United States v. De Jesus

• Court: Court of Appeals for the First Circuit
• Decided: February 11, 1993
• Docket: 92-1549
• Status: Published

Opinion

USCA1 Opinion

February 11, 1993 UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 92-1549

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   CARLOS DE JESUS,

                                Defendant, Appellant.

                              _________________________

                                     ERRATA SHEET
                                     ERRATA SHEET

               The  opinion of  the Court  issued on  January 27,  1993, is
          corrected as follows:

               On page 5, line 4   "See Fiore, ___ F.2d at ___ [slip op. at
                                    ___ _____
          5]" should be corrected to read "See United  States v. Fiore, ___
                                           ___ ______________    _____
          F.2d ___, ___ (1st Cir. 1992) [No. 92-1601, slip op. at 5]."

January 27, 1993

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 92-1549

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   CARLOS DE JESUS,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]
                                          __________________________

                              __________________________

                                        Before

                             Torruella, Selya and Stahl,

                                   Circuit Judges.
                                   ______________

                              __________________________

               Annemarie Hassett, Federal Defender Office, for appellant.
               _________________
               Frank A. Libby, Jr.,  Assistant United States Attorney, with
               ___________________
          whom A.  John Pappalardo, United  States Attorney, was  on brief,
               ___________________
          for the United States.

                              __________________________

__________________________ 

SELYA,  Circuit Judge.    In this  appeal, we  consider
                    SELYA,  Circuit Judge.
                            _____________

          whether larceny from the person is a crime of violence within the

          meaning of the federal sentencing guidelines.  Because  we answer

          that  question  affirmatively, defendant's  prior  conviction for

          that  crime qualifies as  a predicate offense,  requiring that we

          affirm his enhanced sentence as a career offender.

          I.  BACKGROUND
          I.  BACKGROUND

                    The  career offender guideline  elevates the sentencing

          range of  a defendant who, being at  least eighteen years old and

          having previously  been convicted  of  "at least  2 prior  felony

          convictions  of  either  a  crime of  violence  or  a  controlled

          substance offense," is found  guilty of a federal felony  that is

          itself  either  a crime  of  violence or  a  controlled substance

          offense.   U.S.S.G.    4B1.1.1  On January  21, 1992,  defendant-

          appellant  Carlos  De  Jesus  pled guilty  to  federal  narcotics

          offenses  in  violation of  21 U.S.C.     841(a)(1),  846, 860(a)

          (1988)   and  18  U.S.C.      2  (1988).     In  the  presentence

          investigation   report  (PSI   Report),  the   probation  officer

          recommended that appellant be sentenced as a career offender.  In

          support  of the  predicate  offense requirement,  the PSI  Report

          limned five prior offenses, viz., a conviction for  possession of
                                      ____
                              
          ____________________

               1Unless   otherwise  indicated,   all   references  to   the
          sentencing guidelines are to  the November 1991 version.   See 18
                                                                     ___
          U.S.C.    3553(a)(4)-(5)(1988) (instructing a sentencing court to
          consider the guidelines and  policy statements "in effect on  the
          date  the defendant  is sentenced");  see also  United States  v.
                                                ___ ____  _____________
          Harotunian, 920  F.2d 1040,  1041-42 (1st Cir.  1990) (explaining
          __________
          that, save for any  ex post facto complications, "a  defendant is
                              __ ____ _____
          to  be punished according to the guidelines in effect at the time
          of sentencing").

                                          3

heroin with  intent to distribute, two  diversionary dispositions

          for  assault and  battery  that were  placed  on file  without  a

          finding  of guilt,  a  diversionary disposition  for assault  and

          battery  that was placed on file after  a finding of guilt, and a

          conviction for larceny from the person.2 

                    At sentencing,  the  district  court  adopted  the  PSI

          Report's recommendation, branded appellant a career offender, and

          set  the guideline  sentencing  range (GSR)  at 210-262  months.3

          The  court then  granted a  government motion  filed pursuant  to

          U.S.S.G.   5K1.1 and departed downward in tribute to  appellant's

          substantial  assistance, sentencing  him  to a  60-month term  of

          incarceration.

                    Appellant objects  to his  classification  as a  career

          offender.   He  acknowledges that  his conviction  for possessing

          heroin  with  intent  to  distribute  is  a  countable  predicate

          offense, but  protests that there is  no other.  Thus,  he claims

          that  the  government  failed  to  show  the  requisite  pair  of

          predicate offenses.

          II.  ANALYSIS
          II.  ANALYSIS

                    Although the lower court determined that De Jesus was a

          career offender, it  made no express finding  as to which  of his

          past escapades constituted predicate  offenses within the meaning

____________________

               2The first three dispositions occurred on November 24, 1987;
          the last two  dispositions occurred on April 10, 1990.   All five
          cases were prosecuted in a Massachusetts state court.

               3Both sides  agree that, apart from  career offender status,
          the GSR would have been 46-57 months.

                                          4

of U.S.S.G.   4B1.1.   Because appellant admits the  incidence of

          one  predicate offense (for peddling heroin), our sole task is to

          determine  whether  the record  supports  the  sentencing court's

          implicit finding  of a  second predicate  offense.4  We  approach

          this task with an awareness that, so long as any one of the other

          dispositions  catalogued in  the PSI  Report qualifies  under the

          career offender rubric, De Jesus's appeal founders.

                                          A
                                          A

                    Because we  believe it is relatively  clearcut, we turn

          first to the issue of whether appellant's conviction for  larceny

          from  the  person constitutes  a  predicate  offense.   Appellant

          claims that this conviction cannot trigger career offender status

          because the crime charged,  a violation of Mass. Gen. L. ch. 266,

             25(b) (1990), does not  constitute a crime  of violence within

          the meaning of the sentencing guidelines.  We do not agree.

                    The  Sentencing  Commission  has  defined  a  crime  of

          violence as a federal or state offense punishable by imprisonment

          for more than one year that:

                    (i)   has  as an  element the  use, attempted
                    use,  or  threatened  use of  physical  force
                    against the  person of  another,  or (ii)  is
                    burglary  of a dwelling, arson, or extortion,
                              
          ____________________

               4Although  the lack  of express  findings is  a complicating
          factor, it does not  frustrate appellate review.  After  all, the
          question of whether a crime qualifies as a predicate offense is a
          question of  law and, hence, our  review is plenary.   See United
                                                                 ___ ______
          States v. Fiore,      F.2d    ,     (1st Cir. 1992) [No. 92-1601,
          ______    _____  ____      ___  ___
          slip  op. at 3].   Therefore, this  appeal can proceed.   We take
          this opportunity, however, to emphasize that  reasonably complete
          findings  at  the trial  court  level  invariably facilitate  the
          appellate  task and to urge district judges to make such findings
          wherever possible.

                                          5

involves  use  of  explosives,  or  otherwise
                    involves  conduct  that  presents  a  serious
                    potential risk of physical injury to another.

          U.S.S.G.   4B1.2(1).  A formal categorical approach   an approach

          that looks to  a prior offense's statutory provenance rather than

          to its  actual facts    is the  method of choice  for determining

          whether a  felony constitutes a targeted crime within the meaning

          of this definition.  See  United States v. Fiore,      F.2d     ,
                               ___  _____________    _____  ____      ____

          ___ (1st Cir.  1992) [No. 92-1601, slip op. at  5]; United States
                                                              _____________

          v. Bell, 966  F.2d 703, 704  (1st Cir. 1992);  accord U.S.S.G.   
             ____                                        ______

          4B1.2, comment (n.2) (directing  judicial inquiry to "the conduct

          set forth (i.e.,  expressly charged)  in the count  of which  the
                     ____

          defendant was convicted"); cf. Taylor v. United States,  495 U.S.
                                     ___ ______    _____________

          575,  600  (1990)  (adopting  categorical  approach  for  similar

          definitional  inquiries  under  the Armed  Career  Criminal Act);

          United  States v.  Doe,  960 F.2d  221,  223-24 (1st  Cir.  1992)
          ______________     ___

          (same).   Thus,  rather than  examining the  actual circumstances

          underlying the earlier conviction,  we examine only the statutory

          formulation of the crime charged  (here, larceny from the person)

          to see if that crime  is a crime of violence for purposes  of the

          career offender guideline.5

____________________

               5To  be sure,  there  are certain  limited circumstances  in
          which  a court  may appropriately  peruse documents  such as  the
          charging  papers or  jury instructions  in order  to flesh  out a
          predicate offense inquiry.   See, e.g., Taylor, 495 U.S.  at 602.
                                       ___  ____  ______
          In  this  instance, however,  we see  no  reason either  to reach
          beyond the statutory parameter or to consider the extent to which
          our opinion in United States  v. Harris, 964 F.2d 1234 (1st  Cir.
                         _____________     ______
          1992),  does  or  does not  permit  resort  to  the PSI  Report's
          depiction  of the  underlying events  and/or the  defendant's own
          version of the facts as outlined in the Report's addendum.

                                          6

B
                                          B

                    The state statute in  question authorizes a prison term

          of up  to five  years for  one who "steal[s]  from the  person of

          another."   Mass. Gen. L.  ch. 266,    25(b).  Massachusetts  law

          makes clear that, in order to satisfy "the essential elements" of

          the  statutory definition,  the  taking  need  not  be  from  the

          victim's person  so long  as  it is  "from  the presence  of  the

          victim,"   that  is,   from   "within  his   area  of   control."

          Commonwealth v.  Subilosky, 352 Mass.  153, 166, 224  N.E.2d 197,
          ____________     _________

          206  (1967)  (internal  quotation  marks and  citation  omitted).

          Using  this  rendition  of   Massachusetts  law  as  a  doctrinal

          springboard, appellant argues that his earlier conviction was not

          for  a "crime of violence" as that  term is defined in the career

          offender guideline.

                    Appellant's  argument  has  some superficial  allure.  

          Because actual  or threatened use of  force is not an  element of

          the  offense in Massachusetts,  larceny from the  person does not

          fit  within subsection (i) of  U.S.S.G.   4B1.2(1).   The puzzle,

          however,  is not  so  easily solved;  even  if force  (actual  or

          threatened) is  not an element of the  offense, a crime may still

          be a crime  of violence if it falls within the "otherwise" clause

          of  subsection  (ii), that  is,  if  it  "involves  conduct  that

          presents a serious potential risk of physical injury to another."

          U.S.S.G.   4B1.2(1).

                    The Sentencing Commission's commentary recites a litany

          of  illustrative offenses,  including  some that  typically  fall

7

within  the  reach of  the "otherwise"  clause.   See  U.S.S.G.  
                                                            ___

          4B1.2,  comment (n.2).  Although  larceny from the  person is not

          listed, we do not  think the lack of enumeration  is dispositive.

          Expanding  on  the  "otherwise"  clause,  the  application  notes

          explain  that  "[o]ther offenses  are included  where  . .  . the

          conduct set forth (i.e., expressly charged) in the count of which
                             ____

          the  defendant was  convicted . .  ., by its  nature, presented a

          serious potential  risk  of physical  injury  to another."    Id.
                                                                        ___

          Against  this backdrop, the lens of judicial inquiry narrows to a

          determination of whether larceny from the person is a category of

          crime  that,  by  its  nature, presents  a  substantial  risk  of

          personal injury  even though its statutorily  defined elements do

          not include the use or threat of force.

                    Appellant  contends that because  the crime potentially

          embraces  a  broad  range  of  non-violent  conduct,  see,  e.g.,
                                                                ___   ____

          Commonwealth  v. Dimond,  57  Mass. 235,  236-38 (1849)  (holding
          ____________     ______

          that, in certain circumstances, fraud can be prosecuted under the

          statute), larceny from  the person cannot be  shoehorned into the

          contours of the "otherwise" clause.  We think that Taylor and its
                                                             ______

          progeny undermine this contention.   The Taylor Court, invoking a
                                                   ______

          categorical approach, held that  any state offense containing the

          basic elements  of burglary, "regardless of  its exact definition

          or  label,"  Taylor,  495  U.S. at  599,  constituted  a "violent
                       ______

          felony" for  purposes of  sentencing enhancement under  the Armed

8

Career  Criminal Act  (ACCA),  as  amended,  18 U.S.C.     924(e)

          (1988).6  Hence, not  only "especially dangerous" burglaries, but

          also "ordinary burglaries,"  that is, "run-of-the-mill burglaries

          involving an unarmed offender, an unoccupied building, and no use

          or threat  of force"  present "a sufficiently  'serious potential

          risk' to count towards enhancement."  Id. at 597.
                                                ___

                    The linchpin of the taxonomy, then,  is not the breadth

          of the statutory sweep but the degree of risk, expressed in terms

          of  the probability of physical harm presented by the mine-run of

          conduct that falls within the heartland of the statute.  Applying

          this test in  the post-Taylor era, we  have repeatedly classified
                                 ______

          as  crimes of  violence  offenses in  which actual  or threatened

          force  against another  person is  likely, although  by  no means

          certain.  In a case hitting close to the mark, we determined that

          a conviction  for larceny  from the  person  under Tennessee  law

          constituted  a crime of violence within the meaning of the career

          offender guideline.  See United States v. McVicar, 907  F.2d 1, 2
                               ___ _____________    _______

          (1st Cir. 1990).   We recognized that, although larceny  from the

          person  "typically involves no threat of violence," id. at 3, the
                                                              ___

____________________

               6The definition  of "violent felony" in  the ACCA's sentence
          enhancement provision is virtually identical to the definition of
          "crime of violence" under  U.S.S.G.   4B1.2.  Indeed,  the former
          definition  is  widely  regarded  as the  source  of  the  latter
          definition.  See Fiore,     F.2d at     n.2 [slip op. at 5  n.2];
                       ___ _____  ___         ___
          United  States v.  Preston, 910 F.2d  81, 86 n.6  (3d Cir. 1990),
          ______________     _______
          cert. denied, 111  S. Ct.  1002 (1991); U.S.S.G.  App. C,  amend.
          ____  ______
          268, at  C.139 (Nov. 1989).   For that reason, we  have routinely
          held  that decisions interpreting  the ACCA constitute persuasive
          authority  upon  which a  court  construing  the career  offender
          guideline may rely.   See Fiore,     F.2d at     n.2 [slip op. at
                                ___ _____  ___         ___
          5 n.2]; Bell, 966 F.2d at 705.
                  ____

                                          9

risk of ensuing struggle is omnipresent.  Thus, we concluded that

          "[t]aking  property directly  from  a  person  .  .  .  run[s]  a

          'substantial'  or  'serious'   risk  that  'physical  force'   or

          'physical injury'  will  follow."   Id.  at  2.   Of  course,  as
                                              ___

          appellant points out, the Tennessee  statute at issue in  McVicar
                                                                    _______

          differs  from  the  Massachusetts  statute  in  that  the  former

          requires theft directly from the victim's person.  See 1975 Tenn.
                                                             ___

          Pub. Acts  367,  368.   But,  because the  Massachusetts  statute

          requires theft  from either the  victim's person or  the victim's

          immediate  vicinity,   see  Subilosky,   352  Mass.  at   166,  a
                                 ___  _________

          sufficiently serious  potential  for confrontation  and  physical

          injury  invariably exists.  Hence, we  believe that the proffered

          distinction  between  the Tennessee  and  Massachusetts statutes,

          though  it exists,  does not  meaningfully differentiate  the two

          cases.

                    Our other decisions  point in the  same direction.   In

          Fiore, we  held  that breaking  and  entering into  a  commercial
          _____

          structure comprises a crime of violence under the career offender

          guideline.    See  Fiore,  ___  F.2d  at  ___  [slip  op.  at  9]
                        ___  _____

          (concluding  that breaking  into a  commercial building  "poses a

          potential  for episodic violence so substantial  as to bring such

          burglaries within the . . . crime of violence ambit").  In United
                                                                     ______

          States  v. Patterson, 882 F.2d 595 (1st Cir. 1989), cert. denied,
          ______     _________                                _____ ______

          493 U.S. 1027 (1990), an ACCA case, we held that "an unauthorized

          entry  of the premises of another" portended a sufficient risk of

          harm to  energize the career criminal  statute.  Id. at  604.  If
                                                           ___

10

breaking and entering an abandoned warehouse poses a sufficiently

          "serious  potential risk  of physical  injury" to  trigger career

          offender status, we fail to see how larceny  from the person that

          necessarily involves  theft  from within  the victim's  immediate

          presence  can be thought to  pose a significantly  lesser risk of

          violent eruption.

                    To say more would be to paint the lily.   We rule that,

          as the crime of  larceny from the person under  Massachusetts law

          bears  an inherent  risk of  violent outbreak,  it constitutes  a

          crime  of  violence within  the  meaning of  the  career offender

          provisions   of  the  federal   sentencing  guidelines.     Thus,

          appellant's April 10, 1990 conviction on a charge of larceny from

          the person could properly be counted as a predicate offense.

          III.  CONCLUSION
          III.  CONCLUSION

                    We   need  go   no  further.7     Appellant's   larceny

          conviction,  taken in  conjunction  with  the earlier  controlled

          substance offense, comprise  the two predicate offenses  required

          for career offender status.   It follows inexorably, as  night is

          said  to follow  day,  that appellant  received  his due  in  the

          district court.

Affirmed.
          Affirmed.
          ________

____________________

               7Inasmuch as  U.S.S.G.    4B1.1 requires only  two predicate
          offenses as a  condition precedent to its  operation, any attempt
          to evaluate the remaining predicate offense candidates enumerated
          in the PSI Report would be supererogatory.  Therefore, we take no
          view  as  to the  sufficiency  of  those  dispositions under  the
          version of the career offender guideline applicable to this case.

                                          11