
USCA1 Opinion

	




          November 24, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1551                                                UNITED STATES,                                      Appellee,                                          v.                              ALFRED LAWRENCE HUNNEWELL,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Wayne R. Foote on brief for appellant.               ______________               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.                                  __________________                                  __________________                      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,                                         ___            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                                            ____________________            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                                            ____________________            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                                ___            "[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                                            ____________________            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.                                         -4-                      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.                                                                      ___            Second, the instant offense must be a felony that is either a            crime  of violence or  a controlled  substance offense.   Id.                                                                      ___            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                                            ____________________            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.            _________  ___                                            ____________________                 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).                                         -6-
