United States Court of Appeals
For the First Circuit
____________
No. 05-1789
UNITED STATES OF AMERICA,
Appellee,
v.
TREVOR ROYCE TEAGUE,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
Before
Torruella and Lynch, Circuit Judges,
and Woodcock,* District Judge.
___________________
Arza Feldman and Steven A. Feldman, on brief, for appellant.
Timothy Q. Feeley, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief, for
appellee.
___________________
November 29, 2006
___________________
______________
*Of the District of Maine, sitting by designation.
WOODCOCK, District Judge. This appeal raises the
question of whether a prior conviction for endangerment of a child
under Texas law necessarily constitutes a predicate crime of
violence for purposes of career offender status. Although in the
circumstances of this case the district judge erred in answering
this question in the affirmative, we conclude that the error was
harmless and uphold the sentence. We further conclude that the
Appellant did not suffer a due process violation and uphold the
conviction.
I. Statement of Facts
On September 5, 1996, Trevor Royce Teague, then 19 years
old, turned up the stereo, left his eleven-month-old daughter alone
in her crib, and rode off on his motorcycle to Fort Hood to look
for his wife. During the forty-five minutes he was gone, the
apartment manager, responding to a complaint about loud music, used
her passkey to enter the apartment to find the baby crying in the
crib. Mounted on the wall about five feet from the child was a gun
rack with a collection of weapons, two of which were loaded. She
called the police. When Teague returned home, he found the police
there, seeking an explanation for his conduct. They did not accept
his excuse that he could not carry his baby on his motorcycle and
he was charged with endangering a child. On November 14, 1996, he
entered a plea of guilty, but adjudication was deferred eight years
and he was placed on probation. Teague had trouble with
compliance. He made an unsupervised visit to his daughter, failed
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to pay his fine, was charged with criminal mischief,1 and operated
a vehicle after license suspension. On December 23, 1997, upon
motion by the government, an adjudication of guilt was entered.
The scene shifts to I-44 in St. Louis County, Missouri.
On October 23, 2003, Christopher Sugar and Sean Stark were
traveling cross country in a 39-foot recreational vehicle when they
encountered the Sugar Tree Road checkpoint, a ruse designed to
intercept illegal drugs.2 Law enforcement officials erected a sign
which alerted motorists to a supposed police stop, complete with
drug-sniffing canines, past the next exit. Motorists taking the
immediate Sugar Tree Road exit were tailed and pulled over for any
motor vehicle violations. Once stopped, if the occupants refused
to consent to a search, the vehicle was held until a drug-sniffing
dog arrived.
Sugar and Stark fell for the ruse and took the exit.
After their RV swayed across the “fog line” on a two-lane road,
they were stopped under a provision of Missouri law that requires
1
Prosecution was barred on the criminal mischief charge.
2
This is not the only time this exit has been used in this
fashion. The Eighth Circuit described the Sugar Tree Road exit as
the “so-called ‘ruse checkpoint.’” United States v. Yousif, 308
F.3d 820, 823 (8th Cir. 2002). Yousif explains that the police
chose the site because they believed “that I-44 was a commonly used
route for transporting drugs, there was little use of the Sugar
Tree Road exit for commercial or local traffic, and the end of the
ramp was not visible from the highway.” Id.; see also United
States v. Martinez, 358 F.3d 1005, 1006 (8th Cir. 2004); United
States v. Williams, 359 F.3d 1019, 1020 (8th Cir. 2004) (“There are
no services –- fuel, lodging, or food facilities –- accessible from
the Sugar Tree exit, so those who exit I-44 at Sugar Tree after
seeing the warning signs may be seeking to avoid detection because
they are carrying illegal substances.”).
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a vehicle to stay in the single lane on three or more marked lanes
for traffic. The police found 27 bales of marijuana stowed away in
the closet of their RV. Sugar and Stark agreed to cooperate and
they continued on their way to the back parking lot of a Holiday
Inn in Marlboro, Massachusetts. At 3:30 p.m. on October 24, 2003,
a white Lexus pulled up near the RV and three men emerged: Anibal
Torres, Fabian Ruiz, and Trevor Royce Teague. They were each
arrested while transferring the bales of marijuana from the RV to
the Lexus.
On October 25, 2003, a criminal complaint was filed
charging Teague, Torres, Ruiz, Sugar, and Stark with conspiracy to
distribute and to possess with intent to distribute more than 100
kilograms of marijuana. On December 3, 2003, all five defendants
were named in a three-count indictment, which was superseded on
October 13, 2004. Sugar and Stark discontinued their cooperation
and filed a motion to suppress the marijuana, claiming the stop
violated the Fourth Amendment. Sugar and Stark based their motion
on the grounds that the swaying of their RV over the fog line fell
outside the scope of the Missouri traffic statute and that the
police officers did not then have a reasonable suspicion to detain
them until the canine arrived. After a two-day evidentiary
hearing, the district court granted their motion in a written
memorandum and order. United States v. Sugar, 322 F. Supp. 2d 85
(D. Mass. 2004). Teague soon followed suit and filed his own
motion to suppress, claiming a violation of his due process rights.
The district court orally denied Teague’s suppression motion. On
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February 3, 2005, after a four-day jury trial, Teague was convicted
of both counts of the superseding indictment.3
When Teague came for sentencing on May 12, 2005, the full
weight of his ill-advised motorcycle ride in 1996 -- and the
resulting conviction for child endangerment in 1997 -- became
apparent. By operation of the career offender provisions, Teague
faced a sentencing range of 262 to 327 months; without career
offender status, he would have faced a sentencing range of 78 to 97
months.4 Over Teague’s objection, the district court found, as a
matter of law, that the 1997 conviction was a crime of violence
and, coupled with a previous conviction of a crime of violence,5
Teague was deemed a career offender under U.S.S.G. § 4B1.1(a).
Despite his conclusion, the sentencing judge, after applying the
statutory factors in 18 U.S.C. § 3553(a), sentenced him to 96
months incarceration, far below the career offender range, but
within the range that would otherwise have applied.
3
Specifically, he was convicted of possession with intent to
distribute marijuana in violation of 21 U.S.C. § 841 and conspiracy
to possess with intent to distribute marijuana in violation of 21
U.S.C. § 846.
4
The career offender calculation was based on a total offense
level of 34 and a criminal history category of VI; the calculation
without career offender status would have been based on a total
offense level of 26 and a criminal history category of III.
5
Teague was convicted in Texas state court on September 4, 1996
of injury to a child. He does not contest the conclusion that this
conviction is properly a predicate under U.S.S.G. § 4B1.1(a).
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II. Discussion
A. Child Endangerment as a Crime of Violence
It is a congressional directive that a defendant who has
been convicted of two or more felonies that are either crimes of
violence or Controlled Substance Act offenses receive “a sentence
to a term of imprisonment at or near the maximum term authorized.”
28 U.S.C. § 994(h). To implement this directive, the United States
Sentencing Commission established a substantially enhanced penalty
for “career offenders” and adopted the following definition of
“crime of violence:”
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that –-
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury
to another.
U.S.S.G. § 4B1.2(a)(1)-(2).
Here, the sentencing court was required to determine
whether Teague’s prior conviction for the Texas crime of child
endangerment fit within the guideline definition of crime of
violence. The Texas statute provides in part: “[a] person commits
an offense if he intentionally, knowingly, recklessly, or with
criminal negligence, by act or omission, engages in conduct that
places a child younger than 15 years in imminent danger of death,
bodily injury, or physical or mental impairment.” Tex. Penal Code
Ann. § 22.041(c). The sentencing judge concluded that “the Texas
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statute involved here categorically ... is a crime of violence.”
Reviewing the district court’s interpretation of the sentencing
guidelines de novo, United States v. Meada, 408 F.3d 14, 24 (1st
Cir. 2005), we disagree.
To determine whether or not a certain offense is a
violent felony under the Armed Career Criminal Act (ACCA), this
court employs a categorical approach. See United States v.
Richards, 456 F.3d 260, 262-63 (1st Cir. 2006) (citing United
States v. Taylor, 495 U.S. 575, 600 (1990)). That approach entails
two steps. Under the first step, we ask if the prior conviction
was based on a statute that necessarily entails every element of a
violent felony. If the answer is yes, our inquiry ends, and the
prior conviction can be used as an ACCA predicate. See Taylor, 495
U.S. at 602; Richards, 456 F.3d at 263. If the answer is no, and
the underlying statute proscribes both violent and non-violent
felonies, we proceed to the second step of the analysis. In this
step, we look at the specific circumstances of the defendant’s
underlying prior conviction to determine if that conviction was
actually for a violent felony. See Taylor, 495 U.S. at 602. Thus,
“the jury must have been required to find (or, in a guilty plea
context, the defendant necessarily must have admitted) all the
elements of a violent felony.” Richards, 456 U.S. at 263. At the
second step, the court will generally be able to look only at a
very limited class of judicial documents in the record to establish
the specific circumstances of the defendant’s prior conviction.
See Shepard v. United States, 544 U.S. 13, 26 (2005).
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Under the first step of the analysis, we conclude that
the Texas crime of child endangerment is not categorically a “crime
of violence” for ACCA purposes. The guideline definition of “crime
of violence” is more narrowly drawn than the statutory definition
of child endangerment. The federal guidelines require “the use,
attempted use, or threatened use of physical force” or the “serious
potential risk of physical injury,” whereas the state statute
captures more innocuous conduct, such as negligent omissions that
place a child “in imminent danger ... of mental impairment.”
Placing a child in danger of mental impairment, though not
laudable, does not necessarily involve the use or threatened use of
physical force or the serious potential risk of physical injury.
We thus proceed to the second step of the analysis. The
government did not provide any evidence at the sentencing hearing,
within the limitations imposed by Shepard, establishing that the
conduct which formed the basis for Teague’s Texas conviction met
the federal definition of a crime of violence.6 Without more, the
government failed to meet its burden of demonstrating the
applicability of the sentencing enhancement under the ACCA, as
Teague’s conviction may well have been based on the part of the
statute not within the ACCA’s reach. To simply assume that Teague
6
The only Shepard evidence that the government placed before
the sentencing court was the conviction itself. The government’s
proffer was silent about any conduct that Teague committed that
would have fit his actions within the definition of a crime of
violence. While Teague himself introduced the Texas indictment,
the defendant’s representation at the sentencing hearing –-
unchallenged by the government –- was that this document gave no
details beyond the mere fact that the child was left unattended.
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had been convicted for violent conduct would be to engage in an
analysis proscribed by Taylor and Shepard.7
This does not end our task. Although the sentencing
judge concluded that Teague was a career offender, he sentenced him
within the range that would have applied if he were not. Despite
this favorable result, Teague argues that, because the sentencing
judge imposed a 96 month sentence –- the high end of the 78 to 97
month non-career offender sentencing range –- the district judge
must have been unduly influenced by his earlier conclusion that he
was a career offender.
Teague’s argument is not supported by the record. To the
contrary, the district judge carefully explained the reasons for
the sentence. Having taken into account the career offender
guideline sentencing range of 262 to 327 months, the district judge
performed a statutory analysis under 18 U.S.C. § 3553(a) in
accordance with United States v. Booker, 543 U.S. 220 (2005), and
United States v. Jimenez-Beltre, 440 F.3d 514 (1st Cir. 2006). In
doing so, the district judge made it clear that he viewed the
career offender range as overly punitive in the circumstances of
7
The parties focus primarily on two cases: United States v.
Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) and United States v.
Parson, 955 F.2d 858 (3d Cir. 1992). In Calderon-Pena, the Fifth
Circuit en banc concluded that a conviction for violating the same
Texas statute did not constitute a crime of violence under U.S.S.G.
§ 2L1.2. Id. at 256-61. Section 2L1.2, however, has a narrower
definition of crime of violence than § 4B1.2, and the Fifth Circuit
relied in part on this difference in language to arrive at its
conclusion. Id. Parson dealt with a conviction for reckless
endangerment under Delaware law, which was defined as “recklessly
engaging in conduct which creates a substantial risk of death to
another person.” Parson, 955 F.2d at 867. Calderon-Pena and
Parson have limited applicability here.
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the case, stating: “I think the effect of this career offender
business is an undue or excessive enhancement of the actual
culpability of your criminal history.” The district court then
explained how he had arrived at the 96 month sentence. He
commented that the crime was “big-time drug trafficking,” that
Teague was not “any sort of bit player,” and that Teague had a
“real record,” and that he had considered what “actually is behind
those prior convictions.”
These comments reflect appropriate statutory
considerations, including “the nature and circumstances of the
offense” and “the history and characteristics of the defendant,”
which lie at the heart of the statutory analysis contemplated by
Booker and Jimenez-Beltre. See 18 U.S.C. § 3553(a)(1). The
rationale articulated by the district court amply justifies a
sentence of 96 months and, even though the district court erred in
concluding that Teague was a career offender, there is nothing to
suggest that a different sentence would issue if we remanded the
matter. See Williams v. United States, 503 U.S. 193, 203 (1992)
(“Once the court of appeals has decided that the district court
misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error
was harmless, i.e., that the error did not affect the district
court’s selection of the sentence imposed.”); United States v.
Roselli, 366 F.3d 58, 65 (1st Cir. 2004). Based on this record, we
readily conclude the error on the part of the district court was
harmless.
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B. Due Process Claim
Teague also claims that because the search of Sugar and
Stark’s RV was deemed unconstitutional as applied to them, it
should also be unconstitutional as applied to him. As this issue
is a question of law, we review the district court’s conclusions de
novo. United States v. Luna, 436 F.3d 312, 316 (1st Cir. 2006).
Teague carefully tailors his claim, conceding that he has no
standing to challenge the search of Sugar and Stark’s RV on Fourth
Amendment grounds.8 Instead, he asserts that his due process
rights were violated by the government’s use at trial of previously
suppressed drugs. Nevertheless, Teague’s claim is untenable, as he
fails to meet the high standards for a violation of due process.
In United States v. Payner, 447 U.S. 727 (1980), the
Supreme Court questioned whether a defendant could properly assert
a violation of the rights of a third party under the Due Process
Clause. In Payner, the government discovered incriminating
evidence by exploiting a “flagrantly illegal search” of a third
party’s briefcase. Id. at 729. Payner concluded that the
defendant did not have standing to assert a Fourth Amendment
violation. Id. at 731-32. As here, the defendant in Payner also
raised a due process claim. The Court responded:
The same difficulty attends respondent’s claim to the
protections of the Due Process Clause of the Fifth
Amendment. The Court of Appeals expressly declined to
8
In United States v. Cordero, we stated “. . . a defendant
cannot succeed in suppressing evidence on Fourth Amendment grounds
unless he can show that his own rights, rather than a third
party’s, have been abridged.” 42 F.3d 697, 699 n.2 (1st Cir.
1994).
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consider the Due Process Clause. But even if we assume
that the unlawful briefcase search was so outrageous as
to offend fundamental “canons of decency and fairness,”
the fact remains that “[the] limitations of the Due
Process Clause ... come into play only when the
Government activity in question violates some protected
right of the defendant.”
Id. at 737 n.9 (citations omitted) (emphasis in original).
In United States v. Santana, we contemplated whether
Payner established “a limitation on standing in the strict sense of
the word, or merely signaled that defendants are highly unlikely to
prevail when they seek to vindicate the rights of third parties.”
6 F.3d 1, 9 (1st Cir. 1993). We concluded that “[i]n either event,
Payner makes manifest that, here, the trial court lacked authority
under the due process clause to dismiss a charge on the basis that
government misconduct caused conscience-shocking harm to non-
defendants.” Id.; Cordero, 42 F.3d at 699 n.2 (citing Santana as
“suggesting that a due process defense based on outrageous
government misconduct is not available if the misconduct only
harmed third parties, but not the defendant”). Here, we arrive at
the same conclusion.
There is simply no evidence that the police conduct was
so outrageous as to violate the “canons of decency and fairness” to
implicate the Due Process Clause. Payner, 447 U.S. at 737 n.9
(citations omitted); Santana, 6 F.3d at 4 (“The banner of
outrageous misconduct is often raised but seldom saluted.”). In
fact, in denying Teague’s motion to suppress, the district court
expressly found that nothing “that happened here was egregious” and
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the police were not acting in “bad faith.”9 The district court
correctly concluded that, even if the police had erred in stopping
and searching the RV, their conduct did not rise to the level of a
due process violation. Teague’s claim of error, therefore, fails
and his motion to suppress was properly denied.
II. Conclusion
The district court’s conviction and sentence are
affirmed.
9
Judge Saris presided over, and orally denied, Teague’s motion
to suppress. Her comments concerning police conduct were
consistent with her written decision involving Sugar and Stark.
Sugar, 322 F. Supp. 2d at 91-94.
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