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Criminal Practice – Prior Md. Burglary Not Violent Crime

U.S. v. Martin (Lawyers Weekly No. 14-01-0535, 40 pp.) (Traxler, J.) No. 12-5001, June 5, 2014; USDC at Greenbelt, Md. (Messitte, J.) 4th Cir.

Holding: The  4th Circuit vacates defendant’s 77-month sentence for unlawful firearm possession as a felon; the district court erred by increasing defendant’s sentence after determining his prior conviction for fourth-degree burglary constituted a crime of violence under USSG § 2K2.1(a)(2).

The sentencing guideline applicable to 18 U.S.C. § 922(g) increases the sentence for defendants who commit the offense after two prior felony convictions of a “crime of violence.” At issue here is a 2009 Maryland conviction for fourth-degree burglary. If the district court had not treated that conviction as a crime of violence, defendant’s advisory sentencing range would have been 51-63 months.

Because fourth-degree burglary does not have as an element the use, attempted use or threatened use of physical force against the person of another, it is not a crime of violence under USSG § 4B1.2(a)(1); nor does it constitute the enumerated crime of burglary of a dwelling. Defendant’s 2009 conviction is a crime of violence only if it satisfies the requirements of the “residual clause” of § USSG § 4B1.2(a)(2). But the parties disagree about the precise scope of the residual clause inquiry.

Defendant argues that Begay v. U.S., 553 U.S. 137 (2008), governs our analysis of the residual clause question, such that the offense-level enhancement may be sustained only if fourth-degree burglary is similar in kind to the enumerated offenses, i.e., purposeful, violent and aggressive; and the degree of risk posed by burglary, the closest enumerated crime analog. Most circuits to have addressed the issue have held that Sykes v. U.S., 131 S. Ct. 2267 (2011), limited Begay’s similar-in-kind inquiry to crimes predicated on strict liability, negligence or recklessness. In this circuit, however, we have continued, even after Sykes, to apply Begay’s similar-in-kind requirement to residual-clause cases. We will consider whether the fourth-degree burglary conviction qualifies as a crime of violence under the § 4B1.2 residual clause under both the degree-of-risk test and the similar-in-kind test, as required by Begay.

Because the same risk of confrontation and resulting physical injury associated with generic burglary arises under the elements of the crime for which defendant was convicted, we believe the risk of physical injury posed by defendant’s offense is comparable to the risk of physical injury posed by generic burglary. However, because the Maryland statute may be violated by negligent conduct, a violation of § 6-205(a) is not purposeful and thus is not similar in kind to the guidelines’ enumerated crimes. Defendant’s 2009 conviction under § 6-205(a) therefore cannot be treated as a crime of violence under the residual clause of USSG § 4B1.2(a)(2).

The district court erred by treating defendant’s 2009 conviction for fourth-degree burglary as a crime of violence under the residual clause. We vacate his sentence and remand for resentencing.

Vacated and remanded.


Diaz, J.: This case raises a vexing question: To what extent does Begay’s “similar in kind” test for analyzing offenses under the residual clause survive Sykes? Specifically, would the Supreme Court apply that test in determining whether this defendant’s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the court again change course?

Were I writing on a cleaner slate, I would stop after applying the “degree of risk” test the Chief Judge posits in part III.A. of his opinion and find that the conviction is for a crime of violence under the residual clause. But, as the Chief Judge explains, it appears we must also apply Begay’s teaching here. I am compelled to agree that the sentence was improperly enhanced.


O’Grady, D.J.: Because I find that our precedents and those of the Supreme Court compel the conclusion that breaking and entering a dwelling is a “crime of violence” under § 4B1.2, I respectfully dissent and would affirm the sentence imposed by the district court.

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