UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1104
UNITED STATES,
Appellee,
v.
VINSON MANGOS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lynch, Circuit Judge.
William Maselli, with whom Law Offices of William Maselli
was on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Jay P. McCloskey, United States Attorney, and George T.
Dilworth, Assistant United States Attorney, were on brief for
appellee.
January 23, 1998
* Of the Eighth Circuit, sitting by designation.
John R. Gibson, Senior Circuit Judge. Vinson Mangos
appeals from a sentence imposed upon him following his guilty
plea to transferring a firearm knowing that it would be used to
commit a drug trafficking crime, in violation of 18 U.S.C.
924(h) (1994). He contends that the district court erred in
imposing an eighty-eight month sentence. He argues that: (1) his
earlier assault conviction in a Massachusetts court was not a
crime of violence under the sentencing guidelines; (2) the
district court misinterpreted the guidelines in its treatment of
this issue; (3) the district court erred as a matter of law in
not departing downward because of the overcounting of prior
offenses; and (4) in not granting him a role reduction because
he was the least culpable of the various participants. We
affirm.
The primary issues in this appeal are the attacks upon
the sentence, and thus an abbreviated outline of the events
giving rise to his guilty plea suffices. Mangos and three
others, Gordon Higgins, Cathy Tremblay, and Luis Morey, attempted
to rob John Collins, whom they believed was selling crack cocaine
from his trailer. In doing so, Mangos carried his 20-gauge
shotgun with a pistol grip when he, Higgins, and Morey entered
Collins's trailer. This robbery attempt was aborted.
Four days later Mangos declined to join Higgins,
Tremblay, and Morey in a second effort to rob Collins, but
allowed Higgins to use his shotgun, knowing that Higgins planned
to use it in the robbery. Collins fled through a window but the
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robbers injured Collins's girlfriend, Jennifer Hanscomb. The
robbers found no drugs and left the trailer.
Mangos was charged with a drug conspiracy count and a
count for the use of a firearm in a drug trafficking crime.
These charges were dismissed when Mangos pleaded guilty to
transferring a firearm knowing it would be used to commit a drug
trafficking crime.
In sentencing Mangos, the district court assessed two
points for a 1992 Massachusetts conviction for larceny, one point
for a 1992 assault and battery under Massachusetts law, and yet
another point for a 1992 Massachusetts conviction for possession
of crack cocaine. A 1994 Maine conviction for assault resulted
in two points, and a 1994 guilty plea to a separate assault
charge in Maine resulted in one point. After failing to pay
fines for operating a vehicle under the influence of alcohol in
1994, Mangos was sentenced to incarceration in lieu of the fines,
which resulted in two additional criminal history points. The
subtotal of the criminal history score was nine, but two points
were added because Mangos committed the offense of conviction
less than two years after he was released from custody for
violating his probation on the assault charge. He thus had
eleven criminal history points, which gave him a criminal
category of V.
The district court placed the base offense level at 24.
The district court added four levels, producing an adjusted
offense level of 28, because Mangos transferred the firearm with
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the knowledge and intent that it would be used in connection with
another felony offense. With a three-level reduction for
acceptance of responsibility, the total offense level was 25 with
a criminal history category of V. The government made a section
5K1.1 motion, and the district court departed downward by twelve
months to reach the sentence of eighty-eight months imprisonment,
to be followed by three years of supervised release and a $100
special assessment.
I.
I.
A.
A.
Mangos argues that the district court erred in
characterizing his earlier assault and battery of Manuel Herrera
in Massachusetts as a "crime of violence" for the purposes of
sentencing. Mangos contends that the description in the charging
instrument that he "did assault and beat" Herrera is boilerplate
language and as such does not sufficiently distinguish whether
the assault and battery involved violence or merely nonconsensual
offensive touching. The government responds that the language
"assault and beat" indicates that the crime involved violence or
threatened violence, and, in any event, created a serious risk of
potential injury to another.
Under the U.S. Sentencing Guidelines Manual section
2K2.1, a defendant convicted of illegally transferring a firearm
is assigned a base offense level of 24 if the defendant has at
least two prior felony convictions of either a crime of violence
or a controlled substance offense, as opposed to a base offense
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level of 22 if the defendant has only one such prior offense.
The district court determined that Mangos's prior convictions for
the assault and battery of Herrera and the assault and battery of
Evagelio Rodr guez qualified Mangos for the higher base offense
level.
Whether the assault and battery of Herrera was a "crime
of violence" under the Sentencing Guidelines is a question of
law, which we review de novo. See United States v. Fern ndez,
121 F.3d 777, 778 (1st Cir. 1997). The term "crime of violence"
is defined in the Sentencing Guidelines as any offense punishable
by imprisonment for a term exceeding one year 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 ... or
otherwise involves conduct that presents
a serious potential risk of physical
injury to another.
U.S.S.G. 4B1.2. In determining whether a prior offense meets
this definition, we take a formal categorical approach, looking
to the statutory formulation of the crime charged rather than to
the facts behind the actual conviction. See United States v.
Damon, 127 F.3d 139, 142 (1st Cir. 1997); United States v. De
Jes s, 984 F.2d 21, 23 (1st Cir. 1993).
Massachusetts statutory law makes assault and battery a
criminal offense punishable by up to two and one-half years
imprisonment, but does not define assault and battery. See Mass.
Gen. Laws ch. 265, 13A (1996). We look to Massachusetts common
law for the meaning of "assault and battery." In Commonwealth v.
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Burke, 457 N.E.2d 622 (Mass. 1983), the Supreme Judicial Court of
Massachusetts defined assault as an "offer or attempt to do a
battery" and stated that every battery includes an assault. Id.
at 624 (citations omitted.). The court in Burke then stated that
the law of battery is bifurcated into harmful batteries and
offensive batteries. Id.
We reject Mangos's contention that because assault and
battery includes offensive but nonharmful conduct, it should not
be considered a crime of violence. Under the Sentencing
Guidelines, the term "crime of violence" is not limited to those
crimes for which violence is a necessary element, but instead
extends to any crime which "otherwise involves conduct that
presents a serious potential risk of physical injury to another."
U.S.S.G. 4B1.2(1)(ii).
In Fern ndez, this court determined that the
Massachusetts crime of assault and battery upon a police officer
was properly classified as a crime of violence under the
sentencing guidelines. 121 F.3d at 780. We reasoned, "While it
is true that neither violence, nor the use of force, is an
essential element of the crime as statutorily defined, still,
violence, the use of force, and a serious risk of physical harm
are all likely to accompany an assault and battery upon a police
officer." Id. While we recognize that the risks inherent in the
assault and battery upon a police officer may differ from those
involved in a simple assault and battery, we believe that the
reasoning in Fern ndez applies with similar force to this case.
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When the state criminal statute involves different
types of offenses, some arguably violent and some not, we look
first to the charging document to see which type of offense is
involved. See Taylor v. United States, 495 U.S. 575, 602 (1990);
Damon, 127 F.3d at 142-143. Here, the charging document states
that Mangos "did assault and beat" Manuel Herrera. The district
court, following United States v. Harris, 964 F.2d 1234 (1st Cir.
1992), found that this statement that the assault amounted to a
beating of Herrera qualified the crime charged as a violent and
felony offense. This places Mangos's offense into the harmful
battery type, and thus meets the definition of a crime of
violence under U.S.S.G. 4B1.2. There is nothing in the record
or the charging document that refers to an offensive touching or
a touching without consent, such as described in Burke.
B.
B.
Mangos additionally argues that the district court
erred in counting Mangos's conviction for the assault and battery
of Herrera and his conviction for the assault and battery of
Rodr guez as separate prior felony convictions and therefore
sentencing Mangos to a base offense level of 24. Mangos asserts
that the sentences for these offenses were related because they
were consolidated for sentencing. He contends that because the
sentences were related, the offenses should be treated as a
single prior felony conviction under section 2K2.1. This
argument, however, is based upon a misreading of the guidelines.
Mangos cites section 4A1.2(a)(2), which states, "Prior sentences
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imposed in related cases are to be treated as one sentence for
purposes of 4A1.1(a), (b), and (c)." By its own terms, this
provision does not govern the treatment of "prior felony
convictions" under section 2K2.1. As a result, we conclude that
Mangos's argument regarding related sentences is without merit.
II.
II.
Mangos contends that the district court erred in
including his conviction in a Maine state court for assaulting
his sister as part of his criminal history for the purposes of
sentencing. Mangos claims that the conviction was not counseled
and is not a reliable indicator that he actually committed the
assault. The government responds that the Maine conviction was
counseled and that no basis exists for rejecting that conviction
as unreliable. Because the parties dispute whether the Maine
conviction was counseled, the questions we must address are
questions of fact. Therefore, we review only for clear error.
See United States v. Goldberg, 105 F.3d 770, 777 (1st Cir. 1997).
On November 1, 1993, the State of Maine arrested Mangos
for assaulting his sister, Roxanna Mangos. In March 1994, the
state moved to have the charge "filed" with no costs. Later that
year, however, the charge was brought forward again when Mango
was also charged with operating a vehicle while under the
influence and operating after suspension. Mangos pleaded guilty
to all of the charges. Mangos was sentenced to ten days for the
assault, to be served concurrently with a seven day sentence
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imposed for the offenses.
The current dispute arises from the form of
representation Mangos was assigned on the day he plead guilty to
the above charges. At the time Mangos was arraigned, the state
court had a pilot program known as "lawyer for a day." The
purpose of the program was to facilitate early resolutions of
cases by allowing people who were considering entering guilty
pleas to consult with an attorney. Typically, the lawyer for the
day, usually an experienced criminal defense attorney, would be
assigned to about fifteen defendants. The lawyer would meet with
the defendants for anywhere from five minutes to a half hour.
During that time, the lawyer would review any available
paperwork, discuss apparent defenses, and negotiate with the
district attorney.
Mangos appears to argue that this form of
representation was too limited to be considered legal counseling.
We are not persuaded. Mangos was assigned an experienced
criminal defense attorney charged with the professional duty of
zealous advocacy. Mangos's lawyer appears to have had discretion
both in how long to consult with Mangos and in what courses of
action to advise. Nothing indicates that Mangos's attorney was
in any way prohibited from advising against a guilty plea or
suggesting that Mangos seek further counsel. In light of these
facts, it is clear that Mangos's claim that he was not counseled
is, in actuality, an ineffective assistance of counsel claim. A
sentencing court is an inappropriate forum for ineffective
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assistance of counsel claims addressed to prior convictions. See
Custis v. United States, 511 U.S. 485, 496 (1994).
We also conclude that the Maine conviction was a
reliable indicator that Mangos committed the charged offense.
Mangos pleaded guilty to assaulting his sister and was sentenced
to ten days in prison. We refuse to probe Mangos's possible
motives for entering that plea, and accept the guilty plea as an
admission of guilt. We hold that the district court did not
clearly err in including the Maine conviction as part of Mangos's
criminal history.
III.
III.
Mangos argues that the district court erred in failing
to grant an additional downward departure (beyond the section
5K1.1 downward departure) under U.S.S.G. 4A1.3 (Policy
Statement). Section 4A1.3 provides, in part, that a sentencing
court may depart from the applicable guideline range when "the
court concludes that a defendant's criminal history category
significantly over-represents the seriousness of a defendant's
criminal history or the likelihood that the defendant will commit
further crimes."
Generally, an appellate court lacks jurisdiction to
review a sentencing court's discretionary decision not to depart
below the guideline sentencing range. United States v. Pierro,
32 F.3d 611, 619 (1st Cir 1994), cert. denied, 513 U.S. 111
(1995). An exception to this general rule applies when the
sentencing court's decision not to depart is based upon its
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belief that it lacks the authority or power to depart. Id.;
United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995).
After reviewing the record, we do not believe the
exception is applicable in this case. Mangos made the
overrepresentation argument to the district court. The district
court expressed that it had taken into account the arguments for
a downward departure but concluded that the assigned criminal
history category "adequately and appropriately" represented
Mangos's extensive criminal history. Thus, the district court
recognized its authority to depart downward on this ground and
exercised its discretion in declining to do so. Consequently, we
lack jurisdiction to review its determination.
IV.
IV.
Finally, Mangos maintains that the district court erred
in failing to grant a downward adjustment for his role in the
offense of transferring a firearm. Specifically, Mangos asserts
that the district court should have considered his role in the
context of the overall criminal activity including the robbery
and not just in the context of the transfer of the firearm. He
further argues that, even in the context of the transfer of the
firearm, he was still less culpable than other participants.
Under the Sentencing Guidelines, a defendant's offense
level may be adjusted downward if the defendant was substantially
less culpable than other participants in the crime. U.S.S.G.
3B1.2 (1995). The burden, however, is on the defendant to
establish that a downward adjustment is warranted. United States
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v. Ortiz, 966 F.2d 707, 717 (1st Cir. 1992), cert. denied, 506
U.S. 1063 (1993). In addition, because role-in-the-offense
determinations are fact-bound, we review them only for clear
error. United States v. Jackson, 3 F.3d 506, 508 (1st Cir.
1993).
The district court considered sentencing Mangos
according to the guidelines for robbery, U.S.S.G. 2B3.1, but
ultimately sentenced Mangos according to the guidelines for
prohibited transactions involving firearms or ammunition,
U.S.S.G. 2K2.1. Mangos was therefore not convicted of either
the robbery or the attack on Jennifer Hanscomb, and the court
held that he was not substantially less culpable than the other
participants for his convicted offense of illegally transferring
a firearm. At sentencing, the district court assumed for the
purposes of sentencing that Sam Gaiewski was involved in
transferring the firearm and may have been the individual who
actually removed the firearm from Mangos' apartment. The
district court, nevertheless, found that Mangos owned the
firearm, knew of its intended use, and authorized its transfer.
The district court held that, as a result, a role reduction was
not appropriate. The district court did not clearly err in this
determination.
We affirm the sentence imposed by the district court.
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