United States v. Brett D. Sorenson

ORDER

This is a sentence enhancement case. In our memorandum disposition of January 12, 1990, we concluded that enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924 (e)(1), (ACCA), and imposition of a special assessment were improper.

Under the then controlling circuit law, enhancement based upon Oregon first degree burglary convictions was improper because that state’s burglary statute did not meet the common law definition of burglary, see United States v. Chatman, 869 F.2d 525, 527 (9th Cir.1989), and mandatory special assessments were deemed unconstitutional. See United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), rev’d, — U.S. -, 110 S.Ct. 1964 , 109 L.Ed.2d 384 (1990).

We deferred action on the government’s petition for rehearing pending the Supreme Court’s consideration of the burglary definition issue. Our approach has changed.

DISCUSSION

I. Sentence Enhancement

In Taylor v. United States, — U.S. -, 110 S.Ct. 2143, 2158 , 109 L.Ed.2d 607 (1990), the Court held that the term “burglary,” as used in the ACCA, referred to generic burglary. It defined generic burglary as the conviction for

Id., 110 S.Ct. at 2158.

It is undisputed that Sorenson’s…