
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2433                                                UNITED STATES,                                 Plaintiff, Appellee,                                          v.                                  HERMAN L. BREWTON,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Herman L. Brewton on brief pro se.               _________________               A.  John  Pappalardo, United  States  Attorney, and  Paul V.               ____________________                                 _______          Kelly, Assistant U.S. Attorney, on brief for appellee.          _____                                  __________________                                     May 11, 1993                                  __________________                 Per  Curiam.  Appellant  appeals from the  denial of his                 ___________            motion to  correct sentence.   He contends that  his sentence            for  unlawfully  possessing  a  firearm  after   having  been            convicted  of a felony  (hereafter, felon in  possession), 18            U.S.C.    922(g),  should  not have  been  enhanced under  18            U.S.C.    924(e) because the  offense of conviction (felon in            possession) is not a "violent  felony."  We disagree with the            appellant's argument and affirm the district court's November            23, 1992 order.                 We  start with  the  words  of  the  relevant  statutes.            Section 922(g) of title 18 states as follows:                      (g) It shall be unlawful for any person -                      (1) who has been  convicted in any  court                      of              a  crime  punishable   by                      imprisonment for        a  term exceeding                      one year;                                        . . .                      to . . . possess . . . any firearm . . ..            Appellant  does not  deny  that  he  possessed a  firearm  in            violation of 18  U.S.C.   922(g) after  having been convicted            of a felony.                 Section 924  of title  18 sets  forth the penalties  for            various crimes, including section 922(g) felon  in possession            offenses.  Section 924(e) reads as follows:                      (e)(1)  In  the  case  of  a  person  who                      violates section 922(g) of this title and                      has three  previous convictions . . . for                      a  violent  felony  or   a  serious  drug                      offense, or both,  committed on occasions                      different from  one another,  such person                                         -2-                      shall be .  . . imprisoned not  less than                      fifteen years . . ..            Appellant did not  dispute below that he had  at least "three            previous convictions . . . for a violent felony or  a serious            drug offense."   He argued instead  that section 924(e)'s  15            year  mandatory minimum sentence should not be imposed on him            because the offense  of conviction -- felon  in possession --            was not itself a violent felony or serious drug offense.                 The  plain language of  section 924(e) does  not require            that the offense of conviction  itself be a violent felony or            a serious drug offense for section 924(e)'s mandatory 15 year            prison term to apply.  Rather, it says that any defendant who            has at  least three previous  violent felony or  serious drug                                ________            offense convictions when he unlawfully possesses a firearm in            violation of  section 922(g)  must be sentenced  to at  least            fifteen years in prison.                 Bypassing  section  924(e)'s plain  language,  appellant            reads United States v. Doe, 960 F.2d 221 (1st Cir. 1992),  to                  _____________    ___            say that the  offense of conviction itself must  be a violent            felony  before  section   924(e)'s  15  year  term   applies.            Appellant's reading is wrong.   In Doe, the defendant -- like                                               ___            appellant  --   had  been  convicted  of  being  a  felon  in            possession in violation of 18 U.S.C.   922(g).  In addressing            whether  Doe was subject  to   924(e)'s  mandatory minimum 15                     ___            year  prison  term,  we  determined that  a  prior  felon  in                                                         _____            possession conviction could not properly be counted as one of                                         -3-            the "three previous  convictions . . . for  a violent felony"            within the  meaning of  18 U.S.C.    924(e) because  felon in            possession was  not necessarily a  violent crime.  Doe  in no                                                               ___            manner  requires the  offense of  conviction itself  to be  a            violent crime.                 Next, appellant contends that  the district court  erred            in  holding  that  appellant  was  a  career  criminal  under            U.S.S.G.    4B1.1 because   4B1.1 specifically does not apply            if the offense  of conviction (felon in possession)  is not a            violent felony  and, under both  Doe and a 1991  amendment to                                             ___            U.S.S.G.   4B1.1, application note  2, felon in possession is            not a violent felony.                 While  appellant  correctly  reads     4B1.1,  appellant            misunderstands the  record, for  there is  no indication  the            district  court applied   4B1.1  to appellant.  Appellant was            not sentenced  pursuant  to U.S.S.G.    4B1.1.   Rather,  the            presentence  report, to which  appellant filed  no objection,            calculated    appellant's   sentence    under   U.S.S.G.                 2K2.1(a)(2)(1987), the guideline which applied to 18 U.S.C.              922(g)  offenses, and  U.S.S.G.  5G1.1(b) (statutory  minimum            sentence imposed when  it is greater than the  maximum of the            applicable   guideline  range).     Appellant   received  the            statutory minimum  sentence, 15 years.   18 U.S.C.    924(e).            Consequently, appellant's argument is meritless.                                            -4-                 We have  addressed the arguments appellant  raised below            in his Rule 35  motion and papers, and  we find them  without            merit.     We  do  not  address  new   matter  (e.g.  whether            appellant's predicate offenses  constituted violent felonies)            raised for the first time in appellant's appellate brief.                 Affirmed.                  ________                                         -5-
