United States v. Schofield

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-2332

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL V. SCHOFIELD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

George J. West, by Appointment of the Court, for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, and Gerard B. Sullivan,

Assistant United States Attorney, were on brief for the United States.

June 10, 1997

Per Curiam. Michael Schofield pled guilty to one count

of being a "felon in possession" of a firearm, 18 U.S.C.

922(g), and received a mandatory minimum sentence of 15

years imprisonment under the Armed Career Criminal Act

("ACCA"), id. 924(e)(1). He now appeals this sentence,

arguing that certain prior state convictions in Rhode Island

do not count as "predicate offenses" triggering the ACCA. We

disagree and affirm.

The ACCA establishes a 15-year mandatory minimum

sentence for any person who violates section 922(g) and has

three prior convictions "for a violent felony or a serious

drug offense, or both, committed on occasions different from

one another." 18 U.S.C. 924(e)(1). Prior to Schofield's

guilty plea, the government filed an information charging him

with six prior "violent felony" convictions, which are also

described in his Presentence Investigation Report ("PSR").

On appeal, he does not challenge the classification as a

violent felony of one robbery conviction. See PSR 40.

Schofield does, however, argue that the other five

convictions were not for "violent felonies" within the

meaning of the statute.

Schofield's argument might seem extraordinary with

respect to his prior conviction for second degree robbery.

See PSR 38. In the course of that offense, Schofield

knocked his victim to the pavement and stole her purse--

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certainly "violent" conduct. But the ACCA operates at a

level of abstraction and requires courts, in determining

predicate convictions, to employ "a formal categorical

approach, looking only to the statutory definitions of the

prior offenses, and not to the particular facts underlying

those convictions." Taylor v. United States, 495 U.S. 575,

600 (1990).

Nevertheless, Rhode Island's second degree robbery

offense is plainly a predicate offense for purposes of the

ACCA. The statute--unchanged in pertinent part since

Schofield's violation in 1991--defines second degree robbery

as "robbery or other larceny from the person by force or

threat, where there is no weapon and no injury and the victim

is neither a handicapped person or an elderly person." R.I.

Gen. Laws 11-39-1. The "force or threat" requirement

undoubtedly brings the offense within the ACCA's category of

violent felonies, which includes any felony that, inter alia,

"has as an element the use, attempted use, or threatened use

of physical force against the person of another." 18 U.S.C.

924(e)(2)(B).1

1Accord United States v. Brown, 52 F.3d 415, 426 (2d

Cir. 1995) (New York attempted robbery conviction is a
"violent felony"), cert. denied, 116 S. Ct. 754 (1996);

United States v. Presley, 52 F.3d 64, 69 (4th Cir.), cert.

denied, 116 S. Ct. 237 (1995) (Virginia robbery conviction is

"violent felony"); United States v. Dickerson, 901 F.2d 579,

584 (7th Cir. 1990) (Illinois robbery conviction is "violent
felony").

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We are left to determine whether one or more of

Schofield's breaking and entering convictions can serve as a

predicate offense, bringing to three the total number of

"violent felonies." One of those convictions was for

breaking and entering a commercial or public building in

violation of R.I. Gen. Laws 11-8-4. See PSR 39.2 We

have previously held that convictions for conspiracy to

violate this same statute are "violent felonies" within the

meaning of U.S.S.G. 4B1.2(1), United States v. Fiore, 983

F.2d 1, 4 (1st Cir. 1992), cert. denied, 507 U.S. 1024

(1993); and cases interpreting that provision are pertinent

in construing the ACCA's "violent felonies" category, see

United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).

(Under Taylor, it is irrelevant whether the school was

occupied or there was any actual threatened violence.)

Because the schoolhouse breaking and entering offense was a

violent felony, we need not consider the other three breaking

and entering convictions.

Finally, Schofield contends that the various prior

offenses were not "committed on occasions different from one

2As Schofield observes, the state judgment and other
documents do not indicate the specific breaking and entering
statute under which Schofield was convicted. But Schofield
does not dispute the PSR's portrayal of the offense, which
involved the breaking and entering of a public school
building. Section 11-8-4 is the only Rhode Island breaking
and entering statute that would have applied to this crime.
See R.I. Gen. Laws 11-8-2 et seq.

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another," as required by section 924(e)(1). But there is no

question that the three predicate offenses on which we have

relied took place on different dates and at different

locations, and that is all the ACCA requires. United States

v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995). "Congress,

thinking primarily about the protection of the public,

adopted a definition of armed career criminal that ignores

the duration of the career . . . or the lack of lengthy

intervals or arrests between the crimes." Id. Because the

district court properly sentenced Schofield under the ACCA,

we need not reach his challenges to the alternative sentence

imposed under the Sentencing Guidelines.

Affirmed.

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