
USCA1 Opinion

	




          June 18, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1045                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    STEPHEN DYER,                                Defendant, Appellant.                             ___________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                              _________________________               Martin J.  Ridge, with whom  Beagle, Pearce, & Ridge  was on               ________________             _______________________          brief, for appellant.               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Jay  P. McCloskey, United States Attorney, and Jonathan                    _________________                              ________          Chapman, Assistant United States Attorney, were on brief, for the          _______          United States.                              __________________________                                    June 18, 1993                              _________________________                    Per  Curiam.    In  this  criminal  appeal,  defendant-                    Per  Curiam.                    ___________          appellant  Stephen Dyer challenges his sentence.   He makes three          claims.                    1.   Dyer contends that the career offender guidelines,          U.S.S.G.     4B1.1, 4B1.2, impermissibly  exceed the scope  of 28          U.S.C.   994(h),  the pertinent enabling statute  and, therefore,          could not validly be employed to enhance his sentence.  The Third          Circuit  repudiated  precisely  the same  asseveration  in United                                                                     ______          States  v. Whyte, 892 F.2d 1170 (3d Cir. 1989), cert. denied, 494          ______     _____                                _____ ______          U.S. 1070 (1990).  We think  the Whyte court correctly upheld the                                           _____          career offender guidelines, and we reject appellant's argument on          the basis of Whyte.  See id. at 1174.                       _____   ___ ___                    2.    Next,  Dyer contends  that  his  criminal record,          though extensive,  does not include two predicate offenses of the          type necessary to animate  the career offender guidelines.   This          argument  was  not  presented  to  the  district  court  and  is,          therefore, waived.   See United States v. Dietz,  950 F.2d 50, 55                               ___ _____________    _____          (1st Cir.  1991) (stating,  in connection  with sentencing,  that          "arguments not seasonably addressed to the trial court may not be          raised for the first time in an appellate venue").                    Moreover, even if we were  to reach the point, we would          reject it on the merits.  Dyer concedes that he was  convicted of          a  controlled  substance  offense  coming  within  the  ambit  of          U.S.S.G.   4B1.2(2).1  In  addition, he was convicted of burglary                                        ____________________               1This   offense  is  described   in  paragraph  78   of  the          presentence investigation report (PSI Report).                                          2          under 17-A M.R.S.A.   401(1) (a statute that criminalizes illegal          entry into a structure).2  We  have made it abundantly clear that          such a  crime is properly  includable as a predicate  offense for          purposes  of the career  offender guidelines.   See, e.g., United                                                          ___  ____  ______          States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992), cert. denied, 113          ______    _____                                 _____ ______          S. Ct. 1850 (1993).   And, moreover, consistent with the caselaw,          e.g., id. at 3; United States v. Bell, 966 F.2d 703,  705-06 (1st          ____  ___       _____________    ____          Cir. 1992), we decline appellant's  invitation to peek behind the          conviction  and  examine its  particular  facts.   See  Taylor v.                                                             ___  ______          United States, 495 U.S. 575, 600 (1990).3          _____________                    3.   Finally,  Dyer contends  that  the district  court          impermissibly  withheld  an  offense-level   reduction  based  on          acceptance of  responsibility.   See U.S.S.G.    3E1.1.   The key                                           ___          question  under section  3E1.1  is not  whether  a defendant  has          mouthed  "a  pat recital  of the  vocabulary of  contrition," but          whether he has  accepted full responsibility for his  part in the          offense  of conviction  by  demonstrating  "candor and  authentic          remorse."   United States  v. Royer,  895 F.2d  28, 30 (1st  Cir.                      _____________     _____          1990);  accord, e.g., United  States v.  Uricoechea-Casallas, 946                  ______  ____  ______________     ___________________          F.2d 162, 167 (1st Cir. 1991); United States v. Bradley, 917 F.2d                                         _____________    _______          601, 606 (1st Cir. 1990).  The  defendant has the task of proving                                        ____________________               2This  offense  is  described in  paragraph  52  of  the PSI          Report.               3We note in passing that  appellant does not come within the          narrow exception to Taylor, see 495 U.S. at 602, as  he proffered                              ______  ___          neither the indictment nor the jury instructions for the district          court's perusal.   The appellate record is,  of course, similarly          barren.                                          3          his  entitlement to  an acceptance-of-responsibility  credit, see                                                                        ___          Bradley,   917  F.2d   at  606,   and   the  sentencing   court's          _______          determination to withhold the credit may be set aside only  if it          is clearly erroneous.  See Royer, 895 F.2d at 29.                                 ___ _____                    We discern no  clear error in this instance.   Dyer did          not  appear  for his  appointed  sentencing.   He  was thereafter          apprehended  in a  hotel  room,  under an  alias.   Given  Dyer's          boycotting of the scheduled day  of reckoning, the district court          acted  well within  its lawful  power in  declining to  award him          credit  for  acceptance  of responsibility.    See,  e.g., United                                                         ___   ____  ______          States v. Yeo, 936 F.2d 628, 628-29 (1st Cir. 1991).          ______    ___                    We need go  no further.4  Having carefully reviewed the          entire  record, we conclude,  without serious question,  that the          district  court  imposed  an  appropriate,  lawfully  constituted          sentence.          Affirmed.          Affirmed.          ________                                        ____________________               4Since career  offender status  requires proof  of only  two          prior  convictions for predicate  offenses, we need  not consider          whether,  as the lower court  ruled, the convictions described in          paragraphs 50, 59a and 60, respectively, of the PSI, also qualify          as predicate offense convictions.                                          4
