United States v. Rose

United States Court of Appeals
For the First Circuit

No. 95-1171
UNITED STATES OF AMERICA,

Appellee,

v.
JAMIE ROSE,

Defendant, Appellant.

No. 95-1752

UNITED STATES OF AMERICA,
Appellee,

v.
NORMAN VERRILL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Cyr, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Mark F. Itzkowitz for appellant Jamie Rose.

Thornton E. Lallier, with whom Lallier & Anderson was on brief,

for appellant Norman Verrill.
Kenneth P. Madden, Assistant U.S. Attorney, with whom Sheldon

Whitehouse, U.S. Attorney, and Margaret E. Curran, Assistant U.S.

Attorney, were on brief, for appellee.

January 30, 1997

LYNCH, Circuit Judge. These two appeals arise out
LYNCH, Circuit Judge.

of the armed robbery of the Dexter Credit Union in Central

Falls, Rhode Island on April 6, 1994. Jamie Rose was

convicted of conspiracy to rob a federally insured credit

union in violation of 18 U.S.C. 371, 2113(a), and of being

a felon in possession of a firearm in violation of

922(g)(1). Norman Verrill was convicted of the same two

offenses and also of armed robbery and robbery of a federally

insured credit union. 18 U.S.C. 2113(a), (d). Rose was

sentenced to 60 months' imprisonment on the conspiracy count

and to 120 months' imprisonment for being a felon in

possession; the sentences are consecutive. Verrill was

sentenced as a career offender and an armed career criminal

to a term of 264 months.

On appeal, Rose raises a plethora of issues, two of

which are weightier than the rest and require us to address

issues previously unresolved by this court. The first

concerns the jury charge that may properly be given based on

evidence of a defendant's possession of recently stolen

property. The second is whether the trial court abused its

discretion by admitting a potentially inflammatory photograph

into evidence, and if so, whether this court has discretion

to determine whether the error was harmless where the

government has not so argued. Verrill appeals exclusively

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from the determinations made as to his sentence. We affirm

the convictions and the sentences.

I.

During the late morning of April 6, 1994, three men

wearing masks entered the Dexter Credit Union in Central

Falls, Rhode Island. The credit union was insured by the

National Credit Union Administration. One robber brandished

a semi-automatic pistol while the two others took money from

the teller stations. A fourth masked man waited outside in a

black pickup truck, which the robbers used as a get-away

vehicle. Credit union employees determined that $10,584 had

been stolen.1

Police arrived at the scene a few minutes after the

robbers had fled. They found the get-away truck abandoned,

with its engine running, a few blocks from the credit union.

The ignition had been "popped," and the police later learned

that the truck had been stolen two days before.

The authorities thought they knew where to find the

culprits. Both the FBI and the Providence Police Department

had been investigating Verrill, Rose, David Vial and

Christopher Thibodeau in connection with a series of bank

robberies. A confidential informant had provided information

that the four men were involved in robbing banks. A team of

1. The loss was initially thought to be $10,913.53, but that
figure was later adjusted downward.

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officers, consisting of FBI agents and Providence police

officers who were part of a bank robbery task force, went to

Vial's home in North Providence and waited outside. A few

minutes later, a champagne-colored Nissan Pathfinder carrying

four men pulled into the building parking lot. Task force

members had seen Rose and Thibodeau in the Pathfinder earlier

that day and knew that the vehicle had been stolen some

months earlier and that the license plates had been stolen

eleven days before the bank hold-up.

The task force members approached the Pathfinder

and identified themselves. Rose, who was driving, pulled

away at high speed, nearly hitting two officers in the

process. The officers began shooting. Vial managed to

escape temporarily: he was found about forty-five minutes

later hiding in a bush. The officers ordered Rose, Verrill

and Thibodeau out of the vehicle. Thibodeau, who had been

wounded, was lying on the front seat; when the police removed

him from the car, they found that he was holding a Glock

semi-automatic pistol in his left hand and had a Smith &

Wesson automatic pistol in the waistband of his pants. Both

were loaded with Winchester 9 millimeter Black Talon and

Federal Cartridge hardball 9 millimeter round ammunition.

The officers found two small gym bags, containing over nine

thousand dollars and makeshift masks, in the back seat of the

Pathfinder. Some of the money was banded by paper money

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straps bearing the markings of the Dexter Credit Union. The

four men were arrested.

Rose had suffered a scalp laceration and was

brought to Rhode Island Hospital. The physician's assistant

who treated him found a screwdriver, a pager and an

ammunition clip from a Glock semi-automatic pistol in his

trouser pockets. These items had not been found in an

earlier pat-down of Rose.

Later that night, an FBI agent executed a search

warrant at Rose's home in Providence. There, the agent found

a box of Federal Cartridge ammunition designed to hold 50

rounds of ammunition but only containing 39 rounds, as well

as a leather pistol case. The agent also seized a photograph

album containing pictures of Rose and others. Among the

photos were five of Rose holding what appeared to be a Glock

semi-automatic pistol. One of the photos showed Rose, finger

on the trigger, pointing the pistol at the head of another

young man.

Defendants were charged with conspiracy to rob the

Dexter Credit Union; armed robbery of the credit union;

robbery of the credit union; using and carrying a firearm

during a crime of violence; and possession of a firearm by

previously convicted felons. Vial and Thibodeau, two of the

men in the car, pleaded guilty to some of the counts and the

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rest of the charges against them were dismissed. Verrill and

Rose proceeded to trial.

Rose moved to sever his trial from Verrill's and to

sever the felon-in-possession charge from the other charges.

The motions were denied after a hearing, as was a motion for

reconsideration. The district court ruled that, because

there was no evidence of what Verrill's defense would be,

there was no basis for concluding that Rose and Verrill had

antagonistic defenses.

Vial, a government witness, testified that he,

Verrill and Thibodeau entered the credit union while Rose,

who had the Glock, remained outside in the truck. Vial said

that Thibodeau had waited at the door of the credit union

holding the Smith & Wesson while he and Verrill took the

money. He also testified that all four men fled in the truck

but then switched to a second stolen vehicle which he and

Rose had left near the credit union earlier that day, and

that soon afterwards, they moved to the Pathfinder.

Rose's consecutive 60 and 120 month sentences were

based on the guideline for robbery, U.S.S.G. 2B3.1, as

dictated by the conspiracy guideline, U.S.S.G. 2X1.1. The

conspiracy guideline requires that the base offense level for

a conspiracy conviction be that of the substantive offense

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plus adjustments for any intended conduct.2 See U.S.S.G.

2X1.1(a).

Verrill was sentenced both as an armed career

criminal pursuant to 18 U.S.C. 924(e) and U.S.S.G. 4B1.4,

and as a career offender pursuant to U.S.S.G. 4B1.1. As

either an armed career criminal or as a career offender,

Verrill's offense level was 34 and his criminal history

category VI, which translates into a guidelines range of 262

to 327 months. He was sentenced to 264 months. This appeal

ensued.

II.

Rose argues that his conviction should be reversed

for several reasons: that the trial court abused its

discretion in denying the motions to sever his trial from

Verrill's and to sever the felon-in-possession count; that

the trial court made erroneous and prejudicial evidentiary

rulings; and that the charge to the jury was at times

2. After determining the specific offense characteristics,
the court calculated the offense level for the conspiracy
count as 31 and the offense level for the felon-in-possession
count as 27. The district court appropriately used the
higher offense level of 31, see U.S.S.G. 3D1.3, and

determined that Rose had a criminal history category of V.
The guideline range was 168 to 210 months. With a statutory
maximum of 5 years for the conspiracy conviction and 10 years
for the felon-in-possession conviction, the district judge
determined the range to be 168 to 180 months. He effectively
sentenced Rose to the statutory maximum.

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erroneous and at times incomplete. We deal first with his

more serious arguments.

Jury Instruction on Recently Stolen Property

Rose questions several aspects of the court's

charge to the jury. The most significant challenge concerns

the instruction regarding the inferences that the jury may

permissibly draw from the defendant's possession of recently

stolen items. In the context of discussing the stolen get-

away vehicles, the court instructed the jury that the

possession of recently stolen property, if not satisfactorily

explained, could support an inference not only that the

person in possession knew that the property was stolen, but

also that he participated in the theft.3

This raises a question of first impression in this

circuit.4 The challenged instruction is reviewed for abuse

of discretion to determine whether the charge, taken as a

whole, "'fairly and adequately submits the issues in the case

to the jury.'" United States v. Picciandra, 788 F.2d 39, 46

3. Rose also argues that the phrase "if not satisfactorily
explained" impermissibly penalized him for failing to take
the stand. This latter argument has been rejected by the
Supreme Court. Barnes v. United States, 412 U.S. 837, 846-47

(1973).

4. It has long been the law that the jury may infer from an
individual's possession of recently stolen items that the
individual knew the property had been stolen. See generally

United States v. Farnkoff, 535 F.2d 661, 666-67 (1st Cir.

1976).

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(1st Cir. 1986) (quoting United States v. Fishbach & Moore,

Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)).

We join the other circuit courts of appeals that

have concluded that possession of recently stolen property

may support an inference of participation in the theft of

that property. United States v. Clark, 45 F.3d 1247, 1250

(8th Cir. 1995); United States v. Ferro, 709 F.2d 294, 296-97

(5th Cir. 1983); United States v. DiGeronimo, 598 F.2d 746,

754-55 (2d Cir. 1979); United States v. Long, 538 F.2d 580,

580-81 (4th Cir. 1976) (per curiam); United States v.

Plemons, 455 F.2d 243, 246 (10th Cir. 1972). These cases

rely in large part on the widespread acceptance of the

principle and on the common sense reasoning that supports the

inference. See, e.g., Long, 538 F.2d at 581.

We emphasize the limits on instructions as to this

inference. First, the instruction may not be given in every

case where a defendant was in possession of recently stolen

property. As the Second Circuit noted, in certain situations

the inference "would verge on the irrational" in light of the

other evidence in the case. United States v. Tavoularis, 515

F.2d 1070, 1074-75 (2d Cir. 1975); see also DiGeronimo, 598

F.2d at 754. For example, in the absence of additional

evidence tending to support the inference, it may not be

appropriate to give the instruction. The court must always

act as a check, ensuring "that the evidence warrants

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permitting the jury to draw [the] inference." Clark, 45 F.3d

at 1250.

Second, the instruction involves a permissive

inference rather than a presumption. The decision about

whether the defendant's unexplained possession of recently

stolen property supports the conclusion that the defendant

participated in the theft is made by the jury based on all of

the evidence. Ferro, 709 F.2d at 297.

With this in mind, we turn to Rose's claim that the

five month period between the theft of the Pathfinder and his

arrest lessens the applicability of the inference. This

claim ignores the other evidence in the case. The license

plates on the Pathfinder were stolen within eleven days of

the robbery, the black pickup truck within two days of the

robbery, and Vial's testimony linked Rose to the truck. On

these facts, the inference that Rose participated in the

theft of the get-away cars is not at all unreasonable or

unwarranted.

Evidentiary Rulings

Rose argues that the district court erred by

admitting into evidence several items found in his apartment

and that this error was not harmless. Specifically, he

asserts that the admission of photos of himself and others

with what appears to be a Glock pistol, of a leather pistol

case and a photograph showing where it was found in his

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apartment and of a box of ammunition for a 9 millimeter

pistol violated Fed. R. Evid. 403, because the prejudicial

impact of these items far outweighed their probative value.

Review of the trial court's evidentiary rulings is for abuse

of discretion. United States v. Lombard, 72 F.3d 170, 187

(1st Cir. 1995).

This evidence, in general, met a threshold test of

relevance. Pistols played an important role in the charged

crimes. One of the robbers brandished a pistol inside the

credit union. Vial testified that Rose was armed with a

second pistol. Two 9 millimeter pistols were seized from

codefendant Thibodeau, and a clip of ammunition for a semi-

automatic pistol was found on Rose at the hospital. Items

linking Rose to pistols tended to corroborate Vial's

testimony that Rose was a participant in the conspiracy and

that he had possessed the Glock.

The presence of a leather case for a pistol in

Rose's home is evidence that Rose kept such a weapon there

before the crime. That the case was manufactured by Browning

rather than by Smith & Wesson or Glock goes to the weight

rather than to the relevance of the evidence. The jury,

during their deliberations, had access to the two seized

weapons and to the pistol case and therefore could have

determined whether either of the pistols fit the case.

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The relevance of the ammunition is even more

readily apparent. The ammunition was of the same type as

that found in the two guns seized when Rose and his co-

defendants were apprehended. The box was marked as holding

fifty rounds, but contained only thirty-nine rounds. The

jury reasonably could have inferred that at least some of the

missing rounds had been used to load the two pistols.

In general, the photographs showing Rose with a gun

are relevant. FBI Special Agent Kevin Eaton testified at

trial that the gun in the photographs appeared to be a Glock

firearm; Eaton stated that Glocks have "a very distinctive"

look. The photographs thus link Rose to one of the weapons

seized, providing strong corroboration for Vial's inculpatory

testimony.

The pistol case and accompanying photograph, the

ammunition, and four of the photographs showing Rose with

what appeared to be a Glock were not unduly prejudicial. One

of the photos, however, which shows Rose, finger on the

trigger, with his gun pointed at the head of another person,

is potentially quite inflammatory. Rose is correct that the

photo could lead a jury to believe that anyone who would

point a possibly loaded pistol at the head of a friend is

extremely reckless and capable of criminal acts. Moreover,

this photograph was at best cumulative of the four other

photographs linking Rose to the gun. The admission of this

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photograph into evidence constituted an abuse of discretion.

The government all but conceded as much at oral argument.

In the usual case, a non-constitutional evidentiary

error will be treated as harmless if it is highly probable

that the error did not contribute to the verdict. United

States v. Rodriguez Cortes, 949 F.2d 532, 543 (1st Cir.

1991); United States v. Benavente Gomez, 921 F.2d 378, 386

(1st Cir. 1990). In a harmless error inquiry, the government

bears the burden of persuasion with respect to showing that

the error was harmless. United States v. Olano, 507 U.S.

725, 734-35 (1993). By contrast, in a plain error argument,

the defendant bears the burden. Id. The government here

failed to argue that the court's admission of the

photograph, if error, would be harmless. Does the

government's failure to raise this issue in its brief5

preclude further review and automatically require that the

conviction be reversed and sent back for trial? We think

not. Here we review to determine whether the government met

its burden despite its failure explicitly to argue harmless

error.

We join several other circuit courts of appeals in

holding that appellate courts have the discretion on direct

appeal to overlook the government's failure to argue that the

5. At oral argument, in response to questions from the
court, the government suggested that any error must be
harmless.

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admission of the challenged evidence, if error, was harmless,

and that appellate courts may therefore consider the issue of

harmlessness sua sponte. Horsley v. Alabama, 45 F.3d 1486,

1492 n.10 (11th Cir. 1995); United States v. Langston, 970

F.2d 692, 704 n.9 (10th Cir. 1992); Lufkins v. Leapley, 965

F.2d 1477, 1481 (8th Cir. 1992); United States v. Pryce, 938

F.2d 1343, 1348 (D.C. Cir. 1991) (opinion of Williams, J.);

United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.

1991). In Rodriguez Cortes, this court noted, but did not

resolve, the question, having found the evidence admitted was

not harmless. 949 F.2d at 543.

Here, we find that the evidence admitted was

plainly harmless. The photograph was cumulative, the weight

of the additional evidence overwhelming. Under such

circumstances, "it would be a waste of judicial resources to

require a new trial where the result is likely to be the

same." Id.

Courts have variously grounded the authority to

engage in sua sponte harmless error review on the arguably

mandatory language of Rule 52(a), which states that any error

which does not affect substantial rights "shall be

disregarded," and on other related doctrines. See Pryce, 938

F.2d at 1351 (Randolph, J., concurring). Of obvious concern

is the cost to the public of new trials because of

carelessness on the part of the prosecutors on appeal where

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the other evidence has established guilt beyond a reasonable

doubt and there is little reason to think the error infected

the jury deliberations. Also relevant is the interest in

avoiding incentives to the government to fail to make the

proper arguments.

The Seventh Circuit decides whether to undertake

the harmless error analysis sua sponte based on a three part

test considering "[1] the length and complexity of the

record, [2] whether the harmlessness of the error or errors

found is certain or debatable, and [3] whether a reversal

will result in protracted, costly, and ultimately futile

proceedings in the district court." Giovannetti, 928 F.2d at

227. While we find helpful the reasoning of the Seventh

Circuit, we do not restrict ourselves to the Giovannetti

test. See Pryce, 938 F.2d at 1348 (opinion of Williams, J.)

(agreeing with the general approach of Giovannetti but not

adopting the specific factors). The exercise of discretion

involves the balancing of many elements. Among these are the

state of the record and whether the arguments that the

government does make provide assistance to the court on the

harmlessness issue.6

6. Here, many of the arguments made by the government as to
why the photograph was not prejudicial under Rule 403 also go
to the question of harmlessness. Another example of this
phenomenon is when the government marshals the evidence in
response to an argument that the verdict was against the
weight of the evidence. That evidence too would be of
assistance to the court in a harmless error analysis.

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The government's case is, of course, put at risk by

its failure to argue that admission of the evidence was

harmless. Here, it survives the risk; in other situations,

it may not. Although the district court abused its

discretion by admitting the photograph of the mock shooting,

that is not a basis for overturning the conviction.

Severance

Rose challenges the district court's denial of

motions to sever his trial from Verrill's and to sever the

felon-in-possession count. See Fed. R. Crim. P. 14. Review

is for abuse of discretion. United States v. Levy-Cordero,

67 F.3d 1002, 1007 (1st Cir. 1995), cert. denied, 116 S. Ct.

1558 (1996). Defendant on appeal must make a strong and

specific showing of prejudice. The prejudice shown must be

greater than that inherent in trying multiple counts and

multiple defendants together. United States v. Yefsky, 994

F.2d 885, 896 (1st Cir. 1993); United States v. Walker, 706

F.2d 28, 30 (1st Cir. 1983). Rose fails to meet this high

standard.

Rose argues that being tried with Verrill forced

him to abandon his intention of testifying on his own behalf.

He maintains that he did not participate in the robbery but

merely picked up Verrill, Vial and Thibodeau when they called

to ask him to do so, and that he only learned of the robbery

after the three men got into the car. He argues that if he

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had testified, Verrill would have taken the stand to

implicate him. Rose concludes that he and Verrill had

antagonistic defenses which required severance.

The Supreme Court has held that conflicting

defenses of codefendants do not necessarily require

severance, reasoning that the risk of prejudice will vary

with the facts of each case. Zafiro v. United States, 506

U.S. 534, 538 (1993). This court has further refined the

analysis, holding that antagonistic defenses only require

severance if the tensions between the defenses are so great

that the finder of fact would have to believe one defendant

at the expense of the other. United States v. Smith, 46 F.3d

1223, 1230 (1st Cir.), cert. denied, 116 S. Ct. 176 (1995).

The trial judge explained that he was denying the

motion because he did not know whether Verrill actually would

testify if Rose did, and if so what the substance of that

testimony would be. The judge offered to entertain the

motion anew during trial if Verrill did in fact testify, but

he had no basis prior to trial for concluding that the

codefendants had inconsistent defenses. Of course, the trial

judge had a "continuing duty at all stages of the trial to

grant a severance if prejudice [] appear[ed]." Schaffer v.

United States, 362 U.S. 511, 516 (1960). Like the trial

judge in Schaffer, the trial judge here was "acutely aware of

the possibility of prejudice," id., and was explicit about

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his willingness to sever if a prejudicial situation arose

during trial.

That eventuality never occurred. Neither Rose nor

Verrill put on any evidence tending to show conflicting

defenses. Rose put on two witnesses who testified that he

had not been the driver of the black pickup truck,7 and

Verrill put on no witnesses at all. This testimony was

insufficient to establish that the codefendants had

antagonistic defenses.8 Nor were the arguments made by their

counsel necessarily contradictory. Rose's attorney

essentially argued that Rose had been nothing more than an

accessory after the fact, while Verrill's counsel argued that

the government had failed to meet its burden of proof. These

theories are not irreconcilable. Even if they were, the

level of antagonism in defenses is measured by the evidence

actually introduced at trial; argument by counsel is not

evidence. Smith, 46 F.3d at 1230.

Nor did the trial court abuse its discretion in

failing to sever the felon-in-possession count. Rose argues

that if that count had been severed, the jury would never

have known of his status as a convicted felon. He asserts

7. Rose also recalled one of the police officers as a
defense witness.

8. Furthermore, Rose's claim of prejudice rests on the
premise that if Rose had testified, Verrill would have taken
the stand to implicate him. This seems improbable, for it
would have required Verrill to implicate himself as well.

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that this information tainted him in the eyes of the jury and

resulted in his conviction on the conspiracy count.

The felon-in-possession charge was properly tried

with the other charges because it arose out of the same

occurrence. Any prejudice was limited because Rose

stipulated to his status as a prior convicted felon.

Consequently, the government was not permitted to put on

evidence concerning the number and nature of Rose's prior

felony convictions. Old Chief v. United States, -- S. Ct. --

(1997); United States v. Tavares, 21 F.3d 1, 4 (1st Cir.

1994) (en banc). Finally, it is improbable that the

knowledge of Rose's status as a prior convicted felon led the

jury to convict him of the conspiracy charge in light of the

acquittal on the two bank robbery charges.

Other Jury Instructions

Rose also argues that the district court erred by

refusing to charge the jury that mere presence at the scene

of a crime was not sufficient to convict him on the

conspiracy charge. The trial court's failure to give a

requested instruction on the defendant's theory of the case

is reversible error only if the requested instruction (1) was

substantively correct; (2) was not substantially covered

elsewhere in the charge; and (3) concerned an important point

in the case so that the failure to give the instruction

seriously impaired the defendant's ability to present his

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defense. United States v. Williams, 809 F.2d 75, 86 (1st

Cir. 1986); United States v. Gibson, 726 F.2d 869, 874 (1st

Cir. 1984).

Jury instructions are viewed in the context of the

charge as a whole rather than in isolation. United States v.

Nickens, 955 F.2d 112, 119 (1st Cir. 1992). Furthermore, the

trial court's charge need not use the exact wording requested

by the defendant so long as the instruction incorporates the

substance of the defendant's request. United States v.

Campbell, 874 F.2d 838, 844 (1st Cir. 1989). Here, the court

instructed the jury as follows:

Evidence that the defendant was in
the company of, or associated with one or
more of the persons alleged, or proved to
have become a member of the conspiracy,
is not sufficient to prove that such
defendant was a member of the alleged
conspiracy. Mere similarity of conduct
among various persons, and the fact that
they may have associated with each other,
may have been together and discussed
common interests is not sufficient to
establish membership in a conspiracy.

In addition, as part of the instruction on aiding and

abetting, the jury was explicitly told that mere presence at

the scene of the crime, even when coupled with knowledge, was

insufficient to sustain a conviction. On these facts, the

jury charge substantially covered Rose's proposed

instruction, and there was no error.

Rose also contends that the district court's

instruction on drawing an inference of guilt from flight from

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the scene of the crime was incomplete. It is true that the

instruction did not explicitly direct the jury to consider

other possible inferences. However, the charge did indicate

that it was up to the jury to determine whether to draw an

inference of guilt from the flight. This conveys the

substance of Rose's requested charge. Williams, 809 F.2d at

88. Furthermore, a court need only instruct the jury on a

defense theory if there is supporting evidence in the record.

United States v. Silvestri, 790 F.2d 186, 192 (1st Cir.

1986). Rose's counsel suggested another possible inference

by arguing in closing that Rose's flight was understandable

given that he was surrounded by men with drawn weapons.

However, no evidence was adduced to this effect. The

challenged instruction was a correct statement of the law.

The final claim Rose makes with respect to the jury

instructions is that the district court erred by refusing to

give a "missing evidence" instruction. We review for abuse

of discretion. United States v. Welch, 15 F.3d 1202, 1214

(1st Cir. 1993). One of the situations that may warrant such

an instruction is when a party with exclusive control over

relevant, noncumulative evidence fails to produce that

evidence. Cf. United States v. St. Michael's Credit Union,

880 F.2d 579, 597 (1st Cir. 1989)("missing witness"

instruction). Rose argues that the FBI's failure to examine

the ammunition clip found on his person for fingerprints

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justified the missing evidence instruction. However, this

was not a case where the government failed to provide readily

available evidence. The fingerprint evidence was never

collected. Rose's counsel was free to argue that, in the

absence of such evidence, the government had not sufficiently

linked Rose to the crime. See United States v. Martinez, 922

F.2d 914, 925 (1st Cir. 1991). There was no abuse of

discretion.

Rose's Sentence

Rose charges that the district court should not

have calculated his base offense level using the guideline

for robbery, because he had been acquitted of robbery.

Review of the purely legal question of the proper

interpretation of a sentencing guideline is de novo. United

States v. Olbres, 99 F.3d 28, 35 (1st Cir. 1996). There is

no error here.

The conspiracy guideline reflects "a policy

decision that conspiracies . . . be treated like substantive

offenses for sentencing purposes." United States v.

Chapdelaine, 989 F.2d 28, 36 (1st Cir. 1993). This question

is different from the acquitted conduct question faced by

this court in United States v. Mocciola, 891 F.2d 13, 16-17

(1st Cir. 1989), and in Lombard, 72 F.3d at 174.

Furthermore, the Supreme Court recently held in United States

v. Watts that a "jury's verdict of acquittal does not prevent

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the sentencing court from considering conduct underlying the

acquitted charge, so long as the conduct has been proved by a

preponderance of the evidence." -- S. Ct. -- (1997).

III.

Verrill

Verrill argues that the district court erred in

sentencing him as a career offender and as an armed career

criminal. Under the guidelines, an individual is considered

a career offender if (1) he was at least 18 years old at the

time he committed the offense for which he is being

sentenced; (2) the offense is a felony and either a crime of

violence or a substance abuse crime; and (3) the defendant

has at least two prior convictions for crimes of violence

and/or substance abuse crimes. U.S.S.G. 4B1.1. Verrill

argues, erroneously, that he does not meet the third

requirement.

A crime of violence is defined, in relevant part,

as a state or federal offense punishable by more than one

year in prison that "is burglary of a dwelling, arson, or

extortion, 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)(ii). Verrill's

presentencing report lists ten prior offenses: three

instances of entering a dwelling with intent to commit

larceny, three instances of breaking and entering, one

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instance of breaking and entering a dwelling with intent to

commit larceny, one instance of breaking and entering with

intent to commit larceny, one instance of possession of a

stolen vehicle, and one instance of escape. Six of the

offenses, at least four of which were clearly crimes of

violence, took place during a four month period when Verrill

was only eighteen years old. He therefore argues that they

should only count as a single offense. Verrill also argues

that none of his later offenses (breaking and entering,

breaking and entering with intent to commit larceny,

possession of a stolen vehicle, and escape) were crimes of

violence or involved a controlled substance.

Whether a particular offense qualifies as a

predicate offense for career offender purposes is reviewed de

novo. United States v. Winter, 22 F.3d 15, 18 (1st Cir.

1994). This court takes a categorical approach and looks to

the statutory definitions rather than the particular facts.

Id; see also Taylor v. United States, 495 U.S. 575, 598

(1990). It is therefore irrelevant that none of the facts

underlying the prior offenses for which Verrill was convicted

involved the use of physical force against another. Verrill

was convicted of breaking and entering and breaking and

entering with intent to commit larceny in violation of R.I.

Gen. Laws 11-8-4. On very similar facts, this court has

held that violation of that statute constitutes a crime of

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violence for career offender purposes. United States v.

Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992). After all, burglars

may resort to violence if someone arrives while the burglary

is in progress. United States v. Patterson, 882 F.2d 595,

604 (1st Cir. 1989). Verrill's record shows, apart from his

activities when he was eighteen, that he has the requisite

two prior convictions to qualify as a career offender.

The district court's calculation of an offense

level of 34 is correct if Verrill is either a career offender

or an armed career criminal. Having determined that Verrill

was correctly sentenced as a career offender, there is no

need to reach the question of whether he also qualified as an

armed career criminal. Nor is there a need to reach any of

his other sentencing claims.9

Affirmed.

9. The district court only addressed these other issues to
ensure a complete record in the event that the decision to
sentence Verrill as a career offender and armed career
criminal was reversed on appeal.

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