                                   ___________

                                   No. 95-1244
                                   ___________

Norman Ray Woodall,                     *
                                        *
     Movant - Appellant,                *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * Eastern District of Missouri.
United States of America,               *
                                        *
     Respondent - Appellee.             *
                                   ___________

                      Submitted:   September 12, 1995

                          Filed:   December 11, 1995
                                   ___________

Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     This is a post-conviction proceeding under 28 U.S.C. § 2255 in which
the district court vacated Norman Ray Woodall's sentence under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(1), because his trial counsel
provided ineffective assistance in not objecting to an inadequate showing
of the requisite prior "violent felony" convictions.        Woodall appeals the
court's additional ruling that the Double Jeopardy Clause of the Fifth
Amendment does not bar his resentencing under § 924(e)(1).        We affirm.


                                       I.


     Woodall was tried and convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).         He was also charged with
violating § 924(e)(1), a sentence enhancement statute
requiring a mandatory minimum fifteen-year prison sentence for § 922(g)
violators who have at least three prior violent felony convictions.                         A
§ 924(e)(1) violation is determined at sentencing.                   See United States v.
Washington, 992 F.2d 785, 787 (8th Cir.), cert. denied, 114 S. Ct. 356
(1993).


        "Violent felony" is defined in § 924(e) to include "burglary."                    See
§ 924(e)(2)(B).         Three months before Woodall was sentenced, the Supreme
Court held "that an offense constitutes 'burglary' for purposes of a
§ 924(e) enhancement if either its statutory definition substantially
corresponds       to   'generic'       burglary,     or   the   charging   paper    and   jury
instructions actually required the jury to find all the elements of generic
burglary."     Taylor v. United States, 495 U.S. 575, 602 (1990).


        Woodall's      presentence      investigation      report   ("PSR")    listed     five
burglary convictions in Texas state court but did not provide information
showing that they were "generic" burglaries under Taylor.                   Woodall did not
object to this portion of the PSR, nor did he contend at sentencing that
the burglary convictions were not prior violent felonies for purposes of
§ 924(e)(1).      The district court sentenced him to fifteen years in prison
based    upon the information contained in the PSR.                        He appealed his
conviction and sentence on other grounds, and we affirmed.                    United States
v. Woodall, 938 F.2d 834 (8th Cir. 1991).


        Woodall    moved    for    §    2255   relief,      claiming   that    he   received
ineffective assistance of counsel at sentencing.                    The magistrate judge
recommended that the § 924(e)(1) sentence be vacated because counsel should
have objected that the PSR did not establish Woodall's Texas burglary
convictions as violent felonies under Taylor.                       In addition, without
addressing the prejudice prong of ineffective assistance under Strickland
v. Washington, 466 U.S. 668, 694 (1984), the magistrate judge recommended
that the Double Jeopardy Clause bars resentencing under § 924(e)(1) because
the




                                               -2-
proof at Woodall's sentencing -- his PSR -- was insufficient to establish
the requisite three prior violent felony convictions.


     The district court agreed with the recommendation that Woodall's
trial counsel was ineffective for failing to object under Taylor to the
burglaries listed in the PSR.     However, the court rejected the Double
Jeopardy Clause recommendation, concluding instead that sentencing under
§ 924(e)(1) "does not bear the hallmarks of a trial-type proceeding" to
which double jeopardy protections attach.        Woodall appeals the latter
ruling.


                                   II.


     The Double Jeopardy Clause "does not prevent the government from
retrying a defendant who succeeds in getting his first conviction set
aside, through direct appeal or collateral attack, because of some error
in the proceedings leading to conviction."    Lockhart v. Nelson, 488 U.S.
33, 38 (1988).   However, the Double Jeopardy Clause bars retrial when a
conviction is reversed due to insufficient evidence, because that decision
is functionally equivalent to an acquittal.      Burks v. United States, 437
U.S. 1 (1978).   Burks is an exception to Lockhart's general rule.      See
Parker v. Norris, 64 F.3d 1178, 1181 (8th Cir. 1995), petition for cert.
filed, No. 95-6836 (Nov. 21, 1995).


     Burks concerned insufficient evidence to convict; we deal here with
proof of facts necessary to impose a sentence.   The Supreme Court extended
Burks to trial-like death penalty sentencing procedures in Bullington v.
Missouri, 451 U.S. 430, 438-39, 443-44 (1981).        We in turn have twice
applied Bullington to non-capital sentencings under Missouri and Arkansas
habitual offender enhancement statutes that required proof beyond a
reasonable doubt of all essential sentencing facts.   See Bohlen v. Caspari,
979 F.2d 109, 112-113 (8th Cir. 1992), rev'd on other grounds, 114 S. Ct.




                                   -3-
948 (1994); Nelson v. Lockhart, 828 F.2d 446, 447-48 (8th Cir. 1987), rev'd
on other grounds, 488 U.S. 33 (1988).


       In this case, Woodall argues (i) that we should extend our Bohlen and
Nelson double jeopardy holdings to sentencing under § 924(e), and (ii) that
the government is then barred from resentencing him under § 924(e) because
it presented insufficient proof of a § 924(e)(1) violation at his initial
sentencing.    We reject both contentions.


                                        A.


       For a number of reasons, we agree with the district court that the
Burks double jeopardy principle does not apply to § 924(e) sentencing
proceedings.


       1. "Sentencing matters do not ordinarily have the 'qualities of
constitutional finality that attend an acquittal.'" United States v.
Hudspeth, 42 F.3d 1015, 1024 (7th Cir. 1994) (en banc), cert. denied, 115
S. Ct. 2252 (1995), quoting United States v. DiFrancesco, 449 U.S. 117, 134
(1980).   Although the Supreme Court avoided this issue in reversing our
decisions in Bohlen and Nelson on other grounds, its opinion in Bohlen
casts doubt upon our holding that Burks applies to trial-like non-capital
sentencing proceedings.    See 114 S. Ct. at 954-55.


       2. Accepting our decision that Burks applies to the trial-like
sentencing proceedings at issue in Nelson and Bohlen, federal sentencing
proceedings are nonetheless readily distinguishable.      True, the government
must   prove   facts   relevant    to   sentencing   guidelines   and   statutory
enhancement issues, and the defendant is entitled to a sentencing hearing
on disputed issues of fact.       But the government's burden of proof is only
by a preponderance of the evidence.           Moreover, the sentencing judge
receives important input from the probation officer, who prepares the PSR,
and sentencing




                                        -4-
findings may be based upon what the judge heard at trial, as well as what
is presented at the sentencing hearing and contained in the PSR.               Compare
DiFrancesco, 449 U.S. at 136-37 (Double Jeopardy Clause does not apply to
judicial determinations "developed outside of the courtroom").                 Finally,
some   sentencing    issues,   such   as    whether   the   defendant    has   provided
"substantial assistance," may remain open for a long period of time, and
resentencings for a variety of reasons are not uncommon.                In short, this
is not a trial-like environment well-suited to the functional-equivalent-
to-acquittal analysis underlying Burks.


       3. Woodall cites no case applying the Burks principle to § 924(e)
sentencing, or indeed to any post-guidelines federal sentencing issue.              The
Seventh Circuit rejected this contention in Hudspeth, and a number of cases
have assumed that a defendant may be resentenced under § 924(e).                    For
example, after the Supreme Court's decision in Taylor, we remanded to the
district court, which reimposed the § 924(e)(1) enhancement.                On appeal,
we consolidated Taylor with another § 924(e) appellant, Banks.             We affirmed
both § 924(e) resentencings as consistent with the new burglary standard
of Taylor without discussing Burks or the Double Jeopardy Clause even
though on remand the government had expanded the sentencing record "in a
critical respect."    United States v. Taylor, 932 F.2d 703, 707 (8th Cir.),
cert. denied, 502 U.S. 882, and 502 U.S. 888 (1991).            Likewise, the court
in United States v. Harris, 964 F.2d 1234, 1235 (1st Cir. 1992), assumed
that resentencing under § 924(e) is the proper remedy when the government
fails to establish the requisite "violent felonies."           No doubt, the double
jeopardy issue was not raised in these cases, but they illustrate that
application of Burks to federal sentencing reversals would disrupt widely-
accepted practice and expectations.
       4. The Supreme Court has noted that expansive application of the
Double Jeopardy Clause may cause appellate courts to be less zealous in
correcting trial court errors.        See United States v.




                                           -5-
Tateo, 377 U.S. 463, 466 (1964).      We conclude that superimposing the Burks
principle    on   federal   sentencing   proceedings     would    be   a   complex    and
difficult task, fraught with uncertainties.          On the other hand, permitting
resentencing under present federal practice does little if any harm to the
interests served by the Double Jeopardy Clause.         See DiFrancesco, 449 U.S.
at 132-38.


                                         B.


     Even if the Burks double jeopardy principle applies to § 924(e)
sentencings, it does not bar Woodall's resentencing.              The district court
vacated Woodall's sentence because his attorney failed to object to the
adequacy of the PSR's description of Woodall's prior burglaries for
purposes of applying § 924(e) as construed in Taylor.              This is a classic
example of "trial error," not the kind of evidentiary insufficiency that
triggers Burks.


     Generally,       the   government   establishes     prior     violent       felonies
warranting    a   §   924(e)(1)   enhancement   by   submitting     the    PSR    listing
defendant's prior convictions.      See United States v. Redding, 16 F.3d 298,
302 (8th Cir. 1994).         Objections to a PSR must be made prior to the
sentencing hearing, and the probation officer may then "conduct a further
investigation and revise the [PSR]."      Fed. R. Cr. P. 32(b)(6)(B).1           Because
the PSR when challenged is not evidence, the government also has an
opportunity at the sentencing hearing to introduce additional evidence
regarding the disputed facts.         Thus, in terms of the Burks principle,
failure to object to a PSR is a pretrial event.                  The double jeopardy
protection of Burks "applies only if there has been some event, such as an
acquittal, which terminates the original jeopardy."          Richardson v. United
States, 468 U.S. 317, 325 (1984).        The error that infected




     1
      The objecting defendant bears the burden of proving that a
prior conviction is not a violent felony or a serious drug
offense as defined in § 924(e)(2). See Redding, 16 F.3d at 302.

                                         -6-
Woodall's sentencing occurred at a time when jeopardy had not terminated.
Thus, resentencing is appropriate because it will "merely recreate the
situation that would have been obtained" had Woodall's attorney timely
objected to the PSR as inadequate.         Lockhart, 488 U.S. at 42.        Cf. Linam
v. Griffin, 685 F.2d 369, 374 (10th Cir. 1982), cert. denied, 459 U.S. 1211
(1983).


        That the trial error in this case does not trigger relief under Burks
becomes apparent if one considers the prejudice prong of Strickland that
the district court overlooked.      To establish that Woodall's Texas burglary
convictions were violent felonies under Taylor, the sentencing court needed
to determine either that the applicable Texas statutes, or the indictments
or jury instructions in Woodall's cases, revealed "generic" burglaries.
The PSR did not contain that information.       If Woodall's counsel had timely
objected on that ground, the probation officer or the government could have
supplied the missing information prior to or at the sentencing hearing.
Thus,    to   find   Strickland   prejudice,   the   district     court   should   have
determined whether the government could have presented either burglary
statutes or other information that would have established three violent
felony convictions and therefore a violation of § 924(e)(1).                   If the
government     already   possessed,   or   could     readily    have   obtained    such
information, counsel did not provide ineffective assistance by failing to
make a futile objection to the inadequate PSR.                 This basic Strickland
prejudice inquiry makes it apparent that the § 2255 relief afforded Woodall
by the district court is not functionally equivalent to a judgment of
acquittal under Burks.




                                        -7-
     The district court's double jeopardy ruling is affirmed, and the case
is remanded for further proceedings consistent with this opinion.


     A true copy.


           Attest:


                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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