U.S. v. Giggey

• Decision Date: 22 December 2008
• Docket Number: No. 07-2317.,07-2317.
• Citation: 551 F.3d 27
• Parties: UNITED STATES of America, Appellee, v. Timothy GIGGEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

551 F.3d 27

UNITED STATES of America, Appellee, v. Timothy GIGGEY, Defendant, Appellant.

No. 07-2317.

United States Court of Appeals, First Circuit.

Heard October 7, 2008.

Decided December 22, 2008.

James S. Hewes, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, for the Federal Public Defender for the Districts of Massachusetts, New Hampshire and Rhode Island, amicus curiae.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA, BOUDIN, LIPEZ, and HOWARD, Circuit Judges.

OPINION EN BANC

LYNCH, Chief Judge.

The court took this case en banc to consider again whether a conviction for a non-residential burglary is per se a "crime of violence" under the Career Offender Sentencing Guideline, U.S.S.G. § 4B1.2. A career offender finding may lead to a longer sentence for a federal defendant. This court has for some time held that a prior conviction for a burglary which is not of a dwelling is per se a "crime of violence" under the Guidelines. 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). We now reverse course and hold that a prior conviction for burglary not of a dwelling is not per se a "crime of violence." We hold that whether a prior conviction for non-residential burglary is a "crime of violence" turns on the application of a categorical approach under § 4B1.2(a)(2)'s residual clause. We did not grant en banc review or receive briefing on any other issue.

We decided to reconsider whether non-residential burglary is per se a "crime of violence" under the Guideline for several reasons. One is that the question still affects the length of the sentence received. The Guidelines, while now advisory and not mandatory, remain the starting point for a district court's sentencing decision. Gall v. United States, ___ U.S. ____, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) ("[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range."). Although the sentencing judge now has considerable leeway to vary from the Guidelines range, see Kimbrough v. United States, ___ U.S. ____, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007), the sentencing judge must still consider the extent of deviation between the Guidelines range and the sentence given and ensure the justification is sufficiently compelling to support the degree of variance, Gall, 128 S.Ct. at 597; see also United States v. Thurston, 544 F.3d 22, 25 (1st Cir.2008); United States v. Boardman, 528 F.3d 86, 87 (1st Cir.2008) (noting that sentencing judges may depart from the Guidelines range on the basis of a policy disagreement with the Guidelines). As a result, the Guidelines range may substantially influence a particular defendant's sentence, especially when the large increases imposed on career offenders are involved. In this case, the Guidelines range for defendant Timothy Giggey increased to 151 to 188 months under § 4B1.2, instead of 63 to 78 months had he not been found a career offender. The sentencing judge made clear that if he were not bound by our prior law interpreting § 4B1.2, he would have given a lower sentence. United States v. Giggey, 501 F.Supp.2d 237, 245 (D.Me.2007).

Further, our earlier per se approach has been criticized as sweeping within its reach defendants who are not violent career offenders, and so do not pose such risks to the public as to warrant prolonged imprisonment. The human and fiscal costs of such unnecessary imprisonment are considerable. Accordingly, two conscientious district judges in this circuit have asked this court to reconsider en banc and alter our interpretation of § 4B1.2 as to whether a defendant's conviction for burglary of a non-dwelling structure is always a "crime of violence." See Boardman, 528 F.3d at 87 (discussing the district judge's comments at sentencing); Giggey, 501 F.Supp.2d at 239.

Another reason we reexamine the issue is that there is no sign that the Sentencing Commission will resolve the ambiguity about its intentions in the Career Offender Guideline; an ambiguity has now existed for nearly twenty years regarding whether non-residential burglary is a career offender predicate. In the absence of such guidance, the circuits have struggled with the question and taken at least three different positions on it. The per se approach which we earlier adopted is distinctly a minority position.¹

Also, very recent Supreme Court opinions interpreting identical language in the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), give us reason to reconsider our approach. See Begay v. United States, ___ U.S. ____, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).

Finally, other relevant areas of the law have changed since we adopted our earlier rule in Fiore and Sawyer. Fiore was decided in 1992. It relied on the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), although recognizing that Taylor construed the ACCA. The Fiore court could not have anticipated the Commission's post-1992 actions on the question of non-residential burglaries, which affect our construction of the Guideline in 2008.

In addition, this court's decision in Sawyer, considering a prior conviction under Maine's burglary statute, interpreted Fiore as holding that all burglaries of nondwelling buildings which otherwise include the elements of a generic burglary under Taylor are crimes of violence under the Career Offender Guideline. 144 F.3d at 195. Sawyer did not address the later and significant history of the Commission's deliberations on the Guideline. Sawyer also held that the per se approach it considered Fiore to have adopted precluded any consideration of whether the differences between the Maine statute and the Rhode Island statute in Fiore would produce different results utilizing a categorical approach. Sawyer did not have the benefit of the Supreme Court's 2005 explanation of the categorical approach in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

I.

A. Giggey's Federal Crime

On December 19, 2006, Giggey, then age twenty-seven, his slightly younger brother, and a juvenile male decided to burglarize a building on Lisbon Street in Lewiston, Maine. They chose the building thinking that it contained valuables because it appeared to have a security alarm on its outer door. To create a diversion, the three set a series of small fires in a nearby vacant building. That building was planned for restoration into new residential, commercial, and office space. The three went outside to see if the fires were visible from the street and returned after twenty minutes to set additional fires. The three left the burning building when an alarm sounded and then fled to their homes, fearing that they had been seen.

No one was injured by the fires. But the flames spread to neighboring buildings and ultimately destroyed four buildings owned by Greely Capital, LLC, as to which Greely Capital had received a $50,000 federal rehabilitation grant from the Department of Housing and Urban Development, which was administered by the City of Lewiston. The destruction of a federally funded rehabilitation project brought into play a federal criminal statute, 18 U.S.C. § 844(f)(1), which provides: "Whoever maliciously damages or destroys ... by means of fire ... any building ... in whole or in part owned or possessed by ... any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both."

On December 22, 2006, Giggey was arrested and held on a state arson charge relating to the fires. On April 9, 2007, the U.S. Attorney's Office filed a one-count information against Giggey, charging him under 18 U.S.C. § 844(f). That same day, Giggey waived indictment and pled guilty to violating 18 U.S.C. § 844(f). Giggey's state arson charge was dismissed upon entry of his guilty plea to the federal crime. Only Giggey's sentence, not his guilt, is therefore at issue.

B. Giggey's Prior State Court Convictions

At the time of his sentencing, Giggey had several prior adult convictions for violations of Maine's criminal laws. Two are important to this appeal. The first is a burglary conviction from 2000. The relevant count in Giggey's indictment for that crime charged:

That on or about and between March 23, 2000, and March 25, 2000 in Raymond, Cumberland County, Maine, TIMOTHY ALBERT GIGGEY did enter or surreptitiously remain in a structure namely a garage owned by David Millay located at 100 Wild Acres Road, knowing he was not licensed or privileged to do so, with the intent to commit the crime of theft inside.

On December 7, 2000, Giggey pled guilty to the burglary charged in that count, a Class C crime punishable by up to five years' imprisonment under Maine law. See Me.Rev.Stat. Ann. tit. 17-A, §§ 401, 1252(2)(C). For his 2000 burglary conviction, Giggey received a two year sentence with all but ninety days suspended.

Giggey's second relevant state offense is a burglary conviction from 2004. On June 22, 2004, Giggey waived indictment and pled guilty to "burglary, Class C, alleged to have occurred on February 21st of this year at the Pit Stop Redemption." He received a thirty month sentence with all but four months suspended for that burglary.

Both the 2000 and 2004 offenses were charged under Maine's burglary statute, which provided:

1. A person is guilty of burglary if he enters or surreptitiously remains in a structure, knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein.

2. Burglary is classified as:

A. A Class A crime if the defendant was armed with a firearm, or knew...