U.S. v. Leavitt
| Decision Date | 03 December 1990 |
| Docket Number | No. 90-1597,90-1597 |
| Citation | 925 F.2d 516 |
| Parties | UNITED STATES, Appellee, v. Tony Allen LEAVITT, Defendant, Appellant. First Circuit. Heard |
| Court | U.S. Court of Appeals — First Circuit |
Judith H. Mizner, Newburyport, Mass., for defendant, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., was on brief, for appellee.
Before BREYER, Chief Judge, ALDRICH and COFFIN, Senior Circuit Judges.
After Tony Allen Leavitt pleaded guilty to a drug crime, see 21 U.S.C. Sec. 841(a)(1), the district court departed downward from what it considered the applicable Guideline sentence (168-210 months), see United States Sentencing Commission, Guidelines Manual Sec. 4B1.1 (Nov.1989) ("career offender" guideline), and sentenced him to a prison term of ninety months. Leavitt now appeals, claiming that the court made a legal mistake when it classified one of his prior convictions--a conviction for "High and Aggravated Oral Threatening"--as a conviction for a "crime of violence." If Leavitt is right, he was not a "career offender" for sentencing purposes. See U.S.S.G. Sec. 4B1.1 (). And, the Guidelines would have called for a sentence well below ninety months.
The Government points out that Leavitt did not make this argument in the district court; hence, under normal procedural principles, he has waived his right to make it here. See United States v. LaGuardia, 902 F.2d 1010, 1012-13 (1st Cir.1990). Leavitt responds that circumstances here are special. His argument, for example, is purely legal; and the sentencing differences are so great as to bring about a serious miscarriage of justice if he is legally right. See id. at 1013. Moreover, the Guidelines still are relatively new; and this court has said that for that reason, at least for a time, it will tend to overlook a failure to make a Guideline-related argument in the court below. See United States v. Plaza-Garcia, 914 F.2d 345, 348 (1st Cir.1990) ().
We shall assume, for the sake of argument, that this is an appropriate case to overlook a "waiver." Cf. Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976) (). Still, Leavitt cannot prevail, for he is wrong on the merits.
The Guidelines define "crime of violence" in part as
any offense under federal or state law ... that ... involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. Sec. 4B1.2(1)(ii). The Guideline commentary adds that an offense is a crime of violence if "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." Id., comment. (n. 2) (emphasis added). The Maine statute under which the appellant was convicted prohibited making any oral "threat to injure the person or property of any person...." Me.Rev.Stat.Ann. tit. 17, Sec. 3701 (repealed May 1, 1976). The Maine indictment, in "the count of which he was convicted," charged the appellant with the following conduct:
That on or about the twenty-seventh day of May 1975, in the City of Calais, County of Washington and State of Maine, the above named defendant Tony Allen Leavitt did then and there make and publish an oral communication containing a threat to injure the persons of two public officials in the lawful discharge of their official duties to wit: police officers David Johnson and Donald Mott, by then and there saying to the said police officers ..., "I'll kill you fucking guys if you come upstairs, I've got a loaded shotgun up here and I'll blow you fucking guys away," said threat being of high and aggravated nature.
The conduct charged in this indictment, in our view, "present[ed] a serious potential risk of physical injury to another." U.S.S.G. Sec. 4B1.2(1)(ii). Whether or not Leavitt actually had a gun at the time, the conduct describes a situation in which officers, faced with such language, might have thought themselves in danger; and, consequently, Leavitt, an officer, or, perhaps, some other person, might have been hurt. Cf. United States v. McVicar, 907 F.2d 1, 2-3 (1st Cir.1990).
Leavitt points out that the Maine statute itself covers many circumstances, some where the risk of injury may be high and others (such as a threat to property)...
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