911 F2d 361 United States v. Cunningham

911 F.2d 361

UNITED STATES of America, Plaintiff-Appellee,
Randall Gene CUNNINGHAM, Defendant-Appellant.

No. 88-3046.

United States Court of Appeals,
Ninth Circuit.

Aug. 17, 1990.

David K. Allen, Allen & Allen, Portland, Or., for defendant-appellant.

Stephen F. Peifer, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

On Remand from the United States Supreme Court.

Before TANG and SKOPIL, Circuit Judges, and McKIBBEN,* District Judge.


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This matter returns to us following an order from the United States Supreme Court. See United States v. Cunningham, --- U.S. ----, 110 S.Ct. 2580, 110 L.Ed.2d 261 (1990). The Court vacated our prior opinion, United States v. Cunningham, 878 F.2d 311 (9th Cir.1989), and remanded for our further consideration in light of Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In our prior opinion we reversed the district court's imposition of an enhanced criminal sentence under the Armed Career Criminal Act, 18 U.S.C. Sec. 924 (1988). Cunningham, 878 F.2d at 312. In light of Taylor, we must now affirm that sentence.


Randall 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). The government sought an enhanced sentence, charging that Cunningham had three prior felony convictions. Under the Armed Career Criminal Act, an individual who transports a firearm in interstate commerce and has three previous convictions for a violent felony or a serious drug offense "shall be fined not more than $25,000 and imprisoned not less than fifteen years." 18 U.S.C. Sec. 924(e)(1). Cunningham argued to the district court that his prior Oregon state conviction for second-degree burglary should not be considered because it was not a "violent felony." The district court rejected Cunningham's argument and imposed a sentence of twenty years' imprisonment.


On appeal we noted that the statute defines "violent felony" to include "burglary." Cunningham, 878 F.2d at 312 (citing 18 U.S.C. Sec. 924(e)(2)(B)(ii)). Nevertheless, we concluded that Cunningham's second-degree burglary conviction could not be used for enhancement purposes because we had previously held that Congress intended the term "burglary" in the Act to mean only common law burglary. Id. (citing United States v. Chatman, 869 F.2d 525, 527 (9th Cir.1989)). Under Oregon law a person commits burglary in the second-degree if he or she "enters or remains unlawfully in a building with intent to commit a crime therein." Or.Rev.Stat. Sec. 164.215(1). Because Oregon's second-degree burglary statute does not contain all of the elements of common law burglary, we concluded that we were compelled to vacate Cunningham's enhanced sentence. Cunningham, 878 F.2d at 312.


After our decision in Cunningham, the Supreme Court rejected the use of the common law definition of burglary for determining whether sentence enhancement is proper under section 924(e). Taylor, 110 S.Ct. at 2158. The Court adopted a "generic" definition of burglary, concluding that "a person has been convicted of burglary for purposes of a Sec. 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." Id. Since Oregon defines the elements of second-degree burglary in virtually identical fashion, we conclude that Cunningham's second-degree burglary conviction was properly considered for purposes of sentence enhancement under the Armed Career Criminal Act. Accordingly, the district court did not err in imposing an enhanced sentence.




The Honorable Howard D. McKibben, United States District Judge for the District of Nevada, sitting by designation