United States v. Michael A. Andrello, 9 F.3d 247 (2d Cir. 1993). · Go Syfert
United States v. Michael A. Andrello, 9 F.3d 247 (2d Cir. 1993). Cases Citing This Book View Copy Cite
“andrello”
60 citation events (51 in the last 25 years) across 12 distinct courts.
Strongest positive: United States v. Brown (ca2, 2008-01-30)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (quoted) United States v. Brown (2×) also: Cited "see"
2d Cir. · 2008 · quote attribution · 1 verbatim quote · confidence low
andrello
discussed Cited as authority (rule) Edmonds v. United States
N.D. Tex. · 2019 · confidence medium
At the time Movant was sentenced, federal courts viewed attempted burglary in the third-degree (a less serious offense than second-degree burglary) as a violent offense under the ACCA, See United States v. Andrello, 9 F.3d 247, 250 (2d Cir. 1993) (collecting cases).
discussed Cited as authority (rule) Villanueva v. United States
D. Conn. · 2016 · confidence medium
Clause), or simply restate the language of the Clause, see, e.g., United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993) ("[T]he term ‘violent felony’ includes ‘burglary’ expressly, and includes any other felony that ‘otherwise involves conduct that presents a serious risk of physical injury to another.’ ”) (quoting 18 U.S.C. § 924 (e)(2)(B)(ii)). .
discussed Cited as authority (rule) United States v. Paul Prater (2×)
6th Cir. · 2014 · confidence medium
United States v. Andrello, 9 F.3d 247, 249-50 (2d Cir.1993) (per curiam).
discussed Cited as authority (rule) United States v. Flores
2d Cir. · 2014 · confidence medium
If anything, these cases have arguably strengthened it (as the government argues) because our conclusion in Brown was based on our determination that “third-degree ‘burglary itself is a crime that inherently involves a risk of personal injury.’” 514 F.3d at 268 (quoting United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993)).
discussed Cited as authority (rule) United States v. Jordan
S.D.N.Y. · 2008 · confidence medium
With respect to the attempt instruction for Counts Four and Five, Jordan asserts that it was improper because it did not require that the jury find “dangerous proximity to the criminal end.” He cites United States v. Andrello, 9 F.3d 247 (2d Cir.1993), which explains that under the New York Penal Code, “a conviction for attempt is proper only if the defendant has carried the project forward within dangerous proximity to the criminal end to be attained.” Id. at 249 (citation omitted).
discussed Cited as authority (rule) United States v. Rodriguez (2×) also: Cited "see, e.g."
S.D.N.Y. · 2008 · confidence medium
See United States v. Gray, 535 F.3d 128 , 130 n. 2 (2d Cir.2008). 2 In determining whether a conviction satisfies the definition of violent felony in the residual clause courts use a “ ‘categorical approach’ ... [under which] the sentencing court must [generally] ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Lynch, 518 F.3d 164, 168-69 (2d Cir.2008) (quoting United States v. *583 Rosa, 507 F.3d 142, 151 (2d Cir.2007) and Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990)); see also Begay…
discussed Cited as authority (rule) United States v. Lynch
2d Cir. · 2008 · confidence medium
The government further argued that attempted burglary under this particular New York statute had been held to constitute a violent felony in United States v. Andrello, 9 F.3d 247, 249 (2d Cir. 1993) (per curiam).
discussed Cited as authority (rule) United States v. Lynch
2d Cir. · 2008 · confidence medium
The government further argued that attempted burglary under this particular New York statute had been held to constitute a violent felony in United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993) (per curiam).
discussed Cited as authority (rule) James v. United States (2×)
SCOTUS · 2007 · confidence medium
Interrupting an intruder while breaking into a home involves a risk of confrontation nearly as great as finding him inside the house"); United States v. Thomas, 2 F.3d 79, 80 (C.A.4 1993) (New Jersey attempted burglary law); United States v. Andrello, 9 F.3d 247, 249-250 (C.A.2 1993) (New York attempted burglary law); United States v. Davis, 16 F.3d 212, 218 (C.A.7 1994) (Illinois attempted burglary law); United States v. Bureau, 52 F.3d 584, 593 (C.A.6 1995) (Tennessee attempted burglary law: "[T]he propensity for a violent confrontation and the serious potential risk of injury inherent in bu…
discussed Cited as authority (rule) United States v. Gamble
W.D.N.Y. · 2006 · confidence medium
New York's burglary in the third degree statute is a generic burglary statute and, therefore, the Court may consider it in determining whether the prior convictions involve a "violent felony.” See United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993).
cited Cited as authority (rule) United States v. Williams, Norman
D.C. Cir. · 2003 · confidence medium
United States v. Bureau, 52 F.3d 584, 591 (6th Cir.1995); United States v. Andrello, 9 F.3d 247, 249-50 (2d Cir.1993) (per curiam); United States v. O’Brien, 972 F.2d 47, 51 (3d Cir.1992).
discussed Cited as authority (rule) United States v. Milton G. Collins, Jr.
7th Cir. · 1998 · confidence medium
See e.g., United States v. Demint, 74 F.3d 876, 878 (8th Cir.1996) (“[W]e conclude that Florida’s attempted burglary law punishes only conduct that presents a serious potential risk of physical injury to another.”) (internal quotations omitted); United States v. Bureau, 52 F.3d 584, 592 (6th Cir.1995) (“In all likelihood, a conviction under Tennessee’s attempted burglary statute in 1975 involved conduct presenting a serious potential risk of physical injury to another.”); Davis, 16 F.3d at 217-19 (Illinois attempted burglary statute requires intent to commit offense and “substant…
discussed Cited as authority (rule) Mark L. Neff v. United States
7th Cir. · 1997 · confidence medium
As explained by the Second Circuit in United States v. Andrello, 9 F.3d 247, 249-50 (2nd Cir.1993): 8 since burglary itself is a crime that inherently involves a risk of personal injury, the crime of attempted burglary under New York law, which requires proof of conduct that would present a serious potential risk of attainment, must be considered a crime that "involves conduct that presents a serious potential risk of physical injury to another." The fact that the underlying substantive offense may not be accomplished is not pertinent. 9 The district court therefore properly construed Neff's t…
discussed Cited as authority (rule) United States v. Raymond Albert Bureau
6th Cir. · 1995 · confidence medium
Of these, six circuits held that a conviction for attempted burglary under a particular state law fell within § 924(e) under the “otherwise clause.” See United States v. Payne, 966 F.2d 4, 8 (1st Cir.1992) (“while burglary may start out as a nonviolent crime, the burglar may resort to violence if someone is on the premises or appears there while the burglary is in progress” and very unlikely *591 under Massachusetts statute that a defendant could be convicted without coming close enough to the intended premises to risk a confrontation); United States v. Andrello, 9 F.3d 247, 249-50 (2…
discussed Cited as authority (rule) United States v. Bobby Hands
7th Cir. · 1994 · confidence medium
Upon consideration of that statement, the briefs, and the record, the request for oral argument is denied and the appeal is submitted on the briefs and record 1 The Tenth Circuit in United States v. Strahl, 958 F.2d 980, 985-86 (10th Cir.1992), found the word's use significant when it held that attempted burglaries were not automatically included in the "otherwise" clause, but it did not find them necessarily excluded 2 United States v. Andrello, 9 F.3d 247, 250 (2d Cir.1993) (attempted burglary), cert. denied, 114 S.Ct. 1117 (1994); United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993) (attem…
discussed Cited as authority (rule) United States of America, Plaintiff-Appellee-Cross-Appellant v. Edward Harry Weekley, Defendant-Appellant-Cross-Appellee
9th Cir. · 1994 · confidence medium
See United States v. Payne, 966 F.2d 4, 9 (1st Cir.1992) (Massachusetts breaking-and-entering law made conviction unlikely unless defendant came close enough to premises to risk confrontation); United States v. Andrello, 9 F.3d 247, 249-50 (2d Cir.1993) ("dangerous proximity” to completion required; violent felony under § 924(e)(2)(B)(ii)), cert. denied, - U.S.-, 114 S.Ct. 1117 , 127 L.Ed.2d 426 (1994); United States v. O’Brien, 972 F.2d 47, 51 (3rd Cir.1992) (nighttime breaking and entering inherently risky), cert. denied, -U.S.-, 114 S.Ct. 210 , 126 L.Ed.2d 166 (1993); United States v. …
discussed Cited "see" United States v. Soler (Waters) (2×) also: Cited "see, e.g."
2d Cir. · 2014 · signal: see · confidence high
See United States v. Andrello, 9 F.3d 247, 249-50 (2d Cir.1993) (per curiam); see also United States v. Lynch, 518 F.3d 164, 169-70 (2008) (reaffirming Andrello , and emphasizing that “because burglary ‘inherently involves a risk of personal injury 1 and because attempted burglary requires proof that the defendant could potentially attain the fruition of such inherently risky behavior, attempted burglary is indeed a crime that ‘involves conduct that presents a serious potential risk of physical injury to another’” (quoting Andrello, 9 F.3d at 249-50 )).
discussed Cited "see" United States v. Parnell
2d Cir. · 2008 · signal: see · confidence high
See id. at 267-68 (relying on United States v. Andrello, 9 F.3d 247 (2d Cir.1993) (per curiam), cert denied, 510 U.S. 1137 , 114 S.Ct. 1117 , 127 L.Ed.2d 426 (1994)); see also United States v. Jackson, 301 F.3d 59, 62 (2d Cir.2002), cert. denied, 539 U.S. 952 , 123 S.Ct. 2629 , 156 L.Ed.2d 644 (2003).
discussed Cited "see" United States v. Parnell
2d Cir. · 2008 · signal: see · confidence high
See id. at 267- 6 68 (relying on United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), cert denied, 510 7 U.S. 1137 (1994)); see also United States v. Jackson, 301 F.3d 59, 62 (2d Cir. 2002), cert. 8 denied, 539 U.S. 952 (2003). 9 Here, the statutory provision Parnell urges us to apply, 18 U.S.C. § 921 (a)(20), however, 10 is inconsistent with the plain language of the relevant Guideline.
cited Cited "see" United States v. Brown
2d Cir. · 2008 · signal: see · confidence high
See 9 F.3d at 249-50 .
discussed Cited "see" United States v. Desena
2d Cir. · 2002 · signal: accord · confidence high
Bracey, 41 N.Y.2d at 300, 392 N.Y.S.2d 412 , 360 N.E.2d 1094 ; People v. Fair, 269 A.D.2d 91, 94 , 711 N.Y.S.2d 196 (3d Dep’t), leave to appeal denied, 95 N.Y.2d 963 , 722 N.Y.S.2d 480 , 745 N.E.2d 400 (2000); accord United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993) (per curiam).
discussed Cited "see" United States v. Desena
2d Cir. · 2002 · signal: accord · confidence high
Bracey, 41 N.Y.2d at 300, 392 N.Y.S.2d 412 , 360 N.E.2d 1094 ; People v. Fair, 269 A.D.2d 91, 94 , 711 N.Y.S.2d 196 (3d Dep't), leave to appeal denied, 95 N.Y.2d 963 , 722 N.Y.S.2d 480 , 745 N.E.2d 400 (2000); accord United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993) (per curiam).
discussed Cited "see, e.g." United States v. Edward Davis
7th Cir. · 1994 · signal: see, e.g. · confidence medium
See, e.g., United States v. Andrello, 9 F.3d 247, 249-50 (2d Cir.1993) (per curiam) (holding that third degree attempted burglary under New York law, which requires “dangerous proximity” to completion, constitutes a violent felony under § 924(e)) petition for cert. filed, (Jan. 12, 1994) (No. 93-7448); United States v. Custis, 988 F.2d 1355, 1364 (4th Cir.) (holding that attempted breaking and entering under Maryland law constitutes violent felony under § 924(e)), cert. granted in part, — U.S. -, 114 S.Ct. 299 , 126 L.Ed.2d 248 (1993); 3 United States v. Thomas, 2 F.3d 79, 80 (4th Cir.…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Michael A. ANDRELLO, Defendant-Appellant
301, Docket 93-1301.
Court of Appeals for the Second Circuit.
Nov 12, 1993.
9 F.3d 247
Edward R. Broton, Asst. U.S. Atty., Syracuse, NY (Gary L. Sharpe, U.S. Atty., N.D.N.Y., Syracuse, NY, on the brief), for appellee., Frank Policelli, Utica, NY, for defendant-appellant.
Oakes, Kearse, Altimari.
Cited by 33 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 84%
Citer courts: Second Circuit (1)
PER CURIAM:

Defendant Michael A. Andrello appeals from a judgment of the United States District Court for the Northern District of New York convicting him, after a jury trial before[*249] Neal P. MeCurn, then-Chief Judge, of possessing ammunition in violation of 18 U.S.C. § 922(g) (1988), possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (1988), and possessing a firearm that bore no serial number, in violation of id. §§ 5842, 5861(i) (1988), and id. § 5871. 816 F.Supp. 806. On the basis that Andrello had two prior felony convictions under New York law for burglary in the third degree and one for attempted burglary in the third degree, the district court sentenced Andrello pursuant to 18 U.S.C. § 924(e) (1988) to, inter alia, a 180-month term of imprisonment. On appeal, Andrello contends principally that the prior offenses to which the enhancement provision of § 924(e) applies do not include the crime of attempted burglary. We disagree and affirm the judgment.

A. Attempted Burglary as a “Violent Felony”

Section 924(e) provides, in pertinent part, that a person who is convicted of violating § 922(g) and who has three or more prior convictions “for a violent felony,” each such felony having been committed on occasions different from one another, is to be sentenced to a prison term of at least 15 years. 18 U.S.C. § 924(e)(1). As defined in § 924(e), the term “violent felony” includes “burglary” expressly and includes any other felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). Burglary, for purposes of a § 924(e) enhancement, means any crime that includes the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990). Burglary was made a basis for enhanced punishment for the weapons offenses covered by § 922(g) because it inherently involves risk of injury to persons who may be in or may enter the targeted building during the burglary. See Taylor v. United States, 495 U.S. at 585, 110 S.Ct. at 2151 (“ ‘even though injury is not an element of the offense, it is a potentially very dangerous offense, because when you take your very typical residential burglary or even your professional commercial burglary, there is a very serious’ danger to people who might be inadvertently found on the premises’ ”) (quoting Hearing on H.R. 4639 and H.R. 4768 before Subcommittee on Crime of the Committee on the Judiciary, 99th Cong., 2d Sess. (1986)); Taylor v. United States, 495 U.S. at 588, 110 S.Ct. at 2152 (“[t]he fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate”). The matter of whether a crime other than one specifically identified as a violent felony in § 924(e)(2)(B)(ii) “involves conduct that presents a serious potential risk of physical injury to another” is a question to be answered by reference to the general definition of the crime of which the defendant was convicted. See generally id. at 600,110 S.Ct. at 2159.

Under New York law, “[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y.Penal § 140.20 (McKinney 1993). “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” N.Y.Penal § 110.00 (McKinney 1993). Under the latter section, a conviction for attempt is proper only if the defendant has “‘carr[ied] the project forward within dangerous proximity to the criminal end to be attained.’ ” People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 415, 360 N.E.2d 1094, 1097 (1977) (quoting People v. Werblow, 241 N.Y. 55, 61, 148 N.E. 786 (1925)). “[M]ere preparation” is not enough. Id. Accordingly, under New York law, a person may be convicted of attempted burglary in the third degree only if he has engaged in conduct tending to effect such a burglary, taking a step that has carried the project to within dangerous proximity of its accomplishment.

We conclude that since burglary itself is a crime that inherently involves a risk of personal injury, the crime of attempted burglary under New York law, which requires[*250] proof of conduct that would present a serious potential risk of attainment, must be considered a crime that “involves conduct that presents a serious potential risk of physical injury to another.” The fact that the underlying substantive offense may not be accomplished is not pertinent. Cf. United States v. Patino, 962 F.2d 263 (2d Cir.) (conspiracy to kidnap constitutes “crime of violence” within meaning of 18 U.S.C. § 924(e)(1) (1988)), cert. denied, — U.S. —, 113 S.Ct. 354, 121 L.Ed.2d 268 (1992).

We note that most other Circuits have concluded as we do that attempted burglary is a violent felony within the meaning of § 924(e). See, e.g., United States v. Solomon, 998 F.2d 587, 589 (8th Cir.1993), petition for cert. filed (No. 93-6294) (U.S. Oct. 8, 1993); United States v. Custis, 988 F.2d 1355, 1363-64 (4th Cir.), cert. granted in part, — U.S. —, 114 S.Ct. 299, 126 L.Ed.2d 248 (1993); United States v. O’Brien, 972 F.2d 47, 51 (3d Cir.1992), cert. denied, — U.S. —, 114 S.Ct. 210, 126 L.Ed.2d 166 (1993); United States v. Payne, 966 F.2d 4, 7-8 (1st Cir.1992); United States v. Lane, 909 F.2d 895, 903 (6th Cir.1990), cert. denied 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991). To the extent that certain other Circuits have concluded that attempted burglary is not a violent felony within the meaning of § 924(e), we consider those cases distinguishable on the basis that the state laws at issue defined burglary too broadly to require proof of the requisite elements, see, e.g., Taylor v. United States, 495 U.S. at 591-92, 110 S.Ct. at 2154-55, or did not so clearly require a substantial step toward the accomplishment of the substantive crime. See United States v. Permenter, 969 F.2d 911 (10th Cir.1992); United States v. Strahl, 958 F.2d 980 (10th Cir.1992); United States v. Martinez, 954 F.2d 1050 (5th Cir.1992).

We conclude that the district court properly enhanced Andrello’s sentence pursuant to § 924(e) on the basis of prior convictions that included a felony conviction for attempted burglary in the third degree under New York law.

B. Other Contentions

Andrello also argues that he entered into a cooperation agreement with the government in 1987 that gave him immunity from the present prosecution. This contention, raised only after trial and hence waived, see United States v. Pelletier, 898 F.2d 297, 301 (2d Cir.1990), is frivolous. The present charges arose out of conduct occurring in 1991; the cooperation agreement explicitly limited Andrello’s immunity to crimes he committed before the date of the agreement. The fact that between 1987 and 1991 Andrello committed minor crimes for which the government chose not to prosecute him did not modify the agreement.

CONCLUSION

We have considered all of Andrello’s arguments on this appeal and have found them to be without merit. The judgment of conviction is affirmed.