UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4059

DANIEL HOWARD CAIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-96-27-5)

Argued: December 5, 1997

Decided: March 27, 1998

Before WILLIAMS, Circuit Judge, WILSON, Chief United States

District Judge for the Western District of Virginia, sitting by

designation, and MORGAN, Senior United States District Judge for

the Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI,

L.C., Wheeling, West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant United States Attorney, Wheeling, West Virginia, for

Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,

Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury found Daniel Howard Cain guilty of possessing a firearm

after having been convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1). The district court found him to be an armed career criminal under 18 U.S.C. § 924(e)1 and sentenced him to 235 months

imprisonment. Cain contends that the district court improperly considered a conviction under a Pennsylvania burglary statute as a predicate offense in making its § 924(e) determination. He also raises

various trial and sentencing errors. We affirm.

I.

Cain is an inveterate criminal. He has been convicted of at least

twenty-five serious offenses, many of which are felonies and some of

which are violent. The evidence in the instant case, viewed in the light

most favorable to the government, establishes the following. Cain

purchased a .22 caliber rifle from Terry Jobes, the stepfather of a

neighbor, Susan Annett Smith. Several days later, in the early morning hours of September 21, 1995, while in a drunken state, Cain used

the rifle in what appears to have been a sporting event to fill his

rented trailer in Wetzel County, West Virginia full of holes and to

shoot at Ms. Smith's house and at the gas tank of his parked car. Ms.

Smith witnessed part of the event and called the police.

The police went to Cain's trailer later that day but Cain was not

home. Several days later the police returned, questioned Cain about

the incident, and with his consent searched the trailer. They found

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1 Section 924(e) provides that a person who has violated 18 U.S.C.

§ 922(g) and who has three previous convictions for violent felonies or

serious drug offenses shall be fined no more than $25,000 and shall be

imprisoned for at least fifteen years. 18 U.S.C.§ 924(e).

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nothing in the search. Cain could not behave, however, even during

the brief time the police were there. He assaulted his girlfriend, and

the police arrested him. He never returned to live in the trailer after

that arrest, and in early February 1996, a neighborhood child found

a .22 caliber rifle in a snowbank behind Cain's trailer. Later, Jobes

identified the rifle as the one he sold to Cain.

The government charged Cain with possessing that firearm in violation of 18 U.S.C. § 922(g)(1), and a jury found him guilty. The presentence report noted that Cain's three prior convictions for the

violent felonies of armed robbery, burglary, and robbery qualified

him as an armed career criminal under 18 U.S.C.§ 924(e)(1).

Cain objected to the inclusion of the burglary conviction as a predicate offense. That conviction resulted from Cain's 1978 guilty plea in

Pennsylvania to burglarizing an automobile dealership building in

violation of Pennsylvania's burglary statute, 18 Pa. Cons. Stat. Ann.

§ 3502.2 The presentence report described that conviction and two

related theft convictions arising out of an incident on November 29,

1977, as follows:

On that date, a window at the car dealership was broken

and several sets of new car keys were stolen. It was discovered that the defendant used the key to steal a 1978 Buick

valued at $7,249. He drove his car to Pittsburgh, returned to

the dealership and stole a second Buick LaSabre valued at

$7,272. He was driving this car when he was arrested by the

Pittsburgh police.

As a result of the defendant's arrest on December 8,

1977, two Informations were filed in Allegheny County

Common Pleas Court. At CC7708312A, Mr. Cain was

charged with Burglary, the break-in at [the automobile

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2 This statute provides that "[a] person is guilty of burglary if he enters

a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises

are at the time open to the public or the actor is licensed or privileged

to enter." 18 Pa. Cons. Stat. Ann. § 3502(a).

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dealership], and two counts of Theft, one for each of the

stolen Buicks.

Joint Appendix (J.A.) 474.

Cain's objection centered upon his contention that convictions

under Pennsylvania's burglary statute could not qualify as predicate

offenses:

Mr. Cain contends that his burglary conviction does not

qualify as an enhancement in that the predicate offense

involves Pennsylvania burglaries. Pennsylvania burglaries

are different from, and broader than, even the modern

generic definition of burglary contained in the majority of

the States' Criminal Codes.

J.A. 512. Cain never contended, however, that the presentence report

mischaracterized the facts of the incident or his plea to burglary of the

automobile dealership's building.

The government replied to Cain's objection, quoting the specific

charge to which Cain pled guilty:

The actor entered a building or occupied structure or separately secured or occupied portion thereof; namely a commercial building occupied as a new car Buick agency

occupied by Levine-Jones Buick, Inc., with the intent to

commit a crime therein, at the time when the premises were

not opened to the public and the actor was not licensed or

privileged to enter, in violation of Section 3502 of the Pennsylvania Crimes Act of December 6, 1972, 18 Pa. C. S.

§ 3502. (emphasis added)

J.A. 103. Cain neither responded nor challenged at sentencing the

government's recitation of the Pennsylvania charge. The district court

overruled Cain's objection, found the conviction to qualify as a predicate offense, and sentenced Cain as an armed career criminal. After

it sentenced Cain, the district court permitted the government to supplement the record with the Pennsylvania indictment and judgment of

conviction.

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II.

Cain appears to make two challenges to the district court's finding

that he is an armed career criminal under § 924(e)(1). First, he continues to maintain that no conviction under Pennsylvania's burglary statute can qualify as a predicate offense. Second, he makes a challenge

he did not make at sentencing. He maintains that even if a conviction

under the statute can qualify, the government failed to prove that his

conviction qualified because the government did not formally introduce into evidence the charging instrument or certified record of conviction at sentencing. We reject both challenges.

The sentence enhancement provision of § 924(e) applies if a defendant has three previous violent felony or serious drugs convictions.

"Violent felony" is defined as a crime punishable by more than one

year imprisonment that:

(i) has as an element the use, attempted use, or threatened

use of physical force against the person of another; or

(ii) is burglary, arson or extortion, involves use of explosives, or otherwise involves conduct that presents a serious

potential risk of visible injury to another.

18 U.S.C. § 924(e)(2)(B). Any generic burglary--burglary as that

term is ordinarily used in most states' criminal codes--qualifies as a

burglary under the statute. United States v. Taylor, 495 U.S. 575, 598

(1990). The Supreme Court in Taylor held that "the generic . . . meaning of burglary contains at least the following elements: an unlawful

or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor , 495 U.S. at 598; see also

United States v. Bowden, 975 F.2d 1080, 1083 (4th Cir. 1992).

In determining whether a burglary conviction qualifies, the sentencing court ordinarily should look only to the statutory definition of

the offense and not to the underlying facts of the conviction. Taylor,

495 U.S. at 601. If the statute proscribes conduct that may or may not

qualify as generic burglary, however, the court may look beyond the

fact of conviction and the statutory definition and determine whether

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the indictment and jury instructions, for example, required the jury to

"actually find all the elements of [generic] burglary." United States v.

Cook, 26 F.3d 507, 509 (4th Cir. 1994). The Pennsylvania burglary

statute criminalizes conduct that qualifies as generic burglary because

it prohibits the unlawful entry into a building with the intent to commit a crime. See Pa. Cons. Stat. Ann. § 3502(a). We reject, therefore,

Cain's first challenge that no conviction under that statute can qualify

as a predicate offense. We now turn our attention to Cain's second

challenge, a challenge he did not raise at sentencing--that the government failed to prove that his conviction qualifies because it did not

formally introduce at sentencing the charging instrument or certified

record of conviction.

Although the Pennsylvania burglary statute criminalizes conduct

constituting generic burglary, it also criminalizes conduct that would

not qualify as generic burglary. See United States v. Bennett, 100 F.3d

1105, 1109 (3rd Cir. 1996) (holding that Pennsylvania's burglary statute was broader than the generic definition of burglary because the

definition of "occupied structure" under Pa. Con. Stat. Ann. § 3501

included vehicles and places adapted for "carrying on business").

Consequently, Cain's burglary conviction does not automatically

qualify as a "violent felony" under § 924(e). It qualifies only if the

Pennsylvania trial court that accepted Cain's plea was required to find

all the elements of generic burglary. In this case, that inquiry appropriately begins with the presentence report.

The presentence report related the conduct that resulted in Cain's

guilty plea--the break-in of the automobile dealership's building--

and described the charge as a "[b]urglary" charge for the "break-in at

[the automobile dealership]." Cain's objection to the presentence

report focused on the question of whether any violation of the Pennsylvania burglary statute could qualify as a predicate offense. Cain

neither challenged the report's description of the charge and conviction3

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3 A defendant has the burden of showing that his presentence report is

inaccurate or unreliable. United States v. Terry , 916 F.2d 157, 162 (4th

Cir. 1990). The defendant may not merely object to a finding in the

report, but must make an affirmative "showing that the information in the

presentence report is unreliable, and articulate the reasons why the facts

contained therein are untrue or inaccurate." Id. If the defendant fails to

make such a showing, "the court `is free to adopt the findings of the [presentence report] without more specific inquiry or explanation.'" Id.

(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir. 1990)).

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nor the government's verbatim recitation of the charge. Moreover, at

sentencing, Cain never argued that the government had failed to prove

that he was convicted of burglarizing the automobile dealership's

building or that the proof of that conviction was deficient because the

government had failed to introduce the indictment and judgment of

conviction. As framed by Cain's objection to the presentence report

and Cain's arguments at sentencing, therefore, the issue before the

district court relating to Cain's career criminal status remained simply

whether a conviction under the Pennsylvania burglary statute could

ever qualify as a predicate offense. The introduction of the pertinent

legal documents was unnecessary to resolve that narrow issue. Consequently, we conclude that the district court properly sentenced Cain

as an armed career criminal.4

III.

Cain also complains about the district court's refusal to credit him

with acceptance of responsibility under U.S.S.G.§ 3E1.1. Cain testified at sentencing that Ms. Smith lied about seeing him with the rifle.

The district court obviously concluded otherwise, and decided instead

that Cain had testified untruthfully about those matters. The district

court did not clearly err in reaching this conclusion and in not crediting Cain with acceptance of responsibility. See United States v.

Gordon, 895 F.2d 932, 937 (4th Cir. 1990).

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4 Because Cain did not challenge the presentence report's description

of his burglary conviction and did not argue at sentencing that the government had failed to satisfy its burden of proof because it failed to introduce the pertinent legal documents, we once again decline to decide

whether a district court may rely on a presentence report's description of

a burglary conviction, when the reliability of that description is in issue.

See United States v. Bowden, 975 F.2d 1080, 1082 n.2 (4th Cir. 1992).

We note, however, that other circuits have held that a sentencing court

in some circumstances may look to a presentence report in analyzing the

nature of a previous conviction for purposes of sentencing pursuant to

§ 924(e). See United States v. Harris, 964 F.2d 1234, 1236 (1st Cir.

1992); United States v. Adams, 91 F.3d 114, 116 (11th Cir.), cert. denied,

117 S. Ct. 623 (1996). Moreover, we agree with the Second Circuit that

absent a challenge to the reliability of the presentence report's description of the predicate offense, a remand is unwarranted. See United States

v. Pearson, 77 F.3d 675, 677 (2d Cir. 1996).

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IV.

After the court sentenced Cain, it permitted the government to submit the records of Cain's Pennsylvania burglary conviction for purposes of appeal pursuant to Rule 10(e) of the Federal Rules of

Appellate Procedure. Those records contain additional support for the

conclusion that Cain pled guilty to generic burglary. Cain challenges

the district court's decision to supplement the record. In light of our

conclusion that the district court properly sentenced Cain on the

record before it, we need not decide the issue.

V.

Cain contends additionally that the district court erred by refusing

to instruct the jury that the government was required to prove beyond

a reasonable doubt that his possession of the rifle had a substantial

impact on interstate commerce. Cain cites the case of United States

v. Lopez, 514 U.S. 549 (1995), in support of his argument. In Lopez,

the Supreme Court struck down as unconstitutional the Gun-Free

School Zones Act, 18 U.S.C. § 922(q), which prohibited possession

of a firearm in a school zone. The Court found that the provision by

its terms had nothing to do with commerce and that the statute contained no jurisdictional element that would ensure"through a case-bycase inquiry" that the possessed firearm had affected interstate commerce. Lopez, 514 U.S. at 561. Lopez, however, does not stand for the

proposition that the specific conduct of each charged individual must

have a substantial impact on interstate commerce. In fact, "Lopez

expressly reaffirmed the principle that `where a general regulatory

statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995)

(quoting Lopez, 514 U.S. at 558)); see also Perez v. United States,

402 U.S. 146, 154 (1971) ("Where the class of activities is regulated

and that class is within the reach of federal power, the courts have no

power `to excise, as trivial, individual instances' of the class.") (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968)). This court,

subsequent to Lopez, has held that Congress acted within its power

under the Commerce Clause in passing 18 U.S.C. § 922. See United

States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996) (holding that

§ 922(g)'s jurisdictional element requiring the government to prove

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the firearm's connection to interstate commerce satisfied "the minimal nexus required for the Commerce Clause"). The government,

therefore, does not need to prove that a specific individual's possession of a firearm had a "substantial" impact on interstate commerce

in order to convict a defendant under § 922. Accord United States v.

Farnsworth, 92 F.3d 1001, 1006-07 (10th Cir.) (holding that the government did not need to show that the individual's firearm possession

substantially affected interstate commerce in order to convict a defendant under § 922), cert. denied, 117 S. Ct. 596 (1996). The district

court, therefore, properly refused Cain's proffered instructions.

VI.

Cain claims the district court erred in a number of its evidentiary

rulings. Such rulings will not be disturbed absent an abuse of discretion. See United States v. ReBrook, 58 F.3d 961, 967 (4th Cir. 1995).

We have reviewed those rulings and find no abuse of discretion.

First, Cain complains about evidence that he possessed a rifle other

than the one described in the indictment. That evidence actually came

in on cross-examination. Cain's counsel cross-examined Jobes about

the date Jobes claimed he sold Cain the rifle described in the indictment, noting that Jobes had given a different date on an earlier occasion. The court permitted Jobes to explain that he had mistaken the

date with the date he sold Cain another rifle. Under the circumstances

it was perfectly appropriate, indeed necessary, for Jobes to explain.

Jobes' explanation had become intertwined with evidence of the

offense charged against Cain, and the court properly admitted it. See

United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1995)

("[E]vidence of uncharged conduct is not considered `other crimes'

evidence if it . . . `is necessary to complete the story of the crime (on)

trial.'") (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir.

1989)); United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)

(holding that Rule 404(b) of the Federal Rules of Evidence did not

prohibit evidence of other crimes "when such evidence `furnishes part

of the context of a crime' or is necessary to a`full presentation' of

the case, or is so intimately connected with and explanatory of the

crime charged against the defendant and is so much a part of the setting of the case and its `environment' that its proof is appropriate in

order `to complete the story of the crime on trial by proving its imme-

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diate context or the `res gestae.'" (footnotes omitted)).5 Moreover, out

of an abundance of caution, the court told the jury to disregard the

evidence of the other rifle. That instruction was broader than required,

and, in any event, was sufficient to avoid any hint of prejudice.

Second, Cain maintains that the court erred in admitting evidence

of the altercation between Cain and his girlfriend. We disagree. We

find that this evidence was intertwined with circumstantial evidence

of the offense charged against Cain and that it was necessary to complete the story of the crime. See Kennedy, 32 F.3d at 85-86. The

police arrested Cain while the search was in progress; Cain never

returned to the trailer to live; and although the police failed to find the

rifle in their search of Cain's trailer, a neighborhood child found the

rifle in a snowbank close to Cain's trailer. Cain's arrest helps to

explain his subsequent absence from the trailer. This absence, in turn,

provides a reason for Cain's failure to retrieve the rifle and explains

why it was still located nearby several months after the shooting. In

our view, therefore, the police officer's testimony regarding Cain's

altercation and arrest is intertwined with a link in the chain of circumstantial evidence against Cain, and the court properly admitted it.

Third, Cain maintains that the court erred in admitting evidence

that there were bullet holes in his trailer. We find that evidence to be

corroborative of Ms. Smith's testimony and see no reason why the

court should not have admitted it.

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5 Cain's case is distinguishable from United States v. Tate, 715 F.2d

864 (4th Cir. 1983), in which this court ruled that the district court erred,

pursuant to Rule 404(b) of the Federal Rules of Evidence, by allowing

testimony that the defendant earlier had possessed a gun different from

the firearms involved in the charge against him. In Tate, the government

at trial introduced this evidence in an attempt to rebut the defendant's

testimony that he lacked knowledge of the presence and ownership of the

guns in question. Tate, 715 F.2d at 865. On appeal, the Tate court ruled

that evidence of the earlier firearm had no relevance to these issues. Id.

In Cain's case, by contrast, the government did not affirmatively introduce the disputed testimony. Rather, the testimony was elicited by the

defendant during cross-examination in an attempt to impeach the government's witness. The testimony regarding the earlier firearm constituted

an integral part of the witness' answer to defense counsel's attempt to

impeach Jobes.

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Fourth, and finally, Cain complains about the statement of the officer that searched his trailer that Cain "really didn't want to answer

any of [his] questions." Cain had moved in limine to exclude Cain's

refusal to answer questions. The government responded to the motion

that it did not intend to offer evidence of Cain's refusal. Despite that

response, the officer testified without further objection that Cain did

not want to answer his questions. Presumably, Cain now maintains

that the officer's statement is an improper comment about Cain's right

to remain silent. We reject Cain's argument.

"The government may comment on a defendant's silence if it

occurred prior to the time that he is arrested and given his Miranda

warnings. . . . In addition, the government may comment on a defendant's silence when it occurs after arrest, but before Miranda warnings are given." United States v. Rivera, 944 F.2d 1563, 1568 (11th

Cir. 1991); see also United States v. Love, 767 F.2d 1052, 1063 (4th

Cir. 1985); Folston v. Allsbrook, 691 F.2d 184, 187 (4th Cir. 1982).

On the record before the court it is impossible to determine whether

or not the comment was improper. Even in the event that the trial

court erred by allowing the officer's testimony, however, that error

was harmless. See Chapman v. California, 386 U.S. 18, 23-24 (1967);

Tuggle v. Netherland, 79 F.3d 1386, 1392 (4th Cir.), cert. denied, 117

S. Ct. 237 (1996). Susan Annett Smith testified that she observed

Cain holding a rifle in his trailer and then saw him shooting a .22 rifle

as he stood outside her bedroom window. Terry Jobes testified that

he had traded a .22 rifle to Cain a few days before the shooting and

identified that rifle as the one later found near Cain's trailer. In the

face of such evidence, we have no trouble finding beyond a reasonable doubt that the guilty verdict in Cain's case was unattributable to

the police officer's passing comment regarding Cain's reluctance to

answer questions. See Chapman, 386 U.S. at 24; Sullivan v.

Louisiana, 508 U.S. 275, 279 (1993).

VII.

Finally, Cain challenges the sufficiency of the evidence. We must

uphold the jury's verdict "if there is substantial evidence, taking the

the view most favorable to the government, to support it." Glasser v.

United States, 315 U.S. 60, 80 (1942). We find Cain's challenge to

be without merit.

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When construed in the light most favorable to the government, we

believe that, based on the evidence detailed above, a rational jury

could have concluded beyond a reasonable doubt that the rifle found

by the neighborhood child near Cain's trailer was the same rifle Cain

possessed on September 21, 1995 and that Cain discarded it there.

We, therefore, reject Cain's final challenge.

VIII.

For the reasons stated above, the judgment of the district court is

affirmed.

AFFIRMED

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