USA v. Brown, No. 05-5462 (2d Cir. 2008)

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05-5462-cr USA v. Brown 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2007 5 (Argued: October 17, 2007 Decided: January 30, 2008) 6 7 Docket No. 05-5462-cr 8 _________________________________________________________ 9 UNITED STATES OF AMERICA, 10 Appellee, 11 - v. - 12 SEAN BROWN, 13 14 Defendant-Appellant. _________________________________________________________ 15 Before: KEARSE and HALL, Circuit Judges, and RAKOFF, District Judge*. 16 17 Appeal from a judgment of the United States District Court 18 for the Eastern District of New York, Sterling Johnson, Jr., Judge, 19 following a remand pursuant to United States v. Crosby, 397 F.3d 103 20 (2d Cir. 2005), resentencing defendant to 84 months' imprisonment in 21 light of his prior state-law conviction of third-degree burglary, 22 considered as a crime of violence, and his possession of firearms 23 whose serial numbers had been obliterated. 24 Affirmed; remanded for clerical correction of judgment. * Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 1 2 3 4 5 6 ADAM ABENSOHN, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee. 7 8 MICHAEL S. POLLOK, New York, New York, filed a brief for Defendant-Appellant. 9 KEARSE, Circuit Judge: 10 Defendant Sean Brown, who pleaded guilty in the United 11 States District Court for the Eastern District of New York before 12 Sterling 13 dealing, in violation of 18 U.S.C. § 922(a)(1)(A), and seven counts 14 of being a felon in possession of a firearm, in violation of 18 15 U.S.C. § 922(g)(1), appeals from a judgment entered following a 16 remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 17 2005) ("Crosby"), sentencing him under the advisory Sentencing 18 Guidelines principally to 84 months' imprisonment, to be followed by 19 a three-year term of supervised release. 20 that the district court erred in increasing his offense level on the 21 grounds (a) that on some of the firearms he possessed the serial 22 numbers had been obliterated, and (b) that his prior crime of third- 23 degree burglary constituted a crime of violence. 24 that his sentence is unreasonable on the grounds that the district 25 court (a) failed to consider, inter alia, some of the sentencing 26 factors set forth in 18 U.S.C. § 3553(a), and (b) reimposed a 27 sentence that the court had originally indicated was inappropriate. Johnson, Jr., Judge, to -2- one count of unlicensed gun On appeal, Brown contends He also contends 1 For the reasons that follow, we find no basis for reversal. 2 I. BACKGROUND 3 The events leading to this prosecution are not in dispute. 4 In a series of transactions in late 2002 and early 2003, Brown sold 5 seven guns to undercover police officers. 6 serial numbers were obliterated. Brown was indicted on, inter alia, 7 one count of unlicensed gun dealing, in violation of 18 U.S.C. 8 § 922(a)(1)(A), and seven counts of being a felon in possession of 9 a firearm, in violation of 18 U.S.C. § 922(g)(1). On two of those guns, the Brown pleaded 10 guilty to those eight counts. 11 two counts of knowingly possessing firearms with obliterated serial 12 numbers, in violation of 18 U.S.C. § 922(k); the court refused to 13 accept a plea of guilty to those two counts because Brown maintained 14 that 15 obliterated. 16 A. he did not know the The indictment also charged him with serial numbers on the guns were The Guidelines Calculations 17 A presentence report ("PSR") prepared on Brown initially 18 calculated that his recommended range of imprisonment under the 2003 19 version of the Guidelines ("2003 Guidelines"), which was applied to 20 him, was 57-71 months. 21 which included three convictions for felonies under New York State 22 ("State") law: a 1989 conviction for criminal possession of a 23 weapon, conviction 24 conviction for burglary. a 1991 The PSR described Brown's criminal record, for attempted burglary, and a 1993 As to the 1993 burglary conviction, the -3- 1 PSR stated that, according to his State presentence report, Brown 2 had explained to a State parole officer that someone had owed him 3 money and that, when Brown had not received payment for several 4 months, he broke into the home of his debtor's mother and stole her 5 jewelry. 6 The above three convictions gave Brown nine criminal 7 history points and placed him in criminal history category ("CHC") 8 IV. 9 premise that he had committed the instant offenses after having been 10 convicted of one prior crime of violence, see 2003 Guidelines 11 § 2K2.1(a)(4)(A), to wit, the attempted burglary of which he was 12 convicted in 1991. 13 (stating, in pertinent part, that "[f]or purposes of this guideline 14 . . . '[c]rime of violence' has the meaning given that term in 15 § 4B1.2(a)"). 16 sold by Brown had obliterated serial numbers. 17 increase for possession of firearms with obliterated serial numbers, 18 see id. § 2K2.1(b)(4), a two-step increase on the ground that 19 Brown's offenses involved seven firearms, see id. § 2K2.1(b)(1), and 20 a three-step decrease for acceptance of responsibility, see id. 21 § 3E1.1(b), Brown's total offense level was 21. The PSR calculated Brown's base offense level as 20 on the 22 See also id. § 2K2.1 Application Note 5 The PSR also stated that at least two of the firearms After a two-step However, the PSR was subsequently amended to increase that 23 level. 24 statutes and this Court's decision in United States v. Andrello, 25 9 F.3d 247 (2d Cir. 1993) ("Andrello"), cert. denied, 510 U.S. 1137 26 (1994), revealed that Brown's 1993 burglary was a crime of violence, 27 and hence that Brown's record included two crimes of violence rather An addendum stated that a closer examination of New York -4- 1 than one as stated in the original PSR. 2 a defendant with two such prior convictions was 24. 3 Guidelines § 2K2.1(a)(2). 4 with the other adjustments remaining the same, Brown's total offense 5 level was 25. 6 resulted in a Guidelines-recommended imprisonment range of 84-105 7 months. 8 B. The base offense level of See 2003 Thus, the amended PSR concluded that, That offense level, combined with a CHC of IV, The March 2004 Sentencing 9 Brown made no objections to the statements or calculations 10 in the PSR, either as originally issued or as amended, except with 11 respect to the recommended two-step increase in offense level for 12 possession of firearms with obliterated serial numbers. 13 suggest that the serial numbers were not in fact obliterated; 14 rather, he contended that the enhancement was inappropriate because 15 he did not know they were obliterated, and because the district 16 court had refused to accept his plea of guilty to the § 922(k) 17 charges that he had "knowingly" possessed firearms with obliterated 18 serial numbers. 19 range, without that enhancement, should be 70 to 87 months. 20 e.g., Sentencing Transcript March 26, 2004 ("2004 S.Tr."), at 7.) He did not Brown argued that his Guidelines imprisonment (See, 21 The government responded that while 18 U.S.C. § 922(k) 22 itself applies only if the defendant had knowledge that a firearm's 23 serial number was removed, altered, or obliterated, the pertinent 24 Guidelines section stated simply, "[i]f any firearm . . . had an 25 altered or obliterated serial number, increase by 2 levels," 2003 26 Guidelines § 2K2.1(b)(4). The government pointed out that the -5- 1 commentary to that guideline provided that the enhancement under 2 subsection (b)(4) for a "[f]irearm with altered or obliterated 3 serial number applies whether or not the defendant knew or had 4 reason to believe that the firearm had an altered or obliterated 5 serial number." 6 § 2K2.1 Application Note 19).) 7 requirement. 8 9 (2004 S.Tr. at 6 (referring to 2003 Guidelines Thus, the guideline had no scienter Judge Johnson addressed both sides' positions, stating as follows: 10 11 12 13 14 15 16 17 Problem I have with the government's position is the fact that the defendant had pled to eight counts for aggregating [sic] circumstances, the government wants to charge him basically with ten [sic] guns, two which he said he didn't know the guns were -the serial numbers were obliterated and while according to the law the government has the right to do that, it is not the right thing to do. 18 19 20 21 22 23 24 The government's calculations with respect to their position is 84 to 105 months. The defendant's position is that it should be 70 to 87 months. The problem that I have with the defendant's position is that he is in a criminal category history four. It is not that this is his first contact with the criminal justice system. 25 26 27 28 29 30 31 If he were not a criminal category history four, notwithstanding Sentencing Guidelines as related by the government, I would sentence him to 70 months. However, I'm going to sentence the defendant to the custody of the Attorney General or his duly authorized representative for a period of 84 months. 32 (2004 S.Tr. at 20-21.) 33 Judgment was entered on March 31, 2004, and Brown timely 34 appealed. 35 new attorney filed a brief pursuant to Anders v. California, 386 36 U.S. 738 (1967), and moved to withdraw as counsel, stating that On appeal, Brown was represented by new counsel, and his -6- 1 Brown had no nonfrivolous issues for appeal. 2 for summary affirmance. 3 Court decided United States v. Booker, 543 U.S. 220 (2005), holding 4 that the Guidelines are not mandatory but advisory. 5 this Court granted Brown's new attorney's motion to withdraw; but we 6 denied the government's motion for summary affirmance, instructed 7 that new counsel be appointed for Brown, and, without reaching any 8 merits questions, summarily remanded the case to the district court, 9 in accordance with Crosby, 397 F.3d at 119, to permit the court to 10 determine whether its original sentence would have been nontrivially 11 different under the post-Booker advisory-Guidelines regime. 12 C. The government moved In January 2005, the United States Supreme Thereafter, The Sentencing on Remand 13 On remand, Judge Johnson decided to resentence Brown; the 14 attorney who had represented Brown throughout virtually all of the 15 prior district court proceedings was appointed to represent him. 16 Thereafter, the parties submitted written arguments and the court 17 held a hearing, attended by counsel and Brown. 18 reiterated his prior argument that notwithstanding the fact that the 19 Guidelines § 2K2.1(b)(4) enhancement was, on its face, applicable 20 even 21 obliterated, Brown should not have his punishment increased on 22 account of a fact that he denied knowing. 23 Transcript September 23, 2005 ("2005 S.Tr."), at 5 ("Even though it 24 is something the defendant doesn't have to know, he still has not 25 pled guilty to that.").) 26 if the defendant did not know the Brown's attorney serial numbers were (See, e.g., Sentencing Brown's attorney also advanced a new contention, saying he -7- 1 had "missed it the first time around," arguing that Brown's 1993 2 felony of third-degree burglary should not have been considered a 3 crime of violence. 4 conviction resulted from Brown's plea of guilty to burglary of a 5 "building"; that burglary of a "building" did not fall within the 6 Guidelines definition of crime of violence, which referred to 7 burglary of a "dwelling," see Guidelines 2003 § 4B1.2(a); and that 8 that conviction thus could not justify a base offense level of 24 9 under § 2K2.1(a)(2). (2005 S.Tr. at 3.) He argued that that burglary (2005 S.Tr. at 4.) Brown's attorney pointed 10 out that if the 1993 burglary were not treated as a crime of 11 violence and the enhancement for the obliterated serial numbers were 12 eliminated, Brown's advisory Guidelines-recommended imprisonment 13 range would be 46-57 months. 14 (See 2005 S.Tr. at 7.) The government opposed Brown's contentions, citing this 15 Court's 16 themselves. 17 that Andrello "deem[ed] burglary in the third degree under New York 18 law . . . to constitute [a] crime[] of violence" (2005 S.Tr. at 8) 19 and hence foreclosed Brown's contention that his 1993 burglary 20 should not be considered a crime of violence under § 4B1.2(a). 21 AUSA also reiterated the government's position that Guidelines 22 § 2K2.1(b)(4), calling for an offense-level increase for possession 23 of a gun with an obliterated serial number, is "a strict liability 24 provision" that did not require knowledge (2005 S.Tr. at 8). decision in Andrello, 9 F.3d 247, and the Guidelines The Assistant United States Attorney ("AUSA") argued The 25 After hearing counsel's arguments and a statement from 26 Brown, the district court resentenced Brown under the post-Booker 27 sentencing regime and imposed the same 84-month term of imprisonment -8- 1 it had imposed originally. The court stated as follows: 2 3 The sentencing landscape has been changed by Booker . . . . 4 5 6 7 8 9 10 11 12 . . . Crosby tells us that the court must consider the guidelines because they are advisory and then look at the factors in 3553(a) and if you look at the factors in 3553(a)(2)(A), to reflect the seriousness of the offense and to promote respect for the law and to provide just punishment for an offense and in this situation the defendant is a prior felon who was selling a number of firearms to undercover police officers . . . . 13 . . . . 14 15 16 17 18 19 20 . . . And then 3553(a)(2)(B) says to afford adequate deterrence to criminal conduct. This defendant is not unfamiliar with the criminal justice system. He has numerous run-ins with the criminal justice system and there are at least two felonies that he's been convicted of; is that correct? 21 22 23 MR. ABENSOHN [the AUSA]: I believe there are three prior felonies but two qualify as crimes of violence for purposes of the statute, Your Honor. 24 25 26 27 28 THE COURT: And 3553(a)(2)(C) says to protect the public from further crimes of the defendant and this defendant on one instance had escaped custody for a state conviction and while in that escape status committed another felony . . . . 29 . . . . 30 31 32 33 34 35 36 . . . Well, I have taken all of this into consideration and I have looked at the guidelines and I am going to impose the same sentence that I imposed before. I sentence the defendant to the custody of the Attorney General or his duly authorized representative for a period of 84 months to run concurrent on each count . . . . 37 (2005 S.Tr. at 10-12.) 38 followed. 39 Judgment was entered, and this appeal II. DISCUSSION -9- 1 On this appeal, Brown contends principally (a) that his 2 1993 burglary should not have been considered a crime of violence, 3 (b) that his advisory-Guidelines offense level should not have been 4 increased on account of the guns' obliterated serial numbers, and 5 (c) that his sentence is unreasonable because the district court did 6 not consider some of the § 3553(a) sentencing factors and because 7 the judge reimposed the same 84-month sentence despite having, 8 according to Brown, "specifically stated at the initial sentencing 9 that he would have sentenced [Brown] to 70 months if he had the 10 choice" (Brown brief on appeal at 10). 11 we find no merit in his contentions. 12 A. For the reasons that follow, Standard of Review 13 Following the Supreme Court's decision in Booker, holding 14 that the Guidelines are advisory rather than mandatory, a sentencing 15 court must determine an appropriate sentence by considering the 16 factors set forth in 18 U.S.C. § 3553(a). 17 U.S. at 259-60; Crosby, 397 F.3d at 111. Since those factors 18 include for 19 category 20 defendant as set forth in the guidelines" issued by the Sentencing 21 Commission, 18 U.S.C. § 3553(a)(4)(A), the court is required to make 22 a "determination of the applicable Guidelines range, or at least 23 identification of the arguably applicable ranges," despite the fact 24 that such ranges are now advisory. the of sentencing offense ranges See, e.g., Booker, 543 established committed by - 10 - the "the applicable applicable category of Crosby, 397 F.3d at 113; see, 1 e.g., Gall v. United States, 128 S. Ct. 586, 596 (2007) ("[A] 2 district court should begin all sentencing proceedings by correctly 3 calculating the applicable Guidelines range. . . . [T]he Guidelines 4 should be the starting point and the initial benchmark."); United 5 States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006); United 6 States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005). 7 § 3553(a) factors that the sentencing court must consider include 8 "the 9 § 3553(a)(1), "the history and characteristics of the defendant," 10 id., and the need for the sentence that is imposed to, inter alia, 11 "reflect the seriousness of the offense, . . . promote respect for 12 the law, . . . provide just punishment for the offense[,] . . . 13 afford adequate deterrence to criminal conduct[, and] . . . protect 14 the 15 §§ 3553(a)(2)(A), (B), and (C). nature public 16 In and from the circumstances further of crimes post-Booker era, the offense," of the we review 18 Other U.S.C. defendant," sentences id. for 17 reasonableness, see Booker, 543 U.S. at 261-62, a standard that is 18 "akin 19 Fernandez, 443 F.3d 19, 27 (2d Cir.) ("Fernandez"), cert. denied, 20 127 S. Ct. 192 (2006); see, e.g., Gall, 128 S. Ct. at 594 ("[T]he 21 Booker opinion made it pellucidly clear that the familiar abuse-of- 22 discretion standard of review now applies to appellate review of 23 sentencing decisions."); Crosby, 397 F.3d at 114. 24 review involves consideration of both the length of the sentence 25 (substantive reasonableness) and the procedures used to arrive at 26 the sentence (procedural reasonableness)." United States v. Canova, 27 485 F.3d 674, 679 (2d Cir. 2007). to review for abuse of discretion," - 11 - United States v. "Reasonableness 1 As to substantive reasonableness, the "numerous 2 [§ 3553(a)] factors that guide sentencing . . . . guide appellate 3 courts . . . in determining whether a sentence is unreasonable." 4 Booker, 543 U.S. at 261. 5 "substantive reasonableness, . . . we consider whether the length of 6 the sentence is reasonable in light of the factors outlined in 18 7 U.S.C. § 3553(a)." 8 In reviewing for procedural reasonableness, we consider, inter alia, 9 whether the sentencing judge treated the Guidelines as advisory and 10 whether he considered the Guidelines and all of the other factors 11 listed in § 3553(a). 12 procedurally unreasonable if, for example, the sentencing judge 13 misinterpreted a relevant guideline or failed to consider the 14 factors listed in § 3553(a). Thus, in reviewing a sentence for United States v. Rattoballi, 452 F.3d at 132. See, e.g., id. at 131-32. A sentence would be 15 We have not insisted that sentencing judges slavishly 16 follow any particular formula in considering the § 3553(a) factors. 17 See, e.g., Crosby, 397 F.3d at 113 ("[W]e will no more require 18 'robotic incantations' by district judges [post-Booker] than we did 19 when the Guidelines were mandatory."). 20 21 22 23 24 25 26 27 28 Instead, we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors. . . . [A]nd we will not conclude that a district judge shirked her obligation to consider the § 3553(a) factors simply because she did not discuss each one individually or did not expressly parse or address every argument relating to those factors that the defendant advanced. 29 Fernandez, 443 F.3d at 30. 30 the statutory requirements and the sentencing range or ranges that 31 are arguably applicable, "As long as the judge is aware of both and nothing - 12 - in the record indicates 1 misunderstanding about such materials or misperception about their 2 relevance, we will accept that the requisite consideration has 3 occurred." 4 2005). 5 B. United States v. Fleming, 397 F.3d 95, 100 (2d Cir. Third-Degree Burglary as a Crime of Violence 6 Brown contends that the district court committed the Guidelines 7 procedural 8 definition of "crime of violence," as encompassing his 1993 New York 9 felony of third-degree burglary. error by interpreting § 4B1.2(a), We conclude, in light of (a) the 10 residual clause at the end of the § 4B1.2(a) definition, (b) the 11 identically 12 definition of "violent felony," (c) the interpretation of § 924(e) 13 by the Supreme Court in Taylor v. United States, 495 U.S. 575 14 (1990), and this Court in Andrello, 9 F.3d 247, with respect to the 15 nature of burglaries, (d) this Court's parallel constructions of 16 § 4B1.2(a)'s concept of "crime of violence" and § 924(e)'s concept 17 of "violent felony" in analyzing non-burglary felonies, and (e) the 18 absence 19 interpreting § 4B1.2(a)'s residual clause, that the district court 20 did not misinterpret the Guidelines definition. 21 22 of worded a residual relevant clause statement by in the 18 U.S.C. Sentencing § 924(e)'s Commission The Guidelines definition of "crime of violence" provided that that term 23 24 25 means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-- 26 27 28 (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or - 13 - 1 2 3 4 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. 6 2003 Guidelines § 4B1.2(a) (emphases added); see also Guidelines 7 § 4B1.2(a) (2007) (same). In determining whether a given crime fits 8 within the definition of the relevant predicate offenses, we take a 9 "categorical" approach; that is, we generally look only to the 10 statutory definition of the prior offense of conviction rather than 11 to the underlying facts of that offense. Taylor, 495 U.S. at 600. 12 Under New York law, "[a] person is guilty of burglary in 13 the third degree when he knowingly enters or remains unlawfully in 14 a building with intent to commit a crime therein." 15 § 140.20 (McKinney 1999). Plainly, "building[s]" include structures 16 other than "dwelling[s]"; hence, the New York crime of third-degree 17 burglary does not categorically fit within the first clause of 18 § 4B1.2(a)(2)'s definition of crime of violence, i.e., "burglary of 19 a dwelling." 20 fits within the last clause of the § 4B1.2(a)(2) definition, i.e., 21 the residual clause encompassing any felony that "otherwise involves 22 conduct that presents a serious potential risk of physical injury to 23 another." N.Y. Penal Law The question thus is whether third-degree burglary 24 Most of our Sister Circuits dealing with state laws 25 defining crimes of burglary have struggled to determine whether 26 interpreting § 4B1.2(a)(2)'s residual "otherwise involves" clause to 27 include burglary of a building that is not a dwelling is foreclosed 28 by that definition's earlier specific mention of "burglary of a - 14 - 1 dwelling" (emphasis added). 2 question in the affirmative, concluding that only burglaries of 3 dwellings 4 § 4B1.2(a)(2). 5 119 (4th Cir. 1995); United States v. Spell, 44 F.3d 936, 938-39 6 (11th Cir. 1995); United States v. Smith, 10 F.3d 724, 733 (10th 7 Cir. 1993). 8 building involves conduct that presents a serious potential risk of 9 physical injury to another, and hence burglary of such a non- 10 dwelling is also a crime of violence, falling within the scope of 11 § 4B1.2(a)(2)'s last clause. 12 76 F.3d 902, 906 (8th Cir.) ("Hascall"), cert. denied, 519 U.S. 948 13 (1996); United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992), 14 cert. denied, 507 U.S. 1024 (1993). Still other Circuits have ruled 15 that whether burglary of a building other than a dwelling should be 16 considered a crime of violence within the meaning of the residual 17 clause of § 4B1.2(a)(2) depends on the circumstances of the crime. 18 See, e.g., United States v. Matthews, 374 F.3d 872, 880 (9th Cir. 19 2004); United States v. Hoults, 240 F.3d 647, 651-52 (7th Cir. 20 2001); United States v. Wilson, 168 F.3d 916, 928-29 (6th Cir. 1999) 21 ("Wilson"); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 22 1994). are to be Some Circuits have answered this considered crimes of violence under See, e.g., United States v. Harrison, 58 F.3d 115, Others have concluded that burglary of a commercial See, e.g., United States v. Hascall, 23 The Sentencing Commission, for its part, has not since 24 1989 clarified the intended reach of § 4B1.2's definition of crime 25 of violence. 26 27 28 As the Sixth Circuit noted in Wilson, [t]he Sentencing Commission has considered and failed to adopt various amendments to section 4B1.2 over the years which would address the question of - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 whether "burglary of a dwelling" should be interpreted broadly or narrowly. For example, in December 1992, the Commission considered a proposed amendment to the definition of a crime of violence which would have amended that section "to include all burglaries, and not just burglaries of a dwelling." 57 Fed.Reg. 62832, 62856-57 (proposed Dec. 31, 1992). This proposed change was rejected. Subsequently, in 1993, another proposed amendment sought to add language to application note 2 which would have clarified that, "The term 'crime of violence' includes burglary of a dwelling (including any adjacent outbuilding considered part of the dwelling). It does not include other kinds of burglary." 58 Fed.Reg. 67522, 67533 (proposed December 21, 1993). The Commission also failed to adopt this approach. 18 168 F.3d at 928 (emphases added). 19 "'[w]e fail to see how the Commission's inconsistent path supports 20 a particular view on this issue.'" 21 906). The Wilson court concluded: Id. (quoting Hascall, 76 F.3d at 22 We note that at one time the Sentencing Commission had 23 taken the position that the Guidelines definition of crime of 24 violence did not include burglaries of non-dwellings. 25 Guidelines defined crime of violence by adopting the definition of 26 that term as it appeared in 18 U.S.C. § 16. 27 (1987) (renumbered § 4B1.2(a) in 1997, Guidelines Appendix C, Vol. 28 I, Amendment 568, at 526 (eff. Nov. 1, 1997)); see 18 U.S.C. § 16 29 (defining crime of violence to encompass any "felony . . . that, by 30 its nature, involves a substantial risk that physical force against 31 the person or property of another may be used in the course of 32 committing the offense"). 33 stated 34 definition to mean that "[c]onviction for burglary of a dwelling 35 would that be the covered" Guidelines § 4B1.2(1) The commentary to the original § 4B1.2 Commission but The original that interpreted "conviction - 16 - the for crime-of-violence burglary of other 1 structures would not be covered." 2 Note 1 (1987) (emphasis added). However, this stated interpretation 3 was short-lived. 4 Guidelines § 4B1.2 Application In 1989, the Commission amended § 4B1.2 "to clarify" the 5 definition of crime of violence. 6 Amendment 268 (eff. Nov. 1, 1989) ("Amendment 268"), at 133. 7 reference to 18 U.S.C. § 16 was deleted; the clarified Guidelines 8 definition 9 paragraph of this Part II.B. (wording that has remained the same 10 through 2007), i.e., listing, inter alia, burglary of a dwelling and 11 any felony that "otherwise involves conduct that presents a serious 12 potential risk of physical injury to another," Amendment 268, at 13 131-33. 14 continued to note that crimes of violence include burglary of a 15 dwelling; but the statement that "burglary of other structures would 16 not be covered" was omitted. 17 § 4B1.2 or of its commentary has stated that burglaries of non- 18 dwelling buildings are excluded from the Guidelines definition of 19 crime of violence. used the § 4B1.2(a) Guidelines Appendix C, Vol. I, wording quoted in the The second The original commentary was replaced by commentary that Id. at 132. No subsequent version of 20 This Court has not previously decided whether the New York 21 crime of third-degree burglary is a "crime of violence" within the 22 definition set out in Guidelines § 4B1.2(a). 23 249-50, however, we held that attempted third-degree burglary under 24 New York law is a "violent felony" within the meaning of 18 U.S.C. 25 § 26 previously convicted felon who is convicted of possessing a gun in 27 violation 924(e), a of section 18 that U.S.C. § provides 922(g) - 17 - and In Andrello, 9 F.3d at enhanced who has penalties "three for a previous 1 convictions . . . for a violent felony," 18 U.S.C. § 924(e)(1). 2 term "violent felony" as used in § 924(e) includes a felony that 3 4 5 6 The is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 7 Id. § 924(e)(2)(B)(ii) (emphasis added). 8 does 9 concluded in Andrello that attempted third-degree burglary under New 10 York law is a violent felony under § 924(e)(2)(B)(ii)'s residual 11 clause. 12 Court's decision in Taylor, 495 U.S. 575, with regard to burglary 13 itself. not specify that violent Although that definition felonies include attempts, we In reaching this conclusion, we were guided by the Supreme 14 As discussed in Taylor, the legislative history of 15 § 16 Congress's view that burglary is an offense that inherently poses a 17 risk of physical injury to victims, bystanders, and law enforcement 18 personnel. 19 congressional hearings focusing on burglary pointed out that 924(e)'s 20 21 22 23 24 25 sentence-enhancing provisions repeatedly revealed For example, the Taylor Court noted that testimony at even though injury is not an element of the offense, it is a potentially very dangerous offense, because when you take your very typical residential burglary or even your professional commercial burglary, there is a very serious danger to people who might be inadvertently found on the premises. 26 Taylor, 495 U.S. at 585 (internal quotation marks omitted) (emphases 27 added). 28 29 30 31 32 33 The Court noted that [t]he fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate. Taylor, 495 U.S. at 588. The legislative history - 18 - 1 2 3 4 5 6 indicate[d] that Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense . . . because of its inherent potential for harm to persons. Id. (emphases added). 7 Consistent with these views of the nature of burglary, the 8 Supreme Court has most recently ruled that attempted burglary of a 9 "structure," see Fla. Stat. § 810.02(1) (1993); id. § 777.04(1) 10 (attempts), is a violent felony within the meaning of § 924(e) 11 because it involves conduct that "presents a serious potential risk 12 of injury to another," James v. United States, 127 S. Ct. 1586, 13 1597-98 (2007). 14 15 16 17 18 19 20 The James Court noted that the main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a faceto-face confrontation between the burglar and a third party--whether an occupant, a police officer, or a bystander . . . . Id. at 1594. 21 In Andrello, this Court, noting Taylor's description of 22 Congress's view of burglary as reflected in the legislative history 23 of § 924(e), concluded that attempted third-degree burglary under 24 New York law is a violent felony within the meaning of the residual 25 clause of § 924(e)(2)(B)(ii), i.e., that the attempt involves 26 conduct that presents a serious potential risk of physical injury to 27 another. 28 conclusion was that "burglary itself is a crime that inherently 29 involves a risk of personal injury," id. at 249. 30 31 See 9 F.3d at 249-50. The major premise leading to that Andrello's major premise is instructive for purposes of the present case because the - 19 - residual clause of the 1 § 924(e)(2)(B)(ii) definition of "violent felony" and the residual 2 clause of the Guidelines § 4B1.2(a)(2) definition of "crime of 3 violence" are identical; both definitions end with the inclusion of 4 any felony that "otherwise involves conduct that presents a serious 5 potential 6 Guidelines § 4B1.2 "'definition of crime of violence'" was "'derived 7 from 18 U.S.C. § 924(e).'" 8 (2d Cir. 1995) ("Palmer") (quoting Amendment 268, at 133). risk of physical injury to another." Indeed, the United States v. Palmer, 68 F.3d 52, 55 9 Given the identical language of the two definitions' 10 residual clauses, this Court, in determining whether a defendant's 11 prior non-burglary felonies were violent felonies within the meaning 12 of § 924(e), has been guided by cases interpreting Guidelines 13 § 4B1.2(a)(2). 14 Cir. 2002) ("We . . . look to cases construing U.S.S.G. § 4B1.2 15 (career offender), which defines a 'crime of violence' in wording 16 substantially identical to the definition of 'violent felony' under 17 § 924(e)."), cert. denied, 539 U.S. 952 (2003). 18 determining whether a defendant's prior non-burglary felonies were 19 crimes of violence within the meaning of Guidelines § 4B1.2(a), we 20 have been guided by cases interpreting § 924(e). See, e.g., Palmer, 21 68 22 § 924(e)(2)(B) in terms that are substantially identical to the 23 definition of 'crime of violence' in USSG § 4B1.2(1)."). 24 25 26 27 28 29 30 F.3d at 55 See United States v. Jackson, 301 F.3d 59, 62 (2d ("The term 'violent And conversely, in felony'" is "defined Given the substantial similarity between the . . . definition of "violent felony[]" [in] 18 U.S.C. § 924(e)(2)(B), and the Sentencing Commission's definition of "crime of violence," U.S.S.G. § 4B1.2(1), authority interpreting one phrase frequently is found to be persuasive in interpreting the other phrase. - 20 - by 1 Palmer, 68 F.3d at 55 (quoting United States v. Winter, 22 F.3d 15, 2 18 n.3 (1st Cir. 1994)). 3 Such analytical cross-referencing between Guidelines 4 § 4B1.2(a)(2) and 18 U.S.C. § 924(e)(2)(B)(ii) rests not only on the 5 fact that the residual clauses of the two provisions are identical, 6 but 7 particular type of conduct has the potential to present a serious 8 risk of physical injury to another person focuses on the nature of 9 the conduct. also on the recognition that the inquiry into whether a The inherent nature of the conduct is not dependent on 10 the location of a provision prescribing punishment for that conduct. 11 And where the language of two such provisions is identical, we 12 cannot conclude that those provisions have disparate applicability 13 to a type of conduct that inherently involves the risk specified in 14 both provisions. 15 Having reasoned in Andrello that attempted third-degree 16 burglary 17 18 U.S.C. § 924(e)(2)(B)(ii) because third-degree "burglary itself 18 is a crime that inherently involves a risk of personal injury," 19 9 F.3d at 249, we can only conclude that third-degree burglary 20 inherently 21 identically worded residual clause of Guidelines § 4B1.2(a)(2). of "a poses building" that falls same within risk the within residual the clause meaning of of the 22 Accordingly, we conclude that in ruling that Brown's 1993 23 third-degree burglary in violation of New York law was a crime of 24 violence 25 § 4B1.2(a)(2), and thus that his record included two crimes of 26 violence, making his base offense level 24, the district court did 27 not misinterpret the Guidelines. within the meaning of the - 21 - last clause of Guidelines 1 C. The Enhancement for Obliterated Serial Numbers 2 Brown's contention that the obliterated-serial-numbers 3 enhancement should not have been applied to him because he did not 4 know 5 discussion. 6 "[i]f any firearm . . . had an altered or obliterated serial 7 number." 8 provided that the enhancement applied "whether or not the defendant 9 knew or had reason to believe that the firearm . . . had an altered the numbers were obliterated does not warrant extended The Guidelines provided for a two-level enhancement 2003 Guidelines § 2K2.1(b)(4). The commentary to § 2K2.1 10 or obliterated serial number." 11 Note 19. 12 1995), we upheld the strict-liability nature of this provision, 13 stating that while "18 U.S.C. § 922(k), which criminalizes the 14 possession of a firearm with an obliterated serial number, contains 15 a scienter requirement, . . . Congress has not required . . . that 16 the 17 requirement." Id. at 93. We noted that the strict-liability nature 18 of the enhancement "reasonably imposes the burden upon a felon who 19 illegally possesses a firearm to ensure that the serial number is 20 not obliterated," and such an obligation does not violate due 21 process. § 2003 Guidelines § 2K2.1 Application Thus, in United States v. Williams, 49 F.3d 92 (2d Cir. 2K2.1(b)(4) sentencing enhancement contain a scienter Id. 22 To the extent that Brown may also be arguing that the 23 § 2K2.1(b)(4) enhancement could not be applied to him because the 24 fact that serial numbers were obliterated was not proven by the 25 government beyond a reasonable doubt to a jury (see Brown brief on 26 appeal at 17-18), his argument fares no better. "Judicial authority 27 to find facts relevant to sentencing by a preponderance of the - 22 - 1 evidence survives Booker." 2 220 n.15 (2d Cir. 2005). Here, the PSR stated unequivocally that on 3 at least two of the guns sold by Brown, the serial numbers were 4 obliterated; and Brown made no objection to that statement. 5 argument to the district court was that he "under oath stated he was 6 not aware of the defaced weapon." 7 added).) United States v. Garcia, 413 F.3d 201, His (2004 S.Tr. at 3 (emphasis 8 Finally, Brown points out that at his original sentencing 9 hearing, the district court stated that while "the government has 10 the 11 enhancement 12 18 U.S.C. § 922(k), "it is not the right thing to do" (2004 S.Tr. at 13 20). 14 on remand, after the Guidelines were declared advisory, was thus 15 unreasonable. 16 Crosby remand is to permit the district court to determine whether 17 to impose a different sentence knowing that the Guidelines--which 18 had given the government the right to seek that enhancement--are not 19 mandatory. 20 advisory nature of the Guidelines, and it obviously concluded that 21 the enhancement was appropriate even under the advisory Guidelines. 22 We see no error or abuse of discretion in that conclusion. 23 D. right" to seek despite the not Guidelines pursuing the obliterated-serial-number criminal charges under Brown argues that the application of that enhancement to him We reject this argument, given that the purpose of a On the remand in this case, the court acknowledged the Other Contentions 24 Brown's other challenges to his sentence, alleging 25 procedural and substantive unreasonableness, need not detain us 26 long. - 23 - 1 1. The Alleged Failure To Consider the Sentencing Factors 2 Brown's contention that the district court failed to 3 consider 4 discussed in Part II.A. above, we have not required a sentencing 5 judge to engage in robotic incantations either to demonstrate that 6 he has discharged his duty to "consider" the required factors or to 7 "address every argument relating to those factors that the defendant 8 advanced." the § 3553(a) sentencing factors is meritless. As Fernandez, 443 F.3d at 30. 9 In the present case, the record, including those segments 10 quoted in Part I.C. above, reveals that the court was aware both of 11 the statutory requirements and of the recommended sentencing range 12 and that it considered the required factors. 13 indicates that the court misunderstood the sentencing factors or 14 their relevance. 15 2. Nothing in the record The Alleged Unreasonableness of Imposing the Same Sentence 16 Brown also contends that the district court's resentencing 17 him to the same 84-month sentence it had imposed originally was 18 substantively 19 "specifically stated at the initial sentencing that he would have 20 sentenced [Brown] to 70 months if he had the choice" (Brown brief on 21 appeal at 10). 22 make that statement. unreasonable on the ground that the judge had We reject this contention because the court did not 23 What the district court said at the original sentencing 24 was that it would have imposed a shorter prison term if Brown had 25 not had such an extensive criminal record: 26 The problem that I have - 24 - with the defendant's 1 2 3 position is that he is in a criminal category history four. It is not that this is his first contact with the criminal justice system. 4 5 6 7 If he were not a criminal category history four, notwithstanding Sentencing Guidelines as related by the government, I would sentence him to 70 months. 8 (2004 S.Tr. at 20-21.) 9 would have imposed the shorter sentence if only the Guidelines were 10 not mandatory; to the contrary, the court said that if Brown had not 11 had such an extensive criminal record, it "would" have sentenced him 12 more leniently "notwithstanding [the] Sentencing Guidelines." 13 Plainly the court did not state that it Nothing about Brown's criminal record changed between the 14 original sentencing and the sentencing on remand. 15 decisions in sentencing and resentencing Brown reveal that the court 16 took seriously its obligation to consider, inter alia, "the history 17 and characteristics of the defendant," 18 U.S.C. § 3553(a)(1). 18 E. And the court's Correction of the Judgment 19 Finally, we note nostra sponte that the judgment from 20 which Brown has appealed does not accurately describe the counts of 21 conviction. 22 "pleaded guilty to count(s) one through eight of the indictment," 23 Judgment dated September 23, 2005, at 1, it lists his offense of 24 "UNLAWFUL FIREARMS DEALING" as count "2," instead of count 1; and it 25 lists "POSSESSION OF A FIREARM" as count "3," rather than counts 2- 26 8, id. On remand, an amended judgment should be entered, accurately 27 reflecting the counts of conviction. Although it initially states--accurately--that Brown - 25 - 1 2 CONCLUSION We have considered all of Brown's arguments on this appeal 3 and have found them to be without merit. 4 the matter is remanded for clerical correction of the judgment. - 26 - The sentence is affirmed;

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