United States Court of Appeals
For the First Circuit
No. 05-2763
UNITED STATES OF AMERICA,
Appellee,
v.
GARY W. MILLER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Edward C. Roy, Jr., Assistant Federal Public Defender, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief, for
appellee.
February 26, 2007
SELYA, Senior Circuit Judge. Following the entry of a
guilty plea, defendant-appellant Gary W. Miller was sentenced to a
180-month incarcerative term under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1). On appeal, Miller argues (i) that
the district court improperly relied upon a state court transcript
in establishing one of the underlying convictions needed to engage
the gears of the ACCA; (ii) that there was insufficient evidence to
support a finding that he had been convicted of such a predicate
offense; and (iii) that in all events, the ACCA enhancement
violated his Fifth and Sixth Amendment rights. Concluding, as we
do, that these arguments lack force, we affirm the sentence.
The facts are uncomplicated. On June 3, 2005, Miller
pleaded guilty to a single-count indictment charging him with being
a felon in possession of a handgun, in violation of 18 U.S.C. §
922(g)(1). At the disposition hearing, the government claimed that
Miller should be sentenced as an armed career criminal. Miller
disputed that claim.
Under the ACCA, a defendant such as Miller who has three
prior "violent felony" convictions is subject to a mandatory
minimum sentence of fifteen years. See id. § 924(e)(1). Both
sides ultimately agreed that Miller had at least two prior
convictions for violent felonies. They disagreed, however, as to
whether a third conviction — a 2000 Connecticut state court
conviction for third-degree burglary — constituted a countable
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predicate under the ACCA. Refined to bare essence, the parties'
disagreement (and, hence, the issue of ACCA coverage) centered on
the nature of this burglary conviction. We briefly explain the
parameters of the dispute.
A conviction for burglary may constitute a conviction for
a violent felony within the purview of the ACCA. See id. §
924(e)(2)(B)(ii). Burglary is not statutorily defined in the ACCA
context, but the Supreme Court has held that, for purposes of
section 924(e), burglary means generic burglary; that is, "an
unlawful or unprivileged entry into, or remaining in, a building or
other structure with intent to commit a crime." Taylor v. United
States, 495 U.S. 575, 599 (1990). The Connecticut statute
underpinning Miller's conviction is not limited to generic
burglary. Although the statute of conviction defines third-degree
burglary as "enter[ing] or remain[ing] unlawfully in a building
with the intent to commit a crime," Conn. Gen. Stat. § 53a-103(a),
a related statute expands the ordinary definition of "building" to
include, among other things, vehicles, watercraft, and railroad
cars, see id. § 53a-100. Therein lies the problem: typically, a
conviction for burglary involving, say, a car, boat, or railroad
car would not constitute a generic burglary conviction and,
therefore, would not constitute an ACCA predicate.1 See, e.g.,
1
Taylor leaves open the possibility that a burglary conviction
involving a non-building that has been converted to a dwelling (for
example, a houseboat) might qualify as an ACCA predicate offense.
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United States v. Bennett, 469 F.3d 46, 50 (1st Cir. 2006); United
States v. Mastera, 435 F.3d 56, 60-61 (1st Cir. 2006).
Faced with the need to determine the nature of Miller's
third-degree burglary conviction, the district court reviewed the
transcript of the state court change-of-plea colloquy. The
district court focused particularly on the state judge's
summarization of the crime as a "break-in at Trader Jack's
[involving] a safe." The district court also noted that, during
the same proceeding, the state judge at one point said that he
would impose a suspended sentence of five years with three years of
probation, and then added that Miller should "[s]tay out of Trader
Jack's and all the other stores that he wasn't charged with, even"
(emphasis supplied). Based on these statements, the district
court, while acknowledging that it was "a close call," found
sufficient evidence to ground a conclusion that Miller's third-
degree burglary conviction involved the burglary of a building
(i.e., a store) and thus comprised a third ACCA predicate. The
district court proceeded to sentence Miller as an armed career
criminal and imposed a 180-month incarcerative term. This timely
appeal followed.
In this venue, Miller advances three assignments of
error. First, he argues that the district court should not have
See 495 U.S. at 593, 599. This case does not require us to explore
that possibility.
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relied upon the change-of-plea colloquy in determining the factual
contours of his Connecticut state court conviction because he did
not assent to the facts adverted to by the state judge. Second, he
argues that even if the district court appropriately consulted the
colloquy, there was insufficient evidence to warrant a finding that
the burglary involved a building. Third, he argues that the
finding that the Connecticut burglary involved a building was made
in derogation of his constitutional rights because that fact was
neither admitted by him nor proven to a jury beyond a reasonable
doubt.
We review Miller's legal claims de novo. See Mastera,
435 F.3d at 59. In the process, however, we review the district
court's factual findings for clear error. See Bennett, 469 F.3d at
49; United States v. Delgado, 288 F.3d 49, 52 (1st Cir. 2002).
Our mode of analysis is familiar. The Supreme Court has
articulated a two-tier categorical approach for determining whether
a prior conviction is for a violent felony within the meaning of
the ACCA. See Taylor, 495 U.S. at 599-603; see also United States
v. Richards, 456 F.3d 260, 262-63 (1st Cir. 2006). Under this
approach, an inquiring court, confronted with a prior burglary
conviction, must first examine whether the conviction was based
upon a statute that dovetails with the definition of generic
burglary. See Bennett, 469 F.3d at 49. If it does, the inquiry
ends and the prior conviction may be used as an ACCA predicate.
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Id. Where, as here, the underlying statute sweeps more broadly and
defines burglary in terms that encompass but exceed the parameters
of the generic definition, the court must move to the second step
of the Taylor pavane in order to determine if "the particular
conviction actually embodied every element of a violent felony."
Richards, 456 F.3d at 262.
The second step is not a free-style exercise. In taking
that step, the court must restrict its inquiry to documents within
the carapace of the record of conviction, such as "the charging
document, the terms of the plea agreement or transcript of the
colloquy between judge and defendant in which the factual basis for
the plea was confirmed by the defendant, or some comparable
judicial record of this information." Shepard v. United States,
544 U.S. 13, 26 (2005); cf. Conteh v. Gonzales, 461 F.3d 45, 53
(1st Cir. 2006) (discussing contours of "record of conviction" in
an analogous context). In describing this second step, the Shepard
Court indicated that the inquiry is "generally limited" to the
materials mentioned above "and any explicit factual finding by the
trial judge to which the defendant assented." 544 U.S. at 16.
Miller's first argument seizes upon this comment. He
asserts that a defendant's express assent to the factual basis for
a guilty plea is necessary if any portion of the plea colloquy is
to be used at the second step of the Taylor analysis. Because he
never assented to the state judge's characterization of the factual
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basis for his third-degree burglary conviction, this thesis runs,
the district court's reliance upon that characterization was
impermissible.
We assume for argument's sake, but do not decide, that a
defendant's assent to particular portions of a plea colloquy is
needed before those statements can be used at the second step of a
Taylor analysis. Even so, Miller's argument fails because his
factual premise — that he never assented to the state judge's
characterization — is faulty. Our reasoning follows.
The law of evidence long has recognized "adoptive
admissions." See, e.g., Fed. R. Evid. 801(d)(2)(B). This doctrine
provides that, in certain circumstances, a party's agreement with
a fact stated by another may be inferred from (or "adopted" by)
silence. See id.; see also United States v. Fortes, 619 F.2d 108,
115 (1st Cir. 1980). Such an inference may arise when (i) a
statement is made in a party's presence, (ii) the nature of the
statement is such that it normally would induce the party to
respond, and (iii) the party nonetheless fails to take exception.
See United States v. Higgs, 353 F.3d 281, 309-10 (4th Cir. 2003).
In such an instance, the statement may be considered "adopted" by
virtue of the party's failure to respond. See, e.g., United States
v. Negrón-Narváez, 403 F.3d 33, 39 (1st Cir. 2005); cf. United
States v. Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993) ("A defendant
that accepts . . . without contesting the facts set forth in the
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[presentence] report can scarcely be heard to complain when the
sentencing court uses those facts to make its findings.").
This doctrine is applicable here. The transcript of the
change-of-plea hearing indicates that the state judge, after
describing the case as one that involved "a break-in at Trader
Jack's with a safe" and instructing Miller to "[s]tay out of Trader
Jack's and all the other stores," asked him if "[he] had enough
time to think about this." Miller replied in the affirmative, but
did not undertake to correct the judge's characterization. The
transcript reveals that the judge afforded Miller multiple
opportunities to speak on the subject. Miller consistently
refrained from any qualification or correction of the factual
predicate upon which the judge's remarks rested.
Under these circumstances, we believe that Miller had
ample opportunity to take exception to particular facts with which
he disagreed. He chose not to contest any of the facts that had
been recounted by the state judge. Given these exchanges, we think
it fair to conclude that Miller, by his silence, adopted those
facts (and, therefore, assented to their accuracy). Cf. United
States v. Smith, 390 F.3d 661, 665-66 (9th Cir. 2004) (holding that
defense counsel conceded as true the prosecutor's factual
characterization of an offense where counsel failed to contest the
matter). Taking all aspects into account, we find no error in the
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district court's conclusion that Miller's burglary conviction
related to a qualifying structure.
Miller's next argument is case-specific. He claims that,
even if the district court properly considered the transcript, the
evidence was insufficient to ground a finding that Trader Jack's
was a store (and, thus, a qualifying structure within the generic
definition of burglary and the purview of the ACCA). He offers no
real support for this argument beyond suggesting that he might have
burglarized something other than a store. A Taylor analysis is
categorical, but an inquiring court has the right to draw
reasonable inferences from the evidence. See, e.g., Bennett, 469
F.3d at 50. The court is not required either to wear blinders or
to leave common sense out of the equation.
Here, given the references to Trader Jack's as a store
containing a safe, we believe that the district court drew a
reasonable inference and rendered a logical conclusion: that Trader
Jack's was a store and, thus, a building. That determination was
not clearly erroneous, and the court was not required to abandon it
merely because Miller conjured up a speculative possibility. See
United States v. Beasley, 442 F.3d 386, 393 (6th Cir. 2006)
(explaining that a common sense factual determination cannot be
overcome simply by pointing to "some lingering metaphysical
doubt").
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Miller's final argument need not detain us. He
hypothesizes that his constitutional rights were abridged because
he did not admit, and the government did not prove to a jury beyond
a reasonable doubt, his Connecticut state court conviction (or any
other conviction, for that matter). We recently have rejected this
precise argument. See United States v. Coplin, 463 F.3d 96, 104-05
(1st Cir. 2006); United States v. McKenney, 450 F.3d 39, 45-46 (1st
Cir. 2006); see also United States v. Jiménez-Beltre, 440 F.3d 514,
520 (1st Cir. 2006) (en banc). That result was a foregone
conclusion under current Supreme Court precedent. See Almendarez-
Torres v. United States, 523 U.S. 224, 239 (1998).
We need go no further. For the reasons elucidated above,
we uphold Miller's sentence.
Affirmed.
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