On Appeal from the United States District Court for the Middle District of Pennsylvania. (Cr. No. 91-00055)
Before Hutchinson, Cowen, and Garth, Circuit Judges
In this appeal, we must decide whether a conviction for attempted breaking and entering at nighttime is a "violent felony" within the purview of 18 U.S.C. § 924(e) (1988 & Supp. II 1990). We conclude that such a conviction is a violent felony, and will affirm the judgment of sentence imposed by the district court.
Appellant Steven J. O'Brien was arrested in March 1991 and charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) (1988 & Supp. II 1990). O'Brien initially entered a plea of not guilty, but following the execution of a plea agreement with the government, he changed his plea to guilty in May 1991. The government then sought an enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), which provides for a mandatory fifteen year prison sentence for a defendant who possesses a firearm and has three prior convictions for violent felonies or serious drug offenses.*fn1
The government alleged that O'Brien's criminal history included three prior convictions which could serve as predicate offenses under the ACCA: 1) attempted breaking and entering in the nighttime in December 1975 in the District Court of Somerville, Massachusetts; 2) burglary in April 1977 in the Court of Common Pleas of Dauphin County, Pennsylvania; and 3) robbery and aggravated assault in January 1979 in the Court of Common Pleas of Dauphin County, Pennsylvania. The plea agreement stated that if O'Brien provided substantial assistance to the government, the government would move for a downward departure from the fifteen year minimum sentence. Prior to sentencing, the government filed such a motion and requested the imposition of a ten year sentence. In September 1991, the district court granted the motion and imposed a sentence of ninety months. O'Brien appeals the imposition of the fifteen year enhancement.*fn2 Had the enhancement not been imposed, O'Brien would have received a sentence of eighteen to twenty-four months under the Sentencing Guidelines (criminal history category six and offense level eight). U.S. Sentencing Comm'n, Guidelines Manual, Ch. 5, Pt. A (Nov. 1991).
O'Brien contends that the December 1975 conviction for attempted breaking and entering in Massachusetts did not constitute a predicate offense under the ACCA, and thus, the district court erred in imposing the fifteen year enhancement. A predicate offense can be either a violent felony or a serious drug offense. Only the former is applicable to the case before us:
(B) the 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. . .
18 U.S.C. § 924(e)(2) (emphasis added). Thus, attempted breaking and entering could be considered a "violent felony" if: 1) it is considered a "burglary"; or 2) it is considered to "involve conduct that presents a serious potential risk of physical injury to another." We believe the latter of these two possibilities, ...