156 F.3d 219 (1st Cir. 1998), 97-2179, United States v. Sherwood

Docket Nº97-2179.
Citation156 F.3d 219
Party NameUNITED STATES, Appellee, v. Francis E. SHERWOOD, Defendant, Appellant.
Case DateSeptember 11, 1998
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 219

156 F.3d 219 (1st Cir. 1998)

UNITED STATES, Appellee,

v.

Francis E. SHERWOOD, Defendant, Appellant.

No. 97-2179.

United States Court of Appeals, First Circuit

September 11, 1998

Heard May 4, 1998.

Page 220

Robert B. Mann, by appointment of the Court, with whom Mann & Mitchell was on brief, for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, and Gerard B. Sullivan, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Chief Judge, SELYA and LYNCH, Circuit Judges.

TORRUELLA, Chief Judge.

Defendant Francis E. Sherwood was charged in a two-count indictment with being a convicted felon in possession of firearms and of ammunition in violation of 18 U.S.C. § 922(g)(1). He pled guilty to both counts, and the district court subsequently sentenced him to concurrent terms of seventy months of imprisonment and three years of supervised release for each count. Sherwood's prior felony record consisted of a two-count conviction under Rhode Island law for second degree child molestation.

Sherwood challenges his sentence on two grounds. First, he contends that the district court incorrectly determined that second degree child molestation was a "crime of violence" for purposes of U.S. Sentencing Guidelines Manual § 2K2.1(a). Second, he argues that the district court erroneously enhanced his criminal history score by two points after concluding that he had committed the instant offense while on probation for his previous felony conviction. We affirm.

I. BACKGROUND

On May 14, 1997, a federal grand jury returned a two-count indictment, charging the defendant with being a felon in possession on or about April 22, 1997, of firearms and of ammunition in violation of 18 U.S.C. § 922(g)(1). The indictment stemmed from the seizure by federal agents of 111 firearms and approximately 24,217 rounds of ammunition from Sherwood's home in Charlestown, Rhode Island. As part of the search, agents also recovered documents relating to the ownership or acquisition of a total of 172 firearms.

Sherwood's prior criminal record reveals that, on March 28, 1984, he pled nolo contendere in state court to two counts of second degree child molestation. A third count, alleging assault with intent to commit first degree sexual assault against a minor, was dismissed by the court. He was sentenced on the first count to four years' probation, and on the second count to six years' imprisonment (four years of which was suspended), and to four years' probation. The defendant began acquiring weapons related to his § 922(g)(1) violation while on probation for this state law offense.

On June 30, 1997, the defendant entered a plea of guilty to both felon-in-possession charges, and subsequently, the district court sentenced him as a Level 25, Category III offender. The defendant's sentencing guideline level was based, in part, on the court's determination that his prior felony conviction was for a "crime of violence," which resulted in a four-level increase in the defendant's base offense level. See U.S.S.G. § 2K2.1(a)(3). Sherwood's criminal history score was increased by two points based on the court's finding that this offense was committed while the defendant was on probation, which moved Sherwood from a criminal history category of II to III. See U.S.S.G. § 4A1.1(d). Accordingly, the defendant was sentenced to seventy months of imprisonment and three years of supervised release to be served concurrently.

II. DISCUSSION

We review the district court's interpretation of the Sentencing Guidelines de novo. See United States v. Nicholas, 133 F.3d 133, 134 (1st Cir.1998).

Page 221

A. Base Offense Level Determination

The district court found that Sherwood's prior felony conviction in state court was for a "crime of violence," and thus under U.S.S.G. § 2K2.1(a)(3), applied a base offense level of 22. The defendant challenges the district court's determination that second degree child molestation under Rhode Island law constitutes a "crime of violence." Section 4B1.2 of the Sentencing Guidelines defines a "crime of violence" as:

(a) ... 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) ... otherwise involves conduct that presents a serious potential risk of physical injury to another.

§ 4B1.2(a)(1) & (2) (emphasis added). The Rhode Island statute under which Sherwood was convicted, at the time he was charged, prohibited "sexual contact" with a person under 13 years of age. 1 See R.I. Gen. Laws § 11-37-4 (1956) (amended 1981). Finding that the offense defined in the state statute poses "a serious potential risk of physical injury," we hold that Sherwood's Rhode Island conviction was for a "crime of violence." 2

"[T]he standard approach for determining whether a particular crime fits within the 'crime of violence' rubric is a general one, in which inquiry is restricted to the statutory...

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27 practice notes
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998) (citation omitted). The First Circuit has held that crimes of violence are those "which calls to mind a tradition ......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998) (citation omitted). The First Circuit has held that crimes of violence are those "which calls to mind a tradition ......
  • Syntax or experience: what should determine if sex trafficking qualifies as a crime of violence?
    • United States
    • Missouri Law Review Vol. 81 Nbr. 4, September - September 2016
    • September 22, 2016
    ...Id. (98.) Id. at 5 (quoting United States v. Cadieux, 500 F.3d 37, 45 (1st Cir. 2007)). (99.) Id. (quoting United States v. Sherwood, 156 F.3d 219, 221 (1st Cir. 1998)). (100.) Id. The U.S. Court of Appeals for the Seventh Circuit addressed the same question a year later in United States v.......
  • United States v. Davis, 011805 MEDC, CR-04-21-B-W
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • January 18, 2005
    ...and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir. 1998) (citation omitted). The First Circuit has held that crimes of violence are those which call "to mind a tradition ......
  • Request a trial to view additional results
26 cases
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998) (citation omitted). The First Circuit has held that crimes of violence are those "which calls to mind a tradition ......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998) (citation omitted). The First Circuit has held that crimes of violence are those "which calls to mind a tradition ......
  • United States v. Davis, 011805 MEDC, CR-04-21-B-W
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • January 18, 2005
    ...and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir. 1998) (citation omitted). The First Circuit has held that crimes of violence are those which call "to mind a tradition ......
  • 571 F.3d 225 (2nd Cir. 2009), 08-1012, United States v. Daye
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • July 10, 2009
    ...power of adult authority figures.’ " United States v. Cadieux, 500 F.3d 37, 45 (1st Cir.2007) (quoting United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998)); see also United States v. Mincks, 409 F.3d 898, 900 (8th Cir.2005) (" Whether physical injury is intended when an ad......
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1 books & journal articles
  • Syntax or experience: what should determine if sex trafficking qualifies as a crime of violence?
    • United States
    • Missouri Law Review Vol. 81 Nbr. 4, September - September 2016
    • September 22, 2016
    ...Id. (98.) Id. at 5 (quoting United States v. Cadieux, 500 F.3d 37, 45 (1st Cir. 2007)). (99.) Id. (quoting United States v. Sherwood, 156 F.3d 219, 221 (1st Cir. 1998)). (100.) Id. The U.S. Court of Appeals for the Seventh Circuit addressed the same question a year later in United States v.......