Federal Judiciary

United States v. Hurell, Docket Nos. 06-5653-cr, 06-5718-cr, 07-0116-cr (2d Cir. Jan. 28, 2009) (found here)

The Government appealed three judgments, each of which held that a prior conviction for burglary in the third degree under New York law and/or a prior conviction for attempted burglary in the third degree were not convictions for "crimes of violence" as defined by Section 4B1.2(a) of the Guidelines.  Relying on United States v. Brown, 514 F.3d 256 (2d Cir. 2008), in which the Second Circuit held that burglary in the third degree was a crime of violence for purposes of the Guidelines, the Second Circuit found for the Government with regard to its appeal on the actual burglary convictions.  The Second Circuit, however, went further, holding that attempted burglary is also a crime of violence under the Guidelines because Application Note 1 to Section 4B1.2 of the Guidelines provides that the term "crime of violence" "include[s] the offense[] of . . . attempting to commit" a "crime of violence."

Significantly, it bears noting that Attempted Burglary in the Third Degree is, under New York law, a Class E felony.  That's right, folks, it's the lowest level felony under New York law -- and a felony for which jail time is not required.  So, why should it be considered a crime of violence that increases an offender's exposure under the Guidelines?