
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2212                                    UNITED STATES,                                      Appellee,                                          v.                                    NELSON FIELD,                                 Defendant-Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                           and McAuliffe*, District Judge.                                            ______________                                 ____________________            Gordon R. Blakeney, Jr., for appellant.            _______________________            Jean  B.  Weld,  Assistant  Attorney General,  with  whom  Paul M.            ______________                                             _______        Gagnon, United States Attorney, was on brief for appellee.        ______                                 ____________________                                   November 4, 1994                                 ____________________        _______________________        *Of the District of New Hampshire, sitting by designation.                      BOWNES, Senior Circuit Judge.  There are two issues                      BOWNES, Senior Circuit Judge.                              ____________________            raised in this appeal:   whether the district court  erred in            accepting defendant's  guilty plea; and  whether the district            court erred in sentencing defendant.                      Defendant-appellant was charged in  count two of  a            two-count indictment  with being a  felon in possession  of a            firearm on February  28, 1993,  in violation of  18 U.S.C.               922(g)(1).1   Defendant  signed a  written plea  agreement on            July 16, 1993, and entered a plea of guilty on July 28, 1993.                          The Acceptance of the Guilty Plea                          The Acceptance of the Guilty Plea                          _________________________________                      Defendant    challenges   the    district   court's            acceptance of his guilty plea on two grounds:   that the plea            was not truly  voluntary because the  district court did  not            establish  on  the  record  that he  understood  the  charges            against him and  the relation of  the law to the  facts; and,            that  the   district   court  accepted   the   plea   without            establishing an  adequate record showing a  factual basis for            the plea.  For the reasons that follow, we reject defendant's            attacks on the acceptance of his guilty plea.                      We think  it advisable  to start our  analysis with            the facts surrounding  the arrest of defendant.   On February            28, 1993, the  police in Jaffrey,  New Hampshire, received  a            911  call alerting them to the armed robbery of a convenience                                            ____________________            1.  Dennis Ellis, a co-defendant, was charged in count one of            the indictment with illegal possession of a sawed-off shotgun            in violation of 26 U.S.C.   5861(c).                                         -2-                                          2            store.   The police responded promptly.  When they arrived at            the scene, they saw a parked vehicle with its engine running.            They also  noticed a  shotgun on  the seat.   Because  it was            apparent that the barrel  of the shotgun had been  sawed off,            the police seized it; it  was found to be fully loaded.   Co-            defendant Dennis Ellis came out of the  store with a ski mask            on the top of his  head.  He admitted the shotgun was his and            was arrested.   Defendant then came out of the store.  He was            forced  to lie on  the ground and  was searched.   The police            found a .22 caliber Sedro pistol with one round of ammunition            in  the  chamber in  defendant's jacket  pocket.   It  is not            contested that the pistol  was manufactured in California and            traveled in interstate commerce to New Hampshire.                      The law  governing the acceptance of  a guilty plea            under  Fed.  R. Crim.  P.  11 is  well  established.   A plea            "cannot be truly voluntary  unless the defendant possesses an            understanding of the law in relation to the facts."  McCarthy                                                                 ________            v. United States, 394 U.S. 459, 466 (1969).  See also  United               _____________                             ___ ____  ______            States v. Broce, 488 U.S. 563, 570 (1989).            ______    _____                      In  United States v. Ruiz-Del Valle, 8 F.3d 98 (1st                          _____________    ______________            Cir. 1993),  we allowed  a defendant  to withdraw  her guilty            plea because  she put the  court on  notice that she  did not            understand the nature  of the  charges against her.   Id.  at                                                                  ___            103.   This was not  the situation here.   The nature  of the            charges against  defendant were  clearly explained to  him by                                         -3-                                          3            the district  court judge.   And there can be  no doubt, from            the answers to  the questions  asked directly of  him by  the            judge, that defendant comprehended accurately the elements of            the offense charged.                      Defendant now argues that because he told the judge            that he had seen a psychiatrist three  or four times after he            was  arrested,  the  court  should  have  been  alerted  that            "intent" might be an issue.  Defendant was unable to give the            name  of the  psychiatrist,  and it  was  never suggested  by            defendant's  attorney  or   defendant  himself  that   mental            competency  might be an issue.  Defendant told the court that            he went  to see the  psychiatrist because "I  got a  habit of            carrying weapons."   He also said  that the psychiatrist  did            not  make an  assessment of  this problem.   If  defendant is            suggesting that this is a basis for finding  incompetency, we            reject it.                      As far  as "intent"  and "mens rea"  are concerned,                                                ____ ___            there  are two  answers to  defendant's assertions  that they            were  not properly explained to him.   The first is that both            were  explained correctly  to defendant.   The  court stated,            ____            inter alia:            _____ ____                      [T]he  Government  must  prove  that  you                      knowingly received or possessed, and here                      you're   charged   with   being   in   --                      possessing, or transported the firearm in                      question.    And  when  we  use  the word                      knowingly, what the law means is that you                      were  -- that  you acted  voluntarily and                      deliberately, not by  mistake or  through                                         -4-                                          4                      inadvertence;  in  other words,  that you                      voluntarily  received  or  had   in  your                      possession the firearm in question.                      The second  reason is  that in  order to  convict a            defendant of this  crime, being  a felon in  possession of  a            firearm,  the  only knowledge  by  defendant  required to  be            proved  is  that  the  instrument possessed  was  a  firearm.                                                         ___            United States v. Freed, 401 U.S. 601, 607 (1971).  In  United            _____________    _____                                 ______            States  v. Carter,  815 F.2d  827, 829  (1987), we  held that            ______     ______            because  the Rule  11 hearing  transcript disclosed  that the            defendant knew the nature of the charges against him, no mens                                                                     ____            rea hearing was necessary.  So it is here.            ___                      Even if a record discloses a failure to establish a            factual  basis for the guilty plea, which this one does not,2            it would  be of no moment.  In United States v. Zorrilla, 982                                           _____________    ________            F.2d 28, 30  (1st Cir. 1992),  cert. denied, 113 S.  Ct. 1665                                           _____ ______            (1993), we held  that lack of  prejudice resulting from  such            failure "is fatal to appellant's claim."  Here, defendant has            pointed to, and we can discern no prejudice.                      In sum, our review of the  transcript of the change            of plea  hearing shows  that the district  court judge  fully            complied with the strictures of Rule 11.                                            ____________________            2.  Defendant  explicitly  stated that  there was  no dispute            with the  facts as stated  by the  prosecutor:  that  a fully            loaded Sedro .22 caliber  pistol was found in  the possession            of  defendant,  and  that  the  pistol  was  manufactured  in            California and traveled in  interstate commerce from there to            New Hampshire.                                         -5-                                          5                                         -6-                                          6                                    The Sentencing                                    The Sentencing                                    ______________            The Sentence            The Sentence            ____________                      At  the hearing  on  the guilty  plea the  district            court   carefully   explained  to   defendant   the  sentence            enhancement  required  if  it  found that  the  Armed  Career            Criminal  Act (ACCA), 18 U.S.C.    924(e), applied.3  Because            the presentence investigation report had not been prepared at            the time of the  guilty-plea hearing, the judge was  not sure            what the enhancement would be if he found  defendant to be an            Armed  Career  Criminal.   It was,  therefore, agreed  by the            government and defendant, with  the court's approval, that if            the sentence  exceeded 235  months, defendant would  have the            right to withdraw his guilty plea.                                            ____________________            3.  The Act provides in pertinent part:                         (e)(1)   In the  case of a  person who                      violates section 922(g) of this title and                      has  three  previous  convictions by  any                      court referred to in section 922(g)(1) of                      this  title for  a  violent  felony or  a                      serious drug offense, or  both, committed                      on occasions different from  one another,                      such person  shall be fined not more than                      $25,000  and  imprisoned  not  less  than                      fifteen  years, and,  notwithstanding any                      other provision  of law, the  court shall                      not suspend  the sentence of, or  grant a                      probationary  sentence  to,  such  person                      with  respect  to  the  conviction  under                      section 922(g), and such person shall not                      be  eligible for  parole with  respect to                      the    sentence   imposed    under   this                      subsection.                                         -7-                                          7                      After a lengthy  sentencing hearing the court  made            the following findings.   The court determined that  the ACCA            applied.  It calculated the total  offense level to be 30 and            the  criminal history  category  to be  6.   Based  on  those            determinations,  it  found  the  incarceration  range  to  be            between 168 to 210 months, with no eligibility for probation.            The range of supervised release was from three to five years.            The  fine  range was  from $15,000  to  $150,000.   A special            assessment of $50 is mandated by statute.                      Based  on  these determinations  the  defendant was            sentenced to incarceration for a term of 180 months.  This is            to  be  followed by  a term  of  supervised release  for five            years.  Because defendant did not have the wherewithal to pay            a fine,  the fine was waived.   Defendant was ordered  to pay            the special assessment of $50 immediately.                      Defendant raises three sentencing issues.   (1) One            of the three predicate convictions necessary to implicate the            ACCA  was constitutionally invalid because of the ineffective            assistance  of  counsel.   (2)   At  least one  of  the three            necessary ACCA convictions did not qualify as such because it            was not  a violent crime.   (3)  The district  court erred in            failing  to depart  downwards  and/or failed  to undertake  a            sufficient  fact-finding  inquiry  into  diminished  capacity            under  U.S.S.G.     5K2.13.   We  discuss  these  contentions            seriatim and reject them all.                                         -8-                                          8            The Claim of Constitutional Invalidity            The Claim of Constitutional Invalidity            ______________________________________                      On  February 3,  1987, defendant  pled guilty  to a            charge  of  burglary  at  the regional  high  school  in  New            Ipswich, New Hampshire.  He claimed at the sentencing hearing            that, at  the time of his  state plea, he was  not advised by            his  attorney, a public defender, of the rights he was giving            up by entering a guilty plea.                      We think that Custis v.  United States, 114 S.  Ct.                                    ______     _____________            1732  (1994),  prohibits a  collateral  attack  on the  state            conviction.  The Court held:                         The  Armed  Career  Criminal  Act,  18                      U.S.C.     924(3)   (ACCA),  raises   the                      penalty for  possession of a firearm by a                      felon  from  a  maximum  of  10 years  in                      prison to a mandatory minimum sentence of                      15 years and a  maximum of life in prison                      without  parole  if  the  defendant  "has                      three  previous  convictions  ...  for  a                      violent   felony   or   a  serious   drug                      offense."    We  granted   certiorari  to                      determine  whether  a   defendant  in   a                      federal    sentencing   proceeding    may                      collaterally   attack  the   validity  of                      previous state convictions that  are used                      to enhance  his sentence under  the ACCA.                      We  hold  that a  defendant  has  no such                      right   (with   the  sole   exception  of                      convictions obtained in violation  of the                      right to counsel) to  collaterally attack                      prior convictions.            Id. at 1734.            ___                      The Court concluded its opinion as follows:                         We therefore hold  that   924(e)  does                      not  permit  Custis  to use  the  federal                      sentencing  forum to  gain review  of his                      state  convictions.    Congress  did  not                      prescribe and the  Constitution does  not                                         -9-                                          9                      require such delay and protraction of the                      federal    sentencing   process.       We                                                             __                      recognize,  however, as did  the Court of                      _________________________________________                      Appeals,  see 988  F.2d,  at  1363,  that                      _________________________________________                      Custis,  who was  still "in  custody" for                      _________________________________________                      purposes of his state convictions  at the                      _________________________________________                      time  of his  federal sentencing  under                        _________________________________________                      924(e), may attack his state sentences in                      _________________________________________                      Maryland   or   through  federal   habeas                      _________________________________________                      review. . . .  If Custis is successful in                      _______        __________________________                      attacking these state  sentences, he  may                      _________________________________________                      then  apply for reopening  of any federal                      _________________________________________                      sentence enhanced by the state sentences.                      _________________________________________                      We express no  opinion on the appropriate                      disposition of such an application.            Id. at 1739 (citations omitted) (emphasis ours).            ___                      Defendant  seizes upon  the delineated  language to            contend that since he is no  longer in custody because of his            state   conviction  and   therefore  cannot   attack   it  on            constitutional grounds  either in  state court or  by federal            habeas review, he  should be allowed to do so  in the context            of  his  sentencing under  the ACCA.    This is  an ingenious            argument, but we do not think it can surmount the prohibition            imposed  by the  Court against  using the  federal sentencing            forum to review state convictions.                      Moreover, even putting aside the holding of Custis,                                                                  ______            there is another reason  for rejecting defendant's collateral            constitutional   attack.     Although  we   acknowledge  that            defendant's  claim that he was not advised by his attorney of            the  rights  he was  giving up  by  pleading guilty  has some                                         -10-                                          10            support  in the  state  court records,4  we  do not  have  to            decide the significance of the attorney's failure to sign the            plea form at the appropriate place.                      During   defendant's   cross-examination   at   the            sentencing hearing, he admitted that the state superior court            judge advised him of the rights he  was giving up by pleading            guilty.   He then  testified that he  had lied  to the  state            superior  court judge when he told him that he understood all            of the rights he was giving up by pleading guilty.                      This testimony evoked  the following response  from            the district court judge:                      [I]f  he was  lying to  Judge  Bean then,                      certainly his credibility  today to  this                      Court is very questionable on this issue.                      Therefore,  based  on  the documents  and                      based   on   the  testimony,   the  Court                      overrules  the  objection  and the  Court                      finds  that  the  defendant was  in  fact                      represented  by counsel  and that  he was                      aware of the rights that he was giving up                      when he entered his  guilty plea and that                      he was aware of all of the rights that he                      was giving up.            We  agree with the government that this finding is subject to            the clear error standard of review.  See, e.g., United States                                                 ___  ____  _____________            v. Tuesta-Toro, 29  F.3d 771, 777 (1st Cir. 1994) (sentencing               ___________                                            ____________________            4.  Defendant's state-court  attorney had  not signed  at the            appropriate space  on the  plea form, a  statement confirming            that he had read the advice of rights form to defendant.  The            state  court records  covering defendant's  two  earlier ACCA            burglary   convictions  showed   that   his   attorney,   who            represented  him in  all three  burglary cases,  confirmed by            signing  the plea form at  the appropriate place  that he had            read the advice of rights.                                         -11-                                          11            court's  factual  findings reviewed  only  for  clear error).            There was no clear error by the district court.            The Claim that the State Convictions Were Not             The Claim that the State Convictions Were Not             ______________________________________________            Violent Crimes Under the ACCA            Violent Crimes Under the ACCA            _____________________________                      The Act defines "violent felony"  in pertinent part            as follows:                         (B)  the  term "violent  felony" means                      any crime punishable by  imprisonment for                      a term exceeding one year, . . . that                      . . .                          (ii) is burglary, arson, or extortion,                      involves use of explosives,  or otherwise                      involves conduct that presents  a serious                      potential  risk  of  physical  injury  to                      another.            18 U.S.C.   924(e)(2)(B)(ii).                      Defendant   pled  guilty   to  three   prior  state            burglaries.  He was charged in all three crimes with entering            buildings  with "a  purpose to exercise  unauthorized control            over  the property of  another to deprive  the owner thereof,            the said  premises not being open  to the public at  the time            and the said Nelson Field not being licensed or privileged to            enter."   He was charged  with entering the  Eastern Mountain            Sports building on July 21, 1985; with entering  the Massenic            Regional High School  in New Ipswich, New Hampshire, on April            2,  1986; and with  entering the American  Legion building in            Jaffrey, New Hampshire, with others, on July 4, 1985.                      There  can  be no  doubt that  the three  crimes to            which  defendant pled  guilty were  burglaries under  the New            Hampshire                                          -12-                                          12            statute, which states:                         635:1  Burglary.                         635:1  Burglary.                         I.  A person  is guilty of burglary if                      he   enters   a   building  or   occupied                      structure,   or  separately   secured  or                      occupied section thereof, with purpose to                      commit  a  crime   therein,  unless   the                      premises are  at  the time  open  to  the                      public  or  the   actor  is  licensed  or                      privileged   to   enter.      It   is  an                      affirmative  defense  to prosecution  for                      burglary that the  building or  structure                      was abandoned.            N.H. Rev. Stat. Ann.   635:1 (1973).                      Defendant  contends that,  "the factual  record and            statute in question show,  however, that at least one  of the            three  prior  convictions  did  not qualify  as  a  predicate            violent felony."   Defendant's Brief at  21.  Defendant  does            not  identify  which  of the  three  fails  to  qualify as  a            predicate  violent felony.  Except for the dates of entry and            the location  of the  buildings, all three  state indictments            are  identical.5  We will  therefore analyze the  law and the            statutes as to all three predicate crimes.                      We start with the  leading case:  Taylor  v. United                                                        ______     ______            States,  495  U.S.  575 (1990).    The  Court  first held  it            ______            "implausible that Congress intended the meaning of 'burglary'            for  purposes of   924(e) to depend on the definition adopted            by the state of conviction."   Id. at 590.  The  Court, after                                           ___                                            ____________________            5.  We are  aware that the  charge of  entering the  American            Legion alleged doing  so "with  others."  But  this does  not            change the nature of the indictment.                                         -13-                                          13            considering  several  alternative definitions,  fashioned its            own generic meaning:                         We  conclude that  a  person has  been                      convicted  of burglary for  purposes of a                        924(e) enhancement if  he is  convicted                      of  any crime,  regardless  of its  exact                      definition  or  label,  having the  basic                      elements  of   unlawful  or  unprivileged                      entry into,  or remaining in,  a building                      or structure,  with  intent to  commit  a                      crime.             Id. at 599.  It  seems beyond dispute that this was  the core            ___            of the three state crimes to which defendant pled guilty.                      The  Court  then went  on  to hold  "that    924(e)            mandates a  formal categorical approach, looking  only to the            statutory definitions of  the prior offenses, and  not to the            particular facts underlying those  convictions."  Id. at 600.                                                              ___            The Court's final holding was stated as follows:                         We  therefore  hold  that  an  offense                      constitutes "burglary" for purposes  of a                        924(e)  sentence enhancement  if either                      its  statutory  definition  substantially                      corresponds to "generic" burglary, or the                      charging  paper   and  jury  instructions                      actually  required the  jury to  find all                      the elements of generic burglary in order                      to convict the defendant.              Id. at 602.  We cannot see how it can be reasonably contended            ___            that  the   New  Hampshire  statutory  definition   does  not            "substantially correspond to  'generic burglary'."   Nor  has            defendant explained how a person could be convicted under the            New Hampshire  statute and not  be guilty  under the  generic            definition.                                         -14-                                          14                      Nor  can defendant find any way out of the ACCA box            through  our opinions.   See United States  v. Wilkinson, 926                                     ___ _____________     _________            F.2d 22, 29  (1st Cir.) (applying Taylor),  cert. denied, 501                                              ______    _____ ______            U.S. 1211 (1991).  In United States v. Harris, 964  F.2d 1234                                  _____________    ______            (1st Cir. 1992), we made explicit what was clearly implied in            Taylor:            ______                      The  Court, in  referring to  the use  of                      jury instructions, did  not mean that one                      who pleads guilty to what would otherwise                      constitute a "violent felony" is somehow,                      for future sentence-enhancement purposes,                      home free.  Rather,  the Court was giving                      an  example (it  says, "for  example") of                      one  way in  which a  trial court,  faced                      ________                      with  a past  conviction for  violating a                      single  statute that covers more than one                      crime, might decide which of those crimes                                          _____                      the prior conviction involved.            Id. at 1236.  See  also United States v. Fiore, 983 F.2d 1, 4            ___           ___  ____ _____________    _____            (1st  Cir.  1992),  cert.  denied,  113 S.  Ct.  1830  (1993)                                _____  ______            ("burglary  of a  commercial building  poses a  potential for            episodic violence so substantial  as to bring such burglaries            within  the violent  felony/crime of  violence ambit.");  and            United States v. Bregnard, 951 F.2d 457, 460 (1st Cir. 1991),            _____________    ________            cert.  denied, 112 S. Ct. 2939 (1992) (state labeling a crime            _____  ______            as a misdemeanor makes no difference for purposes of sentence            enhancement.  Under Taylor,  the construction of federal laws                                ______            not dependent on state law).                       The district court  did not err  in using the  ACCA            for sentence enhancement.                                         -15-                                          15            The Failure to Depart Downwards            The Failure to Depart Downwards            _______________________________                      Defendant  argues that the  court's decision not to            depart  downwards   below  the  statutory   minimum  sentence            resulted from its belief  that it lacked the authority  to so            depart  and a  misunderstanding  of the  rules of  departure.            This is,  of  course,  an  attempt to  circumvent  our  well-            established   rule that  a district  court's decision not  to            depart  downwards  from  the  sentencing  guidelines  is  not            appealable.   United States v. Lombardi, 5 F.3d 568, 571 (1st                          _____________    ________            Cir. 1993); United States  v. Hilton, 946 F.2d 955  (1st Cir.                        _____________     ______            1991) (collecting cases).                      Although there  may be some question  as to whether            the  district court  had the  discretion to  depart downwards            under the  criteria articulated  in United States  v. Rivera,                                                _____________     ______            994 F.2d  942 (1st Cir. 1993), there  can be no question that            the court refused to exercise whatever discretion it may have            had.  During the sentencing hearing the court stated:                         A   departure   downward   under   the                      circumstances that you are  requesting is                      strictly  discretionary  with the  Court,                      and for all of the previous  reasons just                      stated  by the Court,  the Court declines                      to exercise its discretion to depart.                         Not only  do we  have a  serious prior                      record  here, which by the way includes a                      conviction   for   being   a   felon   in                      possession of a dangerous weapon, granted                      it was not a -- it was not a gun, but the                      defendant has been down this path before,                      and  defense  counsel  has  continued  to                      indicate  that  his being  arrested, that                      this involved just a mere possession.                                         -16-                                          16                         It was possession, true, but  it was a                      loaded  weapon  and  the   defendant  was                      intoxicated,  and  there is  nothing more                      dangerous, there is  no more dangerous  a                      combination than a loaded gun and alcohol                      or  a  loaded  gun and  being  under  the                      influence of drugs.                         The Court is aware of the youth of the                      defendant, and were this  mere possession                      and   no  prior  record  and  no  alcohol                      involved, there might  be some grounds to                      consider    a    departure,    but    the                      circumstances  before  the Court  provide                      very little, if any, justification at all                      for the Court to exercise  its discretion                      in  departing,  and  therefore the  Court                      declines  to do  so and  objection number                      five in paragraph eleven on  the addendum                      is overruled.                      There  is  simply no  basis  for  finding that  the            sentencing judge did not fully understand its authority under            the   Sentencing  Guidelines.      We   therefore  lack   the            jurisdiction to  entertain defendant's argument.   See United                                                               ___ ______            States v. DeCosta, No. 93-2120, slip op. at 10 (1st Cir. Oct.            ______    _______            7, 1994).                      Finally,  defendant  seems  to  suggest   that  the            district court  should have  departed downwards by  reason of            defendant's  "diminished capacity"  under U.S.S.G.    5K2.13.            Defendant's failure  to request a downward  departure on this            ground in the district  court forecloses our consideration of            the issue.   United States v.  Ortiz, 966 F.2d 707,  717 (1st                         _____________     _____            Cir. 1992); United  States v. Pilgrim Market  Group, 944 F.2d                        ______________    _____________________            14, 21  (1st Cir.  1991).   We also note  that there  is very            little evidence in the record to support such a claim.                                         -17-                                          17                      Affirmed.                      Affirmed.                      _________                                         -18-                                          18
