U.S. v. Brown

• Decision Date: 27 January 2011
• Docket Number: Nos. 09–2084,09–2146.,s. 09–2084
• Citation: 631 F.3d 573
• Parties: UNITED STATES of America, Appellee/Cross–Appellant,v.Robert BROWN, III, Defendant, Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — First Circuit

631 F.3d 573

UNITED STATES of America, Appellee/Cross–Appellant,

v.Robert BROWN, III, Defendant, Appellant/Cross–Appellee.

Nos. 09–2084

09–2146.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 2010.Decided Jan. 27, 2011.

Robert C. Andrews, by appointment of the court, with whom Robert C. Andrews P.C. was on brief for defendant.Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee/cross-appellant.Before BOUDIN and HOWARD, Circuit Judges, and BARBADORO,^* District Judge.BOUDIN, Circuit Judge.

In December 2003, Robert Brown III was serving the tail end of a federal sentence for a prior cocaine trafficking offense at Pharos House, a Bureau of Prisons community corrections facility in Portland, Maine. Another resident, after testing positive for cocaine use, told federal agents that one of those supplying him drugs had said that Brown was the dealer's supplier. In January 2004, that resident, cooperating with federal agents, made a controlled purchase of 2.4 grams of cocaine from Brown.

Brown was indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (2006). His first trial ended in a mistrial, but this court affirmed the district court's denial of a motion to dismiss the indictment on double jeopardy grounds. United States v. Brown, 426 F.3d 32, 39 (1st Cir.2005), cert. denied, 546 U.S. 1189, 126 S.Ct. 1374, 164 L.Ed.2d 81 (2006). Brown was convicted at his retrial in 2006. Under 21 U.S.C. § 841(b)(1)(C), he faced a statutory maximum of 360 months.

The pre-sentence report (“PSR”) determined that the base offense level was 12, which combined with Brown's criminal history points (placing him in category V) would have set the guidelines range at 27 to 33 months. However, the PSR concluded that Brown should receive an enhanced sentence as a career offender, a designation that applies to one who, being 18 or older at the time of the instant offense, commits a felony that is either a drug offense or a “crime of violence” and who has at least two other such convictions. U.S.S.G. § 4B1.1(a) (2005); see also 28 U.S.C. § 994(h) (2006). The guidelines define the phrase “crime of violence” as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) 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(a).

Brown was 32 years old at the time he committed the instant offense, and the PSR found him to be a career offender based on a 1999 federal felony conviction for cocaine trafficking—which undisputedly counts as a drug offense—and a 1989 Massachusetts felony conviction for breaking and entering Coleman's Sporting Goods store in the night time, which the PSR counted as a “crime of violence” within the meaning of section 4B1.2(a)(2). The district court's treatment of the latter offense is the focus of this appeal.

At the time of the initial sentencing hearing in August 2006, Brown objected that night-time burglary of something other than a residence—as defined by Massachusetts—does not constitute a crime of violence under the guidelines. But at that time First Circuit precedent treated non-residential burglary as a per se “crime of violence” within the meaning of section 4B1.2(a)(2). United States v. Sawyer, 144 F.3d 191, 195–96 (1st Cir.1998); United States v. Fiore, 983 F.2d 1, 4–5 (1st Cir.1992), cert. denied, 507 U.S. 1024, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993). The district court sentenced Brown to 262 months, within the guidelines range for a career offender.

Brown appealed, and during his appeal, this court decided United States v. Giggey ( Giggey I ), 551 F.3d 27 (1st Cir.2008) (en banc), overruling Sawyer and Fiore. Giggey I held that whether a conviction for non-residential burglary counts as a crime of violence turns on the application of section 4B1.2(a)(2)'s residual clause, id. at 28–29, which requires that the state statute of conviction categorically describe “conduct that presents a serious potential risk of physical injury to another,” id. at 39 (quoting United States v. Peterson, 233 F.3d 101, 107 (1st Cir.2000)) (internal quotation mark omitted).

On remand, the district court found that Brown's conviction was under a Massachusetts statute, Mass. Gen. Laws ch. 266, § 16 (2008), which did not categorically meet the residual clause test, that Brown's burglary conviction was not a career offender predicate, and that he should not be sentenced as a career offender. The district court, after considering all of the 18 U.S.C. § 3553(a) (2006) factors, imposed a sentence of 75 months in prison. Before us now are competing appeals by the government and by Brown.

The government's claim is that the district court misapplied Giggey I in ruling that Brown's 1989 burglary conviction was not a crime of violence. The first step, easily accomplished, is to identify the statute of conviction. Massachusetts has several burglary statutes; ¹ among them, section 16 encompasses night-time burglary of a building, ship, vessel, or vehicle with intent to commit a felony. The district court found that Brown's conviction was based on section 16 and, despite Brown's claim that the government did not carry its burden of proof, the finding is correct.

To meet its burden, the government produced the indictment and certified records of the case from the Massachusetts court of conviction, which consisted of the docket sheet and the clerk's notes. See United States v. Bryant, 571 F.3d 147, 156 (1st Cir.2009); United States v. McKenzie, 539 F.3d 15, 19 (1st Cir.2008). The indictment alleged that Brown “did break and enter in the night time the building, of Col[e]man's Sporting Goods, situated in said Canton, with intent therein to commit a felony,” and although it did not cite section 16 or any other provision, the wording more or less tracked section 16.

The certified state court records, which stated that Brown pled guilty and was sentenced to two-and-a-half years in prison on October 17, 1989, also did not specify the statute, but they listed the offense as “Breaking & Entering in the Night Time.” The title of Mass. Gen. Laws ch. 266, § 16 is “Breaking and entering at night”; no other statute has a similar title. Nor does Brown point to any other breaking and entering provision which so closely approximates the conduct with which he was charged in the indictment. So assuredly Brown was convicted under section 16.

“Whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is a question of law that we review de novo.” United States v. Almenas, 553 F.3d 27, 31 (1st Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 2415, 173 L.Ed.2d 1320 (2009). The Supreme Court has mandated a categorical approach, so that the designation “crime of violence” depends not on whether the defendant's particular conduct was violent, but on whether the “offense of conviction” meets the requirements of the guidelines definition; and, while the definition is a federal one set forth in the guidelines, it is applied to the range of conduct that falls within the state statute. United States v. Giggey ( Giggey II ), 589 F.3d 38, 41 (1st Cir.2009).

There may be, and is here, a preliminary question: sometimes the statute in question may encompass multiple crimes, see Almenas, 553 F.3d at 33, and if so this will often require identifying a particular crime— within the broader category—of which the defendant was convicted. And, in making this latter identification, the Supreme Court allows us to consult only a restricted set of Shepard-approved sources ( e.g., charging document, written plea agreement, transcript of plea colloquy). Giggey II, 589 F.3d at 41–42 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

Brown was convicted of violating Mass. Gen. Laws ch. 266, § 16, which provides in full:

Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does break, burn, blow up or otherwise injures or destroys a safe, vault or other depository of money, bonds or other valuables in any building, vehicle or place, with intent to commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony, shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years.

This statute covers multiple crimes, but the question of how far to subdivide a statute is far from settled, and under the categorical approach this may determine how the crime of conviction is classified. In such a multi-clause and string-phrased statute as section 16, it may be easy enough to distinguish as separate crimes the breaking and entering offense from the safe, vault, or other depository offense, and as separate crimes the breaking and entering a building offense from the breaking and entering a boat offense. See Nijhawan v. Holder, ––– U.S. ––––, 129 S.Ct. 2294, 2299, 174 L.Ed.2d 22 (2009); Taylor, 495 U.S. at 602, 110 S.Ct. 2143. But here the government and the district court assumed that night-time breaking and entering a “non-dwelling building” is the crime to be categorized.

The statute's language does not suggest such a subdivision, and nothing cited to us in Massachusetts decisions or jury instructions suggests that it has been imported by judicial construction. Nor is such a subdivision readily inferred by juxtaposing adjacent sections; true, sections 14 and 15 both create offenses dealing...