966 F.2d 703 (1st Cir. 1992), 91-1965, United States v. Bell

Docket Nº91-1965.
Citation966 F.2d 703
Party NameUNITED STATES of America, Appellee, v. Richard Harmon BELL, Defendant, Appellant.
Case DateJune 10, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 703

966 F.2d 703 (1st Cir. 1992)

UNITED STATES of America, Appellee,

v.

Richard Harmon BELL, Defendant, Appellant.

No. 91-1965.

United States Court of Appeals, First Circuit

June 10, 1992

Heard May 5, 1992.

Sarah Jennings Hunt, for defendant, appellant.

F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and FUSTE, [*] District Judge.

SELYA, Circuit Judge.

This is a case of first impression in this circuit. We hold that, where the offense of conviction is the offense of being a convicted felon in knowing possession of a firearm, the conviction is not for a "crime of violence" and that, therefore, the career offender provision of the federal sentencing guidelines does not apply. Hence, we vacate the defendant's sentence and remand for resentencing.

I. BACKGROUND

Defendant-appellant Richard Harmon Bell pleaded guilty to a charge of being a convicted felon in knowing possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (1988 & Supp. II 1990). At sentencing, the district court decided that Bell was a career offender within the meaning of U.S.S.G. § 4B1.1, a guideline which provides in relevant part:

A defendant is 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 (Nov.1990). 1 Inasmuch as the career offender provision mandated the routine use of criminal history category VI, the court, after adjusting Bell's offense level downward for acceptance of responsibility, see U.S.S.G. § 3E1.1, computed the guideline sentencing range at 292-365 months and sentenced Bell, as a career offender, to a prison term of slightly more than 30 years without possibility of parole.

Page 704

Had Bell not been sentenced as a career offender under section 4B1.1, the guideline sentencing range apparently would have been much lower and he would, in all probability, have been sentenced to 15 years in prison (the mandatory minimum sentence under the statute of conviction).

Bell concedes that he satisfies the first and third elements of section 4B1.1: he was "at least eighteen years old at the time of the instant offense" and he "has at least two prior felony convictions" for crimes of violence. His appeal is grounded solely on the contention that his case does not satisfy the second element because the offense of conviction cannot be considered "a crime of violence" for purposes of triggering the career offender guideline. 2

II. ANALYSIS

This appeal presents us with the logical corollary to our recent decision in United States v. Doe, 960 F.2d 221 (1st Cir.1992). Using a categorical approach to analyzing predicate offenses, we held in Doe that a conviction for being a felon in possession of a firearm could not be counted as one of the predicate felonies necessary for the enhancement of a defendant's sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See Doe, 960 F.2d at 225-226; see also U.S.S.G. § 4B1.4 (armed career criminal provision; implementing 18 U.S.C. § 924(e)). The definition of a "violent felony" for purposes of the Armed Career Criminal Act is the same in all material respects as the definition of a "crime of violence" for purposes of the sentencing guidelines' career offender provision. Compare 18 U.S.C. § 924(e)(2)(B) (defining "violent felony") with U.S.S.G. § 4B1.2 (defining "crime of violence"). 3 Having recently decided in Doe that the crime of being a convicted felon in knowing possession of a firearm is not a "violent felony" and hence cannot be counted as a predicate offense required for sentencing under the armed career criminal guideline, Doe, 960 F.2d at 226, we must now decide whether such a crime, freshly committed, is a "crime of violence" that can energize the career offender guideline.

A.

The touchstone of our analysis is the Supreme Court's opinion in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Taylor, fairly read, dictates that a sentencing court, in determining whether a crime constitutes a violent felony under 18 U.S.C. § 924(e), should look at the crime categorically, that is, the sentencing court should "look only to the fact of conviction and the statutory definition of the ... offense," and not to the underlying circumstances. Id. 110 S.Ct. at 2160; see also United States v. Harris, 964 F.2d 1234...

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  • 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 United States District Court (Maine)
    • December 22, 2004
    ...522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2d 667 (1998); United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994); United States v. Bell, 966 F.2d 703, 704 (1st Cir.1992). This Court looks to case law defining both "violent felony" and "crime of violence" to determine wh......
  • 35 F.3d 611 (1st Cir. 1994), 94-1197, United States v. Piper
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • September 8, 1994
    ...question of whether a conspiracy conviction can constitute a predicate offense for such purposes. See, e.g., United States v. Bell, 966 F.2d 703, 705 (1st Cir.1992) (explaining that it would be a "bizarre ... anomaly" if the same crime were determined to be a triggering offense, b......
  • 940 F.Supp. 387 (D.Mass. 1996), Crim. 95-10163, United States v. Fernandez
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • September 18, 1996
    ...the Act as "a beacon by which [it] must steer" in interpreting ambit of "crime of violence"); United States v. Bell, 966 F.2d 703, 704-06 (1st Cir. 1992) (explaining that Taylor furnishes the methodology of choice for determining whether specific felonies constitute crim......
  • 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 United States District Court (Maine)
    • December 22, 2004
    ...522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2d 667 (1998); United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994); United States v. Bell, 966 F.2d 703, 704 (1st Cir.1992). This Court looks to case law defining both "violent felony" and "crime of violence" to determine wh......
  • Request a trial to view additional results
28 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 United States District Court (Maine)
    • December 22, 2004
    ...522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2d 667 (1998); United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994); United States v. Bell, 966 F.2d 703, 704 (1st Cir.1992). This Court looks to case law defining both "violent felony" and "crime of violence" to determine wh......
  • 35 F.3d 611 (1st Cir. 1994), 94-1197, United States v. Piper
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • September 8, 1994
    ...question of whether a conspiracy conviction can constitute a predicate offense for such purposes. See, e.g., United States v. Bell, 966 F.2d 703, 705 (1st Cir.1992) (explaining that it would be a "bizarre ... anomaly" if the same crime were determined to be a triggering offense, b......
  • 940 F.Supp. 387 (D.Mass. 1996), Crim. 95-10163, United States v. Fernandez
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • September 18, 1996
    ...the Act as "a beacon by which [it] must steer" in interpreting ambit of "crime of violence"); United States v. Bell, 966 F.2d 703, 704-06 (1st Cir. 1992) (explaining that Taylor furnishes the methodology of choice for determining whether specific felonies constitute crim......
  • 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 United States District Court (Maine)
    • December 22, 2004
    ...522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2d 667 (1998); United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994); United States v. Bell, 966 F.2d 703, 704 (1st Cir.1992). This Court looks to case law defining both "violent felony" and "crime of violence" to determine wh......
  • Request a trial to view additional results