Thursday, January 31st, 2008

Burglar Alarm

United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)

This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a “crime of violence” under Guidelines section 4B1.2(a). It turns out, however, that the issue has a complication.

In Brown’s case, the district court held that the burglary conviction increased his offense level under U.S.S.G. § 2K2.1(a), which uses the Chapter 4 definition of crime of violence. The complication is that, under this definition, a crime of violence is “an offense . . . that . . . is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk” of injury. The New York statute proscribes burglary of a “building,” which is broader than a “dwelling,” thus third-degree burglary can only be a crime of violence under the Guideline definition if it falls within the residual, “otherwise involves” clause.

There is a compelling argument that the Guideline language limiting the definition of crime of violence to the “burglary of a dwelling” forecloses applying the “otherwise involves” clause to a non-dwelling burglary. In fact, there is a circuit split on this question, and so far neither the Supremes nor the Sentencing Commission has answered it.

Here, the circuit held that a New York conviction for burglary three is a crime of violence under the Guidelines, but it got there in a roundabout way. Instead of addressing directly this important question of Guidelines interpretation, the court relied on its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993), which held that the identical residual clause in 18 U.S.C. § 924(e) covered a New York conviction for attempted burglary in the third degree. The court then concluded, without explaining why, that the residual clause in the Guideline definition applied to non-dwelling burglaries and thus that, based on Andrello, third-degree burglary is a crime of violence under the Guidelines.

Comment: This opinion is bizarre. By refusing to take a position on the Guidelines interpretation issue, the Court has made a huge mess out of something that could have been resolved very simply. As it happens, Andrello is inapposite, since it did not deal with the interpretive question presented here. In Andrello, the court considered a definition of “crime of violence” that includes “burglary” or an offense that “otherwise involves” a risk of injury. However, unlike the Guidelines definition, the statute does not limit the “burglary” prong to dwellings. Andrello did not expressly consider whether the limitation to “burglary” in the first part of the definition precluded applying the residual clause to attempted burglary, which would have been analogous to the question here. Andrello simply held that attempted burglary was covered by the “otherwise involves” clause because of its inherent risks. Clearly, then, that case has little to do with Brown’s issue. So now we are left with a decision applying the residual clause to a non-dwelling burglary, but with no relevant, Guideline or statutory-interpretation based reasoning behind it. Sloppy work, indeed!

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