United States v. Chhien

United States Court of Appeals
For the First Circuit

No. 00-2230

UNITED STATES OF AMERICA,

Appellee,

v.

ROTH CHHIEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Elizabeth L. Prevett, Federal Defender Officer, for
appellant.
William E. Morse, Assistant United States Attorney, with
whom Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant United States Attorney, were on brief, for appellee.

September 24, 2001
 SELYA, Circuit Judge. A jury convicted defendant-

appellant Roth Chhien of possessing five grams or more of crack

cocaine, intending to distribute it. See 21 U.S.C. §§

841(a)(1), 841(b)(1)(B)(iii). The district court sentenced him

as a career offender. Chhien now appeals, assigning error both

to the district court's denial of his pretrial motion to

suppress evidence and to its sentencing determination. We

affirm.

I. BACKGROUND

During the afternoon of August 21, 1998, the appellant

— a twenty-nine year old native of Cambodia — drove north on

Interstate Route 93 in Salem, New Hampshire. He was traveling

at the speed limit when he passed a state police cruiser

stationed on the median strip. The cruiser's sole occupant,

trooper Lawrence Holdsworth, observed two violations of state

law: the appellant was driving perilously close to the vehicle

in front of him and his car was equipped with blue-tinted

aftermarket lights.1 Holdsworth, a member of an elite team (the

so-called Enhanced Enforcement Unit) trained to "look beyond the

1
For purposes of this appeal, the appellant effectively
concedes that he violated N.H. Rev. Stat. § 265:25.1 (ordaining
that "[t]he driver of a vehicle shall not follow another vehicle
more closely than is reasonable and prudent") and N.H. Rev.
Stat. § 266:74.ll (proscribing the use of blue-tinted lights on
vehicles other than law enforcement vehicles).

-3-
traffic ticket," i.e., to attempt to ferret out serious criminal

activity while conducting routine traffic patrols, commenced

pursuit.

Holdsworth signaled the appellant to pull his car to

the side of the road. He then approached the driver's side and

asked for the appellant's license and registration. After a

computer check proved unremarkable, Holdsworth ushered the

appellant to the front of his car and inquired about the blue-

tinted lights. The appellant acknowledged having purchased

them, but claimed that he did so without any awareness of the

statutory proscription.

Holdsworth asked if he could conduct a pat-down search

for weapons and the appellant acquiesced. During the frisk,

Holdsworth felt something "hard" — a "substantial lump" — in the

appellant's right front pants pocket. When he inquired about

the object, the appellant responded that it was a large wad of

cash, totaling $2,000.

Holdsworth grew increasingly suspicious. He began to

question the appellant about where he had been and where he was

going. The appellant told him that he had bought some stereo

equipment in Lowell, Massachusetts, and was heading to his home

in Franklin, New Hampshire. He asserted that he had made no

stops along the way. The trooper then crossed over to the

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passenger side of the vehicle and posed a similar set of

questions to the appellant's companion, Melanie Baker (who had

remained seated inside the car throughout the initial phase of

the highway stop). Baker verified the trip to Lowell and the

purchase of stereo equipment. When asked if she and the

appellant had made any other stops, she mentioned that they had

driven to the Lowell home of one of the appellant's relatives.

Once there, she waited in the car while the appellant went

inside.

Returning to the appellant (who was still standing near

the front of the car), Holdsworth probed the discrepancy. The

appellant immediately amended his story and confirmed that he

and Baker had stopped at the home of one of his relatives for a

brief visit. But another discrepancy emerged: according to the

appellant, both he and Baker had entered the dwelling.

Disturbed by these contradictions, Holdsworth repaired

to his cruiser and radioed for assistance. Trooper Timothy

Stearns, another member of the Enhanced Enforcement Unit,

arrived within a minute or so. Holdsworth was drafting a

warning. As the troopers conversed, they noticed Baker's head

sink from view and then bob up and down. Curious about these

awkward movements, Holdsworth directed Stearns to investigate.

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 Stearns approached the vehicle. Baker's hands were

clenched and Stearns asked to see them. Baker refused.

Stearns, fearing that Baker had a gun, unsnapped his holster,

renewed his demand, and hollered to Holdsworth "she won't show

me her hands!" Holdsworth sprang from the cruiser and ran to

assist. When Stearns repeated his request, Baker finally

unclenched her fists and raised both hands. At that point,

Holdsworth yanked her from the car. The troopers then noticed

in plain view on the front passenger seat a small plastic bag

containing white powder.

The troopers immediately concluded that the white

powder was contraband.2 Arrests, Miranda warnings, see Miranda

v. Arizona, 384 U.S. 436, 444-45 (1966), and further questioning

followed apace. During this brief roadside interrogation, the

appellant admitted that the plastic bag contained crack cocaine

purchased in Lowell. Baker confirmed this tale, adding that she

had tried to conceal the contraband when Holdsworth intervened.

The troopers then transported the suspects to a nearby station

house.

On September 9, 1998, a federal grand jury indicted the

appellant for possession with intent to distribute five grams or

2They were correct. Later analysis revealed that the
plastic bag contained twenty-eight grams of cocaine base.

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more of crack cocaine.3 See 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(iii). In due course, the appellant moved to

suppress both the drugs and his statements at the scene of the

highway stop. After conducting an evidentiary hearing, the

district court denied the motion. The court concluded that the

roadside confrontation had lasted no longer than five minutes

from start to finish; that this brief detention was reasonable,

given the patent motor vehicle violations; that the appellant

voluntarily consented to the pat-down search; and that, in all

events, the pat-down search and the questioning that followed

did not lead to the discovery of the contraband. Rather, it was

the troopers' legitimate fear for their own safety, sparked by

Baker's movements, that prompted them to remove her from the car

and displayed the crack cocaine in plain view. This, in turn,

gave rise to probable cause for the subsequent arrests and

interrogation.

Following some procedural skirmishing (not material

here), the case went to trial in September of 2000. The jury

found the appellant guilty as charged. The district court

thereafter classified him as a career offender and imposed a

228-month prison sentence. This appeal ensued. In it, the

3
The grand jury indicted Baker as well, but the government
dropped that charge following her enrollment in a pretrial
diversion program. She is not a party to this appeal.

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appellant argues that the lower court erred both in denying his

motion to suppress and in fashioning his sentence. We address

these assignments of error separately.

II. THE FOURTH AMENDMENT ISSUE

When reviewing the district court's disposition of a

motion to suppress, we accept the court's findings of fact

unless clearly erroneous and evaluate its legal conclusions de

novo. United States v. Sowers, 136 F.3d 24, 26 (1st Cir. 1998);

United States v. Schaffer, 87 F.3d 562, 565 (1st Cir. 1996).

Here, the appellant's principal contention is that impermissible

police tactics transformed a routine highway stop into an

unconstitutional fishing expedition — an expedition that

ultimately led to the contraband and the confession. To place

this contention into perspective, we begin by discussing the

legal framework surrounding such stops. Moving from the general

to the specific, we then grapple with the various components of

the appellant's argument.

A. The Legal Landscape.

A traffic stop, by definition, embodies a detention of

the vehicle and its occupants. It therefore constitutes a

seizure within the purview of the Fourth Amendment. Delaware v.

Prouse, 440 U.S. 648, 653 (1979). This means, of course, that

the stop must be supported by a reasonable and articulable

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suspicion of criminal activity, see Berkemer v. McCarty, 468

U.S. 420, 439 (1984), and that the detention must be reasonable

under the circumstances, United States v. Whren, 517 U.S. 806,

809-10 (1996).

Reasonable suspicion, as the term implies, requires

more than a naked hunch that a particular person may be engaged

in some illicit activity. United States v. Sokolow, 490 U.S. 1,

7 (1989). By the same token, however, reasonable suspicion does

not require either probable cause or evidence of a direct

connection linking the suspect to the suspected crime. United

States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v.

Velez-Saldana, 252 F.3d 49, 52 (1st Cir. 2001). Reasonable

suspicion, then, is an intermediate standard — and one that

defies precise definition. Its existence must be determined

case by case, and that determination entails broad-based

consideration of all the attendant circumstances. Florida v.

Royer, 460 U.S. 491, 500 (1983). In mulling those

circumstances, an inquiring court must balance "the nature and

quality of the intrusion on personal security against the

importance of the governmental interests alleged to justify the

intrusion." Sowers, 136 F.3d at 27 (quoting United States v.

Hensley, 469 U.S. 221, 228 (1985)). To keep this balance true,

the court must make a practical, commonsense judgment based on

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the idiosyncracies of the case at hand. Ornelas v. United

States, 517 U.S. 690, 695-96 (1996).

To work the calculus of reasonable suspicion in the

context of a traffic stop, an inquiring court must ask whether

the officer's actions were justified at their inception, and if

so, whether the officer's subsequent actions were fairly

responsive to the emerging tableau — the circumstances

originally warranting the stop, informed by what occurred, and

what the officer learned, as the stop progressed. Sowers, 136

F.3d at 27. Formulating the answers to these queries demands a

margin of flexibility. After all, while an officer's actions

must bear some relation to the purpose of the original stop, he

may shift his focus and increase the scope of his investigation

by degrees if his suspicions mount during the course of the

detention. Id.; see also Terry v. Ohio, 392 U.S. 1, 10 (1968)

(observing that "the police are in need of an escalating set of

flexible responses, graduated in relation to the amount of

information they possess").

B. The Merits.

In this instance, the appellant does not question the

legitimacy of the initial detention: Holdsworth clearly had

cause to stop him for tailgating and operating an automobile

equipped with blue-tinted lights. See supra note 1. He asserts

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instead that Holdsworth exceeded the scope of a permissible

traffic stop by conducting an unnecessary, unauthorized pat-down

search and wandering far afield in his questioning.

The appellant's thesis proceeds along the following

lines. The pat-down search was involuntary, despite the

apparent consent, because Holdsworth still held the appellant's

license and registration, rendering the confrontation unduly

coercive. Even if the frisk passes muster, this thesis runs,

Holdsworth's query about the bulge in the appellant's pocket was

beyond the pale because it did not pertain either to the

trooper's safety or to the underlying traffic violations.

Moreover, the questions concerning the appellant's itinerary

also were out of bounds. The combination of these toxic

ingredients — the coerced pat-down search and the improper

questions — impermissibly prolonged the detention and led

Holdsworth to call for assistance; the delay made Baker nervous,

inducing her to squirm in her seat; this fidgeting ultimately

led the troopers to the contraband; and that discovery prompted

the appellant's confession. Cf. The Real Mother Goose 82-104

(1916) ("For want of a nail . . . . the kingdom was lost.").

Thus, the appellant concludes, the district court should have

excluded the drugs and the incriminating statements as the

rotten fruit of a tainted traffic stop.

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 This argument is cleverly constructed and ably

presented, but it cannot withstand careful scrutiny. In our

view, the consensual pat-down search was fully appropriate and

yielded information which gave Holdsworth reasonable suspicion

to continue on the minimally intrusive path that he chose to

pursue. The questions that followed the frisk, though not

directly linked to the purposes of the stop, were reasonably

related to automobile travel in general and neither

fundamentally altered the nature of the detention nor

unreasonably prolonged it. Thus, we reject the appellant's

argument.4

We start with the pat-down search — which amounts to

a Terry stop within a Terry stop. Normally, Holdsworth would

have needed some justification (such as a reasonable fear for

his own safety) beyond the traffic violations simplicter to

engage in it. See Terry, 392 U.S. at 27. In this case,

however, the appellant explicitly consented to the frisk. The

district court found specially that this consent was voluntary.

Unless this finding is clearly erroneous, we must accept it.

4We are cognizant that our reasoning differs somewhat from
that of the district court, but we may affirm a district court's
suppression ruling on any ground made manifest by the record.
See, e.g., United States v. Doe, 61 F.3d 107, 111-12 (1st Cir.
1995).

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See United States v. Coraine, 198 F.3d 306, 308-09 (1st Cir.

1999).

We discern no error. Consent is voluntary if it is

"the product of an essentially free and unconstrained choice."

Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (citation

omitted). There is not a shred of evidence here that Holdsworth

tricked, threatened, or bullied the appellant into agreeing to

the pat-down search.

In an effort to fill this void, the appellant argues

that the situation itself was inherently coercive (and, thus,

that he could not have consented voluntarily).5 But the traffic

stop occurred in broad daylight, on a major thoroughfare. At

the time of Holdsworth's request, his sidearm was holstered and

he was the only trooper present. Although he still had the

appellant's license and registration in hand, that fact alone

does not vitiate the operator's consent. See United States v.

Purcell, 236 F.3d 1274, 1281-82 (11th Cir.) (holding consent to

search voluntary despite officer's retention of operator's

license and registration during traffic stop), cert. denied, 121

5The appellant also suggests that his consent was
involuntary because the trooper did not inform him that he could
decline to permit a search. This suggestion overlooks that the
Supreme Court has held, recently and squarely, that an officer
conducting a highway stop need not inform the driver that he is
free to go before requesting permission to conduct a search.
Ohio v. Robinette, 519 U.S. 33, 40 (1996).

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S. Ct. 2615 (2001); see also Florida v. Bostick, 501 U.S. 429,

435-36 (1991) (explaining that consent can be voluntary even

though the detainee does not feel free to leave); United States

v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993) (stating that

custody alone does not create the kind of coercive atmosphere

that abrogates consent).

The short of it is that, in most cases, the

voluntariness of consent is a matter of fact to be determined

from all the circumstances. Schneckloth, 412 U.S. at 248-49.

The district court obviously understood that reality and found

the facts with care. Based on its supportable factual findings,

we uphold the constitutionality of the pat-down search.

In an effort to blunt the force of this conclusion, the

appellant argues that, even if his consent was validly obtained,

Holdsworth exceeded the scope of a consensual pat-down search.

This argument hinges on the assertion that the trooper should

not have asked about the bulge in the appellant's pocket because

he knew that the bulge was not a weapon. This argument

misconstrues applicable Fourth Amendment jurisprudence. While

an officer may not seize an object during a Terry frisk unless

he has probable cause to believe that it is contraband,

Minnesota v. Dickerson, 508 U.S. 366, 376 (1993); United States

v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994), he is not prohibited

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from inquiring, upon reasonable suspicion, into the nature of

that object. So it was here: the origins of the bulge were not

readily apparent — it might well have been a weapon — and

Holdsworth's question was directly pertinent to the safety

concerns that prompted his request for a pat-down search in the

first place. We hold, therefore, that the trooper's inquiry was

well within the boundaries set by the Constitution.

We next proceed to the trooper's questions about the

appellant's peregrinations. When the appellant explained that

he was carrying $2,000 in cash, Holdsworth's suspicions

understandably escalated. Evaluating whether an officer's

suspicions are (or are not) reasonable is a fact-sensitive task,

bound up in the warp and woof of the surrounding circumstances.

Royer, 460 U.S. at 500. In carrying out that task, "[d]eference

is due to the experienced perceptions of the officer[]." United

States v. Woodrum, 202 F.3d 1, 7 (1st Cir.), cert. denied, 531

U.S. 1035 (2000). Mindful of that deference, we conclude that

the trooper's heightened suspicions (and, hence, his continued

questioning) were reasonable here.

The appellant resists this conclusion, insisting that

the mere possession of a large, unexplained amount of cash,

without more, cannot be the basis for heightened suspicion. As

authority for this proposition, he cites Sokolow, in which the

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Supreme Court indicated that paying for an airline ticket with

$2,100 in cash might be consistent with innocent travel. 490

U.S. at 9. Contrary to the appellant's importunings, this

statement does not mean that the possession of a large,

unexplained sum of cash can never support reasonable suspicion.6

The circumstances matter, as does the degree of intrusiveness of

the continued detention. See Lopez-Lopez v. Aran, 844 F.2d 898,

905 (1st Cir. 1988) (explaining that the degree of intrusiveness

of a stop must be proportional to the degree of suspicion that

prompted the intrusion); United States v. Berryman, 717 F.2d

651, 657 (1st Cir. 1983) (similar). In the circumstances of

this case, we rule that the discovery of the cash justified a

brief period of additional questioning. Cf. Conrod v. Davis,

120 F.3d 92, 97 (8th Cir. 1997) (holding that discovery of

$6,000 cash in a suspect's pocket and $4,000 in his suitcase

furnished reasonable suspicion).

This brings us to the nature of the questioning. The

appellant asseverates that travel questions, unrelated to the

purpose of the original stop, are highly intrusive, unsupported

by reasonable suspicion of a separate crime, and therefore not

6Indeed, in Sokolow itself the Court held that the cash
purchase, together with other indicia, supported a reasonable
suspicion sufficient to justify an investigative stop. 490 U.S.
at 11.

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permissible in the course of the highway stop. We disagree: we

believe that this line of inquiry was lawful under the

circumstances.

The appellant strives to paint the picture in black and

white. Citing cases such as United States v. Childs, 256 F.3d

559, 566 (7th Cir. 2001), and United States v. Holt, 229 F.3d

931, 936 (10th Cir. 2000),7 he asserts that an officer carrying

out a traffic stop must have some reasonable, substantial, and

independent source of suspicion about a different crime before

he can ask questions unrelated to the violation that justified

the stop in the first place. But that depends on the nature of

the questions. Both of the cited cases involved traffic stops

of persons previously suspected of other crimes, during which

the officers, for no apparent cause, began to ask directly

inculpatory questions involving the antecedent crimes. See

Childs, 256 F.3d at 561-62, 566 (involving questions about drug

possession during a stop for a broken windshield); Holt, 229

F.3d at 933, 940 (involving questions about weapons during a

7 We do not dwell on the appellant's reference to United
States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999). The stop
there lasted for nearly half an hour, id. at 1218, and the
Eleventh Circuit subsequently limited Pruitt to situations in
which the unrelated questions unreasonably prolonged the search.
See Purcell, 236 F.3d at 1280. Here, however, the district
court supportably found that the entire stop lasted no more than
five minutes, and there is no proof of unreasonable
prolongation.

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stop for a seatbelt violation). Such scenarios, in which an

officer stops a car for a minor traffic infraction and asks a

known suspect pointed questions about a serious crime unrelated

to the original violation, raise legitimate concerns about abuse

of authority. See Whren, 517 U.S. at 810 (acknowledging the

temptation to use traffic stops as a means of investigating

unrelated criminal activity).

The case at bar does not lend itself to this sort of

black-and-white characterization, but, rather, involves more

muted shades of gray. Here, the record contains no evidence

that the stop was a pretext to furnish the trooper with a forum

to ask questions about other crimes; prior to this encounter,

Holdsworth neither knew the appellant nor knew of him. The

record is equally barren of any evidence that the trooper's

membership in the Enhanced Enforcement Unit impermissibly

colored his approach. More important, Holdsworth did not stray

far afield, merely posing a few prosaic questions about the

appellant's itinerary: where he and his passenger had been,

where they were going, and whether they had stopped along the

way. Routine questioning of this sort, even when not directly

related to the violations that induced the stop in the first

place, is not uncommon during a highway stop. See, e.g., United

States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (upholding

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"routine questioning" about travel plans during stop for

speeding); United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir.

1995) (similar).

To cinch matters, it was not until Holdsworth's

suspicions were aroused by the large, unexplained wad of cash

that his questioning expanded beyond the bare bones of the

traffic stop and the consensual frisk. Since the trooper

lawfully learned about the cash — the appellant, after all,

consented to the pat-down search and voluntarily described the

composition of the discerned bulge — that discovery elevated his

suspicions to a degree sufficient to continue the detention

briefly and in a minimally intrusive way. See Sowers, 136 F.3d

at 27 (approving increasingly intrusive unrelated questions

after suspicions escalated during a traffic stop); United States

v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) ("If the

responses of the detainee and the circumstances give rise to

suspicions unrelated to the traffic offense, an officer may

broaden his inquiry and satisfy those suspicions."). The travel

questions that followed were within the ambit of that authority,

and any effect they might have had on the duration of the

detention — and the state of Baker's nerves — was therefore

permissible. Consequently, both the bag of crack cocaine and

the appellant's incriminating statements were lawfully obtained.

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III. THE SENTENCING ISSUE

The appellant's second complaint involves sentencing.

Based on the weight of the seized crack cocaine, the district

court initially set the appellant's base offense level at 28.

See USSG §§2D2.1(b)(1), 2D1.1(c)(6) (Nov. 1998). The court then

determined that the appellant was a career offender and adjusted

his offense level to 34. See id. §§4B1.1, 4B1.2.8 This yielded

a guideline sentencing range of 262-327 months. The district

court departed downward, however, and imposed a sentence of 228

months. See id. §4A1.3 (authorizing a downward departure if the

defendant's criminal history category significantly exaggerates

the gravity of his criminal past or the likelihood of

recidivism).

To be sure, the sentence seems severe. But appellate

courts do not have the luxury of resolving sentencing appeals

based upon subjective value judgments. The pivotal question,

then, is whether the sentence conforms to the guidelines.

The appellant posits that the district court

erroneously classified him as a career offender. A defendant is

8
The career offender guideline specifies an offense level of
34 where the statutory maximum sentence for the count of
conviction is 25 years or more (but less than life in prison).
See USSG §4B1.1. The statutory maximum for possession with
intent to distribute five grams or more of crack cocaine is 40
years. See 21 U.S.C. § 841(b)(1)(B)(iii).

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a career offender if "(1) the defendant was at least eighteen

years old at the time the defendant committed the instant

offense; (2) the instant offense of conviction is a felony that

is either a crime of violence or a controlled substance offense,

and (3) the defendant has at least two prior felony convictions

of either a crime of violence or a controlled substance

offense." Id. §4B1.1. The appellant unarguably meets the first

two benchmarks. The issue here is whether the court

appropriately considered, as predicate offenses sufficient to

satisfy the third requirement, the appellant's prior convictions

for three counts of burglary of a commercial dwelling in

violation of N.H. Rev. Stat. § 635:1.

In the last analysis, the appellant's claim reduces to

his insistence that his prior state-court convictions for

commercial burglary should not count as "crime[s] of violence"

under the third furculum of the career offender guideline.

Deciding where state-law crimes fit along a federal continuum is

tricky business. In this instance, however, the decisional path

is well-trodden. We conclusively answered the question that the

appellant seeks to raise in United States v. Fiore, 983 F.2d 1

(1st Cir. 1992). There, dealing with a materially

indistinguishable Rhode Island burglary statute, we held that

burglary of a commercial premise constitutes a crime of violence

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within the purview of the career offender guideline. Id. at 4-

5.

That effectively ends this aspect of the matter.

Although the circuits are split — some courts have followed

Fiore's lead, see, e.g., United States v. Wilson, 168 F.3d 916,

926 (6th Cir. 1999); United States v. Haskell, 76 F.3d 902, 905

(8th Cir. 1996), whereas others have reached a different

conclusion, see, e.g., United States v. Spell, 44 F.3d 936, 938

(11th Cir. 1995); United States v. Smith, 10 F.3d 724, 732-33

(10th Cir. 1993) (per curiam) — we have stalwartly adhered to

Fiore. See, e.g., United States v. Sawyer, 144 F.3d 191, 196

(1st Cir. 1998). This is in keeping with "the law of the

circuit" doctrine. That doctrine holds a prior panel decision

inviolate absent either the occurrence of a controlling

intervening event (e.g., a Supreme Court opinion on the point;

a ruling of the circuit, sitting en banc; or a statutory

overruling) or, in extremely rare circumstances, where non-

controlling but persuasive case law suggests such a course. See

Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995).

Neither circumstance exists here.

The appellant has two rejoinders. First, he draws our

attention to Stinson v. United States, 508 U.S. 36 (1993), a

case in which the Supreme Court held that the Sentencing

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Commission's guideline commentary comprises binding authority.

Id. at 46-47. Stinson does not aid the appellant's cause.

Although Fiore drew on outside sources to elucidate the meaning

of the guidelines where the commentary was opaque, the Fiore

court scrupulously applied the discerned dictates of the

commentary. See Fiore, 983 F.2d at 4-5. Thus, Stinson

supports, rather than undermines, our prior decision.

The appellant next suggests that this court has

emasculated Fiore. In an effort to sustain this suggestion, the

appellant cites two cases. In the first, United States v.

Peterson, 233 F.3d 101, 107-10 (1st Cir. 2000), we held that

breaking and entering without any intent to commit a crime is

not a violent felony under the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e). Unlike commercial burglary, however, the

breaking and entering charge in Peterson did not require proof

of specific intent. The second case is also an ACCA case,

United States v. Dueno, 171 F.3d 3 (1st Cir. 1999). We

recognized there that, in certain circumstances, definitional

differences exist between the ACCA and the career offender

guideline. Id. at 6.

We fail to see how either of these opinions casts doubt

upon Fiore — a guideline case. In all events, overrulings by

implication are disfavored, and, in the best of circumstances,

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a panel ought not lightly presume the implicit overruling of an

established circuit precedent. See Stewart v. Dutra Constr.

Co., 230 F.3d 461, 467 (1st Cir. 2000). We see no principled

basis for departing from the settled law of the circuit in this

instance. Accordingly, we adhere to our prior holding that

burglary of a commercial premise is a crime of violence within

the purview of the career offender guideline.

IV. CONCLUSION

We need go no further. For the reasons stated, we

reject the appellant's attacks on both his conviction and his

sentence.

Affirmed.

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