
USCA1 Opinion

	




          February 17, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1875                                    UNITED STATES,                                      Appellant,                                          v.                                    ROBERT PALEO,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Carole  S. Schwartz, Assistant  United States Attorney, with               ___________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellant.               Mark G. Miliotis, with whom Miliotis & McQuade, was on brief               ________________            __________________          for appellee.                                 ____________________                                 ____________________                    Per  Curiam.   The United  States appeals  the district                    Per  Curiam                    ___________          court's refusal to impose a fifteen-year mandatory sentence under          the Armed Career Criminal Act, ("ACCA"), 18 U.S.C.   924(e).                      In  March 1990, appellee Robert  Paleo pled guilty to a          one-count  indictment   charging  him  with  being   a  felon  in          possession  of a firearm in  violation of 18  U.S.C.   922(g)(1).          Because  Paleo  had  a  prior  criminal  record,  the  government          entreated  the district court  to sentence Paleo  to the fifteen-          year  mandatory sentence  under  the ACCA.    In response,  Paleo          challenged  the  constitutionality  of  his   prior  state  court          convictions that  formed the basis of  the government's requested          sentence  under the  ACCA.   In support  of his  challenge, Paleo          submitted an affidavit sworn  to by himself, stating that  he had          been denied counsel  during critical  stages of two  of his  four          prior  convictions.    The  affidavit was  supported  by  several          deficiencies in the state records.                    The  district  court allowed  the challenge,  and found          that  Paleo had  been denied  counsel at  two  of his  four prior          convictions.     Accordingly,  the  district   court  denied  the          government's request  for  the  imposition  of  the  fifteen-year          sentence under the  ACCA, and  instead imposed a  sentence of  21          months' incarceration  and two  years of supervised  release, the          maximum sentence  allowed under  the Sentencing Guidelines.   The          government now appeals, claiming 1) that the district court erred          as a  matter  of law  in  ruling with  respect to  Paleo's  prior          convictions,  and 2) that  the district court's  findings of fact          regarding Paleo's denial of his right of counsel during his prior          convictions were clearly erroneous.                     Having carefully reviewed the district court's opinion,          and finding no abuse of discretion or clear  error, we reject the          government's arguments, and affirm.                    Affirmed.                    ________                                         -3-
