United States v. Michael Eugene Harkey

U.S. Court of Appeals for the Ninth Circuit
United States v. Michael Eugene Harkey, 923 F.2d 138 (9th Cir. 1991)
91 Daily Journal DAR 188; 91 Cal. Daily Op. Serv. 208; 1991 U.S. App. LEXIS 54; 1991 WL 331

United States v. Michael Eugene Harkey

Opinion

ORDER

In our opinion filed December 4, 1989, cited at 890 F.2d 1082, we affirmed the sentence given by the district court, holding that a conviction under Washington’s second degree burglary statute could not serve as a basis for sentence enhancement. The district judge had relied on prior Ninth Circuit authority in United States v. Chatman, 869 F.2d 525 (9th Cir. 1989) and United States v. Cunningham, 878 F.2d 311 (9th Cir. 1989).

The government petitioned for rehearing, suggesting that further action be withheld pending the decision by the Supreme Court in Taylor v. United States. Our order of March 15, 1990 deferred action on the government’s petition. Thereafter the Supreme Court rendered its decision in Taylor v. United States, — U.S. ——, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Taylor held that, for the purposes of enhancement under 18 U.S.C. § 924(e), burglary includes any unlawful entry in “a building or structure, with the intent to commit a crime.” Id. at 2158 (emphasis added). The Washington statute defines burglary broadly to include entry into places other than buildings. Wash.Rev. Code § 9A.04.110(5). All of the prior burglary convictions relied upon by the government here involved entry into buildings. 1 Given that, it appears that Harkey’s prior burglary convictions should have *139 been considered for the purpose of sentencing enhancement. See United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990).

Our opinion of December 4, 1989 is withdrawn. The government’s petition for rehearing is granted. The cause is remanded to the district court for resentencing.

1

. In reaching our decision, we have relied upon copies of the underlying informations which were appended to the "Government’s Response to Opposition to Petition for Panel Rehearing." Nothing in this order is intended to preclude the district court from entertaining objections to those documents or from receiving other evidence, within the strictures of Taylor, and reaching a conclusion regarding the convictions based upon the evidence then before it.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellant, v. Michael Eugene HARKEY, Defendant-Appellee
Cited By
12 cases
Status
Published