
USCA1 Opinion

	




        June 8, 1992            [NOT FOR PUBLICATION]                                 ____________________        No. 92-1131                                  EUGENE A. MILLION V,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Eugene A. Million V on brief pro se.            ___________________            Richard S. Cohen, United  States Attorney, Margaret  D. McGaughey,            ________________                           ______________________        Assistant  United States  Attorney, and  James L.  McCarthy, Assistant                                                 __________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    1.     Appellant  contends  he  was                      ___________            incorrectly  placed in criminal  history category  II, rather            than  I, for sentencing purposes.   The PSR  listed two prior            convictions.  The  first, labelled "Juvenile  Adjudications,"            was  for  theft.    Appellant   received  a  $100  fine  ($70            suspended) and  a $26.01 restitution  order to Zayre's.   The            second,  labelled "criminal conviction," was for unauthorized            use of property (automobile).  Appellant was  fined $100 ($50            of  which was  suspended).   Appellant argues that  these are            very minor offenses --  mere convenience pleas --  and should            not be counted.  His attack is threefold.                      First, he says he intended to have the owner of the            automobile  testify  at  sentencing that  defendant  had  had            continuing  permission to  use the  vehicle.   The sentencing            transcript indicates, however, that the  promised witness did            not  appear  at   sentencing.    Appellant  did  not  seek  a            continuance on that ground or  procure a letter or  affidavit            from the car  owner.  Appellant may not  now complain of what            he failed to show at sentencing.                      Second,   appellant   argues   that    U.S.S.G.                4A1.2(c)(1)  specifically  excludes  the  two  offenses  from            consideration  in  computing  criminal  history.    Appellant            misreads the section.  The  section commences by stating that            "all felony  offenses are counted" and  that "[s]entences for            misdemeanor   and  petty  offenses  are  counted,  except  as                                         -2-            follows."  Exclusions are then listed.  Appellant's theft and            unauthorized use offenses  are not in the list  of exclusions            and are not similar to any in the list.                      Third,   appellant   contends  that   the  juvenile            adjudication  for   theft  is   excluded  under  U.S.S.G.                4A1.2(c)(2),  which states  that "[j]uvenile  status offenses            and truancy" and  "offenses similar to them, by whatever name            . . . known, are  never counted."  We "look to  the substance            of the underlying state offense in order to determine whether            it falls within the proscription [of   4A1.2(c)(2)]."  United                                                                   ______            States v. Unger,  915 F.2d  759, 763 (1st  Cir. 1990),  cert.            ______    _____                                         _____            denied,  111  S.Ct.  1005  (1991).   In  Unger,  the  conduct            ______                                   _____            underlying the juvenile  adjudications consisted of  breaking            and entering with intent  to commit larceny, receiving stolen            goods,  and assault and battery.   We concluded that "[u]nder            no  stretch  of the  imagination  can  these malefactions  be            considered 'status offenses' like, say, hitchhiking, truancy,            loitering,  or  vagrancy."   Ibid.   The  same is  true here.                                         ____            Appellant's   offense,   whether   euphemistically   labelled            shoplifting  (as appellant phrases it) or theft (as stated in            the  PSR)  is materially  more  serious  than a  mere  status            offense.                      2.  To  the extent appellant now  attempts to raise            ineffective assistance of counsel  claims, we do not consider            them as they were not presented in the   2255 petition below.                                         -3-                      3.   We  have considered  all of  appellant's other            arguments and  find them without merit  substantially for the            reasons stated by the government in its comprehensive brief.                      Affirmed.                      ________                                         -4-
