Unpublished Disposition, 893 F.2d 1339 (9th Cir. 1990)

MEMORANDUM^** 

Brett Delain Sorenson appeals the district court's use of his Oregon first degree felony burglary convictions for sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1) (ACCA), and imposition of a special assessment under 18 U.S.C. § 3013. We reverse and remand for resentencing and vacate the special assessment.

FACTS AND PROCEEDINGS

Sorenson pleaded guilty to being a felon in illegal possession of firearm in violation of 18 U.S.C. § 922(g) (1). The government alleged that his three previous Oregon first degree burglary convictions provided the basis for sentence under the ACCA. Sorenson filed a motion challenging the use of his prior convictions as the basis for sentence enhancement. The district court denied the motion, finding that the government was entitled to seek sentence enhancement. He was sentenced to 15 years imprisonment.

Sorenson appeals on two bases. First, he asserts that a conviction under Oregon's first degree burglary statute cannot form the basis of sentence enhancement. Second, he argues that the court improperly imposed a $50 special assessment against him.

DISCUSSION

I. Use of Oregon Burglary Convictions for Enhancement

This court recently held that Congress intended the term burglary in the ACCA to have its common law meaning. United States v. Chatman, 869 F.2d 525, 527 (9th Cir. 1989). There we defined common law burglary as "breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein." Id. Oregon's first degree burglary statute does not fit this definition and therefore cannot serve as a basis for sentence enhancement.¹  United States v. Hunt, No. 88-3222, slip op., (9th Cir. Jan. 8, 1990); cf. United States v. Cunningham, 878 F.2d 311, 312 (9th Cir. 1989) (Oregon second degree burglary conviction is an impermissible basis for sentence enhancement).

The government argues alternatively that, even if Sorenson's priors are not "burglary", the crimes still qualify as "violent felonies" because they involve conduct posing a "serious potential risk of physical injury to another." See 18 U.S.C. § 924(e) (2) (B) (ii).²  This argument is rejected for the reasons stated in United States v. Hunt, No. 88-3222, slip op. (9th Cir. Jan. 8, 1990).

The Oregon first degree burglary statute under which Sorenson was convicted does not fit the common law definition of burglary, nor qualify as a "violent felony". His sentence is vacated and the case is remanded to the district court for resentencing.

Sorenson asserts correctly that imposition of a special assessment under 18 U.S.C. § 3013 was improper. United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988) (holding statute enacted unconstitutionally), cert. granted, --- U.S. ----, 110 S. Ct. 48 (1989). The special assessment must be vacated.

CONCLUSION

The Oregon first degree burglary statute under which Sorenson was convicted does not fit the common law definition of burglary, nor does it qualify as a "violent felony". The prior convictions cannot serve as the basis for sentence enhancement. The sentence is vacated and the cause is remanded to the district court for resentencing. The special assessment is vacated.³