United States v. Marlon Dale Sun Bear, A/K/A Dale Sun Bear, A/K/A Ben James

Citation: 307 F.3d 747Docket: 02-1196

Court: Court of Appeals for the Eighth Circuit; December 4, 2002; Federal Appellate Court

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Marlon Dale Sun Bear was charged with second degree murder and, after pleading guilty, was sentenced to 360 months in prison as a career offender under 18 U.S.C. §§ 1111 and 1153. The incident occurred on May 9, 2001, after a day of drinking and smoking marijuana, leading to a fight with his uncle, Cordell Sun Bear. Sun Bear and an accomplice, Lambert Gunhammer, severely beat Cordell, resulting in his death.

The presentence investigation report assigned Sun Bear an offense level of 32 and a criminal history category VI. However, the government contested this, leading the district court to consider Sun Bear's status as a career offender under U.S.S.G. § 4B1.1. The court identified three prior felony convictions: attempted escape, attempted theft of a vehicle, and attempted burglary, all deemed violent crimes. Consequently, the court increased Sun Bear's offense level to 37 before adjusting it for acceptance of responsibility, ultimately sentencing him to 360 months.

On appeal, Sun Bear challenged the district court's classification of his prior convictions as felony crimes of violence. The appeals court reviews factual findings for clear error and applies sentencing guidelines de novo. Any unraised arguments are assessed for plain error. The court affirmed the district court's ruling.

Under the sentencing guidelines, a 'career offender' is defined as a defendant who meets three criteria: (1) aged at least eighteen at the time of the offense, (2) the offense being a felony crime of violence or a felony controlled substance offense, and (3) having at least two prior felony convictions of the same type. In Sun Bear's case, the key issue on appeal is whether two of his prior convictions qualify as felony crimes of violence.

Sun Bear pled guilty to attempted escape in Nebraska on August 4, 1995, a charge stemming from his effort to evade law enforcement. The government submitted a criminal complaint as evidence, which classified the offense as a 'Class I Misdemeanor' but indicated that he used force and threats during the attempt. Under Eighth Circuit precedent, all escapes from custody are considered crimes of violence, and an attempt to commit a crime of violence is also categorized as such.

Nebraska law treats escape as a felony, specifically a Class IV felony unless force is employed, which elevates it to a Class III felony. An attempted crime is typically classified one level below the actual crime, implying that if Sun Bear attempted a Class III felony, his charge would be a Class IV felony, and if he attempted a Class IV felony, it would be a Class I misdemeanor.

The criminal complaint presents ambiguity regarding the classification of Sun Bear’s attempted escape. While it suggests he attempted a Class III felony, it ultimately labels the charge as a Class I misdemeanor. The burden of proof rests with the government to demonstrate that Sun Bear qualifies as a career offender by a preponderance of evidence. The absence of the judgment of conviction from Sheridan County, which would clarify the nature of Sun Bear's guilty plea, contributes to the uncertainty surrounding the classification of his prior conviction.

Sun Bear's attempted escape cannot be classified as a felony due to insufficient evidence and ambiguous language in the complaint, making it equally plausible he was charged with a misdemeanor. Even if a felony charge existed, he might have pled guilty to a misdemeanor, as indicated by his 180-day prison sentence, which is consistent with either classification. The district court was misinformed about Nebraska's criminal classification scheme during sentencing, leading to an erroneous belief that the attempted escape was akin to a completed offense. This oversight may only be reviewed for plain error, but even under de novo standards, the sentence is affirmed because Sun Bear's other convictions are felony crimes of violence, qualifying him as a career offender.

Sun Bear's conviction for attempted theft of a vehicle in Utah was established as a felony with a prison sentence of zero to five years. The classification of the offense as a crime of violence is contingent on the guidelines, which categorize such crimes based on the use or threat of physical force or conduct presenting a serious risk of injury to another. While vehicle theft is not explicitly listed as a crime of violence, it may qualify if the charged conduct poses a serious potential risk of physical harm. Previous court rulings, including those from the Fifth and Sixth Circuits, concluded that motor vehicle theft does not inherently present a serious risk of injury to persons, focusing instead on property damage risks. The determination of whether theft of a vehicle constitutes a crime of violence requires evaluating the potential consequences of the crime in practical terms.

Eighth Circuit case law establishes that certain offenses qualify as crimes of violence under the guidelines. Specifically, burglary of a commercial building is classified as a crime of violence due to the inherent risks it poses to occupants and passersby, as noted in United States v. Peltier and United States v. Solomon. Similarly, all forms of escape, including "walkaway" escapes, are deemed crimes of violence because of the high emotional stakes and potential for violence involved, as highlighted in Nation v. Gosling.

The court further asserts that vehicle theft presents a significant risk of confrontation, potentially more dangerous than commercial burglary. The act of stealing a vehicle often leads to encounters with drivers, passengers, or law enforcement, heightening the risk of violent confrontation. Once in possession of a stolen vehicle, the thief is in control of a dangerous instrument and may drive recklessly under stress, creating hazards for others. These factors lead to the conclusion that vehicle theft, including attempts, is a crime of violence under section 4B1.2 of the guidelines.

The Supreme Court's ruling in Taylor v. United States, which addressed the definition of burglary under 18 U.S.C. 924(e)(2)(B), does not alter this interpretation. Although Taylor excluded certain automobile-related offenses from the definition of burglary, it allows the government to argue that offenses presenting a serious potential risk of physical injury, such as vehicle theft, qualify for enhancement under similar language in section 4B1.2. 

In the specific case of Sun Bear, who pled guilty to attempted burglary of a commercial laundry in Nebraska, this conviction is categorized as a crime of violence as per Eighth Circuit precedent, and the court cannot overturn prior rulings.

Two of Sun Bear's three prior convictions—attempted vehicle theft in Cedar City, Utah, and attempted burglary in Gordon County, Nebraska—are classified as crimes of violence under U.S.S.G. 4B1.2, which qualifies him as a career offender under U.S.S.G. 4B1.1. The district court's judgment is affirmed. However, there is a dissent from Judge Melloy, who concurs with the treatment of Sun Bear's other convictions but disagrees with the classification of the attempted auto theft as a crime of violence. Melloy argues that the Utah statute does not require the use of physical force, as defined in U.S.S.G. 4B1.2(a)(1), and questions whether attempted theft of an operable vehicle presents a serious potential risk of physical injury under U.S.S.G. 4B1.2(a)(2). The Utah law treats attempted theft of an operable vehicle as a third-degree felony without distinguishing it as a separate crime. The district court's classification relied solely on the statutory definitions without considering other evidence. The government and majority opinion assert that the risks associated with attempted vehicle theft are akin to those of escape or burglary, citing precedents that categorize these offenses as crimes of violence. Judge Melloy contends this interpretation extends the court's reasoning too far and does not align with prior case law.

Attempted auto theft is not considered a "crime of violence" under U.S.S.G. 4B1.2(a)(2). Unlike offenses such as theft from a person or commercial burglary, which inherently involve a serious risk of physical injury to others, attempted auto theft typically lacks this risk, as the scenario rarely involves unexpected encounters with victims. The distinction is further supported by case law, including *United States v. Griffith* and *Hascall*, which categorize certain crimes as violent due to their inherent risks. Critically, the Fifth Circuit's decision in *United States v. Charles* reinforces this view, concluding that simple motor vehicle theft does not present a serious potential risk of physical injury. The court emphasized that for a crime to be classified as a violent felony, the indictment must clearly indicate that the conduct poses such a risk, which was not the case for the defendant in Charles. As such, the overall consensus is that not all theft offenses, including attempted auto theft, inherently present the serious potential risk required for violent crime classification, leading to the dissenting opinion that attempted auto theft should not be categorized as a crime of violence.