USCA1 Opinion
December 9, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1601
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY FIORE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Selya, Cyr and Boudin, Circuit Judges.
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John F. Cicilline for appellant.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Lincoln C. Almond, United States Attorney, and James H.
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Leavey, Assistant United States Attorney, were on brief, for the
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United States.
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SELYA, Circuit Judge. This appeal asks us to decide a
SELYA, Circuit Judge
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question of first impression: Does a prior conviction for
conspiracy to break and enter a commercial structure qualify as a
predicate offense for purposes of the career offender provisions
of the federal sentencing guidelines? We answer the question in
the affirmative and, therefore, allow the defendant's sentence to
stand.
Background
Background
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Defendant-appellant Anthony Fiore, a man of mature
years but apparent criminal predilection, pleaded guilty to four
interconnected felonies, at least one of which constituted a
"crime of violence" as that term is defined in U.S.S.G. 4B1.2
(Nov. 1991).1 The district court sentenced Fiore as a career
offender. To merit such a sentence, a defendant must be (1) at
least eighteen years old at the time of the offense, (2) guilty,
presently, of "a felony that is either a crime of violence or a
controlled substance offense," and (3) guilty, historically, of
"at least two prior felony convictions of either a crime of
violence or a controlled substance offense." U.S.S.G. 4B1.1
(Nov. 1991). Fiore concedes that he satisfied the first two
requirements but denies that his prior record came within the
purview of the third requirement.
The guidelines define a "crime of violence" as a felony
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1The offenses of conviction included, inter alia, a charge
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of carrying a firearm during a crime of violence (the attempted
robbery of an armored truck) in violation of 18 U.S.C.
924(c)(1) (1990).
2
that:
(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or (ii) 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.
U.S.S.G. 4B1.2(1) (Nov. 1991). The guidelines define a
"controlled substance offense" as any violation of a state or
federal law that:
prohibit[s] the manufacture, import, export,
distribution, or dispensing of a controlled
substance . . . or the possession of a
controlled substance . . . with intent to
manufacture, import, export, distribute, or
dispense.
U.S.S.G. 4B1.2(2) (Nov. 1991).
The district court ruled that appellant's two prior
convictions under Rhode Island law one for conspiracy to break
and enter a commercial premise, the other for conspiracy to
violate the state's controlled substance act qualified as
predicate offenses, thereby bringing the career offender
guideline into play. Since appellant admits that the convictions
occurred, his assignment of error hinges on their legal effect.
Thus, our review is plenary. See United States v. St. Cyr, ___
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F.2d ___, ___ (1st Cir. 1992) [No. 92-1639, slip op. at 5]
(holding that a de novo standard of review applies to
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interpretive questions under the sentencing guidelines).
Conspiracies as Predicate Offenses
Conspiracies as Predicate Offenses
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The commentary to the federal sentencing guidelines
tells us straightforwardly that conspiracy to commit a predicate
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offense is itself a predicate offense. See U.S.S.G. 4B1.2,
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comment. (nn.1,2) (Nov. 1991). We have remarked before that
although the Sentencing Commission's "application notes and
commentary do not possess the force of law, they are important
interpretive aids, entitled to considerable respect." United
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States v. Weston, 960 F.2d 212, 219 (1st Cir. 1992). In general,
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we will defer to the Commission's suggested interpretation of a
guideline provision unless the Commission's position is
arbitrary, unreasonable, inconsistent with the guideline's text,
or contrary to law. See, e.g., United States v. Joshua, ___ F.2d
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___, ___ (3d Cir. 1992) [No. 91-3286, 1992 U.S. App. LEXIS 24787
at * 33-38]; United States v. Anderson, 942 F.2d 606, 613-14 (9th
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Cir. 1991) (en banc). In this instance, we are unable to discern
any cogent reason for rejecting the Commission's view.
For one thing, while we have unearthed no appellate
case on all fours, reported judicial opinions in analogous
situations suggest that most courts would likely agree that
deference is warranted here. The case closest in point is United
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States v. Smith, 909 F.2d 1164 (8th Cir. 1990), cert. denied, 111
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S.Ct. 691 (1991), in which the Eighth Circuit held that a prior
conviction for conspiring to sell LSD, although charged under a
general conspiracy statute, was a controlled substance offense
and, hence, a proper predicate under the career offender
guideline. See id. at 1168. Other instructive cases point in
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the same direction. See, e.g., United States v. Liranzo, 944
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F.2d 73, 78 (2d Cir. 1991) (deferring to the commentary in
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deciding that an attempt conviction was a predicate offense);
United States v. Preston, 910 F.2d 81 (3d Cir. 1990) (holding
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that conspiracy to commit robbery is a "violent felony" under the
Armed Career Criminal Act [ACCA], as amended, 18 U.S.C.
924(e)), cert. denied, 111 S.Ct. 1002 (1991); id. at 86 n.6
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(stating in dicta that "conspiring to commit robbery would be
considered a 'crime of violence' under the current sentencing
guidelines") (citing commentary and application notes); cf.
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United States v. Payne, 966 F.2d 4, 8-9 (1st Cir. 1992) (deciding
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that an attempt was a "violent felony" under the ACCA).2 The
case law, then, furnishes strong support for the ruling below.
For another thing, we believe that Taylor v. United
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States, 495 U.S. 575 (1990), relied upon by both the appellant
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and the government, is entirely consistent with the Commission's
(and the district court's) view that conspiracy convictions can
serve as predicate offenses. In interpreting the ACCA, the
Taylor Court adopted "a formal categorical approach" for
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determining whether an offense is a violent felony. Id. at 600.
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Under such an approach, an inquiring tribunal "look[s] only to
the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions." Id. Although
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2The definition of "violent felony" in the ACCA's sentence
enhancement provision is the source of the language used in
defining a "crime of violence" under U.S.S.G. 4B1.2 (Nov.
1991). See Preston, 910 F.2d at 86 n.6; U.S.S.G., App. C, amend.
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268, at C.139 (Nov. 1989). Decisions interpreting the ACCA
constitute persuasive authority when a court is called upon to
construe the career offender guideline. See United States v.
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Bell, 966 F.2d 703, 705 (1st Cir. 1992).
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Taylor is an ACCA case, it is the beacon by which we must steer.
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See United States v. Bell, 966 F.2d 703, 705-06 (1st Cir. 1992)
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(explaining that Taylor furnishes the methodology of choice for
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determining whether specific felonies constitute crimes of
violence under the career offender provisions of the sentencing
guidelines).
Appellant suggests that, because some conspiracy
convictions will not be predicate offenses for example, a
conspiracy to barter migratory birds or to sell forged securities
would plainly fall outside the scope of U.S.S.G. 4B1.1
Taylor's categorical approach requires a finding that all
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conspiracy convictions are exempt from "predicate offense"
treatment. While we recognize that this suggestion offers a
certain seductive simplicity, we think that it twists Taylor's
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message. The Taylor Court understood the categorical approach as
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one designed "to capture all offenses of a certain level of
seriousness that involve violence or an inherent risk thereof,
and that are likely to be committed by career offenders."
Taylor, 495 U.S. at 590. To implement this objective in the
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present context, it is not enough to focus on the word
"conspiracy" alone, for that superficial label says next to
nothing about the underlying nature of the crime and, therefore,
about whether it should be classified as a crime of violence or a
controlled substance offense. Instead, one must ask, and answer,
the more specific question "conspiracy to do what?" in order to
implement Taylor. After all, a conspiracy, not unlike a
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chameleon, will necessarily take on the characteristics and
coloration of its environment. The object of the conspiracy is,
therefore, a critical determinant.
When the line that defines the categories is drawn in
the proper place, the Sentencing Commission's recommendation
meshes neatly with the Taylor Court's methodology.3 The need to
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implement Taylor's categorical approach in a sensible fashion,
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the clear language of the commentary, and the case law as it has
evolved in related matters all converge. We hold, therefore,
that conspiracy convictions can serve as predicate offenses under
the career offender provisions of the federal sentencing
guidelines.4
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3Contrary to appellant's insinuation, the line can be drawn
at the point where conspiracy-plus-object is determined without
engaging in an "elaborate factfinding process" of the sort
debunked by the Court. Taylor, 495 U.S. at 601. A judge need
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only inspect the indictment or other charging papers to complete
the phrase "conspiracy to commit _____" and, thus, effectuate the
Taylor inquiry. Cf. United States v. Leavitt, 925 F.2d 516, 517-
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18 (1st Cir. 1991) (holding that the categorical approach permits
a court to peruse the indictment to determine whether a crime
qualifies as a predicate offense under the career offender
guideline).
4In a last-ditch effort to avoid the guideline, appellant
argues that, inasmuch as Rhode Island's general conspiracy
statute does not require proof of an overt act, see State v.
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Brown, 486 A.2d 595, 601 (R.I. 1985); R.I. Gen. Laws 11-1-6
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(1981), a conviction under it cannot be a predicate "crime of
violence" because a defendant need not have engaged in conduct
presenting a direct risk of injury to another in order to be
found guilty. If such an exception existed, however, it would
swallow the rule. Many conspiracy statutes are cut from the same
cloth as Rhode Island's statute. See, e.g., United States v.
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Paiva, 892 F.2d 148, 155 (1st Cir. 1989) (explaining operation of
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federal drug conspiracy statute). And even conspiracy statutes
that contain an overt act requirement often stop short of
demanding proof that the defendant personally engaged in conduct
of the sort appellant identifies. See, e.g., United States v.
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7
Appellant's Conspiracy Convictions
Appellant's Conspiracy Convictions
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Appellant has a fallback position. He asserts that,
even if some conspiracies are predicate offenses for purposes of
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the career offender guideline, his conviction for conspiracy to
break and enter a commercial premise is not within that grouping
because the underlying crime is not a crime of violence.5
Appellant's thesis runs along the following lines: the offense
was committed in Rhode Island; under R.I. Gen. Laws 11-8-4
(1991),6 the offense did not have as an element the use,
attempted use, or threatened use of force against the person of
another as contemplated by U.S.S.G. 4B1.2(1)(i) (Nov. 1991);
and, moreover, the sample offenses enumerated in U.S.S.G.
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Notarantonio, 758 F.2d 777, 788 (1st Cir. 1985) (explaining that,
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under the federal general conspiracy statute, an overt act by any
one co-conspirator suffices to satisfy that element of the
offense for all co-conspirators). Given these realities, we find
appellant's argument unconvincing.
5Appellant does not contend that his conviction for
conspiracy to violate state narcotic laws slips through the same
loophole.
6The Rhode Island commercial burglary statute, which was in
effect at the date of the original offense, reads as follows:
Every person who shall break and enter any
bank, shop, office or warehouse, not
adjoining to or occupied as a dwelling house,
any meeting house, church, chapel,
courthouse, town house, college, academy,
schoolhouse, library or other building
erected for public use or occupied for any
public purpose or any ship or vessel, in the
nighttime, with intent to commit murder,
rape, robbery or larceny, shall be imprisoned
not exceeding ten (10) years.
R.I. Gen. Laws 11-8-4. It is undisputed that, in Fiore's case,
the charge involved a commercial building, not a ship or vessel.
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4B1.2(1)(ii) (Nov. 1991) include burglary of a dwelling but not
burglary of a commercial premise. In mounting this offensive,
appellant conveniently overlooks, or at least neglects to
mention, that after enumerating a non-exhaustive list of sample
predicates, the guideline proceeds to define as a crime of
violence any offense which "otherwise involves conduct that
presents a serious potential risk of physical injury to another."
Id.
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In this case, the "otherwise" clause gets the grease
from the goose. No less an authority than the Supreme Court has
observed that commercial burglaries often "pose a far greater
risk of harm" than burglaries of dwelling places. Taylor, 495
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U.S. at 594. Moreover, this court has held with echolalic
regularity, albeit in the ACCA context, that burglary of a
commercial building poses a potential for episodic violence so
substantial as to bring such burglaries within the violent
felony/crime of violence ambit. See Payne, 966 F.2d at 8 & n.6;
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United States v. Wilkinson, 926 F.2d 22, 29 (1st Cir.), cert.
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denied, 111 S. Ct. 2813 (1991); United States v. Patterson, 882
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F.2d 595, 604 (1st Cir. 1989), cert. denied, 493 U.S. 1027
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(1990). The fact that we made this determination in interpreting
the ACCA's identically worded "otherwise" clause is a distinction
without a difference. See United States v. Doe, 960 F.2d 221,
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225 (1st Cir. 1992); see also supra note 2. Hence, Fiore's state
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court conviction for conspiracy to commit breaking and entering
of a commercial structure comprises a crime of violence under the
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career offender guideline because the object of the conspiracy
satisfies the "otherwise" clause of U.S.S.G. 4B1.2(1)(ii) (Nov.
1991).7
Conclusion
Conclusion
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We need go no further. Because we conclude that (1)
prior convictions for conspiracy can qualify as predicate
offenses under the career offender provisions of the federal
sentencing guidelines, and (2) appellant's earlier conviction for
conspiracy to commit breaking and entering of a commercial
building is a crime of violence, the judgment below will be
Affirmed.
Affirmed.
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7Contrary to appellant's importunings, our conclusion in
this regard is not undermined either by an earlier version of the
commentary to the career offender guideline or by the case law
explicating the outdated version. See, e.g., United States v.
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Talbott, 902 F.2d 1129, 1133 (4th Cir. 1990). We see no reason
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to give credence to commentary that the Sentencing Commission
revised well before Fiore committed the instant offenses. This
is especially so in light of the Court's subsequent decision in
Taylor.
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