
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1104                                    UNITED STATES,                                      Appellee,                                          v.                                    VINSON MANGOS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                        John R. Gibson,* Senior Circuit Judge,                                         ____________________                              and Lynch, Circuit Judge.                                         _____________                                _____________________               William  Maselli, with whom  Law Offices of  William Maselli               ________________             _______________________________          was on brief for appellant.               Margaret  D.  McGaughey, Assistant  United  States Attorney,               _______________________          with whom Jay P. McCloskey, United States Attorney, and George T.                    ________________                              _________          Dilworth, Assistant  United States  Attorney, were  on brief  for          ________          appellee.                                 ____________________                                   January 23, 1998                                 ____________________                                        ____________________          *  Of the Eighth Circuit, sitting by designation.                    John  R. Gibson, Senior  Circuit Judge.   Vinson Mangos                                     _____________________          appeals from  a sentence imposed  upon him  following his  guilty          plea to  transferring a firearm knowing that  it would be used to          commit  a drug  trafficking crime,  in violation  of 18  U.S.C.            924(h)  (1994).   He contends  that the  district court  erred in          imposing an eighty-eight month sentence.  He argues that: (1) his          earlier assault  conviction in  a Massachusetts court  was not  a          crime  of violence  under  the  sentencing  guidelines;  (2)  the          district  court misinterpreted the guidelines in its treatment of          this issue; (3)  the district court erred  as a matter of  law in          not  departing  downward  because of  the  overcounting  of prior          offenses;  and (4) in  not granting him a role  reduction because          he  was the  least  culpable  of the  various  participants.   We          affirm.                    The primary issues in this appeal  are the attacks upon          the sentence,  and  thus an  abbreviated  outline of  the  events          giving  rise to  his  guilty  plea suffices.    Mangos and  three          others, Gordon Higgins, Cathy Tremblay, and Luis Morey, attempted          to rob John Collins, whom they believed was selling crack cocaine          from  his trailer.   In  doing  so, Mangos  carried his  20-gauge          shotgun with  a pistol grip  when he, Higgins, and  Morey entered          Collins's trailer.  This robbery attempt was aborted.                     Four  days  later  Mangos  declined  to  join  Higgins,          Tremblay,  and Morey  in  a  second effort  to  rob Collins,  but          allowed  Higgins to use his shotgun, knowing that Higgins planned          to use it in the robbery.   Collins fled through a window but the                                         -2-          robbers  injured Collins's  girlfriend, Jennifer  Hanscomb.   The          robbers found no drugs and left the trailer.                    Mangos  was charged with a  drug conspiracy count and a          count for  the use  of a  firearm in  a  drug trafficking  crime.          These  charges were  dismissed  when  Mangos  pleaded  guilty  to          transferring a firearm knowing it would be used to commit a  drug          trafficking crime.                    In sentencing Mangos, the  district court assessed  two          points for a 1992 Massachusetts conviction for larceny, one point          for a 1992  assault and battery under Massachusetts  law, and yet          another  point for a 1992 Massachusetts conviction for possession          of crack cocaine.   A 1994 Maine conviction  for assault resulted          in  two points,  and a  1994 guilty  plea to  a separate  assault          charge  in Maine  resulted in one  point.   After failing  to pay          fines for operating  a vehicle under the influence  of alcohol in          1994, Mangos was sentenced to incarceration in lieu of the fines,          which resulted  in two additional  criminal history points.   The          subtotal of the  criminal history score was nine,  but two points          were added  because Mangos  committed the  offense of  conviction          less  than two  years  after  he was  released  from custody  for          violating  his probation  on the  assault  charge.   He thus  had          eleven  criminal  history  points,  which  gave  him  a  criminal          category of V.                    The district court placed the base offense level at 24.          The  district  court  added four  levels,  producing  an adjusted          offense level of 28, because  Mangos transferred the firearm with                                         -3-          the knowledge and intent that it would be used in connection with          another  felony  offense.    With  a  three-level  reduction  for          acceptance of responsibility, the total offense level was 25 with          a criminal history  category of V.  The government made a section          5K1.1 motion,  and the district court departed downward by twelve          months to reach the sentence of eighty-eight months imprisonment,          to be followed by  three years of supervised  release and a  $100          special assessment.                                         I.                                         I.                                         A.                                         A.                    Mangos  argues  that   the  district  court  erred   in          characterizing his earlier assault and battery  of Manuel Herrera          in Massachusetts  as a  "crime of violence"  for the  purposes of          sentencing.  Mangos contends that the description in the charging          instrument that he "did assault and  beat" Herrera is boilerplate          language  and as such  does not sufficiently  distinguish whether          the assault and battery involved violence or merely nonconsensual          offensive  touching.  The  government responds that  the language          "assault and beat" indicates that  the crime involved violence or          threatened violence, and, in any event, created a serious risk of          potential injury to another.                      Under  the U.S.  Sentencing  Guidelines Manual  section          2K2.1,  a defendant convicted of illegally transferring a firearm          is assigned a  base offense level of  24 if the defendant  has at          least two prior felony convictions  of either a crime of violence          or a controlled  substance offense, as opposed to  a base offense                                         -4-          level  of 22  if the defendant  has only one  such prior offense.          The district court determined that Mangos's prior convictions for          the assault and battery of Herrera and the assault and battery of          Evagelio Rodr guez qualified  Mangos for the higher  base offense          level.                    Whether the assault and battery of Herrera was a "crime          of violence"  under the  Sentencing Guidelines is  a question  of          law,  which we review  de novo.  See  United States v. Fern ndez,                                           ___  _____________    _________          121 F.3d 777, 778 (1st Cir. 1997).   The term "crime of violence"          is defined in the Sentencing Guidelines as any offense punishable          by imprisonment for a term exceeding one year 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    of   a                      dwelling,  arson,  or  extortion  ...  or                      otherwise involves conduct  that presents                      a  serious  potential  risk  of  physical                      injury to another.          U.S.S.G.   4B1.2.   In determining whether a  prior offense meets          this definition, we  take a formal categorical  approach, looking          to the statutory formulation of  the crime charged rather than to          the facts  behind the  actual conviction.   See United  States v.                                                      ___ ______________          Damon, 127  F.3d 139,  142 (1st Cir.  1997); United States  v. De          _____                                        _____________     __          Jes s, 984 F.2d 21, 23 (1st Cir. 1993).            _____                    Massachusetts statutory law makes assault and battery a          criminal  offense punishable  by  up to  two  and one-half  years          imprisonment, but does not define assault and battery.  See Mass.                                                                  ___          Gen. Laws ch. 265,   13A (1996).  We look to Massachusetts common          law for the meaning of "assault and battery."  In Commonwealth v.                                                            ____________                                         -5-          Burke, 457 N.E.2d 622 (Mass. 1983), the Supreme Judicial Court of          _____          Massachusetts defined  assault as  an "offer or  attempt to  do a          battery" and stated that every  battery includes an assault.  Id.                                                                        ___          at 624 (citations omitted.).  The court in Burke then stated that                                                     _____          the  law of  battery  is bifurcated  into  harmful batteries  and          offensive batteries.  Id.                                ___                    We  reject Mangos's contention that because assault and          battery  includes offensive but nonharmful conduct, it should not          be  considered  a  crime  of  violence.    Under  the  Sentencing          Guidelines, the term "crime of  violence" is not limited to those          crimes for  which violence is  a necessary  element, but  instead          extends  to  any  crime which  "otherwise  involves  conduct that          presents a serious potential risk of physical injury to another."          U.S.S.G.   4B1.2(1)(ii).                      In   Fern ndez,   this   court   determined  that   the                         _________          Massachusetts  crime of assault and battery upon a police officer          was  properly  classified  as  a  crime  of  violence  under  the          sentencing guidelines.  121  F.3d at 780.  We reasoned, "While it          is true  that  neither violence,  nor  the use  of force,  is  an          essential element  of the  crime as  statutorily defined,  still,          violence, the use  of force, and a serious risk  of physical harm          are all likely to accompany an assault and battery  upon a police          officer."  Id.  While we recognize that the risks inherent in the                     ___          assault and battery  upon a police officer may  differ from those          involved in  a simple  assault and battery,  we believe  that the          reasoning in Fern ndez applies with similar force to this case.                        _________                                         -6-                    When  the  state  criminal statute  involves  different          types of  offenses, some arguably  violent and some not,  we look          first to the  charging document to  see which type of  offense is          involved.  See Taylor v. United States, 495 U.S. 575, 602 (1990);                     ___ ______    _____________          Damon, 127 F.3d  at 142-143.  Here, the  charging document states          _____          that Mangos "did assault and  beat" Manuel Herrera.  The district          court, following United States v. Harris, 964 F.2d 1234 (1st Cir.                           _____________    ______          1992), found that  this statement that the assault  amounted to a          beating of Herrera  qualified the crime charged as  a violent and          felony offense.   This places  Mangos's offense into  the harmful          battery  type,  and thus  meets  the  definition  of a  crime  of          violence under  U.S.S.G.   4B1.2.  There is nothing in the record          or the charging document that  refers to an offensive touching or          a touching without consent, such as described in Burke.                                                             _____                                          B.                                          B.                    Mangos  additionally  argues  that the  district  court          erred in counting Mangos's conviction for the assault and battery          of  Herrera and  his conviction  for the  assault and  battery of          Rodr guez as  separate  prior felony  convictions  and  therefore          sentencing  Mangos to a base offense level of 24.  Mangos asserts          that  the sentences for these  offenses were related because they          were consolidated for sentencing.   He contends that because  the          sentences  were related,  the  offenses should  be  treated as  a          single  prior  felony  conviction  under  section  2K2.1.    This          argument,  however, is based upon a misreading of the guidelines.          Mangos cites section 4A1.2(a)(2), which states,  "Prior sentences                                         -7-          imposed in  related cases are to  be treated as  one sentence for          purposes of    4A1.1(a), (b), and (c)."   By its own  terms, this          provision   does  not  govern  the  treatment  of  "prior  felony          convictions" under section 2K2.1.   As a result, we conclude that          Mangos's argument regarding related sentences is without merit.                                           II.                                         II.                    Mangos  contends  that  the  district  court  erred  in          including his  conviction in a  Maine state court  for assaulting          his  sister as part of  his criminal history  for the purposes of          sentencing.  Mangos claims that  the conviction was not counseled          and is  not a reliable  indicator that he actually  committed the          assault.   The government responds  that the Maine conviction was          counseled and that no basis exists for  rejecting that conviction          as  unreliable.   Because the  parties dispute whether  the Maine          conviction  was  counseled,  the questions  we  must  address are          questions of  fact.  Therefore,  we review only for  clear error.          See United States v. Goldberg, 105 F.3d 770, 777 (1st Cir. 1997).          ___ _____________    ________                    On November 1, 1993, the State of Maine arrested Mangos          for assaulting  his sister, Roxanna  Mangos.  In March  1994, the          state moved to have the charge "filed" with no costs.  Later that          year,  however, the charge  was brought forward  again when Mango          was  also charged  with  operating  a  vehicle  while  under  the          influence  and operating after suspension.  Mangos pleaded guilty          to all of the charges.  Mangos was sentenced to  ten days for the          assault,  to be  served concurrently  with a  seven day  sentence                                         -8-          imposed for the offenses.                     The   current  dispute   arises   from   the  form   of          representation Mangos was assigned on  the day he plead guilty to          the above charges.  At the  time Mangos was arraigned, the  state          court had  a pilot  program known  as "lawyer  for a  day."   The          purpose of the  program was  to facilitate  early resolutions  of          cases by  allowing people  who were  considering entering  guilty          pleas to consult with an attorney.  Typically, the lawyer for the          day, usually an  experienced criminal defense attorney,  would be          assigned to about fifteen defendants.  The lawyer would meet with          the defendants  for anywhere  from five minutes  to a  half hour.          During  that  time,   the  lawyer  would  review   any  available          paperwork,  discuss apparent  defenses,  and negotiate  with  the          district attorney.                    Mangos   appears   to   argue   that   this   form   of          representation was too limited to be considered legal counseling.          We  are  not  persuaded.   Mangos  was  assigned  an  experienced          criminal defense attorney  charged with the professional  duty of          zealous advocacy.  Mangos's lawyer appears to have had discretion          both in how  long to consult with  Mangos and in what  courses of          action  to advise.  Nothing  indicates that Mangos's attorney was          in  any way  prohibited from  advising against  a guilty  plea or          suggesting that Mangos  seek further counsel.  In  light of these          facts, it is clear that Mangos's  claim that he was not counseled          is, in actuality, an ineffective  assistance of counsel claim.  A          sentencing  court  is  an  inappropriate  forum  for  ineffective                                         -9-          assistance of counsel claims addressed to prior convictions.  See                                                                        ___          Custis v. United States, 511 U.S. 485, 496 (1994).           ______    _____________                    We  also conclude  that  the  Maine  conviction  was  a          reliable  indicator  that Mangos  committed the  charged offense.          Mangos pleaded  guilty to assaulting his sister and was sentenced          to ten  days in  prison.  We  refuse to  probe Mangos's  possible          motives for entering that  plea, and accept the guilty plea as an          admission  of guilt.   We hold  that the  district court  did not          clearly err in including the Maine conviction as part of Mangos's          criminal history.                                          III.                                         III.                    Mangos  argues that the district court erred in failing          to grant  an additional  downward departure  (beyond the  section          5K1.1  downward  departure)   under  U.S.S.G.      4A1.3  (Policy          Statement).  Section 4A1.3  provides, in part, that  a sentencing          court  may depart from  the applicable guideline  range when "the          court  concludes that  a  defendant's  criminal history  category          significantly over-represents  the seriousness  of a  defendant's          criminal history or the likelihood that the defendant will commit          further crimes."                       Generally,  an  appellate court  lacks  jurisdiction to          review  a sentencing court's discretionary decision not to depart          below the guideline sentencing  range.  United States v.  Pierro,                                                  _____________     ______          32  F.3d 611,  619 (1st  Cir 1994),  cert. denied,  513 U.S.  111                                               ____________          (1995).   An  exception to  this  general rule  applies when  the          sentencing  court's decision  not  to depart  is  based upon  its                                         -10-          belief that  it lacks  the authority  or power to  depart.   Id.;                                                                       ___          United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995).           _____________    ________                    After  reviewing  the  record, we  do  not  believe the          exception  is  applicable  in  this   case.    Mangos  made   the          overrepresentation  argument to the district court.  The district          court expressed that it had  taken into account the arguments for          a downward  departure but  concluded that  the assigned  criminal          history  category  "adequately   and  appropriately"  represented          Mangos's  extensive criminal history.   Thus, the  district court          recognized its  authority to depart  downward on this  ground and          exercised its discretion in declining to do so.  Consequently, we          lack jurisdiction to review its determination.                                           IV.                                         IV.                    Finally, Mangos maintains that the district court erred          in failing  to grant  a downward adjustment  for his role  in the          offense  of transferring a firearm.  Specifically, Mangos asserts          that the  district court should  have considered his role  in the          context  of the overall  criminal activity including  the robbery          and not just in the  context of the transfer of the firearm.   He          further argues that, even  in the context of the  transfer of the          firearm, he was still less culpable than other participants.                    Under the Sentencing  Guidelines, a defendant's offense          level may be adjusted downward if the defendant was substantially          less culpable than  other participants  in the  crime.   U.S.S.G.            3B1.2  (1995).   The burden,  however, is  on the  defendant to          establish that a downward adjustment is warranted.  United States                                                              _____________                                         -11-          v. Ortiz,  966 F.2d 707, 717  (1st Cir. 1992),  cert. denied, 506             _____                                        ____________          U.S.  1063  (1993).   In  addition,  because  role-in-the-offense          determinations  are fact-bound,  we review  them  only for  clear          error.   United States  v. Jackson,  3 F.3d  506,  508 (1st  Cir.                   _____________     _______          1993).                    The   district  court   considered  sentencing   Mangos          according  to the guidelines  for robbery, U.S.S.G.    2B3.1, but          ultimately  sentenced Mangos  according  to  the  guidelines  for          prohibited   transactions  involving   firearms  or   ammunition,          U.S.S.G.   2K2.1.   Mangos was therefore not  convicted of either          the robbery  or the  attack on Jennifer  Hanscomb, and  the court          held that he  was not substantially less culpable  than the other          participants for his convicted offense of illegally  transferring          a firearm.   At  sentencing, the district  court assumed  for the          purposes   of  sentencing  that  Sam  Gaiewski  was  involved  in          transferring the  firearm and  may have been  the individual  who          actually  removed  the  firearm  from  Mangos'  apartment.    The          district  court,  nevertheless,  found  that   Mangos  owned  the          firearm, knew of  its intended use, and  authorized its transfer.          The district court held  that, as a result, a  role reduction was          not appropriate.  The district court  did not clearly err in this          determination.                      We affirm the sentence imposed by the district court.                                         -12-
