February 11, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1549
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DE JESUS,
Defendant, Appellant.
ERRATA SHEET
The opinion of the Court issued on January 27, 1993, is
corrected as follows:
On page 5, line 4 "See Fiore, F.2d at [slip op. at
5]" should be corrected to read "See United States v. Fiore,
F.2d , (1st Cir. 1992) [No. 92-1601, slip op. at 5]."
January 27, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1549
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DE JESUS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
Before
Torruella, Selya and Stahl,
Circuit Judges.
Annemarie Hassett, Federal Defender Office, for appellant.
Frank A. Libby, Jr., Assistant United States Attorney, with
whom A. John Pappalardo, United States Attorney, was on brief,
for the United States.
SELYA, Circuit Judge. In this appeal, we consider
SELYA, Circuit Judge.
whether larceny from the person is a crime of violence within the
meaning of the federal sentencing guidelines. Because we answer
that question affirmatively, defendant's prior conviction for
that crime qualifies as a predicate offense, requiring that we
affirm his enhanced sentence as a career offender.
I. BACKGROUND
The career offender guideline elevates the sentencing
range of a defendant who, being at least eighteen years old and
having previously been convicted of "at least 2 prior felony
convictions of either a crime of violence or a controlled
substance offense," is found guilty of a federal felony that is
itself either a crime of violence or a controlled substance
offense. U.S.S.G. 4B1.1.1 On January 21, 1992, defendant-
appellant Carlos De Jesus pled guilty to federal narcotics
offenses in violation of 21 U.S.C. 841(a)(1), 846, 860(a)
(1988) and 18 U.S.C. 2 (1988). In the presentence
investigation report (PSI Report), the probation officer
recommended that appellant be sentenced as a career offender. In
support of the predicate offense requirement, the PSI Report
limned five prior offenses, viz., a conviction for possession of
1Unless otherwise indicated, all references to the
sentencing guidelines are to the November 1991 version. See 18
U.S.C. 3553(a)(4)-(5)(1988) (instructing a sentencing court to
consider the guidelines and policy statements "in effect on the
date the defendant is sentenced"); see also United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) (explaining
that, save for any ex post facto complications, "a defendant is
to be punished according to the guidelines in effect at the time
of sentencing").
3
heroin with intent to distribute, two diversionary dispositions
for assault and battery that were placed on file without a
finding of guilt, a diversionary disposition for assault and
battery that was placed on file after a finding of guilt, and a
conviction for larceny from the person.2
At sentencing, the district court adopted the PSI
Report's recommendation, branded appellant a career offender, and
set the guideline sentencing range (GSR) at 210-262 months.3
The court then granted a government motion filed pursuant to
U.S.S.G. 5K1.1 and departed downward in tribute to appellant's
substantial assistance, sentencing him to a 60-month term of
incarceration.
Appellant objects to his classification as a career
offender. He acknowledges that his conviction for possessing
heroin with intent to distribute is a countable predicate
offense, but protests that there is no other. Thus, he claims
that the government failed to show the requisite pair of
predicate offenses.
II. ANALYSIS
Although the lower court determined that De Jesus was a
career offender, it made no express finding as to which of his
past escapades constituted predicate offenses within the meaning
2The first three dispositions occurred on November 24, 1987;
the last two dispositions occurred on April 10, 1990. All five
cases were prosecuted in a Massachusetts state court.
3Both sides agree that, apart from career offender status,
the GSR would have been 46-57 months.
4
of U.S.S.G. 4B1.1. Because appellant admits the incidence of
one predicate offense (for peddling heroin), our sole task is to
determine whether the record supports the sentencing court's
implicit finding of a second predicate offense.4 We approach
this task with an awareness that, so long as any one of the other
dispositions catalogued in the PSI Report qualifies under the
career offender rubric, De Jesus's appeal founders.
A
Because we believe it is relatively clearcut, we turn
first to the issue of whether appellant's conviction for larceny
from the person constitutes a predicate offense. Appellant
claims that this conviction cannot trigger career offender status
because the crime charged, a violation of Mass. Gen. L. ch. 266,
25(b) (1990), does not constitute a crime of violence within
the meaning of the sentencing guidelines. We do not agree.
The Sentencing Commission has defined a crime of
violence as a federal or state offense punishable by imprisonment
for more than 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 of a dwelling, arson, or extortion,
4Although the lack of express findings is a complicating
factor, it does not frustrate appellate review. After all, the
question of whether a crime qualifies as a predicate offense is a
question of law and, hence, our review is plenary. See United
States v. Fiore, F.2d , (1st Cir. 1992) [No. 92-1601,
slip op. at 3]. Therefore, this appeal can proceed. We take
this opportunity, however, to emphasize that reasonably complete
findings at the trial court level invariably facilitate the
appellate task and to urge district judges to make such findings
wherever possible.
5
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. 4B1.2(1). A formal categorical approach an approach
that looks to a prior offense's statutory provenance rather than
to its actual facts is the method of choice for determining
whether a felony constitutes a targeted crime within the meaning
of this definition. See United States v. Fiore, F.2d ,
(1st Cir. 1992) [No. 92-1601, slip op. at 5]; United States
v. Bell, 966 F.2d 703, 704 (1st Cir. 1992); accord U.S.S.G.
4B1.2, comment (n.2) (directing judicial inquiry to "the conduct
set forth (i.e., expressly charged) in the count of which the
defendant was convicted"); cf. Taylor v. United States, 495 U.S.
575, 600 (1990) (adopting categorical approach for similar
definitional inquiries under the Armed Career Criminal Act);
United States v. Doe, 960 F.2d 221, 223-24 (1st Cir. 1992)
(same). Thus, rather than examining the actual circumstances
underlying the earlier conviction, we examine only the statutory
formulation of the crime charged (here, larceny from the person)
to see if that crime is a crime of violence for purposes of the
career offender guideline.5
5To be sure, there are certain limited circumstances in
which a court may appropriately peruse documents such as the
charging papers or jury instructions in order to flesh out a
predicate offense inquiry. See, e.g., Taylor, 495 U.S. at 602.
In this instance, however, we see no reason either to reach
beyond the statutory parameter or to consider the extent to which
our opinion in United States v. Harris, 964 F.2d 1234 (1st Cir.
1992), does or does not permit resort to the PSI Report's
depiction of the underlying events and/or the defendant's own
version of the facts as outlined in the Report's addendum.
6
B
The state statute in question authorizes a prison term
of up to five years for one who "steal[s] from the person of
another." Mass. Gen. L. ch. 266, 25(b). Massachusetts law
makes clear that, in order to satisfy "the essential elements" of
the statutory definition, the taking need not be from the
victim's person so long as it is "from the presence of the
victim," that is, from "within his area of control."
Commonwealth v. Subilosky, 352 Mass. 153, 166, 224 N.E.2d 197,
206 (1967) (internal quotation marks and citation omitted).
Using this rendition of Massachusetts law as a doctrinal
springboard, appellant argues that his earlier conviction was not
for a "crime of violence" as that term is defined in the career
offender guideline.
Appellant's argument has some superficial allure.
Because actual or threatened use of force is not an element of
the offense in Massachusetts, larceny from the person does not
fit within subsection (i) of U.S.S.G. 4B1.2(1). The puzzle,
however, is not so easily solved; even if force (actual or
threatened) is not an element of the offense, a crime may still
be a crime of violence if it falls within the "otherwise" clause
of subsection (ii), that is, if it "involves conduct that
presents a serious potential risk of physical injury to another."
U.S.S.G. 4B1.2(1).
The Sentencing Commission's commentary recites a litany
of illustrative offenses, including some that typically fall
7
within the reach of the "otherwise" clause. See U.S.S.G.
4B1.2, comment (n.2). Although larceny from the person is not
listed, we do not think the lack of enumeration is dispositive.
Expanding on the "otherwise" clause, the application notes
explain that "[o]ther offenses are included 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." Id.
Against this backdrop, the lens of judicial inquiry narrows to a
determination of whether larceny from the person is a category of
crime that, by its nature, presents a substantial risk of
personal injury even though its statutorily defined elements do
not include the use or threat of force.
Appellant contends that because the crime potentially
embraces a broad range of non-violent conduct, see, e.g.,
Commonwealth v. Dimond, 57 Mass. 235, 236-38 (1849) (holding
that, in certain circumstances, fraud can be prosecuted under the
statute), larceny from the person cannot be shoehorned into the
contours of the "otherwise" clause. We think that Taylor and its
progeny undermine this contention. The Taylor Court, invoking a
categorical approach, held that any state offense containing the
basic elements of burglary, "regardless of its exact definition
or label," Taylor, 495 U.S. at 599, constituted a "violent
felony" for purposes of sentencing enhancement under the Armed
8
Career Criminal Act (ACCA), as amended, 18 U.S.C. 924(e)
(1988).6 Hence, not only "especially dangerous" burglaries, but
also "ordinary burglaries," that is, "run-of-the-mill burglaries
involving an unarmed offender, an unoccupied building, and no use
or threat of force" present "a sufficiently 'serious potential
risk' to count towards enhancement." Id. at 597.
The linchpin of the taxonomy, then, is not the breadth
of the statutory sweep but the degree of risk, expressed in terms
of the probability of physical harm presented by the mine-run of
conduct that falls within the heartland of the statute. Applying
this test in the post-Taylor era, we have repeatedly classified
as crimes of violence offenses in which actual or threatened
force against another person is likely, although by no means
certain. In a case hitting close to the mark, we determined that
a conviction for larceny from the person under Tennessee law
constituted a crime of violence within the meaning of the career
offender guideline. See United States v. McVicar, 907 F.2d 1, 2
(1st Cir. 1990). We recognized that, although larceny from the
person "typically involves no threat of violence," id. at 3, the
6The definition of "violent felony" in the ACCA's sentence
enhancement provision is virtually identical to the definition of
"crime of violence" under U.S.S.G. 4B1.2. Indeed, the former
definition is widely regarded as the source of the latter
definition. See Fiore, F.2d at n.2 [slip op. at 5 n.2];
United States v. Preston, 910 F.2d 81, 86 n.6 (3d Cir. 1990),
cert. denied, 111 S. Ct. 1002 (1991); U.S.S.G. App. C, amend.
268, at C.139 (Nov. 1989). For that reason, we have routinely
held that decisions interpreting the ACCA constitute persuasive
authority upon which a court construing the career offender
guideline may rely. See Fiore, F.2d at n.2 [slip op. at
5 n.2]; Bell, 966 F.2d at 705.
9
risk of ensuing struggle is omnipresent. Thus, we concluded that
"[t]aking property directly from a person . . . run[s] a
'substantial' or 'serious' risk that 'physical force' or
'physical injury' will follow." Id. at 2. Of course, as
appellant points out, the Tennessee statute at issue in McVicar
differs from the Massachusetts statute in that the former
requires theft directly from the victim's person. See 1975 Tenn.
Pub. Acts 367, 368. But, because the Massachusetts statute
requires theft from either the victim's person or the victim's
immediate vicinity, see Subilosky, 352 Mass. at 166, a
sufficiently serious potential for confrontation and physical
injury invariably exists. Hence, we believe that the proffered
distinction between the Tennessee and Massachusetts statutes,
though it exists, does not meaningfully differentiate the two
cases.
Our other decisions point in the same direction. In
Fiore, we held that breaking and entering into a commercial
structure comprises a crime of violence under the career offender
guideline. See Fiore, F.2d at [slip op. at 9]
(concluding that breaking into a commercial building "poses a
potential for episodic violence so substantial as to bring such
burglaries within the . . . crime of violence ambit"). In United
States v. Patterson, 882 F.2d 595 (1st Cir. 1989), cert. denied,
493 U.S. 1027 (1990), an ACCA case, we held that "an unauthorized
entry of the premises of another" portended a sufficient risk of
harm to energize the career criminal statute. Id. at 604. If
10
breaking and entering an abandoned warehouse poses a sufficiently
"serious potential risk of physical injury" to trigger career
offender status, we fail to see how larceny from the person that
necessarily involves theft from within the victim's immediate
presence can be thought to pose a significantly lesser risk of
violent eruption.
To say more would be to paint the lily. We rule that,
as the crime of larceny from the person under Massachusetts law
bears an inherent risk of violent outbreak, it constitutes a
crime of violence within the meaning of the career offender
provisions of the federal sentencing guidelines. Thus,
appellant's April 10, 1990 conviction on a charge of larceny from
the person could properly be counted as a predicate offense.
III. CONCLUSION
We need go no further.7 Appellant's larceny
conviction, taken in conjunction with the earlier controlled
substance offense, comprise the two predicate offenses required
for career offender status. It follows inexorably, as night is
said to follow day, that appellant received his due in the
district court.
Affirmed.
7Inasmuch as U.S.S.G. 4B1.1 requires only two predicate
offenses as a condition precedent to its operation, any attempt
to evaluate the remaining predicate offense candidates enumerated
in the PSI Report would be supererogatory. Therefore, we take no
view as to the sufficiency of those dispositions under the
version of the career offender guideline applicable to this case.
11