United States v. Field

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 93-2212

UNITED STATES,

Appellee,

v.

NELSON FIELD,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and McAuliffe*, District Judge.

Gordon R. Blakeney, Jr., for appellant.

Jean B. Weld, Assistant Attorney General, with whom Paul M.

Gagnon, United States Attorney, was on brief for appellee.

November 4, 1994

*Of the District of New Hampshire, sitting by designation.

BOWNES, Senior Circuit Judge. There are two issues
BOWNES, Senior Circuit Judge.

raised in this appeal: whether the district court erred in

accepting defendant's guilty plea; and whether the district

court erred in sentencing defendant.

Defendant-appellant was charged in count two of a

two-count indictment with being a felon in possession of a

firearm on February 28, 1993, in violation of 18 U.S.C.

922(g)(1).1 Defendant signed a written plea agreement on

July 16, 1993, and entered a plea of guilty on July 28, 1993.

The Acceptance of the Guilty Plea
The Acceptance of the Guilty Plea

Defendant challenges the district court's

acceptance of his guilty plea on two grounds: that the plea

was not truly voluntary because the district court did not

establish on the record that he understood the charges

against him and the relation of the law to the facts; and,

that the district court accepted the plea without

establishing an adequate record showing a factual basis for

the plea. For the reasons that follow, we reject defendant's

attacks on the acceptance of his guilty plea.

We think it advisable to start our analysis with

the facts surrounding the arrest of defendant. On February

28, 1993, the police in Jaffrey, New Hampshire, received a

911 call alerting them to the armed robbery of a convenience

1. Dennis Ellis, a co-defendant, was charged in count one of
the indictment with illegal possession of a sawed-off shotgun
in violation of 26 U.S.C. 5861(c).

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store. The police responded promptly. When they arrived at

the scene, they saw a parked vehicle with its engine running.

They also noticed a shotgun on the seat. Because it was

apparent that the barrel of the shotgun had been sawed off,

the police seized it; it was found to be fully loaded. Co-

defendant Dennis Ellis came out of the store with a ski mask

on the top of his head. He admitted the shotgun was his and

was arrested. Defendant then came out of the store. He was

forced to lie on the ground and was searched. The police

found a .22 caliber Sedro pistol with one round of ammunition

in the chamber in defendant's jacket pocket. It is not

contested that the pistol was manufactured in California and

traveled in interstate commerce to New Hampshire.

The law governing the acceptance of a guilty plea

under Fed. R. Crim. P. 11 is well established. A plea

"cannot be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts." McCarthy

v. United States, 394 U.S. 459, 466 (1969). See also United

States v. Broce, 488 U.S. 563, 570 (1989).

In United States v. Ruiz-Del Valle, 8 F.3d 98 (1st

Cir. 1993), we allowed a defendant to withdraw her guilty

plea because she put the court on notice that she did not

understand the nature of the charges against her. Id. at

103. This was not the situation here. The nature of the

charges against defendant were clearly explained to him by

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the district court judge. And there can be no doubt, from

the answers to the questions asked directly of him by the

judge, that defendant comprehended accurately the elements of

the offense charged.

Defendant now argues that because he told the judge

that he had seen a psychiatrist three or four times after he

was arrested, the court should have been alerted that

"intent" might be an issue. Defendant was unable to give the

name of the psychiatrist, and it was never suggested by

defendant's attorney or defendant himself that mental

competency might be an issue. Defendant told the court that

he went to see the psychiatrist because "I got a habit of

carrying weapons." He also said that the psychiatrist did

not make an assessment of this problem. If defendant is

suggesting that this is a basis for finding incompetency, we

reject it.

As far as "intent" and "mens rea" are concerned,

there are two answers to defendant's assertions that they

were not properly explained to him. The first is that both

were explained correctly to defendant. The court stated,

inter alia:

[T]he Government must prove that you
knowingly received or possessed, and here
you're charged with being in --
possessing, or transported the firearm in
question. And when we use the word
knowingly, what the law means is that you
were -- that you acted voluntarily and
deliberately, not by mistake or through

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inadvertence; in other words, that you
voluntarily received or had in your
possession the firearm in question.

The second reason is that in order to convict a

defendant of this crime, being a felon in possession of a

firearm, the only knowledge by defendant required to be

proved is that the instrument possessed was a firearm.

United States v. Freed, 401 U.S. 601, 607 (1971). In United

States v. Carter, 815 F.2d 827, 829 (1987), we held that

because the Rule 11 hearing transcript disclosed that the

defendant knew the nature of the charges against him, no mens

rea hearing was necessary. So it is here.

Even if a record discloses a failure to establish a

factual basis for the guilty plea, which this one does not,2

it would be of no moment. In United States v. Zorrilla, 982

F.2d 28, 30 (1st Cir. 1992), cert. denied, 113 S. Ct. 1665

(1993), we held that lack of prejudice resulting from such

failure "is fatal to appellant's claim." Here, defendant has

pointed to, and we can discern no prejudice.

In sum, our review of the transcript of the change

of plea hearing shows that the district court judge fully

complied with the strictures of Rule 11.

2. Defendant explicitly stated that there was no dispute
with the facts as stated by the prosecutor: that a fully
loaded Sedro .22 caliber pistol was found in the possession
of defendant, and that the pistol was manufactured in
California and traveled in interstate commerce from there to
New Hampshire.

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The Sentencing
The Sentencing

The Sentence
The Sentence

At the hearing on the guilty plea the district

court carefully explained to defendant the sentence

enhancement required if it found that the Armed Career

Criminal Act (ACCA), 18 U.S.C. 924(e), applied.3 Because

the presentence investigation report had not been prepared at

the time of the guilty-plea hearing, the judge was not sure

what the enhancement would be if he found defendant to be an

Armed Career Criminal. It was, therefore, agreed by the

government and defendant, with the court's approval, that if

the sentence exceeded 235 months, defendant would have the

right to withdraw his guilty plea.

3. The Act provides in pertinent part:

(e)(1) In the case of a person who
violates section 922(g) of this title and
has three previous convictions by any
court referred to in section 922(g)(1) of
this title for a violent felony or a
serious drug offense, or both, committed
on occasions different from one another,
such person shall be fined not more than
$25,000 and imprisoned not less than
fifteen years, and, notwithstanding any
other provision of law, the court shall
not suspend the sentence of, or grant a
probationary sentence to, such person
with respect to the conviction under
section 922(g), and such person shall not
be eligible for parole with respect to
the sentence imposed under this
subsection.

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After a lengthy sentencing hearing the court made

the following findings. The court determined that the ACCA

applied. It calculated the total offense level to be 30 and

the criminal history category to be 6. Based on those

determinations, it found the incarceration range to be

between 168 to 210 months, with no eligibility for probation.

The range of supervised release was from three to five years.

The fine range was from $15,000 to $150,000. A special

assessment of $50 is mandated by statute.

Based on these determinations the defendant was

sentenced to incarceration for a term of 180 months. This is

to be followed by a term of supervised release for five

years. Because defendant did not have the wherewithal to pay

a fine, the fine was waived. Defendant was ordered to pay

the special assessment of $50 immediately.

Defendant raises three sentencing issues. (1) One

of the three predicate convictions necessary to implicate the

ACCA was constitutionally invalid because of the ineffective

assistance of counsel. (2) At least one of the three

necessary ACCA convictions did not qualify as such because it

was not a violent crime. (3) The district court erred in

failing to depart downwards and/or failed to undertake a

sufficient fact-finding inquiry into diminished capacity

under U.S.S.G. 5K2.13. We discuss these contentions

seriatim and reject them all.

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The Claim of Constitutional Invalidity
The Claim of Constitutional Invalidity

On February 3, 1987, defendant pled guilty to a

charge of burglary at the regional high school in New

Ipswich, New Hampshire. He claimed at the sentencing hearing

that, at the time of his state plea, he was not advised by

his attorney, a public defender, of the rights he was giving

up by entering a guilty plea.

We think that Custis v. United States, 114 S. Ct.

1732 (1994), prohibits a collateral attack on the state

conviction. The Court held:

The Armed Career Criminal Act, 18
U.S.C. 924(3) (ACCA), raises the
penalty for possession of a firearm by a
felon from a maximum of 10 years in
prison to a mandatory minimum sentence of
15 years and a maximum of life in prison
without parole if the defendant "has
three previous convictions ... for a
violent felony or a serious drug
offense." We granted certiorari to
determine whether a defendant in a
federal sentencing proceeding may
collaterally attack the validity of
previous state convictions that are used
to enhance his sentence under the ACCA.
We hold that a defendant has no such
right (with the sole exception of
convictions obtained in violation of the
right to counsel) to collaterally attack
prior convictions.

Id. at 1734.

The Court concluded its opinion as follows:

We therefore hold that 924(e) does
not permit Custis to use the federal
sentencing forum to gain review of his
state convictions. Congress did not
prescribe and the Constitution does not

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require such delay and protraction of the
federal sentencing process. We

recognize, however, as did the Court of

Appeals, see 988 F.2d, at 1363, that

Custis, who was still "in custody" for

purposes of his state convictions at the

time of his federal sentencing under

924(e), may attack his state sentences in

Maryland or through federal habeas

review. . . . If Custis is successful in

attacking these state sentences, he may

then apply for reopening of any federal

sentence enhanced by the state sentences.

We express no opinion on the appropriate
disposition of such an application.

Id. at 1739 (citations omitted) (emphasis ours).

Defendant seizes upon the delineated language to

contend that since he is no longer in custody because of his

state conviction and therefore cannot attack it on

constitutional grounds either in state court or by federal

habeas review, he should be allowed to do so in the context

of his sentencing under the ACCA. This is an ingenious

argument, but we do not think it can surmount the prohibition

imposed by the Court against using the federal sentencing

forum to review state convictions.

Moreover, even putting aside the holding of Custis,

there is another reason for rejecting defendant's collateral

constitutional attack. Although we acknowledge that

defendant's claim that he was not advised by his attorney of

the rights he was giving up by pleading guilty has some

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support in the state court records,4 we do not have to

decide the significance of the attorney's failure to sign the

plea form at the appropriate place.

During defendant's cross-examination at the

sentencing hearing, he admitted that the state superior court

judge advised him of the rights he was giving up by pleading

guilty. He then testified that he had lied to the state

superior court judge when he told him that he understood all

of the rights he was giving up by pleading guilty.

This testimony evoked the following response from

the district court judge:

[I]f he was lying to Judge Bean then,
certainly his credibility today to this
Court is very questionable on this issue.
Therefore, based on the documents and
based on the testimony, the Court
overrules the objection and the Court
finds that the defendant was in fact
represented by counsel and that he was
aware of the rights that he was giving up
when he entered his guilty plea and that
he was aware of all of the rights that he
was giving up.

We agree with the government that this finding is subject to

the clear error standard of review. See, e.g., United States

v. Tuesta-Toro, 29 F.3d 771, 777 (1st Cir. 1994) (sentencing

4. Defendant's state-court attorney had not signed at the
appropriate space on the plea form, a statement confirming
that he had read the advice of rights form to defendant. The
state court records covering defendant's two earlier ACCA
burglary convictions showed that his attorney, who
represented him in all three burglary cases, confirmed by
signing the plea form at the appropriate place that he had
read the advice of rights.

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court's factual findings reviewed only for clear error).

There was no clear error by the district court.

The Claim that the State Convictions Were Not
The Claim that the State Convictions Were Not

Violent Crimes Under the ACCA
Violent Crimes Under the ACCA

The Act defines "violent felony" in pertinent part

as follows:

(B) the term "violent felony" means
any crime punishable by imprisonment for
a term exceeding one year, . . . that
. . .
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to
another.

18 U.S.C. 924(e)(2)(B)(ii).

Defendant pled guilty to three prior state

burglaries. He was charged in all three crimes with entering

buildings with "a purpose to exercise unauthorized control

over the property of another to deprive the owner thereof,

the said premises not being open to the public at the time

and the said Nelson Field not being licensed or privileged to

enter." He was charged with entering the Eastern Mountain

Sports building on July 21, 1985; with entering the Massenic

Regional High School in New Ipswich, New Hampshire, on April

2, 1986; and with entering the American Legion building in

Jaffrey, New Hampshire, with others, on July 4, 1985.

There can be no doubt that the three crimes to

which defendant pled guilty were burglaries under the New

Hampshire

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statute, which states:

635:1 Burglary.
635:1 Burglary.

I. A person is guilty of burglary if
he enters a building or occupied
structure, or separately secured or
occupied section thereof, with purpose to
commit a crime therein, unless the
premises are at the time open to the
public or the actor is licensed or
privileged to enter. It is an
affirmative defense to prosecution for
burglary that the building or structure
was abandoned.

N.H. Rev. Stat. Ann. 635:1 (1973).

Defendant contends that, "the factual record and

statute in question show, however, that at least one of the

three prior convictions did not qualify as a predicate

violent felony." Defendant's Brief at 21. Defendant does

not identify which of the three fails to qualify as a

predicate violent felony. Except for the dates of entry and

the location of the buildings, all three state indictments

are identical.5 We will therefore analyze the law and the

statutes as to all three predicate crimes.

We start with the leading case: Taylor v. United

States, 495 U.S. 575 (1990). The Court first held it

"implausible that Congress intended the meaning of 'burglary'

for purposes of 924(e) to depend on the definition adopted

by the state of conviction." Id. at 590. The Court, after

5. We are aware that the charge of entering the American
Legion alleged doing so "with others." But this does not
change the nature of the indictment.

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considering several alternative definitions, fashioned its

own generic meaning:

We conclude that a person has been
convicted of burglary for purposes of a
924(e) enhancement if he is convicted
of any crime, regardless of its exact
definition or label, having the basic
elements of unlawful or unprivileged
entry into, or remaining in, a building
or structure, with intent to commit a
crime.

Id. at 599. It seems beyond dispute that this was the core

of the three state crimes to which defendant pled guilty.

The Court then went on to hold "that 924(e)

mandates a formal categorical approach, looking only to the

statutory definitions of the prior offenses, and not to the

particular facts underlying those convictions." Id. at 600.

The Court's final holding was stated as follows:

We therefore hold that an offense
constitutes "burglary" for purposes of a
924(e) sentence enhancement if either
its statutory definition substantially
corresponds to "generic" burglary, or the
charging paper and jury instructions
actually required the jury to find all
the elements of generic burglary in order
to convict the defendant.

Id. at 602. We cannot see how it can be reasonably contended

that the New Hampshire statutory definition does not

"substantially correspond to 'generic burglary'." Nor has

defendant explained how a person could be convicted under the

New Hampshire statute and not be guilty under the generic

definition.

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Nor can defendant find any way out of the ACCA box

through our opinions. See United States v. Wilkinson, 926

F.2d 22, 29 (1st Cir.) (applying Taylor), cert. denied, 501

U.S. 1211 (1991). In United States v. Harris, 964 F.2d 1234

(1st Cir. 1992), we made explicit what was clearly implied in

Taylor:

The Court, in referring to the use of
jury instructions, did not mean that one
who pleads guilty to what would otherwise
constitute a "violent felony" is somehow,
for future sentence-enhancement purposes,
home free. Rather, the Court was giving
an example (it says, "for example") of
one way in which a trial court, faced

with a past conviction for violating a
single statute that covers more than one
crime, might decide which of those crimes

the prior conviction involved.

Id. at 1236. See also United States v. Fiore, 983 F.2d 1, 4

(1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993)

("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."); and

United States v. Bregnard, 951 F.2d 457, 460 (1st Cir. 1991),

cert. denied, 112 S. Ct. 2939 (1992) (state labeling a crime

as a misdemeanor makes no difference for purposes of sentence

enhancement. Under Taylor, the construction of federal laws

not dependent on state law).

The district court did not err in using the ACCA

for sentence enhancement.

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The Failure to Depart Downwards
The Failure to Depart Downwards

Defendant argues that the court's decision not to

depart downwards below the statutory minimum sentence

resulted from its belief that it lacked the authority to so

depart and a misunderstanding of the rules of departure.

This is, of course, an attempt to circumvent our well-

established rule that a district court's decision not to

depart downwards from the sentencing guidelines is not

appealable. United States v. Lombardi, 5 F.3d 568, 571 (1st

Cir. 1993); United States v. Hilton, 946 F.2d 955 (1st Cir.

1991) (collecting cases).

Although there may be some question as to whether

the district court had the discretion to depart downwards

under the criteria articulated in United States v. Rivera,

994 F.2d 942 (1st Cir. 1993), there can be no question that

the court refused to exercise whatever discretion it may have

had. During the sentencing hearing the court stated:

A departure downward under the
circumstances that you are requesting is
strictly discretionary with the Court,
and for all of the previous reasons just
stated by the Court, the Court declines
to exercise its discretion to depart.
Not only do we have a serious prior
record here, which by the way includes a
conviction for being a felon in
possession of a dangerous weapon, granted
it was not a -- it was not a gun, but the
defendant has been down this path before,
and defense counsel has continued to
indicate that his being arrested, that
this involved just a mere possession.

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It was possession, true, but it was a
loaded weapon and the defendant was
intoxicated, and there is nothing more
dangerous, there is no more dangerous a
combination than a loaded gun and alcohol
or a loaded gun and being under the
influence of drugs.
The Court is aware of the youth of the
defendant, and were this mere possession
and no prior record and no alcohol
involved, there might be some grounds to
consider a departure, but the
circumstances before the Court provide
very little, if any, justification at all
for the Court to exercise its discretion
in departing, and therefore the Court
declines to do so and objection number
five in paragraph eleven on the addendum
is overruled.

There is simply no basis for finding that the

sentencing judge did not fully understand its authority under

the Sentencing Guidelines. We therefore lack the

jurisdiction to entertain defendant's argument. See United

States v. DeCosta, No. 93-2120, slip op. at 10 (1st Cir. Oct.

7, 1994).

Finally, defendant seems to suggest that the

district court should have departed downwards by reason of

defendant's "diminished capacity" under U.S.S.G. 5K2.13.

Defendant's failure to request a downward departure on this

ground in the district court forecloses our consideration of

the issue. United States v. Ortiz, 966 F.2d 707, 717 (1st

Cir. 1992); United States v. Pilgrim Market Group, 944 F.2d

14, 21 (1st Cir. 1991). We also note that there is very

little evidence in the record to support such a claim.

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Affirmed.
Affirmed.

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