JOSEPH VAIL, PETITIONER V. UNITED STATES OF AMERICA No. 89-7411 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 2) is not reported. JURISDICTION The judgment of the court of appeals was entered on March 2, 1990. The petition for a writ of certiorari was filed on May 7, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's three previous convictions for the Florida offense of burglary of a structure were "violent felon(ies)" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii). STATEMENT 1. Petitioner was indicted in the Southern District of Florida on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). The government notified petitioner that since he had three previous convictions for burglary of a structure under Florida law, /1/ he was subject to an enhanced sentence of a minimum term of 15 years' imprisonment under 18 U.S.C. 924(e)(1). /2/ Pet. 7-8; Gov't C.A. Br. 1-2. After the district court denied petitioner's suppression motion, he pleaded guilty to the charge. Pet. 7. At sentencing, the government established petitioner's previous convictions by submitting certified copies of the state court judgments, which included copies of the criminal informations charging petitioner with burglaries of a structure. Pet. 8; Gov't C.A. Br. 2; Tr. 2-3; /3/ see note 1, supra. The government thus urged the court to impose an enhanced sentence under Section 924(e)(1). Petitioner, however, argued that his convictions were not proper predicate offenses because those burglaries did not meet the strict common law definition and did not otherwise involve violent conduct. Tr. 3-4. The district court rejected that argument and sentenced petitioner to an enhanced term of 15 years' imprisonment under Section 924(e)(1). Pet. 7; Tr. 5-6. 2. On appeal, petitioner contended that his burglary convictions were not proper predicate offenses because those burglaries did not meet the strict common law definition and did not otherwise involve violent conduct. Pet. C.A. Br. 5-11. The court of appeals rejected that argument and affirmed without opinion. Pet. App. 2. /4/ ARGUMENT Petitioner contends (Pet. 9-14) that his burglary convictions were not "violent felon(ies)" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii), because those state offenses did not meet the strict common law definition of burglary and did not otherwise involve violent conduct. In Taylor v. United States, No. 88-7194 (May 29, 1990), decided after this petition had been filed, the Court expressly rejected that construction of the statute. See slip op. 16-19. Instead, the Court concluded that a person has been convicted of burglary for purposes of a Section 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Slip op. 22. Petitioner's previous burglary convictions plainly fall within the terms of the statute, since the certified copies of those convictions, which included the criminal informations, show that petitioner on separate occasions unlawfully entered a house and two buildings with intent to commit crimes. See note 1, supra. /5/ Accordingly, the district court properly sentenced him to an enhanced sentence under Section 924(e)(1) and 924(e)(2)(B)(ii). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ANDREW LEVCHUK Attorney JUNE 1990 /1/ Florida state law defines burglary as follows: "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. Fla. Stat. Ann. Section 810.02(1) (West Supp. 1990). Florida state law further defines "structure" as "a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof." Fla. Stat. Ann. Section 810.011(1) (West Supp. 1990). The statute defines "conveyance" as "any motor vehicle, ship, vessel, railroad car, aircraft, or sleeping car * * *." Fla. Stat. Ann. Section 810.011(3) (West Supp. 1990). In December 1981, petitioner was convicted of burglary of a structure in Florida state court, namely, unlawfully entering a "residential structure." In March 1982, and then again in January 1985, petitioner was convicted of the same offense, namely, unlawfully entering an "unoccupied commercial building." Pet. 8; Gov't C.A. Br. 2. /2/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) applies to previously convicted felons who possess or receive a firearm in violation of 18 U.S.C. 922(g). Title 18, United States Code, Section 924(e)(1), provides in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. Title 18, United States Code, Section 922(g)(1), refers to any "convict(ion) in any court of a crime punishable by imprisonment for a term exceeding one year." Title 18, United States Code, Section 924(e)(2)(B), provides: (T)he term "violent felony" means 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. /3/ "Tr." refers to the transcript of the sentencing hearing held on June 1, 1989. /4/ In United States v. Hill, 863 F.2d 1575, 1577-1583 (11th Cir. 1989), the court of appeals had previously held that the Florida offense of burglary of a structure was a "violent felony" under Section 924(e)(1) and 924(e)(2)(B)(ii). In so holding, the court rejected the argument that "burglary" under Section 924(e)(2)(B)(ii) was limited to the common law offense or to those burglaries that involved violent conduct. /5/ For that reason, the fact that the Florida burglary statute also would apply to an unlawful entry of a "conveyance," i.e., "any motor vehicle, ship, vessel, railroad car, aircraft, or sleeping car," Fla. Stat. Ann. Section 810.011(3) (West Supp. 1990), is immaterial. See Taylor v. United States, slip op. 23-26.