UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1769
UNITED STATES OF AMERICA,
Appellant,
v.
HOWARD T. WINTER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Selya, Circuit Judge.
Fred M. Wyshak, Jr., Assistant United States Attorney, with
whom A. John Pappalardo, United States Attorney, was on brief,
for appellant.
Richard M. Egbert, with whom MaryEllen Kelleher was on
brief, for appellee.
April 25, 1994
SELYA, Circuit Judge. It is common wisdom that the
SELYA, Circuit Judge.
past is prologue, foreshadowing the future. When convicted
criminals rise to be sentenced in a federal court, the career
offender guideline, U.S.S.G. 4B1.1, imbues that aphorism with a
special meaning.1 In such a setting, however, all past crimes
are not regarded as equal; the guideline is fueled only by
previous felony convictions for crimes of violence and controlled
substance offenses. See id.
The case before us requires that we determine whether
particular convictions attributable to certain racketeering
activities constitute crimes of violence within the purview of
this guideline. Because we agree with the district court that
they do not, we affirm the sentence imposed below.
I.
Travel of the Case
On May 17, 1993, defendant-appellee Howard T. Winter
pleaded guilty to one count of conspiracy to possess cocaine with
intent to distribute, see 21 U.S.C. 841(a)(1), and five counts
of aiding and abetting the same offense, see 18 U.S.C. 2. The
district court, which had ruled out the career offender guideline
during a special pre-plea hearing, imposed a ten-year
incarcerative sentence. It is undisputed that, had the court
1The November 1992 edition of the guidelines applies in this
case. See United States v. Harotunian, 920 F.2d 1040, 1041-42
(1st Cir. 1990) (explaining that the guidelines in effect at the
time of sentencing control unless ex post facto considerations
prohibit their use). Hence, all references herein are to that
edition.
2
employed the career offender guideline, a significantly greater
sentence would have been mandated.
The government appeals pursuant to 18
U.S.C. 3742(b)(2).
II.
The Problem
Under the sentencing guidelines, career offender status
attaches if (1) the defendant achieved the age of majority before
committing the offense of conviction, (2) that offense is a
felony which can itself be characterized as either a crime of
violence or controlled substance offense, and (3) the defendant's
criminal history reflects a minimum of two prior felony
convictions (known colloquially as "predicate offenses") for
either crimes of violence or crimes involving controlled
substances. See U.S.S.G. 4B1.1. In this case, defendant
concedes that most but not all of these preconditions obtain:
he committed the offense of conviction more than four decades
after turning eighteen; that offense is a controlled substance
offense; and he labors under the burden of a prior conviction for
extortion a crime that is considered a crime of violence, see
United States v. DeLuca, F.3d , (1st Cir. 1994) [No.
93-1773, slip op. at 3-6]; see also U.S.S.G. 4B1.2(1)(ii)
(enumerating certain crimes of violence and listing extortion as
one of them).
The nub of the case is the defendant's insistence that
his prior criminal history does not include a second predicate
3
offense. In the court below, the government nominated a
candidate to fill out the slate a racketeering indictment that
resulted in defendant's conviction in 1979, after trial, for an
amalgam of offenses, namely, engaging in racketeering activity
(horse race fixing), see 18 U.S.C. 1962(c), conspiracy to
engage in such activity, see 18 U.S.C. 1962(d), sports bribery,
see 18 U.S.C. 224, and travel in aid of racketeering (horse
race fixing), see 18 U.S.C. 1952(a).2 The lower court did not
think the government's candidate qualified for election to the
"crime of violence" ranks, notwithstanding the government's claim
that strong-arm tactics were standard fare in the racketeering
and racketeering-related activities over which Winter presided.
Consequently, the court decreed that, for want of a second
predicate offense, the career offender guideline did not pertain.
The instant appeal turns on the appropriateness of
categorizing at least one of the 1979 offenses as a crime of
violence. Whether a conviction for a particular type of crime
qualifies as a predicate offense presents a purely legal
question, sparking de novo review. See United States v. De
Jesus, 984 F.2d 21, 23 n.4 (1st Cir. 1993); United States v.
Fiore, 983 F.2d 1, 2 (1st Cir. 1992), cert. denied, 113 S. Ct.
1830 (1993).
III.
2The parties treat the verdicts that found defendant guilty
on these counts as evidencing convictions for each of the four
offenses described in the text. We emulate their example. And
we sometimes refer to these several crimes, collectively, as "the
1979 offenses."
4
Crimes of Violence
To constitute a crime of violence, a felony must fit
into one of several pigeonholes. To be specific, a crime of
violence is any state or federal offense punishable by more than
one year in prison that (1) "has as an element the use, attempted
use, or threatened use of physical force against the person of
another," U.S.S.G. 4B1.2(1)(i), or (2) reposes on a short list
of specially enumerated crimes such as "burglary of a dwelling,
arson, or extortion," U.S.S.G. 4B1.2(1)(ii), or (3) "involves
use of explosives," id., or (4) "otherwise involves conduct that
presents a serious potential risk of physical injury to another,"
id.
Determining whether a previous conviction represents a
crime of violence necessitates a formal categorical approach.
See DeLuca, F.3d at [slip op. at 5]; De Jesus, 984 F.2d
at 23; United States v. Bell, 966 F.2d 703, 704 (1st Cir. 1992);
Fiore, 983 F.2d at 3; see also Taylor v. United States, 495 U.S.
575, 600 (1990) (adopting categorical approach for analogous
determination under Armed Career Criminal Act); United States v.
Doe, 960 F.2d 221, 223-24 (1st Cir. 1992) (same).3 As a rule,
this type of approach is restricted to an examination of how the
legislature has defined the crime, without any concomitant
3Given the substantial similarity between the Armed Career
Criminal Act's definition of "violent felony," 18
U.S.C. 924(e)(2)(B), and the Sentencing Commission's definition
of "crime of violence," U.S.S.G. 4B1.2(1), authority
interpreting one phrase frequently is found to be persuasive in
interpreting the other phrase. See, e.g., De Jesus, 984 F.2d at
24 n.6; Bell, 966 F.2d at 704.
5
inquiry into the details of the defendant's actual criminal
conduct. See DeLuca, F.3d at [slip op. at 5]; De Jesus,
984 F.2d at 23; Fiore, 983 F.2d at 3; see also Taylor, 495 U.S.
at 600. Nevertheless, "there are certain limited circumstances
in which some investigation beyond the formal nature of the
charge may be warranted." DeLuca, F.3d at [slip op. at 5
n.3]; accord Taylor, 495 U.S. at 602; Doe, 960 F.2d at 224. For
example, if the statutory description is inscrutable, or if it
blankets both violent and non-violent crimes, a court may peek
beneath the coverlet. See, e.g., United States v. Harris, 965
F.2d 1234, 1235 (1st Cir. 1992) (employing similar exception in
an ACCA case); see also Taylor, 495 U.S. at 602-03.
These principles inform our treatment of the instant
case. Here, the first three avenues to dubbing the 1979 offenses
crimes of violence are dead ends; the government concedes as,
indeed, it must that no count of conviction was for a felony of
which physical force is an element, or for a felony listed by
name in the career offender guideline, or for a felony involving
the use of explosives. Thus, the issue before us hinges on
whether any of the counts of conviction, considered from a
categorical standpoint, can be said to "involve[] conduct that
presents a serious potential risk of physical injury to another."
U.S.S.G. 4B1.2(1)(ii); see also U.S.S.G. 4B1.2, comment.
n.2(B).
IV.
Analysis
6
A.
The label "racketeering," though pejorative, does not
shed much light on whether the activity in question poses (or
fails to pose) a serious potential risk of violence. After all,
racketeering comes in many shapes and sizes, and covers a wide
range of activities. Those activities are uniformly nefarious
and almost invariably nasty but they are not necessarily
violent.4 One is reminded of the label "conspiracy," a label so
encompassing that it "says next to nothing about the underlying
nature of the crime," and, therefore, gives a court no real
insight into whether a conviction bearing the label can be
classified as a crime of violence. Fiore, 983 F.2d at 3. Since
the statutory language describing racketeering, taken alone,
tells us so little, we can only conclude that convictions for
racketeering sometimes will constitute predicate offenses and
sometimes will not. It follows, a fortiori, that the same is
true vis-a-vis convictions for conspiracy to engage in
racketeering.
Because crimes of this androgynous sort, not unlike
chameleons, "will necessarily take on the characteristics and
coloration of [their] environment," id. (discussing general
4The RICO statute makes it unlawful for a person to conduct
the affairs of any enterprise affecting interstate commerce
"through a pattern of racketeering activity or collection of
unlawful debt," 18 U.S.C. 1962(c), or to conspire to that end,
18 U.S.C. 1962(d). The statute defines the term "racketeering
activity" broadly, see 18 U.S.C. 1961(1), with the result that
the term includes activities ranging from murder (perhaps the
paradigmatic crime of violence) to wire fraud (a good example of
a crime that has never been considered a crime of violence).
7
conspiracy), some exploration of that environment must be
undertaken. Yet, a caveat is in order: even where, as here, the
category limned in the statute is an inexact semantic construct,
warranting further inquiry, the task of classification continues
to demand a categorical as opposed to a fact-sensitive analysis.
This means that if previous convictions for racketeering or
racketeering conspiracy are in issue, a court seeking to
ascertain the appropriateness of predicate offense treatment
under Taylor principles must ask categorically oriented questions
such as: "Racketeering by what means?" "Racketeering to what
end?" And in answering these questions, the court should not
plunge into the details of a particular defendant's conduct, but,
rather, again in fidelity to Taylor principles, should merely
assess the nature and object of the racketeering activity as
described in the indictment and fleshed out in the jury
instructions. See Taylor, 495 U.S. at 602; De Jesus, 984 F.2d at
23 n.5.
This methodology makes good sense, for it cabins
further inquiry in keeping with its categorical roots, permitting
the court to take a predetermined sample of the earlier case and
evaluate its composition without at the same time inviting the
judicial equivalent of an archaeological dig. We turn,
therefore, to the charging papers and jury instructions in the
1979 case to ascertain the nature and object of the racketeering
8
activity.5
B.
The earlier indictment identified the "racketeering
activity" with which Winter was charged as "horse race fixing,"
and described the offenses comprising the alleged pattern of
racketeering activity as sports bribery, see 18 U.S.C. 224, and
travel in aid of racketeering, see 18 U.S.C. 1952(a)(3). This
format creates two possible pathways to finding that the 1979
offenses are crimes of violence. We explore each of them.
1. Sports Bribery. Sports bribery is a discrete,
1. Sports Bribery.
meaningful rubric, itself susceptible of categorical analysis;
therefore, we need look no further than the language of the
statute.6 Given that wording, it is certainly possible that
sports bribery can bring violence into play but that is not the
critical determinant. A categorical approach is not concerned
with testing either the outer limits of statutory language or the
myriad of possibilities girdled by that language; instead, a
categorical approach is concerned with the usual type of conduct
that the statute purposes to proscribe. See De Jesus, 984 F.2d
at 24. Thus, a court asked to determine whether an offense is
(or is not) a crime of violence within the meaning of the
5This analysis does double duty in the present case because
it also serves to probe the status of the remaining counts of
conviction as crimes of violence vel non.
6The relevant statute criminalizes interstate schemes "to
influence, in any way, by bribery, any sporting contest, with
knowledge that the purpose of [the particular] scheme is to
influence by bribery that contest . . . ." 18 U.S.C. 224(a).
9
"otherwise" clause of the career offender guideline, U.S.S.G.
4B1.2(1)(ii), must focus on "the degree of risk, expressed in
terms of the probability of physical harm presented by the mine-
run of conduct that falls within the heartland of the statute."
De Jesus, 984 F.2d at 24.
Under this standard, the government's argument cannot
prosper. Sports bribery, in general, simply lacks the "inherent
risk of violent outbreak" necessary to justify classifying it as
a crime of violence. Id. at 25; see also Fiore, 983 F.2d at 4
(to come within the crime of violence ambit, a crime, viewed
generically, must pose a substantial potential for episodic
violence); Doe, 960 F.2d at 224-25 (finding "felon-in-possession"
convictions not to qualify as predicate offenses under ACCA
because such convictions do not usually involve violent conduct).
Since there is no sound basis for saying that violence is a
normal, usual, or customary concomitant of sports bribery, the
crime is not a crime of violence.
2. Travel in Aid of Racketeering. The statute
2. Travel in Aid of Racketeering.
underlying the Travel Act counts outlaws travel in interstate
commerce with intent to -
(1) distribute the proceeds of any unlawful
activity; or
(2) commit any crime of violence to further
any unlawful activity; or
(3) otherwise promote, manage, establish,
carry on, or facilitate the promotion
management, establishment, or carrying on, of
any unlawful activity, . . . .
10
18 U.S.C. 1952(a).7 Based on this statute, the government
maintains that, because the Travel Act encompasses both violent
and non-violent offenses, the court below should have delved into
defendant's actual conduct to determine if his offenses
constituted crimes of violence. We do not agree.
To be sure, the government is correct in stating that
the Travel Act reaches violent as well as non-violent conduct.
Compare id. 1952(a)(2) (proscribing travel with intent to
"commit any crime of violence to further any unlawful
activity") with id. 1952(a)(1),(3) (proscribing generically
non-violent conduct). But the statute's breadth does not give an
inquiring court license to roam at will through the record of
each individual case. Rather, Taylor demands that a court poised
at such a crossroads consult a limited array of materials
principally the indictment and jury instructions in determining
if the offense can be classified as a crime of violence.8 See
Taylor, 495 U.S. at 602-03; see also Harris, 964 F.2d at 1235;
Doe, 960 F.2d at 224-25.
7For purposes of the Travel Act, the term "unlawful
activity" is defined to include a salmagundi of criminal conduct,
ranging from the violent (e.g., arson) to the non-violent (e.g.,
violation of state liquor laws). See 18 U.S.C. 1952(b)(i)(1) -
(3). Bribery is specifically enumerated. See id.
1952(b)(i)(2).
8Although we have occasionally approved resort to a
presentence report in this connection, we have done so only in
cases in which the defendant entered a guilty plea, with the
result that no jury instructions were available for retrospective
review. See, e.g., Harris, 964 F.2d at 1235-36; United States v.
Bregnard, 951 F.2d 457, 459-60 (1st Cir. 1991), cert. denied, 112
S. Ct. 2939 (1992). Because a jury convicted Winter on the 1979
offenses after a full trial, the exception is inapposite here.
11
In this instance, the permitted review establishes
that, under applicable Taylor principles, the Travel Act counts
do not qualify as crimes of violence.9 Those counts charged
Winter with commissioning travel to assist in "effecting by
bribery the outcome of . . . horse races." Although fixing horse
races is antisocial conduct that may on occasion utilize violence
as a tool, it does not carry with it an inherent risk of violent
outbreak sufficient to merit classification as a crime of
violence. In other words, because violence is not a usual
accouterment of horse race fixing, the degree of risk, expressed
in terms of the probability of physical harm, associated with the
mine-run of conduct that comprises the heartland of the statute
is relatively low. And because that is so, the "otherwise"
clause in the career offender guideline, U.S.S.G. 4B1.2(1)(ii),
does not apply.
There is also a second reason why the two Travel Act
counts are poor candidates for inclusion as predicate offenses.
Neither of these counts invoked the Travel Act generally; their
language focused single-mindedly on clause (3), 18 U.S.C.
1952(a)(3), a subsection of the Travel Act that criminalizes
9Counts 22 and 23 of the indictment, which form the basis
for the government's contention, in terms charge that Winter
violated the Travel Act on two different dates in that he and
another caused one Anthony Ciulla "willfully to travel in
interstate commerce . . . said defendants intending to promote,
manage, establish, carry on and facilitate . . . an unlawful
activity, being bribery in violation of Pennsylvania Cons. Stat.
Ann. Section 4109, and did thereafter perform, attempt to perform
and cause acts to promote, manage, establish, carry on and
facilitate . . . an unlawful activity, to wit: affecting by
bribery the outcome of pari-mutuel thoroughbred horse races."
12
predominantly non-violent conduct, rather than clause (2), 18
U.S.C. 1952(a)(2), a subsection that criminalizes predominantly
violent conduct. To convict on the Travel Act counts, therefore,
the jury was required only to find that Winter used bribes to rig
horse races and caused Ciulla to travel in aid of the scheme.
The charges did not require a finding that the offense involved
violence in any way, shape, or form.
The jury instructions bear this out; in briefing the
jurors on the Travel Act counts, the trial judge defined those
counts in the vernacular of section 1952(a)(3), abjured any
suggestion that the counts implicated section 1952(a)(2), and
identified bribery as the unlawful activity to which the travel
was directed. Because the defendant was charged with and
convicted of violating the Travel Act under the statute's non-
violent alternative, the Travel Act counts did not serve to
transmogrify the 1979 offenses into crimes of violence.
3. The Pennsylvania Statute. The government has
3. The Pennsylvania Statute.
another string to its bow. Because the Travel Act counts mention
the violation of a Pennsylvania statute, see supra note 9, and
that statute includes violent as well as non-violent methods of
perpetrating the specified crime,10 the government hypothesizes
that we can explore whether Winter actually conducted the bribery
10In pertinent part, the state statute outlaws the rigging
of publicly exhibited contests in circumstances wherein a person
"confers . . . any benefit upon, or threatens any injury to, a
participant, official or other person associated with the contest
or exhibition; or (2) tampers with any person, animal, or thing."
18 Pa. Cons. Stat. Ann. 4109(a).
13
scheme in a brutal manner.
This reasoning is specious. Winter was neither charged
with, nor convicted of, violating the Pennsylvania statute; and
the indictment does not embrace the language of that statute.
Taylor and its progeny in no way suggest that a reviewing court
should investigate conduct ranging outside the counts of
conviction for purposes of determining career offender status.
Indeed, the case law teaches the opposite lesson. See Taylor,
495 U.S. at 602; Doe, 960 F.2d at 224; United States v. Leavitt,
925 F.2d 516, 517-18 (1st Cir. 1991); see also U.S.S.G. 4B1.2,
comment. n.2(B) (explaining that "the conduct of which the
defendant was convicted is the focus of inquiry").
Moreover, although the Pennsylvania statute includes a
violent method of horse race fixing among the several methods
identified therein, the state statute is mentioned only in the
Travel Act counts. In turn, those counts, as charged in the
indictment, by their very wording exclude that violent method,
for they are worded exclusively in terms of a non-violent
alternative, subsection (a)(3) of the Travel Act, 18 U.S.C.
1952(a)(3). Thus, the passing mention of the Pennsylvania
bribery statute is of no consequence anent the applicability of
the career offender guideline.
V.
Conclusion
Categorically speaking, racketeering, conspiracy to
commit racketeering, travel in aid of racketeering, and sports
14
bribery all fail, in the circumstances of this case, to qualify
as crimes of violence under the career offender guideline,
U.S.S.G. 4B1.1. Hence, the government's claim that assaultive
behavior was used to advance Winter's racketeering activities,
even if true, is beside the point. We need go no further:
although Winter, as the government asserts, may well have
demonstrated a penchant for violence, he could not appropriately
have been sentenced as a career offender.
Affirmed.
15