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 …