
USCA1 Opinion

	




          October 19, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1436                                               ALLEN CAGGIANO,                                Petitioner, Appellant,                                          v.                                    UNITED STATES,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Allen Caggiano, on brief pro se.               ______________               A. John Pappalardo,  United State Attorney,  and Stephen  A.               __________________                               ___________          Higginson,  Assistant   United  States  Attorney,  on  brief  for          _________          appellee.                                  __________________                                 __________________                  Per Curiam.  Allen  Caggiano seeks review of  a district                 __________            court  judgment  dismissing  his  motion  for federal  habeas            corpus relief under 28 U.S.C.   2255.  Caggiano was convicted            of  several  violations of  federal  firearms  laws under  18            U.S.C.    922(a),(g),(h) and  18 U.S.C.  App. II,    1202(a).            His sentence was enhanced under the Armed Career Criminal Act            ("Act"), 18 U.S.C.    924(e).   The Act  imposes a  mandatory            minimum  prison  sentence of  fifteen  years  on persons  who            violate  section 922(g)  of  the  Act,  if  they  have  three            previous  convictions  for  a  "violent  felony."    Caggiano            appealed his conviction  to this court,  alleging ineffective            assistance of counsel because his trial counsel had withdrawn            several motions to suppress  evidence seized during allegedly            unlawful  searches.   We  affirmed his  conviction in  United                                                                   ______            States v. Caggiano, 899 F.2d 99 (1st Cir. 1990), finding that            ______    ________            the searches  had been  validly conducted pursuant  to lawful            warrants.   Caggiano  then brought  his section  2255 motion,            alleging   various   constitutional   infirmities    in   his            indictment, conviction  and sentencing.   The district  court            dismissed the motion.  We now affirm.                 Much  of Caggiano's argument on appeal is based on a new            legal  theory that was not presented to the district court --            that the relevant provisions of the Act were not in effect at            the time Caggiano was indicted, tried and sentenced,  so that            his  conviction and  sentencing  violated the  ex post  facto                                                           __ ____  _____                                         -2-            clause  of the  United  States Constitution.   Caggiano  also            claims  that  count three  of  his  indictment was  defective            because based on  false testimony that he  had been convicted            of   three  predicate  felony  convictions  for  "robbery  or            burglary."  1  It is well established that an appellate court            does  not  consider  arguments  not presented  in  the  first            instance to the trial court.  Accordingly, we do not consider            those arguments, nor any other arguments that Caggiano raises            for the first  time on  appeal.  United  States v.  Valencia-                                             ______________     _________            Copete,  792 F.2d  4, 5  (1st Cir.  1986); Porcaro  v. United            ______                                     _______     ______            States, 784 F.2d 38, 39 (1st Cir. 1986).               ______                 We also note that Caggiano has not appealed the district            court's decision  on counts one through five  of his original            section  2255 motion.2   He  has appealed  only the  district                                            ____________________            1.  In his brief to the district court Caggiano  alleged that            a government agent falsely testified that "Allan J. Caggiano"            had  three  or  more  convictions for  robbery  or  burglary,            although  he  had  none.   Brief  in  Support  of  Defendant-            Appellant's Motion Under 28  U.S.C.   2255, at 43.   However,            Caggiano was arguing there that the "Allan J. Caggiano" named            in the  indictment  was his  son  and  that his  son  had  no            convictions.   He was not  arguing that he  had not committed            the crimes of robbery and burglary, as he does here.  Indeed,            in  his brief  Caggiano  conceded that  he had  committed the            crimes  of robbery or burglary, but argued that they were not            valid  predicate felonies because he  had committed them as a            juvenile.   The district court  conclusively demonstrated the            invalidity of Caggiano's argument on that score, and Caggiano            has not appealed that determination.              2.  The issues  raised in the original  motion which Caggiano            has not appealed  are:  that  his indictment, conviction  and            sentence were  invalid because based on  convictions for acts            committed  as a juvenile, that his trial was not fair because            it was based on false and malicious testimony and on evidence                                         -3-            court's decision relating to  count one, as amended.3   After            originally filing  his motion, Caggiano argued  that a recent            Supreme Court case precluded  the government's reliance on an            attempted  breaking  and   entering  conviction  to   enhance            Caggiano's  sentence.   The court  amended count  one of  the            motion  because  the case  had  suggested  that an  attempted            breaking and entering would not qualify as a "burglary" under            the Act.   See  Taylor v.  United States,  495 U.S. 575,  598                       ___________     _____________            (1990) ("burglary" as a predicate violent felony for sentence            enhancement meant  "generic" burglary  in which there  was an            actual entry  into a  building).  Therefore,  we confine  our            discussion to the issue  whether the convictions submitted by            the  government  were for  valid  predicate  offenses and  to            Caggiano's  other claims  of  error in  the district  court's            decision.                    Caggiano's  arguments are the  following:   his sentence            was  enhanced   without  having  had   three  violent  felony                                            ____________________            that had been  tampered with, that the  evidence submitted at            trial had  been obtained through unlawful  searches, that his            trial  attorney   had  rendered  ineffective   assistance  of            counsel, and  that his  indictment had been  procured through            prosecutorial  misconduct and  an unlawful  amendment of  the            indictment.               3.  We  read  his  briefs  to  appeal  both  the  decision of            November  1, 1991, in which  the district court  held that an            attempted  breaking  and  entering  in  the  nighttime  is  a            "violent  felony,"  and the  decision of  March 11,  1992, in            which  the  court  held  that  arson,  assault  and  battery,            breaking and  entering in the nighttime,  and attempted armed            robbery were "violent felonies."                                         -4-            convictions  as defined  in 18  U.S.C.    924(e); he  was not            given  an evidentiary hearing;  the district court improperly            had  the  government  file  certificates  of  conviction  for            felonies not presented to the grand jury or sentencing court;            the district court improperly ordered Caggiano either to file            an  affidavit attesting that he  was not the  person named on            the  certificates of conviction, or  to face dismissal of his            motion;  and  he  was  deprived of  effective  assistance  of            counsel when  advised by counsel  to stipulate to  having had            two violent felony convictions.                    The central substantive issue  to be resolved is whether            Caggiano's previous  convictions were violent  felonies under            the Act.   In relevant part, the Act defines a violent felony            to be:                      any  crime  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,  arson,  .  .  .  or  otherwise                      involves  conduct that presents a serious potential                      risk of physical injury to another . . . .            18 U.S.C.    924(e)(2)(B).4   The term  "crime punishable  by            imprisonment  for a  term exceeding  one year"  excludes "any            State  offense classified  by  the laws  of  the State  as  a                                            ____________________            4.  We  cite here the version of the Act under which Caggiano            was convicted  and sentenced.   Although we have  declined to            consider  the  ex  post facto  issue  raised  by Caggiano  on                           __  ____ _____            appeal, we  note that, contrary to  Caggiano's assertion, the            Act  had   become  effective  before   the  search   exposing            Caggiano's unlawful possession of firearms took place.                                           -5-            misdemeanor and punishable by  a term of imprisonment  of two            years or less."  Id.   921(a)(20)(B).                               ___                 In  affirming  Caggiano's   sentence  enhancement,   the            district court relied on  four previous convictions, one each            for arson, assault and battery,  breaking and entering in the            nighttime  with intent  to  commit larceny  and larceny,  and            attempted  armed robbery.  The court found that each of those            offenses carried sentences of at least two and one-half years            under Massachusetts  law and was  a violent felony  under the            Act.  In  addition, the court  found that attempted  breaking            and  entering, on which Caggiano had also been convicted, was            a  violent  felony.    Caggiano does  not  dispute  that  his            convictions for arson and  attempted armed robbery were valid            predicate  offenses.   He denies  only that  his assault  and            battery,  breaking  and entering  and attempted  breaking and            entering convictions were predicate offenses under the Act.                   First,  Caggiano acknowledges  that a  complaint against            him  for assault and battery  was issued, but  claims that he            was  not convicted of the charge.  The record contradicts his            assertion,  however.   Certified  court  documents show  that            Caggiano pled  guilty to  the assault  and battery  at issue.            Under  the  Act,  the  law  of  the  jurisdiction  in   which            conviction   proceedings   were   held   determines   what  a            "conviction" is.  Id.   921(a)(20).  Massachusetts  law makes                              ___            clear  that criminal defendants are considered "convicted" if                                         -6-            they admit the truth  of the charge against them  by pleading            guilty.  Mass. Gen. Laws c. 263   6.  Therefore, Caggiano was            convicted  of assault  and  battery, and  the court  properly            relied on that conviction as a prior violent felony.5                   Second,  Caggiano  claims  that  attempted  breaking and            entering  with  intent to  commit  larceny  and breaking  and            entering  with  intent  to  commit larceny  are  not  violent            felonies because  larceny is a misdemeanor  under state law.6                                            ____________________            5.  Assault  and  battery  unquestionably  comes  within  the            section 924(e)(2)(B)(i) definition of a violent  felony since            one element of the crime is the use of physical force against            the person of another.  Although Caggiano has not raised this            issue,  we  note, however,  that  assault  and  battery is  a            misdemeanor in Massachusetts.  See Mass. Gen. Laws c. 274   1                                           ___            (a  crime punishable by imprisonment in the state prison is a            felony); c. 265    13A (assault and battery is  punishable by            imprisonment  for  two  and  one-half  years  in  a  house of            correction).   Nevertheless,  because  of the  length of  the            period of confinement imposed, assault and battery would be a            "violent  felony"  under  the Act.      Crimes  that are  not            considered to be violent felonies include only state offenses            both  "classified by the laws  of the State  as a misdemeanor            and  punishable by  a term  of imprisonment  of two  years or            ___  __________ __  _ ____  __ ____________  __ ___  _____ __            less."  18 U.S.C.  921(a)(20)(B)  (emphasis added).  Thus, we            ____            conclude  that  misdemeanors  for which  state  laws  provide            imprisonment  for more  than  two years  are valid  predicate            offenses  under the  Act.    Since  assault  and  battery  is            punishable  by   imprisonment   for   over   two   years   in            Massachusetts, it qualifies as a violent felony.              6.  The  government has  argued that  we should  not consider            Caggiano's misdemeanor argument because Caggiano did not make            it to the district court.   Strictly speaking, the government            is correct.  However,  we have considered Caggiano's argument            since  it  responds  to  the  district  court's  ruling  that            Caggiano's  breaking  and entering  conviction was  a violent            felony.    In  making  that ruling,  the  court  stated  that            Caggiano's conviction was a violent felony within the meaning            of "18 U.S.C.    924(e)(2)(B) and 921(a)(20) (assuming that                                            ___ __________ _________ ____ _            921(a)(20)  applies  to     924(e))."    (Emphasis  added.)              __________  _______  __  ___________            Section 921(a)(20)  excludes from  the definition  of violent                                         -7-            This argument is  based on a  mistaken interpretation of  the            crimes for  which Caggiano  was convicted.   Although certain            larcenies are  misdemeanors under  state law, see  Mass. Gen.                                                          ___            Laws c. 266,   30; c. 274,   1, Caggiano was not convicted of            attempted  larceny or  larceny  alone, but  of attempted  and            actual breaking and entering a building in the nighttime with            intent  to  commit  larceny.     See Exhibits  D,  E,  and F,                                             ___            attached to Government's Reply  to Court Order Dated November            1,  1991.7    Under  Massachusetts  law,  any  larceny  in  a                                            ____________________            felony   state   offenses   classified   by   state   law  as            "misdemeanors" and punishable by imprisonment of two years or            less.  The district court having raised the misdemeanor issue            by its  reference to  section 921,  Caggiano is  justified in            challenging  the  breaking  and entering  conviction  on that            basis, and  therefore we  also  permit him  to challenge  the            court's earlier holding respecting the attempted breaking and            entering convictions on that basis, too.                 Although  the district  court appears  to have  had some            doubt that section 921(a)(20) applies, we find that  it does.            Section 924(e) states  that a "violent felony" is  "any crime            punishable  by imprisonment  for a  term exceeding  one year"            that meets  certain  other criteria.   Section  921(a)(20)(B)            defines the term "crime punishable by imprisonment for a term            exceeding one  year" for Chapter 44 (Firearms)  of the United            States  Code.  Section 924(e) is in Chapter 44.  Furthermore,            both   section  921(a)(20)  and  section  924(e)  had  become            effective  by  the  time Caggiano  was  discovered  to be  in            unlawful possession of firearms.              7.  The record  does not contain the  original certified copy            of Caggiano's  conviction for breaking  and entering (Exhibit            D),  though it is clear  from the record  that the government            submitted it to  the court  and that the  court reviewed  it.            Since the record contains a copy of Caggiano's indictment for            breaking  and  entering  and  Caggiano  has  not  denied  the            conviction, we see no reason  to discount it.  In any  event,            there are at least three other convictions for which original            certified  copies  exist  in  the record  and  which  support            Caggiano's sentence enhancement.                                         -8-            building is a felony,  regardless whether anything was stolen            at all  or what the value  was of anything taken.   See Mass.                                                                ___            Gen. Laws c. 266,   20 (whoever steals in a building shall be            punished by imprisonment in the state prison); c. 274,   1 (a            crime  punishable by  imprisonment  in a  state  prison is  a            felony);  Commonwealth  v.  Ronchetti, 333  Mass.  78,  81-82                      ____________      _________            (1955) (the intent to steal is inferred from the breaking and            entering itself;  the Commonwealth was not  required to prove            that  the defendant  intended a  larceny which amounted  to a            felony  since, under Mass. Gen. Laws c. 266,   20, larceny in            a building  is a felony).   Thus, the fact that  Caggiano was            charged  with   an  "intent  to  commit   larceny"  in  these            convictions    does   not    convert   these    felonies   to            misdemeanors.8   Consequently,  the district  court correctly            included  Caggiano's convictions  for attempted  breaking and            entering and for breaking and entering as predicate offenses.            See also United  States v.  Payne, 966  F.2d 4,  8 (1st  Cir.            _______________________     _____            1992) (attempted daytime breaking and entering conviction was            a violent felony under the Act);  United States v. Patterson,                                              _____________    _________                                            ____________________            8.  Under  Massachusetts law,  both an  attempted and  actual            breaking  and entering  of a  building in  the nighttime  are            felonies  under the  only statutory  section that  applies to            Caggiano's convictions.  See Mass.  Gen. Laws c. 274,    1 (a                                     ___            crime  punishable  by  imprisonment  in  state  prison  is  a            felony);  c. 266,   16  (breaking and entering  a building in            the  nighttime is punishable by  up to twenty  years in state            prison); c. 274,   6 (an attempt to commit a crime punishable            in state prison for  five years or more is  itself punishable            by imprisonment in state prison for up to five years).                                          -9-            882 F.2d 595  (1st Cir.  1989), cert. denied,  493 U.S.  1027                                            ____________            (1990) (nighttime  breaking  and entering  conviction  was  a            violent felony under the Act).                   In sum, the government successfully showed that Caggiano            had more than the three  previous convictions required by the            Act  for sentence  enhancement.   Caggiano's  claim that  the            court  could   not  permit  the  government   to  submit  the            additional  certificates  of conviction,  or  require  him to            submit an affidavit denying that he was the person convicted,            has  no merit.  Rule 7(a) of the rules governing section 2255            proceedings provides that the judge may direct the parties to            expand the  record "by the inclusion  of additional materials            relevant to  the determination of the merits  of the motion."            Certainly, the  certificates of  conviction were  relevant to            determining  the  merits of  Caggiano's  section  2255 motion            averring  that he did not  have the requisite three predicate            offenses,  especially  since  Caggiano  had  reneged  on  his            stipulation at  the sentencing hearing that he had three such            offenses.  Subsection  (b) of  the rule  further states  that            "[a]ffidavits  may be submitted  and considered as  a part of            the record,"  and subsection  (c) requires  that a  party "be            afforded an opportunity to admit or deny" materials added  to            the record.  Thus, the court's direction that Caggiano submit            an affidavit  denying the certified  convictions submitted by            the government was fully authorized by Rule 7.                                         -10-                 Caggiano's  claim  that he  could not  submit affidavits            denying  the  convictions  because  the  government  did  not            provide him with copies of the convictions in either April or            December 1991 is  contradicted by the  record, at least  with            respect  to  the   copies  provided  in  April   1991.    See                                                                      ___            Petitioner's Responce  to Governments Memorandum  in Responce            to Court Order of  April 1, 1991 [sic], passim,  and Exhibits                                                    ______            A12-A16  (referring  to the  copies  of  the convictions  and            reproducing them  as exhibits).  Moreoever,  although we have            no  way of  determining  conclusively that  Caggiano actually            received copies of all of the certified convictions submitted            by the government in December  1991, the record suggests that            he did.  In his  Appendix submitted to this court  are copies            of  two  of  the   certified  convictions  submitted  by  the            government.      See    Record   of   Appendix/Exhibits   for                             ___            Petitioner/Appellant,   at   A-11,   A-14.      Under   these            circumstances,  the  government's  contention  that  it  sent            Caggiano copies of the  original certified convictions is the            more credible.   In  any event, the  uncertified convictions,            which were  in Caggiano's possession, gave  him ample details            about the charges underlying the alleged convictions, so that            he should have been able to prepare an affidavit denying that            he was the person named in  the charge.  He failed to  do so,            and the court's dismissal of his motion for failure to submit            the affidavit was correct.                                         -11-                 Nor are  we swayed  by Caggiano's further  argument that            the court could  not ask  the government to  submit proof  of            additional  convictions  since  that  evidence  had  not been            proffered  to the  grand jury  in connection  with Caggiano's            indictment  under  sections 922(g)  and  924(e)  of the  Act.            First,  Caggiano's argument  appears to  be based  on certain            factual  misconceptions,  e.g.,   that  the  government   was            required to show three previous  "robberies" or "burglaries",            and not three previous "violent felonies."  His misconception            appears to be based on his belief that the version of section            924(e) under  which  he  was  indicted  had  not  yet  become            effective  at the time of his indictment, but that an earlier            version  requiring  as   predicate  offenses  robberies   and            burglaries, rather than violent felonies, was effective.   As            we  have already  said,  we will  not  consider arguments  on            appeal  that were not first  presented to the district court.            See  also,  supra,  footnote  4.    Second,   we  assume  for            _________   _____            argument's sake that Caggiano is correct that, for sentencing            enhancement  purposes,  the  government was  confined  to the            evidence  of  convictions submitted  to  the  grand jury  for            indictment.    Nevertheless,  the predicate  convictions,  to            which Caggiano contends the government was confined, were all            for  offenses  which  the  statute clearly  considers  to  be            violent felonies,  or  which  we  have found  to  be  violent            felonies, i.e., attempted  breaking and entering  with intent                                         -12-            to  commit  larceny, breaking  and  entering  with intent  to            commit   larceny,   attempted   armed   robbery   and  arson.            Therefore, assuming  that the district court  erred in asking            the government to submit proof of additional convictions, its            errorwas harmlessand doesnot providea valid groundfor appeal.                 Caggiano also contends that he was deprived of effective            assistance  of  counsel  when  advised by  trial  counsel  to            stipulate  to  having had  two  violent  felony convictions.9            The convictions to which  he refers are the ones  for assault            and  battery and  attempted  breaking and  entering discussed            above.  We have already found that those convictions were for            violent  felonies  that  would justify  sentence  enhancement            under the Act.   Accordingly, the advice by trial  counsel to            stipulate to those convictions was sound.                   Finally,  Caggiano  faults the  district  court  for not            granting  him  an evidentiary  hearing.10      As  the  court            suggested in its November  1991 order, an evidentiary hearing                                            ____________________            9.  Because  we can  readily dispose  of Caggiano's  claim of            ineffective assistance of  counsel on the  merits, we do  not            consider whether he is  barred from raising the issue  in his            section  2255 petition because he  failed to raise  it in his            direct appeal, in which he had alleged ineffective assistance            of counsel on different grounds.              10.  The government  argues that  Caggiano did not  request a            hearing.  Although Caggiano's section 2255 motion itself made            no request for a hearing, his reply brief to the government's            brief  on  his motion  expressly  requested a  hearing.   See                                                                      ___            Defendant-Appellant's Responce [sic]  to Government's  Answer            to  Defendant's  Motion  to  Vacate,  Set  Aside  or  Correct            Sentence, at 23.                                          -13-            might have been necessary  if Caggiano had disputed  that the            convictions  were  his.    Caggiano  failed  to  do  so,  and            consequently no material fact is left to be resolved.  Hence,            a  hearing was not required.   See United  States v. DiCarlo,                                           __________________    _______            575 F.2d 952,  954 (1st Cir. 1978) (a hearing is not required            if  a section 2255 motion  is conclusively refuted  as to the            alleged facts by  the files and record); 28  U.S.C.   2255 (a            hearing on a section 2255 motion is not granted if the motion            and  the files and records of the case conclusively show that            the petitioner is entitled to no relief).                   The  district  court   judgment  dismissing   Caggiano's            section 2255 motion is affirmed.                                   _________                                         -14-
