United States v. Eirby

United States Court of Appeals
For the First Circuit

No. 07-1062

UNITED STATES OF AMERICA,

Appellee,

v.

KENNETH J. EIRBY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]

Before

Lynch, Circuit Judge,
Selya and Siler,* Senior Circuit Judges.

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass
& MacColl, LLC, P.A., was on brief, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom
Paula D. Silsby, United States Attorney, was on brief, for
appellee.

February 7, 2008

*
Of the Sixth Circuit, sitting by designation.
 SELYA, Senior Circuit Judge. Defendant-appellant Kenneth

J. Eirby appeals from an order revoking his supervised release term

and imposing an additional thirty-three months of immurement. He

contends that the district court erred in (i) failing to recognize

that the Sixth Amendment, as interpreted in a line of recent

Supreme Court decisions, applies to revocation proceedings and the

consequent imposition of additional prison time; (ii)

mischaracterizing his underlying offense of conviction; and (iii)

misclassifying the conduct that comprised his supervised release

violation. Concluding, as a matter of first impression, that a

conviction under the Maine statute violated by the appellant, 17-A

M.R.S.A. § 254(1)(A-2), is a crime of violence and finding the

appellant's other claims of error equally unpersuasive, we affirm

the judgment below.

I. BACKGROUND

We assume the reader's familiarity with our earlier

opinion upholding the appellant's original conviction and sentence

on direct review. See United States v. Eirby (Eirby I), 262 F.3d

31 (1st Cir. 2001). Consequently, we rehearse here only those

facts directly pertinent to this appeal.

In 1999, the authorities caught the appellant red-handed

as he tried to peddle drugs. A federal grand jury returned an

indictment and, in due course, the appellant pleaded guilty to

count 1 of that indictment. That count, the text of which is

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reproduced in an appendix to our opinion in Eirby I, id. at 41,

charged the appellant with conspiring to distribute cocaine base

(crack cocaine) in violation of 21 U.S.C. §§ 846 & 841(a)(1).

Following the district court's acceptance of the guilty

plea, a dispute arose regarding the applicable sentencing

provision. To understand that dispute, it is important to recall

that 21 U.S.C. § 841(b)(1) sets out a three-tiered type-and-

quantity-driven sentencing regime for violations of section

841(a)(1). The least onerous of these tiers, set out in section

841(b)(1)(C), prescribes the penalties that apply when only

relatively small amounts of drugs are implicated or when no drug

quantity is specified. That tier is not in issue here, and we make

no further reference to it.

The remaining two tiers, set out in sections 841(b)(1)(A)

and 841(b)(1)(B), respectively, prescribe differing penalties

depending upon drug type and quantity. On the one hand, section

841(b)(1)(A) provides a sentencing span ranging from ten years to

life imprisonment for covered offenses involving fifty or more

grams of cocaine base. On the other hand, section 841(b)(1)(B)

establishes a sentencing span ranging from five to forty years for

covered offenses involving five or more grams of cocaine base (but

less than fifty grams).

In the instant case, both the indictment and the written

plea agreement referenced section 841(b)(1)(B). Nevertheless, the

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district court realized, after reviewing the presentence

investigation report (PSI Report), that the quantity of drugs

involved implicated section 841(b)(1)(A). Recognizing that the

indictment mentioned section 841(b)(1)(B), but not section

841(b)(1)(A), the court invited the appellant to withdraw his plea.

After a five-week period of contemplation, the appellant declined

the invitation.

At the disposition hearing, the court — relying on the

PSI Report and a stipulation — found the appellant responsible for

one hundred forty-seven grams of cocaine base.1 The court then

concluded, over objection, that this drug quantity placed the

appellant under the aegis of section 841(b)(1)(A) for sentencing

purposes. After placing the appellant in criminal history category

II and granting a three-level reduction for acceptance of

responsibility, USSG §3E1.1, the court fixed the guideline

sentencing range at 97-121 months. It then acknowledged the

applicability of a ten-year mandatory minimum sentence, 21 U.S.C.

§ 841(b)(1)(A); departed downward for substantial assistance, USSG

§5K1.1; and imposed a sixty-six month incarcerative sentence, to be

followed by five years of supervised release. The court subjected

the latter term to the standard supervised release conditions,

1
The parties stipulated that the appellant was responsible for
between fifty and one hundred fifty grams of cocaine base. Eirby
I, 262 F.3d at 35.

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including a prohibition against the commission of future crimes.

See 18 U.S.C. § 3583(d).

On direct review, the appellant argued that the district

court's decision to sentence him under section 841(b)(1)(A), rather

than section 841(b)(1)(B), usurped the grand jury's institutional

prerogatives. We rejected that argument, emphasizing that the

indictment's reference to section 841(b)(1)(B) was intended to

place the appellant on notice of the range of possible penalties

and that the appellant had suffered no prejudice because the

district court had afforded him an opportunity to withdraw his

plea. Eirby I, 262 F.3d at 37-38.

At the same time, we rejected the appellant's claim of

Apprendi error. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

We observed that while Apprendi established that "a finding of drug

quantity which increases a defendant's sentence beyond the

otherwise applicable statutory maximum must be proved to the jury

beyond a reasonable doubt," Eirby I, 262 F.3d at 36, the sentence

appealed from was well below section 841(b)(1)(B)'s forty-year

maximum. Id. at 38-39. In that connection, we made short shrift

of the appellant's claim that the application of section

841(b)(1)(A) subjected him to a higher potential sentence, noting

that "the Apprendi doctrine [is] concerned with actual sentences as

opposed to potential sentences." Id. at 39 (emphasis in original).

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 Having lost his appeal, the appellant proceeded to serve

his sentence. We fast-forward to December of 2005 — a point some

seven months after his release from prison and the commencement of

his term of supervised release. At that time, Maine state

authorities charged that he, then thirty-nine years of age, had

unlawfully engaged in sex acts with a fourteen-year-old girl. A

state grand jury followed up with a five-count indictment.

Pertinently, count 5 of that indictment charged the appellant with

sexual abuse of a minor in violation of 17-A M.R.S.A. § 254(1)(A-

2).

In due season, the appellant pleaded guilty to three of

the state counts (including count 5). The state court sentenced

him to four years in prison. Shortly thereafter, a federal

probation officer petitioned the district court to revoke the

appellant's supervised release.

At the revocation hearing, the district court rejected

the appellant's demand for a jury trial. The court then found a

violation of the "criminal activity" prohibition and revoked the

appellant's supervised release term. See USSG §7B1.3(a)(1).

Concluding that the underlying conspiracy conviction was for a

Class A felony, 18 U.S.C. § 3559(a)(1), and that the state

conviction constituted a Grade A violation of supervised release

because it was a crime of violence, USSG §§4B1.2(a),

7B1.1(a)(1)(A)(i), the court sentenced the appellant to an

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additional incarcerative term of thirty-three months, consecutive

to his state sentence. This timely appeal ensued.

II. ANALYSIS

Before us, the appellant advances three assignments of

error. These embody the district court's refusal to recognize the

applicability of the Sixth Amendment in the revocation proceedings,

its characterization of his underlying conspiracy conviction as a

Class A felony, and its classification of his state conviction as

a Grade A violation of supervised release. We address these

contentions sequentially.

A. The Sixth Amendment.

The appellant's first claim of error is premised on the

notion that the district court violated his Sixth Amendment rights

when it denied him a trial by jury with respect to the revocation

proceeding. As we explain below, this claim is jejune.

It is settled law that once a court imposes a fixed

sentence in a criminal case, subsequent proceedings in regard to

that sentence are not subject to the full panoply of Sixth

Amendment protections. See Johnson v. United States, 529 U.S. 694,

700 (2000) (supervised release); Morrissey v. Brewer, 408 U.S. 471,

480-81 (1972) (parole). Mindful of these decisions, we held

squarely in United States v. Work, 409 F.3d 484 (1st Cir. 2005),

that the Sixth Amendment's right to trial by jury does not extend

to supervised release revocation proceedings. See id. at 491-92.

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That ends the matter: in a multi-panel circuit, a newly constituted

panel ordinarily is bound by prior panel decisions directly or

closely on point. See, e.g., Dominion Energy Brayton Point, LLC v.

Johnson, 443 F.3d 12, 18 (1st Cir. 2006); United States v. Guzmán,

419 F.3d 27, 31 (1st Cir. 2005).

The appellant attempts to confess and avoid. Even though

he acknowledges that Work is materially indistinguishable from the

case at hand, he points out that there is a narrow exception to the

"law of the circuit" rule in the event of supervening authority

from, say, a higher court. See United States v. Chhien, 266 F.3d

1, 11 (1st Cir. 2001) (framing exception in terms of "a controlling

intervening event"). Based on this exception, he exhorts us to

reconsider Work in light of the Supreme Court's decision in United

States v. Booker, 543 U.S. 220, 244 (2005). That exhortation has

little to commend it.

First and foremost, the appellant's time line is muddled.

Booker does not post-date Work; indeed, the Work court explicitly

rejected a claim that the district court had committed Booker error

in imposing sentence. See Work, 409 F.3d at 492.

At any rate, Booker in no way undermines Work's legal

foundation. Booker did not presume to overturn the limited

applicability of Sixth Amendment protections in post-sentence

proceedings. Cases to that effect, of which Johnson, 529 U.S. at

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700, and Morrissey, 408 U.S. at 480-81, are exemplars, remain good

law.

To be sure, the appellant takes a contrary view. He

insists that Booker signaled a shift in the tectonic plates of

federal sentencing jurisprudence, requiring that all factual

findings that impact any aspect of a criminal defendant's sentence

must be made by a jury. That argument is neither original nor

convincing, and we previously have rejected such an expansive

interpretation of Booker. See, e.g., United States v. Lizardo, 445

F.3d 73, 90 (1st Cir. 2006); United States v. Antonakopoulos, 399

F.3d 68, 75 (1st Cir. 2005). We reaffirm those holdings today.

The short of it is that Booker constrains judicial

factfinding only in a mandatory guideline sentencing regime. See

Antonakopoulos, 399 F.3d at 75. The guidelines governing the

revocation of supervised release, USSG §§7B1.1-7B1.5, have always

been advisory. See United States v. O'Neil, 11 F.3d 292, 301 n.11

(1st Cir. 1993); see also Work, 409 F.3d at 492. Thus, no

conceivable Booker error transpired here.

B. Class A Felony.

The appellant's next assignment of error challenges the

sentencing court's characterization of his underlying conspiracy

conviction as a conviction for a Class A felony. We review this

quintessentially legal determination de novo. See United States v.

Robinson, 433 F.3d 31, 35 (1st Cir. 2005).

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 We begin with a sketch of the pertinent legal landscape.

The governing statute authorizes reincarceration for violations of

supervised release conditions. See 18 U.S.C. § 3583(e)(3). The

statutory scheme also establishes ceilings on the lengths of new

imprisonment terms. See id. These ceilings depend in part on the

seriousness of the underlying offense of conviction. See United

States v. Tapia-Escalera, 356 F.3d 181, 185 (1st Cir. 2004). The

sentencing guidelines contain a similar calibration. See USSG

§7B1.4.

The gravity of an underlying offense, for both statutory

and guideline purposes, is measured through the lens of 18 U.S.C.

§ 3559(a), which establishes a letter-grade classification regime.

Under this taxonomy, offenses carrying a maximum penalty of life

imprisonment are categorized as Class A felonies. Id. §

3559(a)(1). Those carrying maximum terms of twenty-five years or

more but less than life imprisonment are categorized as Class B

felonies.2 Id. § 3559(a)(2). Supervised release violators who

stand convicted of Class A felonies can receive additional

sentences of up to five years. Id. § 3583(e)(3). Those who stand

convicted of Class B felonies are subject to additional sentences

of up to three years. Id.

2
Other parts of the taxonomy are not relevant here.
Consequently, we do not discuss them.

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 The district court determined that the appellant had

committed a Class A felony because he had been sentenced under 21

U.S.C. § 841(b)(1)(A), which provides for a maximum sentence of

life imprisonment. In endeavoring to impeach this determination,

the appellant resurrects a claim advanced in his earlier appeal:

that he was entitled to be sentenced under section 841(b)(1)(B),

not section 841(b)(1)(A). Building on that foundation, he argues

that since a life sentence was never "authorized" under the

appropriate penalty provision, he should have been treated as

having committed a Class B felony.3

The appellant's attempt to pin his hopes on section

841(b)(1)(B) failed in his earlier appeal, and his arguments are no

more robust the second time around. In Eirby I, we rejected this

claim and affirmed the underlying conviction and sentence under

section 841(b)(1)(A). See Eirby I, 262 F.3d at 37-39. The

appellant cannot employ his present appeal as a vehicle for

mounting a collateral attack on that holding. See, e.g., United

States v. Pérez-Ruiz, 421 F.3d 11, 14 (1st Cir. 2005); United

States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004).

In all events, the appellant's effort to countermand our

earlier opinion rests on an insupportable premise: the misguided

3
The court sentenced the appellant to an additional term of
imprisonment (thirty-three months) that was within the compendium
of sentences allowed for violators who originally had committed
Class B felonies. We assume arguendo, but do not decide, that this
ground of appeal is not rendered moot by that circumstance.

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notion that Eirby I held that the appellant could not have been

sentenced above the forty-year ceiling imposed by section

841(b)(1)(B). We made no such holding in Eirby I — and the

appellant's argument to the contrary entails a gross misreading of

that decision.

There, we emphasized that an Apprendi error cannot occur

unless the sentence actually imposed is greater than the otherwise

applicable statutory maximum. See Eirby I, 262 F.3d at 37. Since

the sentence actually imposed by the district court fell below the

maximum authorized by either section 841(b)(1)(A) or section

841(b)(1)(B), no Apprendi error occurred. Id. at 37, 39. We

expressed no opinion about the constitutionality vel non of

imposing a sentence above section 841(b)(1)(B)'s forty-year

ceiling.

Moreover, our decision never concluded — nor even

intimated — that section 841(b)(1)(B) was the correct sentencing

provision. The opposite is true; we repeatedly characterized the

indictment's reference to section 841(b)(1)(B) as "mistaken." Id.

at 37, 38.

Although it may be frosting on the cake, we add that

there could have been no Apprendi error in the original sentence.

The record makes manifest that the sentence actually imposed was

anchored in the appellant's own admission: before being sentenced

on the conspiracy charge, he stipulated that he was responsible for

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between fifty and one hundred fifty grams of cocaine base. Thus,

the factual finding that the appellant was responsible for a

quantity of cocaine base sufficient to trigger section 841(b)(1)(A)

was within the contemplation of the facts to which the appellant

admitted. Factfinding premised on a defendant's admissions is not

a practice invalidated by Apprendi.4 See United States v.

Buonocore, 416 F.3d 1124, 1134 (10th Cir. 2005); United States v.

Shelton, 400 F.3d 1325, 1329-30 (11th Cir. 2005); see also Booker,

543 U.S. at 244.

C. Crime of Violence.

The appellant's last assignment of error concerns the

classification of his sex crime (count 5 of the state court

indictment) as a crime of violence (and, thus, a Grade A violation

of his supervised release). In order to gain perspective, we

repair to the applicable sentencing guidelines.

Beyond the "class" of the original offense of conviction,

the lawful ambit of a supervised release revocation sentence

depends on the "grade" of the crime comprising the supervised

4
The appellant makes a belated claim that the sentencing
court's decision to treat him as having committed a Class A felony
"prejudices" him and suggests that this "prejudice" raises Apprendi
concerns. Appellant's Reply Br. at 7. This argument is so
confusingly constructed and lacking in coherence that we deem it
abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). To cinch matters, issues (like this one) advanced for the
first time in an appellant's reply brief are deemed to have been
waived. See Forcier v. Metro. Life Ins. Co., 469 F.3d 178, 183
(1st Cir. 2006); Cipes v. Mikasa, Inc., 439 F.3d 52, 55 (1st Cir.
2006).

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release violation. See USSG §7B1.4. Pertinently, a Grade A

violation includes "a federal, state, or local offense punishable

by a term of imprisonment exceeding one year that . . . is a crime

of violence." Id. §7B1.1(a)(1)(A)(i). The guidelines define a

crime of violence in part as an offense embodying conduct that

"presents a serious potential risk of physical injury to another."

Id. §4B1.2(a)(2).

We review classification disputes, like this one, de

novo. See United States v. Richards, 456 F.3d 260, 262 (1st Cir.

2006). In doing so, we employ a categorical approach to determine

whether a given offense constitutes a crime of violence. See

Taylor v. United States, 495 U.S. 575, 600 (1990); United States v.

Sherwood, 156 F.3d 219, 221 (1st Cir. 1998).5

The categorical approach entails a two-step pavane.

First, an inquiring court must examine the text of the statute of

conviction to ascertain whether a violation of that statute

necessarily involves every element of a violent crime. See Taylor,

495 U.S. at 600; Sherwood, 156 F.3d at 221. If the answer is

unambiguously "yes" or "no," the inquiry ends. If, however, the

5
Although the issue in Taylor was whether an offense
constituted a "violent felony" under the Armed Career Criminal Act,
we repeatedly have observed that the terms "crime of violence" and
"violent felony" are mirror images of each other and, consequently,
cases construing one are instructive with respect to the scope of
the other. See Richards, 456 F.3d at 263 n.2; United States v.
Meader, 118 F.3d 876, 882 n.8 (1st Cir. 1997); United States v.
Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).

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statute's language is broad enough to encompass both acts that

constitute violent crimes and acts that do not, the court must take

a second step and determine whether the record of conviction

reveals all the elements of a violent crime. See Shepard v. United

States, 544 U.S. 13, 17 (2005); Taylor, 495 U.S. at 602.

Against this backdrop, we turn to count 5 of the state

court indictment. In connection with that count, the appellant

pleaded guilty to violating a statute that makes it a crime for a

person to "engage[] in a sexual act with another person, not the

actor's spouse, who is either 14 or 15 years of age and the actor

. . . is at least 10 years older than the other person." 17-A

M.R.S.A. § 254(1)(A-2).6 Maine law defines a "sexual act" in

relevant part as "any act between 2 persons involving direct

physical contact between the genitals of one and the mouth or anus

of the other, or direct physical contact between the genitals of

one and the genitals of the other." Id. § 251(1)(C)(1).

In our view, the conduct criminalized by section

254(1)(A-2) categorically poses a serious risk of physical injury.

Several factors lead us to this conclusion.

For one thing, there is a significant risk that force

will be used to perpetrate the crime. After all, child-molestation

crimes "typically occur in close quarters, and are generally

6
Under Maine law, violations of statutes of this genre are
punishable by terms of imprisonment not to exceed five years. See
17-A M.R.S.A. § 1252(2)(C).

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perpetrated by an adult upon a victim who is not only smaller,

weaker, and less experienced, but is also generally susceptible to

acceding to the coercive power of adult authority figures."

Sherwood, 156 F.3d at 221 (citing United States v. Velazquez-Overa,

100 F.3d 418, 422 (5th Cir. 1996)).

For another thing, precedent militates strongly in favor

of this outcome. We consistently have held comparable offenses to

pose a serious risk of physical injury. For example, in Sherwood

we answered affirmatively the question of whether a child-

molestation statute that criminalized sexual contact with a person

under the age of thirteen constituted a crime of violence.

Sherwood, 156 F.3d at 221-22. So too in Richards, where we

addressed the question of whether a statute that criminalized

sexual contact between a child thirteen or younger and someone at

least three years older comprised a violent felony. Richards, 456

F.3d at 260. In each of these instances, we found that the statute

described an offense that categorically posed a serious risk of

physical injury to others.

Last — but far from least — the considerations that

informed our holdings in these cases are equally cogent here.

Those considerations include, among other things, the statutory

description of the offense conduct, the baseline age of the minor,

and the chronological spread between the age of the minor and the

age of the perpetrator. See id. at 263-64; Sherwood, 156 F.3d at

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221-22. Consistency in the use of these criteria compels the

conclusion that the appellant's offense constitutes a crime of

violence: the conduct proscribed by section 254(1)(A-2) is at least

as grave as the conduct found to give rise to a serious risk of

physical injury in Richards and Sherwood; the Maine statute

requires the involvement of youthful victims with similar

vulnerabilities to those protected by the statutes under

consideration in these cases; and the Maine law's mandatory age

differential more than triples the three-year chronological spread

required by the statute in Richards.

The appellant attempts to blunt the force of this

reasoning by observing that one can imagine a number of sexual acts

between a fifteen-year-old girl and a man ten years her senior that

are unlikely to lead to physical injury. That observation misses

the mark. The overarching fact is that a serious risk of physical

injury remains inherent in the proscribed conduct. From a

categorical standpoint, no more is exigible to render the offense

a crime of violence. Cf. Chery v. Ashcroft, 347 F.3d 404, 408 (2d

Cir. 2003) ("Doubtless, cases can be imagined where a defendant's

conduct does not create a genuine probability that force will be

used, but the risk of force remains inherent in the offense")

(emphasis in original).

Our itinerary lists one final port of call. At oral

argument in this court, the appellant posited that our serial

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decisions in United States v. Sacko, 178 F.3d 1 (1st Cir. 1999),

opinion after remand, 247 F.3d 21 (1st Cir. 2001), stand for the

proposition that "May and December" sex crimes (that is, sex crimes

involving young girls and adult men) do not create a serious risk

of physical injury unless the conduct in question includes

penetration. This is whistling past the graveyard. Whatever the

particular facts of the case, neither of our opinions in Sacko

plausibly can be read to hold that penetration is a sine qua non

for a finding that a "May and December" sex crime is a crime of

violence. See Sherwood, 156 F.3d at 221-22 (rejecting the argument

that a sex crime involving mere touching cannot give rise to a

serious risk of physical injury); see also Richards, 456 F.3d at

265 (stating "that the two Sacko decisions, read together, are

completely consistent with Sherwood and with the conclusion we

reach today").7

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we deem the appeal groundless.

7
The appellant proffers a series of Seventh Circuit cases,
see, e.g., United States v. Thomas, 159 F.3d 296, 298-99 (7th Cir.
1998); United States v. Shannon, 110 F.3d 382, 385-89 (7th Cir.
1997) (en banc), in an endeavor to convince us to reevaluate
Richards. Richards is binding on this panel and, in any event,
this court previously has refused to go down the path to which the
appellant points. See Aguiar v. Gonzáles, 438 F.3d 86, 90-91 (1st
Cir. 2006).

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Affirmed.

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