United States v. Gignac

• Court: Court of Appeals for the First Circuit
• Decided: July 21, 1997
• Docket: 96-1957
• Status: Published

Opinion

USCA1 Opinion

For the First Circuit


____________________


       No. 96-1957


                              UNITED STATES OF AMERICA,


                                      Appellee,


                                         v.


                                 MICHAEL J. GIGNAC,


                                Defendant, Appellant.


                                ____________________


                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                              FOR THE DISTRICT OF MAINE


                     [Hon. D. Brock Hornby, U.S. District Judge]


                                ____________________


                                       Before


                                Lynch, Circuit Judge,


                     Aldrich and Bownes, Senior Circuit Judges.


                                ____________________


            Tina Schneider for appellant.

            Margaret D. McGaughey
                                , Assistant United States Attorney, with whom

       Jay 
           P.  
               McCloskey, United States Attorney, and   Jonathan  
                                                                  R. 
                                                                     Chapman,

       Assistant United States Attorney, were on brief for appellee.


____________________


                                    July 21, 1997

                                ____________________



BOWNES, Senior  
                                      Circuit  
                                              Judge. On the night of


            August 17, 1995, defendant-appellant Michael Gignac and two


            other men robbed a store in Portland, Maine. The robbers all


            wore masks; two of them were armed. Gignac was indicted on


            three counts: Count I alleged that he interfered with commerce


            by means of robbery in violation of 18 U.S.C. S 1951(a),


            S 1951(b)(1), and 18 U.S.C. S 2. Count II charged Gignac with


            using and carrying a firearm in relation to a crime of violence


            in violation of 18 U.S.C. S 924(c)(1), S 924(c)(3), and 18


            U.S.C. S 2. Count III accused Gignac of possession of a


            firearm by a felon in violation of 18 U.S.C. S 922(g),


            S 924(e)(1), and 18 U.S.C. S 2. The jury found Gignac guilty


            on Count I, but not guilty on Counts II and III. The court


            sentenced Gignac as a career offender under S 4B1.1 of the


            United States Sentencing Guidelines. The court found that


            Gignac was a career offender because of prior convictions for


            arson, burglary of a church, and assault on a prison officer.


                      Our review is plenary because we are considering


            interpretive questions under the Sentencing Guidelines. 
                                                                   United


            States  
                   v.  
                       Meader, No. 96-2123, slip op. at 11 (1st Cir.


            July 11, 1997); 
                           United States v. Fiore
                                                 , 983 F.2d 1, 2 (1st Cir.


            1992); United 
                          States 
                                 v. 
                                    St. 
                                        Cyr, 977 F.2d 698, 701 (1st Cir.


            1992).


                      Gignac raises two issues on appeal: (1) Whether the


            court erred in applying the career offender sentence


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enhancement provision; and (2) Whether the court abused its


            discretion in allowing the prosecutor to impeach defendant with


            the number, but not the nature, of his prior convictions.


                           The Career Offender Enhancement


                      As a result of Gignac being adjudged a career


            offender, his adjusted offense level changed from 27 to 32.


            The consequent sentencing range increased from 132-160 months


            (level 27) to 210-262 months (level 32). He was sentenced to


            the statutory maximum of 20 years. This contrasts with a


            maximum sentence of 13 years plus, without the career offender


            enhancement.


                      Section 4B1.1 of the Guidelines defines a career


            offender as follows:


                      A defendant is a career offender if (1)

                      the defendant was at least eighteen years

                      old at the time of the instant offense,

                      (2) the instant offense of conviction is a

                      felony that is either a crime of violence

                      or . . ., and (3) the defendant has at

                      least two prior felony convictions of

                      either a crime of violence or a controlled

                      substance offense.


            There is no doubt that Gignac comes within categories (1) and


            (2) of the career offender guideline provisions. The basis of


            his appeal is that he does not come within category (3) because


            he does not have two prior felony convictions for crimes of


            violence.


                      Gignac had a number of prior felony convictions. We


            focus only on those involving a crime of violence. In 1989


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Gignac was convicted in Maine state court of arson and assault.


            Gignac concedes that this conviction comes within category (3)


            of the Guidelines. In 1993 Gignac was convicted for assault on


            a corrections officer. He argues that this conviction was not


            a category (3) crime of violence. We disagree.


                      Section 4B1.2(1) of the Guidelines states:


                      The term "crime of violence" means any

                      offense under federal or state law

                      punishable by imprisonment for a term

                      exceeding one year that --


                           (i) has as an element the use,

                           attempted use, or threatened use

                           of physical force against the

                           person of another, or . . . .


                      Under Maine law, assault on a corrections officer is


            a Class C felony. The law states:


                      1.   A person is guilty of assault on an

                      officer if . . . 


                      B.   While in custody in a penal

                      institution or other facility pursuant to

                      an arrest or pursuant to a court order, he

                      commits an assault on a member of the

                      staff or facility. As used in this

                      paragraph "assault" means the crime

                      defined in chapter 9, section 207.


            Me. Rev. Stat. Ann. tit. 11-A, S 752-A. Assault is defined


            under S 207(1) of title 17-A as "A person is guilty of assault


            if he intentionally, knowingly, or recklessly causes bodily


            injury or offensive physical contact to another."


                      We agree with the district court that an assault on


            a prison guard by its very nature involves a serious potential


            risk of injury to another. That is all that is required under


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                                          4



S 4B1.2(1)(i) of the Guidelines. Note 2 of the Commentary to


            S 4B1.2 states that "crimes of violence" include offenses where


            "that offense has as an element the use, attempted use, or


            threatened use of physical force against the person of


            another." We hold that the assault on the prison officer by


            defendant was a crime of violence under the career offender


            section (S 4B1.1) of the Guidelines.


                        Impeachment of Defendant with Number

                       But Not Nature of His Prior Convictions


                      Before we get to the merits of this argument, we must


            first determine whether it was properly preserved for appeal.


            The first question is whether defendant's motion in limine to


            exclude any reference to prior convictions was sufficient alone


            without further objection to warrant consideration by this


            court.


                      The record discloses the following. A chambers


            conference was held on the motion 
                                             in 
                                                limine prior to defendant


            taking the stand. The question of admissibility of Gignac's


            prior convictions was discussed in the framework of Fed. R.


            Evid. 609. At the close of the conference the district court


            told the parties that if defendant took the stand, the


            government would be permitted to establish that there were five


            previous felony convictions and the dates, but that the


            government would not be allowed to show "the specifics of the


            charges on those previous convictions." The court ended the 


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conference with the following admonition:


                         Now counsel, again, remember, that is a

                      tentative ruling. It's subject to what

                      the defendant says if he takes the stand.

                      It may be that he would say something that

                      would cause me to reevaluate that ruling

                      in terms of allowing some of the specific

                      charges or whatever, but based upon what

                      you've told me to date, that's my ruling.


                      Defense counsel did not object to the court's ruling


            at any time after the conference and before Gignac testified.


            Defense counsel brought out at the start of direct examination


            that Gignac had been convicted of more than one felony. On


            cross-examination the prosecutor elicited testimony from Gignac


            that he had five prior felony convictions between 1988 and


            1993. There was no objection to this line of questions.


                      The law in this circuit is clear: a motion 
                                                                in 
                                                                   limine


            alone is not sufficient to forward the issue for appellate


            review. The rule and its rationale have been stated most


            recently in Gill v. Thomas, 83 F.3d 537 (1st Cir. 1996).


                      We also held in  Gill that if a party introduces


            potentially impeaching evidence itself in order "to take the


            sting" out of it, this eliminates any potential evidentiary


            error by the use of such evidence in cross-examination. 
                                                                   Id. at


            541.


                      For the foregoing reasons, defendant Gignac has


            failed to properly preserve the second issue raised by him. We


            cannot refrain from noting, however, that even had the issue


            been properly preserved below, it would be of no avail. There


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                                          6



is no substantive merit to this claim.  See United 
                                                               States 
                                                                       v.


            Powell, 50 F.3d 94, 101-02 (1st Cir. 1995).


                      The judgment of the district court is 
                                                          affirmed in all


            respects.


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