983 F.2d 1 (1st Cir. 1992), 92-1601, United States v. Fiore

Docket Nº:92-1601.
Citation:983 F.2d 1
Party Name:UNITED STATES of America, Appellee, v. Anthony FIORE, Defendant, Appellant.
Case Date:December 09, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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983 F.2d 1 (1st Cir. 1992)

UNITED STATES of America, Appellee,


Anthony FIORE, Defendant, Appellant.

No. 92-1601.

United States Court of Appeals, First Circuit

December 9, 1992

Heard Nov. 3, 1992.

John F. Cicilline, Providence, RI, for appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and James H. Leavey, Asst. U.S. Atty., Providence, RI, were on brief, for U.S.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

This appeal asks us to decide a question of first impression: Does a prior conviction for conspiracy to break and enter a commercial structure qualify as a predicate offense for purposes of the career offender provisions of the federal sentencing guidelines? We answer the question in the affirmative and, therefore, allow the defendant's sentence to stand.


Defendant-appellant Anthony Fiore, a man of mature years but apparent criminal predilection, pleaded guilty to four interconnected felonies, at least one of which constituted a "crime of violence" as that term is defined in U.S.S.G. § 4B1.2 (Nov.1991). 1

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1] The district court sentenced Fiore as a career offender. To merit such a sentence, a defendant must be (1) at least eighteen years old at the time of the offense, (2) guilty, presently, of "a felony that is either a crime of violence or a controlled substance offense," and (3) guilty, historically, of "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1 (Nov.1991). Fiore concedes that he satisfied the first two requirements but denies that his prior record came within the purview of the third requirement.

The guidelines define a "crime of violence" as a felony 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) (Nov.1991). The guidelines define a "controlled substance offense" as any violation of a state or federal law that:

prohibit[s] the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(2) (Nov.1991).

The district court ruled that appellant's two prior convictions under Rhode Island law--one for conspiracy to break and enter a commercial premise, the other for conspiracy to violate the state's controlled substance act--qualified as predicate offenses, thereby bringing the career offender guideline into play. Since appellant admits that the convictions occurred, his assignment of error hinges on their legal effect. Thus, our review is plenary. See United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992) (holding that a de novo standard of review applies to interpretive questions under the sentencing guidelines).


The commentary to the federal sentencing guidelines tells us straightforwardly that conspiracy to commit a predicate offense is itself a predicate offense. See U.S.S.G. § 4B1.2, comment. (nn. 1, 2) (Nov.1991). We have remarked before that although the Sentencing Commission's "application notes and commentary do not possess the force of law, they are important interpretive aids, entitled to considerable respect." United States v. Weston, 960 F.2d 212, 219 (1st Cir.1992). In general, we will defer to the Commission's suggested interpretation of a guideline provision unless the Commission's position is arbitrary, unreasonable, inconsistent with the guideline's text, or contrary to law. See, e.g., United States v. Joshua, 976 F.2d 844, 855 (3d Cir.1992); United States v. Anderson, 942 F.2d 606, 613-14 (9th Cir.1991) (en banc). In this instance, we are unable to discern any cogent reason for rejecting the Commission's view.

For one thing, while we have unearthed no appellate case on all fours, reported judicial opinions in analogous situations suggest that most courts would likely agree that deference is warranted here. The case closest in point is United States v. Smith, 909 F.2d 1164 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991), in which the Eighth Circuit held that a prior conviction for conspiring to sell LSD, although charged under a general conspiracy statute, was a controlled substance offense and, hence, a proper predicate under the career offender guideline. See id. at 1168. Other instructive cases point in the same direction. See, e.g., United States v. Liranzo, 944 F.2d 73, 78 (2d Cir.1991) (deferring to the commentary in deciding that an attempt conviction was a predicate offense); United States v. Preston, 910 F.2d 81 (3d Cir.1990) (holding that conspiracy to commit robbery is a "violent

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felony" under the Armed Career Criminal Act [ACCA], as amended, 18 U.S.C. § 924(e)), cert. denied, --- U.S. ----, 111 S.Ct. 1002, 112 L.Ed.2d 1085 (1991); id. at 86 n. 6 (stating in dicta that "conspiring to commit robbery would be considered a 'crime of violence' under the current sentencing guidelines") (citing commentary and application notes); cf. United States v. Payne, 966 F.2d 4, 8-9 (1st Cir.1992) (deciding that an attempt was a "violent felony" under the ACCA). 2 The case law, then, furnishes strong support for the ruling below.

For another thing, we believe that Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), relied upon by both the appellant and the government, is entirely consistent with the Commission's (and the district court's) view that conspiracy convictions can serve as predicate offenses. In interpreting the ACCA, the Taylor Court adopted "a formal categorical approach" for determining whether an offense is a violent felony. Id. at 600, 110 S.Ct. at 2159. Under such an approach, an inquiring tribunal "look[s] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. Although Taylor is an ACCA case, it is the beacon by which we must steer. See United States v. Bell, 966 F.2d 703, 705-06 (1st Cir.1992) (explaining that Taylor furnishes the methodology of choice for determining whether specific...

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