* District Judge of the Western District of Louisiana, sitting by

designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-30311

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT CLAIBORNE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________

January 6, 1998

Before JONES and SMITH, Circuit Judges, and SHAW,* District Judge.

PER CURIAM:

Robert Claiborne challenges his sentence, arguing that the

district court erred in treating the attempted unauthorized entry

of an inhabited dwelling as a “crime of violence” for purposes of

the career offender provisions of the United States Sentencing

Guidelines. We affirm.
2

I.

Claiborne was indicted on six counts of bank robbery in

violation of 18 U.S.C. § 2113(a). He pleaded guilty to all counts.

At sentencing, the district court applied the Guidelines' career

offender provisions, U.S.S.G. §§ 4B1.1, 4B1.2, based on Claiborne's

prior convictions for burglary of a residence and for attempted

unauthorized entry of an inhabited dwelling. Claiborne objected on

grounds that the latter offenseSSattempted unauthorized entrySSwas

not a “crime of violence” under U.S.S.G. § 4B1.2(a) and thus could

not support sentencing under the harsher provisions for career

offenders. Although the government did not oppose the objection,

the district court overruled it and sentenced Claiborne to a term

of 188 months.

II.

The sole issue on appeal is whether the district court erred

in characterizing Claiborne's prior conviction as a crime of

violence. The government joins Claiborne in arguing that the

district court misapplied the Guidelines. We will uphold a

sentence unless it was imposed in violation of the law, resulted

from an erroneous application of the Guidelines, or represents an

unreasonable departure from the authorized range. United States v.

Kirk, 111 F.3d 390, 393 (5th Cir. 1997). We review a district

court's interpretation of the Guidelines de novo, and its findings

of fact for clear error. United States v. Hawkins, 69 F.3d 11, 12

(5th Cir. 1995).
3

A.

Defendants deemed career offenders are subject to longer

sentences under the Guidelines. To earn career offender status, a

defendant must satisfy three requirements: He must have been at

least eighteen years old at the time of the instant offense of

conviction; the instant offense of conviction must be a felony that

is either a crime of violence or a controlled substance offense;

and the defendant must have at least two prior felony convictions

of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. Claiborne does not dispute that he meets the

first two requirements; his focus, and ours, is on the third.

The term “crime of violence” is defined in U.S.S.G. §

4B1.2(a):

(a) The term “crime of violence” means any offense

under federal or state law, punishable by

imprisonment for a term exceeding one year,

that SS

(1) has as an element the use, attempted

use, or threatened use of physical

force against the person of another,

or

(2) is burglary of a dwelling, arson, or

extortion, involves use of explosives, or

otherwise involves conduct that presents

a serious potential risk of physical

injury to another.

We agree with Claiborne that attempted unauthorized entry cannot be

characterized as a crime of violence under subsection (a)(1).

Claiborne violated LA. REV. STAT. 14:62.3 (the unauthorized entry

statute) and LA. REV. STAT. 14:27 (the attempt statute). The former

provides in relevant part: “Unauthorized entry of an inhabited
 

2 The attempt statute, LA. REV. STAT. 14:27, provides in relevant part:

A. Any person who, having a specific intent to commit a crime,

does or omits an act for the purpose of and tending directly toward

the accomplishing of his object is guilty of an attempt to commit

the offense intended; and it shall be immaterial whether, under the

circumstances, he would have actually accomplished his purpose.

B. Mere preparation to commit a crime shall not be sufficient

to constitute an attempt; but lying in wait with a dangerous weapon

with the intent to commit a crime, or searching for the intended

victim with a dangerous weapon with the intent to commit a crime,

shall be sufficient to constitute an attempt to commit the offense

intended.

C. An attempt is a separate but lesser grade of the intended

crime; and any person may be convicted of an attempt to commit a

crime, although it appears on the trial that the crime intended or

attempted was actually perpetrated by such person in pursuance of

such attempt.

4

dwelling is the intentional entry by a person without authorization

into any inhabited dwelling or other structure belonging to another

and used in whole or in part as a home or place of abode by a

person.”2 Because force, or the attempted or threatened use of

force, is not an element of the offense, attempted unauthorized

entry cannot qualify as a crime of violence under

subsection (a)(1). Nor is attempted unauthorized entry one of the

enumerated crimes listed in the first half of subsection (a)(2).

We disagree, however, with Claiborne's reading of the second

half of that subsectionSSthe residual clauseSSwhich defines a

violent crime as any offense that “otherwise involves conduct that

presents a serious potential risk of physical injury to another.”

For the reasons discussed below, we interpret this language as

encompassing the offense of attempted unauthorized entry of a

dwelling. Accordingly, we hold that the district court did not

misapply the Guidelines when sentencing Claiborne.

Claiborne launches a double-barreled attack on this
 

3 A questionable proposition at best, given our remarks in United States

v. Guerra, 962 F.2d 484 (5th Cir. 1992), where we construed “crime of violence”

for purposes of U.S.S.G. § 4B1.2. We noted that United States v. Martinez,

954 F.2d 1050 (5th Cir. 1992), a case arising under 18 U.S.C. § 924(e), “does not

control this case. It is true that the guidelines' definition of 'crime of

violence' is derived from the definition of 'violent felony' in § 924(e).

However, in adopting and amending § 4B1.2, the Sentencing Commission chose to

implement a different standard than the one Congress enacted in § 924(e).

Therefore, the meaning of 'crime of violence' for purposes of the career offender

guideline is not the same as what we interpreted 'violent felony' to include for

purposes of the Armed Career Criminal Act in Martinez.” Guerra, 962 F.2d at 487

(footnote and internal citations omitted).

5

conclusion. First, he argues that his offense cannot be classified

as violent under Taylor v. United States, 495 U.S. 575 (1990).

There, the Court held that a conviction under a state burglary

statute may qualify as a violent felony if the statute contains

“the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a

crime.” Id. at 599 (emphasis added). Claiborne correctly observes

that the Louisiana unauthorized entry statute lacks a criminal

intent requirement, but he downplays a crucial distinctionSSthe

Taylor Court was construing a single word in 18 U.S.C. § 924(e),

not the provision at issue here: the residual clause of U.S.S.G.

§ 4B1.2. The Court did not specify what statutory elements must be

present before a crime may be classified as violent, but instead

answered a far narrower questionSSwhat types of offenses Congress

meant by the word “burglary” in the context of sentence enhancement

under § 924(e). 

Even if we accept the government's argument that cases

construing § 924(e) may be applied in a Guidelines context,3 all

Taylor tells us is that unauthorized entry is not burglary;

accordingly, Claiborne's sentence may not be upheld on grounds that
6

he committed “burglary.” Taylor does not answer the question

whether Claiborne's offense “otherwise involves conduct that

presents a serious potential risk of physical injury to another.”

We have upheld sentences on the basis of other crimes not

enumerated in the Guidelines, but that qualified as violent under

the residual clause. For example, in Kirk, we concluded that the

offense of sexual indecency with a child involving sexual contact

qualified as a crime of violence under the residual clause.

Similarly, in United States v. Hawkins, 69 F.3d 11, 13 (5th Cir.

1995), we relied on the residual clause in holding that felony

theft from a person was a crime of violence. Accepting Claiborne's

argument that we must confine ourselves to the statutory elements

of the crime would render the residual clause a nullity.

Claiborne next argues that his offense did not pose a risk of

physical injury because, unlike a burglar, an individual convicted

of unauthorized entry does not necessarily act with criminal

intent. We do not agree that a home invader's nonfelonious mindset

eliminates the risk of physical injury to his victims. As noted in

United States v. Guadardo, 40 F.3d 102, 104 (5th Cir. 1994), in

which we held that burglary of a habitation under the Texas Penal

Code is a crime of violence for purposes of 18 U.S.C. § 16,

“whenever a private residence is broken into, there is always a

substantial risk that force will be used” (emphasis in original).

See also United States v. Jackson, 22 F.3d 583, 584-85 (5th Cir.

1994) (distinguishing between burglaries of private residences and

burglaries of unoccupied buildings for purposes of U.S.S.G.
 

4 In determining whether a defendant committed a crime of violence for

purposes of U.S.S.G. § 4B1.2, we may consider his specific conduct that resulted

in conviction. Kirk, 111 F.3d at 395 n.8; Jackson, 22 F.3d at 585. The

underlying facts of Claiborne's conviction for attempted unauthorized entry are

not set forth in the briefs, but the presentence report notes that he,

accompanied by two men, attempted to enter the inhabited dwelling of a woman

living in New Orleans.

 

5 Commentary in the Guidelines Manual “is authoritative unless it violates

the Constitution or a federal statute, or is inconsistent with . . . that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

7

§ 4B1.2). A homeowner's surprise confrontation with an intruder is

laced with the potential for violence, regardless of whether the

intruder is a burglar or merely an unauthorized entrant.4

Although Claiborne himself eschews this argument, the

government pounces on the distinction between a conviction for

unauthorized entry and a conviction for attempted unauthorized

entry. It invokes United States v. Martinez, 954 F.2d 1050 (5th

Cir. 1992), as authority that attempted entry poses no significant

risk of physical injury. In Martinez, we concluded that “the crime

of attempted burglary simply cannot be said to present the sort of

categorical danger of serious risk of injury to others that is

required to count an offense as a 'violent felony.'” Id. at

1054 n.3. But the government ignores application note 1 of the

commentary to U.S.S.G. § 4B1.2, which explicitly provides that

“'crime of violence' and 'controlled substance offense' include the

offenses of aiding and abetting, conspiring, and attempting to

commit such offenses.”5 

In Martinez, we had no need to confront this language, because

the case arose not under the Guidelines, but under 18 U.S.C.
 

6 We observed that “if Congress had wished to include attempted burglary

as an offense warranting sentence enhancement, it easily could have done so. .

. . [I]f Congress believed that the attempt should be treated the same way as the

crime itself, it could have said so with virtually no effort. The Government,

however, presents no argument from the legislative history that the Congress even

considered including the crime of attempted burglarySSor any other attemptSSwhen

it was considering § 924(e).” Martinez, 954 F.2d at 1053.

8

§ 924(e), which was silent as to the treatment of attempt.6 In

promulgating U.S.S.G. § 4B1.2, the Sentencing Commission erased the

very distinction the government urges us to recognize. For

purposes of the Guidelines' career offender provisions, the

defendant's conviction for an attempted crime is treated as though

he completed the act.

AFFIRMED.