
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1769                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                  HOWARD T. WINTER,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                              _________________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Fred M. Wyshak, Jr.,  Assistant United States Attorney, with               ___________________          whom A.  John Pappalardo, United  States Attorney, was  on brief,               ___________________          for appellant.               Richard  M.  Egbert, with  whom  MaryEllen  Kelleher was  on               ___________________              ___________________          brief, for appellee.                              _________________________                                    April 25, 1994                              _________________________                    SELYA,  Circuit Judge.   It is  common wisdom  that the                    SELYA,  Circuit Judge.                            _____________          past  is  prologue, foreshadowing  the  future.   When  convicted          criminals rise to  be sentenced  in a federal  court, the  career          offender guideline, U.S.S.G.  4B1.1,  imbues that aphorism with a          special  meaning.1  In such  a setting, however,  all past crimes          are  not regarded  as  equal; the  guideline  is fueled  only  by          previous felony convictions for crimes of violence and controlled          substance offenses.  See id.                                ___ ___                    The case  before us requires that  we determine whether          particular  convictions  attributable  to   certain  racketeering          activities constitute  crimes of  violence within the  purview of          this  guideline.  Because we  agree with the  district court that          they do not, we affirm the sentence imposed below.                                          I.                                          I.                                          __                                  Travel of the Case                                  Travel of the Case                                  __________________                    On May  17, 1993,  defendant-appellee Howard  T. Winter          pleaded guilty to one count of conspiracy to possess cocaine with          intent  to distribute, see 21 U.S.C.   841(a)(1), and five counts                                 ___          of aiding  and abetting the same offense, see 18 U.S.C.   2.  The                                                    ___          district court, which had ruled out the career offender guideline          during   a   special   pre-plea  hearing,   imposed   a  ten-year          incarcerative sentence.   It  is undisputed  that, had the  court                                        ____________________               1The November 1992 edition of the guidelines applies in this          case.   See United States  v. Harotunian, 920  F.2d 1040, 1041-42                  ___ _____________     __________          (1st  Cir. 1990) (explaining that the guidelines in effect at the          time of  sentencing control  unless ex post  facto considerations          prohibit  their use).  Hence,  all references herein  are to that          edition.                                          2          employed the  career offender guideline, a  significantly greater          sentence would have been mandated.                    The    government    appeals    pursuant     to    18            U.S.C.   3742(b)(2).                                         II.                                         II.                                         ___                                     The Problem                                     The Problem                                     ___________                    Under the sentencing guidelines, career offender status          attaches if (1) the defendant achieved the age of majority before          committing  the offense  of  conviction, (2)  that  offense is  a          felony which can  itself be  characterized as either  a crime  of          violence or controlled substance offense, and (3) the defendant's          criminal  history   reflects  a  minimum  of   two  prior  felony          convictions  (known colloquially  as  "predicate  offenses")  for          either  crimes  of  violence   or  crimes  involving   controlled          substances.    See  U.S.S.G.  4B1.1.    In  this  case, defendant                         ___          concedes that most   but not all   of these preconditions obtain:          he committed  the offense  of conviction more  than four  decades          after turning  eighteen; that  offense is a  controlled substance          offense; and he labors under the burden of a prior conviction for          extortion    a crime that is considered  a crime of violence, see                                                                        ___          United States v. DeLuca, ___ F.3d  ___, ___ (1st Cir. 1994)  [No.          _____________    ______          93-1773,  slip  op.  at  3-6]; see  also  U.S.S.G.   4B1.2(1)(ii)                                         ___  ____          (enumerating certain crimes of  violence and listing extortion as          one of them).                    The nub of the case is  the defendant's insistence that          his  prior criminal history  does not include  a second predicate                                          3          offense.    In  the  court  below,  the  government  nominated  a          candidate  to fill out the slate   a racketeering indictment that          resulted  in defendant's conviction in 1979,  after trial, for an          amalgam  of offenses, namely,  engaging in  racketeering activity          (horse race  fixing),  see 18  U.S.C.    1962(c),  conspiracy  to                                 ___          engage in such activity, see 18 U.S.C.   1962(d), sports bribery,                                   ___          see  18 U.S.C.    224, and  travel in aid  of racketeering (horse          ___          race fixing),  see 18 U.S.C.   1952(a).2  The lower court did not                         ___          think the  government's candidate  qualified for election  to the          "crime of violence" ranks, notwithstanding the government's claim          that strong-arm  tactics were  standard fare in  the racketeering          and racketeering-related  activities over which  Winter presided.          Consequently, the  court  decreed  that, for  want  of  a  second          predicate offense, the career offender guideline did not pertain.                    The  instant appeal  turns  on  the appropriateness  of          categorizing at  least one  of the  1979 offenses  as a  crime of          violence.   Whether a conviction  for a particular  type of crime          qualifies  as  a  predicate   offense  presents  a  purely  legal          question,  sparking  de novo  review.   See  United States  v. De                               __ ____            ___  _____________     __          Jesus,  984 F.2d  21, 23 n.4  (1st Cir.  1993); United  States v.          _____                                           ______________          Fiore, 983  F.2d 1, 2 (1st  Cir. 1992), cert. denied,  113 S. Ct.          _____                                   _____ ______          1830 (1993).                                         III.                                         III.                                         ____                                        ____________________               2The parties treat the  verdicts that found defendant guilty          on  these counts as evidencing  convictions for each  of the four          offenses described  in the text.  We  emulate their example.  And          we sometimes refer to these several crimes, collectively, as "the          1979 offenses."                                          4                                  Crimes of Violence                                  Crimes of Violence                                  __________________                    To constitute  a crime of  violence, a felony  must fit          into  one of several  pigeonholes.   To be  specific, a  crime of          violence  is any state or federal offense punishable by more than          one year in prison that (1) "has as an element the use, attempted          use,  or threatened use of  physical force against  the person of          another,"  U.S.S.G.   4B1.2(1)(i), or (2) reposes on a short list          of specially enumerated  crimes such as "burglary of  a dwelling,          arson, or  extortion," U.S.S.G.   4B1.2(1)(ii), or  (3) "involves          use of explosives," id., or (4) "otherwise involves conduct  that                              ___          presents a serious potential risk of physical injury to another,"          id.            ___                    Determining  whether a previous conviction represents a          crime  of violence  necessitates a  formal  categorical approach.          See DeLuca, ___ F.3d  at ___ [slip op. at 5]; De  Jesus, 984 F.2d          ___ ______                                    _________          at 23; United States v. Bell, 966 F.2d 703, 704  (1st Cir. 1992);                 _____________    ____          Fiore, 983  F.2d at 3; see also Taylor v. United States, 495 U.S.          _____                  ___ ____ ______    _____________          575, 600  (1990)  (adopting categorical  approach  for  analogous          determination under Armed Career  Criminal Act); United States v.                                                           _____________          Doe, 960  F.2d 221, 223-24 (1st  Cir. 1992) (same).3   As a rule,          ___          this type of  approach is restricted to an examination of how the          legislature  has  defined  the  crime,  without  any  concomitant                                        ____________________               3Given the substantial  similarity between the  Armed Career          Criminal    Act's    definition    of     "violent felony,"    18          U.S.C.   924(e)(2)(B), and the Sentencing Commission's definition          of   "crime   of   violence,"   U.S.S.G.    4B1.2(1),   authority          interpreting  one phrase frequently is found  to be persuasive in          interpreting  the other phrase.  See, e.g., De Jesus, 984 F.2d at                                           ___  ____  ________          24 n.6; Bell, 966 F.2d at 704.                  ____                                          5          inquiry  into  the details  of  the  defendant's actual  criminal          conduct.   See DeLuca, ___ F.3d at ___ [slip op. at 5]; De Jesus,                     ___ ______                                   ________          984  F.2d at 23; Fiore, 983 F.2d at  3; see also Taylor, 495 U.S.                           _____                  ___ ____ ______          at 600.   Nevertheless, "there are  certain limited circumstances          in which  some  investigation beyond  the  formal nature  of  the          charge may be warranted."  DeLuca, ___ F.3d at ___ [slip op. at 5                                     ______          n.3]; accord Taylor, 495 U.S. at 602; Doe, 960 F.2d at 224.   For                ______ ______                   ___          example,  if the statutory  description is inscrutable,  or if it          blankets both  violent and non-violent  crimes, a court  may peek          beneath  the coverlet.  See,  e.g., United States  v. Harris, 965                                  ___   ____  _____________     ______          F.2d 1234, 1235  (1st Cir. 1992) (employing  similar exception in          an ACCA case); see also Taylor, 495 U.S. at 602-03.                         ___ ____ ______                    These  principles inform  our treatment of  the instant          case.  Here, the first three avenues to dubbing the 1979 offenses          crimes of violence are  dead ends; the government concedes    as,          indeed, it must   that no count of conviction was for a felony of          which physical  force is an  element, or for  a felony  listed by          name  in the career offender guideline, or for a felony involving          the  use of  explosives.   Thus, the  issue before  us hinges  on          whether  any  of the  counts  of  conviction, considered  from  a          categorical standpoint,  can be  said to "involve[]  conduct that          presents a serious potential risk of physical injury to another."          U.S.S.G.   4B1.2(1)(ii);  see  also  U.S.S.G.    4B1.2,  comment.                                    ___  ____          n.2(B).                                         IV.                                         IV.                                         ___                                       Analysis                                       Analysis                                       ________                                          6                                          A.                                          A.                                          __                    The  label "racketeering," though  pejorative, does not          shed much light  on whether  the activity in  question poses  (or          fails  to pose) a serious potential risk of violence.  After all,          racketeering  comes in many shapes  and sizes, and  covers a wide          range of  activities.   Those activities are  uniformly nefarious          and  almost  invariably  nasty    but  they  are not  necessarily          violent.4  One is reminded of  the label "conspiracy," a label so          encompassing that it  "says next to nothing  about the underlying          nature  of  the crime,"  and, therefore,  gives  a court  no real          insight  into  whether a  conviction  bearing  the label  can  be          classified as a crime of violence.  Fiore, 983 F.2d  at 3.  Since                                              _____          the  statutory language  describing  racketeering,  taken  alone,          tells us so  little, we  can only conclude  that convictions  for          racketeering  sometimes will  constitute  predicate offenses  and          sometimes will  not.  It  follows, a  fortiori, that the  same is                                             _  ________          true   vis-a-vis   convictions  for   conspiracy  to   engage  in          racketeering.                    Because  crimes of  this  androgynous sort,  not unlike          chameleons, "will  necessarily take  on  the characteristics  and          coloration  of  [their]  environment,"  id.  (discussing  general                                                  ___                                        ____________________               4The  RICO statute makes it unlawful for a person to conduct          the  affairs  of  any enterprise  affecting  interstate  commerce          "through  a pattern  of  racketeering activity  or collection  of          unlawful debt," 18 U.S.C.    1962(c), or to conspire to that end,          18  U.S.C.   1962(d).  The statute defines the term "racketeering          activity"  broadly, see 18 U.S.C.   1961(1), with the result that                              ___          the  term includes  activities ranging  from murder  (perhaps the          paradigmatic  crime of violence) to wire fraud (a good example of          a crime that has never been considered a crime of violence).                                          7          conspiracy),  some  exploration  of   that  environment  must  be          undertaken.  Yet, a caveat is in order:  even where, as here, the          category limned in the statute is an inexact  semantic construct,          warranting further inquiry, the task of  classification continues          to demand a categorical as opposed to  a fact-sensitive analysis.          This  means  that if  previous  convictions  for racketeering  or          racketeering  conspiracy  are  in   issue,  a  court  seeking  to          ascertain  the  appropriateness  of  predicate  offense treatment          under Taylor principles must ask categorically oriented questions                ______          such  as:   "Racketeering by what  means?" "Racketeering  to what          end?"  And  in answering  these questions, the  court should  not          plunge into the details of a particular defendant's conduct, but,          rather,  again in  fidelity to  Taylor principles,  should merely                                          ______          assess the  nature  and object  of the  racketeering activity  as          described  in   the  indictment  and  fleshed  out  in  the  jury          instructions.  See Taylor, 495 U.S. at 602; De Jesus, 984 F.2d at                         ___ ______                   ________          23 n.5.                    This  methodology  makes  good  sense,  for  it  cabins          further inquiry in keeping with its categorical roots, permitting          the court to take a predetermined sample of the earlier  case and          evaluate its  composition without at  the same time  inviting the          judicial  equivalent   of  an  archaeological  dig.     We  turn,          therefore,  to the charging  papers and jury  instructions in the          1979  case to ascertain the nature and object of the racketeering                                          8          activity.5                                          B.                                          B.                                          __                    The  earlier  indictment  identified the  "racketeering          activity"  with which Winter was  charged as "horse race fixing,"          and  described the  offenses  comprising the  alleged pattern  of          racketeering activity as sports bribery, see 18 U.S.C.   224, and                                                   ___          travel in  aid of racketeering, see 18 U.S.C.   1952(a)(3).  This                                          ___          format creates  two possible  pathways to finding  that the  1979          offenses are crimes of violence.  We explore each of them.                    1.   Sports Bribery.    Sports bribery  is a  discrete,                    1.   Sports Bribery.                         ______________          meaningful  rubric, itself  susceptible of  categorical analysis;          therefore,  we  need look  no further  than  the language  of the          statute.6   Given  that wording,  it is  certainly  possible that                                                              ________          sports bribery can bring violence into play   but that is not the          critical determinant.   A  categorical approach is  not concerned          with testing either the outer limits of statutory language or the          myriad  of possibilities  girdled  by that  language; instead,  a          categorical approach is concerned with  the usual type of conduct          that the statute  purposes to proscribe.  See De  Jesus, 984 F.2d                                                    ___ _________          at 24.   Thus, a court  asked to determine whether  an offense is          (or  is  not) a  crime  of  violence within  the  meaning of  the                                        ____________________               5This analysis does double duty in the  present case because          it  also serves  to probe the  status of the  remaining counts of          conviction as crimes of violence vel non.                                           ___ ___               6The  relevant statute  criminalizes interstate  schemes "to          influence, in  any way, by  bribery, any  sporting contest,  with          knowledge that  the  purpose of  [the  particular] scheme  is  to          influence by bribery that contest . . . ."  18 U.S.C.   224(a).                                          9          "otherwise"  clause of  the career  offender guideline,  U.S.S.G.           4B1.2(1)(ii), must  focus on "the  degree of risk,  expressed in          terms  of the probability of physical harm presented by the mine-          run of conduct that  falls within the heartland of  the statute."          De Jesus, 984 F.2d at 24.          ________                    Under this  standard, the government's  argument cannot          prosper.  Sports bribery, in general,  simply lacks the "inherent                                    __ _______          risk  of violent outbreak" necessary to justify classifying it as          a crime of  violence.  Id. at  25; see also Fiore, 983  F.2d at 4                                 ___         ___ ____ _____          (to  come within  the crime  of violence  ambit, a  crime, viewed          generically,  must  pose  a  substantial  potential for  episodic          violence); Doe, 960 F.2d at 224-25 (finding "felon-in-possession"                     ___          convictions  not  to qualify  as  predicate  offenses under  ACCA          because such convictions do not usually involve violent conduct).          Since there  is no  sound basis  for  saying that  violence is  a          normal, usual,  or customary  concomitant of sports  bribery, the          crime is not a crime of violence.                    2.    Travel  in  Aid of  Racketeering.    The  statute                    2.    Travel  in  Aid of  Racketeering.                          ________________________________          underlying  the Travel  Act counts  outlaws travel  in interstate          commerce with intent to -                    (1) distribute  the proceeds of  any unlawful                    activity; or                    (2) commit  any crime of  violence to further                    any unlawful activity; or                    (3)  otherwise  promote,  manage,  establish,                    carry   on,   or  facilitate   the  promotion                    management, establishment, or carrying on, of                    any unlawful activity, . . . .                                          10          18  U.S.C.    1952(a).7   Based on  this statute,  the government          maintains that,  because the Travel Act  encompasses both violent          and non-violent offenses, the court below should have delved into          defendant's   actual  conduct  to   determine  if   his  offenses          constituted crimes of violence. We do not agree.                    To be sure, the  government is correct in stating  that          the Travel Act  reaches violent as  well as non-violent  conduct.          Compare  id.    1952(a)(2)  (proscribing  travel  with intent  to          _______  ___          "commit any  crime   of   violence  to   further   any   unlawful          activity")  with  id.    1952(a)(1),(3) (proscribing  generically                      ____  ___          non-violent conduct).  But the statute's breadth does not give an          inquiring court license  to roam  at will through  the record  of          each individual case.  Rather, Taylor demands that a court poised                                         ______          at  such  a crossroads  consult a  limited  array of  materials            principally the indictment and jury instructions   in determining          if the  offense can be classified  as a crime of  violence.8  See                                                                        ___          Taylor, 495  U.S. at 602-03;  see also Harris, 964  F.2d at 1235;          ______                        ___ ____ ______          Doe, 960 F.2d at 224-25.          ___                                        ____________________               7For  purposes  of  the   Travel  Act,  the  term  "unlawful          activity" is defined to include a salmagundi of criminal conduct,          ranging from the violent (e.g., arson)  to the non-violent (e.g.,                                    ____                              ____          violation of state liquor laws).  See 18 U.S.C.   1952(b)(i)(1) -                                            ___          (3).     Bribery  is   specifically  enumerated.     See  id.                                                                   ___  ___          1952(b)(i)(2).               8Although  we   have  occasionally  approved  resort   to  a          presentence  report in this connection,  we have done  so only in          cases  in which  the defendant  entered a  guilty plea,  with the          result that no jury instructions were available for retrospective          review.  See, e.g., Harris, 964 F.2d at 1235-36; United States v.                   ___  ____  ______                       _____________          Bregnard, 951 F.2d 457, 459-60 (1st Cir. 1991), cert. denied, 112          ________                                        _____ ______          S. Ct.  2939 (1992).  Because a jury convicted Winter on the 1979          offenses after a full trial, the exception is inapposite here.                                          11                    In  this instance,  the  permitted  review  establishes          that, under  applicable Taylor principles, the  Travel Act counts                                  ______          do  not qualify  as crimes  of violence.9   Those  counts charged          Winter  with  commissioning travel  to  assist  in "effecting  by          bribery the outcome of . . . horse races."  Although fixing horse          races is antisocial conduct that may on occasion utilize violence          as a tool, it does not carry with it an inherent risk  of violent          outbreak  sufficient  to  merit  classification  as  a  crime  of          violence.   In  other  words, because  violence  is not  a  usual                                                                      _____          accouterment of horse race fixing, the degree of risk,  expressed          in terms of the probability of physical harm, associated with the          mine-run  of conduct that comprises the  heartland of the statute          is  relatively  low.   And because  that  is so,  the "otherwise"          clause in  the career offender guideline, U.S.S.G.  4B1.2(1)(ii),          does not apply.                    There  is also a second  reason why the  two Travel Act          counts are  poor candidates for inclusion  as predicate offenses.          Neither of these  counts invoked the Travel  Act generally; their          language  focused  single-mindedly on  clause  (3),  18 U.S.C.             1952(a)(3),  a subsection  of  the Travel  Act that  criminalizes                                        ____________________               9Counts  22 and 23 of  the indictment, which  form the basis          for  the government's  contention,  in terms  charge that  Winter          violated the  Travel Act on  two different dates  in that  he and          another  caused  one  Anthony  Ciulla  "willfully  to  travel  in          interstate  commerce . . .  said defendants intending to promote,          manage,  establish, carry  on and  facilitate .  . .  an unlawful          activity, being bribery in  violation of Pennsylvania Cons. Stat.          Ann. Section 4109, and did thereafter perform, attempt to perform          and cause  acts  to  promote,  manage, establish,  carry  on  and          facilitate  . .  . an  unlawful activity, to  wit:   affecting by          bribery the outcome of pari-mutuel thoroughbred horse races."                                          12          predominantly  non-violent conduct,  rather than  clause (2),  18          U.S.C.   1952(a)(2), a subsection that criminalizes predominantly          violent conduct.  To convict on the Travel Act counts, therefore,          the jury was required only to find that Winter used bribes to rig          horse races  and caused Ciulla to  travel in aid of  the scheme.           The charges did not  require a finding that the  offense involved          violence in any way, shape, or form.                    The jury  instructions bear  this out; in  briefing the          jurors  on the Travel Act  counts, the trial  judge defined those          counts  in  the vernacular  of  section  1952(a)(3), abjured  any          suggestion that  the  counts implicated  section 1952(a)(2),  and          identified  bribery as the unlawful activity  to which the travel          was  directed.   Because  the  defendant  was  charged  with  and          convicted  of violating the  Travel Act under  the statute's non-          violent  alternative, the  Travel  Act counts  did  not serve  to          transmogrify the 1979 offenses into crimes of violence.                    3.    The Pennsylvania  Statute.    The government  has                    3.    The Pennsylvania  Statute.                          _________________________          another string to its bow.  Because the Travel Act counts mention          the  violation of a Pennsylvania  statute, see supra  note 9, and                                                     ___ _____          that statute includes  violent as well as  non-violent methods of          perpetrating the  specified crime,10 the  government hypothesizes          that we can explore whether Winter actually conducted the bribery                                        ____________________               10In pertinent  part, the state statute  outlaws the rigging          of publicly exhibited contests  in circumstances wherein a person          "confers .  . . any benefit  upon, or threatens any  injury to, a          participant, official or other person associated with the contest          or exhibition; or (2) tampers with any person, animal, or thing."          18 Pa. Cons. Stat. Ann.   4109(a).                                          13          scheme in a brutal manner.                    This reasoning is specious.  Winter was neither charged          with, nor  convicted of, violating the  Pennsylvania statute; and          the indictment  does not  embrace the  language of that  statute.          Taylor and its  progeny in no way suggest that  a reviewing court          ______          should  investigate  conduct   ranging  outside  the   counts  of          conviction for  purposes of  determining career offender  status.          Indeed,  the case law teaches  the opposite lesson.   See Taylor,                                                                ___ ______          495 U.S. at 602; Doe, 960  F.2d at 224; United States v. Leavitt,                           ___                    _____________    _______          925 F.2d 516, 517-18  (1st Cir. 1991); see also  U.S.S.G.  4B1.2,                                                 ___ ____          comment.  n.2(B)  (explaining  that  "the conduct  of  which  the          defendant was convicted is the focus of inquiry").                    Moreover,  although the Pennsylvania statute includes a          violent  method of horse  race fixing  among the  several methods          identified therein,  the state statute  is mentioned only  in the          Travel Act  counts.   In turn,  those counts,  as charged  in the                                                         __________________          indictment, by  their very  wording exclude that  violent method,          __________          for  they  are  worded  exclusively in  terms  of  a  non-violent          alternative,  subsection (a)(3)  of the Travel  Act, 18  U.S.C.            1952(a)(3).    Thus,  the  passing mention  of  the  Pennsylvania          bribery  statute is of no consequence  anent the applicability of          the career offender guideline.                                          V.                                          V.                                          __                                      Conclusion                                      Conclusion                                      __________                    Categorically  speaking,  racketeering,  conspiracy  to          commit racketeering,  travel in  aid of racketeering,  and sports                                          14          bribery all fail, in  the circumstances of this case,  to qualify          as  crimes  of  violence  under the  career  offender  guideline,          U.S.S.G.  4B1.1.   Hence, the government's  claim that assaultive          behavior  was used to  advance Winter's  racketeering activities,          even  if  true, is  beside the  point.   We  need go  no further:          although  Winter,  as  the  government  asserts,  may  well  have          demonstrated a penchant for  violence, he could not appropriately          have been sentenced as a career offender.          Affirmed.          Affirmed.          ________                                          15
