
USCA1 Opinion

	




                                For the First Circuit                                ____________________       No. 96-1957                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                 MICHAEL J. GIGNAC,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                ____________________                                       Before                                Lynch, Circuit Judge,                     Aldrich and Bownes, Senior Circuit Judges.                                ____________________            Tina Schneider for appellant.            Margaret D. McGaughey                                , Assistant United States Attorney, with whom       Jay            P.                 McCloskey, United States Attorney, and   Jonathan                                                                    R.                                                                      Chapman,       Assistant United States Attorney, were on brief for appellee.                                ____________________                                    July 21, 1997                                ____________________                      BOWNES, Senior                                        Circuit                                                Judge. On the night of            August 17, 1995, defendant-appellant Michael Gignac and two            other men robbed a store in Portland, Maine. The robbers all            wore masks; two of them were armed. Gignac was indicted on            three counts: Count I alleged that he interfered with commerce            by means of robbery in violation of 18 U.S.C. S 1951(a),            S 1951(b)(1), and 18 U.S.C. S 2. Count II charged Gignac with            using and carrying a firearm in relation to a crime of violence            in violation of 18 U.S.C. S 924(c)(1), S 924(c)(3), and 18            U.S.C. S 2. Count III accused Gignac of possession of a            firearm by a felon in violation of 18 U.S.C. S 922(g),            S 924(e)(1), and 18 U.S.C. S 2. The jury found Gignac guilty            on Count I, but not guilty on Counts II and III. The court            sentenced Gignac as a career offender under S 4B1.1 of the            United States Sentencing Guidelines. The court found that            Gignac was a career offender because of prior convictions for            arson, burglary of a church, and assault on a prison officer.                      Our review is plenary because we are considering            interpretive questions under the Sentencing Guidelines.                                                                    United            States                     v.                         Meader, No. 96-2123, slip op. at 11 (1st Cir.            July 11, 1997);                            United States v. Fiore                                                 , 983 F.2d 1, 2 (1st Cir.            1992); United                           States                                  v.                                     St.                                         Cyr, 977 F.2d 698, 701 (1st Cir.            1992).                      Gignac raises two issues on appeal: (1) Whether the            court erred in applying the career offender sentence                                         -2-                                          2            enhancement provision; and (2) Whether the court abused its            discretion in allowing the prosecutor to impeach defendant with            the number, but not the nature, of his prior convictions.                           The Career Offender Enhancement                      As a result of Gignac being adjudged a career            offender, his adjusted offense level changed from 27 to 32.            The consequent sentencing range increased from 132-160 months            (level 27) to 210-262 months (level 32). He was sentenced to            the statutory maximum of 20 years. This contrasts with a            maximum sentence of 13 years plus, without the career offender            enhancement.                      Section 4B1.1 of the Guidelines defines a career            offender as follows:                      A defendant is a career offender if (1)                      the defendant was at least eighteen years                      old at the time of the instant offense,                      (2) the instant offense of conviction is a                      felony that is either a crime of violence                      or . . ., and (3) the defendant has at                      least two prior felony convictions of                      either a crime of violence or a controlled                      substance offense.            There is no doubt that Gignac comes within categories (1) and            (2) of the career offender guideline provisions. The basis of            his appeal is that he does not come within category (3) because            he does not have two prior felony convictions for crimes of            violence.                      Gignac had a number of prior felony convictions. We            focus only on those involving a crime of violence. In 1989                                         -3-                                          3            Gignac was convicted in Maine state court of arson and assault.            Gignac concedes that this conviction comes within category (3)            of the Guidelines. In 1993 Gignac was convicted for assault on            a corrections officer. He argues that this conviction was not            a category (3) crime of violence. We disagree.                      Section 4B1.2(1) of the Guidelines states:                      The term "crime of violence" means any                      offense under federal or state law                      punishable by imprisonment for a term                      exceeding one year that --                           (i) has as an element the use,                           attempted use, or threatened use                           of physical force against the                           person of another, or . . . .                      Under Maine law, assault on a corrections officer is            a Class C felony. The law states:                      1.   A person is guilty of assault on an                      officer if . . .                       B.   While in custody in a penal                      institution or other facility pursuant to                      an arrest or pursuant to a court order, he                      commits an assault on a member of the                      staff or facility. As used in this                      paragraph "assault" means the crime                      defined in chapter 9, section 207.            Me. Rev. Stat. Ann. tit. 11-A, S 752-A. Assault is defined            under S 207(1) of title 17-A as "A person is guilty of assault            if he intentionally, knowingly, or recklessly causes bodily            injury or offensive physical contact to another."                      We agree with the district court that an assault on            a prison guard by its very nature involves a serious potential            risk of injury to another. That is all that is required under                                         -4-                                          4            S 4B1.2(1)(i) of the Guidelines. Note 2 of the Commentary to            S 4B1.2 states that "crimes of violence" include offenses where            "that offense has as an element the use, attempted use, or            threatened use of physical force against the person of            another." We hold that the assault on the prison officer by            defendant was a crime of violence under the career offender            section (S 4B1.1) of the Guidelines.                        Impeachment of Defendant with Number                       But Not Nature of His Prior Convictions                      Before we get to the merits of this argument, we must            first determine whether it was properly preserved for appeal.            The first question is whether defendant's motion in limine to            exclude any reference to prior convictions was sufficient alone            without further objection to warrant consideration by this            court.                      The record discloses the following. A chambers            conference was held on the motion                                              in                                                 limine prior to defendant            taking the stand. The question of admissibility of Gignac's            prior convictions was discussed in the framework of Fed. R.            Evid. 609. At the close of the conference the district court            told the parties that if defendant took the stand, the            government would be permitted to establish that there were five            previous felony convictions and the dates, but that the            government would not be allowed to show "the specifics of the            charges on those previous convictions." The court ended the                                          -5-                                          5            conference with the following admonition:                         Now counsel, again, remember, that is a                      tentative ruling. It's subject to what                      the defendant says if he takes the stand.                      It may be that he would say something that                      would cause me to reevaluate that ruling                      in terms of allowing some of the specific                      charges or whatever, but based upon what                      you've told me to date, that's my ruling.                      Defense counsel did not object to the court's ruling            at any time after the conference and before Gignac testified.            Defense counsel brought out at the start of direct examination            that Gignac had been convicted of more than one felony. On            cross-examination the prosecutor elicited testimony from Gignac            that he had five prior felony convictions between 1988 and            1993. There was no objection to this line of questions.                      The law in this circuit is clear: a motion                                                                 in                                                                    limine            alone is not sufficient to forward the issue for appellate            review. The rule and its rationale have been stated most            recently in Gill v. Thomas, 83 F.3d 537 (1st Cir. 1996).                      We also held in  Gill that if a party introduces            potentially impeaching evidence itself in order "to take the            sting" out of it, this eliminates any potential evidentiary            error by the use of such evidence in cross-examination.                                                                    Id. at            541.                      For the foregoing reasons, defendant Gignac has            failed to properly preserve the second issue raised by him. We            cannot refrain from noting, however, that even had the issue            been properly preserved below, it would be of no avail. There                                         -6-                                          6            is no substantive merit to this claim.  See United                                                                States                                                                        v.            Powell, 50 F.3d 94, 101-02 (1st Cir. 1995).                      The judgment of the district court is                                                           affirmed in all            respects.                                         -7-                                          7
