                                IN THE UNITED STATES COURT OF APPEALS

                                                  FOR THE FIFTH CIRCUIT



                                                               No. 02-40870



RONALD DAVID KRUEGER,
                                                                                                                   Defendant-Appellant,

                                                                     versus

UNITED STATES OF AMERICA,
                                                                                                                        Plaintiff-Appellee.



                                        Appeal from the United States District Court
                                             for the Eastern District of Texas
                                                                  (02-CR-3)

                                                            February 14, 2003



Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:*



           The Defendant, Ronald David Krueger (“Krueger”) appeals his sentence for possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Specifically, he appeals the district court’s finding that

his prior burglary conviction under Wisconsin law was a “crime of violence” pursuant to the career

offender enhancement provisions of the Sentencing Guidelines. For the following reasons, we find


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
that the district court did not err in its interpretation of the Sentencing Guidelines and conclusions

of fact and therefore, AFFIRM.



Procedural and Factual Background

       Krueger pleaded guilty, pursuant to a written plea agreement, to being a felon in possession

of several firearms, in violation of 18 U.S.C. § 922(g)(1).1 The applicable Sentencing Guideline for

violating § 922(g)(1) is U.S.S.G. § 2K2.1. Under the Sentencing Guidelines, Krueger is eligible for

a base offense level of 22 because the offense involved a firearm enumerated in 26 U.S.C. § 5845(a)

and his prior felony conviction in violation of Wisconsin law is a crime of violence. U.S.S.G.

§ 2K2.1(a)(3). In Krueger’s pre-sentence report (PSR), the probation officer established both

requirements to calculate his base offense level. Krueger’s base offense level would have been 20 had

his prior felony conviction not been a “crime of violence.” Krueger objected to the two-level increase

as a result of the PSR’s determination that his burglary conviction was a “crime of violence.”

       Krueger’s objection was that the Wisconsin statute under which he was convicted does not

distinguish between burglary of a building and burglary of a dwelling. Under the Sentencing

Guidelines, if he had been convicted of burglary of a building, Krueger’s prior felony conviction

would not have been a “crime of violence.” See United States v. Jackson, 22 F.3d 583, 585 (5th Cir.

1994) (“Jackson I”) (holding that burglary of a building is no t a crime of violence). Krueger

contended that because he burglarized homes that were under construction and still unoccupied, he



  1
    Although the plea agreement contains a waiver of appeal, Krueger specifically reserved his right
to appeal “issues related to the application of the Sentencing Guidelines.” R. 1, 56. Because the
issue presented in this appeal concerns the district court’s alleged incorrect application of U.S.S.G.
§ 2K2.1(a)(3), the waiver does not bar Krueger’s appeal.

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burglarized a building rather than a dwelling and therefore, did not commit a crime of violence. In

support of his objection to the PSR, Krueger attached an occupancy permit which showed that the

burglarized property was not legally inhabitable at the time of the burglary. The probation officer

responded that because the Wisconsin charging document refers to the structures as dwellings,

Krueger committed a crime of violence. Krueger maintained the same objection during sentencing.

The district court overruled Krueger’s objection and explained that it cannot go beyond the charging

instrument to determine whether a defendant committed a crime of violence. The district court

sentenced Krueger to 63 months’ imprisonment, three years’ supervised release, and a $100 special

assessment. Krueger now appeals.



Discussion

Standard of Review

        This Court reviews a district court’s interpretation and application of the Sentencing

Guidelines de novo. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir. 2002) (en banc). We

review findings of facts for clear error. United States v. Claiborne, 132 F.3d 253, 254 (5th Cir. 1998).

We are bound by the Sentencing Guidelines and the charging instrument in order to determine

whether Krueger’s prior burglary co nviction was for a crime of violence. Id; United States v.

Fitzhugh, 954 F.2d 253 (5th Cir. 1992).

Interpretation of the Sentencing Guidelines

        In Charles, we held “that sentences involving possession of a firearm by a felon, which also

involve a prior conviction for an alleged ‘crime of violence,’ are to have the ‘crime of violence’

determination made only in accordance with the definition in § 4B1.2(a) and its accompanying


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commentary.” 301 F.3d at 312. Section 4B1.2(a) defines a “crime of violence” as any offense under

federal or state law that is punishable by imprisonment for more than one year that “(1) has as an

element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives or otherwise involves

conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a) (emphasis

added). The application note to § 4B1.2 explains that all crimes that have as an element the

threatened use of physical force against another person or that present a serious risk of physical injury

to another are crimes of violence. § 4B1.2, comment. (n.1). The Sentencing Commission listed

burglary of a dwelling, but not burglary of a building as a crime of violence. Id.

          In 1995, Krueger was convicted of burglary in violation of WIS. STAT. § 943.10. The statute

states:

          (1)Whoever intentionally enters any of the following places without the consent of the

          person in lawful possession and with intent to steal or commit a felony in such place

          is guilty of a Class C felony:

          (a) Any building or dwelling

WIS. STAT. § 943.10(1)(a)(1995). Wisconsin does not distinguish between a dwelling or a building

in its burglary statute. Nonetheless, in the charging instrument, the State specifically charged Krueger

of burglary of a dwelling. In Fitzhugh, we ruled that “[t]he sentencing court should consider conduct

expressly charged in the count of which the defendant was convicted, but not any other conduct that

might be associated with the offense.” 954 F.2d at 255 (emphasis added). In Wisconsin, a criminal

complaint can be a defendant’s only charging document. See United States v. Sebero, 45 F.3d 1075,




                                                    4
1077 (7th Cir. 1995); State v. Derango, 613 N.W.2d 833, 847 (Wis. 2000). Krueger’s criminal

complaint states:

       Count #2: On June 9, 1994 or June 10, 1994 at N16 W301142 Timberbrook Court

       in the Town of Delafield, Waukesha County, Wisconsin, the defendant, Ronald D.

       Krueger, did intentionally enter a dwelling without the consent of the person in lawful

       possession thereo f, to-wit: Kenneith Kauer, and with intent to steal, contrary to

       Section 943010(1)(a), Wisconsin Statutes. . . .

       Count #3: Between September 2, 1994 and September 9, 1994 at N14 W30422

       Willowhill Court in the Town of Delafield, Waukesha County, Wisconsin, the

       defendant, Ronald D. Krueger, did intentionally enter a dwelling without the consent

       of the person in lawful possession thereof, to-wit: William Groskopf, and with intent

       to steal, contrary to Section 643.10(1)(a), Wisconsin Statutes. . . .

       The district court did not err in its interpretation of the Sentencing Guidelines to limit its

review to the charging instrument in order to determine whether Krueger was convicted of a crime

of violence.” The district court relied on United States v. Christopher Rodriguez Jackson to

determine that under the Sentencing Guidelines it could only review Krueger’s charging document

to consider whether Krueger had been convicted of a crime of violence thereby declining to review

the occupancy permits. 220 F.3d 635 (5th Cir. 2000) (“Jackson 2") rev’d en banc on other grounds

sub nom. United States v. Charles, 301 F.3d 309 (5th Cir. 2002). Although, Charles overruled the

holding in Jackson 2 that motor vehicle theft is a crime of violence under Texas law, the Fifth Circuit

still adheres to the rule delineated by Jackson 2 that the Court may consider only information

contained in the charging document for the purposes of sentencing. See United States v. Turner, 305


                                                  5
F.3d 349, 351 (5th Cir. 2002) (“The Guidelines and our jurisprudence require that for this part of the

analysis, we consider only the conduct charged in the count of which the defendant was convicted.”).

The district court did not err when it decided that to review the occupancy permits would go beyond

the scope of the charging instrument which is contrary to Fifth Circuit law.

        Following the conduct charged in the counts, the complaint contains a narrative section which

indicates that the dwelling involved in count three was still being constructed when Krueger

burglarized it; there is no such indication as to count two. Krueger argues that the nature of the item

stolen in count two (a whirlpool) establishes that the building was still under construction and not yet

a dwelling. The question becomes whether the district court can look beyond the conduct charged

in counts two and three to determine whether Krueger was convicted of burglary of a dwelling.

Although the Fifth Circuit has not expressly determined whether extraneous facts alleged in the

charging instrument can be considered, we were clear in Turner that “only the conduct charged in the

count of which the defendant was convicted” can be considered to determine whether the Defendant

was previously convicted of a crime of violence. 305 F.3d at 351 (emphasis added); see Fitzhugh, 954

F.2d at 255; but c.f., United States v. Sebero, 45 F.3d 1075 (7th Cir. 1995) (holding that the district

court can examine extraneous extrinsic evidence to clarify whether the Defendant was convicted of

a crime of violence when Defendant’s criminal complaint alleged “burglary of a building, to wit: a

cabin”). In this case, the conduct charged in counts two and three was that Krueger “did intentionally

enter a dwelling.” The district court was not obliged to look beyond the conduct charged in counts

two and three. Under the Sentencing Guidelines, burglary of a dwelling is an enumerated offense

which constitutes a “crime of violence.” Thus, Krueger’s sentence was properly enhanced.




                                                   6
Conclusion

The district court did not err when it considered the conduct charged in counts two and three to make

a determination that Krueger’s prior conviction for burglary in violation of WIS. STAT. § 943.10(a)(1)

constituted a “crime of violence” under U.S.S.G. § 4B1.2. For the foregoing reasons, we affirm.

AFFIRMED.




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