
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2182                                    UNITED STATES,                                      Appellee,                                          v.                                FREDERICK ALAN PIERCE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                                                           Boudin, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            J. Hilary Billings for appellant.            __________________            F. Mark Terison, Assistant United States  Attorney, with whom  Jay            _______________                                                ___        P. McCloskey, United States Attorney, and James L. McCarthy, Assistant        ____________                              _________________        United States Attorney, were on brief for appellee.                                 ____________________                                    July 21, 1995                                 ____________________                      BOWNES,  Senior  Circuit Judge.    In  this appeal,                      BOWNES,  Senior  Circuit Judge.                               _____________________            defendant-appellant  Frederick  Alan  Pierce  challenges,  on            several grounds, his convictions and sentence for  conspiracy            to  possess cocaine  with intent to  distribute, 21  U.S.C.              846, and carrying  a firearm during and in relation to a drug            trafficking crime,  18 U.S.C.    924(c)(1).   After carefully            considering Pierce's arguments, we affirm.                                          I.                                          I.                                          __            A.  Factual Background            A.  Factual Background            ______________________                      On June 28, 1993, pursuant to  a prior plan, Pierce            and a fellow Maine resident, codefendant David Leland Maddox,            drove to  Lawrence, Massachusetts, in order  to purchase four            ounces of cocaine.  Paul Abraham, an acquaintance of Pierce's            who  was  to "middle"  the  deal,  informed drug  enforcement            personnel  of the arrangements.  The sale did not go through.            Pierce  and  Maddox were  arrested  on Interstate  95  in New            Hampshire while  returning to Maine.   The arresting officers            seized  $3,333.50  from Pierce;  they  also confiscated  drug            paraphernalia  and  a  loaded  gun  from  the  car.    Maddox            subsequently pleaded guilty and became a cooperating witness.            B.  Procedural History            B.  Procedural History            ______________________                      On October 12, 1993, Pierce was arraigned on a two-            count indictment charging him  with the crimes of conviction.            On that same day, Magistrate-Judge Beaulieu appointed Gary M.            Growe to  represent him.   In the  ensuing month and  a half,                                         -2-                                          2            problems developed between Growe and Pierce, and, on November            30, 1993, the day before jury selection was to commence,            Growe filed a motion  to withdraw as counsel.   Pierce joined            in  the  motion.   The  government  opposed Growe's  request,            pointing  out  that Pierce  already  had  been provided  with            Jencks discovery  material and arguing that  Pierce might use            the material to create problems for potential witnesses.  The            district court  heard argument on Growe's  motion on December            1, 1993.                      At the hearing, Growe maintained that a personality            conflict was compromising his ability to evaluate objectively            certain defense theories proposed  by Pierce.  After spending            some time inquiring into the particulars of the problem,  the            court  denied the motion.   In so doing,  the court described            the conflict as "not so great that it results in a total lack            of communication preventing an  adequate defense."  That same            day, the court also empaneled the jury for the case.                      On  December  6,  1993,  two  days  before  opening            statements  were scheduled  to  be delivered,  Growe filed  a            second motion  to  withdraw.   Again,  Pierce joined  in  the            motion.    On December  7, 1993,  the  district court  held a            hearing to address the motion.  The essence of Growe's second            withdrawal request was that  his relationship with Pierce had            deteriorated  to  the point  where  (1)  Pierce was  ignoring            Growe's advice and talking  to the press about the  case; and                                         -3-                                          3            (2)  Pierce  believed  Growe  was  wrongfully  providing  the            government with  "vital  information."   After inquiring  for            some time into  the basis  for the second  motion, the  court            denied it.  In so doing, the court pointed out  that the case            was "literally  on the eve of  trial."  It also  stated:  "At            some point, the Court has to take the position that the whole            system just cannot be  -- come down  to its knees because  of            the inability of the  defendant and counsel to agree on -- on            how their case  should be  tried."  The  court did,  however,            grant Growe's motion to  withdraw from representing Pierce in            another  matter  that  was  scheduled  to  go  to  trial  the            following month.                      The  next  day,  the   jury  was  sworn  and  trial            commenced.  On December  10, 1993,  the jury  returned guilty            verdicts on both counts  of the indictment.  On  February 25,            1994, Pierce  moved for  the appointment  of new counsel  for            sentencing, and  on  March 16,  1994, the  court granted  the            motion, appointing Pierce's present counsel to replace Growe.            Meanwhile,  on  February 24,  1994,  the  government filed  a            complaint seeking  civil forfeiture  of the  $3,333.50 seized            from  Pierce at  the time  of his  arrest.   See 21  U.S.C.                                                           ___            881(a)(6)  (subjecting to  civil forfeiture  "[m]oneys .  . .            intended  to be  furnished by  any person  in exchange  for a            controlled substance").   On April  5, 1994, Pierce  filed an                                         -4-                                          4            answer  to  the  complaint.    Subsequently,  the  government            withdrew its claim as to $1,000.                      On October 20, 1994, Magistrate-Judge Beaulieu held            a  bench trial on the  forfeiture action, and  on October 25,            1994,  he  issued an  order of  forfeiture  in the  amount of            $2,333.50.   Judgment entered on October 31, 1994.  That same            day,  Pierce filed a motion  to dismiss the  criminal case on            double jeopardy  grounds.   On  November 1,  1994, the  court            orally denied the motion to dismiss and proceeded to sentence            Pierce.                      The  court  first  determined  that  Pierce's  base            offense level was 18 for  the conspiracy conviction.  Relying            on a 1984 Florida "withheld adjudication" in which Pierce had            pleaded nolo  contendere to a charge  of delivering cannabis,                    ____  __________            and a 1985 Florida sexual battery conviction, the  court then            adjusted  this level to 32  because it determined that Pierce            was a "career offender" under U.S.S.G.   4B1.1 (1994) (person            who  is more than eighteen  years old, stands  convicted of a            crime of violence or a controlled  substance offense, and has            two prior felony convictions for either crimes of violence or            controlled substance offenses is a career offender subject to            an  upward adjustment  of his base  offense level).   Because            Pierce's  criminal  history category  was  VI,  see id.  (all                                                            ___ ___            career offenders have criminal history categories of VI), the            applicable guideline  range was 210 to  the statutory maximum                                         -5-                                          5            of 240 months.  The court then sentenced Pierce to 210 months            on  his conspiracy conviction, and to the mandatory 60 months            consecutive sentence on his firearm conviction, see 18 U.S.C.                                                            ___               924(c)(1) (firearm  sentence  must be  consecutive to  the            underlying  sentence), for  a total  sentence of  270 months'            imprisonment.  This appeal followed.                                         II.                                         II.                                         ___                      Pierce  makes five  arguments on  appeal:   (1) the            entry  of judgment  in the  civil forfeiture action  bars the            instant  criminal prosecution  under  the  Fifth  Amendment's            Double  Jeopardy Clause; (2) the denial of the two motions to            withdraw  constituted an  abuse of  discretion and  led to  a            violation of his Sixth Amendment rights; (3) the 1984 Florida            withheld adjudication was not a "conviction" cognizable under            the  career offender  provisions of  the guidelines;  (4) the            1985 Florida sexual  battery conviction was  not a "crime  of            violence" as  that  term is  defined by  the career  offender            provisions;  and (5) a conspiracy conviction cannot predicate            a finding that a  defendant is a career offender.  We discuss            each in turn.            A.  Double Jeopardy            A.  Double Jeopardy            ___________________                      Pierce  first contends  that  the  Double  Jeopardy            Clause precluded  the  government from  further pursuing  his            criminal  prosecution  once  judgment  entered  in  the civil            forfeiture action.   In Pierce's view, the civil and criminal                                         -6-                                          6            actions  were separate  proceedings arising  out of  the same            criminal acts  and instituted  by the federal  government for            penal  purposes.    See  United States  v.  $405,089.23  U.S.                                ___  _____________      _________________            Currency,  33  F.3d 1210,  1216-22  (9th  Cir. 1994)  (Double            ________            Jeopardy Clause is violated where the same criminal acts give            rise to  both a criminal  prosecution and  a separate,  civil            forfeiture  action   under  21  U.S.C.      881(a)(6);  civil            forfeiture under   881(a)(6) is "punishment"); but see United                                                           ___ ___ ______            States  v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a            ______     ______            particular civil forfeiture brought  under   881(a)(6) not to            be punishment), cert.  denied, 115 S. Ct. 573  (1994); United                            _____  ______                          ______            States v.  One Single  Family Residence,  13 F.3d  1493, 1499            ______     ____________________________            (11th  Cir.  1994) (viewing  a  criminal  prosecution and  an            overlapping  forfeiture  action  to  be part  of  "a  single,            coordinated prosecution"); United  States v.  Millan, 2  F.3d                                       ______________     ______            17, 19-21 (2d Cir. 1993) (same), cert. denied, 114 S. Ct. 922                                             _____ ______            (1994).   Besides arguing  that we should  reject $405,089.23                                                              ___________            and  adopt  the  reasoning   of  Tilley,  One  Single  Family                                             ______   ___________________            Residence,  and Millan,  the  government  responds  that  the            _________       ______            Double Jeopardy Clause, if violated, would bar only the civil            forfeiture proceeding, and not Pierce's criminal prosecution.            Because we agree with this last argument, we reject  Pierce's            double  jeopardy  challenge  without  deciding   whether  the            forfeiture action was a separate penal proceeding.                                         -7-                                          7                      In relevant part,  the Fifth Amendment states  that            no person  shall "be subject for the same offence to be twice            put in  jeopardy of life  or limb."   It is  well established            that  this  Double  Jeopardy  Clause  protects  against  both            successive  punishments and  successive prosecutions  for the            same  criminal offense.  E.g., United States v. Dixon, 113 S.                                     ____  _____________    _____            Ct.  2849, 2855 (1993).  The Clause does not even potentially            come into play, however, until  the defendant has first  been            put  into jeopardy.    Crist v.  Bretz,  437 U.S.  28,  32-33                                   _____     _____            (1978).  And even then, it is only the second proceeding that                                                   ______            is constitutionally endangered, for the Clause's basic design            is  "to protect  an individual  from being  subjected to  the            hazards of  trial and possible conviction more  than once for                                                      ____  ____ ____            an alleged offense."   Green v. United States, 355  U.S. 184,                                   _____    _____________            187 (1957) (emphasis supplied).                      Our inquiry therefore reduces to whether Pierce was            first subjected  to jeopardy for the  conduct underlying this            action prior  to jeopardy attaching in this action.  Plainly,                   _____  __            he  was  not.   It is  settled  that jeopardy  attaches  in a            criminal  jury case  when the  jury  is empaneled  and sworn.            E.g.,  Crist, 437  U.S. at  35.   Pierce's criminal  jury was            ____   _____            empaneled on December 1, 1993, and sworn on December 8, 1993,            several months prior to the inception of the civil forfeiture            proceeding.  Thus, any double jeopardy problem arising out of                                         -8-                                          8            the institution  of the civil forfeiture  proceeding can only            be seen as imperiling that proceeding.                      Pierce  does   not  challenge  any   of  the  legal            principles  we have  set  forth;  nor  does he  dispute  that            jeopardy first attached in the criminal proceeding.  Instead,            he  disagrees with  our mode  of analysis.   Focusing  on the            Double  Jeopardy  Clause's  prohibition   against  successive            punishments, Pierce contends  that the  moment of  punishment            ___________            controls, asserting  that "the  issue is  not  so much  which            jeopardy attaches first as which jeopardy is first complete."            Because  jeopardy first "became complete," and punishment was            first  imposed   (in  the  form  of   the  judgment  ordering            forfeiture) in  the civil proceeding, Pierce  argues that his            sentence in this case  is a "successive punishment" precluded            by the Clause.  We are not persuaded.                      Pierce's argument that the "completion" of jeopardy            triggers  the Clause's protections  completely disregards the            fact  that  the  Clause   protects  against  more  than  just            successive punishments; it  also protects against  successive            prosecutions.    To  illustrate, if  Pierce's  argument  were            correct, he would not have been entitled to assert the double            jeopardy bar in the  civil forfeiture action because jeopardy            had  not yet  been "completed"  in this  criminal proceeding.            Patently,  however, Pierce  was  so entitled  (presuming,  of                                         -9-                                          9            course,  that the  forfeiture  action was  both separate  and            punitive).  The Supreme Court has made quite clear that                       the  State  with  all its  resources  and                      power  should  not  be  allowed  to  make                      repeated    attempts   to    convict   an                      individual   for   an  alleged   offense,                      thereby subjecting  him to embarrassment,                      expense  and ordeal and compelling him to                      live in a continuing state of anxiety and                      insecurity,  as  well  as  enhancing  the                      possibility that even though  innocent he                      may be found guilty.            Green,  355  U.S. at  187.   This  sentiment, along  with the            _____            accused's interest  in retaining a chosen  jury, has fostered            the view that jeopardy attaches in a jury trial when the jury            is empaneled  and sworn.  See  Crist, 437 U.S. at  35-36.  It                                      ___  _____            also  has led  to the  rule that  the denial  of a  motion to            dismiss on double jeopardy grounds is immediately appealable.            Abney v. United States, 431 U.S. 651, 661-62 (1977).                _____    _____________                      Although  he  does  not say  so  explicitly, Pierce            implies that  a criminal defendant  should have the  right to            withhold objection to a  forbidden successive prosecution and            raise a double jeopardy  argument only in the event  that the            second  prosecution   leads  to  a  prior   and  less  severe            punishment than that  meted out  in the original  case.   Put            another way, a defendant  ought to have the option  to endure            an  unconstitutional second  trial in  the hope that  it will            both conclude first  and lead  to a  more lenient  punishment            than  that eventually imposed in the first trial, and then to            object to the punishment imposed in the first trial on double                                         -10-                                          10            jeopardy grounds.  We cannot locate  any authority to support            this proposition, and we reject it out of hand.                      The Double Jeopardy Clause  is a shield against the            oppression inherent in a duplicative, punitive proceeding; it            is not a tool by which a defendant can avoid the consequences            of  the proceeding in which jeopardy first attached.  The law            of double jeopardy is quite complicated, and often (as here),            the question whether a  second proceeding violates the Clause            is  a close one.   Because, under Article  III of the Federal            Constitution,  the  question  can  only be  answered  in  the            context  of an actual case  or controversy, the  public has a            strong interest in the government being able to institute the            second proceeding without risking the first.  After all,  the            government should  not be dissuaded from  bringing legitimate            penal  proceedings,  and  opposing  counsel  and  the  courts            (including the appellate  courts, see Abney, 431 U.S. at 661-                                              ___ _____            62)  are  there  to  protect the  defendant's  rights  if the            government has miscalculated.  This simply is not a situation            where  the price to society of allowing a defendant to parlay            the government's miscalculation into a "get out of jail free"            card is worth the deterrent effect such a regime might have.                      Pierce's   theory   of  completed   jeopardy  would            effectively trade away some  of the most valuable protections            of the Double Jeopardy  Clause for rather dubious gains.   We                                         -11-                                          11            therefore reject it,  and overrule  Pierce's double  jeopardy            challenge to the penalty imposed in this proceeding.            B.  Denial of Motions to Withdraw            B.  Denial of Motions to Withdraw            _________________________________                      Pierce  next  asserts  that  the  district  court's            denial of the two motions to withdraw constituted an abuse of            discretion  and led  to  a violation  of his  Sixth Amendment            rights.  To  the extent that Pierce is  taking issue with the            adequacy  of  his  representation  after the  denial  of  the            motions, we  think that his fact-specific  argument should be            more fully developed and  presented to the district  court in            the first instance.  Accordingly, we decline to address it at            this  time.  See, e.g.,  United States v.  Jadusingh, 12 F.3d                         ___  ____   _____________     _________            1162,  1169-70 (1st  Cir.  1994)  (fact-specific  ineffective            assistance claims ordinarily ought  first be presented to the            district court in a 28 U.S.C.   2255 petition).  We therefore            limit our  focus to  whether, in  light of the  then-existing                                                            _____________            circumstances,  the court erred  in denying the  motion.  Cf.                                                                      ___            United  States v. Torres, 793  F.2d 436, 440  (1st Cir. 1986)            ______________    ______            (in  evaluating the denial of  a motion for  a continuance to            obtain new counsel, "we must pay particular attention to `the            reasons  presented to the trial judge at the time the request                                                  __ ___ ____ ___ _______            is denied'") (quoting  Ungar v. Sarafite,  376 U.S. 575,  589            __ ______              _____    ________            (1964)) (emphasis supplied).  We detect no error.                      In the analogous context of a challenge to a denial            of a defendant's motion to substitute counsel, we have stated                                         -12-                                          12            that  we  will  "consider  several   factors,  including  the            timeliness of the motion, the adequacy of the court's inquiry            into  the defendant's  complaint,  and whether  the  conflict            between  the defendant and his  counsel was so  great that it            resulted  in  a total  lack  of  communication preventing  an            adequate defense."  United  States v. Allen, 789 F.2d  90, 92                                ______________    _____            (1st Cir.), cert. denied, 479 U.S. 846 (1986).  Of course, we                        _____ ______            are aware that the  trial court has a superior  vantage point            for  evaluating  matters such  as  these;  we therefore  will            reverse  only if we perceive an abuse of discretion.  See id.                                                                  ___ ___            We also are  mindful that when, as here, the  granting of the            defendant's  request  would  almost certainly  necessitate  a            last-minute   continuance,  the  trial  judge's  actions  are            entitled to  extraordinary deference.   As the  Supreme Court            has stated:                      Trial judges necessarily require  a great                      deal  of  latitude in  scheduling trials.                      Not the  least of their  problems is that                      of assembling the witnesses, lawyers, and                      jurors  at  the same  place  at the  same                      time,  and  this burden  counsels against                      continuances   except   for    compelling                      reasons.   Consequently, broad discretion                      must  be granted trial  courts on matters                      of continuances; only an  unreasoning and                      arbitrary         "insistence        upon                      expeditiousness   in   the   face  of   a                      justifiable  request for  delay" violates                      the right to assistance of counsel.            Morris v. Slappy,  461 U.S. 1,  11-12 (1983) (quoting  Ungar,            ______    ______                                       _____            376 U.S. at 589).                                         -13-                                          13                      In  view  of all  these  considerations,  the trial            court's  decisions pass muster.  Taking first the final Allen                                                                    _____            factor, we note that, while Pierce has adduced proof that his            relationship with  Growe was beset with problems,  he has not            established  a total  lack  of  communication  preventing  an            adequate  defense.  The record reveals  that Growe and Pierce            were conversing  with one  another and had  some appreciation            for  the other's opinions  and sensibilities at  the time the            motions were filed.   We therefore have no basis  to conclude            that the district  court clearly  erred in  finding that  the            communication between the  counsel and client  was sufficient            to  allow a satisfactory defense.   Cf. Allen, 793 F.2d at 92                                                ___ _____            (noting the discretion afforded to trial court determinations            regarding substitution of counsel).                         Furthermore, when  presented with the  motions, the            court  held hearings at which  it questioned Growe and Pierce            at  some length regarding  the nature of  their problems with            each other.  We  have read the transcripts of  these hearings            and  find  the  court's  inquiries  to have  been  more  than            adequate.   If  there  is  a  relative  lack  of  specificity            regarding  the exact  reasons  for  the difficulties  between            Growe and Pierce, it is a result of a lack  of elaboration on            their part.   It certainly  is not a  result of  insufficient            questioning by the court.                                         -14-                                          14                      Finally,   the  motions   were,  by   any  measure,            untimely.    Although we  appreciate  that  the docket  moves            quickly in the District of Maine, the fact remains that Growe            waited until the day  before empanelment before notifying the            court  that there was a  problem.  More  importantly, a quick            docket does not alleviate  the logistical problems engendered            by a last-minute continuance.  See Morris, 461 U.S. at 11-12.                                           ___ ______            Nor  can  it  allay  the legitimate  concerns  about  witness            intimidation   the  government  may   have  when  a  criminal            defendant is in possession of Jencks material well before the            inception of trial.                        In  sum, because  the circumstances  here  were not            sufficiently compelling, the district court acted well within            its discretion  in declining  to bring  the proceedings  to a            halt  on  the eve  of trial.    We therefore  reject Pierce's            argument  that the district  court committed reversible error            in denying the two motions to withdraw.            C.  The 1984 Florida Withheld Adjudication            C.  The 1984 Florida Withheld Adjudication            __________________________________________                      Pierce  argues  that  the district  court  erred in            concluding  that the  1984 Florida  withheld adjudication  in            which he  had pleaded nolo contendere  to delivering cannabis                                  ____ __________            constitutes a cognizable predicate conviction for purposes of            the  relevant "career  offender" guideline.   See  U.S.S.G.                                                            ___            4B1.1.   In  Pierce's  view, a  withheld adjudication  simply            cannot  be regarded  as a  "conviction" under  this guideline                                         -15-                                          15            because the term  "conviction" necessarily implies the  entry            of a  final  adjudicatory judgment.    A careful  reading  of            relevant guideline language and commentary persuades us  that            Pierce's argument is incorrect.                      Although there  is surface  appeal to the  argument            that  there can be no  "conviction" unless and  until a final            adjudicatory judgment is  entered, the sentencing  guidelines            clearly  construe  the term  differently.   Section 4B1.2(3),            which defines the terms used  in   4B1.1, states:  "The  date            that a defendant has sustained a conviction shall be the date            that the guilt of the defendant has been established, whether                 ___ _____            by guilty plea, trial, or plea of nolo contendere." (emphasis                                              ____ __________            supplied).   Thus,  there is  a textual  basis in  the career            offender guidelines for concluding that  a guilt-establishing            event (such  as a plea where a  defendant states that he does            not wish to contest the charges), and not the formal entry of            an adjudicatory  judgment, determines whether  and when there            has been a countable "conviction."                       This view  is borne  out by the  relevant guideline            commentary.    Application note  4  to     4B1.2 directs  the            sentencing  court  to  utilize  the  provisions  of     4A1.2            (captioned  "Definitions  and   Instructions  for   Computing            Criminal History")  in "the  counting of convictions  under              4B1.1."  Two provisions of   4A1.2 compel the conclusion that            withheld adjudications following pleas of nolo contendere are                                                      ____ __________                                         -16-                                          16            countable convictions  under    4B1.2.  First,    4A1.2(a)(4)            drives  home the point that there can be a "conviction" prior            to,   and  therefore   without,  the   formal  entry   of  an            adjudicatory  judgment:    "`Convicted  of  an  offense'  for            purposes  of this  provision,  means that  the  guilt of  the            defendant  has  been  established, whether  by  guilty  plea,            trial,  or plea of nolo  contendere."  And    4A1.2(f), which                               ____  __________            governs     diversionary    dispositions     like    withheld            adjudications, is  quite clear  that admissions of  guilt (or            pleas  formally  declining  to  contest  guilt),  rather than            formal entries of judgment, control countability:                        Diversion   from  the   judicial  process                      without   a   finding  of   guilt  (e.g.,                                                          ____                      deferred prosecution) is not  counted [as                      a  prior  sentence].     A   diversionary                      disposition resulting from  a finding  or                      admission of  guilt, or  a  plea of  nolo                                                           ____                      contendere, in a  judicial proceeding  is                      __________                      counted  as a  sentence under    4A1.1(c)                      [of the criminal history guidelines] even                      if a conviction  is not formally entered,                      except  that    diversion  from  juvenile                      court is not counted.            The  application  note  corresponding  to  the  provision  is            explanatory of  its  purposes:   "Section  4A1.2(f)  requires            counting   prior  adult  diversionary  dispositions  if  they            involved a judicial determination of guilt or an admission of            guilt  in open court.  This reflects a policy that defendants            who  receive the  benefit  of a  rehabilitative sentence  and            continue  to commit crimes should not be treated with further            leniency."    4A1.2, comment. (n.9).                                         -17-                                          17                      Employing  an  extremely  literal  reading,  Pierce            suggests that these guideline provisions are relevant only to            the "counting" of convictions, and  that they have no bearing            on  whether a  particular  event  should  be "defined"  as  a            conviction.  The difference between "counting" and "defining"            convictions  in  this  context is,  however,  only  semantic.            Section 4B1.1 directs that "convictions" of a certain type be            counted, and other guidelines and  commentary which elaborate            upon the events to  be counted essentially define that  which            is  a conviction.  In other words, the sentencing court is to            "count"  whatever is "defined" as a conviction (so long as it            is  for  a  crime  of  violence  or  a  controlled  substance            offense).                      When     4A1.2(a)(4)  and  (f) are  applied to  the            question presented (as    4B1.2, comment. (n.4) dictates), it            becomes clear that the diversionary disposition at issue here            --  the  1984  Florida  withheld adjudication  --  should  be            counted as a  conviction under   4B1.1   See United States v.                                                     ___ _____________            Jones,  910  F.2d  760, 761  (11th  Cir.  1990) (per  curiam)            _____                                            ___  ______            (withheld  adjudication  following  a  nolo  contendere  plea                                                   ____  __________            constitutes  a conviction  for career  offender status).   We            therefore reject Pierce's  argument that  the district  court            erred in  counting the  withheld adjudication as  a predicate            conviction for purposes of the career offender guideline.            D.  The 1985 Florida Sexual Battery            D.  The 1985 Florida Sexual Battery            ___________________________________                                         -18-                                          18                      Pierce's fourth argument is that the district court            erred in deciding that his 1985 Florida conviction for sexual            battery is a  "crime of violence" and  therefore a cognizable            predicate conviction for purposes of   4B1.1.  Central to his            argument  is  an  assertion  that the  statute  defining  the            offense  for  which  he  was  convicted,  Fla.  Stat. Ann.               794.011(5), does  not, inter  alia, have  as an element  "the                                   _____  ____            use,  attempted  use  or  threatened use  of  physical  force            against  the person  of another."   See    4B1.2(1) (defining                                                ___            phrase  "crime  of  violence"   for  purposes  of     4B1.1).            Regardless  of whether  Pierce is  correct about  the current                                                                  _______            version  of  the statute  (a matter  on  which we  express no            opinion), a  plain reading of the statute  under which Pierce            was convicted reveals that, in 1985,  the use of force was an                                                                   ___            element of the  offense.   See Fla. Stat.  Ann.    794.011(5)                                       ___            (West  1984) ("A  person who  commits sexual  battery  upon a            person  12  years  of  age or  older,  without  that person's            consent, and in the  process thereof uses physical force  and                                                 ____ ________ _____  ___            violence  not  likely to  cause  serious  personal injury  is            ________            guilty of  a  felony .  .  . .")  (emphasis supplied).    And            because the statutory formulation of the predicate crime, and            not the actual facts of the case itself, dictates whether the            offense  is a crime of  violence for purposes  of the federal            sentencing guidelines,  see United States v.  DeLuca, 17 F.3d                                    ___ _____________     ______            6, 8 (1st Cir. 1994), our inquiry is at an end.                                         -19-                                          19                      The  1985 Florida  sexual  battery was  a crime  of            violence  under    4B1.2(1).   We  therefore reject  Pierce's            argument that the district court erred in counting the sexual            battery as a predicate conviction for purposes of the  career            offender guideline.            E.  Conspiracy and Career Offender Status            E.  Conspiracy and Career Offender Status            _________________________________________                      Pierce's final  claim, made solely to  preserve the            issue  for further  appeal, is  that a  conspiracy conviction            cannot  serve  as  a  triggering  or  predicate  offense  for            purposes   of  the   career   offender  guideline.     Pierce            acknowledges that we recently decided this issue against him,            see United States  v. Piper,  35 F.3d 611,  616-19 (1st  Cir.            ___ _____________     _____            1994),  cert. denied, 115 S.  Ct. 1118 (1995),  and that this                    _____ ______            panel is  duty-bound to  follow Piper,  see, e.g.,  Metcalf &                                            _____   ___  ____   _________            Eddy,  Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d            ___________    ____________________________________            935,  939 n.3  (1st Cir.  1993) ("in  a  multi-panel circuit,            newly constituted  panels, generally speaking,  are bound  by            prior decisions on point").  We therefore reject the claim.                                         III.                                         III.                                         ____                      For  the  reasons  stated   above,  we  affirm  the            convictions and sentence of defendant Frederick Alan Pierce.                      Affirmed.                      Affirmed                      ________                                         -20-                                          20
