U.S. v. Almenas

• Citation: 553 F.3d 27
• Decision Date: 12 January 2009
• Docket Number: No. 06-2513.,06-2513.
• Parties: UNITED STATES of America, Appellee, v. Miguel ALMENAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

553 F.3d 27

UNITED STATES of America, Appellee, v. Miguel ALMENAS, Defendant, Appellant.

No. 06-2513.

United States Court of Appeals, First Circuit.

Heard October 4, 2007.

Decided January 12, 2009.

Claudia Leis Bolgen, with whom Bolgen & Bolgen, was on brief, for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

After pleading guilty to selling crack cocaine, Miguel Almenas was sentenced — pursuant to a downward departure — to 192 months' imprisonment, 43 months below the bottom of the guideline sentencing range ("GSR"). Almenas appeals his sentence. He argues primarily that the district court erroneously relied on his prior conviction for resisting arrest when sentencing him as a career offender. He also challenges both the reasonableness of his sentence and the court's use of prior convictions that he alleges had not been sufficiently proven. We reject all of Almenas's challenges and affirm his sentence.

I. Background

We provide the bulk of the facts here but include more where necessary for our discussion.

On three separate occasions in January of 2005, Miguel Almenas sold crack cocaine to an undercover DEA agent. The total amount sold was 136 grams. That April, he pled guilty to federal narcotics offenses in violation of 21 U.S.C. § 841(a)(1).

The pre-sentence report recommended that the career offender provision of the federal sentencing guidelines, U.S.S.G. § 4B1.1, govern Almenas's sentencing. The report determined that Almenas qualified as a career offender because he had two prior felony convictions each of which was either a crime of violence or a controlled substance offense: (1) a 1991 Massachusetts conviction for possession of cocaine with intent to distribute and (2) a 2000 Massachusetts conviction for resisting arrest.

Over Almenas's protest that the latter was not a crime of violence, the district court accepted the probation office's recommendation and categorized Almenas as a career offender. The court determined that Massachusetts's statutory definition of resisting arrest qualified the offense categorically as a "crime of violence" under the guidelines.

After arriving at the relevant GSR under the career offender provision — 262 to 327 months — the district court departed downward based on its conclusion that Almenas's criminal history category substantially over-represented the seriousness of his criminal history.¹ The new GSR had a low end of 235 months. The mandatory minimum was 120 months. The court then requested argument regarding whether either a further downward departure under U.S.S.G. § 5K2.0 — based on Almenas's physical, mental and emotional conditions — or a non-guideline sentence was in order.

After hearing these arguments, the court elected to depart downward under § 5K2.0 and imposed a sentence of 192 months' imprisonment. In brief (we will return to the details), the court stressed that a departure under § 5K2.0 was justified given Almenas's chronic neck pain and his mental and emotional condition, but that imposing only the mandatory minimum of 120 months, as Almenas requested, would fail to promote appropriate respect for the law. The court noted that it would impose the same sentence as a non-guideline sentence. This appeal followed.

II. Discussion

Almenas raises three challenges to his sentence. His first and primary challenge relates to the court's use of his prior resisting-arrest conviction to categorize him as a career offender for sentencing purposes.² This challenge has two parts. He argues that his resisting-arrest conviction does not qualify him as a career offender because it is neither (1) a "prior felony conviction" nor (2) a "crime of violence." Almenas's second and third challenges regard the reasonableness of his sentence and the district court's use of his prior convictions to enhance his sentence where those convictions had not been proved to a jury or admitted by Almenas. Aside from his third argument, which we may summarily dispatch up front, we address his arguments sequentially.³

A. Use of resisting-arrest conviction for sentencing purposes

Whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is a question of law that we review de novo. United States v. Santos, 363 F.3d 19, 22 (1st Cir.2004).⁴

A defendant is categorized as a career offender if three criteria are met: (1) the court is sentencing the defendant for a felony that is either a crime of violence or a controlled substance offense; (2) the defendant was at least eighteen when he committed the felony; and (3) the defendant has been previously convicted of two unrelated felonies each of which was either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a).

The focus in this case is on the third criterion. We conclude that the district court correctly determined that Almenas's prior resisting-arrest conviction qualified both as a "prior felony conviction" and as a "crime of violence." We address both determinations, and Almenas's challenges to them, in order.

1. Prior felony conviction

The Guideline commentary defines "prior felony conviction" as: "[A] prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. § 4B1.2, cmt. n. 1.

Here, the district court properly determined that Almenas's resting arrest conviction was a "prior felony conviction" because under Massachusetts law, resisting arrest, a misdemeanor offense, carries a punishment of up to two and one-half years in a jail or the house of correction. See Mass. Gen. Laws ch. 268, § 32B (d).

Neither the fact that Massachusetts law categorizes resisting arrest as a misdemeanor, nor the fact that Almenas was not actually imprisoned for a term exceeding one year, affects our analysis. A crime "punishable" by imprisonment for a term exceeding one year is a felony for purposes of the career offender provision, "regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." See U.S.S.G. § 4B1.2, cmt. n. 1.

Almenas argues that a different section of the guidelines, § 4A1.2(c), suggests that resisting arrest is not a felony for purposes of the career offender provision. Section 4A1.2(c) details which prior sentences must be counted and which must be excluded for purposes of computing criminal history. It also cites "resisting arrest" as an example of a misdemeanor or petty offense and further notes that such offenses cannot be counted for purposes of computing criminal history if the sentence actually imposed was less than one year probation or thirty days in prison. Consequently, Almenas argues that because § 4A1.2(c) is made applicable to the career offender provision through § 4B1.2(c),⁵ and because he received only a fine for his resisting-arrest conviction, his conviction cannot qualify as a "prior felony conviction." At the least, he contends, § 4A1.2(c)'s reference to resisting arrest as a misdemeanor or petty offense creates an ambiguity triggering the rule of lenity. Accordingly, he argues, we must resolve the ambiguity in his favor.

We disagree. Section 4A1.2(c)'s own language, when read in conjunction with another guideline section — § 4A1.2(o) — makes evident that Almenas's resisting-arrest conviction qualifies as a prior felony conviction. Section 4A1.2(c)'s first sentence reads, "Sentences for all felony offenses are counted," before going on to list "misdemeanor and petty offenses" such as resisting arrest. U.S.S.G. § 4A1.2(c) (emphasis added). When this language is read with reference to § 4A1.2(o), which provides that "for the purposes of [section] 4A1.2(c), a `felony offense' means any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentenced imposed,"⁶ any ambiguity is resolved. Resisting arrest qualifies as a "prior felony conviction" according to the career offender provision's guideline commentary and as a "felony offense" for purposes of § 4A1.2(c). In order for a resisting-arrest offense to qualify as a misdemeanor or petty offense for purposes of § 4A1.2(c), it would have to be punishable by imprisonment for a term under one year. Or, put differently, the offense would have to fall outside of the guideline definition of a felony. That is not the case here.

2. Crime of violence

Under the guidelines, an offense will qualify as a crime of violence if it is punishable by imprisonment for a term exceeding one year and either: (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) (emphasis added). The underscored statutory language is referred to as either the "otherwise clause" or the "residual clause." United States v. Giggey, 551 F.3d 27, ___, 2008 WL 5274834 at * 5 (1st Cir.2008); United States v. Williams, 529 F.3d 1, 4 (1st Cir.2008).

To determine whether a defendant's prior offense falls within the guideline definition of a "crime of violence" we take a formal, categorical approach. Giggey, 551 F.3d at * ___, 2008 WL 5274834 at * 10; United States v. Winn, 364 F.3d 7, 9 (1st Cir.2004). This approach, depending on the offense at issue, has either one or two steps. The first step is always the same. We compare the legislature's definition of the relevant offense with the guideline definition of a "crime of violence." Id. This comparison "is restricted to the statutory definition . ....