USCA1 Opinion
September 28, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1326
PETER N. GEORGACARAKOS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Peter N. Georgacarakos on brief pro se.
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Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Peter Georgacarakos has
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appealed from the district court's denial of his motion to
correct sentence under 28 U.S.C. 2255. Georgacarakos was
found guilty of possessing and distributing cocaine in
violation of 21 U.S.C. 841. Because Georgacarakos'
criminal history included prior convictions for a controlled
substance offense and for burglary of a dwelling, the
district court ruled that Georgacarakos was a "career
offender" under section 4B1.1 of the sentencing guidelines.
The court therefore assigned Georgacarakos an offense level
of 32 (including a two-level reduction for acceptance of
responsibility) and sentenced him to a term of imprisonment
of 260 months plus a six-year term of supervised release
following incarceration.
To be sentenced as a career offender under the
sentencing guidelines, a defendant must be presently guilty
of "a felony that is either a crime of violence or a
controlled substance offense," and must have had "at least
two prior felony convictions of either a crime of violence or
a controlled substance offense." U.S.S.G. 4B1.1. The
guidelines define a "crime of violence" for these purposes to
include "any offense under federal or state law punishable by
imprisonment for a term exceeding one year that . . . is
burglary of a dwelling . . . ." Id. at 4B1.2(1).
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Georgacarakos' sole argument in his 2255
petition, and on appeal, is that this aspect of section 4B1's
definition of "crime of violence" is impermissible. His
reasoning, in summary, runs as follows. Before the
sentencing guidelines were promulgated, Congress already had
defined "crime of violence" in 28 U.S.C. 2901(c) as
including "burglary or housebreaking in the nighttime."
Burglary in the daytime, by implication, was excluded. Under
2901(g), a narcotics offender charged with a crime of
violence could not be eligible for the civil commitment and
rehabilitation programs governed by that chapter. Since
Congress, in 28 U.S.C. 994(a), later directed that the
Sentencing Commission promulgate sentencing guidelines
"consistent with all pertinent provisions of this title and
title 18, United States Code," the definition of "crime of
violence" in 4B1 was impermissible to the extent that it
was inconsistent with the earlier definition in 2901(c).
Further, according to Georgacarakos, it would be unfair to
subject defendants to such inconsistency in the treatment of
burglary of a dwelling in the daytime.
We reject Georgacarakos' argument, and affirm the
decision of the district court, for the reasons stated in the
district court's February 26, 1993 order and memorandum of
opinion. Section 2901 expressly states that the definitions
contained therein are for the terms "[a]s used in this
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chapter," a chapter which is limited to civil commitment and
rehabilitation of narcotics addicts. That section's
definition of "crime of violence," therefore, does not govern
any use of the same term outside that chapter.
Consequently, the inconsistency between the
definitions of "crime of violence" in 4B1 of the sentencing
guidelines and in 2901(c) is perfectly permissible and does
not run afoul of the requirement of 28 U.S.C. 994(a) that
the sentencing guidelines be "consistent with all pertinent
provisions" of Titles 18 and 28. Section 2901's definition
of a "crime of violence" "[a]s used in this chapter" did not
preclude Congress from choosing to define the term
differently in a different context. The 2901(c)
definition, therefore, was not a "pertinent provision" of
Title 28 with which the sentencing guidelines had to be
consistent.
Indeed, as Georgacarakos himself concedes, Congress
permissibly defined "violent felony" in the Armed Career
Criminal Act ["ACCA"], 18 U.S.C. 924(e)(2)(B), as including
simply "burglary," also a definition substantially different
from the definition of "crime of violence" in 2901(c).
According to Georgacarakos, "Had Congress [in 4B1] intended
any other meaning than that given crime of violence in [ ]
2901, it would have created a new term, just as it created
the term 'violent felony' when it enacted the Armed Career
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Criminal Act . . . . Congress intended a different
definition for that act so it created a term to fit its
intentions. This is what Congress would have done [in 4B1]
had it intended any other definition for crime of violence
than the one it has had for two decades." Thus, by
Georgacarakos' reasoning, if 4B1, like the ACCA, had simply
used the term "violent felony" instead of "crime of
violence," but with precisely the same substantive
definition, there would be no problem.
We will not, in these circumstances at least,
attach so much importance to the labels placed on statutory
concepts. The mere fact that 4B1 uses the same words --
"crime of violence" -- as in 2901(c) does not require any
different result than if 4B1 employed some different label.
Indeed, as we noted in United States v. Fiore, 983 F.2d 1
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(1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993), "[t]he
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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). Decisions interpreting the ACCA constitute persuasive
authority when a court is called upon to construe the career
offender guideline." Id. at 3 n.2 (citations omitted).
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The real crux of Georgacarakos' argument is that
the choice of the label "crime of violence" must nevertheless
be determinative because that label must logically carry with
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it 2901(c)'s pre-existing definition of that term. As we
have already ruled, this argument fails because 2901(c)'s
definition is expressly limited to the term's use in that
chapter.
Nor do we see any adverse practical consequences of
the presence of different definitions of the same term in
these two contexts. As the district court pointed out,
commission of a "crime of violence" under 2901 precludes a
narcotics offender from participation in rehabilitation
programs in lieu of imprisonment, whereas commission of a
"crime of violence" under 4B1 may lead to career offender
status under the sentencing guidelines, resulting in an
enhanced sentence. These are two very different
determinations that would not foreseeably overlap at all.
For that reason, the differing definitions should create
neither unfairness for offenders nor interpretive
difficulties for courts. There is no genuine conflict
between them.
The district court's denial of Georgacarakos'
motion under 28 U.S.C. 2255 is affirmed.
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