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Sentencing — crime of violence

By: WISCONSIN LAW JOURNAL STAFF//January 27, 2012//

Sentencing — crime of violence

By: WISCONSIN LAW JOURNAL STAFF//January 27, 2012//

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — crime of violence

The district court properly treated a prior burglary conviction as a crime of violence in setting the defendant’s base offense level for felon in possession of a firearm.

“Although Scanlan has identified some examples of convictions under § 459 where the conduct was nonviolent and the entry was consensual, every conceivable set of facts covered by § 459 does not have to present a serious potential risk of injury for it to qualify as a crime of violence under § 4B1.2(a)(2). James, 550 U.S. at 207- 08. After we rejected counsel’s motion to withdraw and directed briefing, the Ninth Circuit answered a question not addressed in Aguila-Montes De Oca and held that § 459 is categorically a crime of violence under § 4B1.2(a)’s residual clause. United States v. Park, 649 F.3d 1175, 1180 (9th Cir. 2011). The court noted, id. at 1178-80, that the Supreme Court of California and other California courts have emphasized the potentially violent nature of the ordinary case of residential burglary despite § 459 not requiring unlawful entry, see People v. Davis, 18 Cal. 4th 712, 721 (Cal. 1998); People v. Rodriguez, 18 Cal. Rptr. 550, 558 (Cal. Ct. App. 2004). And the Supreme Court has stated that the ‘main risk of burglary arises not from the simple physical act of wrongfully entering into another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.’ James, 550 U.S. at 203. As to the second step, the Ninth Circuit held that § 459 is roughly similar to generic burglary. Park, 649 F.3d at 1180. Although § 459 does not require unlawful entry, it does require some form of entry, making it arguably more similar to generic burglary than the attempted burglary statute that the Supreme Court found was a crime of violence in James. See Park, 649 F.3d at 1180.”

Affirmed.

10-3377 U.S. v. Scanlan

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Per curiam.

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