          United States Court of Appeals
                        For the First Circuit


No. 15-1292

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            GARRY COLLINS,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

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


                                Before

                     Torruella, Lynch, and Barron,
                            Circuit Judges.


     Lauren Wille, with whom John Paul DeGrinney and DeGrinney Law
Offices were on brief, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.


                           January 22, 2016
             BARRON,   Circuit   Judge.   Garry   Collins   appeals   his

conviction for possession with intent to distribute cocaine base,

in violation of 21 U.S.C. § 841(a)(1).       He does so by challenging

the District Court's denial of his pre-trial motion to suppress

evidence.     He also appeals his 200-month prison sentence on the

ground that the District Court erroneously applied the United

States Sentencing Guidelines' career offender enhancement to him.

We affirm.

                                    I.

             At approximately 10:00 a.m. on June 4, 2013, John Morin,

an officer with the Portland Police Department, responded to a

report that two individuals on Emery Street in Portland, Maine

were fighting about drugs.1        Those two individuals were Collins

and Kristie Parsons.       When Officer Morin arrived at the scene,

Collins was seated in the driver's seat of Parsons's car, and

Parsons was standing next to the car.

             Upon running a check on the license plate on Parsons's

car, Officer Morin discovered that Parsons was on bail, and he

concluded that her bail conditions permitted the search of her

vehicle.     And so Officer Morin searched her vehicle.      He found a

hypodermic needle protruding from under the driver's seat, two or

three key cards from the Clarion Hotel (where Parsons said she was


     1 The relevant facts are taken from the hearing on Collins's
motion to suppress and are not in dispute.


                                     - 2 -
staying) in the center console, and a blue gym bag in the back

seat.

              Morin asked Collins and Parsons to whom the gym bag

belonged, and Collins and Parsons each denied that the bag was

theirs.      Parsons said that the bag belonged to "[t]he guy from

[room] 133" with "some weird name."                Officer Morin searched the

bag, which contained not only men's clothing, underwear, and

sneakers, but also cocaine, empty "sandwich bags," and razor

blades.

              Collins   was    charged     with    possession   with    intent   to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1).

Prior   to    trial,    he    moved   to   suppress    the   evidence    found   in

Parsons's car, including the evidence found in the gym bag.                 After

an evidentiary hearing at which no one -- including Collins --

claimed ownership in the gym bag, the District Court denied the

motion.      Collins then entered a straight guilty plea to the single

count charged, but he reserved the right to challenge the District

Court's denial of his suppression motion.

              The case proceeded to sentencing, and the District Court

sentenced Collins as a career offender, pursuant to § 4B1.1 of the

United States Sentencing Guidelines.                 The resulting sentencing

range under the guidelines was 262 to 327 months' imprisonment,

but the District Court imposed a below-guidelines sentence of 200

months.      Collins appeals both the conviction and the sentence.


                                           - 3 -
                                II.

           In challenging the conviction, Collins argues that the

search of the gym bag violated his Fourth Amendment rights and

that the District Court therefore should have suppressed the

evidence found in that bag.2    And Collins further contends that,

with that evidence out of the case, the conviction cannot stand.

           The District Court rejected the motion to suppress on

the ground that Collins had not asserted an ownership interest in

the bag or the contents of the bag at the evidentiary hearing.   We

review the District Court's conclusions of law de novo and findings

of fact for clear error.   United States v. Belton, 520 F.3d 80, 82

(1st Cir. 2008).

           Collins proceeds with his argument on the understanding

that the evidence at the suppression hearing showed that the bag

belonged to someone else -- "the guy from 133" who had "some weird

name."   But Collins argues that even accepting that fact, Officer

Morin should have ceased searching the bag when he discovered "male

clothes," as at that point Morin would have known that the bag did




     2 In his brief on appeal, Collins challenged both the search
of the car and the search of the gym bag.       At oral argument,
however, Collins's counsel stated that Collins is "not challenging
the search of the car," and conceded that "there was no violation
of a Fourth Amendment right there." And so we, too, proceed on
the understanding that the search of the car was constitutional,
and that the only question before us is whether the search of the
bag violated Collins's rights.



                                  - 4 -
not belong to Parsons and therefore that her bail conditions did

not permit its search.

            Collins's argument, however, is beside the point.                    The

District Court correctly held that Fourth Amendment rights are

"personal" and that Collins may successfully challenge the search

of the bag on Fourth Amendment grounds only if he has "a legitimate

expectation of privacy" in that bag.               United States v. Sanchez,

943 F.2d 110, 112 (1st Cir. 1991) (citing Rakas v. Illinois, 439

U.S. 128, 138-48 (1978)).          Because Collins does not challenge the

District Court's finding that he did not claim the bag was his, he

cannot show he had an expectation of privacy in the bag.                       Thus,

his Fourth Amendment argument fails.               And while Collins contends

that he cannot be forced to admit his guilt in order to preserve

his   Fourth     Amendment      rights,    the   law     is   clear    that,   at   a

suppression hearing, a defendant may assert ownership of property

without that assertion later being used against him at trial.                    See

United States v. Symonevich, 688 F.3d 12, 21 n.6 (1st Cir. 2012)

("[W]e have long held that testimony given to meet standing

requirements      cannot   be    used     as   direct    evidence      against   the

defendant   at    trial    on    the    question    of    guilt   or   innocence."

(internal quotation marks omitted)).               Accordingly, we affirm the

District Court's denial of the suppression motion.




                                           - 5 -
                                     III.

             Collins's challenge to his sentence is also without

merit.   He argues that the District Court erred when it sentenced

him as a career offender pursuant to U.S.S.G. § 4B1.1.             Under that

guideline, a defendant is a "career offender" and subject to a

potentially     greater    offense   level     than   would   otherwise   be

applicable, so long as three conditions are met. Only one of those

conditions is at issue here: that "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(a).3

             The parties agreed at sentencing that Collins's prior

conviction    for   drug   trafficking      qualified   as    a   "controlled

substance offense," and the District Court proceeded on this

understanding as well.       But the parties disagreed as to whether

the second of the government's proposed predicate offenses --

"criminal threatening with a dangerous weapon" -- qualified as a

"crime of violence."        Collins argued that the offense did not

qualify as a crime of violence and therefore that he should not be

sentenced as a career offender.




     3 The two other conditions are, first, that "the defendant
was at least eighteen years old at the time the defendant committed
the instant offense of conviction" and, second, that "the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense." U.S.S.G. § 4B1.1(a).


                                       - 6 -
          The sentencing guidelines define "crime of violence" as

"any offense under federal or state law, punishable by imprisonment

for a term exceeding 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).      The District Court concluded that Collins's

prior state court conviction for criminal threatening with a

dangerous weapon qualified as a crime of violence under subsection

(1) of this definition, the so-called "Force Clause."              And it is

to this conclusion that Collins now objects.

          We review the District Court's decision on this purely

legal question de novo.     See United States v. Curet, 670 F.3d 296,

301-02 (1st Cir. 2012).4     And we affirm.

          The   parties    agree   that   Collins's   prior    offense    of

conviction "constitutes a crime of violence 'only if its elements

are such that we can conclude that a person convicted of the

offense has necessarily been found guilty of conduct that meets




     4 The government argued below          that the prior conviction
qualified under both the Force Clause       and the catch-all clause in
subsection (2), known as the "Residual      Clause." The District Court
did not address the latter argument,        and the government does not
press it on appeal.


                                    - 7 -
the [§ 4B1.2(a)][(1)] definition.'"                 United States v. Ramos-

González, 775 F.3d 483, 504 (1st Cir. 2015) (quoting United States

v. Martínez, 762 F.3d 127, 133 (1st Cir. 2014)) (alteration in

original).     In other words, under this categorical approach, "the

elements of the statute of conviction, not . . . the facts of

[Collins's] conduct," determine the proper classification of the

offense of which Collins was convicted. Id. (quoting United States

v. Fish, 758 F.3d 1, 5 (1st Cir. 2014)) (omission in original).

              The parties also agree that, pursuant to the statutes

under which Collins was convicted, a person is guilty of "criminal

threatening with a dangerous weapon" if "he intentionally or

knowingly places another person in fear of imminent bodily injury,"

17-A M.R.S. § 209(1), "with the use of a dangerous weapon,"

id. § 1252(4).        Maine law defines "use of a dangerous weapon" as

"the use of a firearm or other weapon, device, instrument, material

or substance, whether animate or inanimate, which, in the manner

it is used or threatened to be used is capable of producing death

or serious bodily injury."            Id. § 2(9)(A).

              Putting        these   statutory     definitions   together,       we

conclude that Collins's prior conviction for criminal threatening

with a dangerous weapon qualifies as a crime of violence under the

Force Clause.     The statutory elements are such that his conviction

required proof that Collins intentionally or knowingly placed his

victim   in    fear     of    imminent   bodily    injury   through   use   of   an


                                           - 8 -
instrument which, in the manner Collins used or threatened to use

it, was capable of producing death or serious bodily injury.               This

necessarily    constitutes   "threatened        use   of    [force   capable   of

causing physical pain or injury] against the person of another."

U.S.S.G. § 4B1.2; United States v. Johnson, 559 U.S. 133, 140

(2010) (defining "physical force" as "violent force," and "violent

force" as "force capable of causing physical pain or injury").

          In arguing against this conclusion, Collins cites the

Maine Supreme Court's decision in State v. Thibodeau, 686 A.2d

1063, 1064 (1996).    That case did not concern criminal threatening

with a dangerous weapon.         Rather, Thibodeau held that, for the

broad crime of criminal threatening, a conviction could lie if the

defendant intended, or knew it was practically certain, that his

victim would be "placed in fear" of imminent bodily injury, even

if that fear was not reasonable.         See id.

          We    do   not   see    how    Thibodeau         renders   non-violent

Collins's offense of conviction.          That offense requires that the

threatening occur through the use of a "dangerous weapon," which

Maine defines to be one "which, in the manner it is used or

threatened to be used is capable of producing death or serious

bodily injury." 17-A M.R.S. §§ 1252(4), 2(9)(A). And so, whatever

Thibodeau may reveal about the proper definition of criminal

threatening, it does not show that criminal threatening with a

dangerous weapon is not a crime of violence.               Cf. United States v.


                                        - 9 -
Whindleton, 797 F.3d 105, 113-16 (2015) (holding that assault with

a dangerous weapon is a violent felony for the purposes of the

ACCA because "[l]ogically, the harm threatened by an assault is

far more violent than offensive touching when committed with a

weapon that is designed to produce or used in a way that is capable

of producing serious bodily harm or death").

          We also are not persuaded by Collins's other ground for

contending that his prior conviction for criminal threatening with

a dangerous weapon is not a crime of violence.       He argues that

such classification would be wrong because the weapon he was

alleged to have used -- a box cutter -- was not designed to be

used as a dangerous weapon.   But although the Maine statutes that

define the offense at issue here speak in terms of a weapon's

capabilities, rather than its design, this distinction is of no

consequence for present purposes.       It is clear that threatening

someone with an item "capable of producing death or serious bodily

injury," 17-A M.R.S. § 2(9)(A) -- whether that item is designed as

a weapon or not -- constitutes threatening physical force.       And

that is enough to render Collins's offense of conviction a crime

of violence under the career offender guideline.

                                  IV.

          For   the   foregoing    reasons,   we   affirm   Collins's

conviction and sentence.




                                   - 10 -
