                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                              MAR 18 1997
                       UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                   TENTH CIRCUIT




 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

 v.                                                  No. 96-5091

 CLANTON T. BENNETT,

        Defendant-Appellant.



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE NORTHERN DISTRICT OF OKLAHOMA
                          (D.C. No. 95-CR-116-C)


Thomas Scott Woodward, First Assistant United States Attorney (Stephen C. Lewis, United
States Attorney, Northern District of Oklahoma with him on the brief), Tulsa, Oklahoma for
Plaintiff-Appellee.

Stephen J. Greubel, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public
Defender, Northern District of Oklahoma with him on the brief), Tulsa, Oklahoma for
Defendant-Appellant.


Before PORFILIO, McWILLIAMS, and HENRY, Circuit Judges.


HENRY, Circuit Judge.
       Defendant Clanton T. Bennett appeals the district court’s determination that he was

a “career offender” for purposes of sentencing enhancement. Because it was unclear that Mr.

Bennett’s prior conviction for second-degree burglary was for a “crime of violence,” the

sentence must be vacated, and the case remanded for resentencing.


                                    I. BACKGROUND


       After pleading guilty to a single count of bank robbery under 18 U.S.C. § 2113(a), Mr.

Bennett was sentenced to a prison term of 170 months. The district court enhanced the term

of Mr. Bennett’s sentence based on its determination that he was a “career offender,” as

defined in United States Sentencing Guidelines (“USSG”) § 4B1.1. Section 4B1.1 requires,

in pertinent part, that a career offender have “at least two prior felony convictions of . . . a

crime of violence.” USSG Manual § 4B1.1 (1995).

       The district court determined that two of Mr. Bennett’s prior convictions (burglary in

the second degree, and indecent lewd acts with a child under sixteen) constituted crimes of

violence. On appeal, Mr. Bennett challenges the use of his second-degree burglary

conviction as a predicate crime of violence. He does not contest the use of the indecent lewd

acts conviction.




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                                        II. ANALYSIS


       Whether a defendant was erroneously classified as a career offender is a question of

law subject to de novo review. See United States v. Newsome, 898 F.2d 119, 120 (10th Cir.

1990). “The government shall bear the burden of proof for sentence increases . . . .” United

States v. Kirk, 894 F.2d 1162, 1164 (10th Cir. 1990). Further, “we resolve any ambiguity

in favor of narrowly interpreting the career offender provisions . . . .” United States v. Smith,

10 F.3d 724,734 (10th Cir. 1993).

       In the USSG, a “crime of violence” is defined in part as an offense that “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.” USSG Manual § 4B1.2

(1995). Of particular importance in this appeal is that, under the foregoing definition,

“burglary of a dwelling” is a crime of violence. Id.

       In determining whether a predicate offense qualifies as a crime of violence, courts in

this circuit are limited to examining the statutory elements of the crime and the record of the

prior proceeding. See United States v. Garcia, 42 F.3d 573, 576 (10th Cir. 1994). The

statutory elements of Mr. Bennett’s second-degree burglary offense are defined as follows:

          Every person who breaks and enters any building or any part of any
       building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or
       other structure or erection, in which any property is kept . . . with intent to steal
       any property therein or to commit any felony, is guilty of burglary in the
       second degree.



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Okla. Stat. tit. 21, § 1435 (1991). Because this definition does not include physical force as

an element, and does not require that the burglary be “of a dwelling,” the statute leaves it

unclear whether Mr. Bennett’s conviction was for a crime of violence.

       The record of Mr. Bennett’s prior proceeding is similarly ambiguous. In examining

such a record, a sentencing court may look to “the charging papers, judgment of conviction,

plea agreement or other statement by the defendant for the record, presentence report adopted

by the court, and findings by the sentencing judge.” Smith, 10 F.3d at 734.

       The parties agree that the record does not include a presentence report, a transcript of

court proceedings, or findings by the judge. Whether such documents never existed, or were

lost after their creation, is unclear.

       From the burglary proceeding, only the information, plea agreement, and judgment

of conviction are available. The judgment of conviction is unrevealing, but the information

and plea agreement are more instructive. They indicate that Mr. Bennett was initially

charged with first-degree burglary and that he later pled to the lesser offense of second-

degree burglary. Suppl. rec., def.’s ex. B-1 at 1 (Information dated Feb. 12, 1985), pl.’s ex.

1 at 4 (Plea agreement dated May 1, 1985).

       The information charged Mr. Bennett with first-degree burglary as follows:

       On or about the 9th day of February, 1985, A.D., the crime of burglary in the
       first degree was feloniously committed in Oklahoma County, Oklahoma, by
       Clanton Thomas Bennett who wilfully and knowingly broke and entered 805
       SW 28th OKC, Oklahoma, a dwelling house which was in the possession and
       was under the control of Roger W. King, by entering through the east bedroom
       window while Roger W. King was present, with the intent to commit a crime

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       therein, contrary to the provisions of section 1431 of Title 21 of the Oklahoma
       Statutes and against the peace and dignity of the State of Oklahoma.

Suppl. rec., def.’s ex. B-1 at 1. This language clearly charged Mr. Bennett with a crime of

violence: the statutory definition of first-degree burglary requires that the burglary be of a

“dwelling.” Okla. Stat. tit. 21, § 1431. The first-degree burglary statute provides in relevant

part: “Every person who breaks into and enters the dwelling house of another, in which there

is at the time some human being, with intent to commit some crime

therein . . . is guilty of burglary in the first degree.” Id.

       The fact that Mr. Bennett was charged with a crime of violence, however, is not

dispositive for sentencing purposes. The commentary accompanying USSG § 4B1.2 makes

plain: “[T]he conduct of which the defendant was convicted [not charged] is the focus of the

inquiry.” USSG Manual § 4B1.2 cmt. (n.2) (emphasis added). The record of the prior

proceeding does not indicate how the wording of the information was amended when Mr.

Bennett’s charge was reduced from first- to second-degree burglary. Thus, whether the word

“dwelling” was deleted is unclear.

       During the sentencing in federal court, the district judge expressed his opinion that

the information could have been lawfully amended only by deleting the words “while Roger

W. King was present.” The district judge presumed that the information was amended

lawfully, and that the quoted words were in fact eliminated. Because such an amendment

would have left the word “dwelling” in the information, the district judge concluded that Mr.



                                                 5
Bennett was convicted of a crime of violence, and sentenced him as a career offender. See

Rec. vol. III at 13-14 (Transcript of sentencing on Mar. 26, 1996).

       On appeal, Mr. Bennett argues that the district court was not permitted to speculate

about matters unstated in the record of the prior proceeding. He insists that the court was

limited to examining the record and the statutory elements of second-degree burglary.

Because the statute and record leave it unclear whether the prior conviction was for a crime

of violence, Mr. Bennett argues that § 4B1.1’s career offender provision must be interpreted

narrowly so as not to apply to him.

       We have limited § 4B1.1 analysis to the statutory elements and the record of the

proceeding in order to focus attention on the nature of prior convictions. In Garcia, for

example, we refused to consider the defendant’s claim that he did not commit a predicate

crime of violence. 42 F.3d at 577. We concluded that classification as a career offender

depends on prior conviction, not prior criminal conduct: it was irrelevant whether the

defendant was actually innocent of the crime for which he was convicted. Id. at 578-79.

       In this case, the career offender enhancement was not based on statutory elements or

the record of the prior proceeding; therefore, it is inconsistent with our circuit’s precedent.

The district judge, a former county attorney who is certainly knowledgeable about state

criminal law, may well have been correct that the information was amended to delete the

words “while Roger W. King was present.” However, two factors lead us to hold that even

knowledgeable speculation should not be added to Garcia’s arsenal.


                                              6
        First, we cannot be sure, from the record supplied to us, that an amendment was even

made. The record only shows that the conviction was for second-degree burglary; it does not

contain an amended information.

        Second, even if an amendment was made, we are not certain that the only words that

could have been deleted were the words “while Roger W. King was present.” A comparison

of the statutory definitions of first- and second-degree burglary suggests that the offenses

differ in two respects: (1) first-degree burglary must be burglary of a “dwelling,” whereas

second-degree burglary may be burglary of “any building,” dwelling or non-dwelling; and

(2) first-degree burglary requires that the burglary be of premises “in which there is at the

time some human being,” whereas second-degree burglary does not require contemporaneous

occupation by another person. Compare Okla. Stat. tit. 21, § 1431 (first-degree burglary)

with Okla. Stat. tit. 21, § 1435 (second-degree burglary). These differences suggests that a

charge can be reduced from first- to second-degree burglary in one of three ways: by deleting

the charging paper’s reference to (a) a dwelling, (b) occupation by another person, or (c)

both.

        In this case, the district judge concluded that only amendment (b) was possible, but

we do not see why amendments (a) and (c) were not possible as well. The district judge

suggested that if the word “dwelling” was eliminated, “you don’t have a charge . . . [;] there

is no charging paper[] at all.” Rec. vol. III at 8-9 (Transcript of sentencing on Mar. 26, 1996).

We do not understand this logic: If the word “dwelling” was deleted, the information would


                                               7
have charged burglary of “a house,” which could have been a non-dwelling such as “an

abandoned house.” The information would still have described an offense because, as stated

above, the second-degree burglary statute comprehends burglary of “any building,” dwelling

or non-dwelling.

      If the district judge was incorrect about the word “dwelling,” Mr. Bennett was

improperly sentenced as a career offender. His second-degree burglary conviction would

have been for burglary of a non-dwelling, which is not a crime of violence. See Smith, 10

F.3d at 733. Thus, Mr. Bennett’s career offender status would have been supported only by

his indecent lewd acts conviction, and would have lacked the requisite second crime of

violence.

      This possibility means that the government did not meet its burden of supporting the

career offender enhancement: the statutory elements of second-degree burglary and the

record of the prior proceeding leave it ambiguous whether Mr. Bennett was convicted of a

crime of violence. We must resolve this ambiguity in favor of narrowly interpreting the

career offender provisions.



                                  III. CONCLUSION


      For the foregoing reasons, we conclude that Mr. Bennett should not have been

sentenced as a career offender. We vacate the sentence and remand for resentencing. The

mandate shall issue forthwith.

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