
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2332                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                MICHAEL V. SCHOFIELD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            George J. West, by Appointment of the Court, for appellant.            ______________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon Whitehouse,  United States  Attorney, and Gerard  B. Sullivan,        __________________                                ___________________        Assistant United States Attorney, were on brief for the United States.                                 ____________________                                    June 10, 1997                                 ____________________                 Per Curiam.  Michael Schofield pled  guilty to one count                 __________            of  being a  "felon in  possession" of  a firearm,  18 U.S.C.              922(g),  and received  a mandatory  minimum sentence  of 15            years  imprisonment  under  the  Armed  Career  Criminal  Act            ("ACCA"),  id.   924(e)(1).   He  now appeals  this sentence,                       ___            arguing that certain prior  state convictions in Rhode Island            do not count as "predicate offenses" triggering the ACCA.  We            disagree and affirm.                 The  ACCA   establishes  a  15-year   mandatory  minimum            sentence for any person  who violates section 922(g)  and has            three  prior convictions "for  a violent felony  or a serious            drug offense, or both,  committed on occasions different from            one another."   18 U.S.C.   924(e)(1).   Prior to Schofield's            guilty plea, the government filed an information charging him            with six  prior "violent felony" convictions,  which are also            described  in his  Presentence Investigation  Report ("PSR").            On appeal,  he  does not  challenge the  classification as  a            violent felony  of one  robbery conviction.    See PSR    40.                                                           ___            Schofield   does,  however,   argue  that   the   other  five            convictions  were  not  for  "violent  felonies"  within  the            meaning of the statute.                 Schofield's  argument  might  seem   extraordinary  with            respect to  his prior  conviction for second  degree robbery.            See  PSR    38.   In the  course  of that  offense, Schofield            ___            knocked  his victim  to the  pavement and  stole  her purse--                                         -2-                                         -2-            certainly  "violent"  conduct.   But the  ACCA operates  at a            level of  abstraction  and requires  courts,  in  determining            predicate  convictions,  to   employ  "a  formal  categorical            approach, looking  only to  the statutory definitions  of the            prior offenses,  and not  to the particular  facts underlying            those  convictions."  Taylor v. United  States, 495 U.S. 575,                                  ______    ______________            600 (1990).                 Nevertheless,  Rhode  Island's  second   degree  robbery            offense is  plainly a predicate  offense for purposes  of the            ACCA.    The  statute--unchanged  in  pertinent  part   since            Schofield's violation in 1991--defines second  degree robbery            as  "robbery or  other larceny  from the  person by  force or            threat, where there is no weapon and no injury and the victim            is  neither a handicapped person or an elderly person."  R.I.            Gen.  Laws    11-39-1.   The  "force  or threat"  requirement            undoubtedly brings the offense  within the ACCA's category of            violent felonies, which includes any felony that, inter alia,                                                              __________            "has  as an element the use, attempted use, or threatened use            of  physical force against the person of another."  18 U.S.C.              924(e)(2)(B).1                                            ____________________                 1Accord  United States v.  Brown, 52  F.3d 415,  426 (2d                  ______  _____________     _____            Cir.  1995)  (New  York  attempted robbery  conviction  is  a            "violent  felony"),  cert. denied,  116  S.  Ct. 754  (1996);                                 ____________            United  States v. Presley, 52  F.3d 64, 69  (4th Cir.), cert.            ______________    _______                               _____            denied, 116 S. Ct. 237 (1995) (Virginia robbery conviction is            ______            "violent felony"); United States  v. Dickerson, 901 F.2d 579,                               _____________     _________            584 (7th Cir. 1990)  (Illinois robbery conviction is "violent            felony").                                         -3-                                         -3-                 We  are  left  to  determine  whether  one  or  more  of            Schofield's breaking and entering  convictions can serve as a            predicate  offense, bringing  to  three the  total number  of            "violent  felonies."    One  of  those  convictions  was  for            breaking  and entering  a  commercial or  public building  in            violation of R.I.  Gen. Laws   11-8-4.   See  PSR   39.2   We                                                     ___            have  previously  held  that convictions  for  conspiracy  to            violate this  same statute are "violent  felonies" within the            meaning of  U.S.S.G.   4B1.2(1), United States  v. Fiore, 983                                             _____________     _____            F.2d  1, 4  (1st  Cir. 1992),  cert.  denied, 507  U.S.  1024                                           _____________            (1993); and cases  interpreting that provision  are pertinent            in  construing the  ACCA's "violent  felonies"  category, see                                                                      ___            United States  v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).            _____________     ______            (Under  Taylor,  it  is  irrelevant whether  the  school  was                    ______            occupied  or  there  was  any  actual  threatened  violence.)            Because the  schoolhouse breaking and entering  offense was a            violent felony, we need not consider the other three breaking            and entering convictions.                 Finally,  Schofield  contends  that  the  various  prior            offenses were not "committed  on occasions different from one                                            ____________________                 2As  Schofield observes,  the state  judgment and  other            documents do not indicate  the specific breaking and entering            statute under  which Schofield was convicted.   But Schofield            does not  dispute the PSR's  portrayal of the  offense, which            involved  the  breaking  and  entering  of  a  public  school            building.   Section 11-8-4 is the  only Rhode Island breaking            and entering statute  that would have applied to  this crime.            See R.I. Gen. Laws   11-8-2 et seq.            ___                         _______                                         -4-                                         -4-            another,"  as required by section 924(e)(1).  But there is no            question that the  three predicate offenses on which  we have            relied  took  place  on  different  dates  and  at  different            locations,  and that is all the ACCA requires.  United States                                                            _____________            v.  Riddle, 47  F.3d 460,  462 (1st  Cir. 1995).   "Congress,                ______            thinking  primarily  about  the  protection  of  the  public,            adopted a  definition of  armed career criminal  that ignores            the  duration of  the career  . .  . or  the lack  of lengthy            intervals or arrests between  the crimes."  Id.   Because the                                                        ___            district court  properly sentenced Schofield  under the ACCA,            we  need not reach his challenges to the alternative sentence            imposed under the Sentencing Guidelines.                 Affirmed.                 ________                                         -5-                                         -5-
