___________ No. 95-1244

___________ Norman Ray Woodall, * * Movant - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. United States of America, * * Respondent - Appellee. *

___________ Submitted: September 12, 1995 Filed: December 11, 1995

___________ Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
This is a post-conviction proceeding under 28 U.S.C. § 2255 in which the district court vacated Norman Ray Woodall's sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), because his trial counse l provided ineffective assistance in not objecting to an inadequate showing of the requisite prio r "violent felony" convictions. Woodall appeals the court's additional ruling that the Double Jeopardy Clause of the Fift h Amendment does not bar his resentencing under § 924(e)(1). We affirm.

I.

Woodall w as tried and convicted of being a felon in possession of a firearmin violation of 18 U.S.C. § 922(g)(1). He was also charged with violating § 924(e)(1), a sentence enhancement statute

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requir ing a mandatory minimum fifteen-year prison sentence for § 922(g ) viola tors who have at least three prior violent felony convictions. A § 924(e)(1) violation is determined at sentencing. See United States v. Washington , 992 F.2d 785, 787 (8th Cir.), cert. denied , 114 S. Ct. 35 6 (1993).

"Violent felony" is defined in § 924(e) to include "burglary." See § 924(e)(2)(B). Three months before Woodall was sentenced, the Supreme Cour t held "that an offense constitutes 'burglary' for purposes of a § 924(e ) enhancement if either its statutory definition substantiall y corres ponds to 'generic' burglary, or the charging paper and jur y instructions actually required the jury to find all the elements of generi c burglary." Taylor v. United States , 495 U.S. 575, 602 (1990).

Woodall's presentence investigation report ("PSR") listed fiv e burglary convictions in Texas state court but did not provide information showing that they were "generic" burglaries unde r Taylor . Woodall did not object to this portion of the PSR, nor did he contend at sentencing that the burglary convictions were not prior violent felonies for purposes of § 924(e)(1). The dis trict court sentenced him to fifteen years in prison based up on the information contained in the PSR. He appealed hi s conviction and senten ce on other grounds, and we affirmed. United States v. Woodall , 938 F.2d 834 (8th Cir. 1991).

Woodall moved for § 2255 relief, claiming that he receive d ineffe ctive assistance of counsel at sentencing. The magistrate judg e recommended that the § 924(e)(1) sentence be vacated because counsel shoul d have ob jected that the PSR did not establish Woodall's Texas burglar y convic tions as violent felonies under Taylor . In addition, withou t addressing the prejud ice prong of ineffective assistance under Strickland v. Washington , 466 U. S. 668, 694 (1984), the magistrate judge recommended that the Double Jeopardy Clause bars resentencing under § 924(e)(1) becaus e the

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proof at Woodall's se ntencing -- his PSR -- was insufficient to establish the requisite three prior violent felony convictions.

The district court agreed with the recommendation that Woodall' s trial counsel was ineffective for failing to object under Taylor to th e burglaries listed in the PSR. However, the court rejected the Doubl e JeopardyClause recommendation, concluding instead that sentencing under § 924(e)(1) "does not bear the hallmarks of a trial-type proceeding" t o which double jeopardy protections attach. Woodall appeals the latte r ruling.

II.

The Double Jeopardy Clause "does not prevent the government fro m retryin g a defendant who succeeds in getting his first conviction se t aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson , 488 U.S. 33, 38 (1 988). However, the Double Jeopardy Clause bars retrial when a conviction is reversed due to insufficient evide nce, because that decision is functionally equivalent to an acquittal. Burks v. United States , 437 U.S. 1 ( 1978). Burks is an exception to Lockhart 's general rule. Se e Parker v. Norris , 64 F.3d 1178, 1181 (8th Cir. 1995), petition for cert. filed , No. 95-6836 (Nov. 21, 1995).

Burks con cerned insufficient evidence to convict; we deal here with proof of facts necessary to impose a sentence. The Supreme Court extended Burks to trial-like death penalty sentencing procedures in Bullington v. Mis souri , 451 U.S. 430, 438-39, 443-44 (1981). We in turn have twic e applied Bullingtonto non-capital sentencings under Missouri and Arkansas habit ual offender enhancement statutes that required proof beyond a reasonable doubt of all essential sentencing facts. See Bohlen v. Caspari , 979 F.2d 109, 112-113 (8th Cir. 1992), rev'd on other grounds , 114 S. Ct.

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948 (1994); Nelson v. Lockhart , 828 F.2d 446, 447-48 (8th Cir. 1987), rev' d on other grounds , 488 U.S. 33 (1988).
In this case, Woodall argues (i) that we should extend our Bohl en and Nelson double jeopardy holdings to sentencing under § 924(e), and (ii) tha t the government is then barred from resentencing him under § 924(e) because it presented insuffic ient proof of a § 924(e)(1) violation at his initial sentencing. We reject both contentions.

A.

For a number of reasons, we agree with the district court that th e Burks d ouble jeopardy principle does not apply to § 924(e) sentencin g proceedings.

1. "Sentencing matters do not ordinarily have the 'qualities o f
co nstitutional finality that attend an acquittal.'" United States v

. Hudspeth , 42 F.3d 101 5, 1024 (7th Cir. 1994) (en banc), cert. denied , 115 S. Ct. 2252 (1995), quoting United States v. DiFrancesco , 449 U.S. 117, 13 4 (1980). Although the Supreme Court avoided this issue in reversing ou r decis ions in Bohlen and Nelson on other grounds, its opinion in Bohle n casts doubt upon our holding that Burks applies to trial-like non-capital sentencing proceedings. See 114 S. Ct. at 954-55.

2. Accepting our decision that Burks applies to the trial-lik e sentencing proceedings at issue in Nelson and Bohlen , federal sentencing proceedings are nonetheless readily distinguisha ble. True, the government must p rove facts relevant to sentencing guidelines and statutor y enhancement issues, a nd the defendant is entitled to a sentencing hearing on disputed issues of fact. But the government's burden of proof is only by a preponderance of the evidence. Moreover, the sentencing judg e receives important input from the probation offi cer, who prepares the PSR, and sentencing

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findings may be basedupon what the judge heard at trial, as well as what is presented at the s entencing hearing and contained in the PSR. Compare DiFrancesco , 449 U.S. at 136-37 (Double Jeopardy Clause does not apply to judicial determinations "developed outside of the courtroom"). Finally,
some s entencing issues, such as whether the defendant has provide d "substantial assistance," may remain open for a long period of time, and resentencings for a variety of reasons are not uncommon. In short, this is not a trial-like e nvironment well-suited to the functional-equivalentto-acquittal analysis underlying Burks
.
3. Woodall cites no case applying the Burks principle to § 924(e ) sentencing, or indeed to any post-guidelines federal sentencing issue. Th e Seventh Circuit rejected this contention in Hudspeth , and a number of case s hav e assumed that a defendant may be resentenced under § 924(e). Fo r example, after the Su preme Court's decision in Taylor , we remanded to the district court, which reimposed the § 924(e)(1) enhancement. On appeal,
we consolidated Taylor with another § 924(e) appellant, Banks. We affirme d both § 924(e) resentencings as consistent with the new burglary standard of Tayl or without discussing Burks or the Double Jeopardy Clause eve n though on remand the government had expanded the sentencing record "in a critical respect." United States v. Taylor , 932 F.2d 703, 707 (8th Cir.), cert. denied , 502 U.S . 882, and 502 U.S. 888 (1991). Likewise, the court in United States v. Harris , 964 F.2d 1234, 1235 (1st Cir. 1992), assumed that resentencing und er § 924(e) is the proper remedy when the government fails to establish the requisite "violent feloni es." No doubt, the double jeopa rdyissue was not raised in these cases, but they illustrate tha t application of Burks to federal sentencing rever sals would disrupt widelyaccepted practice and expectations. 4. The Supreme Court has noted that expansive application of th e Double Jeopardy Clause may cause appellate courts to be less zealous i n correcting trial court errors. See United States v.

### The objecting defendant bears the burden of proving that a 1 

### prior conviction is not a violent felony or a serious drug offense as defined in § 924(e)(2). See Redding , 16 F.3d at 302. -6- Tateo , 377 U.S. 463, 466 (1964). We conclude th at superimposing the Burks princi ple on federal sentencing proceedings would be a complex an d difficult task, fraught with uncertainties. On the other hand, permitting resentencing under present federal practice does little if any harm to the interests served by the Double Jeopardy Clause. See DiFrancesco , 449 U.S. at 132-38.

B.

Even if t he Burks double jeopardy principle applies to § 924(e ) sentencings, it does not bar Woodall's resentencing. The district court
vac ated Woodall's sentence because his attorney failed to object to th e adequa cyof the PSR's description of Woodall's prior burglaries fo r purposes of applying § 924(e) as construed in Taylor . This is a classic example of "trial error," not the kind of evidentiary insufficiency that triggers Burks
. Generally, the government establishes prior violent felonie s warran ting a § 924(e)(1) enhancement by submitting the PSR listin g defendant's prior convictions. See United State s v. Redding , 16 F.3d 298, 302 (8th Cir. 1994). Objections to a PSR must be made prior to th e sentencing hearing, a nd the probation officer may then "conduct a further investigation and revise the [PSR]." Fed. R. Cr. P. 32(b)(6)(B)

. Because 1 the PSR w hen challenged is not evidence, the government also has a n oppo rtunityat the sentencing hearing to introduce additional evidenc e regarding the disputed facts. Thus, in terms of the Burks principle , failure to object to a PSR is a pretrial event. The double jeopard y protection of Burks "applies only if there has b een some event, such as an acquittal, which term inates the original jeopardy." Richardson v. United States , 468 U.S. 317, 325 (1984). The error that infected

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Woodall's sentencing occurred at a time when jeopardy had not terminated. Thus, resentencing is appropriate because it will "merely recreate th e situat ion that would have been obtained" had Woodall's attorney timel y objected to the PSR as inadequate. Lockhart , 488 U.S. at 42. Cf. Linam
v. Griffin , 685 F.2d 369, 374 (10th Cir. 1982), cert. denied , 459 U.S. 121 1 (1983).
That the trial error in this case does not trigger relief under Burks becomes apparent if one considers the prejudice prong of Strickland that the district court overlooked. To establish tha t Woodall's Texas burglary convictions were violent felonies under Taylor , the sentencing court neede d to determine either that the applicable Texas st atutes, or the indictments
or jury instructions in Woodall's cases, revealed "generic" burglaries

. The PSR did not contain that information. If Wo odall's counsel had timely objected on that ground, the probation officer or the government could hav e sup plied the missing information prior to or at the sentencing hearing

. Thus, to find Strickland prejudice, the district court should hav e dete rmined whether the government could have presented either burglar y statut es or other information that would have established three violen t felo nyconvictions and therefore a violation of § 924(e)(1). If th e gov ernment already possessed, or could readily have obtained suc h information, counsel did not provide ineffective assistance by failing to make a fut ile objection to the inadequate PSR. This basic Stricklan d prejudice inquiry makes it apparent that the § 2255 relief afforded Woodal l by the dis trict court is not functionally equivalent to a judgment o f acquittal under Burks
.

### -8- The district court's double jeopardy ruling is affirmed, and th e case is remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.