United States v. Dueno

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1868



                          UNITED STATES,



                            Appellee,



                                v.



                        RAMON DUENO, JR.,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. Nathaniel M. Gorton, U.S. District Judge]


Before

                                

                      Selya, Circuit Judge,

                 Cudahy,* Senior Circuit Judge,

                   and Stahl, Circuit Judge.


J. Martin Richey, by appointment of Court, for appellant.

     Christopher F. Bator, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee.


March 19, 1999


_____________________

*Of the Seventh Circuit, sitting by designation.



  STAHL, Circuit Judge.  On January 22, 1998, defendant-

appellant Ramon Dueno pleaded guilty to each count of a three-count

indictment charging him with being a felon in possession of a

firearm, see 18 U.S.C.  922(g); possessing an unregistered

firearm, see 26 U.S.C.  5861(d) & 5871; and transferring a

firearm without having met the requirements of 26 U.S.C.  5812,

see 26 U.S.C.  5861(e), 5871, and 5812.  The charges to which

Dueno pleaded arose from his March 14, 1997 sale of a sawed-off

shotgun to an undercover police officer.  At the time of the sale,

Dueno had a number of prior criminal convictions, including a 1991

Massachusetts conviction for assault and battery, and a 1994

Massachusetts conviction following a guilty plea to a charged

violation of a statute proscribing, "in the night time, break[ing]

and enter[ing] a building, ship, vessel, or vehicle, with intent to

commit a felony."  Mass. Gen. Laws Ann. ch. 266,  16.  

  At sentencing, both sides agreed that the 1991 assault

and battery conviction is a "crime of violence" within the meaning

of the career offender provisions of the federal sentencing

guidelines.  See U.S.S.G.  4B1.2.  But they disagreed as to

whether the 1994 breaking and entering conviction should be so

regarded.  The dispute mattered because the charges to which Dueno

pleaded in this case trigger the more draconian sentencing

provisions of the career offender guideline,  see United States v.

Fortes, 141 F.3d 1, 6-8 (1st Cir.) (possession of a sawed-off

shotgun is a "violent felony" within the meaning of the Armed

Career Criminal Act ("ACCA")), cert. denied, 118 S. Ct. 2387

(1998), and United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir.

1994) (authority interpreting the ACCA's "violent felony" provision

is frequently persuasive in interpreting the guidelines' "crime of

violence" provision, and vice versa), and because Dueno is a career

offender if, but only if, his 1994 breaking and entering conviction

is a crime of violence, see U.S.S.G.  4B1.1 (defining career

offender as one who, inter alia, has "two prior felony convictions

of either a crime of violence or a controlled substance offense")

(emphasis supplied).  Furthermore, Dueno is subject to an enhanced

sentence under the firearms guideline if found to be a career

offender.  See U.S.S.G.  2K2.1(a)(1) (prescribing an enhanced

sentence for a career offender who engages in a firearm offense

with a firearm described in 26 U.S.C.  5845(a), which describes

sawed-off shotguns).  For reasons explained below, the district

court concluded that the 1994 breaking and entering conviction was

a crime of violence and sentenced Dueno accordingly.

  The breaking and entering statute under which Dueno

pleaded guilty encompasses conduct that constitutes a crime of

violence (i.e., breaking into and entering a person's home, seeU.S.S.G.  4B1.2(a)(2) ("burglary of a dwelling" is a crime of

violence)), and conduct that almost certainly does not (i.e.,

breaking into and entering a vehicle, see infra at 6-7 (rejecting

the government's suggestion that we affirm by ruling that all of

the conduct described by the statute is violent); cf. United Statesv. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992) (assuming in dictathat breaking into and entering a vehicle is not a violent felony

under the ACCA)).  When faced with a prior conviction under such a

statute, a federal sentencing court may not hold a mini-trial on

the particular facts underlying the prior offense in an effort to

determine whether the defendant's conduct was violent.  See, e.g.,

United States v. Damon, 127 F.3d 139, 144 (1st Cir. 1997); United

States v. Meader, 118 F.3d 876, 882 (1st Cir. 1997), cert. denied,

118 S. Ct. 729 (1998); cf. United States v. Taylor, 495 U.S. 575,

599-602 (1990) (ACCA case).  But it may "peek beneath the coverlet"

of the language of the prior judgment to ascertain whether the

conviction was for a violent or a non-violent crime.  Winter, 22

F.3d at 18.  Ordinarily, this "peek" should be limited to an

examination of the indictment, complaint, and/or jury instructions

in the prior case.  See Damon, 127 F.3d at 144-45; cf. Taylor, 495

U.S. at 602; Harris, 964 F.2d at 1235-37.  But where, as apparently

was the case here, the charging papers simply used the boilerplate

statutory formulation and there are no jury instructions (because

of the guilty plea), we have found it 

     appropriate for the sentencing court to look

     to the conduct in respect to which the

     defendant was charged and pled guilty, notbecause the court may properly be interested

     (in this context) in the violent or non-

     violent nature of that particular conduct, but

     because that conduct may indicate that the

     defendant and the government both believed

     that the generically violent crime . . .

     rather than the generically non-violent crime

     . . . was at issue.



Harris, 964 F.2d at 1236.

     In this case, the government successfully argued at

sentencing that, notwithstanding the generic nature of the breaking

and entering charge set forth in the 1994 state court complaint, a

fair reading of the complaint as a whole establishes that Dueno

broke into and entered a building, and thus committed a crime of

violence.  The government based its argument on a second charge in

the same complaint, which apparently alleged that Dueno "willingly

and maliciously destroy[ed] or injur[ed] the personal property,

dwelling, house or building of [the victim], the value of the

property so destroyed or injured exceeding two hundred and fifty

dollars, in violation of [Mass. Gen. Laws Ann. ch. 266,  127]." 

The government now correctly concedes that its prior argument, and

the district court's acceptance of the argument, are not

sustainable; even if it could be inferred that both charges in the

complaint arose from essentially the same course of criminal

conduct, the complaint can as readily be taken to describe an

unlawful entry into a vehicle, followed by vandalism in the vehicle

causing more than $250 worth of damage, as it can be taken to

describe a building invasion.  We therefore cannot affirm the

determination that Dueno is a career offender under the reasoning

of the district court.

     The government argues that, despite this error, we can

affirm Dueno's sentence on one of two proffered alternative

grounds.  First, the government asks us to rule that breaking into

and entering any of the three non-buildings specified in Mass. Gen.

Laws Ann. ch. 266,  16   a ship, vessel, or vehicle   is a crime

of violence under U.S.S.G.  4B1.2(a)'s "otherwise" clause.  Seeid. (defining crime of violence as one that is punishable by

imprisonment for a term exceeding one year and (1) "has as an

element the use, attempted use, or threatened use of physical force

against the person of another"; (2) "is burglary of a dwelling,

arson, . . . extortion, [or] involves use of explosives"; or (3)

"otherwise involves conduct that presents a serious potential riskof physical injury to another.") (emphasis supplied).  Accepting

this argument, which the government first advanced in the last two

paragraphs of its appellate brief, would entail our becoming the

first federal court of appeals to rule that breaking into and

entering a vehicle is a crime of violence.  We are loath to issue

so significant a ruling where Dueno had insufficient opportunity to

develop a factual rebuttal (e.g., the introduction of relevant

crime statistics and/or expert testimony) in the lower court.

     Moreover, we think it potentially important that the case

on which the government entirely relies in pressing this argument,

see United States v. Patterson, 882 F.2d 595, 601-04 (1st Cir. 1989)

(breaking and entering a building, ship, or vessel, and entering

without breaking a dwelling house at night, are violent felonies

within the meaning of the ACCA), involves an interpretation of the

"violent felony" provisions of the ACCA, whereas this case involves

an interpretation of the career offender guidelines' "crime of

violence" provisions.  While there is far more overlap than

difference between the two, see Winter, 22 F.3d at 18 n.3, at least

one federal appeals court has read the guidelines and the

guidelines commentary differently than it does the ACCA with

respect to whether breaking and entering non-dwellings are crimes

of violence, see United States v. Smith, 10 F.3d 724, 731-33 (10thCir. 1993) (per curiam)(holding that the unlawful entry of a non-

dwelling building is not a crime of violence under the "otherwise"

clause).  We need not endorse the Smith panel's conclusion about

the unlawful entry of a non-dwelling building, see United States v.

Sawyer, 144 F.3d 191, 196 (1st Cir. 1998) (declining to follow Smith 

because of our previous holding that breaking into and entering a

commercial structure was a crime of violence under the guidelines,

citing United States v. Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992)), to

recognize that the reasoning underlying the conclusion deserves

careful consideration before we decide that breaking into and

entering a vehicle constitutes a crime of violence.  And we are not

inclined to engage in such consideration where, as here, there has

been no argument on the issue by the parties.  



     The second proffered basis for affirming Dueno's sentence

on alternative grounds presents a more difficult question. The

government points out that the Presentence Report in this case

contains an uncontradicted account of the events underlying Dueno's

1994 breaking and entering conviction, that the account (which

describes in detail a home invasion followed by serious vandalism)

would suggest that Dueno in fact pleaded guilty to breaking into

and entering a building, and that Harris authorizes us to look at

such an uncontradicted account in circumstances such as these.  See964 F.2d at 1236-37.  In the government's view, the presence of

this uncontradicted recitation allows for only one conclusion: 

that Dueno's breaking and entering conviction was for a crime of

violence.

     Dueno counters by suggesting that the "archaeological

dig" endorsed by Harris (which he says we have retreated from) runs

afoul of the Supreme Court's mandate that inquiries into the nature

of prior convictions follow a "formal categorical approach [that]

look[s] only to the statutory definitions of the prior offenses,

and not to the particular facts underlying those convictions." 

Taylor, 495 U.S. at 600.  He also contends that the "dig"

authorized in Harris is now precluded by application note 2 to

U.S.S.G.  4B1.2 (effective November 1, 1997), which he reads as a

codification of Taylor's categorical approach in the guidelines

context.  Finally, he asserts that the Presentence Report took its

account from a police report that was not even a part of the state

court file, and contends that such a report, even if cognizable

under Harris, is too tenuous a foundation to support our concluding

as a matter of law that Dueno pleaded guilty to breaking into and

entering a building.

     Dueno's first two arguments fail to persuade.  Our

opinion in Harris came two years after Taylor and demonstrated full

cognizance of the dictates of Taylor's categorical approach.  See964 F.2d at 1235-36.  Thus, neither Taylor nor the guidelines'

recent codification of the Taylor approach (we shall assume

arguendo that Dueno correctly interprets application note 2 to

U.S.S.G.  4B1.2) provides us with any basis for backtracking from

Harris.  See, e.g., Williams v. Ashland Eng'g Co., Inc., 45 F.3d

588, 592 (1st Cir. 1995) (newly-constituted panels in a multi-panel

circuit are bound by prior panel decisions not called into doubt by

intervening, controlling authority).  Moreover, we have carefully

read our decisions applying Harris, and we see nothing in them

which calls into question the validity of the inquiry Harrisauthorizes in circumstances such as these.

     But although the issue is close, we do agree with Dueno

that, on the present record, a reasonable jurist could conclude

that there is insufficiently reliable evidence to ground a finding

that Dueno pleaded guilty to breaking into and entering a building. 

In so concluding, we point out that the record in this case lacks

even a single document that was before the judge who accepted

Dueno's plea in 1994 (not even a copy of the complaint).  Nor do we

have a copy of the police report in question (all we have is the

Presentence Report, which apparently took its account from the

police report); an explanation where the police report came from;

or any account of what took place at Dueno's plea hearing.  We also

are mindful that the government bears the burden of proving the

applicability of an upward adjustment under the guidelines, United

States v. St. Cyr, 977 F.2d 698, 702 (1st Cir. 1992), and that a

substantial prison term for Dueno hangs in the balance.  

     Dueno's sentence for this crime can reflect only those

prior crimes of which he has been convicted   either by a trier of

fact or by his own admission.  As matters now stand, the evidence

is insufficient for us to conclude, as a matter of law, that

Dueno's 1994 guilty plea constituted an admission to the building

invasion described by the police report.  We therefore vacate the

sentence and remand for resentencing.  On remand, we fully expect

that the government will give this matter significantly more

attention than it has received to this point.

     Vacated and remanded.