U.S. v. Payne, 91-2020

• Decision Date: 03 February 1992
• Docket Number: No. 91-2020,91-2020
• Citation: 966 F.2d 4
• Parties: UNITED STATES of America, Appellant, v. Leonard M. PAYNE, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 4

966 F.2d 4

60 USLW 2801

UNITED STATES of America, Appellant, v. Leonard M. PAYNE, Defendant, Appellee.

No. 91-2020.

United States Court of Appeals, First Circuit.

Heard Feb. 3, 1992.

Decided June 3, 1992.

Despena Fillios Billings, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for U.S.

Martin D. Boudreau with whom Boudreau, Burke & McMenimen, Boston, Mass., was on brief, for defendant, appellee.

Before CYR, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This appeal presents two questions under the "Armed Career Criminal Act" (the "Act"), 18 U.S.C. § 924(e). Holding that, for purposes of sentence enhancement under the Act, the sentence imposed for a previous crime may be used to resolve uncertainties about the maximum sentence allowable for that crime, and that an attempt to violate Mass.Gen.Laws Ann. ch. 266, § 17 or 18 is a "violent felony," we vacate the sentence imposed by the district court and remand for resentencing.

I.

Defendant Leonard Payne was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government moved for sentencing under the Act, which provides that a defendant who is convicted of certain crimes and has three previous convictions for a "violent felony" receives a mandatory minimum sentence of fifteen years' imprisonment without possibility of parole. See 18 U.S.C. § 924(e). Payne concedes that he has two previous convictions for violent felonies. At issue is whether either of two convictions for attempted breaking and entering constitutes the third violent felony necessary for sentencing under the Act. ¹

Payne's attempt convictions are evidenced by the records of the District Court of East Norfolk, in Norfolk County, Massachusetts. The court records consist of criminal complaint forms with blank spaces in which are typed references to the specific offenses at issue. Typed at the top of the first is "C274 S6," a reference to the Massachusetts attempt statute, Mass.Gen.Laws Ann. ch. 274, § 6. On the first page is typed, below the term "COMPLAINT," "Attempt to break and enter in the Daynight [sic]." ² On the second page is typed the following:

Payne ... [d]id attempt to break and enter a certain building in said Milton, [Massachusetts,] of Theresa Kealey, in the daytime, with intent therein to commit larceny, and in such attempt did pry open a window of said building, but was intercepted and prevented in the execution of said attempted offence[.] ³

The record of the second conviction is similar, but it appears not to cite to the attempt statute.

Neither document indicates which of three potentially applicable Massachusetts statutes delineates the crime upon which Payne's attempt convictions were based. See Mass.Gen.Laws Ann. ch. 266, §§ 16A, 17 and 18. Of those three statutes, two allow penalties of up to ten years in prison, but one allows a maximum penalty of only six months in prison. See Mass.Gen.Laws Ann. ch. 266, §§ 17 and 18 (maximum penalty up to ten years in prison); § 16A (maximum penalty up to six months in prison). Both documents contain a number of handwritten notations which, the district court found, were docket entries indicating that, on each charge, Payne had been convicted and received a one year suspended sentence.

Because of the failure of the state court record to specify the breaking and entering statute on which the attempt convictions were based, the court below ruled that Payne's breaking and entering convictions were not punishable by imprisonment for more than one year. The court stated at the sentencing hearing that, under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), it could not consider "case specific data" but rather was limited to considering the "fact of conviction itself." The court below acknowledged that the docket entries showing that Payne received, on each charge, a one year suspended sentence, precluded his having been sentenced under Mass.Gen.Laws Ann. ch. 266, § 16A, with its six months' maximum. Therefore, but for Taylor, the court said it would have deduced that the convictions were based on one of the other two breaking and entering statutes, both of which are punishable by more than one year's imprisonment. ⁴ Taylor, however, in the court's view, prevented it from making a deduction based on the actual sentence.

In addition, the court below found that the two attempts for which Payne was convicted did not involve "conduct that presents a serious potential risk of physical injury to another....", 18 U.S.C. § 924(e)(2)(B)(ii). This court held in United States v. Patterson, 882 F.2d 595 (1st Cir.1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 737, 107 L.Ed.2d 755 (1990), that substantive convictions under Mass.Gen.Laws Ann. ch. 266, § 16 (another breaking and entering statute) and § 18 fell within this definition because of the possibility that violence could erupt from a confrontation between the perpetrator and some innocent party. The district court distinguished Patterson, holding that, in the case of an attempt, any confrontation was less likely to result in violence because an attempt does not require that the perpetrator actually enter a building.

For these reasons, the district court refused to sentence Payne under the Armed Career Criminal Act. We vacate the sentence and remand for resentencing.

II.

A. Potential Term of Imprisonment

In Massachusetts, the maximum sentence for an attempt depends on the underlying crime. Infra. Because nothing in the record explicitly states what breaking and entering crime Payne attempted to commit, we cannot tell from the record of conviction alone whether Payne's offense was punishable by more than a year's imprisonment. Nevertheless, the latter fact can readily be ascertained by reference to Payne's actual sentence--and, unlike the district court, we find nothing in Taylor to prohibit that reference.

In Taylor, the Supreme Court held that, in determining whether a crime is a "violent felony" under § 924(e), a court may not consider the actual circumstances underlying the prior conviction. Rather, § 924(e)

mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses and not to the particular facts underlying those convictions.

Taylor, 110 S.Ct. at 2159. However, the Court also held that, in certain cases, some factual data could be considered. After concluding that "burglary" as used in the Act required entry of a building, the Court said:

This categorical approach ... may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.

110 S.Ct. at 2160.

Interpreting Taylor, this court has held that, where a statute defines more than one crime, a sentencing court may look to sources other than the "indictment or information and jury instructions" to determine which crime was in fact at issue. United States v. Harris, 964 F.2d 1234, 1236 (1st Cir.1992) (looking to information in presentence report where defendant had pleaded guilty to earlier crime). See also United States v. Bregnard, 951 F.2d 457, 460 (1st Cir.1991) (also looking to presentence report).

It is entirely consistent with these principles to use the actual sentence imposed to determine whether Payne's attempt conviction was punishable by more than a year's imprisonment. The sentence is used only to determine what crime Payne was charged with attempting to commit, in order to determine--from the statute itself--the maximum punishment for that crime. That is entirely different from inquiring into the particular circumstances giving rise to the conviction. Compare United States v. Doe, 960 F.2d 221 (1st Cir.1992) (refusing to consider that defendant had possessed a firearm while lying in wait for an enemy for purpose of determining if crime of "felon in possession of a firearm" is a "violent felony").

Moreover, in addition to conforming to Taylor's "categorical approach," consideration of the sentence for this purpose gives rise to none of the practical problems noted in Taylor. Where a criminal sentence is set forth in reliable court papers, there is no need to embark upon the evidentiary hearings or other fact-finding which the Court found in Taylor could be problematic. See 110 S.Ct. at 2159-60.

Since the federal court may consider the sentence actually imposed, we turn next to what conclusions may properly be drawn from the sentence here. The Massachusetts attempt statute provides that a party convicted of an attempt may be sentenced:

Second, by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, if he attempts to commit a crime ... punishable by imprisonment in the state prison for life or for five years or more.

Third, by imprisonment in a jail or house of correction for not more than one year ..., if he attempts to commit a crime ... punishable by imprisonment in the state prison for less than five years or by imprisonment in a jail or house of correction or by a fine.

Mass.Gen.Laws Ann. ch. 274, § 6. The sentences for the underlying crimes potentially at issue are 1) "imprisonment for not more than six months" under § 16A, 2) "imprisonment in the state prison for not more than ten years" under § 17, and 3) "imprisonment in the state prison for not more than ten years or ... imprisonment in jail for not more than two years"...