United States Court of Appeals
For the First Circuit
No. 00-2230
UNITED STATES OF AMERICA,
Appellee,
v.
ROTH CHHIEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Elizabeth L. Prevett, Federal Defender Officer, for
appellant.
William E. Morse, Assistant United States Attorney, with
whom Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant United States Attorney, were on brief, for appellee.
September 24, 2001
SELYA, Circuit Judge. A jury convicted defendant-
appellant Roth Chhien of possessing five grams or more of crack
cocaine, intending to distribute it. See 21 U.S.C. §§
841(a)(1), 841(b)(1)(B)(iii). The district court sentenced him
as a career offender. Chhien now appeals, assigning error both
to the district court's denial of his pretrial motion to
suppress evidence and to its sentencing determination. We
affirm.
I. BACKGROUND
During the afternoon of August 21, 1998, the appellant
— a twenty-nine year old native of Cambodia — drove north on
Interstate Route 93 in Salem, New Hampshire. He was traveling
at the speed limit when he passed a state police cruiser
stationed on the median strip. The cruiser's sole occupant,
trooper Lawrence Holdsworth, observed two violations of state
law: the appellant was driving perilously close to the vehicle
in front of him and his car was equipped with blue-tinted
aftermarket lights.1 Holdsworth, a member of an elite team (the
so-called Enhanced Enforcement Unit) trained to "look beyond the
1
For purposes of this appeal, the appellant effectively
concedes that he violated N.H. Rev. Stat. § 265:25.1 (ordaining
that "[t]he driver of a vehicle shall not follow another vehicle
more closely than is reasonable and prudent") and N.H. Rev.
Stat. § 266:74.ll (proscribing the use of blue-tinted lights on
vehicles other than law enforcement vehicles).
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traffic ticket," i.e., to attempt to ferret out serious criminal
activity while conducting routine traffic patrols, commenced
pursuit.
Holdsworth signaled the appellant to pull his car to
the side of the road. He then approached the driver's side and
asked for the appellant's license and registration. After a
computer check proved unremarkable, Holdsworth ushered the
appellant to the front of his car and inquired about the blue-
tinted lights. The appellant acknowledged having purchased
them, but claimed that he did so without any awareness of the
statutory proscription.
Holdsworth asked if he could conduct a pat-down search
for weapons and the appellant acquiesced. During the frisk,
Holdsworth felt something "hard" — a "substantial lump" — in the
appellant's right front pants pocket. When he inquired about
the object, the appellant responded that it was a large wad of
cash, totaling $2,000.
Holdsworth grew increasingly suspicious. He began to
question the appellant about where he had been and where he was
going. The appellant told him that he had bought some stereo
equipment in Lowell, Massachusetts, and was heading to his home
in Franklin, New Hampshire. He asserted that he had made no
stops along the way. The trooper then crossed over to the
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passenger side of the vehicle and posed a similar set of
questions to the appellant's companion, Melanie Baker (who had
remained seated inside the car throughout the initial phase of
the highway stop). Baker verified the trip to Lowell and the
purchase of stereo equipment. When asked if she and the
appellant had made any other stops, she mentioned that they had
driven to the Lowell home of one of the appellant's relatives.
Once there, she waited in the car while the appellant went
inside.
Returning to the appellant (who was still standing near
the front of the car), Holdsworth probed the discrepancy. The
appellant immediately amended his story and confirmed that he
and Baker had stopped at the home of one of his relatives for a
brief visit. But another discrepancy emerged: according to the
appellant, both he and Baker had entered the dwelling.
Disturbed by these contradictions, Holdsworth repaired
to his cruiser and radioed for assistance. Trooper Timothy
Stearns, another member of the Enhanced Enforcement Unit,
arrived within a minute or so. Holdsworth was drafting a
warning. As the troopers conversed, they noticed Baker's head
sink from view and then bob up and down. Curious about these
awkward movements, Holdsworth directed Stearns to investigate.
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Stearns approached the vehicle. Baker's hands were
clenched and Stearns asked to see them. Baker refused.
Stearns, fearing that Baker had a gun, unsnapped his holster,
renewed his demand, and hollered to Holdsworth "she won't show
me her hands!" Holdsworth sprang from the cruiser and ran to
assist. When Stearns repeated his request, Baker finally
unclenched her fists and raised both hands. At that point,
Holdsworth yanked her from the car. The troopers then noticed
in plain view on the front passenger seat a small plastic bag
containing white powder.
The troopers immediately concluded that the white
powder was contraband.2 Arrests, Miranda warnings, see Miranda
v. Arizona, 384 U.S. 436, 444-45 (1966), and further questioning
followed apace. During this brief roadside interrogation, the
appellant admitted that the plastic bag contained crack cocaine
purchased in Lowell. Baker confirmed this tale, adding that she
had tried to conceal the contraband when Holdsworth intervened.
The troopers then transported the suspects to a nearby station
house.
On September 9, 1998, a federal grand jury indicted the
appellant for possession with intent to distribute five grams or
2They were correct. Later analysis revealed that the
plastic bag contained twenty-eight grams of cocaine base.
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more of crack cocaine.3 See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(iii). In due course, the appellant moved to
suppress both the drugs and his statements at the scene of the
highway stop. After conducting an evidentiary hearing, the
district court denied the motion. The court concluded that the
roadside confrontation had lasted no longer than five minutes
from start to finish; that this brief detention was reasonable,
given the patent motor vehicle violations; that the appellant
voluntarily consented to the pat-down search; and that, in all
events, the pat-down search and the questioning that followed
did not lead to the discovery of the contraband. Rather, it was
the troopers' legitimate fear for their own safety, sparked by
Baker's movements, that prompted them to remove her from the car
and displayed the crack cocaine in plain view. This, in turn,
gave rise to probable cause for the subsequent arrests and
interrogation.
Following some procedural skirmishing (not material
here), the case went to trial in September of 2000. The jury
found the appellant guilty as charged. The district court
thereafter classified him as a career offender and imposed a
228-month prison sentence. This appeal ensued. In it, the
3
The grand jury indicted Baker as well, but the government
dropped that charge following her enrollment in a pretrial
diversion program. She is not a party to this appeal.
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appellant argues that the lower court erred both in denying his
motion to suppress and in fashioning his sentence. We address
these assignments of error separately.
II. THE FOURTH AMENDMENT ISSUE
When reviewing the district court's disposition of a
motion to suppress, we accept the court's findings of fact
unless clearly erroneous and evaluate its legal conclusions de
novo. United States v. Sowers, 136 F.3d 24, 26 (1st Cir. 1998);
United States v. Schaffer, 87 F.3d 562, 565 (1st Cir. 1996).
Here, the appellant's principal contention is that impermissible
police tactics transformed a routine highway stop into an
unconstitutional fishing expedition — an expedition that
ultimately led to the contraband and the confession. To place
this contention into perspective, we begin by discussing the
legal framework surrounding such stops. Moving from the general
to the specific, we then grapple with the various components of
the appellant's argument.
A. The Legal Landscape.
A traffic stop, by definition, embodies a detention of
the vehicle and its occupants. It therefore constitutes a
seizure within the purview of the Fourth Amendment. Delaware v.
Prouse, 440 U.S. 648, 653 (1979). This means, of course, that
the stop must be supported by a reasonable and articulable
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suspicion of criminal activity, see Berkemer v. McCarty, 468
U.S. 420, 439 (1984), and that the detention must be reasonable
under the circumstances, United States v. Whren, 517 U.S. 806,
809-10 (1996).
Reasonable suspicion, as the term implies, requires
more than a naked hunch that a particular person may be engaged
in some illicit activity. United States v. Sokolow, 490 U.S. 1,
7 (1989). By the same token, however, reasonable suspicion does
not require either probable cause or evidence of a direct
connection linking the suspect to the suspected crime. United
States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v.
Velez-Saldana, 252 F.3d 49, 52 (1st Cir. 2001). Reasonable
suspicion, then, is an intermediate standard — and one that
defies precise definition. Its existence must be determined
case by case, and that determination entails broad-based
consideration of all the attendant circumstances. Florida v.
Royer, 460 U.S. 491, 500 (1983). In mulling those
circumstances, an inquiring court must balance "the nature and
quality of the intrusion on personal security against the
importance of the governmental interests alleged to justify the
intrusion." Sowers, 136 F.3d at 27 (quoting United States v.
Hensley, 469 U.S. 221, 228 (1985)). To keep this balance true,
the court must make a practical, commonsense judgment based on
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the idiosyncracies of the case at hand. Ornelas v. United
States, 517 U.S. 690, 695-96 (1996).
To work the calculus of reasonable suspicion in the
context of a traffic stop, an inquiring court must ask whether
the officer's actions were justified at their inception, and if
so, whether the officer's subsequent actions were fairly
responsive to the emerging tableau — the circumstances
originally warranting the stop, informed by what occurred, and
what the officer learned, as the stop progressed. Sowers, 136
F.3d at 27. Formulating the answers to these queries demands a
margin of flexibility. After all, while an officer's actions
must bear some relation to the purpose of the original stop, he
may shift his focus and increase the scope of his investigation
by degrees if his suspicions mount during the course of the
detention. Id.; see also Terry v. Ohio, 392 U.S. 1, 10 (1968)
(observing that "the police are in need of an escalating set of
flexible responses, graduated in relation to the amount of
information they possess").
B. The Merits.
In this instance, the appellant does not question the
legitimacy of the initial detention: Holdsworth clearly had
cause to stop him for tailgating and operating an automobile
equipped with blue-tinted lights. See supra note 1. He asserts
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instead that Holdsworth exceeded the scope of a permissible
traffic stop by conducting an unnecessary, unauthorized pat-down
search and wandering far afield in his questioning.
The appellant's thesis proceeds along the following
lines. The pat-down search was involuntary, despite the
apparent consent, because Holdsworth still held the appellant's
license and registration, rendering the confrontation unduly
coercive. Even if the frisk passes muster, this thesis runs,
Holdsworth's query about the bulge in the appellant's pocket was
beyond the pale because it did not pertain either to the
trooper's safety or to the underlying traffic violations.
Moreover, the questions concerning the appellant's itinerary
also were out of bounds. The combination of these toxic
ingredients — the coerced pat-down search and the improper
questions — impermissibly prolonged the detention and led
Holdsworth to call for assistance; the delay made Baker nervous,
inducing her to squirm in her seat; this fidgeting ultimately
led the troopers to the contraband; and that discovery prompted
the appellant's confession. Cf. The Real Mother Goose 82-104
(1916) ("For want of a nail . . . . the kingdom was lost.").
Thus, the appellant concludes, the district court should have
excluded the drugs and the incriminating statements as the
rotten fruit of a tainted traffic stop.
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This argument is cleverly constructed and ably
presented, but it cannot withstand careful scrutiny. In our
view, the consensual pat-down search was fully appropriate and
yielded information which gave Holdsworth reasonable suspicion
to continue on the minimally intrusive path that he chose to
pursue. The questions that followed the frisk, though not
directly linked to the purposes of the stop, were reasonably
related to automobile travel in general and neither
fundamentally altered the nature of the detention nor
unreasonably prolonged it. Thus, we reject the appellant's
argument.4
We start with the pat-down search — which amounts to
a Terry stop within a Terry stop. Normally, Holdsworth would
have needed some justification (such as a reasonable fear for
his own safety) beyond the traffic violations simplicter to
engage in it. See Terry, 392 U.S. at 27. In this case,
however, the appellant explicitly consented to the frisk. The
district court found specially that this consent was voluntary.
Unless this finding is clearly erroneous, we must accept it.
4We are cognizant that our reasoning differs somewhat from
that of the district court, but we may affirm a district court's
suppression ruling on any ground made manifest by the record.
See, e.g., United States v. Doe, 61 F.3d 107, 111-12 (1st Cir.
1995).
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See United States v. Coraine, 198 F.3d 306, 308-09 (1st Cir.
1999).
We discern no error. Consent is voluntary if it is
"the product of an essentially free and unconstrained choice."
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (citation
omitted). There is not a shred of evidence here that Holdsworth
tricked, threatened, or bullied the appellant into agreeing to
the pat-down search.
In an effort to fill this void, the appellant argues
that the situation itself was inherently coercive (and, thus,
that he could not have consented voluntarily).5 But the traffic
stop occurred in broad daylight, on a major thoroughfare. At
the time of Holdsworth's request, his sidearm was holstered and
he was the only trooper present. Although he still had the
appellant's license and registration in hand, that fact alone
does not vitiate the operator's consent. See United States v.
Purcell, 236 F.3d 1274, 1281-82 (11th Cir.) (holding consent to
search voluntary despite officer's retention of operator's
license and registration during traffic stop), cert. denied, 121
5The appellant also suggests that his consent was
involuntary because the trooper did not inform him that he could
decline to permit a search. This suggestion overlooks that the
Supreme Court has held, recently and squarely, that an officer
conducting a highway stop need not inform the driver that he is
free to go before requesting permission to conduct a search.
Ohio v. Robinette, 519 U.S. 33, 40 (1996).
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S. Ct. 2615 (2001); see also Florida v. Bostick, 501 U.S. 429,
435-36 (1991) (explaining that consent can be voluntary even
though the detainee does not feel free to leave); United States
v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993) (stating that
custody alone does not create the kind of coercive atmosphere
that abrogates consent).
The short of it is that, in most cases, the
voluntariness of consent is a matter of fact to be determined
from all the circumstances. Schneckloth, 412 U.S. at 248-49.
The district court obviously understood that reality and found
the facts with care. Based on its supportable factual findings,
we uphold the constitutionality of the pat-down search.
In an effort to blunt the force of this conclusion, the
appellant argues that, even if his consent was validly obtained,
Holdsworth exceeded the scope of a consensual pat-down search.
This argument hinges on the assertion that the trooper should
not have asked about the bulge in the appellant's pocket because
he knew that the bulge was not a weapon. This argument
misconstrues applicable Fourth Amendment jurisprudence. While
an officer may not seize an object during a Terry frisk unless
he has probable cause to believe that it is contraband,
Minnesota v. Dickerson, 508 U.S. 366, 376 (1993); United States
v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994), he is not prohibited
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from inquiring, upon reasonable suspicion, into the nature of
that object. So it was here: the origins of the bulge were not
readily apparent — it might well have been a weapon — and
Holdsworth's question was directly pertinent to the safety
concerns that prompted his request for a pat-down search in the
first place. We hold, therefore, that the trooper's inquiry was
well within the boundaries set by the Constitution.
We next proceed to the trooper's questions about the
appellant's peregrinations. When the appellant explained that
he was carrying $2,000 in cash, Holdsworth's suspicions
understandably escalated. Evaluating whether an officer's
suspicions are (or are not) reasonable is a fact-sensitive task,
bound up in the warp and woof of the surrounding circumstances.
Royer, 460 U.S. at 500. In carrying out that task, "[d]eference
is due to the experienced perceptions of the officer[]." United
States v. Woodrum, 202 F.3d 1, 7 (1st Cir.), cert. denied, 531
U.S. 1035 (2000). Mindful of that deference, we conclude that
the trooper's heightened suspicions (and, hence, his continued
questioning) were reasonable here.
The appellant resists this conclusion, insisting that
the mere possession of a large, unexplained amount of cash,
without more, cannot be the basis for heightened suspicion. As
authority for this proposition, he cites Sokolow, in which the
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Supreme Court indicated that paying for an airline ticket with
$2,100 in cash might be consistent with innocent travel. 490
U.S. at 9. Contrary to the appellant's importunings, this
statement does not mean that the possession of a large,
unexplained sum of cash can never support reasonable suspicion.6
The circumstances matter, as does the degree of intrusiveness of
the continued detention. See Lopez-Lopez v. Aran, 844 F.2d 898,
905 (1st Cir. 1988) (explaining that the degree of intrusiveness
of a stop must be proportional to the degree of suspicion that
prompted the intrusion); United States v. Berryman, 717 F.2d
651, 657 (1st Cir. 1983) (similar). In the circumstances of
this case, we rule that the discovery of the cash justified a
brief period of additional questioning. Cf. Conrod v. Davis,
120 F.3d 92, 97 (8th Cir. 1997) (holding that discovery of
$6,000 cash in a suspect's pocket and $4,000 in his suitcase
furnished reasonable suspicion).
This brings us to the nature of the questioning. The
appellant asseverates that travel questions, unrelated to the
purpose of the original stop, are highly intrusive, unsupported
by reasonable suspicion of a separate crime, and therefore not
6Indeed, in Sokolow itself the Court held that the cash
purchase, together with other indicia, supported a reasonable
suspicion sufficient to justify an investigative stop. 490 U.S.
at 11.
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permissible in the course of the highway stop. We disagree: we
believe that this line of inquiry was lawful under the
circumstances.
The appellant strives to paint the picture in black and
white. Citing cases such as United States v. Childs, 256 F.3d
559, 566 (7th Cir. 2001), and United States v. Holt, 229 F.3d
931, 936 (10th Cir. 2000),7 he asserts that an officer carrying
out a traffic stop must have some reasonable, substantial, and
independent source of suspicion about a different crime before
he can ask questions unrelated to the violation that justified
the stop in the first place. But that depends on the nature of
the questions. Both of the cited cases involved traffic stops
of persons previously suspected of other crimes, during which
the officers, for no apparent cause, began to ask directly
inculpatory questions involving the antecedent crimes. See
Childs, 256 F.3d at 561-62, 566 (involving questions about drug
possession during a stop for a broken windshield); Holt, 229
F.3d at 933, 940 (involving questions about weapons during a
7 We do not dwell on the appellant's reference to United
States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999). The stop
there lasted for nearly half an hour, id. at 1218, and the
Eleventh Circuit subsequently limited Pruitt to situations in
which the unrelated questions unreasonably prolonged the search.
See Purcell, 236 F.3d at 1280. Here, however, the district
court supportably found that the entire stop lasted no more than
five minutes, and there is no proof of unreasonable
prolongation.
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stop for a seatbelt violation). Such scenarios, in which an
officer stops a car for a minor traffic infraction and asks a
known suspect pointed questions about a serious crime unrelated
to the original violation, raise legitimate concerns about abuse
of authority. See Whren, 517 U.S. at 810 (acknowledging the
temptation to use traffic stops as a means of investigating
unrelated criminal activity).
The case at bar does not lend itself to this sort of
black-and-white characterization, but, rather, involves more
muted shades of gray. Here, the record contains no evidence
that the stop was a pretext to furnish the trooper with a forum
to ask questions about other crimes; prior to this encounter,
Holdsworth neither knew the appellant nor knew of him. The
record is equally barren of any evidence that the trooper's
membership in the Enhanced Enforcement Unit impermissibly
colored his approach. More important, Holdsworth did not stray
far afield, merely posing a few prosaic questions about the
appellant's itinerary: where he and his passenger had been,
where they were going, and whether they had stopped along the
way. Routine questioning of this sort, even when not directly
related to the violations that induced the stop in the first
place, is not uncommon during a highway stop. See, e.g., United
States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (upholding
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"routine questioning" about travel plans during stop for
speeding); United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir.
1995) (similar).
To cinch matters, it was not until Holdsworth's
suspicions were aroused by the large, unexplained wad of cash
that his questioning expanded beyond the bare bones of the
traffic stop and the consensual frisk. Since the trooper
lawfully learned about the cash — the appellant, after all,
consented to the pat-down search and voluntarily described the
composition of the discerned bulge — that discovery elevated his
suspicions to a degree sufficient to continue the detention
briefly and in a minimally intrusive way. See Sowers, 136 F.3d
at 27 (approving increasingly intrusive unrelated questions
after suspicions escalated during a traffic stop); United States
v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) ("If the
responses of the detainee and the circumstances give rise to
suspicions unrelated to the traffic offense, an officer may
broaden his inquiry and satisfy those suspicions."). The travel
questions that followed were within the ambit of that authority,
and any effect they might have had on the duration of the
detention — and the state of Baker's nerves — was therefore
permissible. Consequently, both the bag of crack cocaine and
the appellant's incriminating statements were lawfully obtained.
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III. THE SENTENCING ISSUE
The appellant's second complaint involves sentencing.
Based on the weight of the seized crack cocaine, the district
court initially set the appellant's base offense level at 28.
See USSG §§2D2.1(b)(1), 2D1.1(c)(6) (Nov. 1998). The court then
determined that the appellant was a career offender and adjusted
his offense level to 34. See id. §§4B1.1, 4B1.2.8 This yielded
a guideline sentencing range of 262-327 months. The district
court departed downward, however, and imposed a sentence of 228
months. See id. §4A1.3 (authorizing a downward departure if the
defendant's criminal history category significantly exaggerates
the gravity of his criminal past or the likelihood of
recidivism).
To be sure, the sentence seems severe. But appellate
courts do not have the luxury of resolving sentencing appeals
based upon subjective value judgments. The pivotal question,
then, is whether the sentence conforms to the guidelines.
The appellant posits that the district court
erroneously classified him as a career offender. A defendant is
8
The career offender guideline specifies an offense level of
34 where the statutory maximum sentence for the count of
conviction is 25 years or more (but less than life in prison).
See USSG §4B1.1. The statutory maximum for possession with
intent to distribute five grams or more of crack cocaine is 40
years. See 21 U.S.C. § 841(b)(1)(B)(iii).
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a career offender if "(1) the defendant was at least eighteen
years old at the time the defendant committed the instant
offense; (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense,
and (3) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense." Id. §4B1.1. The appellant unarguably meets the first
two benchmarks. The issue here is whether the court
appropriately considered, as predicate offenses sufficient to
satisfy the third requirement, the appellant's prior convictions
for three counts of burglary of a commercial dwelling in
violation of N.H. Rev. Stat. § 635:1.
In the last analysis, the appellant's claim reduces to
his insistence that his prior state-court convictions for
commercial burglary should not count as "crime[s] of violence"
under the third furculum of the career offender guideline.
Deciding where state-law crimes fit along a federal continuum is
tricky business. In this instance, however, the decisional path
is well-trodden. We conclusively answered the question that the
appellant seeks to raise in United States v. Fiore, 983 F.2d 1
(1st Cir. 1992). There, dealing with a materially
indistinguishable Rhode Island burglary statute, we held that
burglary of a commercial premise constitutes a crime of violence
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within the purview of the career offender guideline. Id. at 4-
5.
That effectively ends this aspect of the matter.
Although the circuits are split — some courts have followed
Fiore's lead, see, e.g., United States v. Wilson, 168 F.3d 916,
926 (6th Cir. 1999); United States v. Haskell, 76 F.3d 902, 905
(8th Cir. 1996), whereas others have reached a different
conclusion, see, e.g., United States v. Spell, 44 F.3d 936, 938
(11th Cir. 1995); United States v. Smith, 10 F.3d 724, 732-33
(10th Cir. 1993) (per curiam) — we have stalwartly adhered to
Fiore. See, e.g., United States v. Sawyer, 144 F.3d 191, 196
(1st Cir. 1998). This is in keeping with "the law of the
circuit" doctrine. That doctrine holds a prior panel decision
inviolate absent either the occurrence of a controlling
intervening event (e.g., a Supreme Court opinion on the point;
a ruling of the circuit, sitting en banc; or a statutory
overruling) or, in extremely rare circumstances, where non-
controlling but persuasive case law suggests such a course. See
Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995).
Neither circumstance exists here.
The appellant has two rejoinders. First, he draws our
attention to Stinson v. United States, 508 U.S. 36 (1993), a
case in which the Supreme Court held that the Sentencing
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Commission's guideline commentary comprises binding authority.
Id. at 46-47. Stinson does not aid the appellant's cause.
Although Fiore drew on outside sources to elucidate the meaning
of the guidelines where the commentary was opaque, the Fiore
court scrupulously applied the discerned dictates of the
commentary. See Fiore, 983 F.2d at 4-5. Thus, Stinson
supports, rather than undermines, our prior decision.
The appellant next suggests that this court has
emasculated Fiore. In an effort to sustain this suggestion, the
appellant cites two cases. In the first, United States v.
Peterson, 233 F.3d 101, 107-10 (1st Cir. 2000), we held that
breaking and entering without any intent to commit a crime is
not a violent felony under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e). Unlike commercial burglary, however, the
breaking and entering charge in Peterson did not require proof
of specific intent. The second case is also an ACCA case,
United States v. Dueno, 171 F.3d 3 (1st Cir. 1999). We
recognized there that, in certain circumstances, definitional
differences exist between the ACCA and the career offender
guideline. Id. at 6.
We fail to see how either of these opinions casts doubt
upon Fiore — a guideline case. In all events, overrulings by
implication are disfavored, and, in the best of circumstances,
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a panel ought not lightly presume the implicit overruling of an
established circuit precedent. See Stewart v. Dutra Constr.
Co., 230 F.3d 461, 467 (1st Cir. 2000). We see no principled
basis for departing from the settled law of the circuit in this
instance. Accordingly, we adhere to our prior holding that
burglary of a commercial premise is a crime of violence within
the purview of the career offender guideline.
IV. CONCLUSION
We need go no further. For the reasons stated, we
reject the appellant's attacks on both his conviction and his
sentence.
Affirmed.
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