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U.S. v. McClenton

filed: April 14, 1995.

UNITED STATES OF AMERICA APPELLANT
v.
MICHAEL MCCLENTON



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. No. 93-cr-00221-2).

Before: Mansmann, Cowen and Lewis, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

The government asks us to decide whether a hotel guest room constitutes a "dwelling," and therefore, whether a burglary of a hotel guest room may be considered a crime of violence for purposes of applying the career offender provision of the Sentencing Guidelines. Because the district court ruled that burglary of a hotel room was not the equivalent of burglary of a dwelling, McClenton was not sentenced as a career offender.

We hold that a hotel guest room, the sole purpose of which is to provide temporary lodging and a place to sleep, constitutes a dwelling within the meaning of Section 4B1.2 of the Sentencing Guidelines. Accordingly, we will vacate the district court's judgment of sentence and remand this matter for resentencing in accordance with our interpretation of the applicable Sentencing Guidelines.

I.

On August 5, 1993, Michael McClenton was convicted of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371; bank robbery in violation of 18 U.S.C. § 2113(a); and armed bank robbery in violation of 18 U.S.C. § 2113(d). On June 13, 1994, a sentencing hearing was held. The government asserted that McClenton should be sentenced as a career offender pursuant to Section 4B1.1 of the Guidelines because the presentence investigation revealed that McClenton had previously been convicted of felony burglary on three separate prior occasions. These three occasions involved the burglary or attempted burglary of hotel guest rooms. (PSI P 34, 35, 37).

At the sentencing hearing, McClenton did not dispute that the factual summaries of these prior crimes, as set forth in the presentence report, were accurate.*fn1 Rather, McClenton asserted that these were not burglaries of dwellings. Agreeing with McClenton, the district court ruled that the burglary of a hotel room is not the equivalent of the burglary of a dwelling, and therefore, Section 4B1.1's career offender provision did not apply. The court assigned McClenton a criminal history category of V. The combination of an offense level of 27 and a criminal history category of V produced a Guidelines range of 120 to 150 months.*fn2 The court imposed a sentence of 144 months of imprisonment on Counts One through Three, to run concurrently. The district court imposed a term of five years of supervised release, restitution in the amount of $170,750 and a special assessment of $150.00. If McClenton had been sentenced as a career offender, he would have received a criminal history category of VI, an offense level of 34 and a corresponding Guidelines range of 262 to 327 months.

On May 23, 1994, McClenton filed his notice of appeal from the district court's judgment of conviction.*fn3 On June 13, 1994, the government filed this cross-appeal challenging the district court's determination not to sentence McClenton as a career offender.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review McClenton's sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(2). We exercise plenary review over the district court's application and interpretation of the Sentencing Guidelines. United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992); United States v. Murillo, 933 F.2d 195, 197 (3d Cir. 1991).

II.

The starting point for our analysis is Section 4B1.1 of the Sentencing Guidelines. Section 4B1.1 provides that a defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Here it is undisputed that McClenton was at least eighteen years of age at the time of the bank robbery. Likewise, it is undisputed that the present offense, armed bank robbery, is a ...


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