United States Court of Appeals
For the First Circuit
No. 08-1116
UNITED STATES OF AMERICA,
Appellee,
v.
COSME SANCHEZ-RAMIREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Farris,* and Howard, Circuit Judges.
Michael Tumposky, with whom Stephen B. Hrones and Hrones,
Garrity & Hedges, were on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
June 30, 2009
*
Of the Ninth Circuit, sitting by designation.
HOWARD, Circuit Judge. Following a bench trial in which
the district court rejected his insanity defense, appellant Cosme
Sanchez-Ramirez ("Sanchez") was convicted of all three counts
lodged against him: being a felon in possession of a firearm,1
making a false statement in the acquisition of a firearm,2 and
making a false claim of citizenship.3 He was sentenced to 180
months' imprisonment. He posits two arguments on appeal. First,
Sanchez claims that the district court erred in not ordering a
competency hearing after the close of evidence and before closing
arguments, in addition to the one ordered immediately after his
arraignment. Second, he argues that the district court erroneously
applied the minimum sentence mandated by the Armed Career Criminal
Act ("ACCA") to him because certain prior burglary convictions in
Florida were not "violent felonies" within the meaning of the ACCA.
Finding the district court's decision not to order a second
competency hearing well within its discretion, and its sentencing
decision virtually on all fours with recent Supreme Court
precedent, we affirm.
I. Factual Background
We recite the facts relevant to this appeal in the light
most favorable to the verdict. United States v. Marin, 523 F.3d
1
See 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
2
See 18 U.S.C. §§ 922(a)(6) and 924(a)(2).
3
See 18 U.S.C. § 911.
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24, 26 (1st Cir. 2008). Sanchez was born in Cuba, and arrived in
the United States at age sixteen in 1980 as part of the Mariel
boatlift. His application for asylum was denied, and a deportation
order issued. Cuba, however, refused to accept Mariel returnees,
the deportation order was never executed, and Sanchez remained in
the United States.
In April 2005, Sanchez attempted to purchase a handgun
from a pawn shop and licensed firearms dealer in Bangor, Maine. A
store employee, Orlando Frati, testified that he provided Sanchez
with some assistance in filling out the required federal firearms
purchase application, including pointing out to Sanchez that he had
not answered a question seeking his citizenship status. Sanchez
responded by writing "Yes, USA" on the form. He further answered
that he was not a convicted felon, and that he was a Native
American or Alaskan Native. All three answers were false.
Sanchez examined two pistols while in the store. He did
not purchase either of them, but mentioned that he preferred the
smaller of the two because it was easier to conceal and thus avoid
suspicion or be readily available for use in any confrontation with
police. He also posed in front of a mirror with a gun in his
pocket. Sanchez produced a social security card, but did not have
the necessary photo identification to make a purchase. After
promising to return with the proper identification, Sanchez left in
the same taxi in which he had arrived. Frati had noted the license
plate number of the taxi as was his habit with waiting cabs.
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After Sanchez left, Frati submitted the completed
application to the National Instant Check System. After a delay,
the application was denied. Because he was concerned about the
denial in combination with Sanchez's concealment and police
comments, Frati provided authorities with Sanchez's application
form and a video from the store's surveillance system containing
footage of Frati's interaction with Sanchez in the store.
Investigation by an agent of the Bangor Police Department and
federal Bureau of Alcohol, Tobacco, Firearms and Explosives task
force revealed that Sanchez had been convicted of, inter alia, four
felonies -- three in Florida and one in Georgia. Using the taxi's
license number as a lead to locate him, authorities arrested
Sanchez soon after in a local motel.
At a detention hearing shortly after his arrest,
Sanchez's defense counsel moved for a psychiatric examination and
competency hearing. The district court granted the motion, and
Sanchez was transferred to a federal medical facility for
evaluation. Given its central role in this appeal, we first turn
to the record evidence relating to Sanchez's mental health.4
II. Mental health history
Sanchez has a lengthy history of mental health problems,
the details of which are not in dispute.5 He testified that he
4
Sanchez's personal and medical history is culled from reports
in the record, as well as Sanchez's own testimony.
5
In addition to his own history, Sanchez testified that
members of his family also had a history of mental illness.
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tried to injure himself on two separate occasions in Cuba before he
was ten years old and that he occasionally hears voices speaking to
him "from another world." Sanchez recounted being hospitalized in
Cuba when he was thirteen for purposes of a judicially-ordered
mental health examination. Sanchez said that he was forced to
leave Cuba in the Mariel boatlift because his mental health made
him an undesirable in the eyes of Fidel Castro.
Sanchez's difficulties continued after his arrival in the
United States. In 1984, he was hospitalized in California after
cutting his wrists. In 1993, he was hospitalized in New York,
after behaving erratically and "feeling like dead people were
following" him. In 1999, Sanchez was hospitalized in North
Carolina after he was found wandering on a highway. The record
also reflects two suicide attempts in Virginia and Georgia between
2000 and 2002 which resulted in hospitalizations.
Sanchez was living with a friend in Portland, Maine prior
to arriving in Bangor. While there, he suffered from depression
and hallucinations. Sanchez was also hospitalized after police
responded to a call that he was in possession of a knife and was
threatening suicide. He was again hospitalized during his time in
Portland when it was reported to police that he was trying to light
a fire in the kitchen of a shelter where he was staying. He
ultimately relocated to Bangor.
On the day prior to his attempted gun purchase, Sanchez
testified that he was planning on leaving Maine and taking a bus to
Atlanta, Georgia in order to seek medical attention there. He had
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been drinking before going to the bus station, where he met a man
and a woman who convinced him that they could help him. Instead,
the three spent time taking pills and drinking liquor, before the
couple attempted to rob Sanchez. Although the robbery was
unsuccessful, the couple left Sanchez on a Bangor street near the
motel where he was eventually arrested.
Early the next morning, Sanchez took a taxi to a local
hospital because he was not feeling well. He was denied treatment
at the emergency room due to the smell of alcohol on his breath.
Shortly thereafter, he began having a panic attack, which led to
suicidal thoughts which prompted him to direct the cab driver to
take him to a place to buy firearms.
III. Pre-trial proceedings
Pursuant to the district court's order, Sanchez was held
at the Federal Medical Detention Center in Massachusetts for 45
days following his arraignment. During that time, licensed
clinical psychologist Christine Scronce interviewed Sanchez for
eight hours and conducted four hours of psychological testing in
order to assess his competency to stand trial. She also collected
Sanchez's medical history -- both from records and his own
recollection -- and considered staff observations and evaluations.
At the conclusion of her work, Dr. Scronce prepared a lengthy
report and testified at a competency hearing before a Magistrate
Judge. She concluded, among other things, that Sanchez exhibited
"a general pattern of deceitful and manipulative behaviors," which
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she described as "hallmark signs of malingering." In particular,
she noted that Sanchez often reported symptoms "for secondary
gain," such as being hospitalized rather than jailed, or being
allowed to receive meals in private.
Regarding the pending criminal proceedings, Scronce found
that Sanchez had a good relationship with his attorney, understood
the charges against him and had the ability to consult with counsel
to aid in his defense. Accordingly, Scronce concluded that Sanchez
was competent to stand trial. The Magistrate Judge, in addition to
accepting Scronce's conclusions, noted that Sanchez acted
appropriately during courtroom proceedings, and ultimately found
Sanchez competent to proceed. That ruling has not been appealed.
Approximately one year later, in June 2006, defense
counsel moved for another pretrial evaluation on the grounds that
Sanchez was unreasonable and uncooperative. The motion was denied
without prejudice, but an accompanying motion to continue the trial
was granted in order to allow time to obtain additional medical
records and give defense counsel an opportunity to review Sanchez's
mental health history more fully and determine whether and to what
extent to place his mental state in issue at trial. Defense
counsel did not renew the motion before trial.
IV. Trial
A bench trial began in January 2007, lasting
approximately four trial days. The trial proceeded uneventfully.
Because Sanchez was interposing an insanity defense and also
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arguing that his mental health negated the required mens rea, the
district court heard testimony from Dr. Scronce and from a defense
expert. After the close of evidence, the parties submitted written
trial briefs prior to scheduled final arguments in June. Three
days prior to the scheduled arguments, defense counsel filed a
third motion for a competency hearing. Counsel reported that
Sanchez had stopped taking his prescribed medication and was having
difficulty understanding the facts and issues relevant to his case.
The court did not immediately rule on the motion. The trial
court's post-trial Findings of Fact and Conclusions of Law describe
what followed:
When Mr. Ramirez arrived at the courthouse, he
was beside himself. Prior to the arguments
there was considerable banging in the holding
cell near the courtroom and, at a conference
of counsel, the United States Marshal
expressed serious safety concerns, noting that
Mr. Ramirez was virtually uncontrollable. As
this was not a jury trial and no evidence was
to be taken, the Court acceded to the
Marshal's recommendation that he be shackled
for the hearing.
When the proceedings began, Mr. Ramirez
engaged in a loud, continuous rant, a foul and
abusive harangue against all present. After
entering, the Court waited to see if Mr.
Ramirez would calm down. He did not. In
accordance with Illinois v. Allen, the Court
asked Mr. Ramirez if he could behave himself
and repeatedly warned him that it would have
him removed from the courtroom, if he
persisted. Mr. Ramirez continued unabated
with his incoherent and profane screed and
showed no signs of controlling himself. As
Mr. Ramirez was incapable of remaining in the
courtroom without disrupting the proceedings,
the Court ordered him removed and the parties
made their final presentations in his absence.
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United States v. Ramirez, 495 F. Supp. 2d 92, 112 (D. Me.
2007) (internal citations and footnote omitted).
The trial court also noted that Sanchez's courtroom
behavior was a reversal from his demeanor during the multiple days
of trial, during which he sat quietly and testified
"appropriately." Id. at 112 n. 24. In the end, the trial court
found Sanchez guilty of the charges against him, rejected his
insanity defense, and denied the third motion for a competency
examination. Id. at 124 n. 33. It is this denial which Sanchez
now appeals.
V. Discussion
Due process requires that a defendant be mentally
competent to be tried, convicted or sentenced. United States v.
Gonzalez-Ramirez, 561 F.3d 22, 28 (1st Cir. 2009) (citing Drope v.
Missouri, 420 U.S. 162, 172-73 (1975)). The district court must
order a competency hearing "'if there is reasonable cause to
believe that the defendant may presently be suffering from a mental
disease or defect rendering him mentally incompetent to the extent
that he is unable to understand the nature of the proceedings
against him or to assist properly in his defense.'" Id. (quoting
18 U.S.C. § 4241(a)). We review for abuse of discretion the
district court's decision not to hold a competency hearing, and
will affirm the decision so long as there was a sufficient
evidentiary basis to support the decision. Id. (citing United
States v. Bruck, 152 F.3d 40, 46 (1st Cir. 1998)).
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Here, as previously noted, Sanchez is not appealing the
trial court's conclusion that he was competent to stand trial.
Instead, he argues that his behavior after the close of evidence
and prior to closing arguments -- at least partly fueled by his
failure to continue taking prescribed medication -- required the
district court to continue the proceedings and order another
competency evaluation and hearing.
The record reflects several factors which support the
court's decision. First, there is the fact that Sanchez was
originally found competent to stand trial, a decision which was
neither objected to nor appealed. It is true, as appellant argues,
that that conclusion was reached in August 2005, nearly two years
prior to the behavior at issue here. The record does not end
there, however. The second factor weighing against appellant's
position is that a report prepared in February 2006 by a defense
expert, Dr. Martinez, concluded that Sanchez was competent to stand
trial. Significantly, Sanchez mistakenly believed that Martinez's
report would be kept confidential.6 In addition to his finding of
competence, Dr. Martinez also noted Sanchez's tendency to malinger
and exaggerate his symptoms, and that his actions "indicate a
significant degree of . . . planned, controlled, behavior . . . ."
In August 2006, Dr. Martinez prepared a second report, which
Sanchez understood would be disclosed. Here, Dr. Martinez stopped
short of proclaiming Sanchez incompetent to stand trial, finding
6
Sanchez's belief was based on inaccurate information provided
by Dr. Martinez. Indeed, the defense did not even disclose the
existence of Martinez's February report until mid-trial.
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only that he suffered from alcohol-induced psychosis at the time he
committed the crimes at issue. Also, as the trial court noted,
medical personnel reported that Sanchez had, in the past, told
others that reporting suicidal or homicidal ideations was a method
of avoiding jail by getting hospitalized.
Another factor in support of the district court's
ultimate conclusion is that the second motion for a competency
hearing -- which was denied without prejudice in June 2006 -- was
never renewed, suggesting that the issues which gave rise to the
motion were temporary in nature.
Next, the district court had the opportunity to observe
Sanchez at trial, during January 2007. The record, which included
Sanchez's own testimony, is devoid of any indication that Sanchez
was suffering from any psychological difficulties during the trial.
See Cody v. United States, 249 F.3d 47, 53 n. 5 (1st Cir. 2001)
(defendant's observable appearance, demeanor and performance in
court supported district court's competency decision). And while
Sanchez correctly points out that this time period pre-dates by
approximately five months the time period at issue in this appeal,
there is again further evidence in the record that undermines his
claim. Sanchez was sentenced in January 2008, approximately six
months after the closing arguments. As with his conduct at trial,
the record reflects no signs of mental impairment during his
sentencing proceedings. On the contrary, he asked appropriate
questions, was coherent throughout his allocution, praised the
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treatment he received at the Maine State Prison, and, according to
his attorney, was able to assist in the sentencing process.
While Sanchez's mental health in January 2008 may not,
standing alone, be an accurate gauge of his mental health in June
2007, the picture we are left with is one in which Sanchez's
behavior on and around June 11, 2007, stands in stark contrast to
his diagnoses and behavior on other occasions both before and after
that time period. In light of this record evidence, we conclude
that the district court acted within its discretion in denying
Sanchez's third motion for a competency hearing.
VI. Sentencing
The lone sentencing issue before us is Sanchez's argument
that the trial court erred in concluding that his three third-
degree burglary convictions in Florida were violent felonies within
the meaning of the ACCA. We review de novo the legal conclusion as
to whether a prior conviction qualifies as a "violent felony".
United States v. Brown, 510 F.3d 57, 73 (1st Cir. 2007).
The ACCA imposes a fifteen year mandatory minimum
sentence on anyone convicted of violating 18 U.S.C. § 922(g) --
unlawful firearms possession -- who has three prior convictions for
certain drug crimes or violent felonies. 18 U.S.C. § 924(e)(1).
A "violent felony" is defined as "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
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(ii) is burglary, arson, or extortion,
involves use of explosives or otherwise
involves conduct that presents a serious
potential of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
As relevant to this appeal, Sanchez's somewhat lengthy
criminal history included three convictions in Florida for burglary
of churches in 1990 and 1994. During this time period, Florida
defined burglary as "entering or remaining in a dwelling,
structure, or conveyance with the intent to commit an offense
therein, unless the premises are at the time open to the public or
the defendant is licensed or invited to enter or remain." Fla.
Stat. § 810.02(1) (1994). A "structure" was further defined as a
"building of any kind . . . together with the curtilage thereof."
Id. § 810.011(1). Finally, the three convictions at issue were for
third-degree burglary, defined as burglary of a structure where
"there is not another person in the structure at the time the
offender enters or remains . . ." and the offender does "not make
an assault or battery and is not armed . . . with a dangerous
weapon . . . ." Id. §§ 810.02(3), (4).
Where, as here, prior convictions do not fit the
definition of "generic burglary," we employ a categorical approach
to determine whether they fit within the ACCA's residual clause.7
7
The predicates at issue do not fit within clause (i) of the
ACCA because they do not have the threat or use of physical force
as an element. For the ACCA to apply under the enumerated
"burglary" provision of clause (ii), Sanchez's convictions would
have to be for so-called "generic" burglary, defined as "the
unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime." Taylor, 495 U.S. at
599. Because Florida's burglary statute includes curtilage within
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Specifically, the issue is whether they "otherwise involve conduct
that presents a serious potential of physical injury to another."
United States v. Pratt, ___ F.3d ___, No. 05-2624, 2009 WL 1532961
at *5 (1st Cir. June 3, 2009); see also United States v. Pakala,
___ F.3d ___, No. 07-2092, 2009 WL 1636345 at *5 (1st Cir. June 12,
2009).
In determining whether these convictions are encompassed
by the ACCA, we begin by "examin[ing] [them] in terms of how the
law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion." Begay
v. United States, 128 S. Ct. 1581, 1584 (2008) (citing Taylor v.
United States, 495 U.S. 575, 602 (1990)). In addition we must
examine whether the putative predicate in question is "roughly
similar, in kind as well as in degree of risk posed" to the ACCA's
enumerated crimes -- burglary, arson, extortion, or those using
explosives. Id. at 1585.
As we noted in Pakala, much of our work in determining
whether a third-degree burglary conviction in Florida fits within
the ACCA has already been done by the Supreme Court in James. See
Pakala, ___ F.3d at ___, 2009 WL 1636345 at *6. In James the ACCA
predicate conviction at issue was for attempted burglary under the
same Florida statute, and the issue before the Court was whether
that conviction was covered by the residual clause of §
its reach, and because the documents permissibly reviewed under
Shepard v. United States, 544 U.S. 13, 15-16 (2005), do not exclude
the possibility that Sanchez was convicted of "non-generic"
burglary, we look only to the residual clause. James v. United
States, 550 U.S. 192, 212 (2007).
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924(e)(2)(B). After first holding that an "attempt" under Florida
law is within the contours of the residual clause -- an issue not
before us -- the Court noted that Florida law has narrowly defined
"curtilage" as including only "an enclosed area surrounding a
structure." James, 550 U.S. at 213 (quoting United States v.
Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006)). Thus, the
inclusion of curtilage in the definition does not lessen "the risk
presented by attempted burglary so as to take the offense outside
the scope of clause (ii)'s residual provision." Id. On the
contrary, curtilage adjacent to a structure is typically enclosed
"to keep out unwanted visitors -- especially those with criminal
motives. And a burglar who illegally attempts to enter the
enclosed area surrounding a dwelling creates much the same risk of
physical confrontation . . . as does one who attempts to enter the
dwelling itself." Id. Thus, the Court concluded that since
attempting to enter the curtilage "requires both physical proximity
to the structure and an overt act directed toward breaching the
enclosure," attempted burglary "'presents a serious potential risk
that violence will ensue and someone will be injured.'" Id.
(quoting Matthews, 466 F.3d at 1275 (burglary of the curtilage in
violation of Florida law is a violent felony under the ACCA)); cf.
Chambers v. United States, 129 S. Ct. 687 (2009) (Illinois
conviction for failing to report for weekend confinement falls
outside of ACCA residual clause because it lacks serious potential
for risk of physical injury).
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Sanchez seeks to escape the reach of James on the ground
that James involved attempted burglary of a dwelling,8 while
Sanchez's convictions all involved unoccupied churches, i.e., non-
residential structures. We are unpersuaded. In discussing the
dangers inherent in attempted burglary of a dwelling, the Court in
James reasoned that the "risk arises not from completion of the
burglary, but from the possibility that an innocent person might
appear while the crime is in progress." Id. at 203. In addition
to building occupants -- not a factor in this case -- the Court
also noted the possibility of confrontation with police or
bystanders who might investigate.9 Id. These risks are present
equally in Sanchez's third-degree "structure-curtilage" burglary
convictions. We therefore conclude that those convictions satisfy
the elements of the ACCA residual clause.
Finally, Sanchez argues that the district court ran afoul
of Begay -- decided after his sentencing -- because his Florida
convictions are not within the class of crimes that "are roughly
similar" to the ACCA's enumerated examples. 128 S. Ct at 1585.
Given that "burglary" is a listed example, this argument strains
credulity. Moreover, given both the risks enumerated by the Court
8
The district court correctly noted that the fact James
involved an attempted burglary, while Sanchez was convicted of
"successful" burglary, inures to Sanchez's detriment. Sanchez does
not engage this reasoning on appeal.
9
As the district court noted, an unoccupied commercial
building could be under surveillance by police, private security
personnel or even the property owner.
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in James and those identified by the district court, we have little
difficulty concluding that Sanchez's Florida burglary convictions
are "roughly similar, in kind as well as in degree of risk posed"
to the ACCA's enumerated burglary example. Id.
Appellant's conviction and sentence are affirmed.
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