U.S. v. Fernandez

• Decision Date: 18 September 1996
• Docket Number: Criminal No. 95-10163-WGY.
• Citation: 940 F.Supp. 387
• Parties: UNITED STATES of America v. Martin FERNANDEZ.
• Court: U.S. District Court — District of Massachusetts

940 F.Supp. 387

UNITED STATES of America v. Martin FERNANDEZ.

Criminal No. 95-10163-WGY.

United States District Court, D. Massachusetts.

September 18, 1996.

COPYRIGHT MATERIAL OMITTED

John F. Palmer, Law Office of John F. Palmer, P.C., Boston, MA, Bernard Grossberg, Boston, MA, for William Ekasala.

Miriam Conrad, Office of the Federal Defender, Boston, MA, for Martin Fernandez.

Robert E. Richardson, United States Attorney's Office, Major Crime's Division, Boston, MA, for U.S.

MEMORANDUM OF DECISION

YOUNG, District Judge.

On February 5, 1996, Martin Fernandez pled guilty before this Court to an indictment charging him with bank robbery in violation of 18 U.S.C.A. § 2113(a) (West 1994). The indictment charges that, on March 22, 1995, Fernandez, accompanied by William Ekasala ("Ekasala"),¹ stole approximately $1537.00 from U.S. Trust, a bank in Milton, Massachusetts. Indictment at 1.

At the time of his bank robbery conviction, Fernandez' criminal history included, inter alia, the following two convictions: 1) In January 1993, Fernandez was found guilty of assault and battery with a dangerous weapon; 2) On March 2, 1993, at a jury-waived trial in the Municipal Court of the City of Boston, Fernandez was convicted of assault and battery on a police officer and of disorderly conduct. Trial Transcript, Boston Municipal Court Jury Session Docket No. 922238A-E, at 96.

Under United States Sentencing Guidelines ("U.S.S.G.") section 4B1.1, a district court may enhance a defendant's sentence as a career offender if 1) the defendant was at least eighteen years old at the time of the instant offense, 2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and 3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1.²

Based principally upon the prior convictions mentioned above and the career offender enhancement provision of section 4B1.1, the Probation Officer calculated Fernandez' final adjusted offense level at 29 and his criminal history at category IV, and recommended an imprisonment range of 151 to 188 months. Presentence Report ¶ 74.

Fernandez does not dispute that he falls within the first two elements of section 4B1.1 — he concedes that he committed the bank robbery after turning eighteen and that the bank robbery conviction qualifies as a crime of violence. Nor does Fernandez contend that the January 1993 conviction fails to qualify as a crime of violence. Fernandez does argue, however, that he is not a career offender on the ground that his criminal record lacks the requisite pair of offenses under the third prong of section 4B1.1. Specifically, Fernandez' contention is that his March 1993 conviction for assault and battery on a police officer is not a crime of violence. Nonetheless, this Court sentenced Fernandez to 151 months in the custody of Bureau of Prisons to be followed by three years of supervised release with special conditions. This memorandum explains the Court's reasoning.

I. Crimes of Violence

The United States Sentencing Commission ("the Sentencing Commission") defines "crime of violence" as any federal or state offense punishable by more than a year in prison that:

(i) has as an element 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(1).

Furthermore, Application Note Two³ to section 4B1.2 explains that

"[c]rime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives ... or, by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of inquiry.

U.S.S.G. § 4B1.2, Application Note Two.

The Supreme Court in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990), set forth a formal categorical approach to determine whether a given offense was a "violent felony" under the Armed Career Criminal Act ("the Criminal Act"), 18 U.S.C. § 924(e)(2)(B). Daunted by the prospect of conducting a burdensome mini-trial involving witnesses and transcript testimony to determine the actual nature of the conduct underlying the defendant's prior conviction, the Taylor Court opted for the categorical approach over a fact-intensive analysis. Taylor, 495 U.S. at 601-02, 110 S.Ct. at 2159-60. The categorical approach was designed "to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof, and that are likely to be committed by career offenders." Id. at 590, 110 S.Ct. at 2154.

Courts have applied the categorical approach in Taylor to their determinations of whether an offense constitutes a crime of violence under U.S.S.G. § 4B1.1.⁴ United States v. DeLuca, 17 F.3d 6, 7-9 (1st Cir. 1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir.1993); Fiore, 983 F.2d at 3; United States v. Spell, 44 F.3d 936, 939 (11th Cir.1995); see also United States v. Gonzalez-Lopez, 911 F.2d 542, 548 (11th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991).

A. Classifying Crimes of Violence: Section 4B1.2(1)

If a sentencing court finds "an element of use, attempted use, or threatened use of physical force" in the offense, then the crime qualifies as a crime of violence and the inquiry ends there. U.S.S.G. § 4B1.2(1); but see De Jesus, 984 F.2d at 23 (stating that larceny did not fit within subsection [i] of U.S.S.G. § 4B1.2[1] because it did not contain an element of force). If, however, an element of force does not exist in the offense, the crime may still be a crime of violence if it falls within the enumerated crimes or within the meaning of the "otherwise" clause of section 4B1.2(1)(ii), that is, if the crime "involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1)(ii); De Jesus, 984 F.2d at 23.

Risk is the critical term in the above clause. Analyzing an offense under the "otherwise" clause of section 4B1.2(1)(ii), a court should focus not on the scope of the statutory language but, rather, on the "degree of risk, expressed in terms of the probability of physical harm presented by the mine-run of conduct that falls within the heartland of the statute." De Jesus, 984 F.2d at 24. Viewed generally, an offense must possess an inherent risk of violent outbreak to fall within the crime of violence penumbra. Id. at 25; see Fiore, 983 F.2d at 3-4 (the substantial potential for episodic violence created by breaking into commercial buildings pulls such offenses into the "crime of violence" ambit). But see United States v. Winter, 22 F.3d 15, 19-20 (1st Cir.1994) (holding sports bribery and Travel Act violation were not crimes of violence because they lacked a substantial risk of violent outbreak). Stated another way, where "violence is not a usual accoutrement" of the crime, the "otherwise" clause in U.S.S.G. § 4B1.2(1)(ii) does not apply and the conviction proves to be a poor candidate for inclusion as a predicate offense. Winter, 22 F.3d at 21.

B. Limited Scope of Inquiry in Determining Crimes of Violence

While Taylor held that courts should generally limit their inquiry to the fact of conviction and the statutory definition of the prior offense, it is well settled that a court sometimes may look beyond the statutory language in determining crimes of violence. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160; United States v. Harris, 964 F.2d 1234, 1235 (1st Cir.1992); United States v. Bregnard, 951 F.2d 457, 459 (1st Cir.1991), cert. denied, 504 U.S. 973, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992). In Taylor, the Supreme Court allowed inquiry beyond the statute in a narrow range of cases where it is clear that the factfinder was actually required to find all the elements of an offense in order to qualify it as a predicate offense. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160. Furthermore, where a statute is vague or covers both violent and non-violent offenses, courts may look beyond the statute to pertinent court documents.⁵ Harris, 964 F.2d at 1236.

Other decisions within this circuit contain similar language, suggesting that, as part of a predicate offense inquiry, courts may examine charging papers, jury instructions and other court documents. See De Jesus, 984 F.2d at 23 n. 5. ("[T]here are certain limited circumstances where a court may appropriately peruse certain documents such as the charging papers or jury instructions.") (emphasis added); see also Winter, 22 F.3d at 20 ("Taylor demands that a court ... consult a limited array of materials — principally the indictment and the jury instructions....") (emphasis added).

The nature and scope of this approach merit closer attention. Recent U.S.S.G. amendments and the resulting case law developments have narrowed the scope of inquiry, reflecting the Sentencing Commission's commitment to preserving a categorical approach. United States v. Palmer, 68 F.3d 52, 57 (2d Cir.1995) (citing amendments to section 4B1.2[1]).

For instance, the current definition of "crime of violence" in U.S.S.G. § 4B1.2(1) which became effective on November 1, 1989, matches the definition of "violent felony" in 18 U.S.C. § 924(e)(2)(B). United States Sentencing Guidelines Manual, Appendix C, Amendment 268 (1994). At the time the Sentencing...