988 F.2d 247 (1st Cir. 1993), 92-1969, United States v. Bell

Docket Nº:92-1969.
Citation:988 F.2d 247
Party Name:UNITED STATES of America, Appellee, v. Richard Harmon BELL, Defendant, Appellant.
Case Date:March 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 247

988 F.2d 247 (1st Cir. 1993)

UNITED STATES of America, Appellee,


Richard Harmon BELL, Defendant, Appellant.

No. 92-1969.

United States Court of Appeals, First Circuit

March 9, 1993

Heard Feb. 2, 1993.

Page 248

Sarah Jennings Hunt, for defendant, appellant.

F. Mark Terison, Asst. U.S. Atty., Portland, ME, with whom Richard S. Cohen,

Page 249

U.S. Atty., Augusta, ME, was on brief, for U.S.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

This appeal asks, essentially, a single question: Must a district court, at a reconvened sentencing hearing following a defendant's successful appeal, reexamine its explicit findings and conclusions on an issue not raised in the appeal and which the defendant had previously acknowledged to be correctly decided? Because we do not believe that the district court is under so wide-ranging an obligation, we affirm the judgment below.


Prior Proceedings

Defendant-appellant Richard Harmon Bell pleaded guilty to an indictment detailing six prior felony convictions and charging him with receipt and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (1988). Believing that Bell met all three criteria for career offender status, 1 see, e.g., United States v. Fiore, 983 F.2d 1, 1-2 (1st Cir.1992) (enumerating criteria), the presentence investigation report (PSI Report) recommended imposition of sentence under U.S.S.G. § 4B1.1 (Nov. 1991). While acknowledging that he had committed the gaggle of crimes attributed to him in the PSI Report, Bell nonetheless objected to the sentencing recommendation on the ground that the crime of conviction was not a crime of violence.

At the sentencing hearing, Bell renewed this argument. Withal, his counsel declared no fewer than three times, and Bell himself stated at least twice, that even if Bell's argument prevailed, he would be subject to a mandatory minimum sentence of 15 years as his prior convictions were sufficient to place him within the purview of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) (1988) (stipulating that a defendant is considered an armed career criminal if he has three prior convictions for violent felonies and if the offense of conviction is possession of a firearm which has traveled across state lines). In the course of the sentencing proceedings, the district court found that Bell had been convicted previously of a half-dozen violent crimes listed in the PSI Report, including assault and battery with a dangerous weapon, kidnapping, and various episodes of robbery. The defendant lodged no objection to this finding; to the exact contrary, statements made by both Bell and his counsel patefied its accuracy. Nevertheless, the court concluded that the offense of conviction was itself a crime of violence as defined in U.S.S.G. § 4B1.1 and sentenced Bell to a prison term in excess of 30 years as a career offender rather than to a shorter period of incarceration as an armed career criminal.

Bell appealed the sentence. On appeal, his counsel vigorously disputed whether a felon-in-possession conviction could lawfully trigger the career offender guideline. Counsel conceded, however, that "based upon [Bell's] prior record, he is subject to an enhancement ... of 15 years to life under the Armed Career Criminal [Act]." We bought counsel's wares, holding "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...

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