplanade A v e n u e in Metairie, Louisiana was burglarized. The front window w a s broken, and eleven (11) handguns were stolen. The owner of t h e shop would testify to the burglary and the eleven guns stolen. T h i s information allowed the sentencing court to identify Schmidt's offense as s t e a lin g guns from the premises of a licensed firearms dealer. Schmidt contends t h a t the judge erred by: (1) finding that stealing from the premises of a federally lic e n c e d firearms dealer creates a serious potential risk of physical harm to a n o t h e r ; and (2) relying on Schmidt's specific conduct to decide whether the A C C A 's residual clause was satisfied. Schmidt notes that shoplifting is one of the crimes included in stealing fr o m the premises of a licensed dealer, and that shoplifting poses no serious risk o f physical injury to another person. Schmidt cites a number of cases to support t h is proposition.2 8 He relies on United States v. Mohr2 9 to argue that, when d e c id in g whether the conviction is for a crime of violence, courts must consider t h e least culpable conduct that violates the applicable elements of a statute.

26

U.S.S.G. § 4B1.2, cmt. 1 (2009). United States v. Gonzalez-Chavez, 432 F.3d 334, 337-38 (5th Cir. 2005).

27

See, e.g., United States v. Jackson, 113 F.3d 249, 252 (D.C. Cir. 1997) (government does not contend shoplifting is a violent felony); United States v. Parson, 955 F.2d 858, 865 n.8 (3d Cir. 1992).
29

28

554 F.3d 604, 607 (5th Cir. 2009), cert. denied, 130 S. Ct. 56 (2009).

9

Case: 09-31138 Document: 00511271095 Page: 10 Date Filed: 10/22/2010

No. 09-31138 T h e r e fo r e , asserts Schmidt, we must analyze theft of a firearm under § 922(u) a s a shoplifting statute, as it is the least culpable conduct that violates the e le m e n t s of the statute. Mohr is inapposite because Schmidt's indictment is not s ile n t as to the elements of the offense charged. Therefore, we need only

c o n s id e r whether stealing firearms from the premises of a licensed dealer p r e s e n t s a serious potential risk of inquiry to another.3 0 T h e determinative question revolves around whether the elements of theft o f a firearm from a federally licenced dealer include a serious threat of harm to a n o t h e r and whether this offense is similar in kind to the enumerated offenses lis t e d in the ACCA. In Begay, the Supreme Court set out a two-prong test for d e t e r m in in g whether an offense qualifies as a violent felony under the residual c la u s e of the ACCA.3 1 The first prong asks whether the offense inherently " p r e s e n t [s ] a serious potential risk of physical injury to another."32 We have e m p h a s iz e d that such a determination should be made through a categorical a p p r o a c h , not on the basis of the circumstances of a particular case.33 A d d i t io n a lly , Begay does not suggest that we undertake a comparative risk a n a ly s is ,3 4 but rather an inquiry to assess whether the offense must involve " p u r p o s e fu l, violent, and aggressive conduct." 35 S e c t io n 922(u) qualifies as a purposeful, violent, and aggressive offense u n d e r the first prong of the Begay test because at least one of the elements of the
See James, 550 U.S. at 208 ("[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.").
31 30

553 U.S. at 137. Id. at 142. United States v. Charles, 301 F.3d 309, 313-14 (5th Cir. 2002) (en banc). See Begay, 553 U.S. at 142-43. Chambers v. United States, 129 S. Ct. 687, 692 (2009) (citation omitted).

32

33

34

35

10

Case: 09-31138 Document: 00511271095 Page: 11 Date Filed: 10/22/2010

No. 09-31138 o ffe n s e includes the presence of a serious potential risk of physical injury to a n o t h e r . The key elements of the offense are: (1) stealing or unlawfully taking a w a y or carrying (2) from the person or premises of a licensed firearms dealer (3 ) any firearm in the licensee's business inventory.3 6 Although the first

e le m e n t , by itself, presents no serious potential risk of physical injury because it can be accomplished without confrontation, the second and third elements do p r e s e n t serious potential risks of physical harm to others. The second element r e q u ir e s that, to constitute an offense, the firearms be stolen from an in d iv id u a l-- t h e licensee--who, by definition, is likely to posses or have easy a c c e s s to a firearm himself. An important factor used to determine if an offense is a crime of violence is whether the action is inherently dangerous, and that fact is well known and well documented.3 7 Persons who steal firearms from a dealer h a v e to know that doing so is inherently dangerous because they are stealing fr o m a person who probably either possesses or has easy access to firearms with w h ic h to defend themselves and their property. Likewise, the third element u n d o u b t e d ly presents a serious potential risk of physical injury because stolen fir e a r m s are more likely to be used in connection with illegal and inherently h a r m fu l activities than are lawfully possessed guns: Persons who lawfully obtain fir e a r m s almost always do so for legitimate purposes, such as hunting or target s h o o tin g . The second prong of the Begay test asks whether an offense is "roughly s im ila r , in kind as well as in degree of risk posed, to the [statutory] examples" o f burglary, arson, extortion and offenses that involve use of explosives.3 8 The

36

18 U.S.C. § 922(u) (2002).

Cf. United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5th Cir. 2000) (holding that Driving While Intoxicated is a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(B)).
38

37

Begay, 553 U.S. at 143.

11

Case: 09-31138 Document: 00511271095 Page: 12 Date Filed: 10/22/2010

No. 09-31138 p u r p o s e of this prong is to narrow the scope of the residual clause of the ACCA b y distinguishing this crime from the set of all crimes that present a serious p o t e n t ia l risk of physical injury.3 9 Obviously, from among the crimes listed in t h e ACCA, burglary most closely resembles theft of firearms from a licensed d e a le r . Even though, as discussed above, § 922(u) firearm theft is not

s u ffic ie n t ly close to burglary to qualify as enumerated under the ACCA, it is s u ffic ie n t ly similar to burglary to be deemed similar in kind and risk. In the in s t a n t case, the offense constituted a burglary, but the perpetrators were c h a r g e d under a different statute because of the nature of the items stolen. It is likely that many of the crimes charged under § 922(u) could also be charged u n d e r a burglary statute. But, as noted, the theft of firearms is more dangerous t h a n simple shoplifting or petty theft because it involves victims who are often a r m e d themselves and loot that is likely to be used for violent purposes. We are s a t is fie d that theft of a firearm from a licensed federal dealer is sufficiently s im ila r to burglary to qualify as a violent offense under the residual-clause prong o f the ACCA.

I I I . Conclusion W h e t h e r a § 922(u) conviction qualifies as a crime of violence for ACCA p u r p o s e s is a novel issue. The ACCA has three disjunctive prongs, under any o n e of which an offense may be deemed a crime of violence. The first is when the o ffe n s e has an element that encompasses the use of force; but § 922(u) contains n o such element. The second is when the offense is encompassed in one of the A C C A 's enumerated felonies. Here, the closest enumerated felony is burglary, b u t because § 922(u) lacks the element of unlawful or unprivileged entry, § 9 2 2 ( u ) cannot be treated as burglary per se. The third prong is the residual-

39

Id. at 142.

12

Case: 09-31138 Document: 00511271095 Page: 13 Date Filed: 10/22/2010

No. 09-31138 c la u s e prong, under which we must determine whether the offense constitutes a potential risk of serious harm to others and whether it is similar in risk and k in d to one of the enumerated offenses. We conclude that, under the third p r o n g , § 922(u) qualifies as a violent offense. Accordingly, Schmidt's sentence is AFFIRMED.

13