USCA1 Opinion
November 24, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1551
UNITED STATES,
Appellee,
v.
ALFRED LAWRENCE HUNNEWELL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Wayne R. Foote on brief for appellant.
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Jay P. McCloskey, United States Attorney, Nicholas M. Gess,
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Assistant United States Attorney, and Margaret D. McGaughey,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Defendant-appellant Alfred Lawrence
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Hunnewell pled guilty to a charge of possession with intent
to distribute marijuana, and distribution of it, within 1,000
feet of a secondary school, see 21 U.S.C. 841(a)(1), 860,
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and a charge of possessing cocaine with intent to distribute,
and distribution of it, see 21 U.S.C. 841(a)(1). The
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district court sentenced appellant under the federal
sentencing guidelines as a career offender.1 Hunnewell
challenges his sentence, claiming that he was improperly
classified as a career offender.
I. BACKGROUND
At sentencing, the government described four
offenses as predicate offenses for career offender status:2
1. A robbery occurring on September 18, 1978,
in which Hunnewell and a man named Haskell
physically attacked a male in Deering Oaks Park,
Portland, Maine, and stole the victim's wallet.
Hunnewell pled guilty to this offense on February
2, 1979 and was sentenced in state court to a three
year prison term, all but thirteen months of which
were suspended.
2. A robbery occurring on September 19, 1978,
in which Hunnewell and Haskell physically attacked
and stole money from a different male in the same
venue. A jury found appellant guilty. He was
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1. After finding that appellant qualified under the career
offender guideline, the district court established the
guideline sentencing range at 188-235 months (adjusted
offense level--31; criminal history category--IV) and imposed
a sentence at the bottom end of the sentencing range.
2. On appeal, the government argues that a fifth conviction
is a qualifying predicate offense. We need not address this
argument.
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sentenced in state court on January 16, 1979 to a
three year prison term, all but fourteen months of
which were suspended.
3. A state court conviction for unlawfully
furnishing a scheduled drug. On April 8, 1982,
Hunnewell was sentenced in state court for this
offense to twenty-seven months imprisonment.
4. Two counts of unlawfully trafficking in a
scheduled drug, consolidated for trial and
sentencing in state court. On April 15, 1987,
Hunnewell was sentenced to two years imprisonment,
all but six months of which were suspended.
In response, Hunnewell argued that the two drug
convictions could not properly be counted as predicate
offenses for career offender status. Although he did not
dispute that the career offender guidelines list state drug
convictions among the crimes that can be used to determine
career offender status,3 appellant asserted that the
Sentencing Commission illegally exceeded its statutory
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3. The career offender guidelines provide in relevant part:
A defendant is a career offender if . . . (3) the
defendant has at least two prior felony convictions
of either a crime of violence or a controlled
substance offense.
U.S.S.G. 4B1.1 (Nov. 1992).
The term "controlled substance offense" means an
offense under a federal or state law prohibiting
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 (Nov. 1992).
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mandate when it designated state drug convictions as
predicate offenses.
Moreover, in appellant's view, the robbery cases
are related cases for sentencing purposes within the meaning
of U.S.S.G. 4A1.2. In particular, Hunnewell argues that
the two robberies were part of a common scheme or plan "to
run homosexuals out of Deering Oaks Park in Portland" (the
scene of both robberies), and to rob them in the process.4
Thus, appellant says, they should only count as a single
predicate offense. See 4A1.2, comment. (n.3) (stating that
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"[P]rior sentences are considered related if they resulted
from offenses that (1) occurred on the same occasion, (2)
were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing").
The district court found that the two robbery
offenses were not part of a common scheme or plan and, thus,
were two separate predicate offenses for purposes of the
career offender guidelines. The court premised career
offender status on these two robbery offenses and did not
address the state drug convictions.
II. DISCUSSION
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4. In the court below, appellant also argued that the cases
were consolidated. The district court determined on the
facts that this was not so, and appellant does not renew that
argument here.
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U.S.S.G. 4B1.1 provides that a defendant is a
career offender if three conditions are met. United States
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v. Elwell, 984 F.2d 1289, 1294 (1st Cir.), cert. denied, 113
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S. Ct. 2429 (1993). First, the defendant must be at least
eighteen years old at the time of the instant offense. Id.
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Second, the instant offense must be a felony that is either a
crime of violence or a controlled substance offense. Id.
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Third, the defendant must have at least two prior felony
convictions of either a crime of violence or a controlled
substance offense. Id. On appeal, Hunnewell does not
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dispute that the first two conditions for career offender
status are met. The sole issue is whether the third
condition has been satisfied.
With respect to the two state drug convictions,
appellant reiterates his argument below that the Sentencing
Commission had no authority to write the career offender
guidelines to include convictions under state drug laws as
predicate offenses. Appellant contends that the enabling
statute, 28 U.S.C. 994(h), allows only drug convictions
obtained under the federal statutes it enumerates to count as
predicate offenses for career offender status.5 The Third
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5. The statute provides in pertinent part:
The Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or
near the maximum term authorized [by statute] for
categories of defendants in which the defendant . .
. (2) has previously been convicted of two or more
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Circuit repudiated precisely the same argument in United
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States v. Whyte, 892 F.2d 1170, 1174 (3d Cir. 1989), cert.
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denied, 494 U.S. 1070 (1990). We have previously adopted the
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rationale of the Whyte court, see United States v. Dyer, No.
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93-1045, slip op. at 2 (1st Cir. June 18, 1993) (per curiam),
and we reject appellant's argument on the authority of Dyer.
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Accordingly, the two state drug convictions are predicate
offenses for career offender status.
We need go no further. Since career offender
status requires proof of only two prior convictions for
predicate offenses, it would be pointless to consider whether
the trial court erred in its determination that the robberies
are unrelated offenses. Consequently, the judgment below is
affirmed. See Loc. R. 27.1.
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prior felonies, each of which is (A) a crime of
violence; or (B) an offense described in section
401 of the Controlled Substances Act (21 U.S.C.
841), sections 1002(a), 1005, and 1009 of the
Controlled Substances Import and Export Act (21
U.S.C. 952(a), 955, and 959), and section 1 of the
Act of September 15, 1980 (21 U.S.C. 955a).
28 U.S.C. 994(h).
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