United States v. Timothy Allen Wenner

351 F.3d 969 UNITED STATES of America, Plaintiff-Appellee, v. Timothy Allen WENNER, Defendant-Appellant. No. 02-30022. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 10, 2003 — Seattle, Washington. Filed December 12, 2003. COPYRIGHT MATERIAL OMITTED Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. Andrew C. Friedman, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CR 01-5470 RJB. Before J. CLIFFORD WALLACE, STEPHEN S. TROTT, and A. WALLACE TASHIMA, Circuit Judges. OPINION TASHIMA, Circuit Judge. 1 We must decide whether Washington residential burglary is a "crime of violence" under the Sentencing Guidelines. For the reasons hereinafter stated, we conclude that it is not. 2 Timothy Wenner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). In 1995, Wenner pled guilty to the state crimes of residential burglary, Wash. Rev.Code § 9A.52.025(1), and attempted residential…

We must decide whether Washington residential burglary is a “crime of violence” under the Sentencing Guidelines. For the reasons hereinafter stated, we conclude that it is not.

Timothy Wenner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). In 1995, Wenner pled guilty to the state crimes of residential burglary, Wash. Rev.Code § 9A.52.025(1), and attempted residential burglary, Id. § 9A.28.020(1), both felonies under Washington law. Id. § 9A.52.025(2); Id. § 9A.28.020(3)(c). At sentencing, the district court found that these two crimes were crimes of violence, and therefore held his base offense level to be 24. U.S.S.G. § 2K2.1(a)(2). Wenner appeals, arguing that these convictions are not crimes of violence under the Guidelines. We have jurisdiction over this timely appeal pursuant 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We reverse and remand for resentencing.

ANALYSIS

Under the Guidelines, a crime of violence is “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of…

dissenting.

Wenner pled guilty to burglarizing “a dwelling other than a vehicle, residence of Mike Jewell.” The majority concludes that Wenner did not commit a “burglary of a dwelling” or any other “crime of violence” as defined under the Sentencing Guidelines. I dissent from the majority’s strained interpretation of federal law.

The district court should be affirmed for two reasons. First, while we use the categorical approach outlined in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990) (applying Taylor’s categorical approach to the Guidelines), we do not extend Taylor’s definition of generic burglary to the Guidelines’ more specific offense “burglary of a dwelling.” Second, the district court should be affirmed because, even if Washington defines residential burglary more broadly than the Guidelines’ “burglary of a dwelling,” residential burglary is nonetheless a crime of violence under the Guidelines’ catch-all provision.

I.

Wenner was convicted in state court of residential burglary, which Washington defines as “entering] or remaining] unlawfully in a dwelling other than a vehicle”…