___________

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 counsel

provided ineffective assistance in not objecting to an inadequate showing

of the requisite prior "violent felony" convictions. Woodall appeals the

court's additional ruling that the Double Jeopardy Clause of the Fifth

Amendment does not bar his resentencing under § 924(e)(1). We affirm.

I.

Woodall was tried and convicted of being a felon in possession of a

firearm in 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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requiring a mandatory minimum fifteen-year prison sentence for § 922(g)

violators 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. 356

(1993). 

"Violent felony" is defined in § 924(e) to include "burglary." See

§ 924(e)(2)(B). Three months before Woodall was sentenced, the Supreme

Court held "that an offense constitutes 'burglary' for purposes of a

§ 924(e) enhancement if either its statutory definition substantially

corresponds to 'generic' burglary, or the charging paper and jury

instructions actually required the jury to find all the elements of generic

burglary." Taylor v. United States, 495 U.S. 575, 602 (1990). 

Woodall's presentence investigation report ("PSR") listed five

burglary convictions in Texas state court but did not provide information

showing that they were "generic" burglaries under 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 district court sentenced him to fifteen years in prison

based upon the information contained in the PSR. He appealed his

conviction and sentence 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 received

ineffective assistance of counsel at sentencing. The magistrate judge

recommended that the § 924(e)(1) sentence be vacated because counsel should

have objected that the PSR did not establish Woodall's Texas burglary

convictions as violent felonies under Taylor. In addition, without

addressing the prejudice 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) because

the
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proof at Woodall's sentencing -- 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 the

burglaries listed in the PSR. However, the court rejected the Double

Jeopardy Clause recommendation, concluding instead that sentencing under

§ 924(e)(1) "does not bear the hallmarks of a trial-type proceeding" to

which double jeopardy protections attach. Woodall appeals the latter

ruling.

II.

The Double Jeopardy Clause "does not prevent the government from

retrying a defendant who succeeds in getting his first conviction set

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 (1988). However, the Double Jeopardy Clause bars retrial when a

conviction is reversed due to insufficient evidence, 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. See

Parker v. Norris, 64 F.3d 1178, 1181 (8th Cir. 1995), petition for cert.

filed, No. 95-6836 (Nov. 21, 1995). 

Burks concerned 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.

Missouri, 451 U.S. 430, 438-39, 443-44 (1981). We in turn have twice

applied Bullington to non-capital sentencings under Missouri and Arkansas

habitual 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 Bohlen and

Nelson double jeopardy holdings to sentencing under § 924(e), and (ii) that

the government is then barred from resentencing him under § 924(e) because

it presented insufficient 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 the

Burks double jeopardy principle does not apply to § 924(e) sentencing

proceedings. 

1. "Sentencing matters do not ordinarily have the 'qualities of

constitutional finality that attend an acquittal.'" United States v.

Hudspeth, 42 F.3d 1015, 1024 (7th Cir. 1994) (en banc), cert. denied, 115

S. Ct. 2252 (1995), quoting United States v. DiFrancesco, 449 U.S. 117, 134

(1980). Although the Supreme Court avoided this issue in reversing our

decisions in Bohlen and Nelson on other grounds, its opinion in Bohlen

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-like

sentencing proceedings at issue in Nelson and Bohlen, federal sentencing

proceedings are nonetheless readily distinguishable. True, the government

must prove facts relevant to sentencing guidelines and statutory

enhancement issues, and 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 judge

receives important input from the probation officer, who prepares the PSR,

and sentencing
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findings may be based upon what the judge heard at trial, as well as what

is presented at the sentencing 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 sentencing issues, such as whether the defendant has provided

"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 environment 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. The

Seventh Circuit rejected this contention in Hudspeth, and a number of cases

have assumed that a defendant may be resentenced under § 924(e). For

example, after the Supreme 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 affirmed

both § 924(e) resentencings as consistent with the new burglary standard

of Taylor without discussing Burks or the Double Jeopardy Clause even

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 under § 924(e) is the proper remedy when the government

fails to establish the requisite "violent felonies." No doubt, the double

jeopardy issue was not raised in these cases, but they illustrate that

application of Burks to federal sentencing reversals would disrupt widelyaccepted practice and expectations. 

4. The Supreme Court has noted that expansive application of the

Double Jeopardy Clause may cause appellate courts to be less zealous in

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.

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Tateo, 377 U.S. 463, 466 (1964). We conclude that superimposing the Burks

principle on federal sentencing proceedings would be a complex and

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 the Burks double jeopardy principle applies to § 924(e)

sentencings, it does not bar Woodall's resentencing. The district court

vacated Woodall's sentence because his attorney failed to object to the

adequacy of the PSR's description of Woodall's prior burglaries for

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 felonies

warranting a § 924(e)(1) enhancement by submitting the PSR listing

defendant's prior convictions. See United States v. Redding, 16 F.3d 298,

302 (8th Cir. 1994). Objections to a PSR must be made prior to the

sentencing hearing, and 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 when challenged is not evidence, the government also has an

opportunity at the sentencing hearing to introduce additional evidence

regarding the disputed facts. Thus, in terms of the Burks principle,

failure to object to a PSR is a pretrial event. The double jeopardy

protection of Burks "applies only if there has been some event, such as an

acquittal, which terminates 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 the

situation that would have been obtained" had Woodall's attorney timely

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. 1211

(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 that Woodall's Texas burglary

convictions were violent felonies under Taylor, the sentencing court needed

to determine either that the applicable Texas statutes, or the indictments

or jury instructions in Woodall's cases, revealed "generic" burglaries.

The PSR did not contain that information. If Woodall's counsel had timely

objected on that ground, the probation officer or the government could have

supplied the missing information prior to or at the sentencing hearing.

Thus, to find Strickland prejudice, the district court should have

determined whether the government could have presented either burglary

statutes or other information that would have established three violent

felony convictions and therefore a violation of § 924(e)(1). If the

government already possessed, or could readily have obtained such

information, counsel did not provide ineffective assistance by failing to

make a futile objection to the inadequate PSR. This basic Strickland

prejudice inquiry makes it apparent that the § 2255 relief afforded Woodall

by the district court is not functionally equivalent to a judgment of

acquittal under Burks.
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The district court's double jeopardy ruling is affirmed, and the case

is remanded for further proceedings consistent with this opinion. 

A true copy.

Attest:

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