USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-2212
UNITED STATES,
Appellee,
v.
NELSON FIELD,
Defendant-Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and McAuliffe*, District Judge.
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Gordon R. Blakeney, Jr., for appellant.
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Jean B. Weld, Assistant Attorney General, with whom Paul M.
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Gagnon, United States Attorney, was on brief for appellee.
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November 4, 1994
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*Of the District of New Hampshire, sitting by designation.
BOWNES, Senior Circuit Judge. There are two issues
BOWNES, Senior Circuit Judge.
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raised in this appeal: whether the district court erred in
accepting defendant's guilty plea; and whether the district
court erred in sentencing defendant.
Defendant-appellant was charged in count two of a
two-count indictment with being a felon in possession of a
firearm on February 28, 1993, in violation of 18 U.S.C.
922(g)(1).1 Defendant signed a written plea agreement on
July 16, 1993, and entered a plea of guilty on July 28, 1993.
The Acceptance of the Guilty Plea
The Acceptance of the Guilty Plea
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Defendant challenges the district court's
acceptance of his guilty plea on two grounds: that the plea
was not truly voluntary because the district court did not
establish on the record that he understood the charges
against him and the relation of the law to the facts; and,
that the district court accepted the plea without
establishing an adequate record showing a factual basis for
the plea. For the reasons that follow, we reject defendant's
attacks on the acceptance of his guilty plea.
We think it advisable to start our analysis with
the facts surrounding the arrest of defendant. On February
28, 1993, the police in Jaffrey, New Hampshire, received a
911 call alerting them to the armed robbery of a convenience
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1. Dennis Ellis, a co-defendant, was charged in count one of
the indictment with illegal possession of a sawed-off shotgun
in violation of 26 U.S.C. 5861(c).
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store. The police responded promptly. When they arrived at
the scene, they saw a parked vehicle with its engine running.
They also noticed a shotgun on the seat. Because it was
apparent that the barrel of the shotgun had been sawed off,
the police seized it; it was found to be fully loaded. Co-
defendant Dennis Ellis came out of the store with a ski mask
on the top of his head. He admitted the shotgun was his and
was arrested. Defendant then came out of the store. He was
forced to lie on the ground and was searched. The police
found a .22 caliber Sedro pistol with one round of ammunition
in the chamber in defendant's jacket pocket. It is not
contested that the pistol was manufactured in California and
traveled in interstate commerce to New Hampshire.
The law governing the acceptance of a guilty plea
under Fed. R. Crim. P. 11 is well established. A plea
"cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts." McCarthy
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v. United States, 394 U.S. 459, 466 (1969). See also United
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States v. Broce, 488 U.S. 563, 570 (1989).
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In United States v. Ruiz-Del Valle, 8 F.3d 98 (1st
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Cir. 1993), we allowed a defendant to withdraw her guilty
plea because she put the court on notice that she did not
understand the nature of the charges against her. Id. at
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103. This was not the situation here. The nature of the
charges against defendant were clearly explained to him by
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the district court judge. And there can be no doubt, from
the answers to the questions asked directly of him by the
judge, that defendant comprehended accurately the elements of
the offense charged.
Defendant now argues that because he told the judge
that he had seen a psychiatrist three or four times after he
was arrested, the court should have been alerted that
"intent" might be an issue. Defendant was unable to give the
name of the psychiatrist, and it was never suggested by
defendant's attorney or defendant himself that mental
competency might be an issue. Defendant told the court that
he went to see the psychiatrist because "I got a habit of
carrying weapons." He also said that the psychiatrist did
not make an assessment of this problem. If defendant is
suggesting that this is a basis for finding incompetency, we
reject it.
As far as "intent" and "mens rea" are concerned,
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there are two answers to defendant's assertions that they
were not properly explained to him. The first is that both
were explained correctly to defendant. The court stated,
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inter alia:
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[T]he Government must prove that you
knowingly received or possessed, and here
you're charged with being in --
possessing, or transported the firearm in
question. And when we use the word
knowingly, what the law means is that you
were -- that you acted voluntarily and
deliberately, not by mistake or through
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inadvertence; in other words, that you
voluntarily received or had in your
possession the firearm in question.
The second reason is that in order to convict a
defendant of this crime, being a felon in possession of a
firearm, the only knowledge by defendant required to be
proved is that the instrument possessed was a firearm.
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United States v. Freed, 401 U.S. 601, 607 (1971). In United
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States v. Carter, 815 F.2d 827, 829 (1987), we held that
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because the Rule 11 hearing transcript disclosed that the
defendant knew the nature of the charges against him, no mens
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rea hearing was necessary. So it is here.
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Even if a record discloses a failure to establish a
factual basis for the guilty plea, which this one does not,2
it would be of no moment. In United States v. Zorrilla, 982
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F.2d 28, 30 (1st Cir. 1992), cert. denied, 113 S. Ct. 1665
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(1993), we held that lack of prejudice resulting from such
failure "is fatal to appellant's claim." Here, defendant has
pointed to, and we can discern no prejudice.
In sum, our review of the transcript of the change
of plea hearing shows that the district court judge fully
complied with the strictures of Rule 11.
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2. Defendant explicitly stated that there was no dispute
with the facts as stated by the prosecutor: that a fully
loaded Sedro .22 caliber pistol was found in the possession
of defendant, and that the pistol was manufactured in
California and traveled in interstate commerce from there to
New Hampshire.
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The Sentencing
The Sentencing
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The Sentence
The Sentence
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At the hearing on the guilty plea the district
court carefully explained to defendant the sentence
enhancement required if it found that the Armed Career
Criminal Act (ACCA), 18 U.S.C. 924(e), applied.3 Because
the presentence investigation report had not been prepared at
the time of the guilty-plea hearing, the judge was not sure
what the enhancement would be if he found defendant to be an
Armed Career Criminal. It was, therefore, agreed by the
government and defendant, with the court's approval, that if
the sentence exceeded 235 months, defendant would have the
right to withdraw his guilty plea.
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3. The Act provides in pertinent part:
(e)(1) In the case of a person who
violates section 922(g) of this title and
has three previous convictions by any
court referred to in section 922(g)(1) of
this title for a violent felony or a
serious drug offense, or both, committed
on occasions different from one another,
such person shall be fined not more than
$25,000 and imprisoned not less than
fifteen years, and, notwithstanding any
other provision of law, the court shall
not suspend the sentence of, or grant a
probationary sentence to, such person
with respect to the conviction under
section 922(g), and such person shall not
be eligible for parole with respect to
the sentence imposed under this
subsection.
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After a lengthy sentencing hearing the court made
the following findings. The court determined that the ACCA
applied. It calculated the total offense level to be 30 and
the criminal history category to be 6. Based on those
determinations, it found the incarceration range to be
between 168 to 210 months, with no eligibility for probation.
The range of supervised release was from three to five years.
The fine range was from $15,000 to $150,000. A special
assessment of $50 is mandated by statute.
Based on these determinations the defendant was
sentenced to incarceration for a term of 180 months. This is
to be followed by a term of supervised release for five
years. Because defendant did not have the wherewithal to pay
a fine, the fine was waived. Defendant was ordered to pay
the special assessment of $50 immediately.
Defendant raises three sentencing issues. (1) One
of the three predicate convictions necessary to implicate the
ACCA was constitutionally invalid because of the ineffective
assistance of counsel. (2) At least one of the three
necessary ACCA convictions did not qualify as such because it
was not a violent crime. (3) The district court erred in
failing to depart downwards and/or failed to undertake a
sufficient fact-finding inquiry into diminished capacity
under U.S.S.G. 5K2.13. We discuss these contentions
seriatim and reject them all.
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The Claim of Constitutional Invalidity
The Claim of Constitutional Invalidity
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On February 3, 1987, defendant pled guilty to a
charge of burglary at the regional high school in New
Ipswich, New Hampshire. He claimed at the sentencing hearing
that, at the time of his state plea, he was not advised by
his attorney, a public defender, of the rights he was giving
up by entering a guilty plea.
We think that Custis v. United States, 114 S. Ct.
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1732 (1994), prohibits a collateral attack on the state
conviction. The Court held:
The Armed Career Criminal Act, 18
U.S.C. 924(3) (ACCA), raises the
penalty for possession of a firearm by a
felon from a maximum of 10 years in
prison to a mandatory minimum sentence of
15 years and a maximum of life in prison
without parole if the defendant "has
three previous convictions ... for a
violent felony or a serious drug
offense." We granted certiorari to
determine whether a defendant in a
federal sentencing proceeding may
collaterally attack the validity of
previous state convictions that are used
to enhance his sentence under the ACCA.
We hold that a defendant has no such
right (with the sole exception of
convictions obtained in violation of the
right to counsel) to collaterally attack
prior convictions.
Id. at 1734.
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The Court concluded its opinion as follows:
We therefore hold that 924(e) does
not permit Custis to use the federal
sentencing forum to gain review of his
state convictions. Congress did not
prescribe and the Constitution does not
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require such delay and protraction of the
federal sentencing process. We
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recognize, however, as did the Court of
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Appeals, see 988 F.2d, at 1363, that
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Custis, who was still "in custody" for
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purposes of his state convictions at the
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time of his federal sentencing under
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924(e), may attack his state sentences in
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Maryland or through federal habeas
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review. . . . If Custis is successful in
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attacking these state sentences, he may
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then apply for reopening of any federal
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sentence enhanced by the state sentences.
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We express no opinion on the appropriate
disposition of such an application.
Id. at 1739 (citations omitted) (emphasis ours).
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Defendant seizes upon the delineated language to
contend that since he is no longer in custody because of his
state conviction and therefore cannot attack it on
constitutional grounds either in state court or by federal
habeas review, he should be allowed to do so in the context
of his sentencing under the ACCA. This is an ingenious
argument, but we do not think it can surmount the prohibition
imposed by the Court against using the federal sentencing
forum to review state convictions.
Moreover, even putting aside the holding of Custis,
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there is another reason for rejecting defendant's collateral
constitutional attack. Although we acknowledge that
defendant's claim that he was not advised by his attorney of
the rights he was giving up by pleading guilty has some
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support in the state court records,4 we do not have to
decide the significance of the attorney's failure to sign the
plea form at the appropriate place.
During defendant's cross-examination at the
sentencing hearing, he admitted that the state superior court
judge advised him of the rights he was giving up by pleading
guilty. He then testified that he had lied to the state
superior court judge when he told him that he understood all
of the rights he was giving up by pleading guilty.
This testimony evoked the following response from
the district court judge:
[I]f he was lying to Judge Bean then,
certainly his credibility today to this
Court is very questionable on this issue.
Therefore, based on the documents and
based on the testimony, the Court
overrules the objection and the Court
finds that the defendant was in fact
represented by counsel and that he was
aware of the rights that he was giving up
when he entered his guilty plea and that
he was aware of all of the rights that he
was giving up.
We agree with the government that this finding is subject to
the clear error standard of review. See, e.g., United States
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v. Tuesta-Toro, 29 F.3d 771, 777 (1st Cir. 1994) (sentencing
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4. Defendant's state-court attorney had not signed at the
appropriate space on the plea form, a statement confirming
that he had read the advice of rights form to defendant. The
state court records covering defendant's two earlier ACCA
burglary convictions showed that his attorney, who
represented him in all three burglary cases, confirmed by
signing the plea form at the appropriate place that he had
read the advice of rights.
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court's factual findings reviewed only for clear error).
There was no clear error by the district court.
The Claim that the State Convictions Were Not
The Claim that the State Convictions Were Not
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Violent Crimes Under the ACCA
Violent Crimes Under the ACCA
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The Act defines "violent felony" in pertinent part
as follows:
(B) the term "violent felony" means
any crime punishable by imprisonment for
a term exceeding one year, . . . that
. . .
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to
another.
18 U.S.C. 924(e)(2)(B)(ii).
Defendant pled guilty to three prior state
burglaries. He was charged in all three crimes with entering
buildings with "a purpose to exercise unauthorized control
over the property of another to deprive the owner thereof,
the said premises not being open to the public at the time
and the said Nelson Field not being licensed or privileged to
enter." He was charged with entering the Eastern Mountain
Sports building on July 21, 1985; with entering the Massenic
Regional High School in New Ipswich, New Hampshire, on April
2, 1986; and with entering the American Legion building in
Jaffrey, New Hampshire, with others, on July 4, 1985.
There can be no doubt that the three crimes to
which defendant pled guilty were burglaries under the New
Hampshire
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statute, which states:
635:1 Burglary.
635:1 Burglary.
I. A person is guilty of burglary if
he enters a building or occupied
structure, or separately secured or
occupied section thereof, with purpose to
commit a crime therein, unless the
premises are at the time open to the
public or the actor is licensed or
privileged to enter. It is an
affirmative defense to prosecution for
burglary that the building or structure
was abandoned.
N.H. Rev. Stat. Ann. 635:1 (1973).
Defendant contends that, "the factual record and
statute in question show, however, that at least one of the
three prior convictions did not qualify as a predicate
violent felony." Defendant's Brief at 21. Defendant does
not identify which of the three fails to qualify as a
predicate violent felony. Except for the dates of entry and
the location of the buildings, all three state indictments
are identical.5 We will therefore analyze the law and the
statutes as to all three predicate crimes.
We start with the leading case: Taylor v. United
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States, 495 U.S. 575 (1990). The Court first held it
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"implausible that Congress intended the meaning of 'burglary'
for purposes of 924(e) to depend on the definition adopted
by the state of conviction." Id. at 590. The Court, after
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5. We are aware that the charge of entering the American
Legion alleged doing so "with others." But this does not
change the nature of the indictment.
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considering several alternative definitions, fashioned its
own generic meaning:
We conclude that a person has been
convicted of burglary for purposes of a
924(e) enhancement if he is convicted
of any crime, regardless of its exact
definition or label, having the basic
elements of unlawful or unprivileged
entry into, or remaining in, a building
or structure, with intent to commit a
crime.
Id. at 599. It seems beyond dispute that this was the core
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of the three state crimes to which defendant pled guilty.
The Court then went on to hold "that 924(e)
mandates a formal categorical approach, looking only to the
statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions." Id. at 600.
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The Court's final holding was stated as follows:
We therefore hold that an 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. We cannot see how it can be reasonably contended
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that the New Hampshire statutory definition does not
"substantially correspond to 'generic burglary'." Nor has
defendant explained how a person could be convicted under the
New Hampshire statute and not be guilty under the generic
definition.
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Nor can defendant find any way out of the ACCA box
through our opinions. See United States v. Wilkinson, 926
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F.2d 22, 29 (1st Cir.) (applying Taylor), cert. denied, 501
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U.S. 1211 (1991). In United States v. Harris, 964 F.2d 1234
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(1st Cir. 1992), we made explicit what was clearly implied in
Taylor:
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The Court, in referring to the use of
jury instructions, did not mean that one
who pleads guilty to what would otherwise
constitute a "violent felony" is somehow,
for future sentence-enhancement purposes,
home free. Rather, the Court was giving
an example (it says, "for example") of
one way in which a trial court, faced
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with a past conviction for violating a
single statute that covers more than one
crime, might decide which of those crimes
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the prior conviction involved.
Id. at 1236. See also United States v. Fiore, 983 F.2d 1, 4
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(1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993)
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("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."); and
United States v. Bregnard, 951 F.2d 457, 460 (1st Cir. 1991),
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cert. denied, 112 S. Ct. 2939 (1992) (state labeling a crime
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as a misdemeanor makes no difference for purposes of sentence
enhancement. Under Taylor, the construction of federal laws
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not dependent on state law).
The district court did not err in using the ACCA
for sentence enhancement.
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The Failure to Depart Downwards
The Failure to Depart Downwards
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Defendant argues that the court's decision not to
depart downwards below the statutory minimum sentence
resulted from its belief that it lacked the authority to so
depart and a misunderstanding of the rules of departure.
This is, of course, an attempt to circumvent our well-
established rule that a district court's decision not to
depart downwards from the sentencing guidelines is not
appealable. United States v. Lombardi, 5 F.3d 568, 571 (1st
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Cir. 1993); United States v. Hilton, 946 F.2d 955 (1st Cir.
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1991) (collecting cases).
Although there may be some question as to whether
the district court had the discretion to depart downwards
under the criteria articulated in United States v. Rivera,
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994 F.2d 942 (1st Cir. 1993), there can be no question that
the court refused to exercise whatever discretion it may have
had. During the sentencing hearing the court stated:
A departure downward under the
circumstances that you are requesting is
strictly discretionary with the Court,
and for all of the previous reasons just
stated by the Court, the Court declines
to exercise its discretion to depart.
Not only do we have a serious prior
record here, which by the way includes a
conviction for being a felon in
possession of a dangerous weapon, granted
it was not a -- it was not a gun, but the
defendant has been down this path before,
and defense counsel has continued to
indicate that his being arrested, that
this involved just a mere possession.
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It was possession, true, but it was a
loaded weapon and the defendant was
intoxicated, and there is nothing more
dangerous, there is no more dangerous a
combination than a loaded gun and alcohol
or a loaded gun and being under the
influence of drugs.
The Court is aware of the youth of the
defendant, and were this mere possession
and no prior record and no alcohol
involved, there might be some grounds to
consider a departure, but the
circumstances before the Court provide
very little, if any, justification at all
for the Court to exercise its discretion
in departing, and therefore the Court
declines to do so and objection number
five in paragraph eleven on the addendum
is overruled.
There is simply no basis for finding that the
sentencing judge did not fully understand its authority under
the Sentencing Guidelines. We therefore lack the
jurisdiction to entertain defendant's argument. See United
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States v. DeCosta, No. 93-2120, slip op. at 10 (1st Cir. Oct.
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7, 1994).
Finally, defendant seems to suggest that the
district court should have departed downwards by reason of
defendant's "diminished capacity" under U.S.S.G. 5K2.13.
Defendant's failure to request a downward departure on this
ground in the district court forecloses our consideration of
the issue. United States v. Ortiz, 966 F.2d 707, 717 (1st
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Cir. 1992); United States v. Pilgrim Market Group, 944 F.2d
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14, 21 (1st Cir. 1991). We also note that there is very
little evidence in the record to support such a claim.
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Affirmed.
Affirmed.
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