
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No.  97-1032                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  IRA W. DAMON, III,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                       Hill* and Gibson,** Senior Circuit Judges.                                           _____________________                                 ____________________            F.  Mark  Terison,  Assistant  U.S. Attorney,  with  whom  Jay  P.            _________________                                          _______        McCloskey, United  States Attorney,  and James  Moore, Assistant  U.S.        _________                                ____________        Attorney, were on brief, for appellee.            Jeffrey  Silverstein, with  whom  Billings  &  Silverstein was  on            ____________________              ________________________        brief, for defendant-appellant.                                 ____________________                                   October 6, 1997                                 ____________________                                    ____________________        *  Hon. James C. Hill of the Eleventh Circuit, sitting by designation.        **  Hon. John R. Gibson of the Eighth Circuit, sitting by designation.                      LYNCH, Circuit  Judge.   Under the  U.S. Sentencing                      LYNCH, Circuit  Judge.                             ______________            Guidelines, punishment for an offense is, at times, increased            when the  defendant  was previously  convicted  of  unrelated            crimes.  This case presents  serious issues of both substance            and procedure in this "enhancement" process.  The substantive            issue  is whether the  crime of aggravated  criminal mischief            under state law is categorically a "crime  of violence" under            U.S.S.G.   4B1.2(1), thus warranting an increase in sentence.            The  outcome of  the substantive  question  is determined  by            resolution of  the procedural  issue.   The procedural  issue            concerns when  a trial  court may  look beyond  the statutory            offense and focus on the actual prior criminal conduct in the            face  of  the  Supreme   Court's  admonitions  that   federal            sentencing courts  should prefer a categorical  approach over            an  examination of the actual  facts of the  prior crime.  At            stake  for  defendant  Damon,  an  experienced  felon  caught            possessing  several firearms, is  whether his sentence should            be roughly two years shorter than the 84 months he received.                      We hold, under Supreme Court precedent, that it was            error for the  district court to look  beyond the categorical            nature of the crime, which was revealed in the state charging            document.   Thus the  district court  here could  not inquire            further  to discover  the reality  of  the defendant's  prior            crime  as revealed in  the Presentence  Investigative Report:            that  the defendant  attempted to  set fire  to his  house to                                         -2-                                          2            collect insurance.   Such acts certainly would be  a crime of            violence,  if  that  information  could  properly  have  been            considered by the district court.  Nevertheless, the decision            of the  Supreme Court  in Taylor v.  United States,  495 U.S.                                      ______     _____________            575, 600-02 (1990), and the decisions of the  U.S. Sentencing            Commission embodied in amendments to   4B1.2(1) preclude this            inquiry.            I.  Background                      Ira  Damon was  stopped while  driving  his car  on            February 28, 1996  by officer Brent Beaulieu of  the Newport,            Maine  police.  Beaulieu  patted-down Damon and  found pistol            and shotgun ammunition in Damon's pockets.  Damon's car  held            a shotgun, a pistol,  two rifles, and a loaded clip of pistol            ammunition.                      Damon pled guilty  to the federal charge of being a            felon in possession of a firearm, in violation of 18 U.S.C.              922(g)(1).   On December 6, 1996 the district court sentenced            Damon, inter alia, to 84 months in prison.                      Damon  has been  afoul of  the law  before.   We go            through the sentencing calculations  that resulted from  this            history of  illicit activity.  Damon's unauthorized  use of a            motor vehicle gained him one  criminal history point, and his            crimes  of negotiating  several  worthless instruments  added            three more  points.   Damon's convictions  for assault on  an            officer, aggravated criminal  mischief, criminal threatening,                                         -3-                                          3            and operating a  motor vehicle as an habitual  offender added            two more points each.  It is the aggravated criminal mischief            conviction which raises the serious issue in this appeal.                      Because  Damon   was  under  a   "criminal  justice            sentence" at the time of the offense, the  federal sentencing            judge  added two  criminal history  points  under U.S.S.G.               4A1.1.   Damon's score  of fourteen  criminal history  points            placed  him in  Criminal History  Category VI of  the Federal            Sentencing Guidelines.                        The  sentencing court  determined that  the offense            level for Damon's  crime was twenty-two, by  setting the base            offense  level at twenty under U.S.S.G.   2K2.1(a)(4)(A), and            adding  two levels pursuant to U.S.S.G.   2K2.1(b)(4) because            the serial  numbers on the  Colt .45 pistol found  in Damon's            car were obliterated.  The sentencing range for a category VI            offender who commits a level  twenty-two offense is 84 to 105            months of imprisonment.                      In  this appeal,  Damon  primarily argues  that his            prior conviction for  criminal mischief should not  have been            classified as  a "crime of  violence," that the  court should            not have awarded  him additional criminal history  points for            related offenses,  and that  the court  erred in  determining            that he was under a criminal justice sentence at the time  of            his  arrest.   We conclude  that Damon's  first  argument has            merit, unlike the second and third.                                         -4-                                          4            II.  The Standard of Review                       Questions of  law concerning interpretation  of the            Guidelines  are reviewed de novo, and the factual conclusions            of  the  sentencing  court,  which must  be  supported  by  a            preponderance  of the evidence, are reviewed for clear error.            United States v. Grant, 114 F.3d 323, 328 (1st Cir. 1997).            _____________    _____            III.  The "Crime of Violence" Determination                      Because it classified Damon's prior conviction  for            aggravated  criminal mischief  as a  crime  of violence,  the            sentencing court determined  that the base offense  level was            20  under  U.S.S.G.    2K2.1(a)(4)(A).    Had the  court  not            characterized  this  previous   conviction  as  a   crime  of            violence,   the  base  offense  level  would  have  been  14.            Counting   the  two   additional  offense   levels  for   the            obliterated serial  number on the pistol,  Damon's sentencing            range would have  been 46 to 57  months instead of 84  to 105            months.   More  than two  years of  prison time  depends upon            whether  Damon's  prior  conviction  for aggravated  criminal            mischief  qualifies  as   a  crime  of  violence   under  the            Guidelines.                      The  Guidelines, U.S.S.G.     4B1.2(1),  set out  a            multi-part definition of the term "crime of violence":                    The  term  "crime  of  violence"  means   any                    offense under federal or state law punishable                    by imprisonment for a term exceeding one year                    that --                                         -5-                                          5                    (i)   has an  element of  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, involves the use of explosives, or                    otherwise  involves conduct  that presents  a                    serious potential risk of  physical injury to                    another.                      Under Taylor, whether  a predicate offense  qualifies                            ______          as  a crime of  violence requires a  "categorical" examination of          the statutory crime.   Taylor considered whether  the defendant's                                 ______          predicate  offenses  were "burglary"  as defined  in 18  U.S.C.            924(e),  a  sentencing  enhancement statute.3    Taylor  had been          convicted of "burglary"  in Missouri state courts at  a time when          Missouri had seven different statutes under which a person  could          be  charged for that crime.  The  Supreme Court held that, rather          than examine the particular circumstances of the crimes for which          the defendant was  convicted, a sentencing court should look only          to whether the statute of  conviction contained the elements of a                                            ____________________            3.  Taylor  involved the Armed  Career Criminal Act ("ACCA"),                ______            18 U.S.C.    924(e).   Under 18  U.S.C.    924(e)(2)(B), "the            term  'violent   felony'  means  any   crime  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 (ii) is            burglary,   arson,  or   extortion,  involves   the   use  of            explosives, or  otherwise  involves conduct  that presents  a            serious potential  risk of physical  injury to another."   We            have  noted that authority for interpreting the term "violent            felony" as it  is defined in  the ACCA constitutes  authority            for  interpreting U.S.S.G.    4B1.2, given the  similarity in            definitions.  See United States v. Meader, 1997 WL 375003, at                          ___ _____________    ______            *8  n.8 (1st Cir. 1997); United States v. Winter, 22 F.3d 15,                                     _____________    ______            18 n.3 (1st  Cir. 1994).  Cases  involving the interpretation            of each provision are helpful in deciding this case.                                         -6-                                          6          "generic"  burglary and should  not inquire whether  the specific          crime committed was especially dangerous  to others.  Taylor, 495                                                                ______          U.S. at 598.  The Court defined  generic burglary as a crime that          consists  of: "unlawful and unprivileged entry into, or remaining          in, a building or structure, with intent to commit a crime." Id.                                                                       ___                      Taylor noted that  in some situations the  statute of                      ______          conviction  may  include  elements  beyond  those  of  a  generic          burglary (e.g., entry into places  other than buildings).  Id. at                    ____                                             ___          599-600.    To  address   that  issue,  and  other   problems  of          interpretation of    924(e),  sentencing courts  should employ  a          "formal  categorical approach," and  generally "look only  to the          fact of  conviction and  the  statutory definition  of the  prior          offense."  Id. at 602.  A sentencing court may go beyond the fact                     ___          of  conviction in those cases where  the statute encompasses both          violent  felonies  (e.g.,   generic  burglary)  and   non-violent                              ____          felonies (e.g., burglary of a vehicle rather than of a building).                    ____          In  such a  situation,  the  sentencing  court  may  examine  the          indictment  or  information  and jury  instructions  in  order to          discern which  type  of  crime  the  offender  was  convicted  of          perpetrating.   Id.   The Court  remanded the  case so  that this                          ___          determination  could be  made  with  respect  to  Taylor's  prior          convictions.                       After Taylor,  this  court's  analysis  of  predicate                            ______          offenses  has followed  this categorical  approach.   See  United                                                                ___  ______          States v. Meader,  1997 WL 375003, *5-*6 (1st  Cir. 1997) ("[T]he          ______    ______                                         -7-                                          7          standard approach for determining whether a particular crime fits          within the 'crime of  violence' rubric is a generic one, in which          inquiry  is  restricted  to the  statutory  definitions  of prior          offenses,  without  regard  to  the  particular  facts underlying          them.") (citations omitted); United States v. Winter, 22 F.3d 15,                                       _____________    ______          18 (1st Cir.  1994); United States v.  De Jesus, 984 F.2d  21, 23                               _____________     ________          (1st   Cir.   1993)   ("[R]ather  than   examining   the   actual          circumstances underlying the earlier  conviction, we examine only          the statutory formulation  of the crime charged  . . . to  see if          that crime is a crime of violence . . . .").                        The  state  statute,   defining  aggravated  criminal          mischief under 17-A M.R.S.A.   805, is the starting point for our          inquiry:                    1.  A person is guilty of aggravated criminal                    mischief   if   that   person  intentionally,                    knowingly or recklessly:                    A.  Damages  or destroys property of  another                    in  an  amount  exceeding  $2,000  in  value,                    having no  reasonable ground to  believe that                    the person has a right to do so;                    B.  Damages or destroys property in an amount                    exceeding  $2,000  in  value, to  enable  any                    person to collect insurance  proceeds for the                    loss caused;                    C.   Damages,  destroys or  tampers with  the                    property of  a law  enforcement agency,  fire                    department  or  supplier  of  gas,  electric,                    steam, water,  transportation, sanitation  or                    communication services to  the public, having                    no  reasonable  ground  to believe  that  the                    person  has a  right to  do  so, and  thereby                    causes   a   substantial    interruption   or                    impairment of service rendered to the public;                    or                                         -8-                                          8                    D.     Damages,  destroys  or   tampers  with                    property  of another  and thereby  recklessly                    endangers human life.                      This state statute, on its face, covers many types of          activities, some  actually or  potentially violent,  depending on          the  subsection involved, some  not.  Through  its subsections,            805 is the  equivalent of four statutory crimes.   The government          concedes that  17-A M.R.S.A.   805(1)(D) involves  a serious risk          of harm to others but that 17-A M.R.S.A.   805(1)(A), (B) and (C)          do not.                        Under such circumstances, Taylor instructs that it is                                                ______          appropriate  to  look  to  the  charging  document to  see  which          subsection of  the statute is involved.  Taylor, 495 U.S. at 602;                                                   ______          see also Winter, 22 F.3d at 21  (parsing 18 U.S.C.   1952(a) into          ___ ____ ______          subsections  that criminalize  primarily  violent conduct  versus          those  that criminalize  primarily  non-violent conduct);  United                                                                     ______          States  v. Doe,  960 F.2d  221, 224  (1st Cir.  1992) (additional          ______     ___          inquiry  into  indictment  and jury  instructions  authorized  by          Taylor when a statute covers both violent and non-violent conduct          ______          "means  only that,  where a  single  statutory provision  defines          several  different crimes . . .  a court may have  to look at the          indictment . . . to see  which of the several different statutory          crimes . . . was at issue").                      We  turn to the  crime with which  Damon was charged.          It is  clear that he  was not  charged under subsection  D, which          necessarily  involves harm to others, but rather under subsection                                         -9-                                          9          B,  which does not.   Damon was  charged in an  information which          recited:                    That on or about January 8, 1994, in the town                    of  N. Anson, County of Somerset and State of                    Maine,  Ira  Damon   III  did  intentionally,                    knowingly  or  recklessly damage  or  destroy                    property in an amount exceeding $2,000.00  in                    value, to  wit, his  own house,  in order  to                    enable himself to  collect insurance proceeds                    for the loss caused.                      The inquiry is  whether the elements of  subsection B          fit  the definition  of  a  crime of  violence  under U.S.S.G.             4B1.2(1).   The  answer is  that they do  not, with  the possible          exception of the  "otherwise" clause in U.S.S.G.    4B1.2(1)(ii).          See De  Jesus, 984 F.2d  at 24-25 (larceny from  the person falls          ___ _________          within  the "otherwise" clause because the statute requires theft          from the victim's person or immediate vicinity, and thus involves          the risk of a violent struggle).                      Damon's  prior  conviction  for  aggravated  criminal          mischief  qualifies  as a  crime  of violence  if and  only  if a          serious  potential  risk  of  physical injury  to  another  is  a          "normal,  usual,  or  customary  concomitant"  of  the  predicate          offense  of  aggravated criminal  mischief  as  set  forth  in             805(1)(B).   See  Winter,  22 F.3d  at  20.   In  conducting this                       ___  ______          inquiry, we examine whether the  "mine run of conduct," De Jesus,                                                                  ________          984  F.2d  at  24,  which  subsection B  was  intended  to  cover          constitutes a crime of violence.                      The  government  vociferously   argues  that  causing          damage to a house of $2,000 or more in order to collect insurance                                         -10-                                          10          proceeds  normally involves "a serious potential risk of physical          injury to  another."  We  think not.   We note that  arson, which          does pose a  great risk to fire department  personnel and others,          is a separate  crime and that simply causing  damage to property,          including a house, does not require  the damage be done by arson.          There  are many  easy ways  to cause  $2,000 in  property4 damage          which do  not risk physical injury to other people.  Exposing the          interior of a  house to the elements by opening  windows or doors          could cause such damage.  Leaving a  few windows open on a frigid          night or,  to give  a New England  example, during  a Nor'easter,          will readily lead  to such damage to a house.  Furthermore, it is          more typically true that people defrauding insurance companies by          damaging property will  not want other persons to  be present who          could  give witness  to the  misdeeds.   And so,  ironically, the          intent to defraud the insurer  reduces any potential risk of harm          to others.                      This  contrasts markedly  with  the risks  associated          with  the typical  burglary  of  a dwelling.    Burglary has  "an          inherent  potential  for harm  to  persons.    The fact  that  an          offender enters  a building to  commit a crime often  creates the          possibility of a  violent confrontation between the  offender and                                            ____________________            4.  "Property"  as  it  is used  in  the  aggravated criminal            mischief statute means  "anything of value," 17-A  M.R.S.A.              352, thus homes are  just one of many forms  of property that            may be  damaged or  destroyed by  offenders who  violate 17-A            M.R.S.A.   805(1)(B).                                         -11-                                          11          an occupant,  caretaker,  or  some  other  person  who  comes  to          investigate."  Taylor, 495 U.S. at 588.                         ______                      Examining  just  the   statutory  language  and   the          charging  document,5   we  conclude  that   the  typical  conduct          reachable under subsection B does not involve a serious potential          risk of physical injury to another.  Our inquiry in reaching this          conclusion  is limited  to the  "usual type  of conduct  that the          statute purposes to proscribe,"  and does not explore "the  outer          limits of the statutory  language or the myriad  of possibilities          girdled by that language."  Winter, 22 F.3d at 20.  See also Doe,                                      ______                  ___ ____ ___          960  F.2d  at 224-25  (holding  that crime  of being  a  felon in          possession  of a  firearm  is  not a  crime  of violence  because          typical  firearm possession  is  not  violent,  even  though  Doe          possessed his gun while waiting to ambush an enemy).                      The government  nonetheless argues  that the  inquiry          should   not  stop  there,   Taylor  notwithstanding.     At  the                                       ______          government's  insistence,  and  relying  on  this   court's  1992          decision  in United  States v.  Harris, 964  F.2d 1234  (1st Cir.                       ______________     ______          1992), the district court engaged  in further inquiry.  It turned          to  the PSI  and learned that  Damon had  attempted to  "sell his                                            ____________________            5.  This case does not  raise the question of what  documents            beyond the charging document or  the jury instructions may be            examined to  determine which subsection of  the multi-faceted            crime is  involved.  The  question about  what subsection  or            type of statutory  crime is involved is resolved  here by the            charging  document.    The parties'  vigorous  argument about            whether a PSI may ever be  a source of information is  simply            not germane.                                         -12-                                          12          house to  the insurance  company" (as this  activity is  commonly          described)6 by burning it.  The district court sensibly concluded          that this was  the equivalent of arson, and  that, under explicit          mandate of the Guidelines and  our precedent, arson is undeniably          a crime  of violence, not  the least of  which for the  threat it          poses to firefighters.  See United States v. Mitchell,  23 F.3d 1                                  ___ _____________    ________          (1st Cir.  1994).   Accordingly,  the  court concluded  that  the          actual aggravated  criminal mischief here was a crime of violence          and so increased Damon's sentence.                      In  light of Taylor and changing definitions from the                                   ______          Sentencing  Commission, we think the district court was precluded          from looking so deeply into  the nature of the predicate offense.          That the court thought it permissible to do so under our decision          in Harris was not unreasonable, but as we now clarify, was wrong.             ______                      In Harris and  in United States v. Bregnard, 951 F.2d                         ______         _____________    ________          457 (1st  Cir. 1991), this court held that  it was proper for the          sentencing court,  in determining whether a prior guilty plea was          to a crime of violence  where the statute typically included both          generally  violent  and   non-violent  crimes,  to   examine  the          description in  the offenders' uncontested  presentencing reports          of the prior indictment and plea.   In both Harris and  Bregnard,                                                      ______      ________          the  defendant had  been  previously  convicted  of  assault  and          battery.  Because  the state crime of assault  and battery, Mass.                                            ____________________            6.  In some  parts of the  country, but not New  England, the            phrase is colorfully put as "sell his house to the Yankees."                                         -13-                                          13          Gen. Laws ch. 265   13A, encompassed both violent and non-violent          conduct, this  court said that  it was proper for  the sentencing          court to determine of which  variety of the offense the defendant          had been  convicted, and to  look to the uncontested  portions of          the presentencing report  to do so.  Harris at  1236; Bregnard at                                               ______           ________          459-60.                      We  noted  in  Harris that  Taylor  establishes  that                                     ______       ______          "sometimes,  looking to the 'statutory definition' alone will not          establish  whether  or  not  the  prior offense  was  a  'violent          felony,' for some  statutes contain language in a  single section          that covers several separate crimes,  some of which are 'violent'          and some of which are not."  Harris, 964 F.2d at 1235.                                         ______                      Harris  stated that  the  proper  inquiry  under  the                      ______          categorical approach does not concern what the defendant actually          did, but rather examines whether the defendant was convicted of a          "generically violent crime" or a "generically non-violent crime."          Id. at 1236.  Harris held that when a trial court is faced with a          ___           ______          past conviction for violating a single statute that covers both a          violent and  a non-violent  crime it may  decide which  crime was          involved by looking to an  uncontested presentencing report.  The          Harris  court  noted   the  availability  of  other   sources  of          ______          information, such as the indictment  or guilty plea, to make this          determination.   Id. at 1236  ("A sentencing court, faced  with a                           ___          prior conviction under a statute  that makes it unlawful to break          into  a 'building'  or into  a 'vehicle,'  might simply  read the                                         -14-                                          14          indictment or the guilty plea . . . to see  if it says 'building'          or 'vehicle.'").                      Later  cases have clarified  that a  sentencing court          faced with a prior conviction  under a broad statute should first          resort to the jury instructions or charging instrument,  and only          if  these  are  not  instructive  may the  court  turn  to  other          documents  for information.   See  Meader, 1997  WL 375003  at *6                                        ___  ______          (noting  that  Application   Note  2  for      4B1.2  "explicitly          identifies the defendant's charged conduct . . . as the  focus of          the 'otherwise' clause");  Winter, 22  F.3d at 20 & n.8  ("Taylor                                     ______                          ______          demands that a court . . . consult a limited array of materials -          -   principally  the  indictment  and  jury  instructions  --  in          determining  if the  offense  can  be classified  as  a crime  of          violence.").   In these later  cases, the  courts were  persuaded          that   amendments  to   the  Guidelines   which  emphasized   the          defendant's charged conduct  mandated that  inquiry should  begin          with the charging  instrument.7  See United States  v. Palmer, 68                                           ___ _____________     ______          F.3d  52  (2d Cir.  1995)  (collecting cases);  United  States v.                                                          ______________          Fernandez, 940 F. Supp. 387,  391-92 (D. Mass. 1996), aff'd, 1997          _________                                             _____                                            ____________________            7.  Application  note  two  to     4B1.2  now  reads:  "Other            offenses are included [as crimes of violence] 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.    Under  this section,  the  conduct  of which  the                                              ___________________________            defendant was convicted  is the focus of  inquiry." (emphasis            _______________________            added).   We must accord the application notes and commentary            controlling  weight if  they are  not  clearly erroneous  nor            inconsistent  with the Guidelines.  Stinson v. United States,                                                _______    _____________            508 U.S. 36, 45 (1993).                                         -15-                                          15          WL 432249 (1st  Cir. 1997).  Also, Taylor  specifically refers to                                             ______          the  charging  instrument  and  jury instructions  as  acceptable          sources of information  under the categorical approach.   Taylor,                                                                    ______          495 U.S. at 602.                      Under  Taylor, when the predicate statutory crime has                             ______          been  determined to be  typically non-violent, the  inquiry ends.          In this case, the charging document makes it clear that Damon was          convicted under  17-A M.R.S.A.    805(1)(B) and we find  that the          typical run  of conduct for  this property damage crime  does not          constitute a crime of violence.  It was error to look beyond.                      Our society has decided to enhance the punishment for          those who have a history of crimes of violence, and it may appear          a   strange  system  which   reverses  a  sentencing   judge  for          determining whether the defendant's past criminal actions were in          fact violent.  Such  a result is compelled by Taylor8  and by the                                                        ______          Guidelines.   We  pause to  explain some  of the  reasons, as  we          understand  them,  which  motivated  the  choice  to  prefer  the          categorical approach.                      The   first  reason,  as  Taylor  observed,  is  that                                                ______          Congress intended that the Guidelines take a categorical approach          to  sentencing.    The  language  of    4B1.2,  like  the  almost                                            ____________________            8.  We  note that  a petition  for certiorari  is pending  in            United  States  v. Shannon,  110  F.3d 382  (7th  Cir. 1997),            ______________     _______            petition for  cert. filed, (July  14, 1997) (No.  97-5326), a            _________________________            case  which also  concerns  the  proper  application  of  the            categorical  approach.     Even  if  certiorari  is  granted,            however,  the Supreme Court's resolution of Shannon would not                                                        _______            necessarily affect the outcome of this case.                                         -16-                                          16          identical  provisions of    924(e), requires that  the sentencing          court  should "look only to the fact  that the defendant had been          convicted of crimes falling within certain categories, and not to          the facts underlying the prior convictions."  Taylor, 495 U.S. at                                                        ______          600.  Such  categorical sentencing procedures  for implementation          of the Guidelines, it is hoped, will lead to like cases receiving          like  sentences.      See  Doe,   960  F.2d   at  225   ("uniform                                ___  ___          interpretation of similar language  is itself desirable"); United                                                                     ______          States  v.  Gonzalez-Lopez, 911  F.2d 542,  547 (11th  Cir. 1990)          ______      ______________          (citation omitted) ("The guidelines . . . constitute an effort by          the  Commission  to  design  a  sentencing  system  that  reduces          disparities in the  sentences of defendants convicted  of similar          crimes.  Taking into account  the myriad of subtle differences in          the commission of every recognized crime of violence would result          in as many different sentences.").                      Second, using a categorical approach makes more sense          administratively  than conducting a  fact-intensive inquiry.  The          categorical  approach usually  requires  the sentencing  court to          look  only  to a  few  readily  available  sources of  undisputed          information.   The  sentencing court  is thus  spared from  mini-          trials   on  prior  offenses,   which  have  already   been  once          adjudicated,  when  deciding  the appropriate  punishment.    See                                                                        ___          Taylor, 495 U.S. at 601 (noting "practical difficulties" of fact-          ______          intensive  inquiry).  As we said in  United States v. Correa, 114                                               _____________    ______          F.3d   314,  318  (1st   Cir.  1997),  "[c]riminal   history,  by                                         -17-                                          17          definition,  deals with bygone events which often happened in the          distant past, or in  a remote jurisdiction, or both.  Requiring a          federal judge  to go  behind the formal  record and  excavate the          details  of what  transpired  in each  instance  would impose  an          onerous burden, freighted with unusual evidentiary difficulties."          Such  an inquiry, as  Taylor recognized, would  be time-consuming                                ______          and could be unfair.                      Third, this approach  honors the choice of  the state          in its decisions  concerning which  crimes to  prosecute and  how          plea bargains should be negotiated.   It respects the autonomy of          the state  system.  To  give an example,  the state here  did not          charge Damon with arson, clearly a crime of violence.  It charged          him  with  aggravated criminal  mischief.    To the  extent  that          enhancement provisions  are "intended  to supplement  the States'          law enforcement efforts against  'career' criminals," Taylor, 495                                                                ______          U.S.  at 581,  it  is  more fundamentally  fair  to  act in  ways          "consistent with the prerogatives of the States in defining their          own offenses."   Id. at 582  (quoting from the  Senate Report for                           ___          the Armed Career Criminal Act of 1982).                      Fourth,  the  categorical  approach is  more  or less          evenhanded in its  imperfections.  In this  case and in  Doe, the                                                                   ___          categorical approach has resulted in  a less severe sentence than          would  result  were  sentencing court  permitted  to  examine the          actual  circumstances of the predicate  offense.  In other cases,          however, the sentence could be harsher than if the actual conduct                                         -18-                                          18          could be examined.   For example, in United  States v. Fernandez,                                               ______________    _________          1997  WL  432249  (1st  Cir.  1997)  this  court  held  that  the          Massachusetts crime of  assault and battery  on a police  officer          is, categorically,  a crime of  violence.  Despite the  fact that          the  crime  could  theoretically include  both  violent  and non-          violent variants, the usual  case was violent.  Id. at  *3 & n.2.                                                          ___          Thus a  defendant who actually did  commit the offense  in a non-          violent manner would be subjected to a harsher sentence.9                      Finally, we are dealing with sentencing enhancements.                                                              ____________          Defendants  have already  been punished  once  for their  earlier          offenses.   Those who do  not receive enhancements they  might if          the court  were allowed to examine the  actual conduct underlying          the predicate offense have not escaped punishment for these prior          bad acts.                      The  choice  of  a   categorical  procedure  for  the          evaluation   of   predicate  offenses   could   easily   be  made          differently.  But  arguments in favor of a  different process are          better  addressed elsewhere.   We  are  bound by  Taylor and  the                                                            ______          Guidelines.          IV.  The Criminal History Calculation                      Damon  argues  that the  sentencing  court improperly          tallied criminal history points for  related offenses and that he                                            ____________________            9.  The  Fernandez  court  did note,  however,  that  in this                     _________            situation  the defendant  would  be free  to  seek relief  by            filing a departure motion.  Id. at *4 n.3.                                         ___                                         -19-                                          19          was not  under a  criminal justice sentence  at the  time of  the          instant offense.  These arguments are without merit.                      Damon claims that his two prior state law convictions          for aggravated  criminal mischief and  criminal threatening  were          "related" within the  meaning of U.S.S.G. and so  must be treated          as a single sentence under  U.S.S.G.   4A1.2(a)(2).10  The crimes          were  related, he says,  because sentencing occurred  on the same          day in  the same court for  both offenses.  It is  clear that the          offenses are unrelated.  The aggravated criminal mischief offense          occurred on January 8, 1994, and the criminal threatening offense          on January 5, 1995.   One involved Damon damaging his  own house,          while  in the  other  Damon  threatened another  man  with a  .45          caliber handgun.  Damon's argument  that these crimes are related          fails under United States v. Correa, 114 F.3d  314, 317 (1st Cir.                      _____________    ______          1997), where this court expressly held that:                    at  least  in respect  to  offenses  that are                    temporally and  factually distinct  (that is,                    offenses  which occurred  on different  dates                    and  which  did  not arise  out  of  the same                    course  of  conduct), charges  based  thereon                    should  not   be  regarded  as   having  been                    consolidated   (and,  therefore,   "related")                                            ____________________            10.  Section 4A1.2, comment n.3  provides:                    [P]rior sentences  are considered  related if                    they resulted from offenses that (1) occurred                    on  the same  occasion, (2)  were  part of  a                    single  common scheme  or  plan, or  (3) were                    consolidated  for trial or sentencing.  . . .                    [When this  does] not adequately  reflect the                    seriousness  of   the  defendant's   criminal                    history or  the frequency  with which he  has                    committed  crimes . .  . an  upward departure                    may be warranted.                                         -20-                                          20                    unless the original  sentencing court entered                    an  actual order of consolidation or there is                    some  other  persuasive  indicium  of  formal                    consolidation  apparent on  the  face of  the                    record which is  sufficient to indicate  that                    the offenses  have some  relationship to  one                    another  beyond   the  sheer   fortuity  that                    sentence was imposed by the same judge at the                    same time.          There was no formal order of consolidation of these two offenses,          and we conclude that they are unrelated for sentencing purposes.                      Damon  also argues that the district court should not          have assessed two criminal history points  for his conviction for          operating a  motor vehicle  as an habitual  offender.   He claims          that this conviction is related to the instant offense, as he was          stopped with the  guns in his  car.  The  mere fortuity that  one          offense led to the  discovery of a second crime is not sufficient          to  make  the  offenses  "related"  within  the  meaning  of  the          Guidelines.  See United States v. Troncoso, 23 F.3d 612, 616 (1st                       ___ _____________    ________          Cir.  1994) (drug  selling  charges  unrelated  to  violation  of          federal immigration  laws, even though former led to discovery of          latter), cert. denied,  513 U.S.  1116 (1995);  United States  v.                   _____ ______                           _____________          Beddow,  957 F.2d 1330,  1338-39 (6th Cir.  1992) (conviction for          ______          carrying a concealed weapon not  part of federal money laundering          offense, even though  gun was found at  time of arrest  for money          laundering);  United States  v. Banashefski,  928  F.2d 349,  353                        _____________     ___________          (10th Cir. 1991) (state conviction for possession of a stolen car          severable from federal  offense of being  a felon in  possession,                                         -21-                                          21          even though firearm was found in car's trunk at time of arrest on          stolen vehicle charge).                      Damon next  argues that he was not  under a "criminal          justice sentence" at  the time he committed  the instant offense,          February 28, 1996, because while the Maine Superior Court imposed          a  sentence for  his aggravated  criminal  mischief and  criminal          threatening  offenses  on  February 22,  1996,  the  court stayed          execution of these sentences until March 21, 1996.                        There  is  no  question that  Damon  was  required to          surrender  to prison  to serve  his sentence  at the time  he was          found with firearms in his  possession.  The application note for             4A1.1(d) specifically states  that "active supervision  is not          required for  this item  to apply."   Because  Damon was under  a          requirement to  serve this  sentence at the  time of  the instant          offense, we hold  that he was under a  criminal justice sentence.          See United States v. Martinez, 931 F.2d 851, 852 (11th Cir. 1991)          ___ _____________    ________          ("[A] defendant  who has been sentenced, regardless of whether he          has surrendered for service of that  sentence, must be considered          'under  [a] criminal justice sentence' within section 4A1.1(d).")                      Damon's offenses of negotiating worthless instruments          occurred over  a period of eight days in  October of 1989.  Damon          was sentenced for these three offenses on January 3, 1990, on May          14, 1990, and  on June 11, 1991.   Sentencing for the  latter two          crimes occurred in a different  court than for the first offense.                                         -22-                                          22          Different sentences were imposed for  each offense.  We find none          of the  factors necessary  to implicate a  common scheme  or plan          present in the record of this case.  See United States v. Correa,                                               ___ _____________    ______          114  F.3d 314, 317 (1st Cir. 1997); United States v. Patasnik, 89                                              _____________    ________          F.3d 63,  74 (2nd Cir. 1996);   United States v.  Letterlough, 63                                          _____________     ___________          F.3d  332, 336  (4th  Cir. 1995),  cert. denied,  116 S.  Ct. 406                                             _____ ______          (1995); United States v. Yeo, 936 F.2d 628, 629 (1st Cir. 1991).                  _____________    ___          V. Conclusion                      Under  the  categorical approach,  sentencing  courts          must  determine, first, which statutory offense the defendant was          convicted of committing and, second, whether this type of offense          is  usually  violent.   When  the  statute  of conviction  for  a          predicate offense is  broad enough to cover  both generic violent          crimes and generic  non-violent crimes, the sentencing  court may          examine  the  charging  instrument and/or  jury  instructions  to          determine whether it was the violent or non-violent type of crime          for which the defendant was convicted.  Only if  these sources do          not yield this information may the sentencing court look to other          accurate,  judicially noticeable  sources.   At  each stage,  the          purpose of the inquiry is to determine whether the type  of crime                                                             ____          the defendant  committed was  violent  or non-violent.   In  this          case, based on  the charging papers, we hold  that Damon violated          17-A  M.R.S.A.      805(1)(B),  and  that  the   typical  offense          punishable under this statute is not a crime of violence.                                         -23-                                          23                      The violent crime enhancement  to Damon's sentence is          vacated  and the  case  is  remanded to  the  district court  for          resentencing in accordance with this opinion.                                         -24-                                          24                      Hill,  Senior Circuit Judge, concurring.  I concur in                      Hill,  Senior Circuit Judge, concurring.                             ____________________          the judgment and in all of the opinion of Judge Lynch except that          portion commencing on  page 15, remarking upon the  fact that the          law forbids a  sentencing judge from ascertaining  the existence,          vel non,  of  pertinent  facts  and shouldering  the  burden  "to          _______          explain why."                      The  reason  for  my concurrence  is  that  Taylor v.                                                                  ______          United States, 495  U.S. 575 (1990) and decisions  of this court,          _____________          interpreting  Taylor, upon which the opinion relies, require this                        ______          result.   Being bound,  I do  not dissent  from  our requiring  a          sentencing judge "to  ignore the reality of the  prior offense in          determining whether  that offense  is a crime  of violence."   We          import instructions -- "Don't ask.  Don't tell."                                         -25-                                          25
