RANDALL SCOTT SILKWOOD, PETITIONER V. UNITED STATES OF AMERICA No. 89-6750 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-11a) is reported at 893 F.2d 245. JURISDICTION The judgment of the court of appeals was entered on December 23, 1989. The petition for a writ of certiorari was filed on February 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Texas offense of burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. V 1987). STATEMENT 1. Petitioner was indicted in the Eastern District of Oklahoma on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). A separately filed "information" alleged that petitioner had six previous convictions for burglary under Texas law, /1/ one previous state conviction for escape, and one previous state firearms conviction, thus subjecting him to an enhanced sentence of a minimum of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V 1987). /2/ Pet. App. 2a; Pet. C.A. Br. 34-36. The jury convicted petitioner. Petitioner later fired his attorney and, with the district court's permission, represented himself at the sentencing hearing. The district court sentenced petitioner to an enhanced term of 25 years' imprisonment under Section 924(e)(1). Pet. App. 2a, 7a-8a. 2. On appeal, petitioner contended that the district court's allowing him to proceed pro se violated the Sixth Amendment. Pet. C.A. Br. 22-29. Petitioner also contended that his previous Texas convictions for burglary were not "violent felonies" under 18 U.S.C. 924(e). In his view, Section 924(e) included only those burglaries that involve violent conduct. Pet. C.A. Br. 29-38. /3/ The court of appeals held that the district court had conducted an insufficient inquiry regarding petitioner's waiver of his right to counsel, and thus "remand(ed) this case for resentencing and direct(ed) the sentencing court to appoint counsel for (petitioner) unless, after proper inquiry, (petitioner) waives that right." Pet. App. 9a. In order to guide petitioner's resentencing, the court of appeals addressed his contention regarding the scope of the term "burglary" in Section 924(e). After surveying the conflicting decisions among the circuits, the court of appeals concluded that the statute retained the generic definition contained in its predecessor, 18 U.S.C. App. 1202(c)(9) (Supp. II 1984), namely, "any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense." Pet. App. 10a-11a. The court therefore instructed the district court to "apply that definition when it determines which of (petitioner's) prior burglary convictions should count towards enhancement (under Section 924(e))." Pet. App. 11a. ARGUMENT Petitioner now contends (Pet. 3-8) that only those burglaries that satisfy the common law definition of burglary qualify as "violent felon(ies)" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. V 1987). In Taylor v. United States, No. 88-7194 (argued Feb. 28, 1990), this Court has granted certiorari to resolve the conflict among the circuits concerning the meaning of the term "burglary" under Section 924(e)(2)(B)(ii). In our submission to this Court in Taylor, /4/ we have described the conflicting decisions among the courts of appeals and have explained that the statutory reference to burglary is not limited either to common law burglary or to burglaries that pose a potential risk of physical injury. To the contrary, even though Congress failed to include an express definition of burglary in its most recent amendments to Section 924(e), Congress retained the generic definition of burglary that was contained in the predecessor Armed Career Criminal Act of 1984, 18 U.S.C. App. 1202(c)(9) (Supp. II 1984), a definition that reflects the prevailing modern view of the offense of burglary as defined in federal and state law, i.e., the unlawful entering or remaining within a building belonging to another with the intent to commit a federal or state offense. That interpretation is consistent with the language, legislative history, and purposes of the 1986 amendments to the Armed Career Criminal Act of 1984. Petitioner's six Texas burglary convictions therefore qualify as predicate crimes, since those state offenses, by definition, require entering a building belonging to another for the purpose of committing a state or federal offense. See note 1, supra. Although petitioner is awaiting sentencing, which makes this case "not yet ripe for review by this Court," Brotherhood of Locomotive Firemen v. Bangor, 389 U.S. 327, 328 (1967), we nevertheless believe that the Court should hold the instant petition pending the disposition of Taylor v. United States, No. 88-7194. CONCLUSION The petition for a writ of certiorari should be held pending the disposition of Taylor v. United States, No. 88-7194, and disposed of as appropriate in light of that decision. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ANDREW LEVCHUK Attorney APRIL 1990 /1/ On August 9 and 23, 1973, petitioner was convicted of burglary in Texas state court. See Information 1-2, United States v. Silkwood, No. 88-20-CR (E.D. Okla. filed May 23, 1988). At the time of those offenses, Texas state law defined burglary as follows: The offense of burglary is constituted by entering a house by force, threats or fraud, at night, or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft. Tex. Penal Code art. 1389 (1925). Between May 9, 1977, and July 31, 1980, petitioner was convicted of four separate offenses of burglary of a building in Texas state court. See Information 1-2, supra. At the time of those offenses, Texas state law defined burglary as follows: A person commits an offense if, without the effective consent of the owner, he: (1) enters a habitation, or a building * * * not then open to the public, with intent to commit a felony or theft; or (2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony or theft. Tex. Penal Code Ann. Section 30.02(a) (Vernon 1974). /2/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) applies to previously convicted felons who possess or receive a firearm in violation of 18 U.S.C. 922(g). Title 18, United States Code, Section 924(e)(1), provides in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. Title 18, United States Code, Section 922(g)(1), refers to any "convict(ion) in any court of a crime punishable by imprisonment for a term exceeding one year." Title 18, United States Code, Section 924(e)(2)(B), provides: (T)he term "violent felony" means any crime 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. /3/ Petitioner also argued that the district court had erroneously refused to suppress evidence, that the government had improperly withheld Brady information, and that the district court had erred in refusing to declare a mistrial on two occasions. Pet. C.A. Br. 7-29. The court of appeals rejected each of those claims, Pet. App. 4a-5a, and petitioner does not renew those challenges in this Court. /4/ See U.S. Br. 11-37. We have provided a copy of our brief in Taylor to counsel for petitioner in this case.