Georgacarakos v. United States

Opinion

USCA1 Opinion

September 28, 1993    [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1326 

                               PETER N. GEORGACARAKOS,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Peter N. Georgacarakos on brief pro se.
            ______________________
            Jay  P. McCloskey, United  States Attorney, and Michael M. DuBose,
            _________________                               _________________
        Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per  Curiam.    Appellant Peter  Georgacarakos  has
                      ___________

            appealed from the  district court's denial  of his motion  to

            correct sentence under 28 U.S.C.    2255.  Georgacarakos  was

            found  guilty  of  possessing  and  distributing  cocaine  in

            violation  of  21  U.S.C.     841.    Because  Georgacarakos'

            criminal history included prior  convictions for a controlled

            substance  offense  and  for  burglary  of  a  dwelling,  the

            district  court  ruled  that  Georgacarakos   was  a  "career

            offender"  under section  4B1.1 of the sentencing guidelines.

            The court  therefore assigned Georgacarakos  an offense level

            of  32 (including  a  two-level reduction  for acceptance  of

            responsibility) and  sentenced him to a  term of imprisonment

            of 260  months plus  a six-year  term  of supervised  release

            following incarceration.

                      To  be sentenced  as  a career  offender under  the

            sentencing  guidelines, a defendant  must be presently guilty

            of  "a  felony that  is  either  a  crime  of violence  or  a

            controlled substance  offense," and  must have had  "at least

            two prior felony convictions of either a crime of violence or

            a  controlled substance  offense."   U.S.S.G.    4B1.1.   The

            guidelines define a "crime of violence" for these purposes to

            include "any offense under federal or state law punishable by

            imprisonment  for a term  exceeding one  year that  . .  . is

            burglary of a dwelling . . . ."  Id. at   4B1.2(1).
                                             ___

Georgacarakos'   sole  argument   in  his      2255

            petition, and on appeal, is that this aspect of section 4B1's

            definition  of "crime  of  violence" is  impermissible.   His

            reasoning,  in   summary,  runs  as  follows.     Before  the

            sentencing guidelines were promulgated, Congress  already had

            defined  "crime  of  violence"  in  28  U.S.C.    2901(c)  as

            including  "burglary  or  housebreaking  in  the  nighttime."

            Burglary in the daytime, by implication, was excluded.  Under

               2901(g), a  narcotics  offender charged  with  a crime  of

            violence could not be  eligible for the civil  commitment and

            rehabilitation  programs  governed by  that  chapter.   Since

            Congress,  in 28  U.S.C.    994(a), later  directed that  the

            Sentencing   Commission   promulgate  sentencing   guidelines

            "consistent with  all pertinent provisions of  this title and

            title 18,  United States Code,"  the definition of  "crime of

            violence"  in   4B1 was  impermissible to the  extent that it

            was inconsistent  with the  earlier definition in    2901(c).

            Further, according  to Georgacarakos,  it would be  unfair to

            subject defendants to such  inconsistency in the treatment of

            burglary of a dwelling in the daytime. 

                      We reject  Georgacarakos' argument, and  affirm the

            decision of the district court, for the reasons stated in the

            district court's  February 26,  1993 order and  memorandum of

            opinion.  Section 2901  expressly states that the definitions

            contained therein  are  for  the terms  "[a]s  used  in  this

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chapter," a chapter which is limited  to civil commitment and

            rehabilitation   of  narcotics   addicts.     That  section's

            definition of "crime of violence," therefore, does not govern

            any use of the same term outside that chapter.  

                      Consequently,   the   inconsistency   between   the

            definitions of "crime of violence" in   4B1 of the sentencing

            guidelines and in   2901(c) is perfectly permissible and does

            not  run afoul of the requirement of  28 U.S.C.   994(a) that

            the  sentencing guidelines be  "consistent with all pertinent

            provisions" of Titles 18  and 28.  Section  2901's definition

            of a "crime of violence" "[a]s  used in this chapter" did not

            preclude   Congress  from   choosing  to   define   the  term

            differently  in   a  different   context.    The      2901(c)

            definition,  therefore, was  not a  "pertinent provision"  of

            Title  28 with  which  the sentencing  guidelines  had to  be

            consistent.  

                      Indeed, as Georgacarakos himself concedes, Congress

            permissibly  defined  "violent felony"  in  the Armed  Career

            Criminal Act ["ACCA"], 18 U.S.C.   924(e)(2)(B), as including

            simply "burglary," also a definition  substantially different

            from  the definition  of "crime  of violence"  in    2901(c).

            According to Georgacarakos, "Had Congress [in   4B1] intended

            any  other meaning than that  given crime of  violence in [ ]

            2901, it  would have created a  new term, just  as it created

            the term 'violent  felony' when it  enacted the Armed  Career

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Criminal  Act  .  .  .  .    Congress  intended  a  different

            definition  for that  act so  it created  a  term to  fit its

            intentions.  This is what Congress would have done [in   4B1]

            had it intended  any other definition  for crime of  violence

            than  the  one it  has  had  for  two  decades."    Thus,  by

            Georgacarakos' reasoning, if   4B1, like the ACCA, had simply

            used  the   term  "violent  felony"  instead   of  "crime  of

            violence,"   but   with   precisely   the   same  substantive

            definition, there would be no problem.  

                      We  will  not,  in  these  circumstances  at least,

            attach so much  importance to the labels placed  on statutory

            concepts.   The mere fact that    4B1 uses the  same words --

            "crime of violence" -- as  in   2901(c) does not  require any

            different result than if   4B1 employed some different label.

            Indeed, as we  noted in United  States v. Fiore,  983 F.2d  1
                                    ______________    _____

            (1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993), "[t]he
                             ____________

            definition  of  'violent  felony'  in  the  ACCA's   sentence

            enhancement provision is the  source of the language used  in

            defining a 'crime of  violence' under U.S.S.G.    4B1.2 (Nov.

            1991).  Decisions interpreting the ACCA constitute persuasive

            authority  when a court is called upon to construe the career

            offender guideline."  Id. at 3 n.2 (citations omitted).  
                                  ___

                      The  real crux of  Georgacarakos' argument  is that

            the choice of the label "crime of violence" must nevertheless

            be determinative because that label must logically carry with

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it   2901(c)'s pre-existing  definition of that term.   As we

            have already  ruled, this argument fails  because   2901(c)'s

            definition is  expressly limited  to the  term's use  in that

            chapter.  

                      Nor do we see any adverse practical consequences of

            the presence  of different definitions  of the  same term  in

            these  two  contexts.   As  the district  court  pointed out,

            commission  of a "crime of violence" under   2901 precludes a

            narcotics  offender  from  participation   in  rehabilitation

            programs  in lieu  of imprisonment,  whereas commission  of a

            "crime of violence" under    4B1 may lead to  career offender

            status  under the  sentencing  guidelines,  resulting  in  an

            enhanced   sentence.      These  are   two   very   different

            determinations  that would  not foreseeably  overlap at  all.

            For  that  reason, the  differing  definitions  should create

            neither   unfairness   for    offenders   nor    interpretive

            difficulties  for  courts.    There is  no  genuine  conflict

            between them.

                      The  district  court's  denial   of  Georgacarakos'

            motion under 28 U.S.C.   2255 is affirmed.
                                             ________

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