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

                                                                     FILED
                                                                  October 7, 2010
                                    No. 09-31138
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA

                                             Plaintiff-Appellee
v.

ROY L. SCHMIDT, III

                                             Defendant-Appellant



                     Appeal from the United States District Court
                        for the Eastern District of Louisiana


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant Roy Schmidt III appeals his designation as an Armed
Career Criminal (“ACC”) under the Armed Career Criminal Act1 (“the ACCA”).
Schmidt pleaded guilty to conspiracy to possess a pipe bomb and to being a
convicted felon in possession of a pipe bomb. He now challenges the district
court’s sentencing determination that a prior conviction for theft of a firearm
from a licensed gun dealer, in violation of 18 U.S.C. § 922(u), is a violent felony
for purposes of the ACCA. We affirm.



      1
          18 U.S.C. § 924(e).
                                         No. 09-31138

                                    I. Facts & Proceedings
      On and before December 31, 2007, Schmidt agreed with “Individual A” for
him to buy parts and build, and for Schmidt to receive and possess, one
unregistered “pipe bomb.” Schmidt provided the funds for Individual A to
purchase the bomb components from a Lowes Building Supply store and a Home
Depot Building Supply store in Jefferson, Louisiana.         Both Schmidt and
Individual A provided the explosive powders for at least three pipe bombs. On
December 31, 2007, Schmidt, Individual A, and Individual B constructed three
pipe bombs at Individual A’s house. Afterwards, Schmidt took possession of one
the bombs.
      Schmidt was indicted in October 2008 for conspiring to possess an
unregistered pipe bomb,2 conspiring to commit an offense against or to defraud
the United States,3 and illegal possession of such a bomb.4 In June 2009,
Schmidt pleaded guilty as charged, without entering into a plea agreement. The
next month, after being advised of his rights, Schmidt signed a notarized
statement admitting to having pipe bombed a vehicle on January 1, 2008.
      Schmidt’s sentencing hearing was held in November 2009.                The
government produced documents supporting Schmidt’s state court convictions
for (1) a December 4, 1993 attempted robbery while armed with a dangerous
weapon in violation of La. Rev. Stat. §§ 14:27 and 64; (2) a July 21, 1993, simple
burglary of an automobile in violation of LA. Rev. Stat. § 14:62; (3) an August 8,
1996, possession of stolen things valued at over $500.00 in violation of La. Rev.
Stat. § 14:69; (4) an August 7, 1996, simple arson of property with a value over




      2
          26 U.S.C. § 5861(d) (2010).
      3
          18 U.S.C. § 371 (2010).
      4
          Id. § 922(g)(1) (2010).

                                              2
                                 No. 09-31138

$500 in violation of La. Rev. Stat. § 14:52; and (5) an August 7, 1996, simple
burglary of an inhabited dwelling in violation of La. Rev. Stat. § 14:62:2.
      The presentence report (“PSR”) concluded that Schmidt’s prior convictions
for attempted armed robbery, arson, and simple burglary of an inhabited
dwelling were crimes of violence and assigned Schmidt a base offense level of 24
pursuant to U.S.S.G. § 2K2.1. Schmidt was assigned additional enhancements
based on use of a pipe bomb, use of a firearm in connection with another felony
offense, 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
convictions listed above as well as another conviction for stealing firearms from
a federally licensed dealer. The PSR set Schmidt’s Guidelines sentencing range
at 188-235 months in prison on the firearms charge and 60 months in prison on
the conspiracy charge.
      Schmidt 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
involved a minor in the offense. The district court accepted Scmidt’s objection
to the latter, but rejected his assertion that theft of a firearm from a firearms
dealer is not a crime of violence. These rulings reduced Schmidt’s guidelines
sentencing range to 151-188 months in prison.
      In November 2009, the district court sentenced Schmidt to five years
imprisonment on count one (conspiracy to possess an unregistered destructive
device), pursuant to 26 U.S.C. § 5861(d), and to a concurrent term of fifteen
years as an ACC on count two (convicted felon in possession of a firearm),
pursuant to 18 U.S.C. § 924(e). Schmidt timely filed a notice of appeal.


                                 II. Analysis
A. Standard of Review


                                       3
                                            No. 09-31138

      A sentencing court’s determination whether theft of firearms from a
licensed dealer qualifies as a violent felony is a statutory interpretation that we
review de novo.5 We also review a sentencing court’s interpretation of the
Guidelines de novo.6 The Supreme Court held, in a similar case, that when a
court determines whether a conviction qualifies as a violent felony under the
ACCA, it engages in statutory interpretation and not in judicial fact finding.7
Therefore, there is no Sixth Amendment issue under Apprendi v. New Jersey.8


B. The ACCA
      Schmidt raises only one issue in his appeal: whether his 18 U.S.C. § 922(u)
conviction for theft of firearms from a licensed dealer qualifies as a violent felony
for ACCA purposes. One of the ways a defendant is determined to be an ACC
when his current conviction constitutes a violation of the pipe-bomb statute, §
922(g), and he has at least three prior convictions for violent felonies.9       For
ACCA purposes, a violent felony is one 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, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.”10 Thus, an offense will qualify as violent if: (1) “physical force against
the person of another” is an element of the offense; (2) the crime is burglary,
arson or extortion, being the offenses enumerated in the ACCA; or (3) the crime


      5
          James v. United States, 550 U.S. 192, 214 (2007).
      6
          United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004).
      7
          Id.
      8
          530 U.S. 466 (2000).
      9
          18 U.S.C. § 924(e)(1) (2010).
      10
           Id. § 924(e)(2)(B)(ii) (2010).

                                                 4
                                        No. 09-31138

comes under the ACCA’s residual clause, by constituting a “potential risk of
physical injury to another.”11


C. Physical Force as an Element of the Offense
      Schmidt insists that theft of firearms from a federally licensed dealer does
not include, as a required element, the use, attempted use or threatened use of
physical force against a person. The statute specifies that:
      It shall be unlawful for a person to steal or unlawfully take or carry
      away from the person or the premises of a person who is licensed to
      engaged in the business of importing, manufacturing, or dealing in
      firearms, any firearm in the licensee’s business inventory that has
      been shipped or transported in interstate or foreign commerce.12

Schmidt contends that when determining whether an offense qualifies as a
violent felony, the court is only allowed to look at the terms of the statute and
may not consider the underlying facts of the case.
      Schmidt is correct that a court may only consider the elements of the
conviction statute and not the specific conduct of the offender. The Supreme
Court has mandated a categorical approach for deciding whether a prior
conviction is a violent felony for the purposes of the ACCA.13 This is because
“the language of § 924(e) [the ACCA] generally supports the inference that
Congress intended the sentencing court to look only to the fact that the
defendant had been convicted of crimes falling within certain categories, and not
to the facts underlying the prior convictions.”14 This approach is necessary
because, otherwise, a particular crime might be considered a violent offense and


      11
           Id. § 924(e)(2)(B) (2010).
      12
           Id. § 922(u) (2010).
      13
           Taylor v. United States, 495 U.S. 575, 600 (1990).
      14
           Id.

                                               5
                                       No. 09-31138

count towards enhancement on some occasions and not on others, depending on
the discrete facts. In addition, anything but the categorical approach would
require sentencing courts to engage in elaborate fact finding about the
defendant’s prior offenses. This is why the sentencing court must “consider not
how the defendant committed the crime, but how the crime is generally
committed.”15
      Schmidt was not convicted under the “person” prong of § 922(u) but rather
under its “premises” prong, because (1) the indictment charges that he “did steal
and unlawfully take and carry away from the premises and inventory of A-1 Gun
Repair, a licensed dealer” and (2) his factual basis states that the defendants
broke the front window of the shop, entered it, and stole 11 handguns. Stealing
from such a premises does not necessarily involve the use, attempted use, or
threatened use of physical force against a person because it can be completed
without anyone else being present. Therefore, this offense is not a violent
offense under the first prong of the ACCA.


D. The Enumerated Offenses under the ACCA
      The government asserts that the language of § 922(u) matches the generic
crime 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
unprivileged entry into, or remaining in” the premises “with intent to commit a
crime.”16


      15
           United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010).
      16
         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.

                                               6
                                       No. 09-31138

       To determine whether an offense falls under the ACCA’s enumerated
felony of burglary, we employ a “common sense approach.”17 This involves the
application of a three part test to determine whether a particular provision falls
within the enumerated offenses. First, we determine the crime’s generic,
contemporary, ordinary meaning. Second, we distill the definitions to identify
the crime’s basic elements. Third, we compare the generic definition to the
statute governing the prior conviction.18 If the statute follows the generic
definition, has only minor variations, or is narrower than the generic definition,
the sentence may be enhanced.19
      Schmidt raises the strong point that a § 922(u) firearm theft does not
require that the entry into or presence inside the premises be unlawful or
unprivileged. Although Schmidt did actually break into the premises, for the
purposes 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
defendant, should be considered. And Schmidt is correct that, under the terms
of § 922(u), unlawful entry or presence is not required. In contrast, the generic
definition of burglary always requires an element of unlawful or unprivileged
entry or presence. Although theft of firearms from a licensed dealer does have
much in common with burglary, such theft ultimately lacks the element of
unlawful or unprivileged entry that would make it identical to burglary.
Therefore, § 922(u) does not qualify as a violent felony under the enumerated-
crimes 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).
      18
           Id. at 379.
      19
           Id.

                                            7
                                         No. 09-31138

      The residual clause of the ACCA defines a violent felony as one that
“involves conduct that presents a serious potential risk of physical injury to
another.”20 The apparent purpose of the residual clause is to include those
offenses that indicate the offender is a violent person who is likely to harm
others. For example, in Begay v. United States, the Supreme Court held that
recidivist drunk driving does not qualify as a violent crime under the ACCA’s
residual-clause because the offense does not involve “purposeful, violent, and
aggressive” conduct that presents a serious potential risk of physical injury to
another.21 In contrast, noted the Supreme Court, a person who commits a
violent felony is the kind of person who shows “an increased likelihood that [he]
might deliberately point [a] gun and pull the trigger,” the sort of behavior we
associate with armed career criminals.22
      Again, the proper inquiry is the categorical approach, as set forth in
Taylor.23 In a later case, the Supreme Court summarized this approach: “The
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.”24       When the statute under consideration presents disjunctive
alternatives, the court may consider certain other documents to determine which
alternative was applied.25 In addition, the Guidelines approve of a court’s
determination that an offense is a crime of violence when “the conduct was set
forth (i.e. expressly charged) in the count of which the defendant was convicted


      20
           18 U.S.C. § 924(e)(2)(B)(ii) (2002).
      21
           Begay v. United States, 553 U.S. 137, 144-45 (2008).
      22
           Id. at 147.
      23
           495 U.S. 575.
      24
           James v. United States, 550 U.S. 192, 208 (2007).
      25
           Hughes, 602 F.3d at 674.

                                                  8
                                          No. 09-31138

involved use of explosives. . .or, by its nature, presented a serious potential risk
of physical injury to another.”26 Review of the record is “generally limited to the
charging document, written plea agreement, transcript of the plea colloquy, and
any explicit factual findings by the trial judge to which the defendant
assented.”27
       In the instant case, the factual basis of the plea to the indictment stated:
       On January 9, 1996, the A-1 Gun Repair Shop on West Esplanade
       Avenue in Metairie, Louisiana was burglarized. The front window
       was broken, and eleven (11) handguns were stolen. The owner of
       the shop would testify to the burglary and the eleven guns stolen.

This information allowed the sentencing court to identify Schmidt’s offense as
stealing guns from the premises of a licensed firearms dealer. Schmidt contends
that the judge erred by: (1) finding that stealing from the premises of a federally
licenced firearms dealer creates a serious potential risk of physical harm to
another; and (2) relying on Schmidt’s specific conduct to decide whether the
ACCA’s residual clause was satisfied.
       Schmidt notes that shoplifting is one of the crimes included in stealing
from the premises of a licensed dealer, and that shoplifting poses no serious risk
of physical injury to another person. Schmidt cites a number of cases to support
this proposition.28 He relies on United States v. Mohr29 to argue that, when
deciding whether the conviction is for a crime of violence, courts must consider
the least culpable conduct that violates the applicable elements of a statute.


       26
            U.S.S.G. § 4B1.2, cmt. 1 (2009).
       27
            United States v. Gonzalez-Chavez, 432 F.3d 334, 337-38 (5th Cir. 2005).
       28
          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
            554 F.3d 604, 607 (5th Cir. 2009), cert. denied, 130 S. Ct. 56 (2009).

                                                 9
                                         No. 09-31138

Therefore, asserts Schmidt, we must analyze theft of a firearm under § 922(u)
as a shoplifting statute, as it is the least culpable conduct that violates the
elements of the statute. Mohr is inapposite because Schmidt’s indictment is not
silent as to the elements of the offense charged. Therefore, we need only
consider whether stealing firearms from the premises of a licensed dealer
presents a serious potential risk of inquiry to another.30
       The determinative question revolves around whether the elements of theft
of a firearm from a federally licenced dealer include a serious threat of harm to
another and whether this offense is similar in kind to the enumerated offenses
listed in the ACCA. In Begay, the Supreme Court set out a two-prong test for
determining whether an offense qualifies as a violent felony under the residual
clause of the ACCA.31 The first prong asks whether the offense inherently
“present[s] a serious potential risk of physical injury to another.”32 We have
emphasized that such a determination should be made through a categorical
approach, not on the basis of the circumstances of a particular case.33
Additionally, Begay does not suggest that we undertake a comparative risk
analysis,34 but rather an inquiry to assess whether the offense must involve
“purposeful, violent, and aggressive conduct.”35
       Section 922(u) qualifies as a purposeful, violent, and aggressive offense
under the first prong of the Begay test because at least one of the elements of the

       30
           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
            553 U.S. at 137.
       32
            Id. at 142.
       33
            United States v. Charles, 301 F.3d 309, 313-14 (5th Cir. 2002) (en banc).
       34
            See Begay, 553 U.S. at 142-43.
       35
            Chambers v. United States, 129 S. Ct. 687, 692 (2009) (citation omitted).

                                               10
                                         No. 09-31138

offense includes the presence of a serious potential risk of physical injury to
another. The key elements of the offense are: (1) stealing or unlawfully taking
away or carrying (2) from the person or premises of a licensed firearms dealer
(3) any firearm in the licensee’s business inventory.36               Although the first
element, by itself, presents no serious potential risk of physical injury because
it can be accomplished without confrontation, the second and third elements do
present serious potential risks of physical harm to others. The second element
requires that, to constitute an offense, the firearms be stolen from an
individual—the licensee—who, by definition, is likely to posses or have easy
access 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.37 Persons who steal firearms from a dealer
have to know that doing so is inherently dangerous because they are stealing
from a person who probably either possesses or has easy access to firearms with
which to defend themselves and their property. Likewise, the third element
undoubtedly presents a serious potential risk of physical injury because stolen
firearms are more likely to be used in connection with illegal and inherently
harmful activities than are lawfully possessed guns: Persons who lawfully obtain
firearms almost always do so for legitimate purposes, such as hunting or target
shooting.
       The second prong of the Begay test asks whether an offense is “roughly
similar, in kind as well as in degree of risk posed, to the [statutory] examples”
of burglary, arson, extortion and offenses that involve use of explosives.38 The


       36
            18 U.S.C. § 922(u) (2002).
       37
         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
            Begay, 553 U.S. at 143.

                                             11
                                  No. 09-31138

purpose of this prong is to narrow the scope of the residual clause of the ACCA
by distinguishing this crime from the set of all crimes that present a serious
potential risk of physical injury.39 Obviously, from among the crimes listed in
the ACCA, burglary most closely resembles theft of firearms from a licensed
dealer.     Even though, as discussed above, § 922(u) firearm theft is not
sufficiently close to burglary to qualify as enumerated under the ACCA, it is
sufficiently similar to burglary to be deemed similar in kind and risk. In the
instant case, the offense constituted a burglary, but the perpetrators were
charged 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
under a burglary statute. But, as noted, the theft of firearms is more dangerous
than simple shoplifting or petty theft because it involves victims who are often
armed themselves and loot that is likely to be used for violent purposes. We are
satisfied that theft of a firearm from a licensed federal dealer is sufficiently
similar to burglary to qualify as a violent offense under the residual-clause prong
of the ACCA.


                                III. Conclusion
      Whether a § 922(u) conviction qualifies as a crime of violence for ACCA
purposes is a novel issue. The ACCA has three disjunctive prongs, under any
one of which an offense may be deemed a crime of violence. The first is when the
offense has an element that encompasses the use of force; but § 922(u) contains
no such element. The second is when the offense is encompassed in one of the
ACCA’s enumerated felonies. Here, the closest enumerated felony is burglary,
but because § 922(u) lacks the element of unlawful or unprivileged entry, §
922(u) cannot be treated as burglary per se. The third prong is the residual-



      39
           Id. at 142.

                                        12
                                 No. 09-31138

clause 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
kind to one of the enumerated offenses. We conclude that, under the third
prong, § 922(u) qualifies as a violent offense. Accordingly, Schmidt’s sentence
is AFFIRMED.




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