U.S. v. Shepard

• Decision Date: 03 November 2003
• Docket Number: No. 02-1216.,02-1216.
• Parties: UNITED STATES of America, Appellant, v. Reginald SHEPARD, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

348 F.3d 308

UNITED STATES of America, Appellant, v. Reginald SHEPARD, Defendant, Appellee.

No. 02-1216.

United States Court of Appeals, First Circuit.

Heard January 7, 2003.

Decided November 3, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied November 24, 2003.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

Linda J. Thompson, with whom John M. Thompson and Thompson & Thompson, P.C. was on brief, for appellee.

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

BOUDIN, Chief Judge.

Under the amended Armed Career Criminal Act ("the Act"), 18 U.S.C. § 924(e) (2000), a 15-year mandatory minimum sentence is required for anyone convicted as a felon in possession of a firearm who has three or more prior convictions for a "violent felony" or "serious drug offense." This appeal by the government concerns the proper application of these labels to Reginald Shepard's prior guilty pleas under state burglary statutes. The issue is a recurring one.

On March 3, 1999, Shepard pled guilty to a charge of violating the federal statute prohibiting a felon from possessing a firearm, 18 U.S.C. § 922(g)(1) (2000). Shepard had in fact sold a Glock 17, 9 mm pistol and ammunition to an undercover federal agent at South Station in Boston. Shepard already had on his record dozens of prior state convictions, including eleven for breaking and entering. The government sought to have Shepard sentenced as an armed career criminal, arguing that at least five of these breaking and entering convictions were violent felonies under the Act.

Under the Act, the phrase "violent felony" is not limited to crimes in which violence actually occurs; instead, the phrase is defined to include inter alia "any crime punishable by imprisonment for a term exceeding one year" that "is burglary, arson or extortion ... or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court held that Congress intended "burglary" to mean any crime under state law, however denominated, that incorporated the elements of what the Court described as "generic burglary" — unlawful entry into "a building or other structure, with intent to commit a crime." Id. at 598-99, 110 S.Ct. 2143.

At Shepard's initial sentencing, the five convictions at issue were under one or the other of two Massachusetts statutes that forbid breaking and entering a "building," "ship," "vessel" or "vehicle" with intent to commit a felony.¹ In each of the state cases, the complaint merely charged Shepard in the boilerplate language of the statutes, leaving it unclear just what kind of structure Shepard had entered. Thus, the complaints alone did not reveal whether Shepard had broken into a building or some lesser enclosure such as a car or boat.

The "complaint" under Massachusetts procedure is the final step in the charging process, roughly equivalent to a federal information. 1 Massachusetts Criminal Practice § 4.1-4.2 (1998). Issued by a magistrate, the complaint is based on a complaint application normally filed by a police officer and likely to incorporate or be accompanied by a police report. Id. The application is customarily sworn and is automatically given to defendants at their arraignments. Mass. Gen. Laws ch. 276, § 22 (2000); Super. Ct. Standing Order 2-86; 1 Massachusetts Criminal Practice § 4.2, 16.5(C). Courts in Massachusetts can presume that defendants know the information contained in police reports. See Commonwealth v. Brown, 51 Mass. App.Ct. 702, 748 N.E.2d 972, 981 (2001).

Forewarned by an earlier decision of this court, United States v. Dueno, 171 F.3d 3 (1st Cir.1999), the government secured the state court files from Shepard's earlier convictions, presented certified copies, and argued that the complaint applications and police reports contained in the state court files showed that Shepard's prior convictions were for entries into buildings and so constituted generic burglaries under Taylor. Taking these documents at face value, they showed (with varying degrees of elaboration) the following as to the charges that had led to Shepard's guilty pleas:

May 1989. Break in at 30 Harlem St. in Boston; defendant discovered by an inhabitant in the pantry.

March 1991. Entry into 550 Arsenal St. in Watertown; defendant in back room of store.

July 1991. Entry into 258 Norwell St. in Boston; defendant found in hallway with property taken from a broken-into apartment.

February 1994. Attempted entry into 145 Gallivan Blvd; defendant found with arms through broken glass window.²

The district court ruled that the complaint applications and police reports could not be considered and declined to sentence Shepard under the Act, imposing instead a sentence of 46 months (which included a two-level upward departure). United States v. Shepard, 125 F.Supp.2d 562, 572 (D.Mass.2000) ("Shepard I"). On the government's appeal, this court reversed, ruling that there was no "absolute bar" to consideration of police reports and complaint applications; the question, said the panel, was whether, in the contemporaneous understanding of the state and the defendant, Shepard had pled guilty in the breaking and entering cases to entry of a building (rather than, say, a motor vehicle). United States v. Shepard, 231 F.3d 56, 67 (1st Cir.2000) ("Shepard II"), cert. denied 534 U.S. 829, 122 S.Ct. 72, 151 L.Ed.2d 37 (2001).

On remand, the government filed additional complaint applications or police reports from state court files evidencing two additional convictions. According to these documents, one conviction was for a February 1981 break in to the Jamaica Plain High School gymnasium and the theft of property; the other was an attempted break in at 446 Shawmut Avenue where Shepard was found on the fire escape next to a window that had been pried open with a knife.

Shepard submitted an affidavit saying essentially the same thing as to all of the alleged predicate charges:

I am sure that, at the time of [the state court plea hearing], the judge did not read this Incident report to me and did not ask me whether or not the information contained in the incident report was true. I did not admit the truth of the information contained in the Incident report as part of my plea and I have never admitted in court that the facts alleged in the reports are true.

After these submissions, the district court imposed the same sentence as before. United States v. Shepard, 181 F.Supp.2d 14, 18 (D.Mass.2002) ("Shepard III"). The court emphasized Shepard's affidavit denials that he had ever admitted in court the underlying facts of the crimes and concluded that "the police reports did not provide reliable evidence on the central question, what did the defendant plead to in the state court?" Id. at 17, 19-20. The government again appeals, arguing that complaint applications and police reports establish that Shepard pled guilty to breaking into buildings.

There is surely an air of make-believe about this case. No one, and this includes Shepard and the district court, has seriously disputed that Shepard in fact broke in to half a dozen or more buildings and was consequently convicted upon pleas of guilty under the two Massachusetts statutes in question. Further, his string of convictions — which the district court described as "an 18-year crime spree," Shepard I, 125 F.Supp.2d at 565 — shows that he is just the kind of burglar whom Congress had in mind in adopting the tough 15 year minimum sentence for armed career criminals. Taylor recounts in numbing detail the legislative history showing Congress' aim to apply the Act to repeat burglars later convicted of a gun crime. Taylor, 495 U.S. at 581-90, 110 S.Ct. 2143.

Congress' rationale was that a large percentage of all crimes are committed by repeat offenders; that many of these crimes have at least a potential for violence (e.g., the burglar who encounters a resident in the house being burgled); that after a series of these crimes, the defendant is fairly described as a repeat offender; and that when a repeat offender then also commits a federal gun crime, it is time for that felon to serve a long prescribed minimum sentence. Taylor, 495 U.S. at 581-88, 110 S.Ct. 2143. Whatever the force of the theory, there is no doubt that Congress intended that it be implemented.

Yet Taylor, while construing the term "burglary" broadly (based on common usage rather than common law), narrowed the Act dramatically in another respect. Partly for practical reasons of administration, Taylor forbade a de novo inquiry by the sentencing court into what conduct the defendant actually engaged in incident to the predicate offense, and focused instead on whether the crime of conviction was necessarily a generic burglary (or some other crime of violence). Taylor, 495 U.S. at 599-602, 110 S.Ct. 2143. Admittedly, this simplifies administration if the state statute describes generic burglary and nothing else.

The problem — which Taylor recognized and addressed — is that state burglary statutes are often drafted to embrace both conduct that does constitute generic burglary and conduct that does not (e.g., building versus vehicle³). Taylor, 495 U.S. at 599-602, 110 S.Ct. 2143. Taylor makes clear that where (as here) the statute embraces two different crimes or categories of criminal conduct, the defendant will be deemed guilty of a violent felony if one of the two corresponds to generic burglary and that is the crime of conviction in the particular case. Id. at 602, 110 S.Ct. 2143.

But how can one tell whether generic burglary was the crime of conviction if one does not look at what actually happened at the scene of the crime? Taylor said that the sentencing court can still look at the charging papers and jury instructions,...