U.S. v. Damon, 97-1032

• Decision Date: 01 August 1997
• Docket Number: No. 97-1032,97-1032
• Citation: 127 F.3d 139
• Parties: UNITED STATES of America, Appellee, v. Ira W. DAMON, III, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 139

127 F.3d 139

UNITED STATES of America, Appellee, v. Ira W. DAMON, III, Defendant, Appellant.

No. 97-1032.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1997.

Decided Oct. 6, 1997.

F. Mark Terison, Assistant U.S. Attorney, with whom Jay P. McCloskey, United States Attorney, and James Moore, Assistant U.S. Attorney, were on brief, for appellee.

Jeffrey Silverstein, with whom Billings & Silverstein was on brief, for defendant, appellant.

Before LYNCH, Circuit Judge, HILL ^* and GIBSON, ^** Senior Circuit Judges.

LYNCH, Circuit Judge.

Under the U.S. Sentencing Guidelines, punishment for an offense is, at times, increased when the defendant was previously convicted of unrelated crimes. This case presents serious issues of both substance and procedure in this "enhancement" process. The substantive issue is whether the crime of aggravated criminal mischief under state law is categorically a "crime of violence" under U.S.S.G. § 4B1.2(1), thus warranting an increase in sentence. The outcome of the substantive question is determined by resolution of the procedural issue. The procedural issue concerns when a trial court may look beyond the statutory offense and focus on the actual prior criminal conduct in the face of the Supreme Court's admonitions that federal sentencing courts should prefer a categorical approach over an examination of the actual facts of the prior crime. At stake for defendant Damon, an experienced felon caught possessing several firearms, is whether his sentence should be roughly two years shorter than the 84 months he received.

We hold, under Supreme Court precedent, that it was error for the district court to look beyond the categorical nature of the crime, which was revealed in the state charging document. Thus the district court here could not inquire further to discover the reality of the defendant's prior crime as revealed in the Presentence Investigative Report: that the defendant attempted to set fire to his house to collect insurance. Such acts certainly would be a crime of violence, if that information could properly have been considered by the district court. Nevertheless, the decision of the Supreme Court in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990), and the decisions of the U.S. Sentencing Commission embodied in amendments to § 4B1.2(1) preclude this inquiry.

I. Background

Ira Damon was stopped while driving his car on February 28, 1996 by officer Brent Beaulieu of the Newport, Maine police. Beaulieu patted-down Damon and found pistol and shotgun ammunition in Damon's pockets. Damon's car held a shotgun, a pistol, two rifles, and a loaded clip of pistol ammunition.

Damon pled guilty to the federal charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On December 6, 1996 the district court sentenced Damon, inter alia, to 84 months in prison.

Damon has been afoul of the law before. We go through the sentencing calculations that resulted from this history of illicit activity. Damon's unauthorized use of a motor vehicle gained him one criminal history point, and his crimes of negotiating several worthless instruments added three more points. Damon's convictions for assault on an officer, aggravated criminal mischief, criminal threatening, and operating a motor vehicle as an habitual offender added two more points each. It is the aggravated criminal mischief conviction which raises the serious issue in this appeal.

Because Damon was under a "criminal justice sentence" at the time of the offense, the federal sentencing judge added two criminal history points under U.S.S.G. § 4A1.1. Damon's score of fourteen criminal history points placed him in Criminal History Category VI of the Federal Sentencing Guidelines.

The sentencing court determined that the offense level for Damon's crime was twenty-two, by setting the base offense level at twenty under U.S.S.G. § 2K2.1(a)(4)(A), and adding two levels pursuant to U.S.S.G. § 2K2.1(b)(4) because the serial numbers on the Colt .45 pistol found in Damon's car were obliterated. The sentencing range for a category VI offender who commits a level twenty-two offense is 84 to 105 months of imprisonment.

In this appeal, Damon primarily argues that his prior conviction for criminal mischief should not have been classified as a "crime of violence," that the court should not have awarded him additional criminal history points for related offenses, and that the court erred in determining that he was under a criminal justice sentence at the time of his arrest. We conclude that Damon's first argument has merit, unlike the second and third.

II. The Standard of Review

Questions of law concerning interpretation of the Guidelines are reviewed de novo, and the factual conclusions of the sentencing court, which must be supported by a preponderance of the evidence, are reviewed for clear error. United States v. Grant, 114 F.3d 323, 328 (1st Cir.1997).

III. The "Crime of Violence" Determination

Because it classified Damon's prior conviction for aggravated criminal mischief as a crime of violence, the sentencing court determined that the base offense level was 20 under U.S.S.G. § 2K2.1(a)(4)(A). Had the court not characterized this previous conviction as a crime of violence, the base offense level would have been 14. Counting the two additional offense levels for the obliterated serial number on the pistol, Damon's sentencing range would have been 46 to 57 months instead of 84 to 105 months. More than two years of prison time depends upon whether Damon's prior conviction for aggravated criminal mischief qualifies as a crime of violence under the Guidelines.

The Guidelines, U.S.S.G. § 4B1.2(1), set out a multi-part definition of the term "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--

(i) has an element of the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Under Taylor, whether a predicate offense qualifies as a crime of violence requires a "categorical" examination of the statutory crime. Taylor considered whether the defendant's predicate offenses were "burglary" as defined in 18 U.S.C. § 924(e), a sentencing enhancement statute. ³ Taylor had been convicted of "burglary" in Missouri state courts at a time when Missouri had seven different statutes under which a person could be charged for that crime. The Supreme Court held that, rather than examine the particular circumstances of the crimes for which the defendant was convicted, a sentencing court should look only to whether the statute of conviction contained the elements of a "generic" burglary and should not inquire whether the specific crime committed was especially dangerous to others. Taylor, 495 U.S. at 598, 110 S.Ct. at 2158. The Court defined generic burglary as a crime that consists of: "unlawful and unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id.

Taylor noted that in some situations the statute of conviction may include elements beyond those of a generic burglary (e.g., entry into places other than buildings). Id. at 599-600, 110 S.Ct. at 2158-59. To address that issue, and other problems of interpretation of § 924(e), sentencing courts should employ a "formal categorical approach," and generally "look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. at 2160. A sentencing court may go beyond the fact of conviction in those cases where the statute encompasses both violent felonies (e.g., generic burglary) and non-violent felonies (e.g., burglary of a vehicle rather than of a building). In such a situation, the sentencing court may examine the indictment or information and jury instructions in order to discern which type of crime the offender was convicted of perpetrating. Id. The Court remanded the case so that this determination could be made with respect to Taylor's prior convictions.

After Taylor, this court's analysis of predicate offenses has followed this categorical approach. See United States v. Meader, 118 F.3d 876, 881-83 (1st Cir.1997) ("[T]he standard approach for determining whether a particular crime fits within the 'crime of violence' rubric is a generic one, in which inquiry is restricted to the statutory definitions of prior offenses, without regard to the particular facts underlying them.") (citations omitted); United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir.1993) ("[R]ather than examining the actual circumstances underlying the earlier conviction, we examine only the statutory formulation of the crime charged ... to see if that crime is a crime of violence....").

The state statute, defining aggravated criminal mischief under 17-A M.R.S.A. § 805, is the starting point for our inquiry:

1. A person is guilty of aggravated criminal mischief if that person intentionally, knowingly or recklessly:

A. Damages or destroys property of another in an amount exceeding $2,000 in value, having no reasonable ground to believe that the person has a right to do so;

B. Damages or destroys property in an amount exceeding $2,000 in value, to enable any person to collect insurance proceeds for the loss caused;

C. Damages, destroys or tampers with the property of a law enforcement agency, fire department or supplier of gas, electric, steam, water, transportation, sanitation or communication services to the public, having no reasonable ground to believe that the person has a right to do so, and thereby causes a substantial interruption or impairment of service rendered to the...