U.S. v. Willings, No. 09-1334.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Selya
• Citation: 588 F.3d 56
• Parties: UNITED STATES of America, Appellee, v. Michael David WILLINGS, Defendant, Appellant.
• Docket Number: No. 09-1334.
• Decision Date: 01 December 2009

588 F.3d 56 UNITED STATES of America, Appellee,
v.
Michael David WILLINGS, Defendant, Appellant. No. 09-1334. United States Court of Appeals, First Circuit. Submitted October 29, 2009. Decided December 1, 2009.

Charles K. Stephenson on brief for appellant.

[588 F.3d 57]

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

Before BOUDIN and SELYA, Circuit Judges, and LAPLANTE,^* District Judge.

SELYA, Circuit Judge.

Defendant-appellant Michael David Willings challenges his sentence on the ground that the court below incorrectly designated him as a career offender under USSG § 4B1.1(a). Concluding, as we do, that escape from secure custody is a crime of violence within the purview of the career offender guideline, we affirm.

The facts are straightforward. On June 20, 2008, a man armed with an air pistol held up the Biddeford Savings Bank in Biddeford, Maine. After threatening the teller, he left with over $6,000 in cash. Images from the bank's surveillance cameras were published in local newspapers and aired on television broadcasts. In due course, the authorities identified and apprehended the appellant, who confessed.

We fast-forward to August 17, 2008, when the appellant pleaded guilty to a single-count indictment that charged him with robbery of a federally insured bank through the use of a dangerous weapon. See 18 U.S.C. § 2113(a), (d).

At sentencing, the district court made a series of findings, adumbrated in a presentence investigation report (PSI Report). Pertinently, the court found the appellant to be a career offender. Because the offense of conviction carries a 25-year statutory maximum, 18 U.S.C. § 2113(d), the court set the base offense level at 34. USSG § 4B1.1(b). The court then granted a three-level reduction for acceptance of responsibility. Id. § 3E1.1. The total offense level (31), in combination with the applicable criminal history category (VI),¹ yielded a guideline sentencing range (GSR) of 188-235 months. Id. ch. 5, pt. A (sentencing table). The court then sentenced the appellant to a 188-month incarcerative term. This timely appeal ensued.

The appeal has a laser-like quality. It requires us to examine only the career offender designation. That designation matters; in the absence of career offender status, the appellant's GSR would be 84-105 months, and his sentence likely would have been less onerous.

The relevant sentencing guideline instructs that a defendant qualifies as a career offender if (i) he is 18 years old or older at the time he commits the offense of conviction; (ii) that offense is a crime of violence or a controlled substance offense; and (iii) he has at least two prior felony convictions for crimes of violence or controlled substance offenses. Id. § 4B1.1(a). The first two conditions are not in dispute; the appellant's challenge focuses single-mindedly on the third condition.

We turn, then, to the appellant's criminal record. The following Maine felonies are germane. First, in September 1993 the appellant burglarized two dwellings in Cape Elizabeth. He subsequently pleaded guilty to both burglaries and, on March 15, 1995, received concurrent sentences. Second, in May 1994 the appellant robbed a gasoline station in Portland and, two days later, robbed a woman in the same vicinity. He subsequently pleaded guilty to both robberies and, on March 15, 1995—the same day that he was sentenced for the earlier burglaries—received concurrent

588 F.3d 58

sentences. Third, in September 1994 the authorities charged the appellant with both the crime of escape from the Cumberland County Jail and the crime of aiding an escape from that facility. Me.Rev.Stat. Ann. tit. 17-A, §§ 755, 756. The appellant again pleaded guilty and sentence was again imposed on March 15, 1995.

For sentencing in the instant case, the district court grouped the 1993 burglaries and treated them as one predicate offense and grouped the 1994 robberies and treated them as a second (and separate) predicate offense. Even though sentences had been imposed for these four crimes on the same day (March 15, 1995), the court treated the two sets of crimes as separate predicates based on a finding that an arrest had intervened after the burglaries but before the robberies. See USSG § 4A1.2(a)(2) (providing that sentences imposed on the same day cannot be considered as separate predicate offenses unless the offender is arrested for the first offense prior to commission of the second offense).

The court did not stop there. It found, in the alternative, that even if the burglaries and robberies were treated as a unit, the career offender designation would still apply because the escape crime was sufficient to serve as a second predicate.

In attacking his sentence, the appellant advances two arguments. First, he says that his escape crime is not a crime of violence. Second, he says that because the sentencing court used an unreliable police report as evidence that an arrest intervened between the 1993 burglaries and the 1994 robberies, it erred in not grouping the burglaries and the robberies as a single predicate offense.

We begin our analysis with the appellant's asseveration that escape is not a crime of violence. This asseveration draws its essence from two Supreme Court opinions, namely, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), and United States v. Begay, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).² We review a court's determination of whether an offense qualifies as a crime of violence de novo. United States v. Williams, 529 F.3d 1, 3 (1st Cir.2008).

A crime of violence within the purview of the career offender guideline is any offense punishable by more than one year in prison that either "(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...