Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.David C.B. KING, Defendant-Appellant.

No. 89-10637.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1990.Decided Jan. 29, 1991.

Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

This is an appeal from a sentence imposed under the career offender provisions of the Sentencing Guidelines. The defendant contends that the government failed to prove that his prior convictions qualify as predicate crimes for sentencing purposes. He also raises constitutional challenges to the imposition of his sentence. We reject his arguments and we affirm.

* David King pleaded guilty to two charges of committing armed bank robbery in violation of 18 U.S.C. § 2113 (1988). The presentence report recommended that King be classified as a career offender pursuant to section 4B1.1 of the Sentencing Guidelines. The presentence report cited King's convictions for two counts of robbery and his conviction for burglary as predicate crimes establishing his status as a career offender.

The district court rejected King's challenge to the use of these prior convictions. The court concluded that the government satisfied its burden of showing by a preponderance of the evidence that (1) the convictions did in fact occur; (2) the robbery convictions were not stale because King had been reincarcerated following parole revocation; and (3) the burglary conviction was for a crime of violence as defined by the Guidelines.

II

A defendant is classified as a career offender if (1) the defendant is at least eighteen years old at the time of the instant offense; (2) the instant offense is a crime of violence; and (3) the defendant has at least two prior felony convictions for crimes of violence. Guideline Sec. 4B1.1; United States v. O'Neal, 910 F.2d 663, 666 (9th Cir. 1990).

King contends that the district court erred in concluding that the government established the commission of the predicate crimes or that his burglary was a crime of violence. He argues that the government should be required to establish these facts by "clear and convincing" evidence rather than by a preponderance of the evidence. That argument has been rejected. See United States v. Newman, 912 F.2d 1119, 1122 (9th Cir. 1990) (preponderance standard applies to factual determinations of defendant's prior criminal history).

a. Proof of Predicate Crimes

King claims that the government did not establish either that he was incarcerated on the robbery charge within the time frame covered by the guidelines or that he was convicted of burglary. We conclude that the government met its burden.

King does not challenge the fact that he was convicted of the robbery charges in 1971, but rather he objects to the government's proof that he was imprisoned on those charges within the fifteen year time frame specified by Guideline Sec. 4A1.2(e) (1). The government offered the testimony of a probation officer who had contacted state authorities to confirm that King had been imprisoned on the robbery offenses in 1974, had violated parole, and had been returned to prison. We reject King's contention that the information should not have been considered because it was not verified by either fingerprint or photographic comparisons of King's identity. We agree with the district court that the officer's testimony satisfies the quantum and burden of proof required. See United States v. Flores, 875 F.2d 1110, 1112-13 (5th Cir. 1989) (testimony of a probation officer established that certain convictions were for burglaries of personal residences).

King also argues that the government failed to establish that he was convicted on the burglary charge. The government submitted, however, certified copies of the state's charge and the judgment of conviction. Further, the probation officer testified that he confirmed King's conviction with state officers including matching King's social security number and date of birth with state records. That proof is sufficient.

b. Crime of Violence

King contends that burglary is not a crime of violence. We disagree. The guideline in effect at the time of King's sentencing states that burglary of a dwelling is a crime of violence. See Guideline Sec. 4B1.2(1) (ii) (1989). Cf. United States v. Becker, 919 F.2d 568, 572-73 (9th Cir. 1990) (interpreting prior Guideline Sec. 4B1.2 (1988) to include burglary of a residence as a crime of violence).

King nevertheless argues that his particular burglary was not a crime of violence because he was convicted of violating Mass.Gen.L. ch. 266, Sec. 18, which provides, inter alia, that " [w]hoever ... enters a dwelling house ... with intent to commit a felony, no person lawfully therein being put in fear, shall be punished by imprisonment...." King contends that the inclusion of the phrase "no person lawfully therein being put in fear" precludes a finding that his burglary was a crime of violence. That argument has been rejected, however, by the First Circuit in United States v. Patterson, 882 F.2d 595, 604 (1st Cir. 1989), cert. denied, 110 S. Ct. 737 (1990), where the court held, for purposes of the Armed Career Criminal Act, that a conviction under Mass.Gen.L., ch. 266, Sec. 18 is for a "violent felony." The court reasoned that the fact that "no person was in fact put in fear does not alter the basic premise of Congress that any felonious breaking and entering presents 'a serious potential risk of physical injury to another.' " Id. (quoting 18 U.S.C. § 924(e) (2) (B) (ii) (1988)).

III

King argues that application of the career offender provisions of the Sentencing Guidelines violates due process because the guidelines (1) fail to provide for a standard of proof; (2) prevent the consideration of individual mitigating factors; and (3) allow only the government to seek a downward departure based on a defendant's cooperation in the investigation of another person who has committed an offense. Each of those constitutional concerns has been considered and rejected by this court. See United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990) (standard of proof); United States v. Brady, 895 F.2d 538, 540-42 (9th Cir. 1990) (individualized sentence); United States v. Ayarza, 874 F.2d 647, 653 (9th Cir. 1989) (government's election to seek departure for cooperating defendant), cert. denied, 110 S. Ct. 847 (1990).

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3