U.S. v. Bell

• Citation: 966 F.2d 703
• Decision Date: 05 May 1992
• Docket Number: No. 91-1965,91-1965
• Parties: UNITED STATES of America, Appellee, v. Richard Harmon BELL, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 703

966 F.2d 703

UNITED STATES of America, Appellee, v. Richard Harmon BELL, Defendant, Appellant.

No. 91-1965.

United States Court of Appeals,

First Circuit.

Heard May 5, 1992.

Decided June 10, 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. 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, 1235 (1st Cir.1992) (discussing Taylor ); Doe, 960 F.2d at 223-224; United States v. Bregnard, 951 F.2d 457, 459 (1st Cir.1991) (Taylor's categorical approach should be applied to all "candidate" predicate crimes under 18 U.S.C. § 924(e)), cert. denied, --- U.S. ----, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992).

Since the case at bar has a slightly different focus than the Taylor case, we believe that careful parsing of the Court's opinion is helpful. Taylor involved the government's attempt to use an earlier conviction for burglary as a predicate for an enhancement under the Armed Career Criminal Act. The Court identified three reasons why consideration of prior offenses should normally be restricted to the parameters of the statute under which the offender had been convicted. ⁴ First, the language of 18 U.S.C. § 924(e) "support[ed] the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Taylor, 110 S.Ct. at 2159. Second, the legislative history of the statute indicated that Congress itself had "generally [taken] a categorical approach to predicate offenses." Id. Third, "the practical difficulties and potential unfairness" of a fact-specific approach seemed "daunting." Id.

Although this appeal involves a sentence enhanced under U.S.S.G. § 4B1.1 rather than U.S.S.G. § 4B1.4, we believe that the two guideline provisions must be construed in pari passu and that, therefore, the Court's reasoning in Taylor is especially persuasive here. Cf., e.g., United States v. Leavitt, 925 F.2d 516, 517-18 (1st Cir.1991) (drawing an analogy between the Court's analysis of predicate offenses in Taylor and a proposed method of analysis of predicate offenses under the career offender guideline). We conclude, for essentially the same reasons that led the Taylor Court to circumscribe the definition of "violent felony" under 18 U.S.C. § 924(e), that the Sentencing Commission intended courts to adopt a categorical approach in the definition of "crime of violence" under the career offender guideline. Not only does section 4B1.2 employ exactly the same language that Taylor relied on to justify an inference that a categorical approach was intended, but the wording of the relevant commentary strongly suggests the Commission's preference for a categorical approach to the application of the career offender guideline. See U.S.S.G. § 4B1.2, comment. (n. 2) (further defining a crime of violence as an offense where "the conduct set forth in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another") (emphasis supplied).

B.

To be sure, this case is different than Taylor and Doe in one salient respect: it involves the use (or non-use) of a contemporaneous conviction to trigger an enhancement, whereas Taylor and Doe both involved enhancements based upon the historical record of enumerated predicate offenses. Not surprisingly, then, the government argues that a fact-specific approach is appropriate here because, when the offense of conviction is itself in question, the details of the conviction and the case's factual trappings are before, and within the ken of, the sentencing court. In contrast, focusing on the fact pattern of a "candidate" predicate offense, perhaps committed long before and-or adjudicated in a different jurisdiction, would involve the sentencing court in the judicial equivalent of an archaeological dig.

The government's position is not without some superficial appeal. At bottom, however, the asseveration blunts only the third prong of the Taylor rationale. The first two prongs--the main ones, we believe--remain fully intact. Moreover, adopting the government's view would create a weird asymmetry, leaving courts to apply an inconsistent rule of construction that would allow identical "felon in possession" cases to be treated in diametrically opposite ways: the same crime, if committed contemporaneously, could be considered a crime of violence for purposes of triggering an enhancement; but if committed in the past, could not be considered a crime of violence for predicate offense purposes. We are hard pressed to believe that either Congress or the Sentencing Commission wished to foster so bizarre an anomaly. ⁵

For these reasons, and fully cognizant that the circuits are divided, we hold that, for the purpose of sentencing under the career offender guideline, as for the purpose of sentencing under the armed career criminal guideline, the district court is limited to a categorical examination of the offense of conviction (subject, however, to the narrow exception recognized in Taylor, see supra note 4). Accord United States v. Shano, 955 F.2d 291, 295 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1520, 118 L.Ed.2d 201 (1992); United States v. Johnson, 953 F.2d 110, 113-14 (4th Cir.1992); cf. Leavitt, 925 F.2d at 517-18 (in examining "candidate" predicate offense under career offender guideline, sentencing court may look to indictment where the statute of conviction "covers many circumstances, some where the risk of injury may be high and others ... where it might be low"). But see United...