In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2969

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BENJAMIN GARDNER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:04CR00058-001—Sarah Evans Barker, Judge.

____________

ARGUED DECEMBER 15, 2004—DECIDED FEBRUARY 22, 2005

____________

Before BAUER, COFFEY, and SYKES, Circuit Judges.

BAUER, Circuit Judge. Benjamin Gardner pleaded guilty

to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1),

and stealing firearms from a licensed firearms dealer, id.

§ 922(u). The parties agreed that the sentencing guidelines applied but disagreed whether Gardner’s prior conviction for Residential Entry under Indiana law constituted

“a crime of violence” under U.S.S.G. § 4B1.2, which would

affect Gardner’s base offense level under U.S.S.G. § 2K2.1.

The district court concluded that the conviction did constitute a crime of violence and sentenced Gardner to 108

months’ imprisonment. Gardner appeals, and we affirm.

Gardner and two accomplices burglarized a firearms

dealer in Indiana. At sentencing the parties disagreed
2 No. 04-2969

on the appropriate base offense level under U.S.S.G.

§ 2K2.1. Section 2K2.1 instructs the sentencing court to

assess a base offense level of 20 for defendants with one

prior felony conviction for a crime of violence or a base

offense level of 24 after two such convictions. The parties

agreed that Gardner was convicted of a crime of violence in 1990, a burglary, but disagreed about the characterization of his 1993 conviction for Residential Entry. That

offense, a felony under Indiana law, is defined as intentionally breaking and entering a dwelling. Ind. Code § 35-43-2-

1.5 (1993).

The district court, in concluding that the 1993 conviction is a crime of violence, relied on our analysis in United

States v. Howze, 343 F.3d 919 (7th Cir. 2003), which holds

that flight to avoid the police is categorically a “violent

felony” under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). The court reasoned that, “in the same way that

flights to avoid arrest are crimes of violence,” there is

inherent in Residential Entry “the serious potential risk

of physical injury to another.” The court then set Gardner’s base offense level at 24 and, based on a total offense

level of 25 after other adjustments and a criminal history

category of V, sentenced Gardner to 108 months’ imprisonment on each count, to run concurrently.

On appeal, Gardner argues that the district court erred by

concluding that his prior conviction for Residential Entry

constitutes a “crime of violence.” He contends that he

should have been sentenced using a base offense level of 20,

see U.S.S.G. § 2K2.1(a)(4)(A), rather than 24, see id.

§ 2K2.1(a)(2). We review the district court’s conclusion de

novo. United States v. Brazeau, 237 F.3d 842, 844 (7th Cir.

2001).

For purposes of § 2K2.1, “crime of violence” has the same

meaning as in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1,

comment. (n.1). Under § 4B1.2(a), an offense punishable
No. 04-2969 3

by a term of imprisonment greater than one year constitutes a crime of violence if it “(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.” U.S.S.G. § 4B1.2(a) (emphasis added). In

analyzing whether a particular offense qualifies as a crime

of violence, the sentencing court may generally look only at

the statutory elements and the charging instrument. See

United States v. Hoults, 240 F.3d 647, 650 (7th Cir. 2001);

United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir.

2001) (en banc).

The relevant Indiana statute provides that “a person who

knowingly or intentionally breaks and enters the dwelling

of another person commits residential entry, a Class D

felony.” Ind. Code § 35-43-2-1.5 (1993). Residential Entry

does not have as an element the use, attempted use, or

threatened use of physical force against a person, and it is

not one of the crimes enumerated in § 4B1.2(a). Thus, for

Residential Entry to qualify as a crime of violence, it must

satisfy the “otherwise” clause of § 4B1.2(a)(2). And to satisfy

the “otherwise” clause, the particular offense must include

“conduct that presents a serious potential risk of physical

injury to another.” U.S.S.G. § 4B1.2(a)(2).

In Howze, we reasoned that flight from the police always constitutes a crime of violence because all flights from

authorities entail risk of a violent encounter. Howze, 343

F.3d at 921-22. The government argues that, similarly to

the offense analyzed in Howze, intentionally breaking and

entering into a person’s dwelling “presents an inherent risk

of a violent encounter between the perpetrator and the

resident of the dwelling.” As support for its position, the

government cites United States v. Venegas-Ornelas, 348

F.3d 1273 (10th Cir. 2003), and United States v. DelgadoEnriquez, 188 F.3d 592 (5th Cir. 1999), both of which hold
4 No. 04-2969

that a similar offense under Colorado law constitutes a

“crime of violence” as defined in 18 U.S.C. § 16. Much like

§ 4B1.2(a), § 16 defines “crime of violence” to include “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.” 18 U.S.C. § 16(b).

In both cases cited by the government, the defendant was

convicted of first-degree criminal trespass under Colo. Rev.

Stat. Ann. § 18-4-502. Venegas-Ornelas, 348 F.3d at 1275-

76; Delgado-Enriquez, 188 F.3d at 595. Similar to Indiana’s

Residential Entry statute, first-degree criminal trespass

makes it a crime to knowingly and unlawfully enter or

remain in the dwelling of another. See Venegas-Ornelas, 348

F.3d at 1276. In Delgado-Enriquez, the court concluded that

first-degree criminal trespass is a crime of violence within

the meaning of § 16(b) because, “[e]ntering or remaining in

a dwelling of another creates a substantial risk that

physical force will be used against the residents of the

dwelling.” Delgado-Enriquez, 188 F.3d at 595. The VenegasOrnelas court, adopting the reasoning of Delgado-Enriquez,

concluded that the defendant had committed a crime of

violence and stated:

A defendant will often encounter resistance either from

occupants or structural barriers in “entering or remaining” in someone’s dwelling unlawfully, regardless of the

defendant’s intent in being there. Therefore, there is

still a substantial risk that a defendant will need to use

force against people or property to either gain entry or

remain in a dwelling unlawfully.

Venegas-Ornelas, 348 F.3d at 1278.

We agree with the reasoning of the Fifth and the Tenth

Circuits in concluding that Residential Entry is a crime

of violence because of the serious risk that an occupant

could be injured. Residential Entry is a lesser-included

offense of burglary, Patterson v. State, 729 N.E.2d 1035,
No. 04-2969 5

1043 (Ind. Ct. App. 2000), and residential burglary is a

crime of violence, see Taylor v. United States, 495 U.S. 575,

599 (1990); U.S.S.G. § 4B1.2(a)(2). The Court in Taylor

noted that a burglar entering a building “creates the

possibility of a violent confrontation,” and that the burglar’s

“awareness of this possibility may mean that he is prepared

to use violence if necessary to carry out his plans or to

escape.” Taylor, 495 U.S. at 588. Residential Entry is no

different because Residential Entry likewise entails an

entry into a residence without permission and presents the

same risk of encountering an occupant. The perpetrator of

a Residential Entry thus engages in conduct that presents

a “serious potential risk of physical injury” to an occupant,

see U.S.S.G. § 4B1.2(a)(2), and for purposes of § 4B1.2(a)(2)

commits a “crime of violence.”

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-22-05