United States v. Fiore

• Court: Court of Appeals for the First Circuit
• Decided: December 9, 1992
• Docket: 92-1601
• Status: Published

Opinion

USCA1 Opinion

December 9, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

_________________________

No. 92-1601

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    ANTHONY FIORE,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                              _________________________

                                        Before

                        Selya, Cyr and Boudin, Circuit Judges.
                                               ______________

                              _________________________

               John F. Cicilline for appellant.
               _________________
               Margaret E. Curran,  Assistant United States  Attorney, with
               __________________
          whom  Lincoln  C. Almond,  United States  Attorney, and  James H.
                __________________                                 ________
          Leavey, Assistant United States Attorney, were on brief,  for the
          ______
          United States.

                              _________________________

_________________________

SELYA,  Circuit Judge.  This appeal asks us to decide a
                    SELYA,  Circuit Judge
                            _____________

          question  of  first impression:    Does  a prior  conviction  for

          conspiracy to break and enter a commercial structure qualify as a

          predicate offense for purposes  of the career offender provisions

          of  the federal sentencing guidelines?  We answer the question in

          the affirmative and, therefore, allow the defendant's sentence to

          stand.

               Background
               Background
               __________

                    Defendant-appellant  Anthony  Fiore,  a man  of  mature

          years but apparent criminal  predilection, pleaded guilty to four

          interconnected  felonies, at  least  one of  which constituted  a

          "crime of violence"  as that term is defined  in U.S.S.G.   4B1.2

          (Nov. 1991).1   The district  court sentenced Fiore  as a  career

          offender.  To merit such  a sentence, a defendant must be  (1) at

          least  eighteen years old at the time of the offense, (2) guilty,

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

          controlled substance offense,"  and (3) guilty, historically,  of

          "at  least  two prior  felony convictions  of  either a  crime of

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

          (Nov.  1991).   Fiore concedes  that he  satisfied the  first two

          requirements but  denies that his  prior record  came within  the

          purview of the third requirement.

                    The guidelines define a "crime of violence" as a felony

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               1The offenses  of conviction included, inter  alia, a charge
                                                      _____  ____
          of carrying a firearm  during a crime of violence  (the attempted
          robbery  of an  armored  truck)  in  violation  of  18  U.S.C.   
          924(c)(1) (1990).

                                          2

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, 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)  (Nov.  1991).    The  guidelines  define  a

          "controlled substance offense"  as any  violation of  a state  or

          federal law that: 

                    prohibit[s] the  manufacture, import, export,
                    distribution, or dispensing  of a  controlled
                    substance  .  .  .  or the  possession  of  a
                    controlled  substance .  . .  with  intent to
                    manufacture,  import, export,  distribute, or
                    dispense.  

          U.S.S.G.   4B1.2(2) (Nov. 1991).

                     The district court  ruled that  appellant's two  prior

          convictions  under Rhode Island law   one for conspiracy to break

          and  enter a  commercial  premise, the  other  for conspiracy  to

          violate  the  state's controlled  substance  act    qualified  as

          predicate   offenses,  thereby   bringing  the   career  offender

          guideline into play.  Since appellant admits that the convictions

          occurred, his assignment of  error hinges on their legal  effect.

          Thus,  our review is plenary.  See  United States v. St. Cyr, ___
                                         ___  _____________    _______

          F.2d  ___, ___  (1st  Cir. 1992)  [No. 92-1639,  slip  op. at  5]

          (holding  that   a  de  novo   standard  of  review   applies  to
                              __  ____

          interpretive questions under the sentencing guidelines).

               Conspiracies as Predicate Offenses
               Conspiracies as Predicate Offenses
               __________________________________

                    The  commentary to  the  federal sentencing  guidelines

          tells us straightforwardly that  conspiracy to commit a predicate

                                          3

offense is itself  a predicate  offense.  See  U.S.S.G.    4B1.2,
                                                    ___

          comment.  (nn.1,2) (Nov.  1991).   We have  remarked before  that

          although  the  Sentencing  Commission's  "application  notes  and

          commentary  do not possess the  force of law,  they are important

          interpretive  aids, entitled  to  considerable respect."   United
                                                                     ______

          States v. Weston, 960 F.2d 212, 219 (1st Cir. 1992).  In general,
          ______    ______

          we will defer to  the Commission's suggested interpretation  of a

          guideline  provision   unless   the  Commission's   position   is

          arbitrary, unreasonable, inconsistent  with the guideline's text,

          or contrary to law.  See, e.g., United States v. Joshua, ___ F.2d
                               ___  ____  _____________    ______

          ___, ___ (3d Cir. 1992) [No. 91-3286,  1992 U.S. App. LEXIS 24787

          at * 33-38]; United States v. Anderson, 942 F.2d 606, 613-14 (9th
                       _____________    ________

          Cir. 1991) (en banc).  In this instance, we are unable to discern

          any cogent reason for rejecting the Commission's view.

                    For  one thing,  while we  have unearthed  no appellate

          case  on  all  fours,  reported judicial  opinions  in  analogous

          situations  suggest  that most  courts  would  likely agree  that

          deference is warranted here.  The case closest in point is United
                                                                     ______

          States v. Smith, 909 F.2d 1164 (8th Cir. 1990), cert. denied, 111
          ______    _____                                 _____ ______

          S.Ct. 691  (1991), in which the Eighth  Circuit held that a prior

          conviction  for conspiring to sell LSD,  although charged under a

          general conspiracy  statute, was  a controlled  substance offense

          and,  hence,  a  proper   predicate  under  the  career  offender

          guideline.  See id.  at 1168.  Other  instructive cases point  in
                      ___ ___

          the same direction.   See,  e.g., United States  v. Liranzo,  944
                                ___   ____  _____________     _______

          F.2d  73, 78  (2d  Cir. 1991)  (deferring  to the  commentary  in

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deciding  that an  attempt conviction  was a  predicate offense);

          United States v.  Preston, 910  F.2d 81 (3d  Cir. 1990)  (holding
          _____________     _______

          that conspiracy to commit robbery is a "violent felony" under the

          Armed  Career  Criminal Act  [ACCA],  as  amended,  18  U.S.C.   

          924(e)),  cert.  denied, 111  S.Ct. 1002  (1991);  id. at  86 n.6
                    _____  ______                            ___

          (stating  in dicta  that "conspiring  to commit robbery  would be

          considered  a 'crime  of violence'  under the  current sentencing

          guidelines")  (citing  commentary  and  application  notes);  cf.
                                                                        ___

          United States v. Payne, 966 F.2d 4, 8-9 (1st Cir. 1992) (deciding
          _____________    _____

          that an  attempt was  a "violent felony"  under the ACCA).2   The

          case law, then, furnishes strong support for the ruling below.

                    For  another thing,  we believe  that Taylor  v. United
                                                          ______     ______

          States,  495 U.S. 575 (1990),  relied upon by  both the appellant
          ______

          and the government, is  entirely consistent with the Commission's

          (and the  district court's) view that  conspiracy convictions can

          serve  as  predicate offenses.    In interpreting  the  ACCA, the

          Taylor  Court  adopted   "a  formal  categorical  approach"   for
          ______

          determining whether  an offense is a violent felony.  Id. at 600.
                                                                ___

          Under such an  approach, an inquiring  tribunal "look[s] only  to

          the statutory definitions of  the prior offenses, and not  to the

          particular facts  underlying those  convictions."  Id.   Although
                                                             ___

____________________

               2The 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).  See Preston, 910 F.2d at 86 n.6; U.S.S.G., App. C, amend.
                  ___ _______
          268,  at  C.139 (Nov.  1989).   Decisions  interpreting  the ACCA
          constitute persuasive  authority when a  court is called  upon to
          construe the  career offender  guideline.  See  United States  v.
                                                     ___  _____________
          Bell, 966 F.2d 703, 705 (1st Cir. 1992).
          ____

                                          5

Taylor is an ACCA  case, it is the beacon by which we must steer.
          ______

          See  United States v. Bell, 966 F.2d  703, 705-06 (1st Cir. 1992)
          ___  _____________    ____

          (explaining that  Taylor furnishes the methodology  of choice for
                            ______

          determining   whether  specific  felonies  constitute  crimes  of

          violence under  the career offender provisions  of the sentencing

          guidelines).

                    Appellant  suggests  that,   because  some   conspiracy

          convictions will  not  be predicate  offenses    for  example,  a

          conspiracy to barter migratory birds or to sell forged securities

          would  plainly fall  outside  the scope  of  U.S.S.G.    4B1.1   

          Taylor's  categorical  approach  requires  a  finding   that  all
          ______

          conspiracy  convictions  are   exempt  from  "predicate  offense"

          treatment.   While  we recognize  that this  suggestion  offers a

          certain seductive  simplicity, we  think that it  twists Taylor's
                                                                   ______

          message.  The Taylor Court understood the categorical approach as
                        ______

          one  designed  "to capture  all offenses  of  a certain  level of

          seriousness that  involve violence  or an inherent  risk thereof,

          and  that  are  likely  to be  committed  by  career  offenders."

          Taylor, 495  U.S. at  590.   To implement  this objective  in the
          ______

          present   context,  it  is  not  enough  to  focus  on  the  word

          "conspiracy"  alone,  for that  superficial  label  says next  to

          nothing about the  underlying nature of the crime and, therefore,

          about whether it should be classified as a crime of violence or a

          controlled substance offense.  Instead, one must ask, and answer,

          the more specific question  "conspiracy to do what?" in  order to

          implement  Taylor.    After  all,  a  conspiracy,  not  unlike  a
                     ______

6

chameleon,  will  necessarily  take on  the  characteristics  and

          coloration  of its environment.  The object of the conspiracy is,

          therefore, a critical determinant.

                    When  the line that defines  the categories is drawn in

          the  proper  place,  the  Sentencing  Commission's recommendation

          meshes  neatly with the Taylor Court's methodology.3  The need to
                                  ______

          implement Taylor's  categorical approach  in a sensible  fashion,
                    ______

          the clear  language of the commentary, and the case law as it has

          evolved in  related matters  all converge.   We  hold, therefore,

          that conspiracy convictions can serve as predicate offenses under

          the   career  offender  provisions   of  the  federal  sentencing

          guidelines.4
                              
          ____________________

               3Contrary to appellant's insinuation,  the line can be drawn
          at the point where  conspiracy-plus-object is determined  without
          engaging  in  an  "elaborate  factfinding process"  of  the  sort
          debunked  by the Court.   Taylor, 495 U.S. at 601.   A judge need
                                    ______
          only inspect the indictment or  other charging papers to complete
          the phrase "conspiracy to commit _____" and, thus, effectuate the
          Taylor inquiry.  Cf. United States v. Leavitt, 925 F.2d 516, 517-
          ______           ___ _____________    _______
          18 (1st Cir. 1991) (holding that the categorical approach permits
          a court to  peruse the  indictment to determine  whether a  crime
          qualifies  as  a  predicate  offense under  the  career  offender
          guideline).

               4In a  last-ditch effort  to avoid the  guideline, appellant
          argues  that,  inasmuch  as  Rhode  Island's  general  conspiracy
          statute  does not  require proof  of an overt  act, see  State v.
                                                              ___  _____
          Brown, 486  A.2d 595,  601 (R.I. 1985);  R.I. Gen. Laws    11-1-6
          _____
          (1981), a conviction  under it  cannot be a  predicate "crime  of
          violence" because a  defendant need not  have engaged in  conduct
          presenting a  direct risk of  injury to  another in  order to  be
          found  guilty.  If such  an exception existed,  however, it would
          swallow the rule.  Many conspiracy statutes are cut from the same
          cloth as Rhode  Island's statute.   See, e.g.,  United States  v.
                                              ___  ____   _____________
          Paiva, 892 F.2d 148, 155 (1st Cir. 1989) (explaining operation of
          _____
          federal drug  conspiracy statute).  And  even conspiracy statutes
          that  contain  an  overt  act  requirement  often  stop short  of
          demanding proof that the  defendant personally engaged in conduct
          of  the sort appellant identifies.   See, e.g.,  United States v.
                                               ___  ____   _____________

                                          7

Appellant's Conspiracy Convictions
               Appellant's Conspiracy Convictions
               __________________________________

                    Appellant has  a fallback  position.  He  asserts that,

          even if some conspiracies are predicate offenses for  purposes of
                  ____

          the career  offender guideline, his conviction  for conspiracy to

          break  and enter a commercial premise is not within that grouping

          because  the underlying  crime  is  not  a  crime  of  violence.5

          Appellant's thesis runs along  the following lines:   the offense

          was  committed in  Rhode Island;  under R.I.  Gen. Laws    11-8-4

          (1991),6  the offense  did  not  have  as  an  element  the  use,

          attempted use, or threatened  use of force against the  person of

          another as  contemplated by  U.S.S.G.   4B1.2(1)(i)  (Nov. 1991);

          and,  moreover,  the sample  offenses  enumerated  in U.S.S.G.   
                              
          ____________________

          Notarantonio, 758 F.2d 777, 788 (1st Cir. 1985) (explaining that,
          ____________
          under the federal general conspiracy statute, an overt act by any
          one  co-conspirator  suffices  to  satisfy that  element  of  the
          offense for all co-conspirators).  Given these realities, we find
          appellant's argument unconvincing.

               5Appellant  does  not   contend  that  his   conviction  for
          conspiracy  to violate state narcotic laws slips through the same
          loophole.

               6The Rhode Island commercial  burglary statute, which was in
          effect at the date of the original offense, reads as follows:

                    Every  person who  shall break and  enter any
                    bank,   shop,   office   or  warehouse,   not
                    adjoining to or occupied as a dwelling house,
                    any    meeting    house,   church,    chapel,
                    courthouse,  town  house,  college,  academy,
                    schoolhouse,   library   or  other   building
                    erected for  public use  or occupied  for any
                    public purpose or any  ship or vessel, in the
                    nighttime,  with  intent  to  commit  murder,
                    rape, robbery or larceny, shall be imprisoned
                    not exceeding ten (10) years.

          R.I. Gen. Laws   11-8-4.  It is undisputed that, in Fiore's case,
          the charge involved a commercial building, not a ship or vessel.

                                          8

4B1.2(1)(ii) (Nov.  1991) include burglary of a  dwelling but not

          burglary of  a commercial premise.   In mounting  this offensive,

          appellant  conveniently  overlooks,  or  at   least  neglects  to

          mention, that  after enumerating a non-exhaustive  list of sample

          predicates,  the  guideline  proceeds  to define  as  a  crime of

          violence any  offense  which  "otherwise  involves  conduct  that

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

          Id.
          ___

                    In this  case, the  "otherwise" clause gets  the grease

          from the goose.  No less an authority than the  Supreme Court has

          observed  that commercial  burglaries often  "pose a  far greater

          risk  of harm" than burglaries  of dwelling places.   Taylor, 495
                                                                ______

          U.S.  at 594.    Moreover, this  court  has held  with  echolalic

          regularity,  albeit  in  the  ACCA context,  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.  See Payne, 966 F.2d at 8 & n.6;
                                            ___ _____

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

          denied, 111 S. Ct.  2813 (1991); United States v.  Patterson, 882
          ______                           _____________     _________

          F.2d  595, 604  (1st  Cir. 1989),  cert.  denied, 493  U.S.  1027
                                             _____  ______

          (1990).  The fact that we made this determination in interpreting

          the ACCA's identically worded "otherwise" clause is a distinction

          without a difference.   See United States  v. Doe, 960 F.2d  221,
                                  ___ _____________     ___

          225 (1st Cir. 1992); see also supra note 2.  Hence, Fiore's state
                               ___ ____ _____

          court conviction  for conspiracy to commit  breaking and entering

          of a commercial structure comprises a crime of violence under the

9

career offender  guideline because  the object of  the conspiracy

          satisfies the "otherwise" clause of U.S.S.G.   4B1.2(1)(ii) (Nov.

          1991).7

Conclusion
               Conclusion
               __________

                    We  need go no further.   Because we  conclude that (1)

          prior  convictions   for  conspiracy  can  qualify  as  predicate

          offenses  under the  career  offender provisions  of the  federal

          sentencing guidelines, and (2) appellant's earlier conviction for

          conspiracy  to  commit  breaking  and entering  of  a  commercial

          building is a crime of violence, the judgment below will be 

Affirmed.
          Affirmed.
          _________

____________________

               7Contrary  to appellant's  importunings,  our conclusion  in
          this regard is not undermined either by an earlier version of the
          commentary  to the career offender  guideline or by  the case law
          explicating the  outdated version.   See, e.g., United  States v.
                                               ___  ____  ______________
          Talbott, 902 F.2d 1129, 1133  (4th Cir. 1990).  We see  no reason
          _______
          to  give credence  to commentary  that the  Sentencing Commission
          revised  well before Fiore committed the  instant offenses.  This
          is especially so in  light of the Court's subsequent  decision in
          Taylor.
          ______

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