          United States Court of Appeals
                     For the First Circuit


No. 13-2055

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        JOSEPH DUQUETTE,

                      Defendant, Appellant.


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

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                  Howard, Selya, and Thompson,
                         Circuit Judges.


     Lenore Glaser on brief for appellant.
     Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney (Appellate Chief),
on brief for appellee.



                        February 13, 2015
          THOMPSON, Circuit Judge.        Appellant Joseph Duquette

("Duquette") challenges the 15-year sentence meted out to him after

pleading guilty to being a felon in possession of multiple firearms

in violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal

Act ("ACCA"), 18 U.S.C. § 924(e).      We affirm.

                            I. BACKGROUND

          The events culminating in Duquette's conviction and

sentence occurred in January of 2011.         Duquette's 14-year-old

daughter, along with her brother (it is not clear from the record

if he was Duquette's son), stayed at Duquette's home in Maine for

a weekend visit.     During their visit, Duquette's daughter saw a

shotgun on the kitchen table.    Duquette then showed her a pistol

that he kept in his bedroom, and she noticed two loaded magazines

on the dresser, too. Those magazines, Duquette explained, were for

his "AK-47."

          Duquette warned the two youngsters not to touch any of

the guns, as they could "blow a hole in them [that is, the

children]."    This prohibition did not apply to him, though.   After

becoming upset at some point that weekend, Duquette threatened to

kill his daughter's mother, got his pistol, and left the house.

Fortunately, Duquette did not follow through with his threat, and

he returned home a short while later.     Nevertheless, his daughter

was sufficiently worried that she later told her mother about what

had happened. Her mother promptly contacted the police, who, after


                                 -2-
obtaining a search warrant, recovered a rifle, a shotgun, a pistol,

and some ammunition from Duquette's home. Duquette's possession of

these weapons was a problem for him because he had multiple prior

felony convictions.

           A grand jury charged Duquette with unlawful possession of

firearms after having been convicted of multiple crimes classified

as felonies under the laws of Maine.           The indictment alleged that

his prior felony convictions included unlawful trafficking in

scheduled drugs, two convictions for possession of a firearm by a

felon, trafficking in prison contraband, escape, assault on an

officer, and--of import here--two burglary convictions.          Given his

record,   the   government    alleged   that    Duquette's   possession   of

firearms was in violation of 18 U.S.C. §§ 922(g)(1)1 and 924(e)2,

charges which carried with them the possibility of a mandatory 15-

year minimum sentence.       Duquette ultimately entered a guilty plea.

           At Duquette's sentencing hearing, the district judge

first determined what the United States Sentencing Guidelines



     1
       "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 in or affecting
commerce, any firearm or ammunition . . . ."           18 U.S.C.
§ 922(g)(1).
     2
      "In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court referred to
in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another, such person shall be . . . imprisoned not less
than fifteen years." 18 U.S.C. § 924(e)(1).

                                    -3-
("Guidelines") had to say about how long his sentence should be.

Applying the Guidelines's directives, the judge took into account

the nature of Duquette's offense and the fact that it involved

firearms,      his    criminal   history,       and    that   he    had   accepted

responsibility for his actions by pleading guilty.                 Based on these

factors, the judge determined that the Guidelines recommended a

sentence somewhere between 135 and 168 months.

             After settling on the sentencing range recommended by the

Guidelines, the district judge still had to contend with the

potentially-applicable statutory minimum sentence in the ACCA.                  To

be subject to the ACCA's 15-year minimum sentence, three or more of

Duquette's     past     convictions      must   have    qualified    as   "violent

felonies." See 18 U.S.C. § 924(e)(1). A "violent felony," as that

term is used in the ACCA, includes (among others) any crime

"punishable by imprisonment for a term exceeding one year . . .

that . . . is burglary."         18 U.S.C. § 924(e)(2)(B).           The district

judge   found        that   Duquette's     state-law     burglary     convictions

constituted violent felonies given that he had been sentenced to

more than one year in jail as punishment for each crime.                  The judge

concluded that, in light of his other priors, Duquette had at least

three convictions for violent felonies.                Accordingly, and because

the   ACCA's    minimum     15-year   (180-month)       sentence    exceeded   the

Guidelines-recommended range of 135 to 168 months, the district




                                         -4-
judge    imposed   the   statutory   minimum       jail   term   of   15    years.

Duquette's appeal of his sentence followed.

                                II. DISCUSSION

            Duquette's sole challenge to the length of his sentence

can be summed up rather succinctly.          Conceding that his prior drug

and assault convictions qualify as two out of the three convictions

needed to trigger the ACCA's minimum sentence, Duquette refers back

to the Guidelines to argue that he may be designated as a "career

offender" only if his burglary convictions qualify as crimes of

violence, not as defined by the ACCA, but as defined by the

Guidelines.    See U.S.S.G. § 4B1.1.        Duquette, however, never tells

us why he thinks the Guidelines's definition of a crime of violence

should trump the ACCA's clear language and its own, specific

definition of a violent felony.

            He simply says that, for his burglaries to count towards

career    offender    status,   he   must    have     burglarized     someone's

dwelling, not simply any old structure. See U.S.S.G. § 4B1.2. The

problem, as Duquette sees it, is that there was no evidence in the

record showing that either of his past burglaries involved a

dwelling.    And in the absence of such evidence, he posits that the

district court had no basis for concluding that his past burglaries

were    violent    felonies   triggering     the    ACCA's   15-year       minimum

sentence.    See 18 U.S.C. § 924(e)(1).        Duquette urges us to vacate




                                     -5-
his sentence and remand for the district court to sentence him

again, without regard to the ACCA's 15-year minimum.

            The government raises several arguments against this, but

the only one we need concern ourselves with is its position that

the ACCA does not require a defendant's burglary to have involved

a dwelling for it to count as a violent felony under the ACCA.        The

government also offers up a theory to explain Duquette's failure to

tell us why his sentence should be controlled by the Guidelines and

not the ACCA: "in insisting that only burglary of a dwelling can

qualify as an ACCA 'violent felony,' Duquette confuses that term

with the [] Guidelines' Career Offender provision, which defines

'crime of violence' in a more limited way to apply only to burglary

of a dwelling." As we shall see, the government, not Duquette, has

it right.

            The question we must resolve here is whether Duquette's

past burglary convictions under Maine law qualify as violent

felonies as defined by the ACCA, 18 U.S.C. § 924(e)(1).              "The

determination    of   whether   a   prior   conviction   qualifies   as   a

predicate offense for purposes of the ACCA is a legal question

subject to de novo review."     United States v. Pakala, 568 F.3d 47,

54 (1st Cir. 2009).3


     3
       Unpreserved objections, of course, are subject to plain
error review only. See United States v. Tavares, 705 F.3d 4, 24
(1st Cir. 2014). The government says Duquette has only "arguably
preserved" an objection to one of the two burglary convictions
being counted as a predicate offense toward armed career criminal

                                    -6-
             Resolving   the   issue    raised   by     Duquette   is

straightforward. "In Taylor v. United States, 495 U.S. 575 (1990),

the Supreme Court addressed what burglaries constitute violent

felonies under § 924(e)(2)(B)(ii) of the ACCA."         Id. (internal

quotation marks and brackets omitted). The Taylor Court "held that

a 'generic burglary' constitutes a 'violent felony' for purposes of

the ACCA."    Id. (quoting Taylor, 495 U.S. at 599).   It proceeded to

"define[] a 'generic burglary' as 'any crime, regardless of its

exact definition or label, having the basic elements of unlawful or

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



status and, therefore, plain error review should apply to any
appellate argument not predicated upon that particular offense. To
prevail under the plain error standard, Duquette would "bear the
burden of showing '(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
     The record reveals that at the change of plea hearing,
Duquette's lawyer advised the court that Duquette would argue at
sentencing that certain of his past convictions should not count
towards armed career criminal status. Then at sentencing, Duquette
himself informed the judge that one of his convictions "was a Class
C burglary of a school."     He advised the judge that his other
burglary conviction "was a Class C" as well, and was related to an
incident in which a friend of his went off on his own one night and
returned with a "wood splitter," apparently with the police right
on his tail. Based on the record here, and although the question
is close, we think Duquette probably preserved the issues he raises
on appeal. We need not, however, decide this particular question.
Duquette is unable to demonstrate any error--plain or otherwise--so
it makes no difference anyway whether we apply de novo or plain
error review. Since the government appears to have conceded that
de novo review applies to at least one of Duquette's arguments,
we'll just consider our entire review to be de novo and move on.

                                 -7-
with intent to commit a crime."       Id. (quoting Taylor, 495 U.S. at

599).   Nowhere does Taylor indicate (or even imply) that whether

the burgled structure is a dwelling has anything to do with

determining whether the guilty individual committed a "generic

burglary."

             Pursuant to Taylor, our task is to examine the Maine

burglary statute under which Duquette was convicted and determine

whether it sets forth the "generic burglary" elements of (1)

unlawful or unprivileged entry into, or remaining in, (2) a

building or structure, with (3) intent to commit a crime.             If we

find that the statute contains these elements, Duquette's burglary

convictions categorically constitute violent felonies within the

meaning of the ACCA, and our work is done.         See Taylor, 495 U.S. at

602 (recognizing that the ACCA generally requires courts to take a

"categorical approach" by "look[ing] only to the fact of conviction

and   the   statutory   definition   of    the   predicate   [i.e.,   prior]

offense" to determine whether a prior offense fits the ACCA's

definition of a violent felony); see also United States v. Dancy,

640 F.3d 455, 466 (1st Cir. 2011) ("The inquiry under the ACCA is

whether the state's legal definition of the offense of conviction

fulfills . . . the ACCA's definition of a violent felony.").

             Duquette states, and we accept for purposes of this

appeal, that the relevant parts of the Maine burglary statute

provide as follows:


                                     -8-
           A person is guilty of burglary if:

           A. The person enters or surreptitiously
           remains in a structure knowing that that
           person is not licenced or privileged to do so,
           with the intent to commit a crime therein.

Me. Rev. Stat. tit. 17-A, § 401(1).      By its clear and unambiguous

terms, the statute contains all of the elements of "generic

burglary" that the Supreme Court set forth in Taylor. Duquette, in

fact, concedes this in his brief.         See Appellant's Br. at 8

(quoting Taylor, 495 U.S. at 599 ("The statutory elements match the

elements of 'generic burglary' defined as 'unlawful or unprivileged

entry to a building or structure with the intent to commit a

crime.'")).   We find, therefore, that this statutory definition of

burglary   "substantially   corresponds    to   'generic'    burglary."

Taylor, 495 U.S. at 602.     This is fatal to Duquette's appeal:

because Maine's burglary statute sets forth the definition of

"generic burglary," under Taylor, a conviction under that statute

qualifies as a "violent felony" under the ACCA.             And because

Duquette has two burglary convictions and concedes that two of his

other convictions qualify as violent felonies as well, Duquette is

subject to the ACCA's minimum sentence as one who has previously

been convicted of three or more violent felonies.

           Not so fast, says Duquette.    Relying on United States v.

Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc), he argues that the

district judge should not have found that his burglary convictions

count as violent felonies under the ACCA because there is no

                                -9-
evidence in the record to show that he burglarized a residence on

either occasion.   Duquette's argument is off-base though.

           The long and short of it is that Giggey involved the

interpretation and application of the Guidelines's definition of a

"crime of violence," not the ACCA's definition of a "violent

felony."   We held in Giggey that "a prior conviction for burglary

not of a dwelling is not per se a 'crime of violence'" under the

Guidelines's definition of a career offender.         Id. at 28.    In the

course of reaching this conclusion, we did, however, recognize and

note that the Guidelines's career offender provisions are concerned

with a definition of burglary that is "narrower" than the ACCA's

definition of that crime.       Id. at 36.       Although satisfying the

Guidelines's narrower definition of burglary requires a burglary to

have involved a residence, "the term 'burglary' as used in the ACCA

[is] broad enough to include both residential and non-residential

offenses."   Id. at 35-36.       Accordingly, and to the extent it

applies here at all, Giggey actually hurts Duquette's position.

           And   even   if   Duquette    could   convince   us   that   his

burglaries do not qualify as "crimes of violence" or render him a

"career offender" pursuant to the Guidelines (an issue on which we

express no opinion), this would do him no good anyway.             Because

Duquette's sentence is reflective of the ACCA's statutory minimum,

and not a sentencing range suggested by the Guidelines, showing

that his burglaries were not "crimes of violence" or that he is not


                                  -10-
a "career offender" for Guidelines purposes could not result in him

receiving a sentence shorter than the 15 years mandated by the

ACCA.   See Dorsey v. United States, 132 S.Ct. 2321, 2327 (2012)

(recognizing that because a federal sentencing statute "trumps the

Guidelines[,] . . . ordinarily no matter what range the Guidelines

set forth, a sentencing judge must sentence an offender to at least

the   minimum      prison   term    set    forth    in   a   statutory   mandatory

minimum").

                                   III. CONCLUSION

             For the reasons set forth above, the district judge did

not   err   when    he   concluded     that      Duquette's    prior   convictions

subjected him to the ACCA's 15-year minimum sentence.

             Affirmed.




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