February 11, 1993 UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                             

No. 92-1549

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         CARLOS DE JESUS,

                      Defendant, Appellant.

                                             

                           ERRATA SHEET

     The  opinion of  the Court  issued on  January 27,  1993, is
corrected as follows:

     On page 5, line 4   "See Fiore,     F.2d at     [slip op. at
                                   
5]" should be corrected to read "See United  States v. Fiore,    
                                                            
F.2d    ,     (1st Cir. 1992) [No. 92-1601, slip op. at 5]."

January 27, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-1549

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         CARLOS DE JESUS,

                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Andrew A. Caffrey, Senior U.S. District Judge]
                                                          

                                              

                              Before

                   Torruella, Selya and Stahl,

                         Circuit Judges.
                                       

                                              

     Annemarie Hassett, Federal Defender Office, for appellant.
                      
     Frank A. Libby, Jr.,  Assistant United States Attorney, with
                        
whom A.  John Pappalardo, United  States Attorney, was  on brief,
                        
for the United States.

                                              

                                              

          SELYA,  Circuit Judge.    In this  appeal, we  consider
          SELYA,  Circuit Judge.
                               

whether larceny from the person is a crime of violence within the

meaning of the federal sentencing guidelines.  Because  we answer

that  question  affirmatively, defendant's  prior  conviction for

that  crime qualifies as  a predicate offense,  requiring that we

affirm his enhanced sentence as a career offender.

I.  BACKGROUND

          The  career offender guideline  elevates the sentencing

range of  a defendant who, being at  least eighteen years old and

having previously  been convicted  of  "at least  2 prior  felony

convictions  of  either  a  crime of  violence  or  a  controlled

substance offense," is found  guilty of a federal felony  that is

itself  either  a crime  of  violence or  a  controlled substance

offense.   U.S.S.G.    4B1.1.1  On January  21, 1992,  defendant-

appellant  Carlos  De  Jesus  pled guilty  to  federal  narcotics

offenses  in  violation of  21 U.S.C.     841(a)(1),  846, 860(a)

(1988)   and  18  U.S.C.      2  (1988).     In  the  presentence

investigation   report  (PSI   Report),  the   probation  officer

recommended that appellant be sentenced as a career offender.  In

support  of the  predicate  offense requirement,  the PSI  Report

limned five prior offenses, viz., a conviction for  possession of
                                

                    

     1Unless   otherwise  indicated,   all   references  to   the
sentencing guidelines are to  the November 1991 version.   See 18
                                                              
U.S.C.    3553(a)(4)-(5)(1988) (instructing a sentencing court to
consider the guidelines and  policy statements "in effect on  the
date  the defendant  is sentenced");  see also  United States  v.
                                                             
Harotunian, 920  F.2d 1040,  1041-42 (1st Cir.  1990) (explaining
          
that, save for any  ex post facto complications, "a  defendant is
                                 
to  be punished according to the guidelines in effect at the time
of sentencing").

                                3

heroin with  intent to distribute, two  diversionary dispositions

for  assault and  battery  that were  placed  on file  without  a

finding  of guilt,  a  diversionary disposition  for assault  and

battery  that was placed on file after  a finding of guilt, and a

conviction for larceny from the person.2 

          At sentencing,  the  district  court  adopted  the  PSI

Report's recommendation, branded appellant a career offender, and

set  the guideline  sentencing  range (GSR)  at 210-262  months.3

The  court then  granted a  government motion  filed pursuant  to

U.S.S.G.   5K1.1 and departed downward in tribute to  appellant's

substantial  assistance, sentencing  him  to a  60-month term  of

incarceration.

          Appellant objects  to his  classification  as a  career

offender.   He  acknowledges that  his conviction  for possessing

heroin  with  intent  to  distribute  is  a  countable  predicate

offense, but  protests that there is  no other.  Thus,  he claims

that  the  government  failed  to  show  the  requisite  pair  of

predicate offenses.

II.  ANALYSIS

          Although the lower court determined that De Jesus was a

career offender, it  made no express finding  as to which  of his

past escapades constituted predicate  offenses within the meaning

                    

     2The first three dispositions occurred on November 24, 1987;
the last two  dispositions occurred on April 10, 1990.   All five
cases were prosecuted in a Massachusetts state court.

     3Both sides  agree that, apart from  career offender status,
the GSR would have been 46-57 months.

                                4

of U.S.S.G.   4B1.1.   Because appellant admits the  incidence of

one  predicate offense (for peddling heroin), our sole task is to

determine  whether  the record  supports  the  sentencing court's

implicit finding  of a  second predicate  offense.4  We  approach

this task with an awareness that, so long as any one of the other

dispositions  catalogued in  the PSI  Report qualifies  under the

career offender rubric, De Jesus's appeal founders.

                                A

          Because we  believe it is relatively  clearcut, we turn

first to the issue of whether appellant's conviction for  larceny

from  the  person constitutes  a  predicate  offense.   Appellant

claims that this conviction cannot trigger career offender status

because the crime charged,  a violation of Mass. Gen. L. ch. 266,

   25(b) (1990), does not  constitute a crime  of violence within

the meaning of the sentencing guidelines.  We do not agree.

          The  Sentencing  Commission  has  defined  a  crime  of

violence as a federal or state offense punishable by imprisonment

for more than 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,

                    

     4Although  the lack  of express  findings is  a complicating
factor, it does not  frustrate appellate review.  After  all, the
question of whether a crime qualifies as a predicate offense is a
question of  law and, hence, our  review is plenary.   See United
                                                                 
States v. Fiore,      F.2d    ,     (1st Cir. 1992) [No. 92-1601,
                                   
slip  op. at 3].   Therefore, this  appeal can proceed.   We take
this opportunity, however, to emphasize that  reasonably complete
findings  at  the trial  court  level  invariably facilitate  the
appellate  task and to urge district judges to make such findings
wherever possible.

                                5

          involves  use  of  explosives,  or  otherwise
          involves  conduct  that  presents  a  serious
          potential risk of physical injury to another.

U.S.S.G.   4B1.2(1).  A formal categorical approach   an approach

that looks to  a prior offense's statutory provenance rather than

to its  actual facts    is the  method of choice  for determining

whether a  felony constitutes a targeted crime within the meaning

of this definition.  See  United States v. Fiore,      F.2d     ,
                                                                

    (1st Cir.  1992) [No. 92-1601, slip op. at  5]; United States
                                                                 

v. Bell, 966  F.2d 703, 704  (1st Cir. 1992);  accord U.S.S.G.   
                                                     

4B1.2, comment (n.2) (directing  judicial inquiry to "the conduct

set forth (i.e.,  expressly charged)  in the count  of which  the
               

defendant was convicted"); cf. Taylor v. United States,  495 U.S.
                                                      

575,  600  (1990)  (adopting  categorical  approach  for  similar

definitional  inquiries  under  the Armed  Career  Criminal Act);

United  States v.  Doe,  960 F.2d  221,  223-24 (1st  Cir.  1992)
                      

(same).   Thus,  rather than  examining the  actual circumstances

underlying the earlier conviction,  we examine only the statutory

formulation of the crime charged  (here, larceny from the person)

to see if that crime  is a crime of violence for purposes  of the

career offender guideline.5

                    

     5To  be sure,  there  are certain  limited circumstances  in
which  a court  may appropriately  peruse documents  such as  the
charging  papers or  jury instructions  in order  to flesh  out a
predicate offense inquiry.   See, e.g., Taylor, 495 U.S.  at 602.
                                              
In  this  instance, however,  we see  no  reason either  to reach
beyond the statutory parameter or to consider the extent to which
our opinion in United States  v. Harris, 964 F.2d 1234 (1st  Cir.
                                       
1992),  does  or  does not  permit  resort  to  the PSI  Report's
depiction  of the  underlying events  and/or the  defendant's own
version of the facts as outlined in the Report's addendum.

                                6

                                B

          The state statute in  question authorizes a prison term

of up  to five  years for  one who "steal[s]  from the  person of

another."   Mass. Gen. L.  ch. 266,    25(b).  Massachusetts  law

makes clear that, in order to satisfy "the essential elements" of

the  statutory definition,  the  taking  need  not  be  from  the

victim's person  so long  as  it is  "from  the presence  of  the

victim,"   that  is,   from   "within  his   area  of   control."

Commonwealth v.  Subilosky, 352 Mass.  153, 166, 224  N.E.2d 197,
                          

206  (1967)  (internal  quotation  marks and  citation  omitted).

Using  this  rendition  of   Massachusetts  law  as  a  doctrinal

springboard, appellant argues that his earlier conviction was not

for  a "crime of violence" as that  term is defined in the career

offender guideline.

          Appellant's  argument  has  some superficial  allure.  

Because actual  or threatened use of  force is not an  element of

the  offense in Massachusetts,  larceny from the  person does not

fit  within subsection (i) of  U.S.S.G.   4B1.2(1).   The puzzle,

however,  is not  so  easily solved;  even  if force  (actual  or

threatened) is  not an element of the  offense, a crime may still

be a crime  of violence if it falls within the "otherwise" clause

of  subsection  (ii), that  is,  if  it  "involves  conduct  that

presents a serious potential risk of physical injury to another."

U.S.S.G.   4B1.2(1).

          The Sentencing Commission's commentary recites a litany

of  illustrative offenses,  including  some that  typically  fall

                                7

within  the  reach of  the "otherwise"  clause.   See  U.S.S.G.  
                                                     

4B1.2,  comment (n.2).  Although  larceny from the  person is not

listed, we do not  think the lack of enumeration  is dispositive.

Expanding  on  the  "otherwise"  clause,  the  application  notes

explain  that  "[o]ther offenses  are included  where  . .  . the

conduct set forth (i.e., expressly charged) in the count of which
                       

the  defendant was  convicted . .  ., by its  nature, presented a

serious potential  risk  of physical  injury  to another."    Id.
                                                                 

Against  this backdrop, the lens of judicial inquiry narrows to a

determination of whether larceny from the person is a category of

crime  that,  by  its  nature, presents  a  substantial  risk  of

personal injury  even though its statutorily  defined elements do

not include the use or threat of force.

          Appellant  contends that because  the crime potentially

embraces  a  broad  range  of  non-violent  conduct,  see,  e.g.,
                                                                

Commonwealth  v. Dimond,  57  Mass. 235,  236-38 (1849)  (holding
                       

that, in certain circumstances, fraud can be prosecuted under the

statute), larceny from  the person cannot be  shoehorned into the

contours of the "otherwise" clause.  We think that Taylor and its
                                                         

progeny undermine this contention.   The Taylor Court, invoking a
                                               

categorical approach, held that  any state offense containing the

basic elements  of burglary, "regardless of  its exact definition

or  label,"  Taylor,  495  U.S. at  599,  constituted  a "violent
                   

felony" for  purposes of  sentencing enhancement under  the Armed

                                8

Career  Criminal Act  (ACCA),  as  amended,  18 U.S.C.     924(e)

(1988).6  Hence, not  only "especially dangerous" burglaries, but

also "ordinary burglaries,"  that is, "run-of-the-mill burglaries

involving an unarmed offender, an unoccupied building, and no use

or threat  of force"  present "a sufficiently  'serious potential

risk' to count towards enhancement."  Id. at 597.
                                         

          The linchpin of the taxonomy, then,  is not the breadth

of the statutory sweep but 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.  Applying

this test in  the post-Taylor era, we  have repeatedly classified
                             

as  crimes of  violence  offenses in  which actual  or threatened

force  against another  person is  likely, although  by  no means

certain.  In a case hitting close to the mark, we determined that

a conviction  for larceny  from the  person  under Tennessee  law

constituted  a crime of violence within the meaning of the career

offender guideline.  See United States v. McVicar, 907  F.2d 1, 2
                                                 

(1st Cir. 1990).   We recognized that, although larceny  from the

person  "typically involves no threat of violence," id. at 3, the
                                                       

                    

     6The definition  of "violent felony" in  the ACCA's sentence
enhancement provision is virtually identical to the definition of
"crime of violence" under  U.S.S.G.   4B1.2.  Indeed,  the former
definition  is  widely  regarded  as the  source  of  the  latter
definition.  See Fiore,     F.2d at     n.2 [slip op. at 5  n.2];
                                       
United  States v.  Preston, 910 F.2d  81, 86 n.6  (3d Cir. 1990),
                          
cert. denied, 111  S. Ct.  1002 (1991); U.S.S.G.  App. C,  amend.
            
268, at  C.139 (Nov. 1989).   For that reason, we  have routinely
held  that decisions interpreting  the ACCA constitute persuasive
authority  upon  which a  court  construing  the career  offender
guideline may rely.   See Fiore,     F.2d at     n.2 [slip op. at
                                                
5 n.2]; Bell, 966 F.2d at 705.
            

                                9

risk of ensuing struggle is omnipresent.  Thus, we concluded that

"[t]aking  property directly  from  a  person  .  .  .  run[s]  a

'substantial'  or  'serious'   risk  that  'physical  force'   or

'physical injury'  will  follow."   Id.  at  2.   Of  course,  as
                                       

appellant points out, the Tennessee  statute at issue in  McVicar
                                                                 

differs  from  the  Massachusetts  statute  in  that  the  former

requires theft directly from the victim's person.  See 1975 Tenn.
                                                      

Pub. Acts  367,  368.   But,  because the  Massachusetts  statute

requires theft  from either the  victim's person or  the victim's

immediate  vicinity,   see  Subilosky,   352  Mass.  at   166,  a
                                     

sufficiently serious  potential  for confrontation  and  physical

injury  invariably exists.  Hence, we  believe that the proffered

distinction  between  the Tennessee  and  Massachusetts statutes,

though  it exists,  does not  meaningfully differentiate  the two

cases.

          Our other decisions  point in the  same direction.   In

Fiore, we  held  that breaking  and  entering into  a  commercial
     

structure comprises a crime of violence under the career offender

guideline.    See  Fiore,       F.2d  at       [slip  op.  at  9]
                        

(concluding  that breaking  into a  commercial building  "poses a

potential  for episodic violence so substantial  as to bring such

burglaries within the . . . crime of violence ambit").  In United
                                                                 

States  v. Patterson, 882 F.2d 595 (1st Cir. 1989), cert. denied,
                                                                

493 U.S. 1027 (1990), an ACCA case, we held that "an unauthorized

entry  of the premises of another" portended a sufficient risk of

harm to  energize the career criminal  statute.  Id. at  604.  If
                                                    

                                10

breaking and entering an abandoned warehouse poses a sufficiently

"serious  potential risk  of physical  injury" to  trigger career

offender status, we fail to see how larceny  from the person that

necessarily involves  theft  from within  the victim's  immediate

presence  can be thought to  pose a significantly  lesser risk of

violent eruption.

          To say more would be to paint the lily.   We rule that,

as the crime of  larceny from the person under  Massachusetts law

bears  an inherent  risk of  violent outbreak,  it constitutes  a

crime  of  violence within  the  meaning of  the  career offender

provisions   of  the  federal   sentencing  guidelines.     Thus,

appellant's April 10, 1990 conviction on a charge of larceny from

the person could properly be counted as a predicate offense.

III.  CONCLUSION

          We   need  go   no  further.7     Appellant's   larceny

conviction,  taken in  conjunction  with  the earlier  controlled

substance offense, comprise  the two predicate offenses  required

for career offender status.   It follows inexorably, as  night is

said  to follow  day,  that appellant  received  his due  in  the

district court.

Affirmed.
        

                    

     7Inasmuch as  U.S.S.G.    4B1.1 requires only  two predicate
offenses as a  condition precedent to its  operation, any attempt
to evaluate the remaining predicate offense candidates enumerated
in the PSI Report would be supererogatory.  Therefore, we take no
view  as  to the  sufficiency  of  those  dispositions under  the
version of the career offender guideline applicable to this case.

                                11
