1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-14-1995

United States v McClenton

Precedential or Non-Precedential:

Docket 94-1632

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Recommended Citation

"United States v McClenton" (1995). 1995 Decisions. Paper 94.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/94
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-1632 

 ___________ 

 UNITED STATES OF AMERICA 

 Appellant

 vs. 

 MICHAEL MCCLENTON 

 ___________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 93-cr-00221-2) 

 ___________ 

 

 Submitted under Third Circuit LAR 34.1(a) 

 March 30, 1995 

 Before: MANSMANN, COWEN and LEWIS, Circuit Judges. 

 (Filed April 14, 1995) 

 ___________ 

Michael R. Stiles, Esquire 

Walter S. Batty, Jr., Esquire 

Robert A. Zauzmer, Esquire 

Maureen Barden, Esquire 

Office of the United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 COUNSEL FOR APPELLANT 

Louis T. Savino, Jr., Esquire 

Louis T. Savino & Associates 

15th and JFK Boulevard 

Two Penn Center, Suite 1516 

Philadelphia, PA 19106 

 COUNSEL FOR APPELLEE 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 The government asks us to decide whether a hotel guest 

room constitutes a "dwelling," and therefore, whether a burglary 

of a hotel guest room may be considered a crime of violence for 

purposes of applying the career offender provision of the 

Sentencing Guidelines. Because the district court ruled that 

burglary of a hotel room was not the equivalent of burglary of a 

dwelling, McClenton was not sentenced as a career offender. 

 We hold that a hotel guest room, the sole purpose of 

which is to provide temporary lodging and a place to sleep, 

constitutes a dwelling within the meaning of Section 4B1.2 of the 

Sentencing Guidelines. Accordingly, we will vacate the district 

court's judgment of sentence and remand this matter for 

resentencing in accordance with our interpretation of the 

applicable Sentencing Guidelines. 

I. 

 On August 5, 1993, Michael McClenton was convicted of 

conspiracy to commit bank robbery in violation of 18 U.S.C. § 

371; bank robbery in violation of 18 U.S.C. § 2113(a); and armed 

bank robbery in violation of 18 U.S.C. § 2113(d). On June 13, 

1994, a sentencing hearing was held. The government asserted 

that McClenton should be sentenced as a career offender pursuant 

to Section 4B1.1 of the Guidelines because the presentence 

investigation revealed that McClenton had previously been 

convicted of felony burglary on three separate prior occasions. 
These three occasions involved the burglary or attempted burglary 

of hotel guest rooms. (PSI ¶ 34, 35, 37). 

 At the sentencing hearing, McClenton did not dispute 

that the factual summaries of these prior crimes, as set forth in 

the presentence report, were accurate.1 Rather, McClenton 

asserted that these were not burglaries of dwellings. Agreeing 

with McClenton, the district court ruled that the burglary of a 

hotel room is not the equivalent of the burglary of a dwelling, 

and therefore, Section 4B1.1's career offender provision did not 

apply. The court assigned McClenton a criminal history category 

 

1. The presentence report states the following: 

 -- On February 12, 1985, the defendant was seen with 

another person knocking on doors on the fifth 

floor of the Holiday Inn in King of Prussia, PA. 

They were then seen by a security officer on the 

fourth floor, and they fled. When apprehended 

outside the hotel, they were found to have several 

"Do Not Disturb" signs in their possession. On 

July 15, 1985, the defendant pled guilty to a 

burglary charge, and was sentenced to a prison 

term (PSI ¶ 34). 

 -- On September 27, 1986, the defendant entered a 

guest room at the Adam's Mark Hotel in 

Philadelphia, and stole $100 from the room. He 

forcibly pushed the complaining witness aside as 

he left the room and escaped down the fire escape. 

On December 2, 1987, the defendant pled guilty to 

a burglary charge as a result of this conduct and 

was sentenced to prison (PSI ¶ 35). 

 -- On March 15, 1987, the defendant and another 

person stole a credit card from a woman's 

pocketbook in a guest room of the Dunfey City Line 

Hotel in Philadelphia. On October 16, 1987, he 

pled guilty to, among other charges, burglary and 

was sentenced to a concurrent prison term (PSI ¶ 

37). 
of V. The combination of an offense level of 27 and a criminal 

history category of V produced a Guidelines range of 120 to 150 

months.2 The court imposed a sentence of 144 months of 

imprisonment on Counts One through Three, to run concurrently. 

 

2. The district court, applying the Sentencing Guidelines 

(Guidelines manual incorporating amendments effective November 1, 

1992), determined that McClenton's base offense level for the 

offense of bank robbery and armed bank robbery was 20, under 

Section 2B3.1. The court determined that a two level enhancement 

was warranted under Section 2B3.1(B)(1), which directs that two 

levels be added to the base offense level if property from a 

financial institution was taken. In addition, the court awarded 

a two level enhancement under Section 2B3.1(B)(6)(C) because the 

amount of loss, which McClenton did not dispute, exceeded 

$50,000. The government also sought an enhancement pursuant to 

Section 2B3.1(B)(4)(B), which provides for a two level increase 

if any person was physically restrained to facilitate commission 

of the offense or to facilitate escape. Because the district 

court found that the evidence established that the bank employees 

were not forcibly restrained, it declined to enhance under this 

provision. 

 The government also sought a two level enhancement for 

obstruction of justice under Section 3C1.1 on the ground that 

McClenton perjured himself. The district court refused to 

enhance by two levels under this section. 

 

 In addition to these enhancements, the government 

sought and the presentence report recommended a five level 

enhancement pursuant to section 2B3.1(B)(2)(C) of the Guidelines 

for brandishing, displaying or possessing a firearm. McClenton 

objected to the five level enhancement on the ground that he was 

acquitted on Count Four of the Indictment (possession of a 

firearm during and in relation to a crime of violence) and on the 

ground that the evidence was unclear as to which of the 

defendants, McClenton or his co-defendant Hawkins, actually 

possessed or brandished the firearm. Keeping in mind that the 

burden of proof at sentencing is a preponderance of the evidence, 

the district court found that there was insufficient evidence to 

establish that McClenton or his codefendant brandished, displayed 

or possessed a firearm. However, pursuant to Section 

2B3.1(B)(2)(E), the district court found there was sufficient 

evidence to establish that a dangerous weapon was brandished, 

displayed or possessed by one of the two defendants, thus 

enhancing McClenton's base offense level by three. This brought 

McClenton's offense level to 27. 
The district court imposed a term of five years of supervised 

release, restitution in the amount of $170,750 and a special 

assessment of $150.00. If McClenton had been sentenced as a 

career offender, he would have received a criminal history 

category of VI, an offense level of 34 and a corresponding 

Guidelines range of 262 to 327 months. 

 On May 23, 1994, McClenton filed his notice of appeal 

from the district court's judgment of conviction.3 On June 13, 

1994, the government filed this cross-appeal challenging the 

district court's determination not to sentence McClenton as a 

career offender. 

 The district court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction to review McClenton's 

sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(2). 

We exercise plenary review over the district court's application 

and interpretation of the Sentencing Guidelines. United States 

v. Collado, 975 F.2d 985, 990 (3d Cir. 1992); United States v. 

Murillo, 933 F.2d 195, 197 (3d Cir. 1991). 

II. 

 The starting point for our analysis is Section 4B1.1 of 

the Sentencing Guidelines. Section 4B1.1 provides that a 

defendant is a career offender if (1) the defendant was at least 

eighteen years old at the time of the instant offense, (2) the 

 

3. On April 14, 1995, we affirmed McClenton's judgment of 

conviction by Memorandum Opinion. See No. 94-1561. 
instant offense of conviction is a felony that is either a crime 

of violence or a controlled substance offense, and (3) the 

defendant has at least two prior felony convictions of either a 

crime of violence or a controlled substance offense. Here it is 

undisputed that McClenton was at least eighteen years of age at 

the time of the bank robbery. Likewise, it is undisputed that 

the present offense, armed bank robbery, is a crime of violence. 

The sole issue in dispute is whether McClenton's three prior 

convictions for burglary qualify as "crimes of violence" within 

the meaning of Section 4B1.1. 

 Section 4B1.2(1) defines the term "crime of violence" 

and provides: 

 The term crime of violence means any offense 

under federal or state law punishable by 

imprisonment for a term exceeding one year 

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 of a dwelling, 

. . ., or otherwise involves 

conduct that presents a serious 

potential risk of physical injury 

to another. 

Guidelines § 4B1.2(1)4 (emphasis added). The district court, 

interpreting this provision, concluded that under the facts of 

 

4. The application notes to this section restate this 

definition and clarify it as follows: 

 §4B1.2. Definitions of Terms Used in Section 4B.1

 * * * 
this case, the burglaries of the hotel rooms were not the 

equivalent of burglaries of dwellings and, thus, were not crimes 

of violence.5 

III. 

 A "dwelling" is a "building or portion thereof, a tent, 

a mobile home, a vehicle or other enclosed space which is used or 

intended for use as a human habitation, home or residence." 

(..continued) 

 2. "Crime of violence" includes murder, 

manslaughter, kidnapping, aggravated assault, 

forcible sex offenses, robbery, arson, 

extortion, extortionate extension of credit, 

and burglary of a dwelling. Other offenses 

are included where (A) that offense has as an 

element the use, attempted use, or threatened 

use of physical force against the person of 

another, or (B) the conduct set forth (i.e., 

expressly charged) in the count of which the 

defendant was convicted involved use of 

explosives (including any explosive material 

or destructive device) or, by its nature, 

presented a serious potential risk of 

physical injury to another. Under this 

section, the conduct of which the defendant 

was convicted is the focus of inquiry. 

 * * * 

Application Note 2 to Guidelines § 4B1.2 (emphasis added). 

5. The district court opined, "[I]n reaching this 

conclusion I can tell you that I'm motivated in part, at least, 

by the rather severe penalty for my finding that they are crimes 

of violence." (App. 2419). While understandable, this 

circumstance, i.e., a harsh sentence, cannot serve as a basis for 

a court to refuse to apply the Guidelines as written. United 

States v. McAllister, 927 F.2d 136, 139 n.5 (3d Cir.), cert. 

denied, 112 S. Ct. 111 (1991). 
Blacks Law Dictionary 505 (6th ed. 1990) (emphasis added).6 

Adopting this definition, the Court of Appeals for the Eighth 

Circuit held that the structures used as shelters for weekend 

fishing retreats fell within Section 4B1.2(1) and could be 

considered dwellings. United States v. Graham, 982 F.2d 315 (8th 

Cir. 1992) (citing Blacks Law Dictionary). A hotel guest room is 

intended for use as human habitation, albeit, in most 

circumstances, on a transient or temporary basis. Thus, a hotel 

guest room falls easily within this definition. 

 In United States v. Sherman, 928 F.2d 324 (9th Cir. 

1991), the Court of Appeals for the Ninth Circuit was asked to 

decide whether the burglary of the manager's office of a hotel 

was the equivalent of burglary of a dwelling. In a footnote, the 

court found that it was unnecessary to the resolution of that 

case to decide whether a burglary that takes place in a hotel 

office constituted a non-dwelling burglary. However, the court 

observed, "[B]ecause hotels are in the business of housing 

overnight guests many of the reasons that make traditional 

dwelling burglaries dangerous seem likewise present here." 928 

F.2d at 326 n.2. 

 "The reasons that make traditional dwelling burglaries 

dangerous," and worthy of serious treatment at sentencing, have 

their origins in the common law. At common law, burglary was 

 

6. A dwelling has also been defined as ". . . the 

apartment, room in a hotel, building or cluster of buildings in 

which a man with his family resides, or any permanent building in 

which a man may dwell and lie." 13 Am. Jur., Burglary Section 3 

(1964). 
considered to be an offense against habitation rather than 

against property. The peace of mind and security of the 

residents was sought to be protected, rather than the property. 

See 85 A.L.R. 428 (1933). Obviously, whether one burglarizes a 

private home or a hotel room, there is a much greater possibility 

of confronting the resident and a substantial risk that force 

will be used and that someone will be injured, than if one 

burglarized a building that was not intended for use as 

habitation, such as an office building after office hours or a 

warehouse. We find that it is this element -- the potential for 

confrontation and the substantial risk of harm -- that the 

Guidelines intended for enhanced punishment under Section 4B1.2. 

See, e.g., United States v. Salmon, 944 F.2d 1106, 1129 (3d Cir. 

1990), cert. denied, 112 S. Ct. 1213 (1992) (burglary of a 

dwelling is crime of violence because there is substantial risk 

that force will be used or that person will be injured). See

also United States v. Palmer, 871 F.2d 1202, 1209 (3d Cir. 1989) 

(in context of Armed Career Criminal Act, 18 U.S.C. § 924(e), 

burglary "presents a serious potential risk of physical injury to 

another."). Accord United States v. Gonzalez-Lopez, 911 F.2d 

542, 548-49 (11th Cir. 1990), cert. denied, 111 S. Ct. 2056 

(1991); United States v. Brunson, 907 F.2d 117, 120-21 (10th Cir. 

1990). 

IV. 

 McClenton argues that even if we conclude that the 

burglary of a hotel room qualifies as the burglary of a dwelling 

as a legal matter, the facts support a different conclusion in 
this case because two of the hotel rooms McClenton burglarized or 

attempted to burglarize were unoccupied.7 McClenton thus asserts 

that because no one was inhabiting these rooms, there was no one 

whose peace of mind and security was infringed. McClenton 

contends that a crime against property, not habitation, occurred 

and as such cannot be classified as a crime of violence. 

 We note that the Guidelines do not support the 

interpretation that McClenton suggests, and we must interpret the 

Guidelines as written. United States v. Wong, 3 F.3d 667 (3d 

Cir. 1993). In enumerating "burglary of a dwelling" as a crime 

of violence in Section 4B1.2(1)(ii), the Guidelines do not 

distinguish between dwellings that are occupied, rather than 

unoccupied. Thus, we conclude that burglary of a dwelling is a 

crime of violence under the Guidelines whether or not there is 

anyone present in the dwelling at the time it is burglarized. 

 In assessing career offender status, the only issue we 

must decide is whether the prior convictions for burglary 

involved a dwelling. Because burglary of a dwelling is 

specifically enumerated in the Guidelines as a crime of violence, 

no further inquiry is warranted. The Sentencing Commission has 

adopted a categorical approach to the determination of whether an 

 

7. The government disputes this factual contention. The 

government maintains that at least two of the burglaries involved 

occupied rooms. The government directs us to the presentence 

report which states that in one case, McClenton "forcibly pushed 

the complainant aside," PSI ¶ 35, while in another, he removed a 

credit card from a women's pocketbook in a guest room, PSI ¶ 37. 

Because we decide that it is irrelevant whether or not any of the 

hotel rooms were actually occupied, we need not resolve this 

factual dispute. 
underlying offense is a "crime of violence" within section 4B1.2, 

deciding that any invasion of a place where people may reside 

presents an unacceptable risk of harm and must be classified as a 

crime of violence.8 Thus we held in United States v. McAllister, 

927 F.2d 136 (3d Cir. 1991), cert. denied, 112 S. Ct. 111 (1991), 

that where the predicate offense is expressly listed as a crime 

of violence, a more detailed inquiry into the underlying facts is 

inappropriate. In United States v. John, 936 F.2d 764, 770 (3d 

Cir. 1991) we held that it may well be that a more detailed 

inquiry into the facts of a case will be required if the offense 

is not specifically listed as a "crime of violence."9 See also

 

8. See Taylor v. United States, 495 U.S. 575, 597 (1990) 

(adopting categorical approach to prior convictions used to 

justify enhancement under "violent felony" sentencing enhancement 

provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e) 

(West Supp. 1991)) and United States v. Aaron Thomas, No. 94-

1452, slip op. at 3-4 (3d Cir. Dec. 19, 1994) (holding "we see no 

principled way to distinguish a challenge to a prior conviction 

used to justify an enhancement under the Guidelines from a prior 

conviction used to justify an enhancement under the Armed Career 

Criminal Act"). 

9. In United States v. John, we observed that the 

Sentencing Commission envisioned three independent ways by which 

a prior conviction will be considered a "crime of violence": (1) 

the prior conviction is among those specifically enumerated 

(murder, manslaughter, kidnapping, etc.); (2) the prior 

conviction is for a crime that, although not specifically 

enumerated has as an element of the offense the use, attempted 

use, or threatened use of physical force; or (3) the prior 

conviction is for a crime that, although neither specifically 

enumerated nor involving physical force as an element of the 

offense, involves conduct posing a serious potential risk of 

physical injury for another. 

 We held that "it is not only impermissible, but 

pointless to look through to the defendant's actual criminal 

conduct under the first two prongs." 936 F.2d at 767. "However, 

in our view, the third prong quite clearly permits the court to 
United States v. Williams, 892 F.2d 296, 303-304 (3d Cir. 1989), 

cert. denied, 110 S. Ct. 3221 (1990). That situation is not 

implicated here: McClenton's burglaries were burglaries of 

dwellings which the Guidelines have classified as per se crimes 

of violence. Thus said, our inquiry is ended. 

 

V. 

 For the foregoing reasons, we will vacate the district 

court's judgment of sentence and remand this matter for 

resentencing pursuant to the career offender provisions of 

Guidelines Section 4B1.2. 

_________________________ 

(..continued) 

examine the defendant's actual conduct to ascertain whether the 

conduct posed a sufficient potential risk of physical injury to 

another to elevate the crime to a crime of violence." Id. at 

767-68.