United States of America v. Benjamin Gardner

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2969
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
B ENJAMIN G ARDNER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:04CR00058-001—Sarah Evans Barker, Judge.
____________
A RGUED D ECEMBER 15, 2004—D ECIDED F EBRUARY 22, 2005
____________
Before B AUER , C OFFEY , and S YKES , Circuit Judges.
B AUER , Circuit Judge. Benjamin Gardner pleaded guilty
to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1),
and stealing firearms from a licensed firearms dealer, id.
§ 922(u). The parties agreed that the sentencing guide-
lines applied but disagreed whether Gardner’s prior con-
viction for Residential Entry under Indiana law constituted
“a crime of violence” under U.S.S.G. § 4B1.2, which would
affect Gardner’s base offense level under U.S.S.G. § 2K2.1.
The district court concluded that the conviction did consti-
tute a crime of violence and sentenced Gardner to 108
months’ imprisonment. Gardner appeals, and we affirm.
Gardner and two accomplices burglarized a firearms
dealer in Indiana. At sentencing the parties disagreed

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2 No. 04-2969
on the appropriate base offense level under U.S.S.G.
§ 2K2.1. Section 2K2.1 instructs the sentencing court to
assess a base offense level of 20 for defendants with one
prior felony conviction for a crime of violence or a base
offense level of 24 after two such convictions. The parties
agreed that Gardner was convicted of a crime of vio-
lence in 1990, a burglary, but disagreed about the charac-
terization of his 1993 conviction for Residential Entry. That
offense, a felony under Indiana law, is defined as intention-
ally breaking and entering a dwelling. Ind. Code § 35-43-2-
1.5 (1993).
The district court, in concluding that the 1993 convic-
tion is a crime of violence, relied on our analysis in United
States v. Howze, 343 F.3d 919 (7th Cir. 2003), which holds
that flight to avoid the police is categorically a “violent
felony” under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). The court reasoned that, “in the same way that
flights to avoid arrest are crimes of violence,” there is
inherent in Residential Entry “the serious potential risk
of physical injury to another.” The court then set Gard-
ner’s base offense level at 24 and, based on a total offense
level of 25 after other adjustments and a criminal history
category of V, sentenced Gardner to 108 months’ impris-
onment on each count, to run concurrently.
On appeal, Gardner argues that the district court erred by
concluding that his prior conviction for Residential Entry
constitutes a “crime of violence.” He contends that he
should have been sentenced using a base offense level of 20,
see U.S.S.G. § 2K2.1(a)(4)(A), rather than 24, see id.
§ 2K2.1(a)(2). We review the district court’s conclusion de
novo. United States v. Brazeau, 237 F.3d 842, 844 (7th Cir.
2001).
For purposes of § 2K2.1, “crime of violence” has the same
meaning as in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1,
comment. (n.1). Under § 4B1.2(a), an offense punishable

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No. 04-2969 3
by a term of imprisonment greater than one year consti-
tutes a crime of violence if it “(1) has as an element the use,
attempted use, or threatened use of physical force against
the person of another, or (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.” U.S.S.G. § 4B1.2(a) (emphasis added). In
analyzing whether a particular offense qualifies as a crime
of violence, the sentencing court may generally look only at
the statutory elements and the charging instrument. See
United States v. Hoults, 240 F.3d 647, 650 (7th Cir. 2001);
United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir.
2001) (en banc).
The relevant Indiana statute provides that “a person who
knowingly or intentionally breaks and enters the dwelling
of another person commits residential entry, a Class D
felony.” Ind. Code § 35-43-2-1.5 (1993). Residential Entry
does not have as an element the use, attempted use, or
threatened use of physical force against a person, and it is
not one of the crimes enumerated in § 4B1.2(a). Thus, for
Residential Entry to qualify as a crime of violence, it must
satisfy the “otherwise” clause of § 4B1.2(a)(2). And to satisfy
the “otherwise” clause, the particular offense must include
“conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2).
In Howze, we reasoned that flight from the police al-
ways constitutes a crime of violence because all flights from
authorities entail risk of a violent encounter. Howze, 343
F.3d at 921-22. The government argues that, similarly to
the offense analyzed in Howze, intentionally breaking and
entering into a person’s dwelling “presents an inherent risk
of a violent encounter between the perpetrator and the
resident of the dwelling.” As support for its position, the
government cites United States v. Venegas-Ornelas, 348
F.3d 1273 (10th Cir. 2003), and United States v. Delgado-
Enriquez, 188 F.3d 592 (5th Cir. 1999), both of which hold

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4 No. 04-2969
that a similar offense under Colorado law constitutes a
“crime of violence” as defined in 18 U.S.C. § 16. Much like
§ 4B1.2(a), § 16 defines “crime of violence” to include “any
other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 16(b).
In both cases cited by the government, the defendant was
convicted of first-degree criminal trespass under Colo. Rev.
Stat. Ann. § 18-4-502. Venegas-Ornelas, 348 F.3d at 1275-
76; Delgado-Enriquez, 188 F.3d at 595. Similar to Indiana’s
Residential Entry statute, first-degree criminal trespass
makes it a crime to knowingly and unlawfully enter or
remain in the dwelling of another. See Venegas-Ornelas, 348
F.3d at 1276. In Delgado-Enriquez, the court concluded that
first-degree criminal trespass is a crime of violence within
the meaning of § 16(b) because, “[e]ntering or remaining in
a dwelling of another creates a substantial risk that
physical force will be used against the residents of the
dwelling.” Delgado-Enriquez, 188 F.3d at 595. The Venegas-
Ornelas court, adopting the reasoning of Delgado-Enriquez,
concluded that the defendant had committed a crime of
violence and stated:
A defendant will often encounter resistance either from
occupants or structural barriers in “entering or remain-
ing” in someone’s dwelling unlawfully, regardless of the
defendant’s intent in being there. Therefore, there is
still a substantial risk that a defendant will need to use
force against people or property to either gain entry or
remain in a dwelling unlawfully.
Venegas-Ornelas, 348 F.3d at 1278.
We agree with the reasoning of the Fifth and the Tenth
Circuits in concluding that Residential Entry is a crime
of violence because of the serious risk that an occupant
could be injured. Residential Entry is a lesser-included
offense of burglary, Patterson v. State, 729 N.E.2d 1035,

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No. 04-2969 5
1043 (Ind. Ct. App. 2000), and residential burglary is a
crime of violence, see Taylor v. United States, 495 U.S. 575,
599 (1990); U.S.S.G. § 4B1.2(a)(2). The Court in Taylor
noted that a burglar entering a building “creates the
possibility of a violent confrontation,” and that the burglar’s
“awareness of this possibility may mean that he is prepared
to use violence if necessary to carry out his plans or to
escape.” Taylor, 495 U.S. at 588. Residential Entry is no
different because Residential Entry likewise entails an
entry into a residence without permission and presents the
same risk of encountering an occupant. The perpetrator of
a Residential Entry thus engages in conduct that presents
a “serious potential risk of physical injury” to an occupant,
see U.S.S.G. § 4B1.2(a)(2), and for purposes of § 4B1.2(a)(2)
commits a “crime of violence.”
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-22-05

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