                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

                             _____________________

                                  No. 91-5574
                             _____________________

                           UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                     VERSUS

                                GERALD GUERRA,

                                                           Defendant-Appellant.

       ____________________________________________________

             Appeal from the United States District Court
                   for the Western District of Texas

       _____________________________________________________

                                (May 28, 1992)

Before SNEED,1 REAVLEY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

      Appealing only his sentence, Gerald Guerra contends that his

Guidelines     §   4B1.1    career   offender     enhancement     was   improper,

specifically challenging the holding that his predicate conviction

for attempted burglary is a "crime of violence" within the meaning

of the guideline.      Because we find a guidelines application note

dispositive, we AFFIRM.

                                          I.

      Guerra pleaded guilty to distribution of cocaine, in violation

of 21 U.S.C. § 841(a)(1). At sentencing, he unsuccessfully opposed

the   career   offender      enhancement       requested   by   the   government,

1
     Senior Circuit          Judge   of    the    Ninth    Circuit    sitting   by
designation.
asserting that attempted burglary was not one of the crimes of

violence enumerated in the guideline and did not otherwise meet the

guidelines   definition.2     Guerra    was   sentenced   to   168   months'

imprisonment, at the bottom end of the applicable career offender

sentencing range.3

                                  II.

     The   holding   that   Guerra's    attempted   burglary    conviction

qualifies as a predicate offense for § 4B1.1 enhancement is a

conclusion of law, reviewed de novo. E.g., United States v. Shano,

955 F.2d 291, 294 (5th Cir.), cert. dismissed, __ U.S. __, 112 S.

Ct. 1520 (1992).

     "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 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


2
     The   initial   pre-sentence   investigation    report   (PSI)
recommended that he be sentenced as a career offender under
U.S.S.G. §§ 4B1.1 and 4B1.2, because of prior convictions for
aggravated assault and burglary of a habitation.       Because the
probation officer subsequently determined, on Guerra's objection,
that the aggravated assault conviction did not qualify as one of
the two requisite predicate offenses for enhancement purposes, a
revised PSI did not include the enhancement recommendation. The
government objected to the revised PSI and proposed that Guerra's
conviction for attempted burglary of a habitation was the requisite
second predicate conviction.      At sentencing, the government
contended that the attempted burglary was a "crime of violence" for
enhancement purposes because it "involve[d] conduct that presents
a serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(1)(ii). As discussed infra, we need not reach this issue.
3
     Without the enhancement, Guerra's sentencing range was 24 to
30 months; with it, 168 to 210.

                                 - 2 -
crime of violence or a controlled substance offense."             U.S.S.G. §

4B1.1.    The term "crime of violence" is defined in § 4B1.2 as

            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, arson, or
                  extortion, involves use of explosives, or
                  otherwise involves conduct that presents
                  a serious potential risk of physical
                  injury to another.

U.S.S.G.    §   4B1.2(1)(i)-(ii).       Importantly   for    this    appeal,

application note 1 in the official commentary to § 4B1.2 specifies

that "[t]he term[] `crime of violence' ... include[s] the offense[]

of ... attempting to commit such offense[]."             U.S.S.G. § 4B1.2,

comment. (n.1).

     Guerra does not dispute that the instant offense, distribution

of cocaine, is a "controlled substance offense".                 Nor does he

challenge the designation of his prior conviction for burglary as

a "crime of violence".      The only issue is whether the attempted

burglary qualifies as the other predicate conviction (a "crime of

violence") for enhancement purposes.

     In    district   court,   the    government   did     not    rely   upon

application note 1; it did not even mention it.                  Instead, as

discussed in note 2, supra, it relied upon the residual clause in

§ 4B1.2(1)(ii), that the attempted burglary "presente[d] a serious

potential risk of physical injury to another."              In its initial




                                    - 3 -
brief here, it took the same position.4                    But, note 1 answers

Guerra's       objection.        The    guideline     specifically      designates

"burglary of a dwelling" as an eligible predicate offense for

enhancement, and the commentary states that the term "crime of

violence" includes attempts to commit the offenses enumerated in

the guideline.       See United States v. Liranzo, 944 F.2d 73, 78 (2d

Cir. 1991) (prior conviction for attempted criminal possession of

cocaine was a predicate offense for § 4B1.1 enhancement because

"[t]he plain language of Application Note 1 made the `attempt'

conviction a `controlled substance offense.'").

       This court relies on the official commentary to determine the

intent of the Sentencing Commission. For example, in United States

v. Arellano-Rocha, 946 F.2d 1105, 1108 (5th Cir. 1991), we utilized

the    application      notes    to    determine    the   definition    of   "prior

sentence"      because    they        "furnish[ed]    a   clear   answer     to   the

objection [the defendant] raise[d], they support[ed] the district

court's interpretation, and their ... interpretation of `prior

sentence'       [was]    consistent       with     the    guidelines'      approach

generally."      See also United States v. Gaitan, 954 F.2d 1005, 1010

(5th    Cir.    1992)    (lack   of    commentary    on   issue   of    guidelines

interpretation was "telling" as to whether Sentencing Commission

intended to favor government's interpretation); United States v.


4
     Because we hold that the Sentencing Commission intended
attempted burglary to be an enumerated offense within the career
offender guideline, i.e., the enumerated "burglary" includes
"attempting to commit" burglary by application of note 1, we need
not decide whether attempted burglary falls within the residual
clause of § 4B1.2(1)(ii).

                                         - 4 -
Brigman, 953 F.2d 906, 908 (5th Cir. 1992) (Sentencing Commission

intended   amendments     to   guidelines'         commentary    to     clarify

guidelines'     application;   failure       to   follow   commentary    could

constitute grounds for reversal on appeal).

      Guerra advances several reasons for not relying on the note;

none is persuasive.5      First, he emphasizes that:             the district

court was not aware of the application note concerning attempts,

because the government did not point it out; and, the government

did not raise the issue on appeal -- instead, we asked for, and

received, supplemental briefs from both parties on the point.                In

short, he asserts that the government waived relying upon the note.

      We can ground our decision on the official commentary, even

though the government did not cite it in the district court or in

its   initial   brief.   Guidelines      §    1B1.7   covers    the   role   the

Sentencing Commission intended courts to give the commentary,

including the application notes.      It states in part:

5
     One contention, totally lacking in merit, is that the note "is
a vestige of an early version of the career offender guideline" and
has been rendered invalid by the change, in 1989, of the definition
for "crime of violence". Note 1 provides that "[t]he terms `crime
of violence' and `controlled substance offense' include the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses." U.S.S.G. § 4B1.2, comment. (n.1). It is
similar to part of the pre-1989 version of note 2 to § 4B1.2
(defining only "controlled substance offense").      Note 1 became
effective November 1, 1989, as part of amendments designed "to
clarify the definitions of crime of violence and controlled
substance offense" in the career offender guideline. U.S.S.G. App.
C, amend. 268.      That same amendment added to § 4B1.2(1) a
definition of crime of violence that was derived from 18 U.S.C. §
924(e). Id. (See infra for a discussion of § 924(e).) Although
the Sentencing Commission again clarified the definition of crime
of violence in an amendment effective November 1, 1991, it did not
change note 1. See id., amend. 433. Guerra was sentenced in March
1991.

                                  - 5 -
           The Commentary that accompanies the guideline
           sections may serve a number of purposes. First, it
           may interpret the guideline or explain how it is to
           be applied.    Failure to follow such commentary
           could constitute an incorrect application of the
           guidelines, subjecting the sentence to possible
           reversal on appeal. See 18 U.S.C. § 3742.

(Emphasis added.)   The commentary to § 1B1.7 analogizes commentary

to   "legislative   history   or   other   legal   material   that   helps

determine the intent of a drafter."        See Arellano-Rocha, 946 F.2d

at 1108.   Obviously, even if never cited by a party, we can --

indeed must -- consider the commentary to the guideline used by the

district court.6

      Second, Guerra contends that interpreting "crime of violence"

to encompass attempted burglary conflicts with our recent holding

in United States v. Martinez, 954 F.2d 1050, 1054 (5th Cir. 1992),

that "a conviction under Texas law for attempted burglary does not

qualify as a sentence-enhancing `violent felony' under the language

of [18 U.S.C.] § 924(e)(2)(B)(ii)."7       Section 924(e), part of the

Armed Career Criminal Act, "provides a sentence enhancement for a

defendant who is convicted under 18 U.S.C. § 922(g) (unlawful


6
     Guerra is incorrect that our decision in United States v.
Garcia-Pillado, 898 F.2d 36 (5th Cir. 1990) supports his position.
Garcia-Pillado held that the government waived its objection to
imposition of a guidelines sentence that was less than the
statutory minimum when it did not object in the district court.
Id. at 38-40.    Here, the government did not fail to raise its
contention -- that attempted burglary is a crime of violence -- in
the district court; rather, on appeal -- at our suggestion -- it
relies on a new legal authority, or basis, for a position it has
already taken.
7
     Because Martinez was not rendered until after briefing in this
appeal was completed, our request for supplemental briefs included
its applicability vel non.

                                   - 6 -
possession of a firearm) and who has three prior convictions for

specified types of offenses, including `burglary.'"                 Taylor v.

United States, 495 U.S. 575, 577-78 (1990).

     Martinez does not control this case.             It is true that the

guidelines' definition of "crime of violence" is derived from the

definition of "violent felony" in § 924(e).8            See note 5, supra;

U.S.S.G. App. C, amend. 268; United States v. Parson, 955 F.2d 858,

866 n.10, 867 (3d Cir. 1992).        However, in adopting and amending §

4B1.2, the Sentencing Commission chose to implement a different

standard than the one Congress enacted in § 924(e).               See U.S.S.G.

§ 4B1.4, comment. (n.1) ("The term[] `violent felony' ... [is]

defined in 18 U.S.C. § 924(e)(2).            It is to be noted that the

definition[] of `violent felony' ... in [that statute] [is] not

identical to the definition[] of `crime of violence' ... used in §

4B1.1   (Career   Offender)".);       Parson,   955   F.2d   at    870   ("The

Sentencing Commission has told us ... that the definitions in

U.S.S.G.   §   4B1.2(1)   and   18    U.S.C.    §   924(e)(2)(B)    differ.")

Therefore, the meaning of "crime of violence" for purposes of the

career offender guideline is not the same as what we interpreted

8
     Section 924(e) defines "violent felony" as "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)(i)-(ii).

                                     - 7 -
"violent felony" to include for purposes of the Armed Career

Criminal Act in Martinez.

      Furthermore,    because    of     the    Sentencing       Commission's

determination that attempted burglary should be a predicate offense

for enhancement, as contrasted with the lack of any such indication

in § 924(e), a different outcome is appropriate.           In Martinez, we

said that

            if Congress had wished to include attempted
            burglary   as   an  offense   warranting   sentence
            enhancement, it easily could have done so. Section
            924(e) explicitly mentions burglary; if Congress
            believed that the attempt should be treated the
            same way as the crime itself, it could have said so
            with virtually no effort. The Government, however,
            presents no argument from the legislative history
            that the Congress even considered including the
            crime of attempted burglary -- or any other attempt
            -- when it was considering § 924(e).

954 F.2d at 1053.    This case is different.        Our task, obviously, is

to discern the Sentencing Commission's intent, see Parson, 955 F.2d

at   868, whereas    the   Martinez   court,   in    applying    a   statutory

enhancement, was interpreting Congressional intent.             And, here, we

know from reading note 1 that the Commission intended for attempts

to commit the enumerated offenses to be included as predicate

offenses for the career offender guideline.          In sum, we should not

deviate from a plain reading of the guidelines and their official

commentary.    Concomitantly, the use of note 1, instead of the

residual clause to § 4B1.2(1)(ii), avoids uncertainty, promotes

simplicity, and fosters uniformity and consistency in this aspect

of sentencing (career offender enhancements), thereby comporting

with salutary goals of the guidelines.


                                  - 8 -
                         III.

For the foregoing reasons, the judgment is

          AFFIRMED.




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