United States v. Sawyer

• Court: Court of Appeals for the First Circuit
• Decided: June 2, 1998
• Docket: 96-1657
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 96-1657



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                      CRAIG STEPHEN SAWYER,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                Coffin and Cyr, Circuit Judges.


Jeffrey Silverstein with whom Perry O'Brian, by Appointment of

the Court, was on brief for appellant.

     F. Mark Terison, Assistant U.S. Attorney, with whom Jay P.

McCloskey, United States Attorney, and James L. McCarthy, were on

brief for appellee.


June 2, 1998


COFFIN, Senior Circuit Judge.  This is an appeal from a

conviction and sentence entered against defendant Craig Sawyer for

being a felon in possession of a firearm in violation of 18 U.S.C.

 922(g)(1).  Sawyer pled guilty to the charge after reserving his

right to appeal the district court's denial of his motion to

suppress several guns taken from his residence.  On appeal, he

asserts that the warrant to search his home was not supported by

probable cause and that the good faith exception to the

exclusionary rule cannot properly be applied here.  He also

challenges his 33-month prison term, claiming that the district

court erred in treating a prior burglary conviction as a "crime of

violence" for purposes of calculating his sentence.  See U.S.S.G.

 2K2.1.  We affirm.

                      I. Factual Background

     On August 14, 1995, Penobscot County Sheriff's Detective Carl

Andrews responded to a report of a burglary at the home of Woodford

and Julie Sands in Glenburn, Maine.  He later described his

investigation in an affidavit supporting his request for a warrant

to search Sawyer's home.  According to the affidavit, another

investigator, Deputy Costain, discovered a footprint on the outside

cellar door of the Sands' home.  A photograph of the print on the

door accompanied the affidavit.  Andrews checked the property and

observed footprints with a similar pattern "clearly etched" in the

sand of the dirt road outside the house.  He took up the trail, and

described what he then found as follows:

     [paragraph 4] Your affiant followed these foot prints

     through a wooded pathway to within two hundred yards of

     the Chubbuck residence on the Pushaw Road.  Your affiant

     then back tracked these same tracks South of the

     residence to the tarred portion of the road at which time

     each neighboring driveway was checked as the interview of

     the neighbors was done.



     [paragraph 5] Approximately one hundred yards from the

     start of the paved road and approximately one third of a

     mile South of the Sands residence, is the driveway of the

     Craig Sawyer residence.  While going to the Sawyer

     residence, your affiant, accompanied by Deputy Costain,

     located the same foot prints that we had followed

     previously.  Your affiant was able to see the track to

     within approximately ten yards of the Sawyer residence

     and was able to see it no further.



     The affidavit went on to report that later the same night, "at

an incident in the same area . . . and at the Chubbuck residence,"

some of the items stolen from the Sands' home were recovered.  A

number of items remained missing, however, and no one at the

Chubbucks' house had footwear with the tread pattern the officers

had been following.  Andrews reported that statements taken from

neighbors, including one mentioned in the affidavit by name,

"indicate that the Chubbucks are associates of Mr. Craig Sawyer." 

Another neighbor reported seeing Sawyer's 16-year-old son "riding

up the road away from the Sands residence around the time of the

burglary."

     After describing this sequence of events, Andrews stated that

he

     believe[d] that based on the defined and obvious tread

     pattern located on the door, on the road, and again in

     the Sawyer driveway, that it is likely that the shoes

     making the print and some of the stolen property [are]

     secreted or located at the Sawyer residence.



The warrant was issued, and the Sawyer home was searched on August

15.  Five firearms were seized, but the search yielded no evidence

of the Sands burglary.

     Sawyer was arrested in November 1995 and charged in a one-

count indictment with being a felon in possession of a firearm. 

See 18 U.S.C.  922(g)(1).  In denying Sawyer's motion to suppress

the guns, the district court bypassed what it termed the "very

close question" of whether there was probable cause to search and

instead concluded that the weapons were admissible in any event

because of the officer's "good faith" reliance on the warrant.  SeeUnited States v. Leon, 468 U.S. 897, 922 (1984).  Sawyer then

entered a conditional guilty plea and was sentenced at the bottom

of the applicable guideline range to a 33-month term.  This appeal

followed.

                      II. The Search Warrant

     Sawyer's argument that the district court erred in denying his

suppression motion targets the court's application of the Leon good

faith exception to the exclusionary rule.  He claims that the court

used the wrong standard to evaluate the officer's good faith, and

that the correct standard would not permit a finding that Detective

Andrews reasonably relied on the sufficiency of the warrant.  The

government agrees with the district court's resolution of the Leonissue, but it also maintains that the court wrongly viewed the

question of probable cause as "close" and thus needlessly went on

to the good-faith determination.

     Whether "a given set of facts constituted probable cause[] is

a question of law subject to de novo review," United States v.

Khounsavanh, 113 F.3d 279, 282 (1st Cir. 1997), while a district

court's findings with respect to the facts leading to the search

must be upheld unless they are clearly erroneous, id..  A reviewing

court must give "great deference" to a magistrate's assessment of

the facts and inferences supporting the affidavit, however,

"reversing only if there is no "'substantial basis for . . .

conclud[ing]' that probable cause existed."  United States v.

Procopio, 88 F.3d 21, 25 (1st Cir. 1996) (citations omitted).

     Our review of the record has led us to agree with the

government that the district court wrongly concluded that the

affidavit probably was inadequate to demonstrate probable cause to

search Sawyer's home.  The error, we think, is traceable to a

mistake in the court's reading of the affidavit.  In responding to

the government's argument that probable cause to search was

established, the court stated:

          I think it is a very close question whether there is

     probable cause and to come down on the side there is no

     probable cause for issuance of a warrant, the footprint

     testimony never really connects even by solid inference

     the Sawyer premises to whatever the conduct was that

     occurred in the course of a robbery, assuming that that

     is what is indicated, that led to evidence being

     considered by the officer.  As I read the affidavit, the

     footprints never led into the driveway of the Sawyer

     place, the only inference that supports that would be the

     inference that might arise from third-party statements 

     that Mr. Sawyer associated with the Chubbucks on

     occasion, and that the Chubbucks had coughed up or been

     discovered with parts of the fruits of the robbery.  I

     don't think that is enough.  But as I say, it's a very

     close question.



Tr. at 3-4 (emphasis added).  The district court's reading of the

affidavit to say that "the footprints never led into the driveway

of the Sawyer place" is directly at odds with the narration in

Andrews' affidavit.  In paragraph five, quoted in full above, seesupra at 3, the detective reported that he and Costain encountered

the Sawyer driveway about a third of a mile from the Sands

residence, and "[w]hile going to the Sawyer residence" picked up

the track and was "able to see the track to within approximately

ten yards of the Sawyer residence and was able to see it no

further."  Our understanding of Andrews' statement is that the two

law enforcement officers re-discovered the familiar footprint

pattern after they started down the Sawyer driveway. 

     If paragraph five falls short of an express statement that the

tracks led onto the Sawyer property, that fact is confirmed by two

additional, explicit assertions.  In the opening paragraph of the

affidavit, Andrews states his expectation of finding in the Sawyer

home a shoe or boot matching the print that was found both on the

Sands' cellar door and "in the driveway of the Sawyer residence." 

In paragraph eight of the affidavit, Andrews stated that the

"defined and obvious tread pattern" was "located on the door, on

the road, and again in the Sawyer driveway."

     Although more detail about the circumstances surrounding the

discovery of the footprints near the Sawyer home would have

strengthened the showing, the affidavit as drafted unequivocally

linked the house with the footprint trail that began on the Sands'

door.  That connection, together with a neighbor's report that

Sawyer's 16-year-old son was seen in the area of the burglary at

about when it occurred, the recovery of some of the stolen property

from the Chubbucks' home, the reported association between Sawyer

and the Chubbucks, the "missing" footwear, and the inferences

supported by these facts establish with some room to spare "a fair

probability" that contraband or evidence of the burglary would be

found at the Sawyer home.  See Khounsavanh, 113 F.3d at 283

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).  The

information contained in the affidavit was obtained directly by the

affiant, it bore no signs of unreliability, and the picture painted

was of a classic follow-the-footprints police investigation.  The

fact that more could have been shown does not invalidate the

search; "probable cause requires only a probability or substantial

chance of criminal activity, not an actual showing of such

activity," Gates, 462 U.S. at 244 n.13; see Khounsavanh, 113 F.3d

at 283 ("[p]robability is the touchstone") (quoting United Statesv. Aguirre, 839 F.2d 854, 857 (1st Cir. 1988)).  We therefore hold

that the warrant was properly issued.

     Our probable cause determination makes it unnecessary to

address the district court's conclusion that, even if probable

cause did not exist, the firearms were admissible under the good

faith exception to the exclusionary rule.  See Leon, 468 U.S. at

922.  We therefore do not consider Sawyer's objections to the

district court's approach to the Leon issue.

                III. The Crime of Violence Ruling

     The severity of Sawyer's sentence in this case depends upon

whether his prior felony conviction for burglary constituted a

crime of violence under  2K2.1(a)(4)(A) of the United States

Sentencing Guidelines.  If, as the district court found, the

burglary qualifies as such a crime, Sawyer's base offense level for

the current firearms conviction jumps from 14 to 20, increasing his

range of punishment from 15-21 months to 33-41 months.  Sawyer

contends that the district court's ruling rested on an incorrect

application of our caselaw.  Alternatively, if we endorse the

court's interpretation, he urges us to reconsider our precedent. 

As the question raised is one of law, our review is plenary.  SeeUnited States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992).

     The Maine statute under which Sawyer was convicted provides

that

     [a] person is guilty of burglary if he enters or

     surreptitiously remains in a structure, knowing that he

     is not licensed or privileged to do so, with the intent

     to commit a crime therein.



     Burglary is . . . [a] Class B crime if . . . [t]he

     violation was against a structure that is a dwelling

     place . . . .  All other burglary is a Class C crime.



Me. Rev. Stat. Ann. tit 17-A,  401.



     A "crime of violence" is defined in the Guidelines as any

offense punishable by imprisonment for more than one year that:

     (1) has as an element the use, attempted use, or

     threatened use of physical force against the person of

     another, or (2) 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(a).  It is undisputed that the Maine burglary

statute has no element related to the use of force, and the

burglary was charged as a Class C, non-dwelling crime.  The only

way to classify Sawyer's burglary as a crime of violence,

therefore, is to conclude that it "involves conduct that presents

a serious potential risk of physical injury to another."

     In conducting an inquiry into whether a crime fits that

description, we typically use "a formal categorical approach,"

Taylor v. United States, 495 U.S. 575, 600 (1990); Fiore, 983 F.2d

at 3, which means that we look only to the statutory definition of

the offense, not to the particular facts underlying the conviction. 

The government maintains that we already have performed such an

analysis for the crime at issue here, pointing to our holding in

Fiore that a conviction for breaking and entering a commercial

structure, like burglary of a dwelling, satisfies the "crime of

violence" rubric.  Sawyer offers two retorts: first, that this

case is distinguishable from Fiore; and, second, that Fiore should

be abandoned as the guidepost for non-dwelling burglaries.  

     Sawyer contends that Fiore does not govern this case because

the Rhode Island burglary statute at issue there is significantly

different from the Maine statute, particularly with respect to the

inherent risk of violence.  The statute in Fiore punished the

breaking and entering of various types of structures, at night,

with the intent to commit murder, rape, robbery or larceny.  See983 F.2d at 4 n.6.  Sawyer emphasizes that the Maine statute does

not require a breaking and entering, which on its own implies

forceful conduct; an unprivileged entry or surreptitious remaining

is enough to constitute unlawful presence.  In addition, the

burglar's requisite intent in Maine is to commit any crime, not one

of the four serious felonies listed in the Rhode Island law. 

According to Sawyer, these differences obligate a sentencing judge

to look beyond the statutory language to the charging documents and

other sources to determine whether the particular non-dwelling

burglary posed "a serious potential risk of physical injury to

another."  See Taylor, 495 U.S. at 602 (where a single statutory

provision defines several crimes, sentencing court may look to

charging instrument and jury instructions to determine if crime

committed satisfies "crime of violence" elements); United States v.

Winter, 22 F.3d 15, 18 (1st Cir. 1994). 

     Although, in the abstract, reliance on such statutory

distinctions might be reasonable, Sawyer's argument is unavailing

here because it ignores the scope of the precedent.  Our decision

in Fiore did not rest on the risk posed by an actual break-in; nor

was it linked to the nature of the crime intended to be committed

in the burglarized building.  Rather, after referring to the

Supreme Court's observation in Taylor that "commercial burglaries

often 'pose a far greater risk of harm' than burglaries of dwelling

places," see Fiore, 983 F.2d at 4 (quoting Taylor, 495 U.S. at

594), we generally concluded 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," id..

     That our conclusion was meant to embrace a non-dwelling

burglary even in the absence of the explicit danger factors present

in Fiore is revealed by the context of the language we quoted from

Taylor.  The Supreme Court in that case was called upon to

determine the meaning of the word "burglary" as used in the

sentence enhancement provision of the Armed Career Criminal Act

(ACCA), 18 U.S.C.  924(e), which in similar fashion to the

sentencing guideline at issue here, provides harsher penalties for

those with certain types of prior convictions, including a "violent

felony."  The term "violent felony" is defined to include

"burglary."  In the course of its opinion, the Court rejected the

view that Congress meant "burglary" in the ACCA to cover only a

special subclass of burglaries, such as those meeting the common

law definition, and instead adopted a "generic, contemporary

meaning," 495 U.S. at 598.  That definition covers any "unlawful or

unprivileged entry into, or remaining in, a building or structure,

with intent to commit a crime."  Id. at 599.

     With that understanding of the word "burglary" as backdrop,

and no limiting language, we believe Fiore must be read to extend

the "otherwise" clause of  4B1.2(a)(2) to any conviction for a

non-dwelling burglary where the statute violated includes the

elements of a "generic" burglary as defined by the Supreme Court in

Taylor.  See United States v. Hascall, 76 F.3d 902, 904-906 (8th

Cir. 1996) (relying on Fiore in holding that two commercial

burglaries were crimes of violence under the Guidelines).  In

essence, Fiore states that when a generic burglary takes place it

is irrelevant that the structure invaded is not a dwelling; indeed,

the Supreme Court's definition of "generic burglary" explicitly

includes any "building" or "structure."  All of the elements of

generic burglary are included in the statute under which Sawyer was

convicted, see supra at 8, and Fiore is thus applicable.

     Anticipating a determination that Fiore governs and is fatal

to his claim, Sawyer alternatively urges that we abandon Fiore and

adopt instead the approach taken by the Tenth Circuit in United

States v. Smith, 10 F.3d 724 (1993) (per curiam).  The court there

held that the conspicuous omission of burglary from the list of

specific "crimes of violence" in  4B1.2(a), with the single

exception of burglary of a dwelling, reflected a policy judgment by

the Sentencing Commission that "'mere' unlawful entry of a non-

dwelling for the purpose of stealing property" does not present a

serious potential risk of physical harm to others.  Id. at 732-33;

see also United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995)

(per curiam); United States v. Harrison, 58 F.3d 115, 119 (4th Cir.

1995); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994). 

The panel in Smith advocated a narrow interpretation of the

Guidelines' "otherwise" clause in part because of the inherent

tendency of the career offender provisions to "impose severe

punishments at sudden and arbitrary junctures, in contrast to the

carefully constructed, graduated scheme of sentencing reflected in

the Guidelines."  10 F.3d at 732.

     Whatever the merits of this approach, it is not the one 

this court has followed, and we are not at liberty to revisit the

question without more reason than Sawyer has provided.  See United

States v. Clase-Espinal, 115 F.3d 1054, 1056 (1st Cir. 1997)

(citing Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.

1995), for the proposition that "First Circuit panels generally are

bound by a prior panel decision directly on point").

     We therefore hold that the district court properly classified

the burglary for which Sawyer was convicted as a crime of violence.

     The judgment of the district court is affirmed.