
USCA1 Opinion

	




          May 3, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1614                                          UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                    DANIEL FRANCO,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Stahl, Circuit Judges.                                            ______________                                 ___________________               Scott A. Lutes, on brief for appellant.               ______________               Lincoln C. Almond, United  States Attorney, and Stephanie S.               _________________                               ____________          Browne, Assistant United States Attorney, on brief for appellee.          ______                                  __________________                                  __________________                      Per  Curiam.   Defendant,  Daniel  Franco,  pleaded                      ___________            guilty to a  one count indictment charging him  with unlawful            possession  of  firearms after  having  been  convicted of  a            felony, in  violation of 18 U.S.C.    922(g).  He appeals the            court's finding  that he was subject  to sentence enhancement            as  an armed career criminal under 18 U.S.C.   924(e)(1), the            sentencing range calculation under    4B1.4 of the Sentencing            Guidelines, and  the  imposition upon  him  of the  costs  of            supervised release.                      The brief filed by defendant's attorney states that            the first two grounds on appeal are raised in accordance with            Anders v.  California, 386  U.S. 738 (1967),  thus indicating            ______     __________            the attorney's view that they are not meritorious.  Defendant            has  been   accorded  an   opportunity  to   file  additional            arguments, which he has not done.                      The  brief  shows  that  defendant's  attorney  has            conducted the  required detailed  review and analysis  of the            case.  Penson  v. Ohio, 488 U.S. 75, 81  n.4 (1988).  Counsel                   ______     ____            has also actively pursued  the one arguable point  on appeal,            and  the prosecution has  now conceded it.   As we agree that            the Anders-briefed  issues are indeed frivolous,  and we find                ______            no other  arguable legal  issues after reviewing  the record,            the  case  may  be  determined  without  further  adversarial            presentation.  Penson, 488 U.S. at 82, 83-84.                           ______                                         -2-                      Under    924(e) a  person convicted of  violating              922(g) is  subject to  sentence enhancement if  he has  three            previous convictions for  a violent felony or  a serious drug            offense  or both.  Defendant  concedes that two  of his prior            offenses were properly classified as "violent" felonies under            18  U.S.C.    924(e).1   He  takes  issue, however,  with the            court's   classification  of   three   other   prior   felony            convictions  as "violent."   Two of the  three convictions at            issue  were entered on pleas of nolo contendere to charges of            breaking  and entering under R.I. Gen. Laws   11-8-3  (1969),            R.I. Gen.  Laws   11-8-3 (1981);  the third was on  a plea of            guilty to  assault with  a dangerous  weapon under  R.I. Gen.            Laws   11-5-2 (1969).                        As to  the two  breaking and  entering convictions,            defendant  argues  that  these   crimes  do  not  qualify  as            predicate  "violent" offenses  because the  state's statutory                                            ____________________            1.      924(e)(2)(B) defines "violent" felony as:                       ... any crime punishable  by imprisonment                      for a term exceeding one year, or any act                      of juvenile delinquency involving the use                      or  carrying  of  a  firearm,  knife,  or                      destructive   device    that   would   be                      punishable by imprisonment for  such term                      if committed by an adult, that --                           (i)   has  as  an element  the  use,                      attempted  use  or   threatened  use   of                      physical  force  against  the  person  of                      another; or                           (ii)   is    burglary,   arson,   or                      extortion,    involves    the   use    of                      explosives, or otherwise involves conduct                      that presents a serious potential risk of                      physical injury to another ....                                         -3-            definition  refers to  several offenses,  some of  which fall            outside the  generic definition  of "burglary."   The state's            definition also does not  include a separately stated element            of violence.  The charging documents in these cases, however,            clearly reveal that in each case defendant was convicted of a            felony that fell squarely  within the "generic" definition of            burglary  (unlawful entry of an  apartment with the intent of            committing larceny, and unlawful entry of a building with the            intent of  committing larceny). Taylor v.  United States, 495                                            ______     _____________            U.S. 575, 598 (1990); see United States v. Paleo, 967 F.2d 7,                                  ___ _____________    _____            10  (1st Cir. 1992)  (when statute includes  both generic and            non-generic  burglaries,  sentencing  court may  look  to the            charging  documents).   Despite the  absence of  a separately            stated element  of violence,  Congress included  these crimes            among the  predicate "violent" crimes under    924(e) because            of  their "inherent potential for  harm to persons."  Taylor,                                                                  ______            495 U.S. at 588; Paleo, 967 F.2d at 10.                                         _____                      Defendant's conviction for assault with a dangerous            weapon  is also  properly included  as a  predicate "violent"            crime for  sentence enhancement  purposes under    924(e)(1).            By  definition,  this  crime  "has as  an  element  the  use,            attempted use,  or threatened  use of physical  force against            the person of another."  18 U.S.C.   924(e)(2)(B)(i); Taylor,                                                                  ______            495  U.S. at 600-601.   Accordingly, we need  not look beyond            the  fact of  conviction to  determine that  the crime  is an                                         -4-            appropriate predicate offense.   United  States v.  Bregnard,                                             ______________     ________            951  F.2d  457, 459  (1st  Cir.  1991) (Taylor's  categorical                                                    ________            approach extends  to the entire  enhancement statute),  cert.                                                                    _____            denied, 112  S. Ct. 2939 (1992).2   Defendant's argument that            ______               924(e)(2)(B)   defines    assaults  as  violent  predicate            offenses  only if they are accomplished with a "gun, knife or            destructive device" misreads the federal statute.  The quoted            language qualifies only crimes of juvenile delinquency; it is            irrelevant to crimes committed by adult offenders.                        We also find  no error  in the  application of  the            sentencing  guidelines.    As  defendant was  subject  to  an            enhanced  sentence  under    924(e),  his  offense level  was            properly determined  under  4B1.4(a)(b)(3) to be 33.   With a            decrease of  two points  for acceptance of  responsibility to            31, and a criminal  history level of VI, the  court correctly            found the guideline range to be 188-235 months.  As an aside,                                            ____________________            2.    Defendant  seemingly argues that  since he was  charged            with using an object  that was not inherently dangerous,  "to            wit,   a  stick,"  the  state  statute  necessarily  includes            potentially "unharmful"  types of assault.   This argument is            belied by  the statutory definition itself,  which requires a            "dangerous" weapon,  and by the Rhode  Island courts' reading            of the statute as requiring "an unlawful offer to do corporal            injury to  another under such  circumstances as may  create a            reasonable apprehension of immediate  injury ... coupled with            a present  ability to carry the offer into effect."  State v.                                                                 _____            Jeremiah, 546 A.2d 183,  186 (R.I. 1988).  The  object itself            ________            must be either an inherently dangerous object or used in such            a way that serious bodily  harm may have resulted.  State  v.                                                                _____            Mercier, 415 A.2d  465, 467  (R.I. 1980).   Compare with  the            _______                                     _______            statute discussed in  United States v. Harris, 964  F.2d 1234                                  _____________    ______            (1st Cir. 1992), and Bregnard, 951 F.2d at 459-60.                                   ________                                         -5-            we note a typographical error on  the sentencing report, page            5, where,  despite a correct computational  result, the total            offense  level is reported as  "23."  The  district court may            correct this error at any time under Fed. R. Crim. P. 36.                      Lastly,  defendant argues,  and the  government now            concedes, that  in light of  this court's decision  in United                                                                   ______            States v. Corral, 964 F.2d 83, 84 (1st Cir. 1992), issued one            ______    ______            day after the sentence imposed here, the  costs of supervised            release should  not have been  imposed on the  defendant, who            was  found  indigent.   We thus  vacate  that portion  of the            sentence.           In   accordance   with  Anders   we  have                                                        ______            examined  the entire  record  and find  no other  meritorious            issues for  appeal.  Counsel's attention is  directed to Loc.            R. 45.6.                      Accordingly the judgment below is  affirmed in part                                                         ________________            and  vacated   and  remanded  in  part   for  corrections  in                 _________________________________            accordance with this opinion.                                                                 -6-
