1 Senior Circuit Judge of the Ninth Circuit sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-5574

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GERALD GUERRA,

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_____________________________________________________

(May 28, 1992)

Before SNEED, 1 REAVLEY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Appealing only his sentence, Gerald Guerra contends that his

Gui delines § 4B1.1 career offender enhancement was improper,

specifically challenging the holding that his predicate conviction

for attempted burglary is a "crime of violence" within the meaning

of the guideline. Because we find a guidelines application note

dispositive, we AFFIRM

.

I.

Guerra pleaded guilty to distribution of cocaine, in violation

of 21 U.S.C. § 841(a)(1). At sentencing, he unsuccessfully opposed

the career offender enh ancement requested by the government,2 The initial pre-sentence investigation report (PSI)

recommended that he be sentenced as a career offender under

U.S.S.G. §§ 4B1.1 and 4B1.2, because of prior convicti ons for

aggravated assault and burglary of a habita tion. Because the

probation officer subsequently determined, on Guerra's objection,

that the aggravated assault conviction did not qualify as one of

the two r equisite predicate offenses for enhancement purposes, a

revised PSI did not include the enhancement recommendation. The

government objected to the revised PSI and proposed that Guerra's

conviction for attempted burglary of a habitation was the requisite

s econd predicate conviction. At sentencing, the government

contended that the attempted burglary was a "crime of violence" for

enhancement purposes because it "involve[d] conduct that presents

a serious potential risk of physical injury to another." U.S.S.G.

§ 4B1.2(1)(ii). As discussed i nfra

, we need not reach this issue.

3 Without the enhancement, Guerra's sentencing range was 24 to

30 months; with it, 168 to 210.

- 2 - asserting that attempted burglary was not one of the crimes of

violence enumerated in the guideline and did not otherwise meet the

guidelines definition. 2 Guerra was sentenced to 168 months'

imprisonment, at the bottom end of the applicable career offender

sentencing range. 3

II.

The holding that Guerra's attempted burglary conviction

qualifies as a predicate offense for § 4B1.1 enhancement is a

conclusion of law, reviewed de novo

. E .g.

, United States v. Shano

,

955 F.2d 291, 294 (5th Cir.), cert. dismissed , __ U.S. __, 112 S.

Ct. 1520 (1992).

"A defendant is a career offender if (1) the defendant was at

least eighteen years old at the time of t he instant offense, (2)

the instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense, and (3) the

defendant has at least two prior felony convictions of either a- 3 -

crime of violence or a controlled substance offense." U.S.S.G. §

4B1.1. The term "crime of violence" is defined in § 4B1.2 as

any offense under federal or state law punishable

by imprisonment for a term exceeding one year 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 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(1)(i)-(ii). Importantly for this appeal,

application note 1 in the official commentary to § 4B1.2 specifies

that "[t]he term[] `crime of violence'

... include[s] the offense[]

of

... attempting to commit such offense[]." U.S.S.G. § 4B1.2,

comment. (n.1).

Guerra does not dispute that the instant offense, distribution

of cocaine, is a "controlled substance offense". Nor does he

challenge the designation of his prior conviction for burglary as

a "crime of violence". The only issue is whether the attempted

burglary qualifies as the other predicate conviction (a "crime of

violence") for enhancement purposes.

In district court, the governmen t did not rely upon

application note 1; it did not ev en mention it. Instead, as

discussed in note 2, supra , it relied upon the residual clause in

§ 4B1.2(1)(ii), that the attempted burglary "presente[d] a serious

potential risk of physical injury to another." In its initial4 Because we hold th at the Sentencing Commission intended

attempted burglary to be an enumerated offense within the career

offender guideline, i.e.

, the enumerated "burglary" includes

"attempting to commit" burglary by application of note 1, we need

not decide whether attempted burglary falls wi thin the residual

clause of § 4B1.2(1)(ii).

- 4 - brief here, it took the same posi tion. 4 But, note 1 answers

Guerra's objection. The guideline specifically designates

"burglary of a dwelling" as an eligible predicate offense for

enhancement, and the commentary states that the term "crime of

violence" includes attempts to commit the offenses enumerated in

the guideline. See United States v. Liranzo , 944 F.2d 73, 78 (2d

Cir. 1991) (prior conviction for attempted criminal possession of

cocaine wa s a predicate offense for § 4B1.1 enhancement because

"[t]he plain language of Application Note 1 made the `attempt'

conviction a `controlled substance offense.'").

This court relies on the official commentary to determine the

intent of the Sentencing Commission. For example, in U nited States

v. Arellano-Rocha

, 946 F.2d 1105, 1108 (5th Cir. 1991), we utilized

the application notes to determine the defini tion of "prior

sen tence" because they "furnish[ed] a clear answer to the

objection [the defendant] raise[d], they support[ed] the district

c ourt's interpretation, and their ... interpretation of `prior

sentence' [was] consistent with the guidelines' approach

generally." S ee also United States v. Gaitan

, 954 F.2d 1005, 1010

(5th Cir. 1992) (lack of commentary on issue of guidelines

interpret ation was "telling" as to whether Sentencing Commission

intended to favor government's interpretation ); U nited States v.5 One contention, totally lacking in merit, is that the note "is

a vestige of an early version of the career offender guideline" and

has been rendered invalid by the change, in 1989, of the definition

for "crime of violence". Note 1 provides that "[t]he terms `crime

of vi olence' and `controlled substance offense' include the

offenses of aiding and abetting, conspiring, and atte mpting to

commit such offenses." U.S.S.G. § 4B1.2, comment. (n.1). It is

similar to part of the pre-1989 version of note 2 to § 4B1.2

(defining only "c ontrolled substance offense"). Note 1 became

effective November 1, 1989, as part of amendments designed "to

clarify th e definitions of crime of violence and controlled

substance offense" in the career offender guideline. U.S.S.G. App.

C, amend. 268. That same amendment added to § 4B1.2(1) a

definition of crime of violence that was derived from 18 U.S.C. §

924(e). Id. ( See infra for a discussion of § 924(e).) Although

the Sentencing Commission again clarified the definition of crime

of violence in an amendment effective November 1, 1991, it did not

change note 1. S ee id.

, amend. 433. Guerra was sentenced in March

1991.

- 5 - Brigman , 953 F.2d 906, 908 (5th Cir. 1992) (Sentencing Commission

intended amendments to guidelines' commentary to clarify

guidelines' application; failure to follow commentary could

constitute grounds for reversal on appeal).

Guerra advances several reasons for not relying on the note;

none is persuasiv e. 5 First, he emphasizes that: the district

court was not awa re of the application note concerning attempts,

because the government did not point it out; and, the government

did not raise the issue on appeal

-- instead, we asked for, and

received, supplemental briefs from both parties on the point. In

short, he asserts that the government waived relying upon the note.

We can ground our deci sion on the official commentary, even

though the government did not cite it in the district court or in

its initial brief. Guidelines § 1B1.7 covers the role the

Sentencing Commissio n intended courts to give the commentary,

including the application notes. It states in part:6 Guerra is incorrect that our decision in United States v.

Garcia-Pillado

, 898 F.2d 36 (5th Cir. 1990) supports his position.

Garcia-Pillado held that the government waived its objection to

imposition of a guidelines sentence that was less than the

statutory minimum when it did not object in the district court.

Id

. at 38-40. Here, the government did not fail to raise its

contention

-- that attempted burglary is a crime of violence

-- in

the district court; rather, on appeal -- at our suggestion -- it

relies on a new legal authority, or basis, for a posi tion it has

already taken.

7 Because Martinez was not rendered until after briefing in this

appeal was completed, our request for supplemental briefs included

its applicability vel non

.

- 6 -

The Commentary that accompanies the guideline

sections may serve a number of purposes. F irst, it

may interpret the guideline or explain how it is to

be applied

. Failure to follow such commentary

could constitute an incorrect application of the

guidelines, subjecting the sentence to possible

reversal on appeal. See 18 U.S.C. § 3742.

(Emphasis added.) The commentary to § 1B1.7 analogizes commentary

to "legislative history or othe r legal material that helps

determine the intent of a drafter." See Arellano-Rocha , 946 F.2d

at 1108. Obviously, even if never cited by a party, we can --

indeed must

-- consider the commentary to the guideline used by the

district court. 6

Second, Guerra contends that interpreting "crime of violence"

to encompass attempted burglary conflicts with our recent holding

in United States v. Martinez

, 954 F.2d 1050, 1054 (5th Cir. 1992),

that "a conviction under Texas law for attempted burglary does not

qualify as a sentence-enhancing `violent felony' under the language

of [18 U.S.C.] § 924(e)(2)(B)(ii)." 7 Section 924(e), part of the

Armed Career Criminal Act, "provides a sentence enhancement for a

defendant who i s convicted under 18 U.S.C. § 922(g) (unlawful8 Section 924(e) defines "violent felony" as "any crime

punishable by imprisonment for a term exceeding one year

... 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)(i)-(ii).

- 7 - possession of a firearm) and who has three prior convictions for

specified types of offenses, including `burglary.'" T aylor v.

United States , 495 U.S. 575, 577-78 (1990).

Martinez does not con trol this case. It is true that the

guidelines' definition of "crime of violence" is derived from the

definition of "violent felony" in § 924(e). 8 See note 5, s upra ;

U.S.S.G. App. C, amend. 268; United States v. Parson

, 955 F.2d 858,

866 n.10, 867 (3d Cir. 1992). However, in adopting and amending §

4B1.2, the Sentencing Commission chose to imple ment a different

standard than the one Congress enacted in § 924(e). See U.S.S.G.

§ 4B1.4, comment. (n.1) ("The term[] `violent felony'

... [is]

defined in 18 U.S.C. § 92 4(e)(2). It is to be noted that the

defini tion[] of `violent felony' ... in [that statute] [is] not

identical to the definition[] of `crime of violence'

... used in §

4B1.1 (Career Offender)".); Parson

, 955 F.2d at 870 ("The

Sentencing Commission has told us ... that the definitions in

U.S.S.G. § 4B1.2(1) and 18 U. S.C. § 924(e)(2)(B) differ.")

Therefore, the meaning of "crime of violence" for purposes of the

career offender guideline is not the same as what we interpreted- 8 -

"violent felony" to include for p urposes of the Armed Career

Criminal Act in Martinez

.

Furthermore, because of the Sentencing Commission's

determination that attempted burglary should be a predicate offense

for enhancement, as contrasted with the lack of any such indication

in § 924(e), a different outcome is appropriate. In Martinez , we

said that

if Congress had wished to include attempted

burglary as an offense warranting sentence

enhancement, it easily could have done so. Section

924(e) explicitly mentions burglary; if Congress

believed that the attempt should be treated the

same way as the crime itself, it could have said so

with virtually no effort. The Government, however,

presents no argument from the legislative history

that the Congress even considered including the

crime of attempted burglary

-- or any other attempt

-- when it was considering § 924(e).

954 F.2d at 1053. This case is different. Our task, obviously, is

to discern the Sentencing Commission's intent, see Parson

, 955 F.2d

at 868, whereas the Martinez court, in applying a statutory

enhancement, was interpreting Congressional intent. And, here, we

know from reading note 1 that the Commission intended for attempts

to commit the enumerated offenses to be included as pr edicate

offenses for the career offender guideline. In sum, we should not

deviate from a plain reading of the guidelines and their official

commentary. Concomitantly, the use of note 1, instead of the

residual clause to § 4B1.2(1)(ii), avoids uncertainty, promotes

simplicity, and fosters uniformity and consistency in this aspect

of sentencing (career offender enhancements), thereby comporting

with salutary goals of the guidelines.- 9 - III.

For the foregoing reasons, the judgment is

AFFIRMED

.