
USCA1 Opinion

	




          September 28, 1993    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1326                                PETER N. GEORGACARAKOS,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Peter N. Georgacarakos on brief pro se.            ______________________            Jay  P. McCloskey, United  States Attorney, and Michael M. DuBose,            _________________                               _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Appellant Peter  Georgacarakos  has                      ___________            appealed from the  district court's denial  of his motion  to            correct sentence under 28 U.S.C.    2255.  Georgacarakos  was            found  guilty  of  possessing  and  distributing  cocaine  in            violation  of  21  U.S.C.     841.    Because  Georgacarakos'            criminal history included prior  convictions for a controlled            substance  offense  and  for  burglary  of  a  dwelling,  the            district  court  ruled  that  Georgacarakos   was  a  "career            offender"  under section  4B1.1 of the sentencing guidelines.            The court  therefore assigned Georgacarakos  an offense level            of  32 (including  a  two-level reduction  for acceptance  of            responsibility) and  sentenced him to a  term of imprisonment            of 260  months plus  a six-year  term  of supervised  release            following incarceration.                      To  be sentenced  as  a career  offender under  the            sentencing  guidelines, a defendant  must be presently guilty            of  "a  felony that  is  either  a  crime  of violence  or  a            controlled substance  offense," and  must have had  "at least            two prior felony convictions of either a crime of violence or            a  controlled substance  offense."   U.S.S.G.    4B1.1.   The            guidelines define a "crime of violence" for these purposes to            include "any offense under federal or state law punishable by            imprisonment  for a term  exceeding one  year that  . .  . is            burglary of a dwelling . . . ."  Id. at   4B1.2(1).                                             ___                      Georgacarakos'   sole  argument   in  his      2255            petition, and on appeal, is that this aspect of section 4B1's            definition  of "crime  of  violence" is  impermissible.   His            reasoning,  in   summary,  runs  as  follows.     Before  the            sentencing guidelines were promulgated, Congress  already had            defined  "crime  of  violence"  in  28  U.S.C.    2901(c)  as            including  "burglary  or  housebreaking  in  the  nighttime."            Burglary in the daytime, by implication, was excluded.  Under               2901(g), a  narcotics  offender charged  with  a crime  of            violence could not be  eligible for the civil  commitment and            rehabilitation  programs  governed by  that  chapter.   Since            Congress,  in 28  U.S.C.    994(a), later  directed that  the            Sentencing   Commission   promulgate  sentencing   guidelines            "consistent with  all pertinent provisions of  this title and            title 18,  United States Code,"  the definition of  "crime of            violence"  in   4B1 was  impermissible to the  extent that it            was inconsistent  with the  earlier definition in    2901(c).            Further, according  to Georgacarakos,  it would be  unfair to            subject defendants to such  inconsistency in the treatment of            burglary of a dwelling in the daytime.                       We reject  Georgacarakos' argument, and  affirm the            decision of the district court, for the reasons stated in the            district court's  February 26,  1993 order and  memorandum of            opinion.  Section 2901  expressly states that the definitions            contained therein  are  for  the terms  "[a]s  used  in  this                                         -3-            chapter," a chapter which is limited  to civil commitment and            rehabilitation   of  narcotics   addicts.     That  section's            definition of "crime of violence," therefore, does not govern            any use of the same term outside that chapter.                        Consequently,   the   inconsistency   between   the            definitions of "crime of violence" in   4B1 of the sentencing            guidelines and in   2901(c) is perfectly permissible and does            not  run afoul of the requirement of  28 U.S.C.   994(a) that            the  sentencing guidelines be  "consistent with all pertinent            provisions" of Titles 18  and 28.  Section  2901's definition            of a "crime of violence" "[a]s  used in this chapter" did not            preclude   Congress  from   choosing  to   define   the  term            differently  in   a  different   context.    The      2901(c)            definition,  therefore, was  not a  "pertinent provision"  of            Title  28 with  which  the sentencing  guidelines  had to  be            consistent.                        Indeed, as Georgacarakos himself concedes, Congress            permissibly  defined  "violent felony"  in  the Armed  Career            Criminal Act ["ACCA"], 18 U.S.C.   924(e)(2)(B), as including            simply "burglary," also a definition  substantially different            from  the definition  of "crime  of violence"  in    2901(c).            According to Georgacarakos, "Had Congress [in   4B1] intended            any  other meaning than that  given crime of  violence in [ ]            2901, it  would have created a  new term, just  as it created            the term 'violent  felony' when it  enacted the Armed  Career                                         -4-            Criminal  Act  .  .  .  .    Congress  intended  a  different            definition  for that  act so  it created  a  term to  fit its            intentions.  This is what Congress would have done [in   4B1]            had it intended  any other definition  for crime of  violence            than  the  one it  has  had  for  two  decades."    Thus,  by            Georgacarakos' reasoning, if   4B1, like the ACCA, had simply            used  the   term  "violent  felony"  instead   of  "crime  of            violence,"   but   with   precisely   the   same  substantive            definition, there would be no problem.                        We  will  not,  in  these  circumstances  at least,            attach so much  importance to the labels placed  on statutory            concepts.   The mere fact that    4B1 uses the  same words --            "crime of violence" -- as  in   2901(c) does not  require any            different result than if   4B1 employed some different label.            Indeed, as we  noted in United  States v. Fiore,  983 F.2d  1                                    ______________    _____            (1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993), "[t]he                             ____________            definition  of  'violent  felony'  in  the  ACCA's   sentence            enhancement provision is the  source of the language used  in            defining a 'crime of  violence' under U.S.S.G.    4B1.2 (Nov.            1991).  Decisions interpreting the ACCA constitute persuasive            authority  when a court is called upon to construe the career            offender guideline."  Id. at 3 n.2 (citations omitted).                                    ___                      The  real crux of  Georgacarakos' argument  is that            the choice of the label "crime of violence" must nevertheless            be determinative because that label must logically carry with                                         -5-            it   2901(c)'s pre-existing  definition of that term.   As we            have already  ruled, this argument fails  because   2901(c)'s            definition is  expressly limited  to the  term's use  in that            chapter.                        Nor do we see any adverse practical consequences of            the presence  of different definitions  of the  same term  in            these  two  contexts.   As  the district  court  pointed out,            commission  of a "crime of violence" under   2901 precludes a            narcotics  offender  from  participation   in  rehabilitation            programs  in lieu  of imprisonment,  whereas commission  of a            "crime of violence" under    4B1 may lead to  career offender            status  under the  sentencing  guidelines,  resulting  in  an            enhanced   sentence.      These  are   two   very   different            determinations  that would  not foreseeably  overlap at  all.            For  that  reason, the  differing  definitions  should create            neither   unfairness   for    offenders   nor    interpretive            difficulties  for  courts.    There is  no  genuine  conflict            between them.                      The  district  court's  denial   of  Georgacarakos'            motion under 28 U.S.C.   2255 is affirmed.                                             ________                                         -6-
