     05-5462-cr
     USA v. Brown

 1                      UNITED STATES COURT OF APPEALS

 2                          FOR THE SECOND CIRCUIT

 3                                 - - - - - -

 4                             August Term, 2007

 5   (Argued: October 17, 2007            Decided: January 30, 2008)

 6

 7                          Docket No. 05-5462-cr

 8   _________________________________________________________

 9   UNITED STATES OF AMERICA,

10                                        Appellee,

11                               - v. -

12   SEAN BROWN,

13                                      Defendant-Appellant.
14   _________________________________________________________

15   Before:   KEARSE and HALL, Circuit Judges, and RAKOFF,

16                   District Judge*.

17              Appeal from a judgment of the United States District Court

18   for the Eastern District of New York, Sterling Johnson, Jr., Judge,

19   following a remand pursuant to United States v. Crosby, 397 F.3d 103

20   (2d Cir. 2005), resentencing defendant to 84 months' imprisonment in

21   light of his prior state-law conviction of third-degree burglary,

22   considered as a crime of violence, and his possession of firearms

23   whose serial numbers had been obliterated.

24              Affirmed; remanded for clerical correction of judgment.


     *    Honorable Jed S. Rakoff, of the United States District Court
          for the Southern District of New York, sitting by
          designation.
 1                         ADAM   ABENSOHN,   Assistant    United   States
 2                         Attorney, Brooklyn, New York (Roslynn R.
 3                         Mauskopf, United States Attorney for the
 4                         Eastern District of New York, Emily Berger,
 5                         Assistant United States Attorney, Brooklyn, New
 6                         York, on the brief), for Appellee.

 7                         MICHAEL S. POLLOK, New York, New York, filed a
 8                         brief for Defendant-Appellant.




 9   KEARSE, Circuit Judge:

10              Defendant Sean Brown, who pleaded guilty in the United

11   States District Court for the Eastern District of New York before

12   Sterling   Johnson,   Jr.,   Judge,    to   one   count   of    unlicensed   gun

13   dealing, in violation of 18 U.S.C. § 922(a)(1)(A), and seven counts

14   of being a felon in possession of a firearm, in violation of 18

15   U.S.C. § 922(g)(1), appeals from a judgment entered following a

16   remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.

17   2005) ("Crosby"), sentencing him under the advisory Sentencing

18   Guidelines principally to 84 months' imprisonment, to be followed by

19   a three-year term of supervised release.          On appeal, Brown contends

20   that the district court erred in increasing his offense level on the

21   grounds (a) that on some of the firearms he possessed the serial

22   numbers had been obliterated, and (b) that his prior crime of third-

23   degree burglary constituted a crime of violence.               He also contends

24   that his sentence is unreasonable on the grounds that the district

25   court (a) failed to consider, inter alia, some of the sentencing

26   factors set forth in 18 U.S.C. § 3553(a), and (b) reimposed a

27   sentence that the court had originally indicated was inappropriate.


                                           -2-
 1   For the reasons that follow, we find no basis for reversal.



 2                                        I.    BACKGROUND



 3                   The events leading to this prosecution are not in dispute.

 4   In a series of transactions in late 2002 and early 2003, Brown sold

 5   seven guns to undercover police officers.               On two of those guns, the

 6   serial numbers were obliterated. Brown was indicted on, inter alia,

 7   one count of unlicensed gun dealing, in violation of 18 U.S.C.

 8   § 922(a)(1)(A), and seven counts of being a felon in possession of

 9   a firearm, in violation of 18 U.S.C. § 922(g)(1).                    Brown pleaded

10   guilty to those eight counts.              The indictment also charged him with

11   two counts of knowingly possessing firearms with obliterated serial

12   numbers, in violation of 18 U.S.C. § 922(k); the court refused to

13   accept a plea of guilty to those two counts because Brown maintained

14   that   he       did   not   know    the    serial    numbers   on   the    guns     were

15   obliterated.



16   A.   The Guidelines Calculations

17                   A presentence report ("PSR") prepared on Brown initially

18   calculated that his recommended range of imprisonment under the 2003

19   version of the Guidelines ("2003 Guidelines"), which was applied to

20   him, was 57-71 months.             The PSR described Brown's criminal record,

21   which included three convictions for felonies under New York State

22   ("State") law:          a 1989 conviction for criminal possession of a

23   weapon,     a    1991   conviction        for   attempted   burglary,     and   a   1993

24   conviction for burglary.             As to the 1993 burglary conviction, the

                                                 -3-
 1   PSR stated that, according to his State presentence report, Brown

 2   had explained to a State parole officer that someone had owed him

 3   money and that, when Brown had not received payment for several

 4   months, he broke into the home of his debtor's mother and stole her

 5   jewelry.

 6               The above three convictions gave Brown nine criminal

 7   history points and placed him in criminal history category ("CHC")

 8   IV.   The PSR calculated Brown's base offense level as 20 on the

 9   premise that he had committed the instant offenses after having been

10   convicted of one prior crime of violence, see 2003 Guidelines

11   § 2K2.1(a)(4)(A), to wit, the attempted burglary of which he was

12   convicted in 1991.       See also id. § 2K2.1 Application Note 5

13   (stating, in pertinent part, that "[f]or purposes of this guideline

14   . . . '[c]rime of violence' has the meaning given that term in

15   § 4B1.2(a)").   The PSR also stated that at least two of the firearms

16   sold by Brown had obliterated serial numbers.       After a two-step

17   increase for possession of firearms with obliterated serial numbers,

18   see id. § 2K2.1(b)(4), a two-step increase on the ground that

19   Brown's offenses involved seven firearms, see id. § 2K2.1(b)(1), and

20   a three-step decrease for acceptance of responsibility, see id.

21   § 3E1.1(b), Brown's total offense level was 21.

22               However, the PSR was subsequently amended to increase that

23   level.     An addendum stated that a closer examination of New York

24   statutes and this Court's decision in United States v. Andrello,

25   9 F.3d 247 (2d Cir. 1993) ("Andrello"), cert. denied, 510 U.S. 1137

26   (1994), revealed that Brown's 1993 burglary was a crime of violence,

27   and hence that Brown's record included two crimes of violence rather

                                       -4-
 1   than one as stated in the original PSR.    The base offense level of

 2   a defendant with two such prior convictions was 24.         See 2003

 3   Guidelines § 2K2.1(a)(2).    Thus, the amended PSR concluded that,

 4   with the other adjustments remaining the same, Brown's total offense

 5   level was 25.     That offense level, combined with a CHC of IV,

 6   resulted in a Guidelines-recommended imprisonment range of 84-105

 7   months.



 8   B.   The March 2004 Sentencing

 9              Brown made no objections to the statements or calculations

10   in the PSR, either as originally issued or as amended, except with

11   respect to the recommended two-step increase in offense level for

12   possession of firearms with obliterated serial numbers.   He did not

13   suggest that the serial numbers were not in fact obliterated;

14   rather, he contended that the enhancement was inappropriate because

15   he did not know they were obliterated, and because the district

16   court had refused to accept his plea of guilty to the § 922(k)

17   charges that he had "knowingly" possessed firearms with obliterated

18   serial numbers.    Brown argued that his Guidelines imprisonment

19   range, without that enhancement, should be 70 to 87 months.    (See,

20   e.g., Sentencing Transcript March 26, 2004 ("2004 S.Tr."), at 7.)

21              The government responded that while 18 U.S.C. § 922(k)

22   itself applies only if the defendant had knowledge that a firearm's

23   serial number was removed, altered, or obliterated, the pertinent

24   Guidelines section stated simply, "[i]f any firearm . . . had an

25   altered or obliterated serial number, increase by 2 levels," 2003

26   Guidelines § 2K2.1(b)(4).     The government pointed out that the

                                      -5-
 1   commentary to that guideline provided that the enhancement under

 2   subsection (b)(4) for a "[f]irearm with altered or obliterated

 3   serial number applies whether or not the defendant knew or had

 4   reason to believe that the firearm had an altered or obliterated

 5   serial number."     (2004 S.Tr. at 6 (referring to 2003 Guidelines

 6   § 2K2.1 Application Note 19).)   Thus, the guideline had no scienter

 7   requirement.

 8               Judge Johnson addressed both sides' positions, stating as

 9   follows:

10               Problem I have with the government's position is the
11               fact that the defendant had pled to eight counts for
12               aggregating [sic] circumstances, the government
13               wants to charge him basically with ten [sic] guns,
14               two which he said he didn't know the guns were --
15               the serial numbers were obliterated and while
16               according to the law the government has the right to
17               do that, it is not the right thing to do.

18                    The government's calculations with respect to
19               their position is 84 to 105 months. The defendant's
20               position is that it should be 70 to 87 months. The
21               problem that I have with the defendant's position is
22               that he is in a criminal category history four. It
23               is not that this is his first contact with the
24               criminal justice system.

25                    If he were not a criminal category history
26               four, notwithstanding Sentencing Guidelines as
27               related by the government, I would sentence him to
28               70 months.    However, I'm going to sentence the
29               defendant to the custody of the Attorney General or
30               his duly authorized representative for a period of
31               84 months.

32   (2004 S.Tr. at 20-21.)

33               Judgment was entered on March 31, 2004, and Brown timely

34   appealed.   On appeal, Brown was represented by new counsel, and his

35   new attorney filed a brief pursuant to Anders v. California, 386

36   U.S. 738 (1967), and moved to withdraw as counsel, stating that


                                       -6-
 1   Brown had no nonfrivolous issues for appeal.              The government moved

 2   for summary affirmance.       In January 2005, the United States Supreme

 3   Court decided United States v. Booker, 543 U.S. 220 (2005), holding

 4   that the Guidelines are not mandatory but advisory.                Thereafter,

 5   this Court granted Brown's new attorney's motion to withdraw; but we

 6   denied the government's motion for summary affirmance, instructed

 7   that new counsel be appointed for Brown, and, without reaching any

 8   merits questions, summarily remanded the case to the district court,

 9   in accordance with Crosby, 397 F.3d at 119, to permit the court to

10   determine whether its original sentence would have been nontrivially

11   different under the post-Booker advisory-Guidelines regime.



12   C.   The Sentencing on Remand

13               On remand, Judge Johnson decided to resentence Brown; the

14   attorney who had represented Brown throughout virtually all of the

15   prior district court proceedings was appointed to represent him.

16   Thereafter, the parties submitted written arguments and the court

17   held a hearing, attended by counsel and Brown.               Brown's attorney

18   reiterated his prior argument that notwithstanding the fact that the

19   Guidelines § 2K2.1(b)(4) enhancement was, on its face, applicable

20   even   if   the   defendant   did   not    know   the    serial   numbers   were

21   obliterated, Brown should not have his punishment increased on

22   account of a fact that he denied knowing.               (See, e.g., Sentencing

23   Transcript September 23, 2005 ("2005 S.Tr."), at 5 ("Even though it

24   is something the defendant doesn't have to know, he still has not

25   pled guilty to that.").)

26               Brown's attorney also advanced a new contention, saying he

                                          -7-
 1   had "missed it the first time around," arguing that Brown's 1993

 2   felony of third-degree burglary should not have been considered a

 3   crime of violence.    (2005 S.Tr. at 3.)       He argued that that burglary

 4   conviction resulted from Brown's plea of guilty to burglary of a

 5   "building"; that burglary of a "building" did not fall within the

 6   Guidelines definition of crime of violence, which referred to

 7   burglary of a "dwelling," see Guidelines 2003 § 4B1.2(a); and that

 8   that conviction thus could not justify a base offense level of 24

 9   under § 2K2.1(a)(2).      (2005 S.Tr. at 4.)       Brown's attorney pointed

10   out that if the 1993 burglary were not treated as a crime of

11   violence and the enhancement for the obliterated serial numbers were

12   eliminated, Brown's advisory Guidelines-recommended imprisonment

13   range would be 46-57 months.      (See 2005 S.Tr. at 7.)

14              The government opposed Brown's contentions, citing this

15   Court's   decision   in   Andrello,    9    F.3d   247,   and   the   Guidelines

16   themselves.   The Assistant United States Attorney ("AUSA") argued

17   that Andrello "deem[ed] burglary in the third degree under New York

18   law . . . to constitute [a] crime[] of violence" (2005 S.Tr. at 8)

19   and hence foreclosed Brown's contention that his 1993 burglary

20   should not be considered a crime of violence under § 4B1.2(a).               The

21   AUSA also reiterated the government's position that Guidelines

22   § 2K2.1(b)(4), calling for an offense-level increase for possession

23   of a gun with an obliterated serial number, is "a strict liability

24   provision" that did not require knowledge (2005 S.Tr. at 8).

25              After hearing counsel's arguments and a statement from

26   Brown, the district court resentenced Brown under the post-Booker

27   sentencing regime and imposed the same 84-month term of imprisonment

                                           -8-
 1   it had imposed originally.    The court stated as follows:

 2               The sentencing landscape has been changed by Booker
 3               . . . .

 4                    . . . Crosby tells us that the court must
 5               consider the guidelines because they are advisory
 6               and then look at the factors in 3553(a) and if you
 7               look at the factors in 3553(a)(2)(A), to reflect the
 8               seriousness of the offense and to promote respect
 9               for the law and to provide just punishment for an
10               offense and in this situation the defendant is a
11               prior felon who was selling a number of firearms to
12               undercover police officers . . . .

13                    . . . .

14                    . . . And then 3553(a)(2)(B) says to afford
15               adequate deterrence to criminal conduct.      This
16               defendant is not unfamiliar with the criminal
17               justice system.   He has numerous run-ins with the
18               criminal justice system and there are at least two
19               felonies that he's been convicted of; is that
20               correct?

21                    MR. ABENSOHN [the AUSA]: I believe there are
22               three prior felonies but two qualify as crimes of
23               violence for purposes of the statute, Your Honor.

24                    THE COURT: And 3553(a)(2)(C) says to protect
25               the public from further crimes of the defendant and
26               this defendant on one instance had escaped custody
27               for a state conviction and while in that escape
28               status committed another felony . . . .

29                    . . . .

30                    . . . Well, I have taken all of this into
31               consideration and I have looked at the guidelines
32               and I am going to impose the same sentence that I
33               imposed before.   I sentence the defendant to the
34               custody of the Attorney General or his duly
35               authorized representative for a period of 84 months
36               to run concurrent on each count . . . .

37   (2005 S.Tr. at 10-12.)       Judgment was entered, and this appeal

38   followed.



39                              II.   DISCUSSION


                                       -9-
 1               On this appeal, Brown contends principally (a) that his

 2   1993 burglary should not have been considered a crime of violence,

 3   (b) that his advisory-Guidelines offense level should not have been

 4   increased on account of the guns' obliterated serial numbers, and

 5   (c) that his sentence is unreasonable because the district court did

 6   not consider some of the § 3553(a) sentencing factors and because

 7   the judge reimposed the same 84-month sentence despite having,

 8   according to Brown, "specifically stated at the initial sentencing

 9   that he would have sentenced [Brown] to 70 months if he had the

10   choice" (Brown brief on appeal at 10).            For the reasons that follow,

11   we find no merit in his contentions.




12   A.   Standard of Review

13               Following the Supreme Court's decision in Booker, holding

14   that the Guidelines are advisory rather than mandatory, a sentencing

15   court must determine an appropriate sentence by considering the

16   factors set forth in 18 U.S.C. § 3553(a).              See, e.g., Booker, 543

17   U.S. at 259-60; Crosby, 397 F.3d at 111.                 Since those factors

18   include    the   sentencing   ranges     established     for   "the   applicable

19   category    of   offense   committed      by    the   applicable   category   of

20   defendant as set forth in the guidelines" issued by the Sentencing

21   Commission, 18 U.S.C. § 3553(a)(4)(A), the court is required to make

22   a "determination of the applicable Guidelines range, or at least

23   identification of the arguably applicable ranges," despite the fact

24   that such ranges are now advisory.              Crosby, 397 F.3d at 113; see,

                                            - 10 -
 1   e.g., Gall v. United States, 128 S. Ct. 586, 596 (2007) ("[A]

 2   district court should begin all sentencing proceedings by correctly

 3   calculating the applicable Guidelines range. . . . [T]he Guidelines

 4   should be the starting point and the initial benchmark."); United

 5   States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006); United

 6   States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005).                          Other

 7   § 3553(a) factors that the sentencing court must consider include

 8   "the    nature     and     circumstances         of   the    offense,"     18   U.S.C.

 9   § 3553(a)(1), "the history and characteristics of the defendant,"

10   id., and the need for the sentence that is imposed to, inter alia,

11   "reflect the seriousness of the offense, . . . promote respect for

12   the law, . . . provide just punishment for the offense[,] . . .

13   afford adequate deterrence to criminal conduct[, and] . . . protect

14   the     public     from     further     crimes        of    the    defendant,"      id.

15   §§ 3553(a)(2)(A), (B), and (C).

16                 In   the    post-Booker        era,     we    review   sentences      for

17   reasonableness, see Booker, 543 U.S. at 261-62, a standard that is

18   "akin    to   review      for   abuse   of    discretion,"        United   States    v.

19   Fernandez, 443 F.3d 19, 27 (2d Cir.) ("Fernandez"), cert. denied,

20   127 S. Ct. 192 (2006); see, e.g., Gall, 128 S. Ct. at 594 ("[T]he

21   Booker opinion made it pellucidly clear that the familiar abuse-of-

22   discretion standard of review now applies to appellate review of

23   sentencing decisions."); Crosby, 397 F.3d at 114.                    "Reasonableness

24   review involves consideration of both the length of the sentence

25   (substantive reasonableness) and the procedures used to arrive at

26   the sentence (procedural reasonableness)." United States v. Canova,

27   485 F.3d 674, 679 (2d Cir. 2007).

                                             - 11 -
 1              As    to    substantive      reasonableness,     the     "numerous

 2   [§ 3553(a)] factors that guide sentencing . . . . guide appellate

 3   courts . . . in determining whether a sentence is unreasonable."

 4   Booker, 543 U.S. at 261.         Thus, in reviewing a sentence for

 5   "substantive reasonableness, . . . we consider whether the length of

 6   the sentence is reasonable in light of the factors outlined in 18

 7   U.S.C. § 3553(a)."     United States v. Rattoballi, 452 F.3d at 132.

 8   In reviewing for procedural reasonableness, we consider, inter alia,

 9   whether the sentencing judge treated the Guidelines as advisory and

10   whether he considered the Guidelines and all of the other factors

11   listed in § 3553(a).    See, e.g., id. at 131-32.      A sentence would be

12   procedurally unreasonable if, for example, the sentencing judge

13   misinterpreted a relevant guideline or failed to consider the

14   factors listed in § 3553(a).

15              We have not insisted that sentencing judges slavishly

16   follow any particular formula in considering the § 3553(a) factors.

17   See, e.g., Crosby, 397 F.3d at 113 ("[W]e will no more require

18   'robotic incantations' by district judges [post-Booker] than we did

19   when the Guidelines were mandatory.").          Instead,

20              we presume, in the absence of record evidence
21              suggesting otherwise, that a sentencing judge has
22              faithfully discharged her duty to consider the
23              statutory factors. . . . [A]nd we will not conclude
24              that a district judge shirked her obligation to
25              consider the § 3553(a) factors simply because she
26              did not discuss each one individually or did not
27              expressly parse or address every argument relating
28              to those factors that the defendant advanced.

29   Fernandez, 443 F.3d at 30.     "As long as the judge is aware of both

30   the statutory requirements and the sentencing range or ranges that

31   are   arguably   applicable,   and    nothing   in   the   record   indicates

                                          - 12 -
 1   misunderstanding about such materials or misperception about their

 2   relevance, we will accept that the requisite consideration has

 3   occurred."     United States v. Fleming, 397 F.3d 95, 100 (2d Cir.

 4   2005).



 5   B.   Third-Degree Burglary as a Crime of Violence

 6                Brown     contends   that      the     district     court        committed

 7   procedural     error     by   interpreting      §    4B1.2(a),     the       Guidelines

 8   definition of "crime of violence," as encompassing his 1993 New York

 9   felony of third-degree burglary.          We conclude, in light of (a) the

10   residual clause at the end of the § 4B1.2(a) definition, (b) the

11   identically     worded     residual   clause        in    18   U.S.C.    §    924(e)'s

12   definition of "violent felony," (c) the interpretation of § 924(e)

13   by the Supreme Court in Taylor v. United States, 495 U.S. 575

14   (1990), and this Court in Andrello, 9 F.3d 247, with respect to the

15   nature of burglaries, (d) this Court's parallel constructions of

16   § 4B1.2(a)'s concept of "crime of violence" and § 924(e)'s concept

17   of "violent felony" in analyzing non-burglary felonies, and (e) the

18   absence   of   a     relevant   statement      by   the    Sentencing        Commission

19   interpreting § 4B1.2(a)'s residual clause, that the district court

20   did not misinterpret the Guidelines definition.

21                The Guidelines definition of "crime of violence" provided

22   that that term

23                means any offense under federal or state law,
24                punishable by imprisonment for a term exceeding one
25                year, that--

26                             (1) has as an element the use, attempted
27                        use, or threatened use of physical force
28                        against the person of another, or

                                           - 13 -
 1                         (2) is burglary of a dwelling, arson, or
 2                    extortion, involves use of explosives, or
 3                    otherwise involves conduct that presents a
 4                    serious potential risk of physical injury to
 5                    another.

 6   2003 Guidelines § 4B1.2(a) (emphases added); see also Guidelines

 7   § 4B1.2(a) (2007) (same). In determining whether a given crime fits

 8   within the definition of the relevant predicate offenses, we take a

 9   "categorical" approach; that is, we generally look only to the

10   statutory definition of the prior offense of conviction rather than

11   to the underlying facts of that offense.   Taylor, 495 U.S. at 600.



12               Under New York law, "[a] person is guilty of burglary in

13   the third degree when he knowingly enters or remains unlawfully in

14   a building with intent to commit a crime therein."   N.Y. Penal Law

15   § 140.20 (McKinney 1999). Plainly, "building[s]" include structures

16   other than "dwelling[s]"; hence, the New York crime of third-degree

17   burglary does not categorically fit within the first clause of

18   § 4B1.2(a)(2)'s definition of crime of violence, i.e., "burglary of

19   a dwelling."    The question thus is whether third-degree burglary

20   fits within the last clause of the § 4B1.2(a)(2) definition, i.e.,

21   the residual clause encompassing any felony that "otherwise involves

22   conduct that presents a serious potential risk of physical injury to

23   another."

24               Most of our Sister Circuits dealing with state laws

25   defining crimes of burglary have struggled to determine whether

26   interpreting § 4B1.2(a)(2)'s residual "otherwise involves" clause to

27   include burglary of a building that is not a dwelling is foreclosed

28   by that definition's earlier specific mention of "burglary of a

                                      - 14 -
 1   dwelling" (emphasis added).        Some Circuits have answered this

 2   question in the affirmative, concluding that only burglaries of

 3   dwellings     are   to   be   considered    crimes   of   violence   under

 4   § 4B1.2(a)(2).      See, e.g., United States v. Harrison, 58 F.3d 115,

 5   119 (4th Cir. 1995); United States v. Spell, 44 F.3d 936, 938-39

 6   (11th Cir. 1995); United States v. Smith, 10 F.3d 724, 733 (10th

 7   Cir. 1993).     Others have concluded that burglary of a commercial

 8   building involves conduct that presents a serious potential risk of

 9   physical injury to another, and hence burglary of such a non-

10   dwelling is also a crime of violence, falling within the scope of

11   § 4B1.2(a)(2)'s last clause.      See, e.g., United States v. Hascall,

12   76 F.3d 902, 906 (8th Cir.) ("Hascall"), cert. denied, 519 U.S. 948

13   (1996); United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992),

14   cert. denied, 507 U.S. 1024 (1993). Still other Circuits have ruled

15   that whether burglary of a building other than a dwelling should be

16   considered a crime of violence within the meaning of the residual

17   clause of § 4B1.2(a)(2) depends on the circumstances of the crime.

18   See, e.g., United States v. Matthews, 374 F.3d 872, 880 (9th Cir.

19   2004); United States v. Hoults, 240 F.3d 647, 651-52 (7th Cir.

20   2001); United States v. Wilson, 168 F.3d 916, 928-29 (6th Cir. 1999)

21   ("Wilson"); United States v. Jackson, 22 F.3d 583, 585 (5th Cir.

22   1994).

23               The Sentencing Commission, for its part, has not since

24   1989 clarified the intended reach of § 4B1.2's definition of crime

25   of violence.    As the Sixth Circuit noted in Wilson,

26               [t]he Sentencing Commission has considered and
27               failed to adopt various amendments to section 4B1.2
28               over the years which would address the question of

                                        - 15 -
 1                 whether   "burglary  of   a   dwelling"  should   be
 2                 interpreted broadly or narrowly.    For example, in
 3                 December 1992, the Commission considered a proposed
 4                 amendment to the definition of a crime of violence
 5                 which would have amended that section "to include
 6                 all burglaries, and not just burglaries of a
 7                 dwelling." 57 Fed.Reg. 62832, 62856-57 (proposed
 8                 Dec. 31, 1992). This proposed change was rejected.
 9                 Subsequently, in 1993, another proposed amendment
10                 sought to add language to application note 2 which
11                 would have clarified that, "The term 'crime of
12                 violence' includes burglary of a dwelling (including
13                 any adjacent outbuilding considered part of the
14                 dwelling).    It does not include other kinds of
15                 burglary."    58 Fed.Reg.   67522, 67533 (proposed
16                 December 21, 1993). The Commission also failed to
17                 adopt this approach.

18   168 F.3d at 928 (emphases added).                 The Wilson court concluded:

19   "'[w]e fail to see how the Commission's inconsistent path supports

20   a particular view on this issue.'"             Id. (quoting Hascall, 76 F.3d at

21   906).

22                 We note that at one time the Sentencing Commission had

23   taken the position that the Guidelines definition of crime of

24   violence did not include burglaries of non-dwellings.               The original

25   Guidelines defined crime of violence by adopting the definition of

26   that term as it appeared in 18 U.S.C. § 16.              Guidelines § 4B1.2(1)

27   (1987) (renumbered § 4B1.2(a) in 1997, Guidelines Appendix C, Vol.

28   I, Amendment 568, at 526 (eff. Nov. 1, 1997)); see 18 U.S.C. § 16

29   (defining crime of violence to encompass any "felony . . . that, by

30   its nature, involves a substantial risk that physical force against

31   the person or property of another may be used in the course of

32   committing the offense").        The commentary to the original § 4B1.2

33   stated    that    the    Commission   interpreted       the    crime-of-violence

34   definition to mean that "[c]onviction for burglary of a dwelling

35   would    be   covered"   but   that   "conviction      for    burglary   of   other

                                           - 16 -
 1   structures would not be covered."                   Guidelines § 4B1.2 Application

 2   Note 1 (1987) (emphasis added). However, this stated interpretation

 3   was short-lived.

 4                 In 1989, the Commission amended § 4B1.2 "to clarify" the

 5   definition of crime of violence.                    Guidelines Appendix C, Vol. I,

 6   Amendment 268 (eff. Nov. 1, 1989) ("Amendment 268"), at 133.                            The

 7   reference to 18 U.S.C. § 16 was deleted; the clarified Guidelines

 8   definition     used     the   §    4B1.2(a)         wording    quoted     in   the   second

 9   paragraph of this Part II.B. (wording that has remained the same

10   through 2007), i.e., listing, inter alia, burglary of a dwelling and

11   any felony that "otherwise involves conduct that presents a serious

12   potential risk of physical injury to another," Amendment 268, at

13   131-33.     The original commentary was replaced by commentary that

14   continued to note that crimes of violence include burglary of a

15   dwelling; but the statement that "burglary of other structures would

16   not be covered" was omitted.              Id. at 132.         No subsequent version of

17   § 4B1.2 or of its commentary has stated that burglaries of non-

18   dwelling buildings are excluded from the Guidelines definition of

19   crime of violence.

20                 This Court has not previously decided whether the New York

21   crime of third-degree burglary is a "crime of violence" within the

22   definition set out in Guidelines § 4B1.2(a).                      In Andrello, 9 F.3d at

23   249-50, however, we held that attempted third-degree burglary under

24   New York law is a "violent felony" within the meaning of 18 U.S.C.

25   §   924(e),    a   section        that   provides          enhanced     penalties    for   a

26   previously convicted felon who is convicted of possessing a gun in

27   violation     of   18   U.S.C.      §    922(g)      and    who   has    "three   previous

                                                - 17 -
 1   convictions . . . for a violent felony," 18 U.S.C. § 924(e)(1).                The

 2   term "violent felony" as used in § 924(e) includes a felony that

 3                 is burglary, arson, or extortion, involves use of
 4                 explosives, or otherwise involves conduct that
 5                 presents a serious potential risk of physical injury
 6                 to another.

 7   Id. § 924(e)(2)(B)(ii) (emphasis added).               Although that definition

 8   does   not    specify     that   violent     felonies    include   attempts,   we

 9   concluded in Andrello that attempted third-degree burglary under New

10   York law is a violent felony under § 924(e)(2)(B)(ii)'s residual

11   clause.   In reaching this conclusion, we were guided by the Supreme

12   Court's decision in Taylor, 495 U.S. 575, with regard to burglary

13   itself.

14                 As    discussed    in   Taylor,    the   legislative   history   of

15   §   924(e)'s        sentence-enhancing      provisions    repeatedly   revealed

16   Congress's view that burglary is an offense that inherently poses a

17   risk of physical injury to victims, bystanders, and law enforcement

18   personnel.         For example, the Taylor Court noted that testimony at

19   congressional hearings focusing on burglary pointed out that

20                 even though injury is not an element of the offense,
21                 it is a potentially very dangerous offense, because
22                 when you take your very typical residential burglary
23                 or even your professional commercial burglary, there
24                 is a very serious danger to people who might be
25                 inadvertently found on the premises.

26   Taylor, 495 U.S. at 585 (internal quotation marks omitted) (emphases

27   added).      The Court noted that

28                 [t]he fact that an offender enters a building to
29                 commit a crime often creates the possibility of a
30                 violent confrontation between the offender and an
31                 occupant, caretaker, or some other person who comes
32                 to investigate.

33   Taylor, 495 U.S. at 588.          The legislative history

                                             - 18 -
 1              indicate[d] that Congress singled out burglary (as
 2              opposed to other frequently committed property
 3              crimes such as larceny and auto theft) for inclusion
 4              as a predicate offense . . . because of its inherent
 5              potential for harm to persons.

 6   Id. (emphases added).

 7              Consistent with these views of the nature of burglary, the

 8   Supreme Court has most recently ruled that attempted burglary of a

 9   "structure," see Fla. Stat. § 810.02(1) (1993); id. § 777.04(1)

10   (attempts), is a violent felony within the meaning of § 924(e)

11   because it involves conduct that "presents a serious potential risk

12   of injury to another," James v. United States, 127 S. Ct. 1586,

13   1597-98 (2007).    The James Court noted that the

14              main risk of burglary arises not from the simple
15              physical act of wrongfully entering onto another's
16              property, but rather from the possibility of a face-
17              to-face confrontation between the burglar and a
18              third party--whether an occupant, a police officer,
19              or a bystander . . . .

20   Id. at 1594.

21              In Andrello, this Court, noting Taylor's description of

22   Congress's view of burglary as reflected in the legislative history

23   of § 924(e), concluded that attempted third-degree burglary under

24   New York law is a violent felony within the meaning of the residual

25   clause of § 924(e)(2)(B)(ii), i.e., that the attempt involves

26   conduct that presents a serious potential risk of physical injury to

27   another.   See 9 F.3d at 249-50.      The major premise leading to that

28   conclusion was that "burglary itself is a crime that inherently

29   involves a risk of personal injury," id. at 249.

30              Andrello's major premise is instructive for purposes of

31   the   present     case   because     the    residual   clause   of   the


                                        - 19 -
 1   § 924(e)(2)(B)(ii) definition of "violent felony" and the residual

 2   clause of the Guidelines § 4B1.2(a)(2) definition of "crime of

 3   violence" are identical; both definitions end with the inclusion of

 4   any felony that "otherwise involves conduct that presents a serious

 5   potential   risk      of   physical   injury    to    another."      Indeed,    the

 6   Guidelines § 4B1.2 "'definition of crime of violence'" was "'derived

 7   from 18 U.S.C. § 924(e).'"        United States v. Palmer, 68 F.3d 52, 55

 8   (2d Cir. 1995) ("Palmer") (quoting Amendment 268, at 133).

 9               Given the identical language of the two definitions'

10   residual clauses, this Court, in determining whether a defendant's

11   prior non-burglary felonies were violent felonies within the meaning

12   of § 924(e), has been guided by cases interpreting Guidelines

13   § 4B1.2(a)(2).        See United States v. Jackson, 301 F.3d 59, 62 (2d

14   Cir. 2002) ("We . . . look to cases construing U.S.S.G. § 4B1.2

15   (career offender), which defines a 'crime of violence' in wording

16   substantially identical to the definition of 'violent felony' under

17   § 924(e)."), cert. denied, 539 U.S. 952 (2003).             And conversely, in

18   determining whether a defendant's prior non-burglary felonies were

19   crimes of violence within the meaning of Guidelines § 4B1.2(a), we

20   have been guided by cases interpreting § 924(e). See, e.g., Palmer,

21   68   F.3d   at   55    ("The   term   'violent       felony'"   is   "defined   by

22   § 924(e)(2)(B) in terms that are substantially identical to the

23   definition of 'crime of violence' in USSG § 4B1.2(1).").

24               Given the substantial similarity between the . . .
25               definition of "violent felony[]" [in] 18 U.S.C.
26               § 924(e)(2)(B), and the Sentencing Commission's
27               definition   of   "crime   of  violence,"   U.S.S.G.
28               § 4B1.2(1), authority interpreting one phrase
29               frequently is found to be persuasive in interpreting
30               the other phrase.

                                            - 20 -
 1   Palmer, 68 F.3d at 55 (quoting United States v. Winter, 22 F.3d 15,

 2   18 n.3 (1st Cir. 1994)).

 3                Such       analytical    cross-referencing        between    Guidelines

 4   § 4B1.2(a)(2) and 18 U.S.C. § 924(e)(2)(B)(ii) rests not only on the

 5   fact that the residual clauses of the two provisions are identical,

 6   but   also   on     the    recognition    that     the   inquiry   into   whether    a

 7   particular type of conduct has the potential to present a serious

 8   risk of physical injury to another person focuses on the nature of

 9   the conduct.       The inherent nature of the conduct is not dependent on

10   the location of a provision prescribing punishment for that conduct.

11   And where the language of two such provisions is identical, we

12   cannot conclude that those provisions have disparate applicability

13   to a type of conduct that inherently involves the risk specified in

14   both provisions.

15                Having reasoned in Andrello that attempted third-degree

16   burglary     of    "a     building"   falls    within    the   residual   clause    of

17   18 U.S.C. § 924(e)(2)(B)(ii) because third-degree "burglary itself

18   is a crime that inherently involves a risk of personal injury,"

19   9 F.3d at 249, we can only conclude that third-degree burglary

20   inherently        poses     that   same   risk     within   the    meaning   of    the

21   identically worded residual clause of Guidelines § 4B1.2(a)(2).

22                Accordingly, we conclude that in ruling that Brown's 1993

23   third-degree burglary in violation of New York law was a crime of

24   violence     within       the   meaning   of   the   last   clause   of   Guidelines

25   § 4B1.2(a)(2), and thus that his record included two crimes of

26   violence, making his base offense level 24, the district court did

27   not misinterpret the Guidelines.

                                               - 21 -
 1   C.    The Enhancement for Obliterated Serial Numbers

 2                Brown's contention that the obliterated-serial-numbers

 3   enhancement should not have been applied to him because he did not

 4   know   the   numbers     were   obliterated     does    not   warrant   extended

 5   discussion.        The Guidelines provided for a two-level enhancement

 6   "[i]f any firearm . . . had an altered or obliterated serial

 7   number."     2003 Guidelines § 2K2.1(b)(4).       The commentary to § 2K2.1

 8   provided that the enhancement applied "whether or not the defendant

 9   knew or had reason to believe that the firearm . . . had an altered

10   or obliterated serial number."         2003 Guidelines § 2K2.1 Application

11   Note 19.     Thus, in United States v. Williams, 49 F.3d 92 (2d Cir.

12   1995), we upheld the strict-liability nature of this provision,

13   stating that while "18 U.S.C. § 922(k), which criminalizes the

14   possession of a firearm with an obliterated serial number, contains

15   a scienter requirement, . . . Congress has not required . . . that

16   the    §   2K2.1(b)(4)    sentencing      enhancement    contain   a    scienter

17   requirement." Id. at 93. We noted that the strict-liability nature

18   of the enhancement "reasonably imposes the burden upon a felon who

19   illegally possesses a firearm to ensure that the serial number is

20   not obliterated," and such an obligation does not violate due

21   process.     Id.

22                To the extent that Brown may also be arguing that the

23   § 2K2.1(b)(4) enhancement could not be applied to him because the

24   fact that serial numbers were obliterated was not proven by the

25   government beyond a reasonable doubt to a jury (see Brown brief on

26   appeal at 17-18), his argument fares no better. "Judicial authority

27   to find facts relevant to sentencing by a preponderance of the

                                            - 22 -
 1   evidence survives Booker."           United States v. Garcia, 413 F.3d 201,

 2   220 n.15 (2d Cir. 2005). Here, the PSR stated unequivocally that on

 3   at least two of the guns sold by Brown, the serial numbers were

 4   obliterated; and Brown made no objection to that statement.                   His

 5   argument to the district court was that he "under oath stated he was

 6   not aware of the defaced weapon."                  (2004 S.Tr. at 3 (emphasis

 7   added).)

 8                Finally, Brown points out that at his original sentencing

 9   hearing, the district court stated that while "the government has

10   the     right"    to   seek    the    Guidelines        obliterated-serial-number

11   enhancement       despite     not    pursuing     the   criminal   charges   under

12   18 U.S.C. § 922(k), "it is not the right thing to do" (2004 S.Tr. at

13   20).    Brown argues that the application of that enhancement to him

14   on remand, after the Guidelines were declared advisory, was thus

15   unreasonable.      We reject this argument, given that the purpose of a

16   Crosby remand is to permit the district court to determine whether

17   to impose a different sentence knowing that the Guidelines--which

18   had given the government the right to seek that enhancement--are not

19   mandatory.       On the remand in this case, the court acknowledged the

20   advisory nature of the Guidelines, and it obviously concluded that

21   the enhancement was appropriate even under the advisory Guidelines.

22   We see no error or abuse of discretion in that conclusion.



23   D.    Other Contentions

24                Brown's    other       challenges     to   his   sentence,   alleging

25   procedural and substantive unreasonableness, need not detain us

26   long.

                                              - 23 -
 1        1.    The Alleged Failure To Consider the Sentencing Factors

 2                Brown's contention that the district court failed to

 3   consider    the    §    3553(a)   sentencing         factors    is    meritless.     As

 4   discussed in Part II.A. above, we have not required a sentencing

 5   judge to engage in robotic incantations either to demonstrate that

 6   he has discharged his duty to "consider" the required factors or to

 7   "address every argument relating to those factors that the defendant

 8   advanced."     Fernandez, 443 F.3d at 30.

 9                In the present case, the record, including those segments

10   quoted in Part I.C. above, reveals that the court was aware both of

11   the statutory requirements and of the recommended sentencing range

12   and that it considered the required factors.                   Nothing in the record

13   indicates that the court misunderstood the sentencing factors or

14   their relevance.



15        2.    The Alleged Unreasonableness of Imposing the Same Sentence

16                Brown also contends that the district court's resentencing

17   him to the same 84-month sentence it had imposed originally was

18   substantively      unreasonable       on     the     ground    that    the   judge   had

19   "specifically stated at the initial sentencing that he would have

20   sentenced [Brown] to 70 months if he had the choice" (Brown brief on

21   appeal at 10).         We reject this contention because the court did not

22   make that statement.

23                What the district court said at the original sentencing

24   was that it would have imposed a shorter prison term if Brown had

25   not had such an extensive criminal record:

26                The   problem     that    I      have    with     the    defendant's

                                                - 24 -
 1              position is that he is in a criminal category
 2              history four.   It is not that this is his first
 3              contact with the criminal justice system.

 4                   If he were not a criminal category history
 5              four, notwithstanding Sentencing Guidelines as
 6              related by the government, I would sentence him to
 7              70 months.

 8   (2004 S.Tr. at 20-21.)    Plainly the court did not state that it

 9   would have imposed the shorter sentence if only the Guidelines were

10   not mandatory; to the contrary, the court said that if Brown had not

11   had such an extensive criminal record, it "would" have sentenced him

12   more leniently "notwithstanding [the] Sentencing Guidelines."

13              Nothing about Brown's criminal record changed between the

14   original sentencing and the sentencing on remand.   And the court's

15   decisions in sentencing and resentencing Brown reveal that the court

16   took seriously its obligation to consider, inter alia, "the history

17   and characteristics of the defendant," 18 U.S.C. § 3553(a)(1).




18   E.   Correction of the Judgment

19              Finally, we note nostra sponte that the judgment from

20   which Brown has appealed does not accurately describe the counts of

21   conviction.   Although it initially states--accurately--that Brown

22   "pleaded guilty to count(s) one through eight of the indictment,"

23   Judgment dated September 23, 2005, at 1, it lists his offense of

24   "UNLAWFUL FIREARMS DEALING" as count "2," instead of count 1; and it

25   lists "POSSESSION OF A FIREARM" as count "3," rather than counts 2-

26   8, id. On remand, an amended judgment should be entered, accurately

27   reflecting the counts of conviction.


                                       - 25 -
1                               CONCLUSION



2             We have considered all of Brown's arguments on this appeal

3   and have found them to be without merit.   The sentence is affirmed;

4   the matter is remanded for clerical correction of the judgment.




                                   - 26 -
