United States v. Damon

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

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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,

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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.

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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 --

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(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.

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"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

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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

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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

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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

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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).

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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.

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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."

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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

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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).

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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.

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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

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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

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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.

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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.

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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,

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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.

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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.

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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.

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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."

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