United States v. Cornelius

UNITED STATES of America, Appellant,
v.
Douglas Greg CORNELIUS, Appellee.

Nos. 90-2187SI, 90-2373SI.

Submitted Feb. 12, 1991.
Decided April 23, 1991.

Defendant was convicted in the United States District Court for the Southern District of Iowa, Charles R. Wolle , J., of being a felon in possession of a firearm and he appealed and the Government cross-appealed. The Court of Appeals, Magill , Circuit Judge, held that: (1) the determination that defendant's actions presented a serious potential risk of physical injury to another so as to warrant career offender sentence enhancement under the Guidelines was not clearly erroneous, and (2) the defendant's prior conviction for breaking and entering constituted "generic burglary" warranting sentencing as an armed career criminal.

Affirmed in part and reversed in part.

West Headnotes

[1] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVI Habitual and Career Offenders

· 350HVI(B) Offenses Subject to Enhancement

· 350Hk1243 Violent or Nonviolent Character of Offense

· 350Hk1244 k. In General. Most Cited Cases (Formerly 110k1202.2)

Courts should look beyond the mere statutory elements of a crime when determining whether an offense is a crime of violence for purpose of career offender sentence enhancement under the Guidelines. U.S.S.G. § 4B1.1 , 18 U.S.C.A.App.

[2] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVI Habitual and Career Offenders

· 350HVI(B) Offenses Subject to Enhancement

· 350Hk1243 Violent or Nonviolent Character of Offense

· 350Hk1245 k. Particular Offenses. Most Cited Cases (Formerly 110k1202.2)

Determination that a defendant who entered person's home late at night, without permission, and with a sawed-off gun after having a threatening conversation with the occupant presented a serious potential risk of physical injury to another, so as to constitute a "crime of violence" within the Sentencing Guidelines, was not clearly erroneous. U.S.S.G. § 4B1.1 , 18 U.S.C.A.App.

[3] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVII Cruel and Unusual Punishment in General

· 350HVII(E) Excessiveness and Proportionality of Sentence

· 350Hk1513 k. Habitual Offenders and Career Criminals. Most Cited Cases(Formerly 110k1213.8(6))

The career offender sentence enhancement of the Sentencing Guidelines does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.U.S.S.G. § 4B1.1 , 18 U.S.C.A.App.


[4] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVI Habitual and Career Offenders

· 350HVI(C) Offenses Usable for Enhancement

· 350HVI(C)1 In General

· 350Hk1255 Particular Offenses

· 350Hk1260 k. Other Particular Offenses. Most Cited Cases (Formerly 110k1202.3(1), 110k1202.3)

A defendant's previous conviction for breaking and entering constituted "generic burglary," and upon his conviction of being a felon in possession of a firearm he was subject to sentencing as an armed career criminal. 18 U.S.C.A. §§ 922(g) , 924(e) .


*490 Joseph Cahill , Nevada, Iowa, for appellant.

Linda R. Reade, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before MAGILL , BEAM and LOKEN , Circuit Judges.

MAGILL , Circuit Judge.

Douglas Greg Cornelius appeals the district court's enhancement of his sentence for being a career offender under § 4B1.1 *491 of the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (Nov. 1990). After a jury convicted Cornelius of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), the district court sentenced him to 120 months' imprisonment, determining that his conviction was for a crime of violence under U.S.S.G. § 4B1.1 . The government cross-appeals the district court's determination that Cornelius was not an armed career criminal under 18 U.S.C. § 924(e) . We affirm the district court's determination that Cornelius was a career offender, but reverse its determination that Cornelius was not an armed career criminal.

I.

Cornelius met Penni Lynn Ball in August 1986. In December 1987, Cornelius moved into Ball's house and lived there until May 1988. After moving out, Cornelius never lived in Ball's house again. In the fall of 1988, Ball obtained a court order barring Cornelius from contacting her. Nevertheless, Cornelius and Ball were married in December 1988. Within the first few weeks of their marriage, Cornelius called Ball and told her that he would give her a divorce if she "could come up with $150." Since Ball did not have the money, they did not get divorced at that time. FN1 From the fall of 1988, Ball dated other men and continued living in the house with her three children and two roommates, Michelle Tiffany and Gary Yocom.

FN1. Ball did file for divorce in May 1989.

In the first week of February 1989, Cornelius and Ball got into a fight and Yocom called the sheriff's office for assistance. During the evening of February 11, Ball received a threatening telephone call from Cornelius. She testified that she was scared and believed Cornelius would come to the house. She took her three children over to her mother's house to spend the night. That evening, Ball and her boyfriend, William Vary, slept in Yocom's bedroom on the first floor and Yocom slept on the couch outside the door to his bedroom. At approximately 2:20 a.m., Yocom and Ball heard gunshots. They assumed that it was Cornelius who was firing the gun and reported the incident to the sheriff's office. Before they went back to bed, they placed pop bottles and cans inside the front door to warn them if anyone tried to enter the house.

At 5:30 a.m., Yocom awoke after he thought he heard the pop bottles in front of the door rattle. He saw Cornelius, who was wearing a gray leather jacket, crawling on the floor into the living room. Yocom lost sight of Cornelius after Yocom thought he heard the cellar door open. Yocom then woke up Ball and Vary, who called the sheriff's office again. After the deputies arrived, they entered the cellar to look for Cornelius. The cellar was dirty and damp, with raw sewage on the floor in many areas. The residents did not use the cellar for storage because it was too damp. In addition to finding Cornelius in the cellar, the deputies also found a clean gray leather jacket and a gun propped up against the rail of the stairs. The fact that the jacket and the gun were relatively clean and dry indicated that they had recently been placed in the cellar. The barrel of the gun had been sawed off and its serial number had been obliterated. Cornelius was subsequently arrested and charged with being a felon in possession of a firearm.

At trial, Billy J. Smith testified that he sold the gun to Cornelius in the late fall of 1988 and that at the time it was sold, the gun had both a full barrel and a serial number. At sentencing, the government argued that Cornelius should be sentenced as a career offender under U.S.S.G. § 4B1.1 . FN2 Cornelius objected, arguing that *492 a conviction for being a felon in possession of a firearm did not constitute a crime of violence as required by § 4B1.1 . The court disagreed with Cornelius and sentenced him as a career offender.

FN2. This section provides:A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the 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 crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.

U.S.S.G. § 4B1.1 (table omitted).

The government also argued that Cornelius should receive an 18 U.S.C. § 924(e)sentence enhancement as an armed career criminal. FN3 Cornelius objected, arguing that his 1970 conviction for breaking and entering did not qualify as a burglary for purposes of § 924(e) because the state statute he was convicted under defined burglary too broadly. FN4 While the government admitted that the statute was overbroad, it argued that the information contained the elements of generic burglary required by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) . The district court refused to consider the information and held that § 924(e)did not apply because the language of the breaking and entering statute was too broad to count the 1970 conviction as generic burglary in light of Taylor. FN5

FN3. A sentence enhancement under 18 U.S.C. § 924(e) requires a showing of three previous convictions for a violent felony or a serious drug offense. The government established that Cornelius had been convicted of the following three felonies: breaking and entering, second degree arson, and extortion. In addition, Cornelius had been convicted of assault with intent to cause serious injury.

FN4. The statute provides:If any person, with intent to commit any public offense, in the daytime break and enter, or in the nighttime enter without breaking, any dwelling house; or at anytime break and enter any office, shop, store, warehouse, railroad car, boat or vessel, or any building in which any goods, merchandise, or valuable things are kept for use, sale or deposit, he shall be imprisoned in the penitentiary not more than ten years, or be fined not exceeding one hundred dollars and imprisoned in the county jail not more than one year.

Iowa Code § 708.8 (1969) .

FN5. The district court stated that it was determining, as a matter of fact, that the 1970 conviction did not count under § 924(e) . However, such a determination is not a factual finding, but rather a legal conclusion that is subject to de novo review by this court.

Cornelius appealed, challenging the district court's determination that his conviction of being a felon in possession of a firearm constituted a crime of violence for purposes of U.S.S.G. § 4B1.1 and attacking the constitutionality of § 4B1.1 . The government cross-appealed, arguing that the district court's holding that Cornelius was not an armed career criminal under 18 U.S.C. § 924(e) was incorrect because Cornelius' breaking and entering conviction did qualify as a generic burglary offense.

II.

A. Career Offender Designation

Cornelius first argues that being a felon in possession of a firearm is not included in the Sentencing Guidelines' definition of a crime of violence and therefore he should not have received the § 4B1.1 enhancement. The government argues that the court properly looked to the circumstances surrounding the conviction to determine that Cornelius had committed a crime of violence.

The Sentencing Guidelines define a "crime of violence" 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) . Cornelius correctly focuses on the language, "or otherwise involves conduct that presents serious potential risk of physical injury to another," found in § 4B1.2(1)(ii) , arguing that his conduct did not present a serious potential risk of physical injury. While we have not directly addressed this part of § 4B1.2 , other circuits have, and we find their approach instructive.

*493 In United States v. Goodman, 914 F.2d 696 (5th Cir.1990) , the Fifth Circuit held that a court may look beyond the face of the indictment and consider all of the facts in the record when it determines whether the defendant was convicted of a crime of violence for purposes of § 4B1.1 . Id. at 699. The Seventh Circuit came to the same conclusion in United States v. Alvarez, 914 F.2d 915 (7th Cir.1990) . The Seventh Circuit held that the court "must look to the underlying conduct as well as the elements of the offense" when determining whether an offense is a crime of violence under § 4B1.2 . Id. at 918. See also United States v. McNeal, 900 F.2d 119, 123 (7th Cir.1990) ("[D]istrict court may consider facts underlying the conviction in determining whether possession of a firearm is a crime of violence."). While acknowledging that some district courts have accepted the notion that possession of a firearm by a felon is always a crime of violence, the Seventh Circuit expressed some skepticism about the validity of this view. Id.

The Ninth Circuit took a different approach when it addressed this question in United States v. O'Neal, 910 F.2d 663, 667 (9th Cir.1990) . It explicitly chose not to address whether a court should look to the circumstances surrounding a conviction to determine whether it was a crime of violence. Id. at 667. Instead, it held that a "categorical analysis suffices to conclude that the offense of being a felon in possession of a firearm by its nature poses a substantial risk that physical force will be used against person or property" and therefore being a felon in possession of a firearm qualifies as a crime of violence. Id.; see also Goodman, 914 F.2d at 698-99 (noting that two district court cases in Fifth Circuit held mere possession of a firearm by a convicted felon constituted a crime of violence).

[1] [2] We join the emerging consensus and hold that courts should look beyond the mere statutory elements of a crime when determining whether an offense is a crime of violence. Having adopted this approach, we review the district court's sentencing decision under the standard set out by Congress:

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

18 U.S.C. § 3742(e)(4) (1988) ; see also United States v. Lawrence, 915 F.2d 402, 405 (8th Cir.1990) . The district court's finding that Cornelius' actions presented a serious potential risk of physical injury to another was not clearly erroneous. Cornelius entered Ball's home late at night, without permission, and with a sawed-off gun after having a threatening conversation with Ball earlier that evening. Therefore, since the district court's determination was not clearly erroneous, we affirm its enhancement of Cornelius' base offense level for being a career offender.

B. Constitutionality of Career Offender Guideline

[3] Cornelius also argues that the career offender sentence enhancement, in general, violates the eighth amendment's prohibition against cruel and unusual punishment. We resolved this general question in United States v. Foote, 920 F.2d 1395 (8th Cir.1990) , holding that "sentences under the Guidelines are sentences within statutorily prescribed ranges and therefore do not violate the Eighth Amendment." Id.at 1401 (citations omitted). Consequently, this claim fails.

C. Armed Career Criminal Designation

[4] The government argues that Cornelius' 1970 conviction for breaking and entering constituted generic burglary under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) , and that as a result Cornelius is an armed career criminal under 18 U.S.C. § 924(e) . FN6 In Taylor v. United States, the Supreme Court*494 held that a conviction will be considered generic burglary for purposes of a sentence enhancement under § 924(e) if "either the statutory definition [of the offense] substantially corresponds to 'generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Id., 110 S.Ct. at 2160 . The court defined generic burglary as "an unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 2158.

FN6. If Cornelius is found to be an armed career criminal in addition to a career offender, his sentencing range increases from 15-30 years to 30 years to life.

Cornelius maintains that the district court properly refused to count his breaking and entering charge as generic burglary because the statute under which he was convicted was too broad to fit under the Taylor definition of generic burglary. The district court believed Taylor prevented it from looking behind Cornelius' guilty plea to determine whether the elements of the offense for which he was convicted constituted generic burglary. Our recent decision in United States v. Payton, 918 F.2d 54 (8th Cir.1990) , resolves this issue in favor of the government.

In Payton, we held that if a defendant pleads guilty to a nongeneric burglary statute and the information portion of the charging document includes all of the elements of generic burglary, then the conviction constitutes generic burglary for the purposes of§ 924(e) . Payton, 918 F.2d at 56 . In Payton, the defendant pleaded guilty to Iowa Code § 708.8 (1971) , the same statute at issue in Cornelius' case.

Cornelius attempts to distinguish Payton by arguing that the defendant in Payton made a voluntary statement at the sentencing phase in which he admitted committing all of the elements of generic burglary. While the Payton court did acknowledge the defendant's in-court admission, it did not rely on this admission when determining that the previous conviction did constitute generic burglary under Taylor. Payton, 918 F.2d at 56 . The information in Payton stated that on the day in question, the defendant "did break and enter a building located at 242 E. 30th with intent to commit a public offense." Id. After quoting the information in Payton (and before mentioning the defendant's admission at sentencing), this court stated: "Appellant's pro se argument that the information does not fulfill the generic definition of Taylor is without merit."Payton, 918 F.2d at 56 . Cornelius' information stated that on the day in question, Cornelius, "with intent to commit a public offense to-wit: larceny, [did] break[ ] and enter [ ] a restaurant owned by Lawrence Banks of McCallsburg, Iowa, located at McCallsburg, Iowa." Appellee's Brief at Add. 20. Cornelius' information is functionally indistinguishable from the information in Payton. Therefore, Cornelius' 1970 conviction did constitute generic burglary under Taylor. Consequently, we reverse the district court's determination that Cornelius was not an armed career criminal under § 924(e)and remand for resentencing.

III.

For the foregoing reasons, the district court's sentence is affirmed in part and reversed in part. We affirm the district court with respect to its career offender determination; we reverse with respect to its armed career criminal determination and remand for resentencing consistent with this opinion.

C.A.8 (Iowa),1991.
U.S. v. Cornelius
931 F.2d 490

United States Court of Appeals,

Eighth Circuit.

UNITED STATES of America, Appellee,
v.
Douglas Greg CORNELIUS, Appellant.

No. 91-3351.

Submitted May 14, 1992.
Decided July 2, 1992.

Defendant was convicted of being felon in possession of firearm and given enhanced sentence as career offender by the United States District Court for the Southern District of Iowa, Charles R. Wolle , J. Defendant and United States appealed. The Court of Appeals, 931 F.2d 490, affirmed conviction and reversed and remanded for resentencing on issue of whether defendant was armed career criminal after determining that defendant's breaking and entering conviction qualified as predicate felony. At resentencing, the District Court refused to consider new issues and sentenced defendant to 30 years in prison. Defendant appealed. The Court of Appeals,Magill , Circuit Judge, held that: (1) district court was free to consider any new arguments raised at resentencing as to whether defendant was armed career criminal that could have been considered at first hearing; (2) district court correctly refused to consider new evidence relating to defendant's sentence enhancement as career offender; and (3) defendant was entitled to collaterally attack constitutional validity of prior conviction underlying armed career criminal enhancement at his sentence enhancement hearing.

Affirmed in part; reversed in part and remanded.

West Headnotes

[1] KeyCite Citing References for this Headnote

· 110 Criminal Law

· 110XXIV Review

· 110XXIV(U) Determination and Disposition of Cause

· 110k1192 k. Mandate and Proceedings in Lower Court. Most Cited Cases

When sentence has been vacated or finding related to sentencing has been reversed and case has been remanded for resentencing, district court can hear any relevant evidence on that issue that it could have heard at first hearing; however, sentencing court must adhere to any limitations imposed on its function at resentencing by appellate court.

[2] KeyCite Citing References for this Headnote

· 110 Criminal Law

· 110XXIV Review

· 110XXIV(U) Determination and Disposition of Cause

· 110k1181.5 Remand in General; Vacation

· 110k1181.5(3) Remand for Determination or Reconsideration of Particular Matters

· 110k1181.5(9) k. Habitual and Second Offenders. Most Cited Cases (Formerly 110k1203.26(7), 110k1203.31)

District court was free on remand for resentencing to consider any new arguments raised at resentencing as to whether defendant was armed career criminal that could have been considered at first hearing; Court of Appeal's ruling that prior conviction did not qualify as predicate conviction for armed career criminal status did not limit district court's further determination of whether defendant was armed career criminal.18 U.S.C.A. § 924(e) ; 28 U.S.C.A. § 2255 ; U.S.S.G. § 4B1.1 , 18 U.S.C.A.App.

[3] KeyCite Citing References for this Headnote

· 110 Criminal Law

· 110XXIV Review

· 110XXIV(U) Determination and Disposition of Cause

· 110k1181.5 Remand in General; Vacation

· 110k1181.5(3) Remand for Determination or Reconsideration of Particular Matters

· 110k1181.5(9) k. Habitual and Second Offenders. Most Cited Cases (Formerly 110k1203.26(7), 110k1203.31)

District court properly refused to consider new evidence relating to defendant's sentence enhancement as career offender on remand, where Court of Appeals affirmed district court's finding on appeal. 18 U.S.C.A. § 924(e) ; 28 U.S.C.A. § 2255 ;U.S.S.G. § 4B1.1 , 18 U.S.C.A.App.

[4] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVI Habitual and Career Offenders

· 350HVI(H) Defects in Prior Adjudication

· 350Hk1312 k. Constitutional Objections in General. Most Cited Cases (Formerly 110k1202.10(4), 110k1202.13)

Defendant seeking to avoid enhanced sentence as armed career criminal could collaterally attack constitutional validity of prior conviction at his sentence enhancement hearing. 18 U.S.C.A. § 924(e), (e)(1) ; U.S.S.G. § 4A1.2, comment. (n.6) , 18 U.S.C.A.App.


*704 Dean Stowers , Des Moines, Iowa, argued, for appellant.

Linda R. Reade, Des Moines, Iowa, argued, for appellee.

Before McMILLIAN , JOHN R. GIBSON , and MAGILL , Circuit Judges.

MAGILL , Circuit Judge.

Douglas Greg Cornelius appeals his thirty-year sentence imposed pursuant to the enhancement provisions of 18 U.S.C. § 924(e) (armed career criminal) and the United States Sentencing Guidelines § 4B1.1 (career offender). The district court imposed the thirty-year sentence on remand, believing that it was foreclosed from addressing any issue other than the proper sentence term. We affirm in part, reverse in part and remand for resentencing.

Cornelius was tried and convicted of being a felon in possession of a firearm on April 5, 1990. The government argued that Cornelius' sentence should be enhanced because he is an armed career criminal under § 924(e) and a career offender underU.S.S.G. § 4B1.1 . The district court found that Cornelius is a career offender. It held, however, that he is not an armed career criminal because the 1970 breaking and entering conviction on which the government relied did not qualify as a predicate felony under the statute. The court sentenced Cornelius to ten years' imprisonment. Cornelius appealed the district court's finding that he is a career offender, arguing that possession of a firearm by a felon is not a crime of violence under § 4B1.1 . We found that possession of a firearm by a felon was a crime of violence under § 4B1.1 and affirmed the district court. FN1 United States v. Cornelius, 931 F.2d 490 (8th Cir.1991). The government cross-appealed the finding that Cornelius was not an armed career criminal. We reversed and remanded for resentencing on this issue because we held that Cornelius' 1970 breaking and entering conviction qualified as a predicate felony under § 924(e) . Id.

FN1. Section 4B1.1 requires, inter alia, that the instant offense of which the defendant is convicted must be a crime of violence. The term "crime of violence" is defined in § 4B1.2. In Cornelius' prior appeal, we held that unlawful possession of a firearm by a felon is a crime of violence within the meaning of the Guidelines. After Cornelius' sentencing and after our opinion was issued, the Sentencing Commission amended the commentary to § 4B1.2. Effective November 1, 1991, Application Note 2 reads, in relevant part, "The term 'crime of violence' does not include the offense of unlawful possession of a firearm by a felon." U.S.S.G. § 4B1.2 , Application Note 2. This amendment was not in effect at the time of either Cornelius' sentencing or his first appeal, and we will not apply it retroactively in this case. See United States v. Evans,966 F.2d 398, 402 n. 3 (8th Cir.1992) ; United States v. Dortch, 923 F.2d 629, 632 n. 2 (8th Cir.) ("Because appellant was sentenced before the effective date of the amendment, the 1990 amendment does not apply."), reh'g denied, No. 89-2145 (8th Cir. June 5, 1991).

At the resentencing hearing held October 3, 1991, Cornelius argued that one of the prior convictions relied on to enhance his sentence under § 924(e) was based on an invalid guilty plea and could not be used. Therefore, he argued, he is not an armed career criminal. In addition, Cornelius asserted that two prior convictions for arson and extortion are "related cases" under the Sentencing Guidelines and cannot be considered separate convictions for purposes of applying U.S.S.G. § 4B1.1 because they were consolidated for plea and sentencing. The district court allowed Cornelius to make an offer of proof, but held that, given this court's finding that Cornelius is an armed career criminal as well as a career offender, it could only decide the proper sentence term on remand. In the alternative, the court held that the arson and extortion cases were not "related cases" under the Guidelines. The court found *705that the Guidelines range was thirty years to life, and sentenced Cornelius to thirty years.

On appeal, Cornelius argues that the district court erred in finding that it could not consider any new issues on remand. He claims that the district court erred in refusing to consider evidence that his guilty plea in the conviction used to enhance his sentence under § 924(e) was constitutionally invalid. He also claims that the district court erred when it refused to consider his argument that the two convictions used to enhance his sentence under U.S.S.G. § 4B1.1 were "related" cases under the Guidelines and could only be counted as one conviction rather than two.

I. Consideration of New Evidence on Remand

[1] Cornelius first argues that the district court erred when it refused to consider new evidence about the validity of certain prior convictions used to enhance his sentence under § 924(e) and § 4B1.1. The government replies that the district court was correct because this court decided in the first appeal that Cornelius was both a career offender and an armed career criminal. Therefore, the mandate on remand was limited and only allowed the district court to decide the proper sentence term under the Guidelines given those findings. We disagree.

Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (de novo resentencing on remand appropriate), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991) ; United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir.1989) (court on remand should be able to take new matter into account); United States v. Romano,749 F.Supp. 53, 55 (D.Conn.1990) (on remand sentencing court may proceed as it might have in first instance), aff'd sub nom. United States v. Lanese, 937 F.2d 54 (2d Cir.1991) . The sentencing court must, however, adhere to any limitations imposed on its function at resentencing by the appellate court. See United States v. Prestemon,953 F.2d 1089 (8th Cir.1992) (trial court could not consider new bases for downward departure on remand where remand was limited to resentencing within the applicable guideline sentencing range); United States v. Cassity, 720 F.2d 451, 458 (6th Cir.1983) (district court erred when it considered issue of retroactivity of new case on remand where circuit court explicitly stated remand limited to determining whether privacy interest invaded), vacated on other grounds, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984) ; see also Romano, 749 F.Supp. at 55 . Therefore, we must decide whether our mandate to the district court in this case was specifically limited to resentencing within the applicable guideline range, as the court interpreted it, or whether the mandate was broad enough to allow the court to consider new evidence regarding whether Cornelius is an armed career criminal.

[2] We find that the district court erred when it refused to hear Cornelius' evidence relating to whether he is an armed career criminal. In the previous appeal, the issue presented was whether Cornelius' 1970 conviction for breaking and entering constituted generic burglary under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) . The conviction could not be counted as a prior conviction for purposes of a sentence enhancement under § 924(e) unless it qualified as generic burglary. The district court held that it did not constitute generic burglary and, therefore, Cornelius was not an armed career criminal under § 924(e) . We reversed on appeal. Cornelius, 931 F.2d 490 . The government claims that we found that Cornelius is an armed career criminal, and that that finding is now the law of the case. Such a reading misinterprets our opinion. We held that "Cornelius' 1970 conviction did constitute generic burglary under Taylor. Consequently, we reverse the district court's determination that Cornelius was not an armed career criminal under § 924(e) and remand for resentencing." *706 Cornelius, 931 F.2d at 494 . We did not find that Cornelius was an armed career criminal. We simply held that the district court was in error when it found that the 1970 conviction did not qualify as a prior conviction under § 924(e) . We did not limit the district court's further determination of whether Cornelius was an armed career criminal. Therefore, the district court was free to consider any new arguments raised at the resentencing as to whether Cornelius was an armed career criminal that could have been considered at the first hearing.

[3] This is not, however, true for the issue of whether Cornelius was a career offender under § 4B1.1. We affirmed the district court's finding that Cornelius was a career offender. We hold that the district court correctly refused to consider new evidence relating to Cornelius' sentence enhancement as a career offender because that determination was not before the district court on remand. FN2

FN2. Cornelius also argues that the district court's alternative finding that the cases are not sufficiently "related" under the Guidelines is incorrect. Because we hold that the district court was not free to consider whether Cornelius was a career offender under U.S.S.G. § 4B1.1 on remand, we do not reach the issue of whether the cases are "related." The proper procedure for Cornelius to follow to challenge the basis for his § 4B1.1 enhancement would be to file a collateral challenge under 28 U.S.C. § 2255 .

II. Collateral Attack of Prior Convictions

[4] Cornelius received an enhanced sentence under § 924(e) on the basis of three prior convictions. Under the statute a court must impose a minimum fifteen-year sentence if a defendant is found guilty of possessing a firearm while being a convicted felon and has at least three previous convictions for violent felonies. 18 U.S.C. § 924(e)(1) (Supp. V 1987) . Cornelius claims that the guilty plea entered in one of those prior convictions was not intelligent and voluntary as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) , and therefore is constitutionally infirm. Consequently, Cornelius claims that the district court erred in not considering whether that conviction is capable of sustaining his enhanced sentence as an armed career criminal.

The government argues that Cornelius may not collaterally attack the constitutional validity of his prior conviction at his sentencing enhancement hearing under § 924(e) . They argue that even though the enhancement under § 924(e) is statutory, any collateral attack is barred by Application Note 6 of § 4A1.2 of the Guidelines because the actual final sentence is computed under the Guidelines. Note 6 reads in relevant part: "[S]entences resulting from convictions that a defendant shows to have beenpreviously ruled constitutionally invalid are not to be counted." U.S.S.G. § 4A1.2 , Application Note 6 (emphasis added). The government cites United States v. Hewitt,942 F.2d 1270 (8th Cir.1991) , where we decided that Application Note 6 prevented a defendant from collaterally attacking a prior conviction to show that it should not be used to calculate his criminal history score. Id. at 1276.

The government's reliance on Hewitt is misplaced. That case addressed a sentence imposed solely under the Guidelines. In United States v. Day, 949 F.2d 973 (8th Cir.1991) , we held that "[w]hile the imposition of a sentence greater than Section 924(e) 's minimum sentence is governed by the Guidelines, the imposition of the minimum sentence itself is governed by an independent statutory arrangement." Id.at 980-81 (citations omitted). It is the application of this "independent statutory arrangement" that Cornelius is challenging, not the imposition of the Guidelines sentencing range after the applicability of the statute has already been decided.

We have clearly held that under § 924(e) a defendant has the "opportunity to demonstrate that one or more of the felonies proposed as a basis for his receipt of an enhanced sentence are incapable of that purpose." Day, 949 F.2d at 981 . Therefore, we remand this issue to the district court for a determination of whether Cornelius is an armed career criminal within the meaning of the statute.

*707 III.

For the reasons stated above, we affirm in part, reverse in part and remand the case to the district court for resentencing consistent with this opinion.

C.A.8 (Iowa),1992.
U.S. v. Cornelius
968 F.2d 703

United States Court of Appeals,

Eighth Circuit.

UNITED STATES of America, Appellee,
v.
Douglas Greg CORNELIUS, Appellant.

No. 92-3720.

Submitted April 14, 1993.
Decided July 30, 1993.

After sentences previously imposed were reversed on appeal, 931 F.2d 490 and 968 F.2d 703, defendant was sentenced in the United States District Court for the Southern District of Iowa, Charles R. Wolle , Chief Judge, as an armed career criminal and defendant appealed. The Court of Appeals, Wollman , Circuit Judge, held that one prior conviction should not have been considered where plea transcript was silent as to waiver of two of three Boykin rights and no evidence was presented concerning those waivers.

Vacated and remanded.

West Headnotes

[1] KeyCite Citing References for this Headnote

· 110 Criminal Law

· 110XV Pleas

· 110k272 Plea of Guilty

· 110k273 In General

· 110k273(4) Requisites and Proceedings for Entry

· 110k273(4.1) k. In General. Most Cited Cases

Before guilty plea is entered, defendant must explicitly waive privilege against self-incrimination, right to jury trial, and right to confront one's accusers.

[2] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVI Habitual and Career Offenders

· 350HVI(H) Defects in Prior Adjudication

· 350Hk1314 k. Matters Related to Plea. Most Cited Cases (Formerly 110k1202.10(3))

Conviction is not automatically insufficient to warrant enhancement upon subsequent conviction merely because the original plea transcript fails to contain an express waiver and articulation of the rights of confrontation and jury trial and the privilege against self-incrimination, as government may cure otherwise defective plea taking transcript by presenting specific testimony pertinent to whether the plea was intelligent and voluntary.

[3] KeyCite Citing References for this Headnote

· 350H Sentencing and Punishment

· 350HVI Habitual and Career Offenders

· 350HVI(H) Defects in Prior Adjudication

· 350Hk1314 k. Matters Related to Plea. Most Cited Cases (Formerly 110k1202.10(3))

It was error to find defendant to be an armed career criminal where plea transcript for one prior conviction was silent as to the waiver of privilege against self-incrimination and right to confront witnesses and government failed to cure those deficiencies. 18 U.S.C.A. §§ 922(g) , 924(e)(1) .

*1293 Dean Stowers , Des Moines, IA, argued, for appellant.
John D. Griffith , Des Moines, IA, argued ( Gene W. Shepard and Linda R. Reade, on the brief), for appellee.

Before WOLLMAN , Circuit Judge, FLOYD R. GIBSON , Senior Circuit Judge, andMORRIS SHEPPARD ARNOLD , Circuit Judge.

WOLLMAN , Circuit Judge.

Douglas Greg Cornelius appeals from the district court's judgment and sentencing order. We vacate Cornelius's sentence and remand for resentencing consistent with this opinion.

I.

On April 5, 1990, a jury found Cornelius guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) . The facts underlying Cornelius's conviction are recounted in our opinion in United States v. Cornelius, 931 F.2d 490, 491 (8th Cir.1991) . At the time of his sentencing on this offense, Cornelius had several prior felony convictions, including three convictions in Iowa state court: a 1970 breaking and entering *1294 conviction; a 1979 arson conviction; and a 1989 extortion conviction. The district court determined that Cornelius was a career offender underU.S.S.G. § 4B1.1 , but not an armed career criminal under 18 U.S.C. § 924(e) , and sentenced him to a term of 120 months' imprisonment. Id.

Both parties appealed from the initial sentence. We affirmed the district court's determination that Cornelius was a career offender, but reversed its determination that he was not an armed career criminal and remanded to the district court for resentencing. Id. at 494.

At Cornelius's second sentencing hearing the district court sentenced him to an enhanced term of 360 months' imprisonment for being a career offender and an armed career criminal. United States v. Cornelius, 968 F.2d 703, 704 (8th Cir.1992) . The district court imposed the thirty-year sentence under the belief that the scope of the remand foreclosed it from addressing any issue other than the proper sentencing term. Id.

Cornelius appealed, contending that the district court erred in refusing to consider evidence that his 1970 guilty plea was constitutionally invalid and thus could not be used to enhance his sentence under section 924(e) . Id. at 705. We held that the district court erred in refusing to hear Cornelius's evidence concerning whether he was an armed career criminal. We also clarified our holding in the first appeal as follows:

We did not find [in Cornelius's first appeal] that Cornelius was an armed career criminal. We simply held that the district court was in error when it found that the 1970 conviction did not qualify as a prior conviction under § 924(e) . We did not limit the district court's further determination of whether Cornelius was an armed career criminal. Therefore, the district court was free to consider any new arguments raised at the resentencing as to whether Cornelius was an armed career criminal that could have been considered at the first hearing. Id. at 706.

Accordingly, we remanded the case to the district court for a new sentencing hearing, at which Cornelius could present evidence concerning the validity of his 1970 guilty plea. Id.

On November 20, 1992, the district court held a third sentencing hearing, at which Cornelius testified. Among other things, Cornelius argued that the district court should not consider his 1970 conviction for enhancement purposes because his guilty plea to the breaking and entering charge was not entered in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) , and was thus invalid.

Based upon amendments to the Guidelines, the district court determined that Cornelius was not a career offender, with the result that the applicable Guideline range was twenty-four to thirty months. The court once again found, however, that Cornelius was an armed career criminal subject to the mandatory minimum sentence of fifteen years. The district court rejected Cornelius's arguments concerning the use of the 1970 guilty plea to enhance his sentence and found that the plea met the requirements of Boykin. The district court then sentenced Cornelius to a term of fifteen years' imprisonment, to be followed by three years of supervised release.

II.

[1] Boykin sets forth three constitutional rights that a defendant must waive explicitly before a guilty plea is entered: the privilege against self-incrimination, the right to a jury trial, and the right to confront one's accusers. Boykin, 395 U.S. at 243, 89 S.Ct. at 1712 .

[2] A conviction is not automatically insufficient under Boykin merely because the original plea transcript itself fails to contain an "express waiver and articulation of these three rights." Todd v. Lockhart, 490 F.2d 626, 628 (8th Cir.1974) . Once a prisoner has demonstrated that the plea taking was not conducted in accordance withBoykin, the government can cure the otherwise defective plea-taking transcript at an evidentiary hearing. Id. The record developed by the government at the evidentiary hearing must "contain specific testimony pertinent to whether the plea was intelligent and voluntary." *1295 Id. Thus, the government must, under these circumstances, "affirmatively prove" that the plea was voluntary and intelligent before attempting to offer it as one of the three predicate convictions for the application of the Armed Career Criminal Act. See Id.

[3] The plea transcript fails to disclose a valid waiver by Cornelius of his right against self-incrimination and his right to confront witnesses. Notwithstanding the lack of compliance with Boykin, the government contends that this case should be controlled by United States v. Young, 979 F.2d 1280 (8th Cir.1992) , cert. denied, 507 U.S. 993, 113 S.Ct. 1604, 123 L.Ed.2d 166 (1993) . In Young, however, the government cured the deficient transcripts by introducing the testimony of the two attorneys who had represented Young concerning their customary practice in counselling clients who were making guilty pleas and the customary practice of one of the two judges before whom Young had appeared to offer his pleas. Id.; see also United States v. White, 890 F.2d 1033, 1035-36 (8th Cir.1989) . Here, the government made no attempt to cure the deficiencies in the record.

Because the 1970 plea transcript is silent as to the waiver of two of the three Boykinrights, and because the government has failed to cure the record's deficiencies, we hold that the district court erred in finding Cornelius to be an armed career criminal within the meaning of 18 U.S.C. § 924(e)(1) and in sentencing him to the mandatory fifteen-year term for the section 922(g) offense. Because we reverse on this ground, we do not reach the merits of Cornelius's other two arguments.

We vacate Cornelius's sentence and remand for resentencing consistent with this opinion.

C.A.8 (Iowa),1993.
U.S. v. Cornelius
999 F.2d 1293