United States Court of Appeals
For the First Circuit
No. 09-1542
UNITED STATES OF AMERICA,
Appellant,
v.
TIMOTHY GIGGEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellant.
James S. Hewes, by appointment of the court, for appellee.
Judith H. Mizner, Assistant Federal Public Defender, for the
Federal Public Defender for the Districts of Massachusetts, New
Hampshire and Rhode Island, Amicus Curiae.
December 14, 2009
BOUDIN, Circuit Judge. This appeal is a sequel to our en
banc decision in United States v. Giggey, 551 F.3d 27 (1st Cir.
2008), in which we remanded a criminal case for re-sentencing.
Following the new sentence the government now appeals; it does not
challenge the new sentence on the merits but requests that we ask
the Sentencing Commission to clarify how courts ought properly to
apply the Sentencing Guidelines to non-dwelling burglary.
The history of this case, elsewhere recounted, Giggey,
551 F.3d at 30-32; United States v. Giggey, 501 F. Supp. 2d 237 (D.
Me. 2007), can be abbreviated. On December 19, 2006, Giggey, along
with his brother and a juvenile male, set out to burglarize a
building in Lewiston, Maine. To create a diversion, the three set
a series of small fires in a nearby vacant building; but the fires
spread and razed four neighboring buildings that had received
funding pursuant to a federal rehabilitation grant from the
Department of Housing and Urban Development. Giggey pled guilty to
maliciously destroying by fire a building owned by an organization
that received federal financial assistance. 18 U.S.C. § 844(f)
(2006).
During sentencing, the district court found Giggey to be
a career offender, a category that embraces one who, being 18 or
older, commits a felony that is a "crime of violence" (or a drug
offense) as defined by the guidelines and has at least two other
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such convictions. U.S.S.G. § 4B1.1(a); see also 28 U.S.C. § 994(h)
(2006). Section 4B1.2(a) of the guidelines states that:
The term “crime of violence” means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year,
that--
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.1
This career offender designation increased Giggey's
guidelines range from 63 to 78 months to 151 to 188 months. See
U.S.S.G. § 4B1.1(b). Giggey's prior convictions supporting the
designation were two earlier burglary convictions: one for the
burglary of a garage in March 2000 for which Giggey received a two-
year sentence with all but 90 days suspended, and the second for
the burglary of a convenience store in June 2004 for which he
received a 30-month sentence with all but four months suspended.
At the time of his initial sentence, the district court
in designating Giggey a career offender was constrained by First
1
The Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e),
which has other sentencing consequences not here relevant, uses
similar language to define the phrase "violent felony" except that
the term "burglary" is not qualified by the phrase "of a dwelling."
Id. § 924(e)(2)(B). In other respects cases construing the statute
are also frequently authority as to the guideline. See United
States v. Pratt, 568 F.3d 11, 19 n.7 (1st Cir. 2009).
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Circuit precedent holding that non-residential burglaries were per
se crimes of violence. See United States v. Sawyer, 144 F.3d 191,
195-96 (1st Cir. 1998); United States v. Fiore, 983 F.2d 1, 4-5
(1st Cir. 1992), cert. denied 507 U.S. 1024 (1993). Nevertheless,
in sentencing Giggey as a career offender, the district judge--
pointing to developments since Sawyer and Fiore--urged this court
to reconsider the holding of those cases. Giggey was sentenced to
95 months' imprisonment, a downward variance from the Guidelines
range based on statutory factors. 18 U.S.C. § 3553(a).
Giggey appealed, and this court en banc overruled Sawyer
and Fiore, holding that the district court had to examine, using a
categorical approach, whether the predicate offenses "present[ed]
a serious potential risk of physical injury." See Giggey, 551 F.3d
at 38-39. On remand, the district court held that Giggey's prior
burglary offenses did not pose such a danger and that he was not a
career offender. Giggey was then sentenced to 42 months'
imprisonment, reflecting cooperation with the government and time
spent being held on state charges. The government now appeals.
Under the categorical approach adopted by the Supreme
Court and repeatedly reaffirmed,2 career offender designation
depends not on the conduct of the defendant in the case at hand but
2
See Taylor v. United States, 495 U.S. 575, 600-02 (1990);
Chambers v. United States, 129 S. Ct. 687, 690-93 (2009); Begay v.
United States, 128 S. Ct. 1581, 1584 (2008); James v. United
States, 550 U.S. 192, 201-02 (2007); Shepard v. United States, 544
U.S. 13, 17 (2005).
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on whether the offense of conviction is one of those identified in
the relevant statute or guideline. As Taylor explained, sentencing
courts may "look[] only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those
convictions." 495 U.S. at 600. Accord Begay, 128 S. Ct. at 1584
("In determining whether this crime is a violent felony, we
consider the offense generically, that is to say, we examine it 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.").
In other words, if the crime is one identified in the
statute or guideline--such as arson or extortion, U.S.S.G. §
4B1.2(a)(2)--it counts as one of violence for career offender
purposes, regardless of whether the defendant's own conduct was
actually violent. And if the defendant's crime does not have the
use of force as an enumerated element and is not an enumerated
crime or within the residual clause, it is irrelevant that the
defendant committed it in a violent way. The key is the crime
committed, not the facts of the particular event.
In implementing this approach, the first step is to
identify the offense of conviction. Where the statute covers
multiple crimes--as where it is divided into categories--it is
sometimes difficult to tell which subordinate crime is the offense
of conviction; for this purpose alone, it is permissible to consult
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a restricted set of sources (e.g., indictment, plea colloquy, jury
instructions) to answer this question. Shepard, 544 U.S. at 26;
Taylor, 495 U.S. at 602. But such information is permissibly used
not to determine whether the defendant committed the crime in a way
that involved or threatened violence, but merely to help decide
which offense he was convicted of by trial or plea.
The Maine statute embracing Giggey's prior crimes broadly
defines burglary to cover one who "enters or surreptitiously
remains in a structure, knowing that he is not licensed or
privileged to do so, with the intent to commit a crime therein,"
but it then sub-categorizes burglaries, each of which is a separate
crime carrying a different penalty. Me. Rev. Stat. Ann. tit. 17-A,
§ 401 (2000). Giggey pled in both of the earlier cases to a class
C burglary and so this is the offense that must be classified under
the guideline; unlike Shepard there is no uncertainty here as to
which offense Giggey pled to.
Class C burglaries as defined under Maine law are a
residual category which, by contrast to class A or B burglaries, do
not involve firearms, other dangerous weapons, entry into dwellings
or the infliction or attempt to inflict bodily injury. See Giggey,
551 F.3d at 44 (Lipez, J., concurring in judgment). Accordingly,
a class C burglary does not have as an element physical force
against another, nor is it one of the crimes (such as burglary of
a dwelling) expressly named in the guideline. The question then is
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whether the class C burglary viewed categorically creates a risk of
physical injury comparable to that of the crimes listed in section
4B1.2(a)(2) of the guidelines. Begay, 128 S. Ct. 1585.
Admittedly this comparability question may be difficult,
but answering it is what the categorical approach entails. By
"comparable," the Supreme Court means that the offense must be
"roughly similar, in kind as well as in degree of risk posed."
Begay, 128 S. Ct. at 1585. James resolved a related burglary issue
by common sense and analogy, 550 U.S. at 203-05; in Begay, the
Court found that DUI was different in the way or manner the risk
was produced and, unlike the listed crimes, did not involve
"purposeful, violent, and aggressive conduct." 128 S. Ct. at 1586
(internal quotation marks omitted). Most recently, Chambers
followed a similar approach. 129 S. Ct. at 692-93.3
In this appeal, the government has not argued for
reversal on the grounds that the district court mis-identified the
crime of conviction, that it mis-assessed the risk presented by the
nature of class C burglary or that it improperly considered
evidence of Giggey's specific conduct. Instead, it urges our court
3
In Chambers the court held that failure to report for
imprisonment does not satisfy ACCA's physical force, enumerated
crime, or serious potential risk of physical injury requirements,
and is crime of inaction, not purposeful violent and aggressive
conduct; in reaching this result the Court rejected the
government's argument that three individual cases showed violence
by reference to United States Sentencing Commission report. 129 S.
Ct. at 691-93.
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to stay the government's appeal and request the Sentencing
Commission to clarify whether non-dwelling burglary is a "crime of
violence" for career offender purposes. Conceivably we could do
so, although no exact precedent for this course is cited. Cf.
United States v. Gondek, 65 F.3d 1, 4 (1st Cir. 1995) (advising
the Commission of a recurring problem after decision).
However, the Commission has been aware for some time of
the debate about non-dwelling burglaries and, even if it chose to
amend or clarify its existing guideline, that is usually a lengthy
process.4 Further, it is not clear what help the Commission would
be likely to furnish where, under Taylor's approach, we face the
task of assessing the comparability of the risk of an offense as
defined by a particular state statute. No doubt the Commission
could amend its guideline to enlarge or narrow its coverage, but an
enlargement would not apply retroactively and a narrowing would not
change the result in this case.
Because there is no specification of error by the
government directed to the district court's reasoning or findings
and the government's alternative request that we consult the
Commission is unpromising, we dismiss the appeal.
4
As we explained in Giggey's first appeal, the Commission had
two opportunities to make a definitive statement as to whether non-
residential burglaries should be enumerated as crimes of violence;
it considered proposals in 1992 and 1993 to amend § 4B1.2 and its
commentary to provide a definitive answer, but each proposal
failed. Giggey, 551 F.3d at 34-35.
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It is so ordered.
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