United States Court of Appeals
For the First Circuit
No. 07-2331
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Stafford,* District Judge,
and Torruella, Circuit Judge.
Karen A. Pickett, with whom Donnelly, Conroy & Gelhaar, LLP
was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
September 10, 2008
*
Of the Northern District of Florida, sitting by designation.
TORRUELLA, Circuit Judge. Carlos Torres pled guilty to
possession of crack cocaine with intent to distribute. The
Presentence Investigation Report ("PSR") determined him to be a
career offender under the Sentencing Guidelines, resulting in a
Guidelines Sentencing Range ("GSR") of 188 to 235 months. Counted
for career-offender purposes were two New Jersey convictions -- one
for drug distribution and one for possessing an assault weapon --
that Torres committed at age seventeen, and for which he was
convicted and sentenced at age twenty. On appeal, Torres
challenges his qualification as a career offender by arguing that
these convictions were not properly countable because he was a
juvenile when he committed them, and that the gun-possession
offense was not a "crime of violence," as required under the
applicable guideline. He also argues that he must be resentenced
to take account of recent Guidelines amendments concerning crack
cocaine. After careful review, we affirm Torres's sentence.
I. Background
Torres sold 10.1 grams of crack cocaine to an undercover
agent. He was arrested and charged with distributing five or more
grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), an
offense carrying a statutory mandatory minimum sentence of five
years and a maximum of forty years. Id. § 841(b)(1)(B). He pled
guilty and the district court accepted the plea.
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Torres's PSR calculated his base offense level as
twenty-six because he possessed 10.1 grams of crack. See U.S.S.G.
§ 2D1.1(c)(7) (2006).1 It subtracted from this number three levels
for acceptance of responsibility, see id. § 3E1.1, for a total
offense level of twenty-three. The PSR determined, however, that
Torres qualified as a career offender under the Guidelines because
he fulfilled the three criteria in U.S.S.G. § 4B1.1: (1) he was
over age eighteen when he committed the crime of conviction;
(2) the crime of conviction was a controlled-substance offense; and
(3) he had at least two prior felony convictions of either a crime
of violence or a controlled-substance offense, or one of each. See
id. § 4B1.1(a). Two prior convictions are relevant to the
discussion below. First, in January 1996, Torres possessed
marijuana and crack cocaine within 1,000 feet of a school; a New
Jersey court convicted and sentenced him for possession with intent
to distribute in October 1998 ("New Jersey drug conviction").
Second, in February 1996, Torres illegally possessed what the PSR
described as a "fully-loaded M-11 machine gun"; a New Jersey court
convicted him of possession of an assault firearm in October 1998,
and set his sentence to run concurrently with that for the drug
1
Torres was sentenced under the 2006 Guidelines. Under the
amended 2007 Guidelines, this base offense level would have been
twenty-four. See U.S.S.G. § 2D1.1(c)(8) (2007).
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offense.2 At the time he committed both offenses, Torres was
seventeen years old; at the time he was sentenced for both, he was
twenty.
Because Torres qualified as a career offender, and
because his offense of conviction has a statutory maximum of forty
years' imprisonment, the PSR calculated his base offense level as
thirty-four. See id. § 4B1.1(b)(B); 21 U.S.C. § 841(b)(1)(B).
This base offense level superseded Torres's non-career-offender
base offense level of twenty-six by operation of the relevant
provision in the career-offender section of the Guidelines.
See id. § 4B1.1(b) ("[I]f the offense level for a career offender
from the table in this subsection is greater than the offense level
otherwise applicable, the offense level from the table in this
subsection shall apply."). Under the terms of the same provision,
the PSR set Torres's Criminal History Category ("CHC") at VI.
See id. ("A career offender's criminal history category in every
case under this subsection shall be Category VI."). The PSR then
2
The PSR also listed what the Probation Office considered to be
a third prior New Jersey conviction, for burgling a store, which
Torres committed in June 1998 and for which he was convicted and
sentenced in October 1998. Below, we hold that the district court
properly counted the New Jersey drug conviction and the New Jersey
gun conviction as career-offender predicates, and two qualifying
prior convictions are all that is required. See U.S.S.G.
§ 4B1.1(a). For this reason, we need not state a view on whether
the burglary conviction was properly counted, and we deny Torres's
request, made in a Federal Rule of Appellate Procedure 28(j) letter
following oral argument, to delay a decision in this case until the
en banc court issues an opinion in United States v. Giggey,
No. 07-2317.
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subtracted three points to take account of Torres's acceptance of
responsibility, leaving him with a total offense level of
thirty-one and a CHC of VI. This produced a GSR of 188 to 235
months. Id. § 5A.
At sentencing, the district court found that the
Government had proved the New Jersey drug conviction and the New
Jersey gun conviction, that New Jersey law considered them adult
convictions, and that they therefore could be counted to render
Torres a career offender. The court accepted the PSR's
recommendation that Torres's career-offender offense level should
be thirty-one, his CHC VI, and his resulting GSR 188 to 235 months.
Calling Torres a "classic career offender [of the type] Congress
had in mind for these long prison sentences," the court rejected
Torres's plea to vary the sentence downward, considered the
18 U.S.C. § 3553(a) factors, and sentenced him near the bottom of
the range to 195 months in prison. Torres lodged a timely appeal.
II. Discussion
A. Standard of Review
We review the "procedural component of the sentence for
abuse of discretion; procedural errors amounting to an abuse of
discretion might include 'failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the 18 U.S.C. § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
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to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.'" United
States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008) (quoting
United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)). Thus,
the district court's legal interpretation of Guidelines provisions
receives plenary review. See United States v. Vázquez-Botet, 532
F.3d 37, 65 (1st Cir. 2008).
B. Whether Torres's 1996 Convictions May Count Toward
His Career-Offender Status
As they did before the district court, the parties argue
at length about whether it was proper for the district court to
count the New Jersey drug and gun convictions to render Torres a
career offender, as he was seventeen when he committed both but
twenty when he was convicted and sentenced. See U.S.S.G. § 4B1.2
cmt. n.1 ("A conviction for an offense committed at age eighteen or
older is an adult conviction. A conviction for an offense
committed prior to age eighteen is an adult conviction if it is
classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted . . . .").
Torres contends that under the relevant New Jersey law the age of
adulthood is eighteen, so his convictions for offenses committed
when he was seventeen cannot be counted in his score. The
Government counters that, even though Torres was a minor when he
committed the offenses, he was convicted and sentenced at age
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twenty and treated by the New Jersey court as an adult, so the
offenses can be counted.
Under the circumstances, we need not delve into New
Jersey law or how the New Jersey court classified Torres
thereunder, because another provision in the Guidelines forecloses
Torres's challenge. Application Note 3 to § 4B1.2 states that
"[t]he provisions of §4A1.2 (Definitions and Instructions for
Computing Criminal History) are applicable to the counting of
convictions" for determining whether a defendant is a career
offender. Id. cmt. n.3. One of the provisions of § 4A1.2, in
turn, is Application Note 7, which discusses how to count offenses
committed prior to the age of eighteen for purposes of a
defendant's criminal-history score where the crime of conviction
was commenced within five years of release from confinement:
Section 4A1.2(d) covers offenses committed
prior to age eighteen. . . . [F]or offenses
committed prior to age eighteen, only those
that . . . resulted in imposition of an adult
or juvenile sentence or release from
confinement on that sentence within five years
of the defendant's commencement of the instant
offense are counted. To avoid disparities
from jurisdiction to jurisdiction in the age
at which a defendant is considered a
"juvenile," this provision applies to all
offenses committed prior to age eighteen.
Id. § 4A1.2 cmt. n.7.
The parties do not dispute that Torres was convicted of
and sentenced for the New Jersey drug and gun offenses in October
1998, served his respective sentences for the two crimes
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concurrently, and was ultimately released from the New Jersey
correctional facility in January 2002 after having been paroled for
a time and then having had his parole revoked. They likewise do
not dispute that Torres committed the "instant offense" -- that is,
selling 10.1 grams of crack cocaine to an undercover agent -- in
May and June 2004, less than five years after Torres's January 2002
release from New Jersey custody. The condition in Application
Note 7 of § 4A1.2 was therefore triggered, and Application Note 3
of § 4B1.2 allows recourse to Application Note 7 in determining
whether a prior conviction may be counted. See United States v.
Bacon, 94 F.3d 158, 161 (4th Cir. 1996) ("Whether a prior
conviction must be counted [toward a defendant's career-offender
status] under § 4B1.1 is determined by reference to § 4A1.2."); see
also Stinson v. United States, 508 U.S. 36, 38 (1993) (Guidelines
commentary authoritative if it does not violate Constitution or
federal statute, and is not inconsistent with the relevant
guideline itself).
As a result, the district court committed no error in
counting both New Jersey convictions in determining that Torres was
a career offender. This reading of the relevant Guidelines
provisions and commentary comports with that of the Sixth Circuit
in United States v. Hinds, 2 F. App'x 420 (6th Cir. 2001) (per
curiam), which held that the district court had properly counted
the defendant's prior conviction toward his career-offender status
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because his release from prison occurred less than five years
before he committed the federal offense that was the subject of the
appeal. Id. at 424-25. Given this fact, the Hinds court did not
reach the disputed question of whether the prior conviction was an
adult conviction or a juvenile conviction. See id. at 425. Our
reading is also consistent with that of the Third and Fourth
Circuits. See, e.g., United States v. Moorer, 383 F.3d 164, 167-68
(3d Cir. 2004) (relying on another portion of U.S.S.G. § 4A1.2 cmt.
n.7, incorporated by reference through U.S.S.G. § 4B1.2 cmt. n.3,
to determine that one of the defendant's prior convictions could be
counted for career-offender purposes); United States v. Mason, 284
F.3d 555, 559 (4th Cir. 2002) (suggesting that, had less than five
years transpired between defendant's release from prison and his
commission of the instant offense, the prior conviction could have
been counted toward his career-offender status).
For these reasons, it is immaterial whether Torres was
classified as an adult under New Jersey law, or whether the
relevant time for him to be so classified was when he committed
these crimes or when he was convicted and sentenced for them.3
Therefore, provided the district court was correct in finding the
New Jersey gun conviction to be a "crime of violence" for career-
3
Because we find an alternative ground for affirmance, we need
not state a view on whether the district court was correct in
characterizing these as adult convictions. See United States v.
Brown, 510 F.3d 57, 74 (1st Cir. 2007) (affirmance permitted on any
ground supported by record).
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offender purposes -- a question we address immediately below -- the
court did not abuse its discretion in counting both the New Jersey
drug offense and the New Jersey gun offense as contributing to
Torres's status as a career offender.
C. Whether the New Jersey Gun Conviction Was for a Crime
of Violence
The Guidelines list two types of offenses for which a
prior conviction may be counted to render a defendant a career
offender: "crime[s] of violence" and "controlled substance
offense[s]." U.S.S.G. § 4B1.1(a). The parties do not dispute that
the New Jersey drug conviction was for a controlled-substance
offense, and is thus countable. Torres does, however, challenge
the district court's conclusion that the New Jersey gun conviction
was for a crime of violence.
Section 4B1.2 of the Guidelines defines a "crime of
violence" as an offense that "has as an element the use, attempted
use, or threatened use of physical force against the person of
another." Application Note 1 elaborates on this definition,
explaining in pertinent part that "[u]nlawfully possessing a
firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun
or sawed-off rifle, silencer, bomb, or machine gun) is a 'crime of
violence.'" U.S.S.G. § 4B1.2 cmt. n.1 ¶ 5. Section 5845(a), in
turn, lists a number of firearms, including "a machinegun."
26 U.S.C. § 5845(a)(6). "Machinegun" is defined as "any weapon
which shoots, is designed to shoot, or can be readily restored to
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shoot, automatically more than one shot, without manual reloading,
by a single function of the trigger." Id. § 5845(b). Hence, a
prior conviction for unlawful possession of a machinegun meeting
this definition qualifies as a crime of violence for career-
offender purposes.
According to the PSR, the New Jersey court convicted
Torres of "[p]ossession of an [a]ssault [f]irearm" after he was
arrested carrying "a fully-loaded M-11 machine gun." Torres did
not object to this characterization of the crime. While the PSR
recommended that the 1996 New Jersey gun conviction be counted as
a crime of violence qualifying Torres for career-offender status,
it did not set forth an analysis of whether the particular
machinegun Torres was convicted of possessing met the definition of
"machinegun" in § 5845(b), or qualified as another of the firearms
listed in § 5845(a). Faced with no objection from Torres, the
district court likewise did not undertake such an analysis, but
instead found the facts as presented in the PSR and adopted the
PSR's legal recommendations. The court thus implicitly counted the
1996 New Jersey gun conviction as a crime of violence contributing
to Torres's status as a career offender.
As noted above, Torres now claims this was reversible
error. He concedes that the New Jersey court convicted him of
possessing an assault firearm, but asserts that New Jersey's
definition of "assault firearm" includes many guns not meeting the
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definition of any of the firearms in § 5845(a), and that the
Government failed to discharge its burden of proving at sentencing
that it was indeed one of these firearms. Since Torres did not
raise this argument below, we review for plain error. See United
States v. Brandao, No. 07-1215, ___ F.3d ___, 2008 WL 3866512, at
*12 (1st Cir. Aug 21, 2008) (plain-error standard asks (1) whether
the district court erred; (2) whether the error was "plain" -- that
is, clear or obvious; and (3) whether this error affected the
defendant's substantial rights and (4) whether the error
"'seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings'" (quoting United States v.
Olano, 507 U.S. 722, 732 (1993))); United States v. Colón-Díaz, 521
F.3d 29, 33 (1st Cir. 2008); United States v. Brown, 510 F.3d 57,
72 (1st Cir. 2007).
Torres's argument is unavailing. Where, as here, the
defendant does not object to a predicate conviction laid out in the
PSR, the relevant paragraph in the PSR can be used to satisfy the
Government's modest burden of proving the conviction. See United
States v. Jiménez, 512 F.3d 1, 7 (1st Cir. 2007); Brown, 510 F.3d
at 74. Although Torres is correct in pointing out that the record
lacks a detailed description of his gun, the Government would
probably have proffered such evidence had Torres lodged an
objection to the PSR. This, in turn, would have allowed the
district court to perform a fully informed § 5845 inquiry, and us
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on appeal to review the court's inquiry. It is precisely because
of this sort of scenario that the forfeiture rule exists.
Under the circumstances of this case, we need not remand
for resentencing so that the district court, with the benefit of
additional evidence describing the gun, can perform the § 5845
inquiry. Defendant has not met his burden of showing error or that
any error was plain. It is exceedingly unlikely that the
unauthorized possession of a weapon described in the PSR as an
"M-11 machine gun," and by the New Jersey court as an "assault
weapon," could fail to meet the straightforward definition in
§ 5845(b).4 Cf. United States v. Golding, 332 F.3d 838, 840-43
(5th Cir. 2003) (per curiam) (holding that unlawful machinegun
possession is a crime of violence). We accordingly decline
Torres's invitation to overturn the court's decision to count the
New Jersey gun conviction as a career-offender predicate.
D. Effect of Kimbrough and Amendments to Crack-Cocaine
Guidelines
In his last sentencing challenge, Torres argues that this
case must be remanded for resentencing to take account of the U.S.
Sentencing Commission's recent amendment to the Guidelines lowering
the offense levels for certain crack-cocaine offenses,5 as well as
4
We need not (and do not) decide today whether the possession of
any assault weapon is per se a crime of violence for career-
offender purposes, but merely that the district court's counting of
the gun-possession conviction in this case was not plain error.
5
See supra note 1.
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the Supreme Court's decision in Kimbrough v. United States, 128
S. Ct. 558 (2007), which postdated his sentencing. Yet as the
Government argues and Torres concedes, what determined Torres's
base offense level of thirty-four was the unamended statutory
maximum for his crime -- forty years -- combined with the fact that
he had sufficient predicate convictions to qualify him as a career
offender. See 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1(b)(B)
(career-offender status combined with statutory maximum of twenty-
five years or more yields base offense level of thirty-four).
Thus, it would serve no purpose to remand for resentencing because,
notwithstanding any salutary effect the Guideline amendment or
Kimbrough may have had on Torres were he not a career offender, in
this case the district court would still be compelled to assign
him, as a career offender, a base offense level of thirty-four.
See U.S.S.G. § 4B1.1(b)(B); see also Jiménez, 512 F.3d at 8-9. We
accordingly reject this ground of appeal.
III. Conclusion
For these reasons, we affirm Torres's sentence.
Affirmed.
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