United States v. Mangos

• Court: Court of Appeals for the First Circuit
• Decided: January 29, 1998
• Docket: 97-1104
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 97-1104



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    VINSON MANGOS,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



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



                                 ____________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                        John R. Gibson,* Senior Circuit Judge,
                                         ____________________



                              and Lynch, Circuit Judge.
                                         _____________



                                _____________________



               William  Maselli, with whom  Law Offices of  William Maselli
               ________________             _______________________________

          was on brief for appellant.

               Margaret  D.  McGaughey, Assistant  United  States Attorney,
               _______________________

          with whom Jay P. McCloskey, United States Attorney, and George T.
                    ________________                              _________

          Dilworth, Assistant  United States  Attorney, were  on brief  for
          ________

          appellee.


____________________



                                   January 23, 1998

                                 ____________________

                              
          ____________________



          *  Of the Eighth Circuit, sitting by designation.



John  R. Gibson, Senior  Circuit Judge.   Vinson Mangos
                                     _____________________



          appeals from  a sentence imposed  upon him  following his  guilty



          plea to  transferring a firearm knowing that  it would be used to



          commit  a drug  trafficking crime,  in violation  of 18  U.S.C.  



          924(h)  (1994).   He contends  that the  district court  erred in



          imposing an eighty-eight month sentence.  He argues that: (1) his



          earlier assault  conviction in  a Massachusetts court  was not  a



          crime  of violence  under  the  sentencing  guidelines;  (2)  the



          district  court misinterpreted the guidelines in its treatment of



          this issue; (3)  the district court erred  as a matter of  law in



          not  departing  downward  because of  the  overcounting  of prior



          offenses;  and (4) in  not granting him a role  reduction because



          he  was the  least  culpable  of the  various  participants.   We



          affirm.



                    The primary issues in this appeal  are the attacks upon



          the sentence,  and  thus an  abbreviated  outline of  the  events



          giving  rise to  his  guilty  plea suffices.    Mangos and  three



          others, Gordon Higgins, Cathy Tremblay, and Luis Morey, attempted



          to rob John Collins, whom they believed was selling crack cocaine



          from  his trailer.   In  doing  so, Mangos  carried his  20-gauge



          shotgun with  a pistol grip  when he, Higgins, and  Morey entered



          Collins's trailer.  This robbery attempt was aborted. 



                    Four  days  later  Mangos  declined  to  join  Higgins,



          Tremblay,  and Morey  in  a  second effort  to  rob Collins,  but



          allowed  Higgins to use his shotgun, knowing that Higgins planned



          to use it in the robbery.   Collins fled through a window but the


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robbers  injured Collins's  girlfriend, Jennifer  Hanscomb.   The



          robbers found no drugs and left the trailer.



                    Mangos  was charged with a  drug conspiracy count and a



          count for  the use  of a  firearm in  a  drug trafficking  crime.



          These  charges were  dismissed  when  Mangos  pleaded  guilty  to



          transferring a firearm knowing it would be used to commit a  drug



          trafficking crime.



                    In sentencing Mangos, the  district court assessed  two



          points for a 1992 Massachusetts conviction for larceny, one point



          for a 1992  assault and battery under Massachusetts  law, and yet



          another  point for a 1992 Massachusetts conviction for possession



          of crack cocaine.   A 1994 Maine conviction  for assault resulted



          in  two points,  and a  1994 guilty  plea to  a separate  assault



          charge  in Maine  resulted in one  point.   After failing  to pay



          fines for operating  a vehicle under the influence  of alcohol in



          1994, Mangos was sentenced to incarceration in lieu of the fines,



          which resulted  in two additional  criminal history points.   The



          subtotal of the  criminal history score was nine,  but two points



          were added  because Mangos  committed the  offense of  conviction



          less  than two  years  after  he was  released  from custody  for



          violating  his probation  on the  assault  charge.   He thus  had



          eleven  criminal  history  points,  which  gave  him  a  criminal



          category of V.



                    The district court placed the base offense level at 24.



          The  district  court  added four  levels,  producing  an adjusted



          offense level of 28, because  Mangos transferred the firearm with


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the knowledge and intent that it would be used in connection with



          another  felony  offense.    With  a  three-level  reduction  for



          acceptance of responsibility, the total offense level was 25 with



          a criminal history  category of V.  The government made a section



          5K1.1 motion,  and the district court departed downward by twelve



          months to reach the sentence of eighty-eight months imprisonment,



          to be followed by  three years of supervised  release and a  $100



          special assessment.



                                         I.
                                         I.



                                         A.
                                         A.



                    Mangos  argues  that   the  district  court  erred   in



          characterizing his earlier assault and battery  of Manuel Herrera



          in Massachusetts  as a  "crime of violence"  for the  purposes of



          sentencing.  Mangos contends that the description in the charging



          instrument that he "did assault and  beat" Herrera is boilerplate



          language  and as such  does not sufficiently  distinguish whether



          the assault and battery involved violence or merely nonconsensual



          offensive  touching.  The  government responds that  the language



          "assault and beat" indicates that  the crime involved violence or



          threatened violence, and, in any event, created a serious risk of



          potential injury to another.  



                    Under  the U.S.  Sentencing  Guidelines Manual  section



          2K2.1,  a defendant convicted of illegally transferring a firearm



          is assigned a  base offense level of  24 if the defendant  has at



          least two prior felony convictions  of either a crime of violence



          or a controlled  substance offense, as opposed to  a base offense


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level  of 22  if the defendant  has only one  such prior offense.



          The district court determined that Mangos's prior convictions for



          the assault and battery of Herrera and the assault and battery of



          Evagelio Rodr guez qualified  Mangos for the higher  base offense



          level.



                    Whether the assault and battery of Herrera was a "crime



          of violence"  under the  Sentencing Guidelines is  a question  of



          law,  which we review  de novo.  See  United States v. Fern ndez,
                                           ___  _____________    _________



          121 F.3d 777, 778 (1st Cir. 1997).   The term "crime of violence"



          is defined in the Sentencing Guidelines as any offense 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        

                                 (ii)   is   burglary    of   a

                      dwelling,  arson,  or  extortion  ...  or

                      otherwise involves conduct  that presents

                      a  serious  potential  risk  of  physical

                      injury to another.



          U.S.S.G.   4B1.2.   In determining whether a  prior offense meets



          this definition, we  take a formal categorical  approach, looking



          to the statutory formulation of  the crime charged rather than to



          the facts  behind the  actual conviction.   See United  States v.
                                                      ___ ______________



          Damon, 127  F.3d 139,  142 (1st Cir.  1997); United States  v. De
          _____                                        _____________     __



          Jes s, 984 F.2d 21, 23 (1st Cir. 1993).  
          _____



                    Massachusetts statutory law makes assault and battery a



          criminal  offense punishable  by  up to  two  and one-half  years



          imprisonment, but does not define assault and battery.  See Mass.
                                                                  ___



          Gen. Laws ch. 265,   13A (1996).  We look to Massachusetts common



          law for the meaning of "assault and battery."  In Commonwealth v.
                                                            ____________



                                         -5-



Burke, 457 N.E.2d 622 (Mass. 1983), the Supreme Judicial Court of
          _____



          Massachusetts defined  assault as  an "offer or  attempt to  do a



          battery" and stated that every  battery includes an assault.  Id.
                                                                        ___



          at 624 (citations omitted.).  The court in Burke then stated that
                                                     _____



          the  law of  battery  is bifurcated  into  harmful batteries  and



          offensive batteries.  Id.
                                ___



                    We  reject Mangos's contention that because assault and



          battery  includes offensive but nonharmful conduct, it should not



          be  considered  a  crime  of  violence.    Under  the  Sentencing



          Guidelines, the term "crime of  violence" is not limited to those



          crimes for  which violence is  a necessary  element, but  instead



          extends  to  any  crime which  "otherwise  involves  conduct that



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



          U.S.S.G.   4B1.2(1)(ii).  



                    In   Fern ndez,   this   court   determined  that   the
                         _________



          Massachusetts  crime of assault and battery upon a police officer



          was  properly  classified  as  a  crime  of  violence  under  the



          sentencing guidelines.  121  F.3d at 780.  We reasoned, "While it



          is true  that  neither violence,  nor  the use  of force,  is  an



          essential element  of the  crime as  statutorily defined,  still,



          violence, the use  of force, and a serious risk  of physical harm



          are all likely to accompany an assault and battery  upon a police



          officer."  Id.  While we recognize that the risks inherent in the
                     ___



          assault and battery  upon a police officer may  differ from those



          involved in  a simple  assault and battery,  we believe  that the



          reasoning in Fern ndez applies with similar force to this case. 
                       _________


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When  the  state  criminal statute  involves  different



          types of  offenses, some arguably  violent and some not,  we look



          first to the  charging document to  see which type of  offense is



          involved.  See Taylor v. United States, 495 U.S. 575, 602 (1990);
                     ___ ______    _____________



          Damon, 127 F.3d  at 142-143.  Here, the  charging document states
          _____



          that Mangos "did assault and  beat" Manuel Herrera.  The district



          court, following United States v. Harris, 964 F.2d 1234 (1st Cir.
                           _____________    ______



          1992), found that  this statement that the assault  amounted to a



          beating of Herrera  qualified the crime charged as  a violent and



          felony offense.   This places  Mangos's offense into  the harmful



          battery  type,  and thus  meets  the  definition  of a  crime  of



          violence under  U.S.S.G.   4B1.2.  There is nothing in the record



          or the charging document that  refers to an offensive touching or



          a touching without consent, such as described in Burke.  
                                                           _____



                                          B.
                                          B.



                    Mangos  additionally  argues  that the  district  court



          erred in counting Mangos's conviction for the assault and battery



          of  Herrera and  his conviction  for the  assault and  battery of



          Rodr guez as  separate  prior felony  convictions  and  therefore



          sentencing  Mangos to a base offense level of 24.  Mangos asserts



          that  the sentences for these  offenses were related because they



          were consolidated for sentencing.   He contends that because  the



          sentences  were related,  the  offenses should  be  treated as  a



          single  prior  felony  conviction  under  section  2K2.1.    This



          argument,  however, is based upon a misreading of the guidelines.



          Mangos cites section 4A1.2(a)(2), which states,  "Prior sentences


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imposed in  related cases are to  be treated as  one sentence for



          purposes of    4A1.1(a), (b), and (c)."   By its own  terms, this



          provision   does  not  govern  the  treatment  of  "prior  felony



          convictions" under section 2K2.1.   As a result, we conclude that



          Mangos's argument regarding related sentences is without merit.  



                                         II.
                                         II.



                    Mangos  contends  that  the  district  court  erred  in



          including his  conviction in a  Maine state court  for assaulting



          his  sister as part of  his criminal history  for the purposes of



          sentencing.  Mangos claims that  the conviction was not counseled



          and is  not a reliable  indicator that he actually  committed the



          assault.   The government responds  that the Maine conviction was



          counseled and that no basis exists for  rejecting that conviction



          as  unreliable.   Because the  parties dispute whether  the Maine



          conviction  was  counseled,  the questions  we  must  address are



          questions of  fact.  Therefore,  we review only for  clear error.



          See United States v. Goldberg, 105 F.3d 770, 777 (1st Cir. 1997).
          ___ _____________    ________


On November 1, 1993, the State of Maine arrested Mangos



          for assaulting  his sister, Roxanna  Mangos.  In March  1994, the



          state moved to have the charge "filed" with no costs.  Later that



          year,  however, the charge  was brought forward  again when Mango



          was  also charged  with  operating  a  vehicle  while  under  the



          influence  and operating after suspension.  Mangos pleaded guilty



          to all of the charges.  Mangos was sentenced to  ten days for the



          assault,  to be  served concurrently  with a  seven day  sentence


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imposed for the offenses. 



                    The   current  dispute   arises   from   the  form   of



          representation Mangos was assigned on  the day he plead guilty to



          the above charges.  At the  time Mangos was arraigned, the  state



          court had  a pilot  program known  as "lawyer  for a  day."   The



          purpose of the  program was  to facilitate  early resolutions  of



          cases by  allowing people  who were  considering entering  guilty



          pleas to consult with an attorney.  Typically, the lawyer for the



          day, usually an  experienced criminal defense attorney,  would be



          assigned to about fifteen defendants.  The lawyer would meet with



          the defendants  for anywhere  from five minutes  to a  half hour.



          During  that  time,   the  lawyer  would  review   any  available



          paperwork,  discuss apparent  defenses,  and negotiate  with  the



          district attorney.



                    Mangos   appears   to   argue   that   this   form   of



          representation was too limited to be considered legal counseling.



          We  are  not  persuaded.   Mangos  was  assigned  an  experienced



          criminal defense attorney  charged with the professional  duty of



          zealous advocacy.  Mangos's lawyer appears to have had discretion



          both in how  long to consult with  Mangos and in what  courses of



          action  to advise.  Nothing  indicates that Mangos's attorney was



          in  any way  prohibited from  advising against  a guilty  plea or



          suggesting that Mangos  seek further counsel.  In  light of these



          facts, it is clear that Mangos's  claim that he was not counseled



          is, in actuality, an ineffective  assistance of counsel claim.  A



          sentencing  court  is  an  inappropriate  forum  for  ineffective


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assistance of counsel claims addressed to prior convictions.  See
                                                                        ___



          Custis v. United States, 511 U.S. 485, 496 (1994). 
          ______    _____________



                    We  also conclude  that  the  Maine  conviction  was  a



          reliable  indicator  that Mangos  committed the  charged offense.



          Mangos pleaded  guilty to assaulting his sister and was sentenced



          to ten  days in  prison.  We  refuse to  probe Mangos's  possible



          motives for entering that  plea, and accept the guilty plea as an



          admission  of guilt.   We hold  that the  district court  did not



          clearly err in including the Maine conviction as part of Mangos's



          criminal history. 



                                         III.
                                         III.



                    Mangos  argues that the district court erred in failing



          to grant  an additional  downward departure  (beyond the  section



          5K1.1  downward  departure)   under  U.S.S.G.      4A1.3  (Policy



          Statement).  Section 4A1.3  provides, in part, that  a sentencing



          court  may depart from  the applicable guideline  range when "the



          court  concludes that  a  defendant's  criminal history  category



          significantly over-represents  the seriousness  of a  defendant's



          criminal history or the likelihood that the defendant will commit



          further crimes."   



                    Generally,  an  appellate court  lacks  jurisdiction to



          review  a sentencing court's discretionary decision not to depart



          below the guideline sentencing  range.  United States v.  Pierro,
                                                  _____________     ______



          32  F.3d 611,  619 (1st  Cir 1994),  cert. denied,  513 U.S.  111
                                               ____________



          (1995).   An  exception to  this  general rule  applies when  the



          sentencing  court's decision  not  to depart  is  based upon  its


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belief that  it lacks  the authority  or power to  depart.   Id.;
                                                                       ___



          United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995). 
          _____________    ________



                    After  reviewing  the  record, we  do  not  believe the



          exception  is  applicable  in  this   case.    Mangos  made   the



          overrepresentation  argument to the district court.  The district



          court expressed that it had  taken into account the arguments for



          a downward  departure but  concluded that  the assigned  criminal



          history  category  "adequately   and  appropriately"  represented



          Mangos's  extensive criminal history.   Thus, the  district court



          recognized its  authority to depart  downward on this  ground and



          exercised its discretion in declining to do so.  Consequently, we



          lack jurisdiction to review its determination.  



                                         IV.
                                         IV.



                    Finally, Mangos maintains that the district court erred



          in failing  to grant  a downward adjustment  for his role  in the



          offense  of transferring a firearm.  Specifically, Mangos asserts



          that the  district court should  have considered his role  in the



          context  of the overall  criminal activity including  the robbery



          and not just in the  context of the transfer of the firearm.   He



          further argues that, even  in the context of the  transfer of the



          firearm, he was still less culpable than other participants.



                    Under the Sentencing  Guidelines, a defendant's offense



          level may be adjusted downward if the defendant was substantially



          less culpable than  other participants  in the  crime.   U.S.S.G.



            3B1.2  (1995).   The burden,  however, is  on the  defendant to



          establish that a downward adjustment is warranted.  United States
                                                              _____________


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v. Ortiz,  966 F.2d 707, 717  (1st Cir. 1992),  cert. denied, 506
             _____                                        ____________



          U.S.  1063  (1993).   In  addition,  because  role-in-the-offense



          determinations  are fact-bound,  we review  them  only for  clear



          error.   United States  v. Jackson,  3 F.3d  506,  508 (1st  Cir.
                   _____________     _______



          1993).



                    The   district  court   considered  sentencing   Mangos



          according  to the guidelines  for robbery, U.S.S.G.    2B3.1, but



          ultimately  sentenced Mangos  according  to  the  guidelines  for



          prohibited   transactions  involving   firearms  or   ammunition,



          U.S.S.G.   2K2.1.   Mangos was therefore not  convicted of either



          the robbery  or the  attack on Jennifer  Hanscomb, and  the court



          held that he  was not substantially less culpable  than the other



          participants for his convicted offense of illegally  transferring



          a firearm.   At  sentencing, the district  court assumed  for the



          purposes   of  sentencing  that  Sam  Gaiewski  was  involved  in



          transferring the  firearm and  may have been  the individual  who



          actually  removed  the  firearm  from  Mangos'  apartment.    The



          district  court,  nevertheless,  found  that   Mangos  owned  the



          firearm, knew of  its intended use, and  authorized its transfer.



          The district court held  that, as a result, a  role reduction was



          not appropriate.  The district court  did not clearly err in this



          determination.  



                    We affirm the sentence imposed by the district court.


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