                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-1996

United States v. Bennett
Precedential or Non-Precedential:

Docket 95-2079




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"United States v. Bennett" (1996). 1996 Decisions. Paper 29.
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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                             NO. 95-2079


                        UNITED STATES OF AMERICA

                                    v.

                          ROY TERRY BENNETT,
                            aka TERRY KING

                                           Roy Terry Bennett,
                                           Appellant


         On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
               (D.C. Crim. Action No. 95-cr-00353)


                        Argued October 24, 1996

         BEFORE:    STAPLETON and NYGAARD, Circuit Judges,
                     and MAZZONE, District Judge*

                   (Opinion Filed   November 19, l996)



                          Elaine DeMasse   (Argued)
                          Assistant Defender
                          Senior Appellate Counsel

                          Robert Epstein   (Argued)
                          Maureen Kearney Rowley
                          Chief Federal Defender
                          Defender Association of
                           Philadelphia
                          Federal Court Division
                          437 Chestnut Street, Suite 800
                          Lafayette Building
                          Philadelphia, PA 19106

                                    Attorneys for Appellant




* Honorable A. David Mazzone, United States District Judge for
  the District of Massachusetts, sitting by designation.
                        Michael R. Stiles
                        United States Attorney
                        Walter S. Batty, Jr.
                        Assistant United States Attorney
                        Chief of Appeals

                         Thomas H. Suddath, Jr.
                        Howard L. Perzan   (Argued)
                        Assistant United States Attorney
                        615 Chestnut Street
                        Suite 1250
                        Philadelphia, PA 19106-4476

                               Attorneys for Appellee


                       OPINION OF THE COURT




STAPLETON, Circuit Judge:


         Roy Terry Bennett appeals from a sentence imposed by
the district court. He contends that the district court erred in
sentencing him as an armed career criminal under 18 U.S.C. §
924(e) and in assuming that the cocaine base involved in his
offense was crack cocaine. Bennett also claims that the district
court improperly delegated to the probation officer matters
concerning payment of the fine imposed as part of his sentence.
We conclude that the record is sufficient to confirm Bennett's
eligibility for sentencing as an armed career criminal but we
remand to the district court for further proceedings to determine
whether the cocaine base involved here was crack and to establish
the fine repayment schedule.
                                I.
         Bennett pled guilty to three federal firearms charges
and one federal drug charge in September 1995. The three
firearms violations were for making false statements in
connection with acquisition of a firearm, 18 U.S.C. § 922(a)(6),
possession of a firearm by a convicted felon, 18 U.S.C. §
922(g)(1), and possession of a firearm with an obliterated serial
number, 18 U.S.C. § 922(k). Bennett also pled guilty to
distributing cocaine, a violation of 21 U.S.C. § 841(a)(1).
         The government moved to have Bennett sentenced for his
§ 922(g) firearms violation under the Armed Career Criminal Act.
18 U.S.C. § 924(e) [hereinafter "ACCA" or "§ 924(e)"]. Under the
ACCA, a person who violates § 922(g) and has been previously
convicted of three "violent felonies" or "serious drug offenses"
must be sentenced to a mandatory minimum of fifteen years
imprisonment and fined up to $25,000. Id. Prior to his present
federal convictions, Bennett had been convicted three times of
burglary in Pennsylvania.
         In determining Bennett's sentence for the distribution
of cocaine conviction, the court adopted the Presentence Report's
application of the sentencing guideline for distribution of crack
cocaine. U.S.S.G. § 2D1.1. Applying the relevant guidelines for
grouping offenses and for determining the offense level when
there are multiple counts, and factoring in Bennett's acceptance
of responsibility for his criminal acts, the court found that the
applicable guideline range in the absence of the ACCA would have
been 135 to 168 months. Because this was less than the mandatory
minimum required by the ACCA, and because it determined that the
ACCA was applicable, the district court concluded that the
effective guideline range was 180 months. As a result of
Bennett's cooperation with the government in other criminal
investigations, the government requested a moderate downward
departure from the applicable guideline range. The court granted
this request and sentenced Bennett to 130 months imprisonment,
followed by sixty months of supervised release, and imposed a
fine of $2,500.
         Bennett presents four issues for review. We will
address each of them in turn.

                               II.
         Bennett's first argument on appeal is that the district
court erred in treating his three Pennsylvania burglary
convictions as predicate offenses within the scope of § 924(e).
Specifically, Bennett contends that Pennsylvania's burglary
statute is broader than the generic definition of burglary
Congress incorporated into § 924(e). If Pennsylvania's burglary
statute is broader than generic burglary, the government had the
burden of proving that, for each of Bennett's three burglary
convictions, the trier of fact necessarily found all of the
elements of generic burglary. See United States v. Taylor, 495
U.S. 575, 602 (1990). Bennett contends that the government
failed to meet this burden.
         The government responds that Pennsylvania's burglary
statute is generic, as a previous panel of this court has stated.
See United States v. Watkins, 54 F.3d 163, 168 n.2 (3d Cir.
1995). Therefore, the government continues, the government
satisfied its burden of proving Bennett's eligibility for ACCA
sentence enhancement merely by showing that Bennett had been
convicted of Pennsylvania burglary on three prior occasions.
Alternatively, the government argues that the record is
sufficient to show that the trier of fact necessarily found all
of the elements of generic burglary in convicting Bennett for
each of his three burglary offenses.
         The question of whether Pennsylvania's burglary statute
is "generic" arises because we must only apply the ACCA's
mandatory minimum sentence to individuals whom Congress
considered to be armed career criminals. Congress, naturally,
identified armed career criminals by their prior conduct.
Section 924(e) states that the mandatory minimum must be applied
to individuals who violate § 922(g) and who also have three
previous convictions "for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another." 18 U.S.C. § 924(e)(1). Because different
jurisdictions have different views as to what constitutes a
"violent felony" or a "serious drug offense," Congress had to
define these terms for purposes of § 924(e). As relevant here,
Congress provided that,
                        the term "violent felony" means any
                    crime punishable by imprisonment for a term
                    exceeding one year . . . 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 . . . .

18 U.S.C. § 924(e)(2)(B).

         In Taylor, the Supreme Court construed § 924(e) and
concluded that, within the context of the ACCA, "burglary" means
generic burglary. 495 U.S. at 598-99. Looking to the Model
Penal Code and the definition of burglary in use in many states,
the Court concluded that
                    a person has been convicted of burglary for
                    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.

Id. at 599.
         Where a state defines burglary in a manner that
"substantially corresponds" to Congress's generic definition of
burglary, any conviction under that state's burglary statute can
be used as a predicate offense for § 924(e) sentence enhancement.
Id. at 602. Moreover, where a state defines burglary more
narrowly than this generic view -- for example, if the unlawful
entry must be at night, or if the intent must be an intent to
commit not just any crime but to commit a felony -- then any
conviction may still be used as a predicate offense, since the
defendant's conviction necessarily implies that the defendant was
found guilty of all the elements of generic burglary. See id. at
599.
         However, some states define burglary more broadly than
Congress's generic definition -- for example, "by eliminating the
requirement that the entry be unlawful, or by including places,
such as automobiles and vending machines, other than buildings."
Id.; see also id. (noting that Missouri burglary statute
including breaking and entering of booth, tent, boat, vessel, or
railroad car was broader than generic burglary). A conviction
under one of these broader burglary statutes cannot automatically
serve as a predicate offense for purposes of § 924(e) because the
conduct leading to the conviction, while constituting burglary
under the state's broad definition of burglary, may not have
constituted burglary as Congress understood the term. Therefore,
when a prior burglary conviction has occurred under a definition
of burglary broader than Congress's generic definition of
burglary, that conviction may only serve as a predicate offense
for § 924(e) sentence enhancement if the court concludes that the
trier of fact actually found all of the elements of generic
burglary in convicting the defendant. See id. at 602.
         All three of Bennett's prior convictions arose under
Pennsylvania's single burglary statute. 18 Pa. Cons. Stat. Ann.
§ 3502(a) [hereinafter "§ 3502"] defines the offense of burglary
as follows:
                    A person is guilty of burglary if he enters a
                    building or occupied structure, or separately
                    secured or occupied portion thereof, with
                    intent to commit a crime therein, unless the
                    premises are at the time open to the public
                    or the actor is licensed or privileged to
                    enter.

"Occupied structure" is separately defined as:

                    Any structure, vehicle or place adapted for
                    overnight accommodation of persons, or for
                    carrying on business therein, whether or not
                    a person is actually present.

18 Pa. Cons. Stat. Ann. § 3501.

         We find that Pennsylvania's broad definition of
"occupied structure" makes Pennsylvania's burglary statute
broader than Congress's generic view of burglary. Pennsylvania's
statute is broader than generic burglary in two ways. First,
Pennsylvania includes within its definition of occupied structure
any vehicle adapted for overnight accommodations or for business.
18 Pa. Cons. Stat. Ann. § 3501. In Pennsylvania, therefore, one
may be guilty of burglary for unlawfully entering an automobile
or other vehicle. As the Pennsylvania Supreme Court recently
stated, "The inclusion of 'any vehicle' in the statute
demonstrates that the legislature did not intend to limit this
statute to buildings." Commonwealth v. Hagan, 654 A.2d 541, 545
(Pa. 1995). According to the U.S. Supreme Court in Taylor,
however, a state burglary statute "including places, such as
automobiles and vending machines, other than buildings," is a
statute that defines burglary more broadly than Congress's
generic definition. 495 U.S. at 599; see also United States v.
Barney, 955 F.2d 635, 639 (10th Cir. 1992); United States v.
Payton, 918 F.2d 54, 55 (8th Cir. 1990); United States v. Lane,
909 F.2d 895, 902 (6th Cir. 1990).
         Second, Pennsylvania includes as burglary unlawful
entry of any place adapted for "carrying on business." 18 Pa.
Cons. Stat. Ann. § 3501. "By defining 'occupied structure' to
include 'places adapted for carrying on business,' the
legislature extended to businesses, which are not always confined
to structures made up of walls and a roof, the same protection
from intrusion it afforded to dwellings, which traditionally are
within buildings." Commonwealth v. Evans, 574 A.2d 1051, 1054
(Pa. Super. 1990); see also Hagan, 654 A.2d at 541 (affirming
conviction for Pennsylvania burglary for unlawful entry of
fenced-off outdoor storage area). Given Pennsylvania's broad
definition, it would be possible for a person to be convicted of
burglary for unlawful entry into a yard where commercial activity
occurs. That person would not be guilty of "burglary" within the
meaning of § 924(e), however.
         In arguing that Pennsylvania's burglary statute is
consistent with generic burglary, the government relies on this
court's opinion in Watkins. 54 F.3d at 163. It is true that in
Watkins, in a footnote, we stated that the same burglary statute
involved here "defines burglary in a manner consistent with,
though somewhat more narrowly than, the generic 'burglary' that
Congress intended in § 924(e)(2)(B)(ii)." Id. at 168 n.2. We
are not bound by this statement because, as both parties here
agree, it was dicta. The single issue before the court in
Watkins was whether to establish, as a prerequisite for imposing
§ 924(e) sentence enhancement, that the court be presented with
certified copies of the judgment of conviction for each of the
defendant's prior convictions. See id. at 166. We held that
certified copies of judgments are not necessary and that the
evidence before the sentencing court was adequate to confirm the
defendant's eligibility for sentencing under § 924(e). See id.at 168.   In
reaching our conclusion in Watkins, we noted that the
defendant did not contend either that Pennsylvania's burglary
statute was broader than generic burglary or that the trier of
fact had failed to find all of the elements of generic burglary
for his prior convictions. See id. Neither party had briefed or
argued the issue of whether Pennsylvania's burglary statute is
generic. A court's statement concerning an issue not raised on
appeal is dicta. See Pansy v. Borough of Stroudsburg, 23 F.3d
772, 778 n.4 (3d Cir. 1994). Therefore, our footnote in Watkinsis not
binding precedent.
         Since we have concluded that Pennsylvania's burglary
statute is broader than § 924(e)'s generic definition of
burglary, Bennett's enhanced sentence may only be affirmed if all
of the elements of generic burglary were necessarily found for
each of his three burglary convictions. See Taylor, 495 U.S. at
602. In this situation, we may look, for each prior conviction,
to the indictment or information and jury instructions, see id.,
and the certified record of conviction, see U.S. v. Preston, 910
F.2d 81, 85 (3d Cir. 1990).
         Here the government did not introduce the charging
instruments, jury instructions, or certified records of
conviction for any of Bennett's burglary convictions. However,
Bennett's district court counsel volunteered sufficient
information concerning the conduct leading to Bennett's burglary
convictions to satisfy us that the trier of fact necessarily
found all of the elements of generic burglary for each of those
prior convictions. Details of those convictions were provided by
defense counsel in a letter to Bennett's probation officer, seeApp. at
24a, a letter to the sentencing judge, see id. at 25a-
26a, and during the sentencing hearing, see id. at 34a, 56a.
Defense counsel explained that Bennett's 1982 conviction involved
removing a window from a Fotomat booth and stealing film, the
1983 conviction involved burglary of a variety store, and the
1990 conviction involved throwing a brick through a bakery
window. See id. at 26a, 34a, 56a.
         Though Bennett asserts it is the government's burden to
convince the court that his prior convictions were predicate
offenses for purposes of § 924(e), nothing in Taylor or in any of
our own circuit precedents prevents a court from relying on
information having its source in the defense rather than in the
prosecution. We find that, on the record before us, including
especially the admissions of Bennett's district court counsel,
Bennett's convictions necessarily included all of the elements of
generic burglary. Therefore, we affirm the district court's
conclusion that Bennett is eligible for sentence enhancement as
an armed career criminal under § 924(e).

                               III.
         Bennett's brief argues that his 1990 conviction could
not be used to qualify him for sentence enhancement under §
924(e) because Bennett failed to appear for sentencing on that
conviction. However, as Bennett conceded just prior to oral
argument, our recent decision in Jefferson, 88 F.3d at 240,
settles this issue against him. In Jefferson, we concluded that
"the choice-of-law clause of section 921(a)(20) requires that the
law of the jurisdiction in which the prior proceeding was held
determine whether an offense constitutes a 'previous
conviction.'" Id. at 242. Since the defendant in Jefferson had
been adjudicated but not sentenced for a Pennsylvania offense, we
then had to determine whether Pennsylvania requires sentencing in
order to count a prior "conviction" for purposes of sentence
enhancement. We found:
                    The law of Pennsylvania on this issue, then,
                    appears settled: an adjudication of guilt,
                    even though unaccompanied by sentencing, is a
                    conviction for the purpose of enhanced
                    sentencing so long as the adjudication was
                    made before the commission of the current
                    offense.

Id. at 243.
         Though Bennett has asked us to reconsider Jefferson, we
are bound by our prior decision. The adjudication of Bennett's
final Pennsylvania burglary conviction occurred on October 10,
1990. The commission of the federal firearms offenses occurred
between September 8, 1992 and January 6, 1994. Therefore,
Bennett's 1990 burglary conviction is a prior "conviction" for
purposes of § 924(e) sentence enhancement.

                               IV.
         The government concedes that remand is required on the
final two issues pressed by Bennett.
         In sentencing Bennett for his drug offense, the
district court applied the sentencing guideline for "cocaine
base," U.S.S.G. § 2D1.1, and the mandatory minimum sentence of
five years imprisonment in the statute penalizing distribution of
"cocaine base," 21 U.S.C. § 841(b)(1)(B)(iii). Bennett argues
that application of this sentencing guideline and this statutory
provision was error because § 2D1.1 defines "cocaine base" as
"crack," and the government failed to prove that the cocaine base
involved here was crack. The government does not oppose remand
for a further sentencing hearing at which both sides will be
permitted to present evidence on whether the cocaine base
involved in Bennett's offense was crack cocaine. We will remand
for the district court to conduct such proceedings.
         Finally, both parties agree that the district court
erred by delegating to the probation officer the task of
establishing the installment schedule by which Bennett will pay
the fine imposed as part of his sentence. We held that such a
delegation is improper in United States v. Graham, 72 F.3d 352,
356-57 (3d Cir. 1995), a case decided after Bennett was
sentenced. As Graham directs, and as the parties agree,
Bennett's case must be remanded for the district court to set the
fine repayment schedule.

                                V.
         Thus, while we agree with the district court that
§ 924(e) is applicable here, we will reverse the judgment of
sentence and remand this case to the district court for
resentencing proceedings consistent with this opinion.

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