United States v. Hunnewell

Opinion

USCA1 Opinion

November 24, 1993     [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1551

UNITED STATES,

                                      Appellee,

                                          v.

                              ALFRED LAWRENCE HUNNEWELL,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Gene Carter, U.S. District Judge]
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                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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                                 ___________________

               Wayne R. Foote on brief for appellant.
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               Jay  P. McCloskey, United States Attorney, Nicholas M. Gess,
               _________________                          ________________
          Assistant United  States  Attorney, and  Margaret  D.  McGaughey,
                                                   _______________________
          Assistant United States Attorney, on brief for appellee.

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                                  __________________

Per  Curiam.   Defendant-appellant Alfred  Lawrence
                      ___________

            Hunnewell pled guilty  to a charge of  possession with intent

            to distribute marijuana, and distribution of it, within 1,000

            feet of a secondary school,  see 21 U.S.C.    841(a)(1), 860,
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            and a charge of possessing cocaine with intent to distribute,

            and  distribution of  it, see  21  U.S.C.    841(a)(1).   The
                                      ___

            district   court  sentenced   appellant  under   the  federal

            sentencing  guidelines  as  a career  offender.1    Hunnewell

            challenges  his  sentence, claiming  that  he  was improperly

            classified as a career offender.  

            I.   BACKGROUND

                      At  sentencing,   the  government   described  four

            offenses as predicate offenses for career offender status:2 

                      1.  A robbery occurring on September 18, 1978,
                 in  which   Hunnewell  and  a   man  named  Haskell
                 physically attacked  a male  in Deering  Oaks Park,
                 Portland,  Maine, and  stole  the victim's  wallet.
                 Hunnewell pled guilty  to this offense on  February
                 2, 1979 and was sentenced in state court to a three
                 year  prison term, all but thirteen months of which
                 were suspended.  

                      2.  A robbery occurring on September 19, 1978,
                 in which Hunnewell  and Haskell physically attacked
                 and  stole money from a  different male in the same
                 venue.   A  jury found  appellant guilty.   He  was

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            1.  After  finding that appellant  qualified under the career
            offender  guideline,  the  district  court  established   the
            guideline  sentencing  range   at  188-235  months  (adjusted
            offense level--31; criminal history category--IV) and imposed
            a sentence at the bottom end of the sentencing range.

            2.  On  appeal, the government argues that a fifth conviction
            is a qualifying predicate offense.   We need not address this
            argument.

                                         -2-

sentenced in state  court on January 16, 1979  to a
                 three  year prison term, all but fourteen months of
                 which were suspended.

                      3.   A state  court conviction  for unlawfully
                 furnishing a  scheduled drug.   On  April 8,  1982,
                 Hunnewell  was sentenced  in  state court  for this
                 offense to twenty-seven months imprisonment.

                      4.   Two counts of unlawfully trafficking in a
                 scheduled   drug,   consolidated  for   trial   and
                 sentencing  in state  court.   On  April 15,  1987,
                 Hunnewell was sentenced  to two years imprisonment,
                 all but six months of which were suspended.

                      In response,  Hunnewell argued  that  the two  drug

            convictions  could  not  properly  be  counted  as  predicate

            offenses for  career offender  status.   Although he did  not

            dispute that the  career offender guidelines list  state drug

            convictions among  the crimes that  can be used  to determine

            career  offender   status,3  appellant   asserted  that   the

            Sentencing  Commission   illegally  exceeded   its  statutory

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            3.  The career offender guidelines provide in relevant part:

                 A defendant is a career  offender if . . . (3)  the
                 defendant has at least two prior felony convictions
                 of  either  a  crime of  violence  or  a controlled
                 substance offense.

            U.S.S.G.   4B1.1  (Nov. 1992).

                 The term  "controlled substance  offense" means  an
                 offense under  a federal  or state  law prohibiting
                 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  (Nov. 1992).

                                         -3-

mandate  when   it  designated  state  drug   convictions  as

            predicate offenses.

                      Moreover, in  appellant's view,  the robbery  cases

            are  related cases for sentencing purposes within the meaning

            of U.S.S.G.    4A1.2.   In particular, Hunnewell  argues that

            the two  robberies were part  of a common scheme  or plan "to

            run  homosexuals out of  Deering Oaks Park  in Portland" (the

            scene of  both robberies), and  to rob them in  the process.4

            Thus,  appellant  says, they  should only  count as  a single

            predicate offense.  See   4A1.2, comment. (n.3) (stating that
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            "[P]rior sentences  are considered related  if they  resulted

            from  offenses that  (1) occurred on  the same  occasion, (2)

            were part  of a  single common  scheme or  plan, or (3)  were

            consolidated for trial or sentencing").

                      The  district  court  found that  the  two  robbery

            offenses were not part of a  common scheme or plan and, thus,

            were  two separate  predicate offenses  for  purposes of  the

            career  offender  guidelines.    The  court  premised  career

            offender status  on these  two robbery offenses  and did  not

            address the state drug convictions.

            II.  DISCUSSION

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            4.  In  the court below, appellant also argued that the cases
            were  consolidated.   The district  court  determined on  the
            facts that this was not so, and appellant does not renew that
            argument here.

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U.S.S.G.    4B1.1 provides  that a  defendant is  a

            career offender if  three conditions are met.   United States
                                                            _____________

            v. Elwell, 984 F.2d 1289,  1294 (1st Cir.), cert. denied, 113
               ______                                   ____________

            S.  Ct. 2429 (1993).   First, the defendant  must be at least

            eighteen years old  at the time of the instant  offense.  Id.
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            Second, the instant offense must be a felony that is either a

            crime  of violence or  a controlled  substance offense.   Id.
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            Third, the  defendant must  have at  least  two prior  felony

            convictions of either  a crime  of violence  or a  controlled

            substance offense.    Id.    On  appeal, Hunnewell  does  not
                                  ___

            dispute that  the first  two conditions  for career  offender

            status  are  met.    The  sole issue  is  whether  the  third

            condition has been satisfied.  

                      With  respect to  the two  state drug  convictions,

            appellant reiterates  his argument below that  the Sentencing

            Commission  had no  authority to  write  the career  offender

            guidelines  to include convictions  under state drug  laws as

            predicate  offenses.   Appellant  contends that  the enabling

            statute, 28  U.S.C.    994(h), allows  only drug  convictions

            obtained under the federal statutes it enumerates to count as

            predicate  offenses for career  offender status.5   The Third

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            5.  The statute provides in pertinent part:

                 The  Commission shall  assure  that the  guidelines
                 specify  a sentence to a term of imprisonment at or
                 near the maximum term  authorized [by statute]  for
                 categories of defendants in which the defendant . .
                 . (2) has previously been convicted of  two or more

                                         -5-

Circuit  repudiated precisely  the  same  argument in  United
                                                                   ______

            States v.  Whyte, 892 F.2d  1170, 1174 (3d Cir.  1989), cert.
            ______     _____                                        _____

            denied, 494 U.S. 1070 (1990).  We have previously adopted the
            ______

            rationale of the Whyte court,  see United States v. Dyer, No.
                             _____         ___ _____________    ____

            93-1045, slip op. at 2 (1st Cir. June 18, 1993) (per curiam),

            and we reject  appellant's argument on the authority of Dyer.
                                                                    ____

            Accordingly,  the two  state drug  convictions are  predicate

            offenses for career offender status.

                      We  need  go  no further.    Since  career offender

            status  requires  proof  of only  two  prior  convictions for

            predicate offenses, it would be pointless to consider whether

            the trial court erred in its determination that the robberies

            are  unrelated offenses.  Consequently, the judgment below is

            affirmed.  See Loc. R. 27.1.
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                 prior  felonies, each  of which is  (A) a  crime of
                 violence; or  (B) an  offense described  in section
                 401  of the  Controlled  Substances Act  (21 U.S.C.
                 841),  sections  1002(a),  1005, and  1009  of  the
                 Controlled  Substances Import  and  Export Act  (21
                 U.S.C.  952(a), 955, and 959), and section 1 of the
                 Act of September 15, 1980 (21 U.S.C. 955a).

            28 U.S.C.   994(h).

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