United States Court of Appeals
For the First Circuit
No. 05-1249
UNITED STATES,
Appellee,
v.
FRANK MASTERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, Chief District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert C. Andrews for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula
D. Silsby, United States Attorney, was on brief, for appellee.
January 20, 2006
STAHL, Senior Circuit Judge. Frank Mastera pled guilty
in 2004 to two counts of unlawful firearm possession. Upon the
recommendation of the Pre-Sentence Investigation Report (PSI), the
sentencing judge determined that Mastera fell within the ambit of
the Armed Career Criminal Act (ACCA), which provides mandatory
minimum penalties for defendants with a history of violent felony
convictions. The judge determined that Mastera had committed the
requisite three prior felonies, and accordingly sentenced him to
the ACCA's minimum penalty of fifteen years in prison. In
addition, prior to sentencing, Mastera submitted a request for
funds, in the amount of $900, for an expert psychological
evaluation to determine whether he had a diminished capacity that
would allow for a reduced sentence. The district court denied this
request.
Mastera now appeals both the district court's decision to
sentence him under the ACCA and that court's denial of funds for a
psychological evaluation. We find no error, and so affirm.
I. Background
Mastera pled guilty to one count of possessing a firearm
and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1)
(2000), and one count of possessing a stolen firearm, in violation
of 18 U.S.C. § 922(j). The Armed Career Criminal Act, which
carries a mandatory minimum sentence of fifteen years'
imprisonment, applies to felons convicted of firearm possession
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under 18 U.S.C. § 922(g)(1) and who have at least three previous
convictions for violent felonies or serious drug offenses. See 18
U.S.C. § 924(e). The predicate convictions must be for crimes
"committed on occasions different from one another." 18 U.S.C. §
924(e)(1).
The district court found that Mastera had four qualifying
convictions: one for stalking, one for assault with a dangerous
weapon, and two for separate incidents of breaking and entering.
Mastera concedes that the assault conviction properly counts as an
ACCA predicate. But he contends that there was insufficient
evidence for the district court to determine that either of the
breaking and entering convictions was a conviction for a violent
felony as defined in 18 U.S.C. § 924(e)(2)(B). He also argues that
the stalking conviction and one of the breaking and entering
convictions derive from conduct committed on the same occasion, and
thus can count as only one predicate conviction rather than two.
In sum, Mastera claims, he had only two predicate convictions, not
the requisite three, and thus the district court erred in
sentencing him under the ACCA.
Mastera also requested the district court to grant funds
for a psychological evaluation to determine if he had a diminished
capacity that might qualify him for a reduced sentence, because as
a person of limited means, Mastera could not afford to pay an
expert himself. His submission to the court alleged that he was an
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alcoholic who suffered from insomnia and racing thoughts and that
as a child he had endured abuse. He admitted that he was not on
any medication except to treat acid reflux disease. The court
denied Mastera's request, sentencing him to a fifteen-year term,
the mandatory minimum under the ACCA.
II. Discussion
Mastera appeals both the district court's determination
that he qualified as an Armed Career Criminal and the court's
denial of funds for a psychological evaluation. We address the two
issues in turn.1
A. Adjudication under the Armed Career Criminal Act
Mastera argues that the district court improperly
sentenced him under the ACCA because there was insufficient
evidence to conclude he had the required three predicate violent
felony convictions. The district court found that Mastera had four
such convictions. Here, Mastera attacks two of those
determinations. Whether a defendant qualifies as an Armed Career
1
Mastera also argues that the ACCA is unconstitutional because
it allows a defendant to receive a mandatory minimum sentence based
on facts (i.e. the facts of prior convictions) that are found by a
judge rather than by a jury beyond a reasonable doubt. We have
already rejected this argument in United States v. Ivery, 427 F.3d
69 (1st Cir. 2005), in which we held that Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998), which upheld a federal law
allowing judges to impose an enhanced sentence based on prior
convictions that had not been alleged in the indictment, "remains
binding law that we must apply until overruled by a majority of the
Supreme Court." Ivery, 427 F.3d at 75.
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Criminal is a question of law that we review de novo. United
States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002).
1. Overlap between Paragraphs 34 and 352
Mastera's first claim is that two of his prior
convictions, those laid out in Paragraphs 34 and 35 of the PSI,
were erroneously counted as two separate ACCA predicates instead of
as just one. Paragraph 34 describes a conviction for breaking and
entering in the daytime, and Paragraph 35 describes a conviction
for stalking; both convictions were in 1998.3 The crime of
stalking4 undoubtedly satisfies the ACCA's definition of a violent
felony because it "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)(1), and Mastera does not argue otherwise.5 He
2
For ease, we will sometimes refer to a contested conviction
by the number of the paragraph in which it was described in the
PSI.
3
According to the PSI, the breaking and entering took place on
September 7, 1997, while the stalking charge was dated September 8
of the same year.
4
In Massachusetts, a person commits the crime of stalking if
he or she "(1) willfully and maliciously engages in a knowing
pattern of conduct or series of acts over a period of time directed
at a specific person which seriously alarms or annoys that person
and would cause a reasonable person to suffer substantial emotional
distress, and (2) makes a threat with the intent to place the
person in imminent fear of death or bodily injury." Mass. Gen.
Laws Ann. ch. 265, § 43 (2000).
5
Mastera's "overlap" claim assumes arguendo that the breaking
and entering conviction in Paragraph 34 is also a valid ACCA
predicate, and the following discussion makes the same assumption.
He makes an independent challenge to the validity of Paragraph 34;
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contends, however, that it was improper to count his Paragraph 34
and 35 convictions as two separate ACCA predicates, because the two
convictions do not arise from acts "committed on occasions
different from" one another as required by 18 U.S.C. § 924(e)(1).
The breaking and entering, the argument goes, was part of the same
course of conduct that made up the stalking charge, and since
Massachusetts law defines the crime of stalking to require multiple
acts, the "occasion" underlying the stalking encompasses, and thus
is not "different from," the "occasion" underlying the breaking and
entering. Whether two crimes occurred on separate occasions within
the meaning of the ACCA "requires a case-by-case examination of the
totality of the circumstances." United States v. Stearns, 387 F.3d
104, 108 (1st Cir. 2004).
Mastera correctly asserts that, under Massachusetts law,
stalking requires a "pattern of conduct or series of acts." See
Mass. Gen. Laws Ann. ch. 265, § 43 (2000); see also Commonwealth v.
Alphas, 712 N.E.2d 575, 581 (Mass. 1999) (stalking by following
requires more than two incidents of following); Commonwealth v.
Kwiatkowski, 637 N.E.2d 854, 857-58 (Mass. 1994) (stalking by
harassment requires more than two incidents of harassment).
The record does not indicate that the September 7
breaking and entering was one of the "incidents" composing the
stalking charge of which Mastera was convicted in 1998. Because
we address that challenge infra, Section II.A.2.
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there is no evidence that the acts underlying Paragraph 34 also
underlie Paragraph 35, we need not decide what outcome that
situation would require. Mastera has offered evidence only that
the two crimes took place on consecutive days and had the same
victim. Neither of these facts necessarily prevents a finding that
the crimes occurred on separate occasions, see Stearns, 387 F.3d at
108-09, and in fact the record suggests that the breaking and
entering had an "endpoint," after which any subsequent crimes would
be considered separate. See id. The district court did not err in
concluding that the breaking and entering offense and the stalking
offense occurred on two separate occasions and that each could be
counted as a separate ACCA predicate conviction.
2. Breaking and Entering in the Daytime (Paragraph 34)
Mastera next raises a challenge to the validity of
Paragraph 34 as an ACCA predicate conviction. He admits that he
was convicted and sentenced in 1998 on one count of breaking and
entering in the daytime with intent to commit a misdemeanor. He
argues, however, that under the Supreme Court's recent decision in
Shepard v. United States, 125 S. Ct. 1254 (2005), there was
insufficient evidence to allow the district court to conclude that
this breaking and entering qualified as a "violent felony" under
the ACCA.6
6
Mastera was sentenced on February 15, 2005. The Supreme
Court decided Shepard three weeks later, on March 7, 2005. The
present appeal is on direct review, and "a new rule for the conduct
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a. Legal Background
The ACCA includes "burglary" in its enumeration of
qualifying violent felonies. 18 U.S.C. § 924(e)(2)(B)(i).
However, the crime of "burglary" does not have the same elements in
every jurisdiction. To clear up potential confusion and ensure
consistent application of the ACCA across state lines, the Supreme
Court has read the ACCA's definition of burglary "to refer to what
we called 'generic burglary,' an 'unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime.'" Shepard, 125 S. Ct. at 1257 (quoting Taylor v.
United States, 495 U.S. 575, 599 (1990)). This "generic"
definition, which is limited to burglary of a building, is narrower
than the crime as defined by some states, which "define burglary
more broadly, as by extending it to entries into boats and cars."
Shepard, 125 S. Ct. at 1257. Massachusetts is one of the handful
of states with a broader definition of burglary.7
of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet final,
with no exception for cases in which the new rule constitutes a
'clear break' with the past." Griffith v. Kentucky, 479 U.S. 314,
328 (1987); cf. United States v. Booker, 125 S. Ct. 738, 769 (2005)
(citing Griffith in support of applying Sixth Amendment holding and
interpretation of Sentencing Act "to all cases on direct review.").
7
Massachusetts law defines the crime of which Mastera was
convicted in 1998 as the act committed by someone who "breaks and
enters a building, ship, vessel or vehicle with intent to commit a
misdemeanor." Mass. Gen. Laws Ann. ch. 266, § 16A (2000).
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Because of this inconsistency, in non-generic states like
Massachusetts, a sentencing judge cannot necessarily tell, simply
from the fact that a defendant has been convicted of "burglary,"
whether that conviction was for breaking and entering into a
building (in which case it would qualify as an ACCA predicate) or
whether the conviction was for breaking and entering into a ship or
motor vehicle (in which case it would not qualify as an ACCA
predicate). Thus, before counting a Massachusetts burglary
conviction as an ACCA predicate, a sentencing court must somehow
determine that the burglary did, in fact, involve a building. This
is because "any sentence under the ACCA [must] rest on a showing
that a prior conviction 'necessarily' involved (and a prior plea
necessarily admitted) facts equating to generic burglary." Id. at
1262 (plurality opinion) (quoting Taylor, 495 U.S. at 601).
Moreover, in Taylor and then in Shepard, the Supreme
Court restricted the types of evidence a sentencing court may
consider when deciding whether a state burglary conviction was for
an act of "generic" burglary. In the context of a burglary
conviction resulting from a guilty plea, "a later court determining
the character of an admitted burglary is generally limited to
examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented."
Shepard, 125 S. Ct. at 1257. A "comparable judicial record" is
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also acceptable. Id. at 1263. Documents such as complaint
applications or police reports, in contrast, may not be considered
by the sentencing court. Id. at 1257.
b. Validity of Paragraph 34 as ACCA Predicate
On appeal, Mastera argues that the district court lacked
sufficient evidence of the type permitted by Shepard to allow the
conclusion that the Paragraph 34 conviction was for a generic
burglary. He acknowledges, however, that he forfeited this
objection by failing to raise it before the sentencing court.
Thus, we review only for plain error. See United States v. Eirby,
262 F.3d 31, 36 (1st Cir. 2001). To prevail under this standard,
Mastera must make a four-part showing: "(1) that an error occurred
(2) which was clear or obvious and which not only (3) affected
[his] substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Luciano, 414 F.3d 174, 177 (1st Cir. 2005)
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Mastera's argument fails on plain error review, at least
under the second prong of the test, which requires that the error
be "clear or obvious at the time of appellate consideration."
United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir. 1998)
(internal quotation marks omitted) (citing United States v. Olano,
507 U.S. 725, 734 (1993); Johnson v. United States, 520 U.S. 461,
467-68 (1997)). Mastera's counsel, in a sentencing memorandum to
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the district court, more or less conceded that the conviction in
Paragraph 34 was for breaking into a home (not a boat or a
vehicle), stating that "the breaking and entering that occurred
September 7, 1997 [the Paragraph 34 offense] appears to be a
breaking and entering into his own home." It may be debatable
whether the defendant's admission, which was not made during the
plea colloquy for the original conviction, falls within the
evidence permitted by Taylor and Shepard. But it was not a "clear"
or "obvious" transgression of the Shepard rule for the sentencing
court to consider the admission (which was sufficient to justify a
conclusion by the court that the conviction was for generic
burglary). Given this uncertainty, we cannot say that the district
court's finding of an ACCA predicate in the Paragraph 34 conviction
was plainly erroneous. Cf. United States v. Marino, 277 F.3d 11,
32 (1st Cir. 2002) ("unsettled state of the law" precludes finding
of plain error).
Because Mastera has not shown that any clear or obvious
error occurred, we need not address the third and fourth prongs of
the plain error test. The convictions in Paragraphs 34 and 35,
together with the assault conviction that Mastera has conceded is
a valid ACCA predicate, create the three convictions necessary to
sustain adjudication as an Armed Career Criminal.
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3. Breaking and Entering at Night (Paragraph 24)
The last of the four predicate convictions found by the
district court in support of sentencing under the ACCA was a 1991
Massachusetts state conviction for breaking and entering at night
with intent to commit a felony.8 Mastera argues that under
Shepard, there was insufficient evidence to allow the district
court to conclude that this breaking and entering qualified as a
"violent felony" under the ACCA. Although this argument was
undoubtedly preserved for appeal, we need not reach it, because we
have already determined that the district court properly found that
Mastera had three predicate convictions -- the number necessary to
qualify him for sentencing under the ACCA. Whether the court had
adequate Shepard-approved evidence to find that Paragraph 24 was an
ACCA predicate therefore does not bear on the validity of Mastera's
sentence.
B. Denial of Funds for Psychological Evaluation
Finally, we turn to Mastera's claim that the district
court erred in denying his request for $900 to obtain a pre-
sentencing psychological evaluation. We review the denial of such
a request for abuse of discretion. United States v. Manning, 79
F.3d 212, 218 (1st Cir. 1996).
8
Like breaking and entering in the daytime, the crime of
breaking and entering at night encompasses burglary of "a building,
ship, vessel or vehicle." See Mass. Gen. Laws Ann. ch. 266, § 16
(2000).
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Mastera contends that a psychological evaluation was
necessary for him to prepare an adequate defense, since he is an
alcoholic, suffered from sleep difficulties and racing thoughts,
allegedly had mental health problems while incarcerated in the
past, and had endured childhood abuse. He believes these facts
might signify that he has a diminished capacity that would entitle
him to a lower sentence.9 "[D]ue process requires that, where 'the
defendant's mental condition [is] relevant to his criminal
culpability and to the punishment he might suffer,' the government
provide to indigent defendants expert psychiatric testimony at 'the
sentencing phase.'" United States v. Abreu, 202 F.3d 386, 391 (1st
Cir. 2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 80, 83-84
(1985)). Nevertheless, "a trial judge is not required to grant
every motion questioning an accused's competency." United States
v. Pellerito, 878 F.2d 1535, 1544 (1st Cir. 1989). After a careful
review of the evidence Mastera offers in support of his claim, we
conclude that the district court did not abuse its discretion in
denying the request for funds.
Mastera presents four reasons for believing he might
qualify for a diminished capacity sentencing departure. The
evidence of alcoholism does not help Mastera because § 5K2.13
9
With some qualifications, U.S.S.G. § 5K2.13 recommends a
sentence below the otherwise-applicable range if "the defendant
committed the offense while suffering from a significantly reduced
mental capacity."
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specifically prohibits a court from granting a diminished capacity
downward departure if "the [defendant's] significantly reduced
mental capacity was caused by the voluntary use of drugs or other
intoxicants." This prohibition is buttressed by the policy
statement in § 5H1.4 that "[d]rug or alcohol dependence or abuse is
not a reason for a downward departure." Thus, Mastera's alcoholism
can be eliminated as an argument in favor of granting funds for a
psychological evaluation. Moreover, current insomnia and racing
thoughts, while indicative of some level of mental distress, are
not probative as to Mastera's mental condition at the time he
committed the crime of unlawfully possessing a firearm.
As to the child abuse, Mastera presented the sentencing
court with a letter he had handwritten, entitled "My Life," that
described his violent and abusive childhood. Before imposing the
sentence, the judge stated that he had received this document and
"reviewed it closely." Mastera argues that this case is comparable
to the Ninth Circuit's decision in United States v. Brown, 985 F.2d
478 (9th Cir. 1993), which held that a district court had
discretion to consider a defendant's account of "severe abuse and
neglect" during his childhood. Id. at 481. However, the
sentencing court in Brown explicitly stated its desire to depart
downward but concluded that it did not have the authority to do so,
and the Ninth Circuit held that it did, in fact, have that
authority. See id. at 480, 483. In this case, by contrast, the
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sentencing court did read and consider Mastera's submission about
the childhood abuse he suffered.
Finally, Mastera alleged to the district court, without
providing specifics, that he had "some history of psychological
care during a prior incarceration." He argues that this allegation
brings him within the ambit of Pellerito, in which the defendant
moved for permission for a psychological evaluation and alleged,
inter alia, "that he was a long-time drug abuser [and] that he had
been treated previously for mental illness." Pellerito, 878 F.2d
at 1545. We held that the defendant's motion should have been
granted. However, Pellerito is distinct from this case in one
important way.10 In Pellerito, the defendant's "medicinal regimen,"
consisting of sedatives and anti-anxiety medications, was, at the
time the request for an expert was made, "a matter of record." Id.
Mastera, in contrast, told the judge he was not on any medication,
and, importantly, provided no corroborating evidence of any kind
that he had a history of treatment for mental illness.
Having considered all the foregoing factors, we conclude
that it was not an abuse of discretion for the judge to determine
there was no warrant for Mastera to receive a psychological
evaluation.
10
Mastera contends that the only difference between the two
cases is that the defendant in Pellerito was able to pay for his
own psychological expert, whereas Mastera is unable to do so.
This, however, is not a dispositive distinction. See Abreu, 202
F.3d at 391.
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III. Conclusion
The district court's denial of defendant's motion for funds
for a psychological examination and the defendant's sentence are
affirmed.
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