
USCA1 Opinion

	




          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                                     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          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          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                                          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                                          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          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.          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
