The opinion of the court was delivered by: BRIAN BARNETT DUFF
On March 19, 1991, Defendant Kevin Gentry and four co-defendants, were indicted in a nine-count indictment which charged Gentry, among other things, with possessing a firearm after having been convicted of a felony, a violation of 18 U.S.C. § 922(g)(1).
Gentry pled guilty on June 10, 1991 to violating 18 U.S.C. § 922(g)(1). The maximum sentence for violations of § 922(g)(1) is ten years in prison and a $ 250,000 fine unless the statutory enhancement provided in 18 U.S.C. § 924(e)(1) applies. § 924(e)(1) is a so-called "three-time loser" law. It imposes a minimum sentence of fifteen years in prison on persons convicted under § 922(g)(1) who have previously been convicted three or more times for "violent felonies" or "serious drug offenses."
The government is seeking to have Gentry's sentence enhanced pursuant to 18 U.S.C. § 924(e)(1) because at a hearing, in 1989, Gentry pled guilty to three separate indictments of burglary under Maine law. In his plea agreement with the government, under which he pled guilty to violating § 922(g)(1), Gentry reserved his right to challenge the applicability of the § 924(e) enhancement. Accordingly, Gentry has moved to preclude the government's invocation of the § 924(e) enhancement.
Gentry offers several arguments to support his motion challenging the applicability of the § 924(e) enhancement. He argues that his three prior convictions do not qualify as "violent felonies" under § 924(e), that his three prior burglary convictions in Maine were the product of constitutionally infirm guilty pleas and that a change in the sentence enhancement provision when applied to Gentry would be an ex post facto law.
Kevin Gentry's motion is denied.
A. Gentry's Prior Convictions Were Convictions For "Violent Felonies"
As used in this subsection, the term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. (emphasis supplied).
On November 14, 1989, Kevin Gentry pled guilty to three separate indictments in state court in Alfred, Maine. The docket numbers corresponding to the three indictments were 88-1162, 89-024 and 89-412. Under 88-1162, Gentry pled guilty to five counts of burglary and five counts of theft. Under both 89-024 and 89-412, Gentry pled guilty to one count of burglary and one count of theft.
The government's position is that the burglary counts to which Gentry pled guilty constitute violent felonies under § 924(e) and that the sentence enhancement should therefore apply. Gentry maintains, however, that his guilty plea in case 88-1162 was not a guilty plea to a "violent felony" because he did not actually break into and enter the buildings in question and because the Maine prosecutor only had evidence to prove that he served as a "lookout."
18 U.S.C. § 924(e)(2)(B)(ii), quoted above, includes burglary within the definition of a violent crime. The different states define the criminal offense of "burglary" in widely divergent ways, however. Michigan, for example, has no offense formally labelled "burglary." Instead its criminal code includes a provision prohibiting various grades of "breaking and entering." By contrast, under Texas's criminal code, theft from a coin-operated vending machine falls within the definition of "burglary." See Taylor v. United States, U.S. , 110 S. Ct. 2143, 2154, 109 L. Ed. 2d 607 (1990).
Cognizant of the various state definitions of "burglary," the Supreme Court has ruled that "burglary" in 18 U.S.C. § 924(e)(2) has a uniform definition independent of the labels employed by the various States' criminal codes. Id. Therefore, the mere fact that Gentry was convicted for crimes labelled "burglaries" by the State of Maine does not mean that he has committed "violent felonies" for purposes of the sentence enhancement statute.
In Taylor, the Court held that "burglary" in § 924(e)(2) means the "generic sense in which the term is now used in the criminal codes of most States." Id. at 2158. The Court elaborated:
The generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into or remaining in a building or other structure, with intent to commit a crime.
We conclude that a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
The Supreme Court in Taylor did not address the question of whether one who aids and abets another in the commission of a generic burglary is himself accountable for generic burglary. This court concludes that one who aids and abets the commission of a generic burglary by serving as lookout has committed generic burglary. It is a basic principle of criminal law that "a person is party to an offense . . . if he assists in the actual commission of the offense or of any act which forms a part thereof. . . ." 22 C.J.S., Criminal Law, § 127. See also Model Penal Code, § 2.06(2)(c) (accomplice is legally accountable for the criminal conduct of the person he helps). The modern statutory trend is to abolish all distinctions between classes of parties to criminal offenses and regard all persons concerned in the commission of a crime as accountable as principals. See 22 C.J.C., Criminal Law, § 129.
The recent decision by the Second Circuit in United States v. Hathaway, 949 F.2d 609, 1991 U.S. App. LEXIS 28430 (2d Cir. Nov. 20, 1991), confirms the court's conclusion that one who serves as lookout during the commission of generic burglary has himself committed generic burglary. In Hathaway, the Second Circuit held that Vermont's arson statute, which included a prohibition against "counseling, aiding or procuring the burning," coincided with "generic arson" under 18 U.S.C. § 924(e).
In determining whether a conviction was a conviction for "generic burglary," the Supreme court first directs courts to the statute under which the defendant was convicted. "If the state statute is narrower than the generic view, . . . there is no problem, because the defendant has been found guilty of all the elements of generic burglary. And if the defendant was convicted of burglary in a State where the generic definition has been adopted, with minor variations in terminology, then the ...