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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2004 Decided April 16, 2004

No. 03–3032

UNITED STATES OF AMERICA,

APPELLEE

v.

ROMONE L. GABRIEL,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00216–01)

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.

J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Howard, Jr., U.S. Attorney, and John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: EDWARDS and HENDERSON, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge

WILLIAMS.

Circuit Judge HENDERSON concurs in the judgment.

WILLIAMS, Senior Circuit Judge: Following a search of his

home, Romone Gabriel was charged with four offenses: two

counts of illegal possession of a firearm or ammunition by a

felon under 42 U.S.C. § 922(g), possession of heroin under 21

U.S.C. § 844(a), and possession of an unregistered firearm

under 26 U.S.C. § 5861(d). A jury found him guilty on all

counts. On two of the issues raised on appeal, the government agrees with the defendant not only that the challenged

rulings were error but also that they require a remand for

resentencing. Of the remaining issues, only two require

discussion: the empanelling of a juror who lived near Gabriel’s home and the classification of burglaries committed by

the defendant in 1986 as ‘‘crimes of violence’’ under the

Sentencing Guidelines. As to these we find no reversible

error.

* * *

The first of the discussion-worthy claims is that the district

court erred in not striking Juror #1021 for cause. During

voir dire, the district court asked if any potential juror lived

or worked in the vicinity of Gabriel’s home, where the weapons and drugs had been found, or was familiar with the area;

Juror #1021 answered affirmatively. As a result, the following colloquy took place between her and the district court:

The Court: Would your familiarity with the area influence you in any way in hearing this case?

Juror #1021: That’s why I put a question mark. I wish

I knew for sure. I don’t know for sure. I don’t think so.

I think I could be impartial. This is my neighborhood.
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The Court: Why do you think that might influence you?

Juror #1021: Guns. There are guns in my neighborhood. I just—I don’t know. I went back to the office

and I watched the news today [about the then at-large

Washington, D.C., snipers] so I am a little upset about

guns today. I don’t know. I don’t think it would but it

could. I don’t know. I can’t honestly answer.

The Court: You can honestly but you just can’t be sure.

Juror #1021: I can’t be sure. I can’t be sure. I just

think it’s important to—I am very familiar with the area.

The Court: Would you make every effort to put out of

your mind the fact that it is in an area you have some

familiarity with and try to be fair and impartial?

Juror #1021: I would. I would. I believe that that is

what I’m trying to do.

(Tr. 10/07/02 PM at 34–35.) Neither lawyer questioned the

potential juror, and she was ultimately included on the panel.

Gabriel now for the first time questions Juror #1021’s impartiality, asserting plain error in the court’s failure to dismiss

her for cause on its own motion. See Fed. R. Civ. Pro. 52(b).

In assessing whether a venireman whose impartiality is in

question should have been excused for cause, ‘‘The relevant

question is TTT whether the jurors TTT had such fixed opinions that they could not judge impartially the guilt of the

defendant.’’ Patton v. Yount, 467 U.S. 1025, 1035 (1984).

Even when objection is timely made, a district court finding

that a juror is sufficiently impartial can be overturned only

for manifest error. Mu’Min v. Virginia, 500 U.S. 415, 428

(1991). We find no error, much less plain error.

In claiming that the judge should have stricken Juror

#1021 for want of impartiality, the defendant stresses the

uncertainty reflected in her answers, which he says ‘‘failed to

assure’’ that she could render a fair and impartial verdict.

But certainty on such an issue is hard to achieve. Wainwright v. Witt, 469 U.S. 412, 424–26 (1985). The candidate

most ready to proclaim his impartiality may be the one least

likely to be impartial. It ‘‘is the rare juror who could
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honestly ‘guarantee’ that his feelings about the particular

type of crime alleged would in no way affect his deliberations.’’ United States v. Nelson, 277 F.3d 164, 202 (2d Cir.

2002) (quoting United States v. Murray, 618 F.2d 892, 899 (2d

Cir. 1980)) (internal quotes omitted). Instead, courts have

focused on the intent of the juror, finding impartiality sufficiently established if the potential juror expresses a clear

intent to try to be open-minded. See, e.g., United States v.

Powell, 226 F.3d 1181, 1189 (10th Cir. 2000); United States v.

Hines, 943 F.2d 348, 353 (4th Cir. 1991); United States v.

Jones, 865 F.2d 188, 190 (8th Cir. 1989); see also Nelson, 277

F.3d at 202–03 (making assurance of ‘‘best efforts’’ necessary

to empanelling of venireman who has expressed doubts).

Given the inevitable uncertainties, coupled with the trial

judge’s superior opportunity to assess the venireman’s candor, see Wainwright, 469 U.S. at 428; United States v.

Haldeman, 559 F.2d 31, 67 n.51 (D.C. Cir. 1976), we think the

clear expression of intent to try, credited by the judge, should

be sufficient. The district court’s failure to excuse Juror

#1021 was not error, and therefore necessarily not plain

error.

Gabriel next asserts three sentencing claims. The parties

agree that the court made two errors that require a remand

for resentencing. In the third claim, Gabriel asserts that in

calculating his ‘‘base offense level’’ the district court should

not have classified his 1986 convictions for burglary as a

‘‘crime of violence’’ under U.S.S.G. § 2K2.1(a)(1).1

 Application Note 5 to U.S.S.G. § 2K2.1 provides that the term ‘‘crime

of violence’’ in that section shall have ‘‘the meaning given that

term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.’’ Accordingly we turn to § 4B1.2(a):

(a) The term ‘‘crime of violence’’ means any offense

under federal or state law, punishable by imprisonment

for a 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

1 Because Gabriel was sentenced in 2003, all U.S.S.G. cites

refer to the November 1, 2002 version of the Guidelines.
5

 (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.

See U.S.S.G. § 4B1.2(a). (Although Gabriel had two 1986

convictions for second degree burglary, they resulted from a

single proceeding. Thus, under § 4A1.2(a)(2) ‘‘[p]rior sentences imposed in related cases are to be treated as one

sentence for purposes of § 4A1.1(a), (b), and (c),’’ and the two

burglaries (assuming they count as ‘‘crimes of violence’’)

count as only one such crime. Both parties apparently

assume (without any obvious error) that the discussion of

‘‘sentences’’ in §§ 4A1.1 and 4A1.2 applies to that of ‘‘convictions’’ in § 2K2.1.)

Gabriel’s 1986 burglary convictions were for second degree

burglary under the D.C. Code § 22–801(b). That offense

does not require the use (or intended or threatened use) of

force against another. Nor is it confined to burglary of a

dwelling—the only other basis for classification of these convictions as a crime of violence under § 4B1.2(a).

In Taylor v. United States, 495 U.S. 575 (1990), the Court

prescribed the methodology that has come to govern whether

a prior conviction meets Guidelines criteria. Interpreting 18

U.S.C. § 924(e), which provides that the sentences of persons

convicted under 18 U.S.C. § 922(g) should be enhanced for

prior convictions of a ‘‘violent felony,’’ the Court emphatically

rejected claims that a prior conviction could be so classified

simply on a basis of evidence as to the actual facts of the

prior crime. It reasoned that the statutory language pointed

to a categorical approach and that ‘‘the practical difficulties

and potential unfairness of a factual approach are daunting.’’

Id. at 601. So far as burglary was concerned, the Court

generally approved enhancement only if the statute of conviction required a finding of the elements of ‘‘ ‘generic’ burglary.’’ Id. at 598–99, 602. Nonetheless, despite excoriating the

‘‘factual approach,’’ it approved the sentencing court’s going

beyond the statutory elements of the crime ‘‘in a narrow

range of cases,’’ where, although the statute allowed convic-
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tion without all the elements of ‘‘generic burglary,’’ ‘‘a jury

was actually required to find all the elements of generic

burglary.’’ Id. at 602. Summarizing, it said:

We therefore hold that an offense constitutes ‘‘burglary’’ for purposes of a § 924(e) sentence 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 in order to convict the

defendant.

Id.

In United States v. Hill, 131 F.3d 1056, 1061–65 (D.C. Cir.

1997), we found this methodology equally applicable to the

issue of deciding whether a conviction was for a ‘‘crime of

violence’’ for purposes of calculating ‘‘base offense levels’’

under the Guidelines. And we joined eight other circuits in

extending Taylor’s ‘‘narrow’’ exception to guilty pleas. Id. at

1063–64 & n.9. For such pleas, we allowed a finding of a

‘‘crime of violence,’’ even where the statutory elements were

not adequately confining, on the basis of various ‘‘indices’’

including ‘‘the judgment of conviction, plea agreement or

other statement by the defendant on the record, presentencing report adopted by the court, and the findings of the

sentencing judge.’’ Id. at 1065. Thus the ‘‘narrow range’’ for

factual inquiry, though definitely constrained, has grown well

beyond what Taylor specified. Here it is not altogether clear

whether Gabriel’s 1986 convictions arose out of a jury trial or

a guilty plea.

As second degree burglary under District law is not confined to burglary of dwellings, the convictions could satisfy

the requirements of § 4B1.2 only if the jury had been required to find, or if documents in connection with a plea

showed, that the burglaries (or one of them) were of a

‘‘dwelling.’’ (Gabriel doesn’t contest the government’s supposition that second degree burglary in the District meets the

criteria of ‘‘ ‘generic’ burglary.’’) The government failed to

offer the sort of documents required by Taylor and Hill for

going beyond the statutory elements. As the burden is on
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the government to produce these documents, see Hill, 131

F.3d at 1065 n.10, use of the convictions to establish the ‘‘base

offense level’’ was error.

But Gabriel raised no objection, so we review under the

standard of plain error. Although the prejudice requirement

for plain error in sentencing is somewhat ‘‘less exacting than

it is in the context of trial errors,’’ United States v. Saro, 24

F.3d 283, 287 (D.C. Cir. 1994), it still requires that the

defendant demonstrate ‘‘a reasonable likelihood that the sentencing court’s obvious errors affected his sentence,’’ id. at

288. As Gabriel has offered nothing on that score other than

highly speculative inferences from the wording of the Presentence Report, see Reply Br. at 18–20, he has failed to show

the requisite likelihood. United States v. Williams, 358 F.3d

956, 966–67 (D.C. Cir. 2004).

Gabriel seeks to deflect the Williams holding by noting

that there we alluded to statements in the government’s brief

and at oral argument indicating that if the documents had

been offered, Williams’s sentence would in fact not have been

lower. Id. at 967. But the government’s assurances were by

no means necessary to the outcome; indeed, to have treated

them as pivotal would in effect have relieved the defendant of

the burden of showing the requisite ‘‘reasonable likelihood’’ of

prejudice. (There might be cases where the defendant and

his counsel for some reason couldn’t obtain access to the

relevant records of the prior conviction, but there is no

suggestion that that is true here.) That is not the way plain

error works, even as leavened by Saro in the sentencing

context.

Accordingly, we remand for resentencing because of the

errors that the parties agree require a remand; in all other

respects the decision of the district court is affirmed.

So ordered.