Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-91-072-01-JLQ. Justin L. Quackenbush, District Judge, Presiding.
Before: Eugene A. Wright, Mary M. Schroeder and Melvin Brunetti, Circuit Judges. Opinion by Judge Wright.
A risk is a risk. But a risk of a risk is not enough of a risk. Every predicate attempted burglary conviction under the Armed Career Criminal Act must encompass conduct posing a risk of violent confrontation. It is not enough that most convictions would encompass such conduct.
The district court sentenced Edward Weekley to 65 months imprisonment for being a felon in possession of a firearm. 18 U.S.C. § 922(g). The government argued that because he had three prior violent felony convictions, two for burglary and one for attempted burglary, he should have been sentenced to 15 years as an Armed Career Criminal.
Chief Judge Quackenbush ruled that it was unclear from Washington's attempt statute if the attempted burglary conviction involved conduct that presented a serious potential risk of physical injury to others. United States v. Weekley, 790 F. Supp. 223, 230 (E.D. Wash. 1992). So it was unclear if the Washington attempt conviction was a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA). Id. He applied the rule of lenity and disqualified the conviction. Id. The government appeals.*fn1
The ACCA increases to 15 years the mandatory minimum sentence for a felon in possession conviction if the defendant has three predicate violent felony convictions as defined in § 924(e)(2). The first part of § 924(e)(2)(B)(ii) enumerates specific offenses as violent felonies. The second part (the so-called "otherwise" clause) is a catchall encompassing convictions for offenses that "otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
We have never decided if attempted burglary involves conduct posing a sufficiently serious potential risk of injury. And the circuits are split over how to assess the risk.
The Seventh and Fourth Circuits allow an attempted burglary conviction to operate as a predicate offense if most attempt convictions would meet a threshold level of risk. See United States v. Davis, 16 F.3d 212, 217 (7th Cir. 1994) ("in determining whether an offense falls under the 'otherwise' clause, the benchmark should be the possibility of violent confrontation, not whether one can postulate a nonconfrontational hypothetical scenario") (citing United States v. Custis, 988 F.2d 1355, 1364 (4th Cir.) ("in most cases, attempted breaking and entering" convictions entail capture during actual break-in attempt), cert. granted in irrelevant part, 114 S. Ct. 299 (1993)). This approach focuses on the risk posed generally by the offense labeled attempted burglary.
But the Tenth and Fifth Circuits require every attempt conviction to meet the threshold level of risk. See United States v. Strahl, 958 F.2d 980, 986 (10th Cir. 1992) (Utah allowed convictions for "substantial step" conduct (e.g., possessing burglary tools, casing building, making duplicate key, obtaining floor plans) that did "not necessarily present circumstances which create the high risk of violent confrontation inherent in a completed burglary"); United States v. Martinez, 954 F.2d 1050, 1053-54 (5th Cir. 1992) ("While attempted burglary does indeed present some risk of potential harm," inherent risk insufficient because Texas law requires only taking steps tending to "effect the commission of a burglary") (internal quotation and citation omitted). This approach focuses on the risk posed by the specific conduct necessarily underlying the relevant predicate attempted burglary conviction.
This latter approach is consistent with Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990) (prior convictions must be under statutes encompassing "generic" burglary element of entry into building). Congress had expressly enumerated burglary as risky conduct under the first part of § 924(e)(2)(B)(ii), but had not indicated why. The Court held that burglary was risky because the "fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation . . . ." Taylor, 495 U.S. at 588 (emphasis added). The nature of the prohibited conduct, entering a building, inherently created the risk.
But rather than force district courts to waste resources on extensive fact-finding missions, the Court limited the inquiry into past criminal conduct "to the fact of conviction and the statutory definition [or charging instrument and jury instructions] of the prior offense." Id. at 602. It excluded prior burglary convictions under statutes facially encompassing conduct less risky than entering a building, such as entering a car or breaking into a vending machine, id. at ...