United States v. Hill, William D.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 1997 Decided December 23, 1997

No. 96-3113

United States of America,

Appellee

v.

William D. Hill,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 95cr00312-01)

Evelina J. Norwinski, Assistant Federal Public Defender,

argued the cause for appellant, with whom A.J. Kramer,

Federal Public Defender, was on the briefs. Lisa B. Wright,

Assistant Federal Public Defender, entered an appearance.

Carolyn E. Becker, Assistant United States Attorney, ar-

gued the cause for appellee, with whom Eric H. Holder, Jr.,

United States Attorney at the time the brief was filed, John

R. Fisher, Thomas C. Black, and Robert A. Spelke, Assistant

United States Attorneys, were on the brief.

Before: Edwards, Chief Judge, Wald and Randolph,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Concurring opinion filed by Circuit Judge Randolph.

Wald, Circuit Judge: Appellant William D. Hill was arrest-

ed by police after he fled from his car carrying a gun

following a traffic stop for allegedly failing to display a

Vehicle Identification Number ("VIN") on the temporary tags

of his recently purchased car. In the district court, Hill filed

a motion to suppress the handgun discovered by police in the

yard where he threw it after fleeing the car, arguing that it

was the fruit of an illegal search. The district court denied

the motion, and Hill entered a conditional plea of guilty to one

count of unlawful possession of a firearm by a felon in

violation of 18 U.S.C. s 922(g)(1)(1994). The district court

imposed a sentence of 96 months in prison followed by a

three-year term of supervised release. Hill now seeks review

of the district court's denial of suppression of the handgun

and challenges the sentence imposed by the court. We hold

that the district court failed to apply the correct legal stan-

dard in determining that the traffic stop was legal and

therefore denied Hill's motion to suppress on an improper

ground. Additionally, we hold that the district court imper-

missibly relied solely on the indictment in concluding that

Hill's prior conviction for attempted robbery constituted a

"crime of violence" and thus improperly set Hill's base sen-

tencing offense level at 24. Accordingly, we reverse the

conviction and remand for further proceedings consistent

with this opinion.

I. Background

On the evening of November 7, 1995, Hill was traveling

southbound on 11th Street near Irving Street in Northwest

Washington, D.C. in a car that he had recently purchased.

The car was driven by a friend of Hill's; Hill was in the front

passenger seat and two additional passengers were in the

back. At approximately 9:20 p.m., two officers in a patrolling

police car observed the car, which one of the officers later

testified did not have a VIN on its temporary D.C. tags. The

police activated their emergency lights to stop the car, but

the car continued for one and a half blocks before stopping.

At the suppression hearing, the arresting officer testified

that after the car stopped, Hill jumped out of the passenger

side of the car, took a few steps, and then slipped on the wet

ground. The officer saw a silver handgun fall from Hill's

waist area and land in front of him. According to the officer,

Hill picked up the gun and ran down the street into an alley.

After a brief chase during which the police observed Hill

throw the gun over a high fence, the police seized Hill. They

later found the gun in a yard near the alley in which they

apprehended Hill. During the police officers' chase of Hill, the

car drove off with the remaining passengers. As a result, the

police did not have an opportunity to verify the temporary tag

number or the absence of a VIN on the tags. See Transcript

of Motions Hearing and Plea Agreement at 12-24, 31-32

(Mar. 25, 1996) ("Tr.").

Harry Proctor, a records historian for the D.C. Department

of Motor Vehicles, testified at Hill's trial that Department

records indicated that a set of temporary tags were issued to

the auto dealer that sold the car to Hill, and then to Hill when

he purchased the car.1 Tr. at 40-42. Hill testified that the

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1 Apparently, Hill did not provide the car dealership with the

identification ordinarily required of a new owner. According to

Proctor, the dealer is supposed to get identification from the new

owner and include that person's driver's license number on the

temporary registration. Instead, the registration for the temporary

tag submitted by the car dealership that sold the Chevy to Hill

included the driver's license number of Darrin Gilliam, a friend of

Hill's who accompanied him to the dealership. In addition, the

application for title, which must contain the social security number

of the owner, contained a number that "came up no record" of a

driver's license. (In the District of Columbia, a person's driver's

temporary tags issued in his name contained a VIN when

they were issued and that the VIN was on the tags on the

night of the arrest. Tr. at 72, 82-83. The tags contained a

VIN at the time they were entered into evidence by Hill's

counsel. See Appendix for Appellant at 15-16 (Defendant's

Exhibit 2) ("App.").

Hill filed a motion to suppress the handgun on the grounds

that it was the fruit of an unlawful traffic stop. The district

court denied the motion after a hearing. Hill then entered a

conditional guilty plea to Count One of the grand jury's

indictment--which charged Hill with possession of a firearm

after having been convicted of a felony in violation of 18

U.S.C. s 922(g)(1)--while reserving the right to appeal the

court's adverse suppression ruling. The court thereafter

ordered that a presentencing report be prepared.

The presentencing report recommended an offense level of

24 based on the fact that Hill had two prior felony convictions

that qualified as a "crime of violence" under U.S.S.G. s 2k2.1

(1997). At the sentencing hearing, defense counsel argued

for an offense level of 20, noting that one of the convictions--

for attempted robbery under D.C. law--should not count as a

"crime of violence" because it was remote in time and did not

have as an element the use of physical force. The court

found that Hill's conviction for attempted robbery qualified as

a "crime of violence" under U.S.S.G. s 2k2.1 and determined

on that basis that Hill's offense level was 24. Accordingly,

the court sentenced Hill to 96 months in prison, followed by a

three-year term of supervised release.

II. Analysis

A. The Motion to Suppress

Hill filed a motion to suppress the handgun discovered by

police after the stop of Hill's car arguing that its seizure was

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license number is generally identical to his or her social security

number.) Moreover, although the D.C. government usually makes

a copy of identification for its files, there was no copy of any

identification belonging to Hill with the registration documents.

See Tr. at 50-64.

the fruit of an unlawful stop. The district court denied the

motion to suppress on the ground that the police officer that

stopped Hill's car believed that he had violated the traffic

laws. Hill challenges the district court's decision, claiming

that the district court applied a subjective, rather than objec-

tive, reasonableness test to the actions of the officers in this

case. We agree that the district court failed to make any

findings regarding the objective reasonableness of the offi-

cer's decision to stop Hill's car, and we therefore reverse the

district court's denial of the motion to suppress the handgun

and remand for consideration of whether it was objectively

reasonable for the officers that observed Hill's car to conclude

that a traffic violation had occurred.2

The Supreme Court has held that "[a]n automobile stop is

... subject to the constitutional imperative that it not be

'unreasonable' under the circumstances." Whren v. United

States, 116 S. Ct. 1769, 1772 (1996). It is well-settled that in

evaluating the reasonableness of a particular traffic stop, "it

is imperative that the facts be judged against an objective

standard: would the facts available to the officer at the

moment of the seizure or the search 'warrant a man of

reasonable caution in the belief' that the action taken was

appropriate?" Terry v. Ohio, 392 U.S. 1, 21-22 (1968). In

other words, reasonable suspicion to stop and search a motor-

ist depends on "the events which occurred leading up to the

stop or search, and then the decision whether these historical

facts, viewed from the standpoint of an objectively reasonable

police officer, amount to reasonable suspicion." Ornelas v.

United States, 116 S. Ct. 1657, 1661-62 (1996). The constitu-

tional reasonableness of a traffic stop therefore does not

depend on the actual motivations of the individual officers

involved. See Whren, 116 S. Ct. at 1774. Instead, the

relevant determination is whether the "circumstances, viewed

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2 In reviewing a denial of a motion to suppress, "[w]e review the

trial court's findings of fact under a clearly erroneous standard and

its legal conclusions de novo." See United States v. Garrett, 959

F.2d 1005, 1007 (D.C. Cir. 1992).

objectively, justify" the action taken. Scott v. United States,

436 U.S. 128, 138 (1978); see Whren, 116 S. Ct. at 1774.

Here, the district court denied Hill's motion to suppress the

gun because it found that the police officer that stopped the

car believed that the temporary tags on the car did not

contain a VIN. At the district court hearing, Hill submitted

the temporary tags and bill of sale for his car, both of which

contained a VIN. In addition, Hill testified that he had seen

the dealer write the VIN on the temporary tags, that he had

seen the dealer put the tags on his car, that the tags had not

been tampered with, and that the tags were on his car the

night of the stop. See Tr. at 69, 72, 82-83, 86. There was,

however, testimony by a police officer indicating that he

thought that the tags might have been altered. See Tr. at 25.

Faced with this conflicting evidence, the court concluded that

it was impossible to determine whether Hill's temporary tags

actually had a VIN on them at the time Hill's car was

stopped. The court therefore decided to base its suppression

decision on the testimony of the parties involved in the stop,

choosing to credit the officer's testimony that "he believed

that the car did not have a VIN number," see Tr. at 136, over

the testimony of Hill. The court explained:

... The evidence that I have heard indicates that a

police officer believed that a vehicle was using the streets

of the District of Columbia and that vehicle had tempo-

rary tags on it and that the officer did not see a VIN

number.

I can't say whether the tags had a VIN number on

them or not. But I know I can accept as true the

officer's testimony that he believed that the car did not

have a VIN number.

Id.

We agree with Hill that the district court failed to apply

the correct test to the officer's decision to stop Hill's car.

The above-quoted portion of the transcript indicates that the

district court applied a subjective reasonableness test to the

officer's decision to stop Hill's car, rather than the objective

reasonableness test that is required in such situations. The

court noted that it accepted the officer's testimony that "he

believed that the car did not have a VIN number," but the

court never explicitly stated whether or not this belief was

objectively reasonable. Indeed, the record before us contains

no information regarding the conditions under which the

officer first observed Hill's car--e.g., how far away the police

cruiser was from Hill's car at the time the officer first

observed the tags, the quality of the lighting, how quickly

Hill's car was moving, etc.--and whether, given those condi-

tions, it was objectively reasonable for the officer to conclude

that the tags were missing a VIN.3 We therefore reverse the

district court's denial of Hill's motion to suppress and remand

to the district court for a determination of whether it was

objectively reasonable for the officer that observed Hill's car

to conclude that a traffic violation had occurred. See United

States v. Williams, 951 F.2d 1287, 1291 (D.C. Cir. 1991)

(noting that remand to the district court is appropriate where

neither the legal reasoning nor factual findings supporting

the denial of a motion to suppress are apparent because it is

not clear "[o]ne, that the district court asked the right legal

questions in making its ruling; two, that it actually weighed

the evidence bearing on the facts needed to answer them");

see also United States v. Dale, 991 F.2d 819, 840 (D.C.Cir.)

(per curiam), cert. denied, 510 U.S. 1030 (1993) (noting that

court had previously remanded to the district court for clarifi-

cation of its legal conclusions and factual findings); United

States v. Jordan, 951 F.2d 1278, 1283 (D.C. Cir. 1991) (re-

manding for clarification of factual finding), appeal after

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3 It was not necessary for the court to determine whether or not a

VIN actually appeared on Hill's temporary tags at the time of the

traffic stop. Even if the court assumed that, contrary to the

testimony of the police officer, the tags contained a VIN at the time

of the stop, the stop was still permissible as long as the officer's

belief that the VIN was missing was objectively reasonable. See

Hill v. California, 401 U.S. 797, 804 (1971) (noting that "sufficient

probability, not certainty, is the touchstone of reasonableness under

the Fourth Amendment"); United States v. Glover, 725 F.2d 120,

122 (D.C. Cir.), cert. denied, 466 U.S. 905 (1984) (quoting Hill v.

California, 401 U.S. 797).

remand, 958 F.2d 1085 (D.C. Cir. 1992); United States v.

Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983), cert. denied, 465

U.S. 1037 (1984) (noting that " 'where the correctness of the

lower court's decision depends upon a determination of fact

which only a [fact-finder] could make but which has not been

made, the appellate court cannot take the place of the [fact-

finder]' ") (citation omitted). The district court may hold a

new hearing to make the appropriate factual findings and to

determine whether the stop complied with the relevant legal

and constitutional standards. See United States v. Hodge, 19

F.3d 51, 53 (D.C. Cir. 1994) (remanding to district court for a

new evidentiary hearing on a motion to suppress).

If the district court concludes that under the circumstances

it was objectively reasonable for the police to believe that the

car did not have a VIN on its temporary tags, we agree with

the government that the absence of the VIN did " 'warrant a

man of reasonable caution in the belief' " that a traffic stop

was justified. Terry, 392 U.S. at 22. The District of Colum-

bia traffic regulations require that a VIN be placed on all

temporary tags. The D.C. Municipal Regulations state that

"[s]pecial use identification tags shall contain ... [a] descrip-

tion setting forth the vehicle's trade name, model, year as

given by the manufacturer, body type, and vehicle identifica-

tion number." 18 D.C. Mun. Reg. s 426.11 (1995). It is

irrelevant that under the D.C. municipal regulations, the car

dealer is required to "prepare a special use certificate by

printing or typing all of the information required on the

certificate," D.C. Mun. Reg. s 506.7 (1995). Regardless of

whom the regulations are directed to, the absence of a VIN

on temporary tags can provide a sufficient reason to "suspect

a violation of traffic laws" and therefore to stop the car for

further investigation. United States v. Mitchell, 951 F.2d

1291, 1295 (D.C. Cir. 1991), cert. denied sub. nom. Zollicoffer

v. United States, 504 U.S. 924 (1992). Indeed, we have

repeatedly found that " '[e]ven a relatively minor offense that

would not of itself lead to an arrest can provide a basis for a

stop for questioning and inspection of the driver's permit and

registration.' " Id. (citations omitted).4

B. Sentencing

Hill claims that the base sentencing offense level recom-

mended in the presentencing report and adopted by the

district court below is incorrect. The base sentencing offense

level, Hill contends, should be set at 20, rather than at 24,

because his 1976 conviction for attempted robbery was incor-

rectly designated as a "crime of violence." In particular, Hill

argues that the offense of attempted robbery in D.C. is broad

and includes non-violent offenses and therefore cannot consti-

tute a "crime of violence" for purposes of setting Hill's base

offense level under the sentencing guidelines. In response,

the government argues that the substance of the indictment

to which Hill pled guilty (albeit to a lesser included offense)

makes clear that the offense was properly classified as a

crime of violence. Contrary to the government's claim, we

find that when a defendant pleads guilty to a lesser included

offense of the offense charged in the indictment and the

statutory definition of the lesser offense allows conviction for

conduct that does not meet the definition of a "crime of

violence," the indictment alone does not provide a sufficient

basis for designating an offense a "crime of violence." We

therefore reverse the district court's decision to set Hill's

base sentencing level at 24 and remand for reconsideration of

whether Hill's 1976 conviction for attempted robbery was

properly classified a "crime of violence." 5

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4 This conclusion is consistent with decisions of this and other

courts holding that expired license tags, Pennsylvania v. Mimms,

434 U.S. 106, 109 (1977) (per curiam), absence of a license plate,

United States v. Russell, 655 F.2d 1261, 1263 (D.C. Cir. 1981),

vacated in part on other grounds, 670 F.2d 323 (D.C. Cir. 1982),

cert. denied, 457 U.S. 1108 (1982), an illegible expiration date on a

tag, United States v. Hill, 458 F. Supp. 31, 32 (D.D.C. 1978), and

the absence of a front tag, Lewis v. United States, 632 A.2d 383, 388

n.12 (D.C. Cir. 1993), justified the police officers' decisions to

engage in a traffic stop.

5 The district court's determination that a prior conviction quali-

fies as a "crime of violence" under U.S.S.G. s 2K2.1 is a question of

The sentencing guidelines provide for a base offense level

of 24 if the offender has two prior felony convictions of a

"crime of violence." U.S.S.G. s 2K2.1(a)(2). A "crime of

violence" is defined in the sentencing guidelines as an offense,

punishable by more than one year in prison, that:

(1)has as an element the use, attempted use, or threat-

ened use of physical force against the person of

another, or

(2)is burglary of a dwelling, arson, or extortion, involves

the use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another.

U.S.S.G. s 4B1.2(a). The commentary to the guidelines fur-

ther explains that the term "crime of violence" includes "the

offenses of aiding and abetting, conspiring, and attempting to

commit such offenses." U.S.S.G. s 4B1.2 Commentary 1.

Hill bases his challenge to his base sentencing offense level

on the Supreme Court's decision in Taylor v. United States,

495 U.S. 575 (1990), and this court's decision in United States

v. Mathis, 963 F.2d 399 (D.C. Cir. 1992).6 As this court noted

in Mathis, Taylor established that "when deciding whether a

prior conviction qualifies as a predicate offense, the sentenc-

ing court must look only to the statutory definition, not to the

underlying facts or evidence presented." Mathis, 963 F.2d at

408 (citing Taylor, 495 U.S. at 602). The courts " 'should not

examine the actual conduct underlying the offense' when

determining whether to include it as a predicate offense

under ' 924(e).' " Id. (citation omitted). The court may

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law we review de novo. See United States v. Mathis, 963 F.2d 399,

404 (D.C. Cir. 1992).

6 Although Taylor and Mathis involved the interpretation of 18

U.S.C. s 924(e), rather than s 4B1.2 of the sentencing guidelines,

the cases are nonetheless controlling here because the language

defining a "violent felony" under ' 924(e) is identical in all relevant

respects to the language defining a "crime of violence" under

s 4B1.2 of the sentencing guidelines. Indeed, s 4B1.2 of the

sentencing guidelines was explicitly derived from s 924(e). See

U.S.S.G. app. C, amend. 268.

consider only the statutory definitions of the offenses of which

the defendant has been convicted; the particular circum-

stances under which the predicate crime was committed are

irrelevant in determining whether the conviction was for a

felony that includes as an essential element the use, attempt-

ed use or threatened use or physical force. See Taylor, 495

U.S. at 600-02. Alternatively, the sentencing court can con-

sider the charging documents and jury instructions. See id.

at 602. As the Taylor Court explained:

We therefore hold that an offense constitutes 'burglary'

for purposes of a s 924(e) sentence enhancement if either

its statutory definition substantially corresponds to 'ge-

neric' burglary, or the charging paper and jury instruc-

tions actually required the jury to find all the elements of

generic burglary in order to convict the defendant.

Id.

In Mathis, this court applied these principles to hold that

"robbery" as defined in D.C. Code Ann. s 22-2901, includes

conduct that is not a "violent felony" as defined by section

924(e). See 963 F.2d at 409. That is, because the offense of

"robbery" includes a non-violent taking " 'by sudden or steal-

thy seizure or snatching,' " the offense cannot be classified as

a "violent felony" under section 924 on the basis of its

statutory definition alone. Id. at 408-09. As this court

explained, " 'stealthy seizure' under section 22-2901 is not a

'violent felony' within the meaning of s 924(e), because the

proof required to satisfy the element of force in the local

statute falls below that which Congress intended in enacting

s 924(e)." Id. at 409. This court remanded to the district

court for a determination of whether the indictment and/or

jury instructions required the jury to find use or threatened

use of physical force in order to convict the defendant of the

offense of "robbery."

The case at hand resembles Mathis in some aspects. Hill

pled guilty to an unindicted offense, "Count K," which

charged simply "attempted robbery." This offense is a lesser

included offense of Count Two of the indictment, which

charged "robbery by force and violence and against resistance

and by putting in fear." App. at 33-36. The statute to which

Hill pled guilty defines attempted robbery as: "Whoever

attempts to commit robbery, as defined in s 22-2901, by an

overt act, shall be imprisoned for not more than 3 years or be

fined no more than $500, or both." D.C. Code. s 22-2902.

The statute includes attempts to commit robbery "by sudden

or stealthy seizure or snatching." D.C. Code s 22-2901.

Thus, as in Mathis, the defendant was convicted of an offense

that includes non-violent crimes. Consequently, the statutory

definition of the offense for which Hill was convicted does not

meet the definition of a "crime of violence."

This case differs from Mathis, however, in two important

ways. First, Hill pled guilty to the offense of attempted

robbery, therefore there were no jury instructions to which

the sentencing court could refer to determine whether Hill's

conviction met the definition of a "crime of violence." Sec-

ond, Hill pled guilty to a lesser included offense of the

indicted offense, rather than to the indicted offense itself.

Consequently, although the indictment of Hill does suggest

that the attempted robbery of which Hill pled was not

committed "by sudden or stealthy seizure or snatching," 7 it is

inappropriate for the sentencing court to rely upon this

indictment alone as the basis for a determination that the

offense constituted a crime of violence. The rationale for this

principle is clear: The crime charged is not the crime of

which the defendant was convicted.8 It is therefore impossi-

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7 Count Two of the indictment reads: "On or about February 28,

1975, within the District of Columbia, William D. Hill, Jr., and

Herman B. Brisbon, by force and violence and against resistance

and by putting in fear, stole and took from the person and from the

immediate actual possession of Ricky Chaviz, property of value

belonging to Ricky Chavis, consisting of money." App. at 36.

8 See United States v. Bennett, 108 F.3d 1315, 1317 (10th Cir.

1997) ("The fact that [the defendant] was charged with a crime of

violence ... is not dispositive for sentencing purposes.... '[T]he

conduct of which the defendant was convicted [not charged] is the

focus of the inquiry.' "); United States v. Spell, 44 F.3d 936, 940

(11th Cir. 1995) (holding that "a district court may not rely on a

charging document without first establishing that the crime charged

ble for the court to know, without more, what aspects of the

indicted offense can be appropriately read into the lesser

included offense to which the defendant pled guilty. More-

over, as the Taylor Court itself noted, "if a guilty plea to a

lesser ... offense was the result of a plea bargain, it would

seem unfair to impose a sentence enhancement as if the

defendant had pleaded guilty [to the charged conduct]." Tay-

lor, 495 U.S. at 601-02.

This does not mean, of course, that a defendant can escape

application of U.S.S.G. s 2K2.1(a)(2) by simply pleading

guilty to a lesser included offense of a charged offense.

Several circuits have considered what to do in the situation

where a defendant pleads guilty to an offense, and there is no

jury instruction to examine. They have concluded that the

government may use some means other than a jury instruc-

tion to establish that a prior conviction resulted from a

burglary involving force for purposes of base offense level

enhancement under section 924(e). Eight circuits have held

that where no jury instruction is available, the court may

examine various court documents to determine whether a

prior conviction resulted from a crime of violence.9 Such an

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was the same crime for which the defendant was convicted"); cf.

United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995) (holding

that when a defendant pled nolo contendere to a lesser included

offense of an indicted offense, the district court could examine "only

those charges in the indictment that are essential to the offense to

which defendant entered his plea" and the defendant's plea agree-

ment) (citation omitted).

9 See United States v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992)

(noting that where defendant has pled guilty, sentencing court can

look to the indictment, guilty plea, or presentence report to deter-

mine whether a prior offense constitutes a predicate offense);

United States v. Damon, 127 F.3d 139, 147-48 (1st Cir. 1997)

(noting that if the statute of conviction, charging instrument, and

jury instructions do not indicate whether the offense is a crime of

violence, the sentencing court may look to other "accurate, judicially

noticeable sources"); United States v. Garza, 921 F.2d 59, 61 (5th

Cir.), cert. denied, 502 U.S. 825 (1991) (noting that the "absence of

jury instructions in a guilty plea setting does not negate the

Note 9--Continued

application of the second half of Taylor's generic burglary rubric");

United States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994) (en

banc) ("When the defendant's conviction is by way of guilty plea, it

is appropriate under Taylor to look to the indictment and guilty

plea."); United States v. Maness, 23 F.3d 1006, 1009-10 (6th Cir.),

cert. denied, 513 U.S. 906 (1994) (reviewing transcript of guilty

pleas and indictments to determine whether defendant actually

committed generic burglary when he pled guilty to charges that

contained all of the elements of a generic burglary); United States

v. Rutherford, 54 F.3d 370, 372 n.4 (7th Cir.), cert. denied, 116 S. Ct.

323 (1995) ("If necessary to resolve an ambiguity in the charging

document, the courts may also, in some circumstances, examine the

presentence report, plea agreement, or factual findings of the

sentencing court."); United States v. White, 997 F.2d 1213, 1217-18

(7th Cir. 1993) (examining charging paper and preliminary hearing

transcript in effort to determine whether the district court properly

counted a burglary conviction for sentence enhancement purposes);

United States v. Gallman, 907 F.2d 639, 645 n.7 (7th Cir. 1990),

cert. denied, 499 U.S. 908 (1991) (noting that when faced with an

ambiguous statute, "a court should refer to the 'indictment or

information and jury instructions,' or, in the case of a guilty plea, to

the plea agreement or transcript, in order to determine if the

conviction was for 'generic' ... burglary"); United States v. Taylor,

932 F.2d 703, 708 (8th Cir.), cert. denied, 502 U.S. 888 (1991) (noting

that the absence of jury instructions in guilty plea proceedings does

not negate the application of the second half of Taylor's generic

burglary rubric); United States v. Bonat, 106 F.3d 1472, 1476 (9th

Cir.), cert. denied, 118 S. Ct. 192 (1997) (holding that because "there

are no jury instructions to consider when a defendant has pled

guilty, courts must be able to consider documents other than the

charging paper and the jury instructions," including the indictment,

judgment of conviction, a signed guilty plea, plea transcript and

other " 'documentation or judicially noticeable facts that clearly

establish that the conviction is a predicate conviction for enhance-

ment purposes' ") (citation omitted); United States v. Wood, 52

F.3d 272, 275 (9th Cir. 1995), cert. denied, 116 S. Ct. 217 (1995)

(holding that "sentencing courts may consider the statutory defini-

tion of the crime, any conduct charged in the indictment or informa-

tion, the defendant's guilty plea or plea agreement, and any jury

instructions"); United States v. Hill, 53 F.3d 1151, 1154 (10th Cir.)

(en banc), cert. denied, 116 S. Ct. 258 (1995) (holding

approach, these courts have noted, is consistent with the

principles established in Taylor and with the guidelines and

commentary thereto. We agree. We therefore hold that in

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Note 9--Continued

that court may consider the text of a guilty plea and/or other

documents that, coupled with the charging instrument, enable the

court to determine that defendant's prior conviction constitutes a

violent felony); United States v. Gacnik, 50 F.3d 848, 856 (10th Cir.

1995) (holding that the court can examine the "charging papers,

judgment of conviction, plea agreement or other statement by the

defendant for the record, presentence report adopted by the court,

and findings by the sentencing judge" to determine whether a prior

offense was a crime of violence); United States v. Smith, 10 F.3d

724, 733-34 (10th Cir. 1993) (per curiam) (holding that "a court can

look beyond the statutory count of conviction in order to resolve a

patent ambiguity caused by a broad state statute," however, the

examination is limited to "the charging papers, judgment of convic-

tion, plea agreement or other statement by the defendant for the

record, presentence report adopted by the court, and findings by

the sentencing judge") (citation omitted); United States v. Strahl,

958 F.2d 980, 984 (10th Cir. 1992) (" '[W]here enhancement is

sought on the basis of a conviction obtained through a guilty plea,

the sentencing court may look to the underlying indictment or

information and the text of the guilty plea to determine whether the

defendant was charged with and admitted conduct which falls

without question within the ambit of Taylor's generic definition.' ")

(citation omitted); United States v. Adams, 91 F.3d 114, 116 (11th

Cir.) (per curiam), cert. denied, 117 S. Ct. 623 (1996) ("[U]nder

Taylor the government may use some means, other than a jury

instruction, to establish that the prior conviction resulted from a

generic burglary."); cf. United States v. Barney, 955 F.2d 635, 639-

40 (10th Cir. 1992) (holding that "where enhancement is sought on

the basis of a conviction obtained through a guilty plea, the sentenc-

ing court may look to the underlying indictment or information and

the text of the guilty plea to determine whether the defendant was

charged with and admitted conduct wich falls without question

within the ambit of Taylor's generic definition," but "[t]o the extent

that the district court considered convictions of Mr. Barney not

noticed and only mentioned in the presentence report, it erred").

determining whether a prior conviction constitutes a predi-

cate offense for purposes of U.S.S.G. s 2K2.1(a)(2) when the

statutory description of the offense includes non-violent as

well as violent crimes and when the defendant has pled guilty

to a lesser included offense of a charge in the indictment, the

sentencing court may not rely solely on the indictment to

determine whether the offense of which the defendant was

convicted was a crime of violence. Instead, the court must

consult other available indices to verify that the defendant

was indeed convicted of a crime of violence.10 These other

indices may include the judgment of conviction, plea agree-

ment or other statement by the defendant on the record,

presentencing report adopted by the court, and the findings

of the sentencing judge. Accordingly, we remand for a new

sentencing hearing to determine whether Hill's 1976 convic-

tion for attempted robbery was properly classified a "crime of

violence." 11

For the foregoing reasons, we reverse the district court's

denial of Hill's motion to suppress and the district court's

decision to set Hill's base sentencing offense level at 24, and

remand for further proceedings consistent with this opinion.

So ordered.

__________

10 Because "[t]he burden is on the government to prove facts in

support of a sentence enhancement by a preponderance of the

evidence," United States v. Washington, 115 F.3d 1008, 1010 (D.C.

Cir. 1997), it is the responsibility of the government to produce such

documents as are necessary to establish that a prior offense can be

properly designated a "crime of violence."

11 We recently held that "upon a resentencing occasioned by a

remand, unless the court of appeals expressly directs otherwise, the

district court may consider only such new arguments or new facts

as are made newly relevant by the court of appeals' decisionC

whether by the reasoning or by the result." United States v.

Whren, 111 F.3d 956, 960 (D.C. Cir. 1997). Accordingly, we note

that on remand, the district court may consider any of the docu-

ments discussed above in determining whether the defendant's

conviction for attempted robbery can be appropriately designated a

"crime of violence."

Randolph, Circuit Judge, concurring: I agree that the

sentencing judge must look beyond the indictment to decide

whether Hill's prior conviction was for a crime of violence.

But I wonder whether there is any longer a good purpose for

treating this factual inquiry differently than the other factual

inquiries routinely required by the Sentencing Guidelines.

The Supreme Court adopted a categorical approach to

deciding whether a prior conviction was a "violent felony"

within the meaning of 18 U.S.C. s 924(e), permitting the

sentencing court to look at the "charging paper and jury

instructions" only in a "narrow range of cases." Taylor, 495

U.S. at 602. After Taylor, we held in Mathis that "when

deciding whether a prior conviction qualifies as a predicate

offense, the sentencing court must look only to the statutory

definition, not to the underlying facts or evidence presented."

963 F.2d at 408. This approach breaks down when the

defendant's earlier conviction resulted from a plea agreement.

And so we now join other circuits in concluding that an

examination may be made of certain readily available court

documents, including presentencing reports and plea tran-

scripts. My question is why the sentencing court ought to be

under any restrictions. Why, in other words, should the

inquiry for the purposes of U.S.S.G. s 2K2.1(a)(2) be any

more restricted than for other instances of sentencing en-

hancement?

The Guidelines have pretty much rendered obsolete the

concern, relied upon in Taylor, 495 U.S. at 601, that sentenc-

ing hearings should not become mini-trials. Under the bifur-

cated fact-finding scheme of the Guidelines, certain factual

issues allocated to the sentencing phrase can play a disposi-

tive role in determining a defendant's sentence. A court

must, for instance, consider all related acts proved by a

preponderance of the evidence at sentencing, even if the

defendant was not convicted of them. See U.S.S.G. s 1B1.3.

A defendant's base offense level is increased according to

"specific offense characteristics"Csuch as the discharge of a

firearm, more than minimal planning, or quantity of drugs

involved. See, e.g., U.S.S.G. s 2A2.2(b)(2)(A). Further ad-

justments in sentencing depend on the status of the victim,

the defendant's role in the offense, and whether the defen-

dant willfully obstructed justice. See U.S.S.G. ss 3A1.1-

3C1.2. Evidence about such matters may be presented to the

court through statements of counsel, affidavits of witnesses,

or evidentiary hearings. See s 6A1.3, comment. Further-

more, sentencing judges are not restricted to information that

would be admissible at trial. See s 6A1.3(a). They may

consider any information, provided it has "sufficient indicia of

reliability to support its probable accuracy." Id.

The time has come to rethink the subject and to consider

whether the same sort of evidentiary presentation permitted

for other sentencing issues ought to be allowed to prove or

disprove the violent nature of a defendant's previous offense.

Having said this, I recognize that the rethinking might have

to be done by the Sentencing Commission or by Congress.

See maj. op. at 10 & n.6.