          United States Court of Appeals
                     For the First Circuit


No. 14-1303

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        LAUREN MACARTHUR,

                      Defendant, Appellant.


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

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


                             Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Lenore Glaser for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.


                        November 9, 2015
          KAYATTA,    Circuit Judge.    Defendant Lauren MacArthur

("MacArthur") entered a straight guilty plea to:        (1) illegal

possession of firearms after having been previously convicted of

a crime punishable by imprisonment for a term of more than one

year; and (2) illegal possession of firearms that he knew or had

reasonable cause to believe were stolen.         The district court

sentenced him to concurrent terms of imprisonment of 216 months

for count one and 120 months for count two.

          MacArthur     now   challenges   the    district    court's

calculation of the applicable sentencing ranges under the United

States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"),

which the district court considered in determining the length of

MacArthur's sentence.     He claims that the district court erred

three times:   (1) by treating two prior burglary convictions as

crimes of violence so as to raise his base offense level to 26

under § 2K2.1(a)(1) of the Guidelines; (2) by denying him credit

for acceptance of responsibility under § 3E1.1; and (3) by applying

an obstruction of justice enhancement under § 3C1.2.1        MacArthur

also makes several pro se supplemental claims.

          For the reasons explained below, we affirm the sentence.




1 Because MacArthur was sentenced in March 2014, and in the absence
of ex post facto clause concerns, the court uses the Guidelines
Manual that became effective on November 1, 2013. See U.S.S.G.
§ 1B1.11.


                                - 2 -
                                    I.    Facts

             "Because this appeal follows a guilty plea, we draw the

facts   from      the     change-of-plea         colloquy,      the   presentence

investigation report (PSI Report), and the transcript of the

[sentencing] hearing."         United States v. Cintrón-Echautegui, 604

F.3d 1, 2 (1st Cir. 2010).

             On January 20, 2012, a Maine State trooper observed on

Interstate 95 a moving vehicle displaying a license plate that was

obscured by dirt. When the trooper activated his emergency lights,

the vehicle (which was being driven by MacArthur) sped away.

During the ensuing chase, MacArthur drove through red lights and

intersections at high rates of speed, passing other vehicles at

speeds of up to 90 miles per hour.                 Law enforcement eventually

slowed MacArthur by deploying a spike strip that punctured one of

his tires.     MacArthur, nevertheless, pressed on, crossing into an

oncoming   lane      of   traffic   at    one    point   and    hitting   a   bridge

guardrail.     The trooper eventually stopped MacArthur's vehicle by

ramming it off the road.        Once the vehicle was stopped, MacArthur

fled on foot.     Giving chase, law enforcement caught MacArthur and

placed him under arrest.

             After    MacArthur's    arrest,       local   police     retrieved    a

firearm that had been spotted in a snowbank near the scene of the

arrest, plus a second firearm found in a riverbank near where

MacArthur's    vehicle      (with   windows      opened    in   the   cold    winter


                                         - 3 -
weather) had swerved during the chase.            The firearms had been

stolen in a burglary shortly before MacArthur's arrest.                Each

firearm had magazines inserted in them that would hold more than

fifteen rounds of ammunition.

             MacArthur was federally indicted on May 17, 2012, and

pled guilty on November 26, 2012.         On March 12, 2014, the district

court sentenced MacArthur to concurrent terms of imprisonment of

216 and 120 months.

             Between   indictment   and     sentencing   for   his   federal

offenses, MacArthur found himself in jail on state charges. During

that imprisonment, MacArthur assaulted a corrections officer.

That assault occurred after MacArthur refused to comply with an

order to return to his cell during a lockdown and obstructed the

efforts of a corrections officer who attempted to close MacArthur's

cell door.    When the corrections officer grabbed MacArthur by the

lapels and pushed him back into his cell, MacArthur began hitting

the corrections officer in the face with a closed fist.              Records

from the Penobscot County Jail reflect that MacArthur had also

been involved in numerous other fights while in custody.2




2This was not the first time that MacArthur assaulted a corrections
officer while incarcerated. Before the issuance of the federal
charges in this case, MacArthur assaulted two corrections officers
of the Penobscot County Sheriff's Department.


                                    - 4 -
                         II.   Discussion

A.   Counting MacArthur's Prior Burglary Convictions as "Crimes of
     Violence"

          MacArthur challenges the district court's decision to

count two prior convictions as "crimes of violence" under U.S.S.G.

§ 2K2.1, thereby raising his base offense level to 26.          The

applicable term "crime of violence" is defined as:

               [A]ny offense under federal or state law,
          punishable   by  imprisonment   for   a   term
          exceeding one year, that --

               (1) has as an element the use, attempted
          use, or threatened use of physical force
          against the person of another, or

               (2) is burglary of a dwelling, arson,   or
          extortion, involves use of explosives,       or
          otherwise involves conduct that presents      a
          serious potential risk of physical injury    to
          another.

§ 2K2.1 cmt. n. 1; § 4B1.2(a).   MacArthur was convicted at least

twice of "burglary" under Maine law.   The question is whether he

was convicted of "burglary of a dwelling," as is necessary to

render burglary a crime of violence under § 2K2.1.     We begin our

answer to this question by looking at the Maine statute defining

burglary, Me. Rev. Stat. Ann. tit. 17-A, § 401.        That statute

provides that a person is guilty of burglary if:

          A.    The person enters or surreptitiously
          remains in a structure knowing that that
          person is not licensed or privileged to do so,
          with the intent to commit a crime therein.
          Violation of this paragraph is a Class C
          crime; or


                               - 5 -
           B.     The person violates paragraph A and:

           . . . .

           (4) The violation is against a structure that
           is a dwelling place.      Violation of this
           subparagraph is a Class B crime[.]

           This    definition   of    burglary   describes     at   least   two

alternative offenses, only one of which includes, as an element of

the offense, the entry or unauthorized presence in a dwelling.              So

if we know only that a person has been convicted in Maine of

"burglary," we do not know whether that person has been convicted

of the type of burglary that constitutes a crime of violence under

§ 2k2.1.   When confronted with ambiguity such as this arising out

of a criminal offense that divides into alternative forms with

materially differing elements, our established practice is to try

to discern, if possible, "which of a statute's alternative elements

formed the basis of the defendant's prior conviction."               Descamps

v. United States, 133 S. Ct. 2276, 2284 (2013).              In making this

attempt, we look only "to limited materials, often called Shepard

documents, from the convicting court, such as charging documents,

plea agreements, plea colloquies, and jury instructions."              United

States v. Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015)

(citing Descamps, 133 S. Ct. at 2281, 2284).

           But    here,   as   in    Serrano-Mercado,   this    analysis    is

"frustrated" because the prosecution did not proactively tender



                                     - 6 -
any   Shepard    documents,      while     MacArthur,    in   turn,   voiced    no

objection     either     to    the   absence    of   such     documents   or   to

classification of his burglary offenses as "crimes of violence."

See id. at 844. McArthur now belatedly argues that, without proper

Shepard documents officially confirming the relevant nature of his

convictions, the district court erred in finding them to be for

crimes of violence.

             Such an unpreserved argument failed in Serrano-Mercado,

and fails here on plain error review.                Indeed, the record here

provides grist for an argument that MacArthur has actually waived

any   argument    that    he   was   not    convicted    of   burglarizing     two

dwellings.      See United States v. Jimenez, 512 F.3d 1, 7 (1st Cir.

2007); United States v. Turbides–Leonardo, 468 F.3d 34, 38 (1st

Cir. 2006).       Most notably, while the PSR neither appended nor

expressly referred to any state court document, and listed the

offenses as "Burglary," it also included a concise and unambiguous

description of each offense.          In each instance the PSR listed the

formal offense, the date of conviction, the case number, and an

express statement that MacArthur was convicted of entering a

"dwelling" or a "home," naming in each instance the occupant or

owner of the dwelling or home.              MacArthur and his counsel--who

collectively     would    know   whether     MacArthur    had   burglarized     an

actual dwelling--voiced no objection, nor even demanded additional

proof. Rather, they raised other objections to the PSR. MacArthur


                                      - 7 -
thereafter filed two sentencing memoranda, and he appeared at

sentencing with counsel.      At the hearing, the district court

carefully confirmed that MacArthur had read the entire PSR and

that counsel had explained it to him.     The following colloquy then

took place:

          THE COURT: . . .

          But you do understand that, as I told you quite
          a little while ago, that there are matters in
          the report that reflect your criminal history,
          your background, where you were born and
          brought up, your schooling, your education,
          your work history, things of that sort, have
          you had an opportunity to review your
          background?

          THE DEFENDANT: Yes, sir.

          THE COURT: It    also describes in some detail
          the nature of    the offense -- offenses here.
          Have you had     an opportunity to review the
          description of   the offenses?

          THE DEFENDANT: Yes, sir.

          THE COURT: Now, you realize, Mr. MacArthur,
          that I am going to rely on the contents of the
          report in determining your sentence. You
          understand that.

          THE DEFENDANT: Yes, sir.

          THE COURT: Knowing that the contents of the
          report may affect your sentence, is there
          anything in the report you believe is
          inaccurate?

          THE DEFENDANT: No, sir.

          District   courts   regularly    rely   on   all   sorts   of

assertions contained in PSRs.     See United States v. Fernández-


                                - 8 -
Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) (explaining that "it is

settled beyond hope of contradiction that unobjected-to facts

contained    in    a   presentence   report   ordinarily   are   considered

reliable evidence for sentencing purposes" (quotations marks and

citation omitted)).       Here, the district court was given no reason

not to rely on the express descriptions of the burglary convictions

as instances in which MacArthur was indeed convicted of entering

a dwelling.       Error, if error there was by the court, is hardly

obvious.    Moreover, to reverse when there is no basis for finding

that an objection by MacArthur likely would have led to a different

result would make little sense, and might encourage defendants to

turn withheld objections into sentencing reset buttons to be

employed if the sentence exceeds expectations.

             Whether we should therefore invoke waiver to reject

MacArthur's appeal, see Turbides-Leonardo, 468 F.3d at 38, we need

not decide.       His failure to show either obvious error or that the

result likely would have differed but for the claimed error dooms

his appeal even if we allowed him the benefit of plain error

review.     See Serrano-Mercado, 784 F.3d at 848.

B.   Acceptance of Responsibility

             MacArthur next challenges the district court's decision

to deny him a downward adjustment for acceptance of responsibility




                                     - 9 -
under U.S.S.G. § 3E1.1.3       MacArthur preserved this issue for

review.    Accordingly, review of the district court's factual

determination that he has not accepted responsibility is for clear

error, and review of the district court's interpretation of the

Guidelines is de novo.     United States v. Jordan, 549 F.3d 57, 60

(1st Cir. 2008).

           MacArthur relies upon three arguments to support this

claim.    First, he contends, at least in his initial brief, that

the district court's determination was based on an assault that he

committed before he was charged with the federal crimes for which

he was sentenced in this case.     But as the sentencing transcript

clearly demonstrates, and as appellate defense counsel admitted at

oral argument, the district court based its March 12, 2014,

sentencing determination on an assault that MacArthur committed

after he pled guilty to the federal charges in this case.

           Second, MacArthur argues that the district court erred

in relying on that assault because that conduct was unrelated to

his crime of conviction.     This argument is foreclosed by Jordan,

in which this court held that "in determining the propriety vel

non of an acceptance-of-responsibility credit, [a district court]


3 Under § 3E1.1(a), a defendant receives a downward adjustment of
two points "[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense." Subsection (b) of that provision
provides that an additional point shall be subtracted from a
defendant's offense level where subsection (a) has been satisfied
and certain other conditions are met.


                                - 10 -
may   consider   a   defendant's   commission    of       any   post-indictment

criminal conduct, whether or not it bears a significant connection

to, or constitutes a significant continuation of, the offense of

conviction."     549 F.3d at 60–61.

           Finally, MacArthur contends that the assault was not

established by a preponderance of the evidence at sentencing.                The

evidence    presented,    however,    included        a    report    from     the

corrections officer whom MacArthur assaulted on that date.                   The

report described how MacArthur obstructed the officer's efforts to

close MacArthur's cell door during a lockdown and how he hit the

officer with a closed fist after the officer grabbed MacArthur and

pushed him back against the cell wall.          This report is enough to

establish as not clearly wrong the district court's finding that

MacArthur precipitated and committed the assault.

C.    MacArthur's Double Counting Claim

           MacArthur also contests the district court's application

of the two-point enhancement for causing reckless endangerment

during flight under U.S.S.G. § 3C1.2.        He argues that the conduct

forming the basis for this enhancement--his leading the troopers

on a high speed chase--had already been taken into account when

the   district   court   applied   the   four-point        enhancement      under

§ 2K2.1(b)(6)(B) for possessing the firearms "in connection with

another    felony    offense."       This,   according          to   MacArthur,




                                   - 11 -
impermissibly resulted in double counting.                     Because he did not

object at sentencing, we review for plain error.

            While   it    is     true    that     the     district      court   cited

MacArthur's    high      speed    chase      in        applying   the     four-point

enhancement under § 2K2.1(b)(6)(B), the district court did so in

a    belt-and-suspenders       manner,     as     it    also   cited     MacArthur's

burglary of the home from which the firearms were stolen.                       Since

the burglary alone is plainly an uncharged felony, and MacArthur

in a sentencing memorandum admitted to that burglary, any reliance

by the district court on the car chase was unnecessary.                     On plain

error review, we cannot, therefore, say that any such reliance

could have prejudiced MacArthur even were we to assume, arguendo,

that the type of "double counting" of which MacArthur complains

would otherwise be improper.

D.     Pro Se Supplemental Claims

            MacArthur brings several pro se supplemental claims,

none of which merit relief.              In these claims, MacArthur seeks

relief from an enhancement under the Armed Career Criminal Act, 18

U.S.C. § 924(e).      MacArthur, however, was not sentenced pursuant

to that statute.      Nor did his enhancement under U.S.S.G. § 2K2.1

rely on the residual clause contained in the definition of "crime

of violence" under § 4B1.2(a)(2).                 His challenges based on the

Supreme Court's decisions in Taylor v. United States, 495 U.S. 575




                                        - 12 -
(1990), and Johnson v. United States, 135 S. Ct. 2551 (2015), are,

therefore, meritless.

           Lastly, MacArthur uses Johnson to attack the Maine state

burglary   statute,     asserting      that    the    statute       is   both

unconstitutionally vague and indivisible.        To the extent MacArthur

seeks to collaterally challenge his prior state court convictions

in this appeal, we have no jurisdiction to entertain such claims.

His argument, moreover, that the Maine state burglary statute is

indivisible fails for the reasons provided above.

                           III.     Conclusion

           For   the   foregoing    reasons,   we    affirm   the   sentence

adjudged in this case.




                                   - 13 -
