
USCA1 Opinion

	




          August 20, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2382                                  KENNETH J. PATRONE,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Kenneth Patrone on brief pro se.            _______________            Lincoln C. Almond, United States  Attorney, Margaret E. Curran and            _________________                           __________________        Michael E.  Davitt, Assistant  United States  Attorneys, on brief  for        __________________        appellee.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner-appellant Kenneth  Patrone                      __________            was convicted of being a felon in possession of a firearm, 18            U.S.C.    922(g), and of possessing  an unregistered firearm,            26 U.S.C.     5241, 5861(d) and 5871.   Sentenced as an armed            career criminal  under 18  U.S.C.   924(e),  Patrone received            the mandatory minimum enhanced sentence on the first count, a            fifteen-year  term  of  imprisonment without  parole,  and  a            concurrent ten-year term on count two.   Patrone appealed and            we affirmed.   United States  v. Patrone, 948  F.2d 813  (1st                           _____________     _______            Cir. 1991), cert. denied, 112 S. Ct. 2953 (1992).1                        _____ ______                      Patrone then moved to  vacate, set aside or correct            his  sentence.    28  U.S.C.      2255.    Over  petitioner's            objection, the district court  approved the recommendation of            a magistrate-judge that the motion  be denied and this appeal            ensued.  For the reasons that follow, we affirm.                      Petitioner   essentially   raises  two   issues  on            appeal:2     (1)  that  his   counsel  rendered   ineffective                                            ____________________            1.  As  the  underlying relevant  facts  are set  out  in our            opinion on direct appeal, we do not repeat them.            2.  Much  of Patrone's argument on  appeal is based on issues            and  theories  not presented  to  the  district court  (e.g.,            counsel's    failure    to   conduct    reasonable   pretrial            investigation;  double jeopardy).  Those issues and arguments            may not be raised for the  first time here.  United States v.                                                         _____________            Dietz, 950 F.2d  50, 55 (1st Cir. 1991).   Nor may petitioner            _____            reassert arguments,  rejected  on direct  appeal, that  three            prior  offenses  do not  qualify  for  consideration under               924(e) because they were constitutionally unsound.   Patrone,                                                                 _______            948  F.2d at 816-17.   Nothing presented now  persuades us to            revisit that issue.   See United States v. Michaud,  901 F.2d                                  ___ _____________    _______            5, 6 (1st Cir. 1990).            assistance at the sentencing proceeding and (2) that at least            one of three prior  convictions was not a violent  felony for            sentence enhancement purposes  under 18 U.S.C.    924(e).  We            address the latter contention first.                      Petitioner  challenges  the  classification of  his            1978 breaking and entering  conviction under Rhode Island law            as  a violent  crime because  it involved  the burglary  of a            building  under construction and  not a  dwelling.   As such,            petitioner argues,  the burglary offense was  not a "generic"            burglary  as defined in Taylor v. United States, 495 U.S. 575                                    ______    _____________            (1990),  or countable  as  a predicate  offense for  sentence            enhancement purposes.   This,  however, is incorrect  for two            reasons.  First, the Taylor court defined generic burglary as                                 ______            the "unlawful or unprivileged entry  into, or remaining in, a            building or structure, with  intent to commit a crime."   Id.                                                                      ___            at 599.                        [A]n  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.    Patrone  concedes  the  1978  conviction for            ___            breaking and  entering.  Based on  the undisputed description                                            ____________________            of  this   offense  in   paragraph  31  of   the  presentence            3.  Although Patrone claims he never "signed" the presentence            report, he does not claim that he did not read it and has not            investigation report3 ("breaking  and entering a  building at            pointed  out  any inaccuracies  in  its  descriptions of  his            criminal conduct.                                         -3-            night  with  the  intent  to commit  larceny"),  that  charge            plainly is  a  generic burglary  under  Taylor.   See  United                                                    ______    ___  ______            States  v.  Wilkinson, 926  F.2d  22,  29 (1st  Cir.),  cert.            ______      _________                                   _____            denied, 111 S.  Ct. 2813  (1991); see also  United States  v.            ______                            ___ ____  _____________            Bregnard,  951 F.2d  457,  460 (1st  Cir. 1991)  (uncontested            ________            presentence report description of  prior convictions may form            sufficient basis  for determining whether prior  offense is a            generically violent crime under Taylor), cert. denied, 112 S.                                            ______   _____ ______            Ct.  2939 (1992).  Even if a building "under construction" is            somehow not a "building  or structure" under Taylor's generic                                                         ________            burglary  definition,  the  1978  offense  nevertheless falls            within     924(e)  because  it  clearly  "otherwise  involves            conduct that  presents a  serious potential risk  of physical            injury to another."    924(e)(2)(B)(ii).                      Second, our decision in United States v. Fiore, 983                                              _____________    _____            F.2d 1 (1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993),                                    _____ ______            makes  plain that  the 1978  burglary conviction  under Rhode            Island  law is properly countable as a predicate offense.  In            Fiore,  this  court decided  that  a  conviction under  Rhode            _____            Island law  for conspiracy  to break and  enter a  commercial            premise  qualifies as  a  predicate offense  for purposes  of            implementing the career  offender provisions  of the  federal            sentencing  guidelines.   Id. at  3-4.   Applying Taylor  and                                      ___                     ______            U.S.S.G.    4B1.2(1), we  concluded that, under  Rhode Island            law, the  underlying crime  at issue, a  commercial burglary,                                         -4-            was  a  crime  of  violence for  career  offender  sentencing            purposes, and  noted that "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."  Id. at 4.                              ___                      Patrone   derives   no  support   from  definitions            contained  in  the  career offender  guidelines,  U.S.S.G.               4B1.2(1)(ii) (a "crime  of violence  . . .  is burglary of  a            dwelling . . ."). Although the "violent felony" language of              924(e)(2)(B)  is  at  issue  here,  and  not  the  "crime  of            violence" guidelines  definition,     4B1.2(1),  in  play  in            Fiore,  the latter takes its force  from the former, id. at 3            _____                                                ___            n.2, and both include  the additional defining words "conduct            that  presents a  serious potential  risk of  physical harm."            "One  can  easily  imagine  a   significant  likelihood  that            physical  harm will  often  accompany the  very conduct  that            normally constitutes . . .  burglary . . . ."   United States                                                            _____________            v. Doe, 960 F.2d 221, 224 (1st Cir. 1992).               ___                      Thus,  under the  Taylor methodology  which focuses                                        ______            upon the inherent risk of violence posed by the prior offense            without   regarding  the   actual  facts   and  circumstances            underlying  the  conviction,  id.,  there  is  no  meaningful                                          ___            distinction for    924(e) purposes between the  burglary of a            dwelling and a non-residential building or structure, whether            under  construction or  not, whether  occupied or  not.   See                                                                      ___                                         -5-            Taylor, 495  U.S. at 597 ("Congress  presumably realized that            ______            the  word `burglary'  is commonly  understood to  include not            only aggravated burglary, but also run-of-the-mill burglaries            involving an unarmed offender, an unoccupied building, and no            use  or threat  of  force.").   Consequently, Patrone's  1978            breaking and entering conviction was a generic burglary under            Taylor.4            ______                      Accordingly,  regarding the  ineffectiveness claims            that counsel's  conduct was deficient because  of his failure            to  contest  at sentencing  the violent  crime status  of the            three  prior convictions  at issue,  it  cannot be  said that            there  was  any  resulting  prejudice.   In  short,  even  if            counsel's  performance was  subpar,  a question  we need  not            decide, Patrone  has failed to  show that "but  for counsel's            errors, the  result below would  have been  different."   See                                                                      ___            Murchu  v. United States, 926  F.2d 50, 58  (1st Cir.), cert.            ______     _____________                                _____            denied, 112 S. Ct. 99 (1991).            ______                                            ____________________            4.  Similarly, Patrone's  argument that  a 1984  breaking and            entering in  the daytime involved no  violence is unavailing.            "Burglary  is generally a  violent crime  whether or  not the            particular burglary  at issue threatens violence."   Doe, 960            __________                                           ___            F.2d at 224 (internal quotation marks omitted).  Patrone does            not contest that the third offense counted for enhancement, a            1978  conviction for  assault  with a  dangerous weapon,  was            properly treated  as a violent  felony.   Thus, the  district            court correctly treated these three convictions as  predicate            offenses under   924(e).                                         -6-                      As to petitioner's remaining contentions, we affirm            the  judgment of the district court for the reasons stated in            the report of the magistrate-judge.                 Affirmed.                 ________                                         -7-
