Patrone v. United States

• Court: Court of Appeals for the First Circuit
• Decided: August 20, 1993
• Docket: 92-2382
• Status: Published

Opinion

USCA1 Opinion

August 20, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-2382 

                                 KENNETH J. PATRONE,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Torruella and Cyr, Circuit Judges.
                                             ______________

                                 ____________________

            Kenneth Patrone on brief pro se.
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            Lincoln C. Almond, United States  Attorney, Margaret E. Curran and
            _________________                           __________________
        Michael E.  Davitt, Assistant  United States  Attorneys, on brief  for
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        appellee.

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Per Curiam.   Petitioner-appellant Kenneth  Patrone
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            was convicted of being a felon in possession of a firearm, 18

            U.S.C.    922(g), and of possessing  an unregistered firearm,

            26 U.S.C.     5241, 5861(d) and 5871.   Sentenced as an armed

            career criminal  under 18  U.S.C.   924(e),  Patrone received

            the mandatory minimum enhanced sentence on the first count, a

            fifteen-year  term  of  imprisonment without  parole,  and  a

            concurrent ten-year term on count two.   Patrone appealed and

            we affirmed.   United States  v. Patrone, 948  F.2d 813  (1st
                           _____________     _______

            Cir. 1991), cert. denied, 112 S. Ct. 2953 (1992).1
                        _____ ______

                      Patrone then moved to  vacate, set aside or correct

            his  sentence.    28  U.S.C.      2255.    Over  petitioner's

            objection, the district court  approved the recommendation of

            a magistrate-judge that the motion  be denied and this appeal

            ensued.  For the reasons that follow, we affirm.

                      Petitioner   essentially   raises  two   issues  on

            appeal:2     (1)  that  his   counsel  rendered   ineffective

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            1.  As  the  underlying relevant  facts  are set  out  in our
            opinion on direct appeal, we do not repeat them.

            2.  Much  of Patrone's argument on  appeal is based on issues
            and  theories  not presented  to  the  district court  (e.g.,
            counsel's    failure    to   conduct    reasonable   pretrial
            investigation;  double jeopardy).  Those issues and arguments
            may not be raised for the  first time here.  United States v.
                                                         _____________
            Dietz, 950 F.2d  50, 55 (1st Cir. 1991).   Nor may petitioner
            _____
            reassert arguments,  rejected  on direct  appeal, that  three
            prior  offenses  do not  qualify  for  consideration under   
            924(e) because they were constitutionally unsound.   Patrone,
                                                                 _______
            948  F.2d at 816-17.   Nothing presented now  persuades us to
            revisit that issue.   See United States v. Michaud,  901 F.2d
                                  ___ _____________    _______
            5, 6 (1st Cir. 1990).

assistance at the sentencing proceeding and (2) that at least

            one of three prior  convictions was not a violent  felony for

            sentence enhancement purposes  under 18 U.S.C.    924(e).  We

            address the latter contention first.

                      Petitioner  challenges  the  classification of  his

            1978 breaking and entering  conviction under Rhode Island law

            as  a violent  crime because  it involved  the burglary  of a

            building  under construction and  not a  dwelling.   As such,

            petitioner argues,  the burglary offense was  not a "generic"

            burglary  as defined in Taylor v. United States, 495 U.S. 575
                                    ______    _____________

            (1990),  or countable  as  a predicate  offense for  sentence

            enhancement purposes.   This,  however, is incorrect  for two

            reasons.  First, the Taylor court defined generic burglary as
                                 ______

            the "unlawful or unprivileged entry  into, or remaining in, a

            building or structure, with  intent to commit a crime."   Id.
                                                                      ___

            at 599.  

                      [A]n  offense constitutes  "burglary" for
                      purposes   of   a       924(e)   sentence
                      enhancement   if  either   its  statutory
                      definition  substantially corresponds  to
                      "generic" burglary, or the charging paper
                      and  jury instructions  actually required
                      the  jury to  find  all  the elements  of
                      generic  burglary in order to convict the
                      defendant.

            Id.  at  602.    Patrone  concedes  the  1978  conviction for
            ___

            breaking and  entering.  Based on  the undisputed description
                                
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            of  this   offense  in   paragraph  31  of   the  presentence
            3.  Although Patrone claims he never "signed" the presentence
            report, he does not claim that he did not read it and has not
            investigation report3 ("breaking  and entering a  building at
            pointed  out  any inaccuracies  in  its  descriptions of  his
            criminal conduct.

                                         -3-

night  with  the  intent  to commit  larceny"),  that  charge

            plainly is  a  generic burglary  under  Taylor.   See  United
                                                    ______    ___  ______

            States  v.  Wilkinson, 926  F.2d  22,  29 (1st  Cir.),  cert.
            ______      _________                                   _____

            denied, 111 S.  Ct. 2813  (1991); see also  United States  v.
            ______                            ___ ____  _____________

            Bregnard,  951 F.2d  457,  460 (1st  Cir. 1991)  (uncontested
            ________

            presentence report description of  prior convictions may form

            sufficient basis  for determining whether prior  offense is a

            generically violent crime under Taylor), cert. denied, 112 S.
                                            ______   _____ ______

            Ct.  2939 (1992).  Even if a building "under construction" is

            somehow not a "building  or structure" under Taylor's generic
                                                         ________

            burglary  definition,  the  1978  offense  nevertheless falls

            within     924(e)  because  it  clearly  "otherwise  involves

            conduct that  presents a  serious potential risk  of physical

            injury to another."    924(e)(2)(B)(ii).

                      Second, our decision in United States v. Fiore, 983
                                              _____________    _____

            F.2d 1 (1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993),
                                    _____ ______

            makes  plain that  the 1978  burglary conviction  under Rhode

            Island  law is properly countable as a predicate offense.  In

            Fiore,  this  court decided  that  a  conviction under  Rhode
            _____

            Island law  for conspiracy  to break and  enter a  commercial

            premise  qualifies as  a  predicate offense  for purposes  of

            implementing the career  offender provisions  of the  federal

            sentencing  guidelines.   Id. at  3-4.   Applying Taylor  and
                                      ___                     ______

            U.S.S.G.    4B1.2(1), we  concluded that, under  Rhode Island

            law, the  underlying crime  at issue, a  commercial burglary,

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was  a  crime  of  violence for  career  offender  sentencing

            purposes, and  noted that "burglary of  a commercial building

            poses a potential for episodic  violence so substantial as to

            bring  such  burglaries within  the  violent felony/crime  of

            violence ambit."  Id. at 4.
                              ___

                      Patrone   derives   no  support   from  definitions

            contained  in  the  career offender  guidelines,  U.S.S.G.   

            4B1.2(1)(ii) (a "crime  of violence  . . .  is burglary of  a

            dwelling . . ."). Although the "violent felony" language of  

            924(e)(2)(B)  is  at  issue  here,  and  not  the  "crime  of

            violence" guidelines  definition,     4B1.2(1),  in  play  in

            Fiore,  the latter takes its force  from the former, id. at 3
            _____                                                ___

            n.2, and both include  the additional defining words "conduct

            that  presents a  serious potential  risk of  physical harm."

            "One  can  easily  imagine  a   significant  likelihood  that

            physical  harm will  often  accompany the  very conduct  that

            normally constitutes . . .  burglary . . . ."   United States
                                                            _____________

            v. Doe, 960 F.2d 221, 224 (1st Cir. 1992).
               ___

                      Thus,  under the  Taylor methodology  which focuses
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            upon the inherent risk of violence posed by the prior offense

            without   regarding  the   actual  facts   and  circumstances

            underlying  the  conviction,  id.,  there  is  no  meaningful
                                          ___

            distinction for    924(e) purposes between the  burglary of a

            dwelling and a non-residential building or structure, whether

            under  construction or  not, whether  occupied or  not.   See
                                                                      ___

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Taylor, 495  U.S. at 597 ("Congress  presumably realized that
            ______

            the  word `burglary'  is commonly  understood to  include not

            only aggravated burglary, but also run-of-the-mill burglaries

            involving an unarmed offender, an unoccupied building, and no

            use  or threat  of  force.").   Consequently, Patrone's  1978

            breaking and entering conviction was a generic burglary under

            Taylor.4
            ______

                      Accordingly,  regarding the  ineffectiveness claims

            that counsel's  conduct was deficient because  of his failure

            to  contest  at sentencing  the violent  crime status  of the

            three  prior convictions  at issue,  it  cannot be  said that

            there  was  any  resulting  prejudice.   In  short,  even  if

            counsel's  performance was  subpar,  a question  we need  not

            decide, Patrone  has failed to  show that "but  for counsel's

            errors, the  result below would  have been  different."   See
                                                                      ___

            Murchu  v. United States, 926  F.2d 50, 58  (1st Cir.), cert.
            ______     _____________                                _____

            denied, 112 S. Ct. 99 (1991).
            ______

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            4.  Similarly, Patrone's  argument that  a 1984  breaking and
            entering in  the daytime involved no  violence is unavailing.
            "Burglary  is generally a  violent crime  whether or  not the
            particular burglary  at issue threatens violence."   Doe, 960
            __________                                           ___
            F.2d at 224 (internal quotation marks omitted).  Patrone does
            not contest that the third offense counted for enhancement, a
            1978  conviction for  assault  with a  dangerous weapon,  was
            properly treated  as a violent  felony.   Thus, the  district
            court correctly treated these three convictions as  predicate
            offenses under   924(e).

                                         -6-

As to petitioner's remaining contentions, we affirm

            the  judgment of the district court for the reasons stated in

            the report of the magistrate-judge.

                 Affirmed.
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