                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-1995

United States v McClenton
Precedential or Non-Precedential:

Docket 94-1632




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                             No. 94-1632
                             ___________

          UNITED STATES OF AMERICA

                                  Appellant

                           vs.

          MICHAEL MCCLENTON
                           ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 (D.C. Crim. No. 93-cr-00221-2)
                          ___________

           Submitted under Third Circuit LAR 34.1(a)
                         March 30, 1995
      Before: MANSMANN, COWEN and LEWIS, Circuit Judges.

                    (Filed     April 14, 1995)
                             ___________


Michael R. Stiles, Esquire
Walter S. Batty, Jr., Esquire
Robert A. Zauzmer, Esquire
Maureen Barden, Esquire
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

  COUNSEL FOR APPELLANT

Louis T. Savino, Jr., Esquire
Louis T. Savino & Associates
15th and JFK Boulevard
Two Penn Center, Suite 1516
Philadelphia, PA 19106

  COUNSEL FOR APPELLEE
                             ___________

                         OPINION OF THE COURT
                              __________
MANSMANN,   Circuit Judge.

            The government asks us to decide whether a hotel guest

room constitutes a "dwelling," and therefore, whether a burglary

of a hotel guest room may be considered a crime of violence for

purposes of applying the career offender provision of the

Sentencing Guidelines.    Because the district court ruled that

burglary of a hotel room was not the equivalent of burglary of a

dwelling, McClenton was not sentenced as a career offender.

            We hold that a hotel guest room, the sole purpose of

which is to provide temporary lodging and a place to sleep,

constitutes a dwelling within the meaning of Section 4B1.2 of the

Sentencing Guidelines.    Accordingly, we will vacate the district

court's judgment of sentence and remand this matter for

resentencing in accordance with our interpretation of the

applicable Sentencing Guidelines.



                                 I.

            On August 5, 1993, Michael McClenton was convicted of

conspiracy to commit bank robbery in violation of 18 U.S.C. §

371; bank robbery in violation of 18 U.S.C. § 2113(a); and armed

bank robbery in violation of 18 U.S.C. § 2113(d).    On June 13,

1994, a sentencing hearing was held.   The government asserted

that McClenton should be sentenced as a career offender pursuant

to Section 4B1.1 of the Guidelines because the presentence

investigation revealed that McClenton had previously been

convicted of felony burglary on three separate prior occasions.
These three occasions involved the burglary or attempted burglary

of hotel guest rooms.   (PSI ¶ 34, 35, 37).

          At the sentencing hearing, McClenton did not dispute

that the factual summaries of these prior crimes, as set forth in

the presentence report, were accurate.1   Rather, McClenton

asserted that these were not burglaries of dwellings.    Agreeing

with McClenton, the district court ruled that the burglary of a

hotel room is not the equivalent of the burglary of a dwelling,

and therefore, Section 4B1.1's career offender provision did not

apply.   The court assigned McClenton a criminal history category

1
.         The presentence report states the following:

          --   On February 12, 1985, the defendant was seen with
               another person knocking on doors on the fifth
               floor of the Holiday Inn in King of Prussia, PA.
               They were then seen by a security officer on the
               fourth floor, and they fled. When apprehended
               outside the hotel, they were found to have several
               "Do Not Disturb" signs in their possession. On
               July 15, 1985, the defendant pled guilty to a
               burglary charge, and was sentenced to a prison
               term (PSI ¶ 34).

          --   On September 27, 1986, the defendant entered a
               guest room at the Adam's Mark Hotel in
               Philadelphia, and stole $100 from the room. He
               forcibly pushed the complaining witness aside as
               he left the room and escaped down the fire escape.
               On December 2, 1987, the defendant pled guilty to
               a burglary charge as a result of this conduct and
               was sentenced to prison (PSI ¶ 35).

          --   On March 15, 1987, the defendant and another
               person stole a credit card from a woman's
               pocketbook in a guest room of the Dunfey City Line
               Hotel in Philadelphia. On October 16, 1987, he
               pled guilty to, among other charges, burglary and
               was sentenced to a concurrent prison term (PSI ¶
               37).
of V.   The combination of an offense level of 27 and a criminal

history category of V produced a Guidelines range of 120 to 150

months.2   The court imposed a sentence of 144 months of

imprisonment on Counts One through Three, to run concurrently.
2
 .        The district court, applying the Sentencing Guidelines
(Guidelines manual incorporating amendments effective November 1,
1992), determined that McClenton's base offense level for the
offense of bank robbery and armed bank robbery was 20, under
Section 2B3.1. The court determined that a two level enhancement
was warranted under Section 2B3.1(B)(1), which directs that two
levels be added to the base offense level if property from a
financial institution was taken. In addition, the court awarded
a two level enhancement under Section 2B3.1(B)(6)(C) because the
amount of loss, which McClenton did not dispute, exceeded
$50,000. The government also sought an enhancement pursuant to
Section 2B3.1(B)(4)(B), which provides for a two level increase
if any person was physically restrained to facilitate commission
of the offense or to facilitate escape. Because the district
court found that the evidence established that the bank employees
were not forcibly restrained, it declined to enhance under this
provision.
           The government also sought a two level enhancement for
obstruction of justice under Section 3C1.1 on the ground that
McClenton perjured himself. The district court refused to
enhance by two levels under this section.

          In addition to these enhancements, the government
sought and the presentence report recommended a five level
enhancement pursuant to section 2B3.1(B)(2)(C) of the Guidelines
for brandishing, displaying or possessing a firearm. McClenton
objected to the five level enhancement on the ground that he was
acquitted on Count Four of the Indictment (possession of a
firearm during and in relation to a crime of violence) and on the
ground that the evidence was unclear as to which of the
defendants, McClenton or his co-defendant Hawkins, actually
possessed or brandished the firearm. Keeping in mind that the
burden of proof at sentencing is a preponderance of the evidence,
the district court found that there was insufficient evidence to
establish that McClenton or his codefendant brandished, displayed
or possessed a firearm. However, pursuant to Section
2B3.1(B)(2)(E), the district court found there was sufficient
evidence to establish that a dangerous weapon was brandished,
displayed or possessed by one of the two defendants, thus
enhancing McClenton's base offense level by three. This brought
McClenton's offense level to 27.
The district court imposed a term of five years of supervised

release, restitution in the amount of $170,750 and a special

assessment of $150.00.   If McClenton had been sentenced as a

career offender, he would have received a criminal history

category of VI, an offense level of 34 and a corresponding

Guidelines range of 262 to 327 months.

          On May 23, 1994, McClenton filed his notice of appeal

from the district court's judgment of conviction.3    On June 13,

1994, the government filed this cross-appeal challenging the

district court's determination not to sentence McClenton as a

career offender.

          The district court had jurisdiction pursuant to 18

U.S.C. § 3231.   We have jurisdiction to review McClenton's

sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(2).

We exercise plenary review over the district court's application

and interpretation of the Sentencing Guidelines.     United States

v. Collado, 975 F.2d 985, 990 (3d Cir. 1992); United States v.

Murillo, 933 F.2d 195, 197 (3d Cir. 1991).



                               II.

          The starting point for our analysis is Section 4B1.1 of

the Sentencing Guidelines.   Section 4B1.1 provides that a

defendant is a career offender if (1) the defendant was at least

eighteen years old at the time of the instant offense, (2) the


3
 .        On April 14, 1995, we affirmed McClenton's judgment of
conviction by Memorandum Opinion. See No. 94-1561.
instant offense of conviction is a felony that is either a crime

of violence or a controlled substance offense, and (3) the

defendant has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.    Here it is

undisputed that McClenton was at least eighteen years of age at

the time of the bank robbery.    Likewise, it is undisputed that

the present offense, armed bank robbery, is a crime of violence.

The sole issue in dispute is whether McClenton's three prior

convictions for burglary qualify as "crimes of violence" within

the meaning of Section 4B1.1.

          Section 4B1.2(1) defines the term "crime of violence"

and provides:
          The term crime of violence means any offense
          under federal or state law 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 of a dwelling,
               . . ., or otherwise involves
               conduct that presents a serious
               potential risk of physical injury
               to another.


Guidelines § 4B1.2(1)4 (emphasis added).   The district court,

interpreting this provision, concluded that under the facts of

4
 .        The application notes to this section restate this
definition and clarify it as follows:

          §4B1.2.   Definitions of Terms Used in Section 4B.1

                             *    *   *
this case, the burglaries of the hotel rooms were not the

equivalent of burglaries of dwellings and, thus, were not crimes

of violence.5



                                III.

          A "dwelling" is a "building or portion thereof, a tent,

a mobile home, a vehicle or other enclosed space which is used or

intended for use as a human habitation, home or residence."



(..continued)
          2.   "Crime of violence" includes murder,
          manslaughter, kidnapping, aggravated assault,
          forcible sex offenses, robbery, arson,
          extortion, extortionate extension of credit,
          and burglary of a dwelling. Other offenses
          are included where (A) that offense has as an
          element the use, attempted use, or threatened
          use of physical force against the person of
          another, or (B) the conduct set forth (i.e.,
          expressly charged) in the count of which the
          defendant was convicted involved use of
          explosives (including any explosive material
          or destructive device) or, by its nature,
          presented a serious potential risk of
          physical injury to another. Under this
          section, the conduct of which the defendant
          was convicted is the focus of inquiry.

                            *    *     *

Application Note 2 to Guidelines § 4B1.2 (emphasis added).
5
 .        The district court opined, "[I]n reaching this
conclusion I can tell you that I'm motivated in part, at least,
by the rather severe penalty for my finding that they are crimes
of violence." (App. 2419). While understandable, this
circumstance, i.e., a harsh sentence, cannot serve as a basis for
a court to refuse to apply the Guidelines as written. United
States v. McAllister, 927 F.2d 136, 139 n.5 (3d Cir.), cert.
denied, 112 S. Ct. 111 (1991).
Blacks Law Dictionary 505 (6th ed. 1990) (emphasis added).6

Adopting this definition, the Court of Appeals for the Eighth

Circuit held that the structures used as shelters for weekend

fishing retreats fell within Section 4B1.2(1) and could be

considered dwellings.   United States v. Graham, 982 F.2d 315 (8th

Cir. 1992) (citing Blacks Law Dictionary).    A hotel guest room is

intended for use as human habitation, albeit, in most

circumstances, on a transient or temporary basis.    Thus, a hotel

guest room falls easily within this definition.

          In United States v. Sherman, 928 F.2d 324 (9th Cir.

1991), the Court of Appeals for the Ninth Circuit was asked to

decide whether the burglary of the manager's office of a hotel

was the equivalent of burglary of a dwelling.    In a footnote, the

court found that it was unnecessary to the resolution of that

case to decide whether a burglary that takes place in a hotel

office constituted a non-dwelling burglary.     However, the court

observed, "[B]ecause hotels are in the business of housing

overnight guests many of the reasons that make traditional

dwelling burglaries dangerous seem likewise present here."    928

F.2d at 326 n.2.

          "The reasons that make traditional dwelling burglaries

dangerous," and worthy of serious treatment at sentencing, have

their origins in the common law.   At common law, burglary was

6
 .        A dwelling has also been defined as ". . . the
apartment, room in a hotel, building or cluster of buildings in
which a man with his family resides, or any permanent building in
which a man may dwell and lie." 13 Am. Jur., Burglary Section 3
(1964).
considered to be an offense against habitation rather than

against property.   The peace of mind and security of the

residents was sought to be protected, rather than the property.

See 85 A.L.R. 428 (1933).    Obviously, whether one burglarizes a

private home or a hotel room, there is a much greater possibility

of confronting the resident and a substantial risk that force

will be used and that someone will be injured, than if one

burglarized a building that was not intended for use as

habitation, such as an office building after office hours or a

warehouse.    We find that it is this element -- the potential for

confrontation and the substantial risk of harm -- that the

Guidelines intended for enhanced punishment under Section 4B1.2.

See, e.g., United States v. Salmon, 944 F.2d 1106, 1129 (3d Cir.

1990), cert. denied, 112 S. Ct. 1213 (1992) (burglary of a

dwelling is crime of violence because there is substantial risk

that force will be used or that person will be injured).     See

also United States v. Palmer, 871 F.2d 1202, 1209 (3d Cir. 1989)

(in context of Armed Career Criminal Act, 18 U.S.C. § 924(e),

burglary "presents a serious potential risk of physical injury to

another.").    Accord United States v. Gonzalez-Lopez, 911 F.2d
542, 548-49 (11th Cir. 1990), cert. denied, 111 S. Ct. 2056

(1991); United States v. Brunson, 907 F.2d 117, 120-21 (10th Cir.

1990).

                                IV.

          McClenton argues that even if we conclude that the

burglary of a hotel room qualifies as the burglary of a dwelling

as a legal matter, the facts support a different conclusion in
this case because two of the hotel rooms McClenton burglarized or

attempted to burglarize were unoccupied.7    McClenton thus asserts

that because no one was inhabiting these rooms, there was no one

whose peace of mind and security was infringed.    McClenton

contends that a crime against property, not habitation, occurred

and as such cannot be classified as a crime of violence.

          We note that the Guidelines do not support the

interpretation that McClenton suggests, and we must interpret the

Guidelines as written.     United States v. Wong, 3 F.3d 667 (3d

Cir. 1993).   In enumerating "burglary of a dwelling" as a crime

of violence in Section 4B1.2(1)(ii), the Guidelines do not

distinguish between dwellings that are occupied, rather than

unoccupied.   Thus, we conclude that burglary of a dwelling is a

crime of violence under the Guidelines whether or not there is

anyone present in the dwelling at the time it is burglarized.

          In assessing career offender status, the only issue we

must decide is whether the prior convictions for burglary

involved a dwelling.     Because burglary of a dwelling is

specifically enumerated in the Guidelines as a crime of violence,

no further inquiry is warranted.    The Sentencing Commission has

adopted a categorical approach to the determination of whether an

7
 .        The government disputes this factual contention. The
government maintains that at least two of the burglaries involved
occupied rooms. The government directs us to the presentence
report which states that in one case, McClenton "forcibly pushed
the complainant aside," PSI ¶ 35, while in another, he removed a
credit card from a women's pocketbook in a guest room, PSI ¶ 37.
Because we decide that it is irrelevant whether or not any of the
hotel rooms were actually occupied, we need not resolve this
factual dispute.
underlying offense is a "crime of violence" within section 4B1.2,

deciding that any invasion of a place where people may reside

presents an unacceptable risk of harm and must be classified as a

crime of violence.8   Thus we held in United States v. McAllister,

927 F.2d 136 (3d Cir. 1991), cert. denied, 112 S. Ct. 111 (1991),

that where the predicate offense is expressly listed as a crime

of violence, a more detailed inquiry into the underlying facts is

inappropriate.   In United States v. John, 936 F.2d 764, 770 (3d

Cir. 1991) we held that it may well be that a more detailed

inquiry into the facts of a case will be required if the offense

is not specifically listed as a "crime of violence."9   See also

8
 .        See Taylor v. United States, 495 U.S. 575, 597 (1990)
(adopting categorical approach to prior convictions used to
justify enhancement under "violent felony" sentencing enhancement
provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(West Supp. 1991)) and United States v. Aaron Thomas, No. 94-
1452, slip op. at 3-4 (3d Cir. Dec. 19, 1994) (holding "we see no
principled way to distinguish a challenge to a prior conviction
used to justify an enhancement under the Guidelines from a prior
conviction used to justify an enhancement under the Armed Career
Criminal Act").
9
 .        In United States v. John, we observed that the
Sentencing Commission envisioned three independent ways by which
a prior conviction will be considered a "crime of violence": (1)
the prior conviction is among those specifically enumerated
(murder, manslaughter, kidnapping, etc.); (2) the prior
conviction is for a crime that, although not specifically
enumerated has as an element of the offense the use, attempted
use, or threatened use of physical force; or (3) the prior
conviction is for a crime that, although neither specifically
enumerated nor involving physical force as an element of the
offense, involves conduct posing a serious potential risk of
physical injury for another.

          We held that "it is not only impermissible, but
pointless to look through to the defendant's actual criminal
conduct under the first two prongs." 936 F.2d at 767. "However,
in our view, the third prong quite clearly permits the court to
United States v. Williams, 892 F.2d 296, 303-304 (3d Cir. 1989),

cert. denied, 110 S. Ct. 3221 (1990).   That situation is not

implicated here:   McClenton's burglaries were burglaries of

dwellings which the Guidelines have classified as per se crimes

of violence.   Thus said, our inquiry is ended.



                                V.

          For the foregoing reasons, we will vacate the district

court's judgment of sentence and remand this matter for

resentencing pursuant to the career offender provisions of

Guidelines Section 4B1.2.
_________________________




(..continued)
examine the defendant's actual conduct to ascertain whether the
conduct posed a sufficient potential risk of physical injury to
another to elevate the crime to a crime of violence." Id. at
767-68.
