United States v. Randall Gene Cunningham

Randall Gene Cunningham (Cunningham) appeals the district court’s use of his Oregon second-degree felony burglary conviction for statutory sentence enhancement under the Armed Career Criminal Act (the Act), 18 U.S.C. § 924 . We reverse under the authority of United States v. Chatman, 869 F.2d 625 (9th Cir.1989) and remand for resentencing.

FACTS AND PROCEEDINGS

Cunningham was indicted on one count of being a felon in illegal possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). At the time of Cunningham’s arraignment, the government filed an information alleging three prior violent felony convictions for purposes of sentence enhancement. Cunningham filed a motion to dismiss the indictment on the ground that 18 U.S.C. § 924 (e) was unconstitutional, which the district court denied. Following a bench trial, the court found Cunningham guilty as charged.

After a sentencing hearing was scheduled, Cunningham filed a memorandum in opposition to sentence enhancement on the ground that his prior Oregon state conviction for second degree burglary should not be considered because the conviction does not qualify as a “violent felony” under section 924(e)(2)(B). The court held…

concurring:

We concur in Judge Tang’s opinion only because we are bound by the holding in United States v. Chatman, 869 F.2d 525 (9th Cir.1989). See Landreth v. Commissioner, 859 F.2d 643, 648 (9th Cir.1988) *313 (absent en banc review or an intervening Supreme Court decision, a three judge panel’s decision is binding). We write separately to express our belief that Chatman was wrongly decided and to encourage en banc review of this case to correct the error.

Chatman holds that the term “burglary” in 18 U.S.C. § 924 (e)(2)(B) should be interpreted under its common law definition to mean “the breaking and entering of the dwelling house of another, in the nighttime with the intent to commit a felony therein.” Chatman, 869 F.2d at 527 . As Judge O’Scannlain ably explains in his dissent in Chatman , the majority’s holding precludes the use of a burglary conviction for enhancement purposes in every jurisdiction in the Ninth Circuit. That is true because none of the jurisdictions within this circuit have retained the common law definition of burglary. Moreover, we have closed the door to a prosecutor’s attempt to overcome Chatman by our rejection of individualized review of the…

878 F.2d 311 UNITED STATES of America, Plaintiff-Appellee, v. Randall Gene CUNNINGHAM, Defendant-Appellant. No. 88-3046. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1989. Decided June 27, 1989. David K. Allen, Portland, Or., for defendant-appellant. Stephen F. Peifer, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before TANG and SKOPIL, Circuit Judges, and McKIBBEN, District Judge. * TANG, Circuit Judge: 1 Randall Gene Cunningham (Cunningham) appeals the district court's use of his Oregon second-degree felony burglary conviction for statutory sentence enhancement under the Armed Career Criminal Act (the Act), 18 U.S.C. Sec. 924 . We reverse under the authority of United States v. Chatman, 869 F.2d 525 (9th Cir.1989) and remand for resentencing. FACTS AND PROCEEDINGS 2 Cunningham was indicted on one count of being a felon in illegal possession of a firearm in violation of 18 U.S.C. Sec. 922 (g)(1). At the time of Cunningham's arraignment, the government filed an information alleging three prior violent felony convictions for purposes of sentence enhancement. Cunningham…