1

The HONORABLE ORTRIE D. SMITH, United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3557

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Eddie S. Bell, *

*

Defendant - Appellant. *

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Submitted: October 12, 2005

Filed: April 26, 2006 

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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

___________

LOKEN, Chief Judge.

Eddie Bell appeals the 100-month sentence imposed by the district court1

 after

a jury convicted Bell of being a felon-in-possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). The principal issue on appeal is whether Bell’s

prior Missouri conviction for second-degree burglary of a commercial building was

a “crime of violence,” producing a base offense level of 20 under U.S.S.G.

§ 2K2.1(a)(4)(A). Bell further argues that we should remand his case for resentencing
2

See United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992), cert. denied, 507

U.S. 1024 (1993) (followed in Hascall); United States v. Harrison, 58 F.3d 115, 119

(4th Cir. 1995); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994); United

States v. Wilson, 168 F.3d 916, 928-29 (6th Cir. 1999); United States v. Nelson, 143

F.3d 373, 374-75 (7th Cir. 1998); United States v. Matthews, 374 F.3d 872, 880 (9th

Cir. 2004); United States v. Smith, 10 F.3d 724, 732-33 (10th Cir. 1993); United

States v. Spell, 44 F.3d 936, 938-39 (11th Cir. 1995).

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under the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S.

220 (2005). We affirm.

I. 

Application Note 1 to § 2K2.1 incorporates the definition of crime of violence

found in § 4B1.2(a): an offense carrying a prison term exceeding one year that: 

(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.

(Emphasis added.) Though Bell’s prior conviction was for burglary of a commercial

building, not a dwelling, the district court properly followed our many decisions

holding that commercial burglaries are crimes of violence under the “otherwise

involves” provision in § 4B1.2(a). See, e.g., United States v. Hascall, 76 F.3d 902

(8th Cir.), cert. denied, 519 U.S. 948 (1996); United States v. Mohr, 407 F.3d 898,

901-02 (8th Cir.), cert. denied, 126 S. Ct. 670 (2005). However, there is circuit

conflict on this issue,2

 and two of our colleagues have urged the court to reconsider
3

See Mohr, 407 F.3d at 902-04 (Heaney and Bright, JJ., concurring); United

States v. Blahowski, 324 F.3d 592, 598 (8th Cir. 2003) (Bright, J., dissenting).

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the issue en banc.3

 Therefore, after oral argument we held this case pending the

court’s en banc decision in United States v. McCall, 439 F.3d 967 (8th Cir. 2006),

which construed a very similar “otherwise involves” provision in 18 U.S.C.

§ 924(e)(2)(B)(ii). Reviewing this issue of law de novo, we again conclude that

commercial burglary is a crime of violence. See United States v. Sprouse, 394 F.3d

578, 580 (8th Cir. 2005) (standard of review).

In our view, the answer to this question becomes apparent when the history of

the career offender guideline provisions, the statutes they apply, and the Supreme

Court’s interpretation of those statutes are put in careful perspective. In the

Sentencing Reform Act of 1984, Congress instructed the Sentencing Commission to

“assure that the guidelines specify a sentence . . . at or near the maximum term

authorized” if an adult offender is convicted of a crime of violence or a drug offense

and “has previously been convicted of two or more prior felonies, each of which is a

crime of violence” or a specified drug offense. 28 U.S.C. § 994(h). The Commission

complied with this directive in § 4B1.1 of the original 1987 Guidelines, a Career

Offender provision that remains in effect today. Section 4B1.2 of the 1987 Guidelines

then provided that crime of violence “as used in this provision is defined under 18

U.S.C . § 16.” That statute defined a “crime of violence” to include:

(b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.

Because Congress used the term “crime of violence” in § 994(h), borrowing the

definition of that term from another criminal statute was of course logical. But the

1987 Guidelines did not stop there. Without further explanation or citation to judicial

authority, the Commission added a commentary to § 4B1.2, declaring:
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The Commission interprets [18 U.S.C. § 16] as follows: murder,

manslaughter, kidnapping, aggravated assault, extortionate extension of

credit, forcible sex offenses, arson, or robbery are covered by this

provision. Other offenses are covered only if the conduct for which the

defendant was specifically convicted meets the above definition. . . .

Conviction for burglary of a dwelling would be covered; conviction for

burglary of other structures would not be covered. 

(Emphasis added.) As commercial burglaries more often than not involve at least the

use of “physical force against the . . . property of another,” this was a patently

arbitrary interpretation of 18 U.S.C. § 16(b), reflecting the Commission’s unilateral

attempt to craft its own definition of a crime of violence for purposes of the career

offender guideline.

The 1987 drafting experiment was short-lived. In November 1989, the

Commission amended § 4B1.2, deleting the cross-reference to 18 U.S.C. § 16 and

adopting the definition of crime of violence here at issue. The Commission explained:

“The definition of crime of violence used in this amendment is derived from 18 U.S.C.

§ 924(e).” U.S.S.G. App. C, Vol. 1, Amendment 268 (emphasis added). Section

924(e) was a provision of the Armed Career Criminal Act of 1984 (ACCA) mandating

harsher sentences for defendants with prior “violent felony” convictions. As amended

in 1986, the ACCA defined violent felony as one 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

physical injury to another[.]

18 U.S.C. § 924(e)(2)(B) (emphasis added). The 1989 definition of a crime of

violence in § 4B1.2 was identical to § 924(e)(2)(B) except the Commission added “is
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burglary of a dwelling” to subpart (ii), thereby retaining its prior distinction among

categories of burglary, again without explanation.

Less than one month before the 1989 amendment to § 4B1.2 took effect, the

Supreme Court granted certiorari to consider the meaning of the term “burglary” in

18 U.S.C. § 924(e)(2)(B)(ii) as amended in 1986. Taylor v. United States, 493 U.S.

889 (1989). In its decision seven months later, the Court first noted that the 1984

version of the ACCA expressly defined “burglary” as “any felony consisting of

entering or remaining surreptitiously within a building that is the property of another.”

18 U.S.C. App. § 1202(a) (1982 ed., Supp. III) (emphasis added). That definition was

deleted in 1986, without explanation. After surveying the legislative history of the

1986 amendments, the Court concluded:

that Congress singled out burglary . . . for inclusion as a predicate

offense, both in 1984 and in 1986, because of its inherent potential for

harm to persons. The fact that an offender enters a building to commit

a crime often creates the possibility of a violent confrontation between

the offender and an occupant, caretaker, or some other person who

comes to investigate. And the offender’s own awareness of this

possibility may mean that he is prepared to use violence if necessary to

carry out his plans or to escape. . . . There never was any proposal to

limit the predicate offense to some special subclass of burglaries that

might be especially dangerous, such as those where the offender is

armed, or the building is occupied, or the crime occurs at night.

* * * * *

We therefore reject petitioner’s view that Congress meant to

include only a special subclass of burglaries, either those that would have

been burglaries at common law, or those that involve especially

dangerous conduct. . . . We believe that Congress meant by “burglary”

the generic sense in which the term is now used in the criminal codes of

most States.
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* * * * *

We conclude that a person has been convicted of burglary for

purposes of a § 924(e) enhancement if he is convicted of any crime,

regardless of its exact definition or label, having the basic elements of

unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.

Taylor v. United States, 495 U.S. 575, 588, 598-99 (1990) (citations omitted;

emphasis added). In other words, less than one year after the Commission defined the

term “crime of violence” in the congressionally mandated guideline implementing 28

U.S.C. § 994(h) as limited to burglary of a dwelling, the Supreme Court concluded

that Congress intended the term “violent felony” in 18 U.S.C. § 924(e)(2)(B)(ii) to

include burglary of a commercial building. The two 1984 statutes reflect the same

congressional purpose -- to punish violent career offenders severely. Though they

used different operative terms, crime of violence and violent felony, in this context the

two terms should have the same meaning, both as a matter of statutory construction

and to avoid sentencing disparity. See Sprouse, 394 F.3d at 580. 

This historical review leads to an obvious question. When the Sentencing

Commission in a guideline and the Supreme Court in a subsequent case construe

equivalent statutory terms differently, which construction is this court obligated to

follow? Dicta in United States v. Vincent, 167 F.3d 428, 431 (8th Cir. 1999), stated

that “the Sentencing Commission’s formulation of the Guidelines is not subject to

judicial review unless the Commission oversteps constitutional bounds.” But Vincent

obviously overlooked the Supreme Court’s earlier decision in United States v.

LaBonte, 520 U.S. 751, 768 (1997), in which every Justice agreed that the case

required the Court to decide, in the words of Justice Breyer’s dissent, “whether the

career offender statute permits the Commission to write this Career Offender

Guideline.” A majority of the Court concluded that “the Commission’s interpretation
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is inconsistent with [28 U.S.C.] § 994(h)’s plain language” and invalidated

Amendment 506 to the career offender guidelines. 520 U.S. at 753.

Based upon LaBonte, were it necessary to the decision in this case, we would

invalidate the term “of a dwelling” in U.S.S.G. § 4B1.2(a)(2) as inconsistent with the

Supreme Court’s subsequent interpretation of the governing statute in Taylor. But it

is not necessary to do so because the “otherwise involves” provision in § 4B1.2(a)(2)

as construed in Hascall and our subsequent cases produces the same result. It is a

correct result. Given the Supreme Court’s analysis of congressional intent and the

Court’s appraisal of the inherent risk of harm posed by burglary of any building, we

are compelled to conclude that any generic burglary, as that term was defined in

Taylor, is a felony that “otherwise involves conduct that presents a serious potential

risk of physical injury to another” within the meaning of § 4B1.2(a)(2). 

In Missouri, a person commits second-degree burglary when he “knowingly

enters unlawfully or knowingly remains unlawfully in a building or inhabitable

structure for the purpose of committing a crime therein.” Mo. Rev. Stat. § 569.170.

The term “inhabitable structure” is not limited to buildings; it is broadly defined to

include ships, airplanes, and vehicles. See § 569.010(2); State v. Pulis, 822 S.W.2d

541, 543-45 (Mo. App. 1992). Here, Bell’s Presentence Investigation Report recited

that he was convicted of second degree burglary for “enter[ing] a building at 2007 E.

19th Street, possessed by Western Engineering.” As Bell did not object to this fact

recital, the district court correctly concluded that Bell’s prior commercial burglary

conviction was for entering a building, a generic burglary under Taylor and therefore

a crime of violence within the meaning of § 2K2.1(a)(4)(A). See McCall, 439 F.3d

at 973-74.
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II.

Bell further argues that we should remand for resentencing under Booker

because the district court is no longer obligated to consider a prior commercial

burglary a crime of violence, and because the court violated Bell’s Sixth Amendment

rights under Booker by imposing a four-level enhancement for possessing the firearm

in connection with a felony drug offense, see U.S.S.G. § 2K2.1(b)(5). Bell was

sentenced after the decision in Blakely v. Washington, 542 U.S. 296 (2004), but

before the decision in Booker. He did not raise these issues at sentencing and

therefore our review is for plain error. See United States v. Pirani, 406 F.3d 543 (8th

Cir. 2005). As we have explained, the district court properly applied the now-advisory

Guidelines in concluding that the prior commercial burglary conviction was a crime

of violence. Bell does not argue that the court misapplied the Guidelines in imposing

a four-level enhancement under § 2K2.1(b)(5). One hundred months was the bottom

of Bell’s applicable guidelines sentencing range. In imposing that sentence, the

district court stated that it would have imposed the same sentence under an advisory

guidelines regime. Thus, there was no plain error. 

The judgment of the district court is affirmed. Appellant’s motion to file a

supplemental brief on appeal is granted. 

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