United States Court of Appeals
For the First Circuit
No. 09-2292
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
CHARLES SMALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
William Maselli was on brief for the appellant.
Renee M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty,II, United States Attorney, was on brief for
the appellee.
April 6, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The three issues raised by
defendant, Charles Small, go to an evidentiary ruling that prompted
his guilty plea to possession of a firearm after being convicted of
a crime punishable by more than a year’s imprisonment, 18 U.S.C.
§922(g)(1), to the denial of his motion to withdraw the plea, and
to the classification of a prior escape conviction as a crime of
violence under the sentencing guidelines. We affirm.
At the time in question, Small was on probation following
a state criminal conviction. He asked his state probation officer
if he could lawfully go hunting with his ten-year-old son and was
told that although he could, he could not possess a firearm. Maine
game wardens got wind of Small’s plans and, knowing that he was a
convicted felon, staked out his truck once he and the son entered
the woods. The wardens could see no weapons inside the vehicle
when they first looked, but when they reappeared after Small and
the boy returned, they saw two. The firearm nearest Small, on the
driver’s seat, was a shotgun for which Small had live and spent
shells in his pocket.
When Small was indicted for possession as a felon under
§922(g)(1), he planned to defend on the basis of an estoppel
variety of the entrapment defense, that is, that he acted in
reliance on advice from an “authorized government official” that
his conduct would be lawful. See United States v. Caron, 64 F.3d
713, 715 (1st Cir. 1995); United States v. Smith, 940 F.2d 710, 714
-2-
(1st Cir. 1991). Small proposed to offer testimony about the
advice from his probation officer and from his prior counsel, to
whom the officer had confirmed the substance of the conversation
with Small, but evidence from both was excluded as irrelevant on
the Government’s motion in limine. As a consequence, Small entered
a conditional guilty plea (with a jury waiting to hear the case).
He moved to withdraw his guilty plea three months later, but his
motion was denied. At sentencing he unsuccessfully argued that a
prior state conviction of escape from the Cumberland County Jail
should not be treated as a “crime of violence” when determining his
sentence under the federal sentencing guidelines. See USSG
§2K2.1(a)(2).
We review the district court's decision to exclude
evidence and to deny the motion to withdraw the guilty plea for
abuse of discretion. United States v. Jadlowe, 628 F.3d 1, 23 (1st
Cir. 2010) (exclusion of evidence); United States v. Sousa, 468
F.3d 42, 46 (1st Cir. 2006) (motion to withdraw guilty plea). The
classification of a prior offense as a crime of violence under the
sentencing guidelines gets de novo review. United States v.
Mastera, 435 F.3d 56, 59 (1st Cir. 2006).
The condition attached to the guilty plea reserved
Small’s right to appeal the in limine order barring the probation
officer’s testimony (and its hearsay corroboration by Small’s prior
lawyer), an issue we think has no merit. The Government was bound
-3-
to prove Small’s prior felony plus his knowing possession of a
firearm that had moved in interstate commerce. The only elements
in contention were the knowing state of mind and possession (which
the prosecutor proposed to show as constructive possession, the
capacity and intent to exercise dominion and control, see United
States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992)). As to these
elements, the probation officer’s advice was entirely irrelevant to
the defense and thus inadmissable, Fed. R. Evid. 402. Leaving
aside the point that a state official has no authority to speak
for, let alone estop, the national government in enforcing federal
law, we know from the officer’s testimony at the motion hearing
that she would have testified that she told Small he could not
lawfully possess a firearm. Small’s prior counsel could only have
added hearsay to irrelevance. Small adds, perhaps belatedly, that
the testimony could have been admitted as bearing on his state of
mind at the time (on intent to possess and control). But there is
no apparent reason to infer that the officer’s prior advice against
possessing a firearm could have affected Small’s thinking in any
exculpatory way on the day of the hunt. Finally, it adds nothing
to argue, as Small now does, that due process as fundamental
fairness entitled him to present the evidence. It is not unfair to
exclude evidence that is incompetent for the estoppel purpose
offered, and irrelevant to the defense.
As for the motion to withdraw the guilty plea, a
-4-
defendant so seeking must present a “fair and just reason,” Fed. R.
Crim. P. 11(d)(2)(B). The substance of Small’s reason is the
effect of losing the in limine motion, combined with the ensuing
pressure from his then-lawyer and family to plead guilty. There is
no question that the events in sequence upset him, as is shown in
the colloquy accompanying the plea; the court declared a break for
Small to take a nitroglycerine pill and compose himself. But we
see no abuse of discretion in the court’s denial of the motion to
withdraw the plea. The plea colloquy between court and defendant
was by no means cut and dried, and after the court took the break
for medication and composure, the judge questioned Small to make
sure he really wished to go on with the hearing and stick with his
stated intent to plead guilty. Small made it plain to the court
that he understood that with the excluded testimony out of the
trial he had no defense to an overwhelming government case, and as
our holding here demonstrates, the testimony would have been no
defense even if admitted. While Small doubtless felt the force of
advice to plead, much of that force depended on realizing, sensibly
enough, that any hope of a defense was gone. These considerations
raise no serious doubt about the trial judge’s assessment at the
plea proceeding that Small understood what he was saying, meant to
say it, and was acting realistically. The fact that the request to
withdraw the plea came three months after its entry just indicates
the more emphatically that Small’s position boils down to second
-5-
thoughts, an inadequate basis to reverse course even when, as here,
the delay has not prejudiced the government’s capacity to try the
case if it should have to. See United States v. Sousa, 46 F.3d 42,
46 (1st Cir. 2006) (considerations on request to withdraw guilty
plea).
The final question here is the legitimacy of treating
Small's Maine escape conviction as a “crime of violence” within the
meaning of the Federal Sentencing Guidelines, which contain an
analogue to the Armed Career Criminal Act, 18 U.S.C. §924(e)(1)
(ACCA), covering crimes expressly defined to include a violence
element, certain crimes specifically named, and crimes with a
serious potential for injuring another comparable in behavior and
intent to the crimes listed. USSG §2K2.1(a)(2); see Begay v.
United States, 128 S. Ct. 1581, 1585-1586 (2008). Small was
convicted under Maine's 17-A M.R.S.A. §755(1)(A), which provides
that one is guilty of the Class C crime of escape "if without
official permission the person intentionally . . . [l]eaves
official custody or intentionally fails to return to official
custody following temporary leave granted for a specific purpose or
limited period." Current precedent is that escape from "secure
custody" falls within the third category of violence, United States
v. Pratt, 568 F.3d 11, 22 (1st Cir. 2009), and that escape from
"official custody" in a Maine house of correction in violation of
§755(1)(A) is escape from "secure custody" within the holding of
-6-
Pratt, United States v. Willings, 588 F.3d 56, 59-60 (1st Cir.
2009). When applying the guidelines here, the district judge
carefully noted for the record that Small had been sentenced to the
Cumberland County Jail and went the further step of taking judicial
notice that it was a "secure" institution of custody.
Small argues for different treatment by seeking to
analogize his escape to a mere failure to report for custody, which
is not in the violent category. See Chambers v. United States, 129
S.Ct. 687, 692-693 (2009). While he does not deny that his escape
was one of leaving official custody, he claims that it should be
treated as non-violent on the basis of the presentence report,
which explains that at the time of the escape he had been taken by
the jail authorities to the Maine Medical Center for treatment, and
suggests that he just walked out of the hospital without
interference. Walking out, he says, should be treated as non-
violent, like failing to walk in.
To the extent that Small is arguing that he committed a
generally violent offense in a particularly peaceful way, his point
is at odds with Taylor v. United States, 495 U.S. 575 (1990), which
established the rule that crimes must be classified as violent or
non-violent by categories defined according to generally occurring
characteristics, not by reference to idiosyncracies of specific
convictions listed on a defendant's record. Id. at 588-590; Pratt,
568 F.3d at 19. Escape from official custody in Maine is
-7-
categorically violent, and Small does not even claim to have
committed a categorically different offense of failing to report.
Affirmed.
-8-