U.S. v. Winter, 93-1769

Decision Date10 February 1994
Docket NumberNo. 93-1769,93-1769
Citation22 F.3d 15
PartiesUNITED STATES of America, Appellant, v. Howard T. WINTER, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Fred M. Wyshak, Jr., Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellant.

Richard M. Egbert, Boston, MA, with whom MaryEllen Kelleher, New Bedford, MA, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

It is common wisdom that the past is prologue, foreshadowing the future. When convicted criminals rise to be sentenced in a federal court, the career offender guideline, U.S.S.G. Sec. 4B1.1, imbues that aphorism with a special meaning. 1 In such a setting, however, all past crimes are not regarded as equal; the guideline is fueled only by previous felony convictions for crimes of violence and controlled substance offenses. See id.

The case before us requires that we determine whether particular convictions attributable to certain racketeering activities constitute crimes of violence within the purview of this guideline. Because we agree with the district court that they do not, we affirm the sentence imposed below, 826 F.Supp. 33.

I. Travel of the Case

On May 17, 1993, defendant-appellee Howard T. Winter pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute, see 21 U.S.C. Sec. 841(a)(1), and five counts of aiding and abetting the same offense, see 18 U.S.C. Sec. 2. The district court, which had ruled out the career offender guideline during a special pre-plea hearing, imposed a ten-year incarcerative sentence. It is undisputed that, had the court employed the career offender guideline, a significantly greater sentence would have been mandated.

The government appeals pursuant to 18 U.S.C. Sec. 3742(b)(2).

II. The Problem

Under the sentencing guidelines, career offender status attaches if (1) the defendant achieved the age of majority before committing the offense of conviction, (2) that offense is a felony which can itself be characterized as either a crime of violence or controlled substance offense, and (3) the defendant's criminal history reflects a minimum of two prior felony convictions (known colloquially as "predicate offenses") for either crimes of violence or crimes involving controlled substances. See U.S.S.G. Sec. 4B1.1. In this case, defendant concedes that most--but not all--of these preconditions obtain: he committed the offense of conviction more than four decades after turning eighteen; that offense is a controlled substance offense; and he labors under the burden of a prior conviction for extortion--a crime that is considered a crime of violence, see United States v. DeLuca, 17 F.3d 6, 7-9 (1st Cir.1994); see also U.S.S.G. Sec. 4B1.2(1)(ii) (enumerating certain crimes of violence and listing extortion as one of them).

The nub of the case is the defendant's insistence that his prior criminal history does not include a second predicate offense. In the court below, the government nominated a candidate to fill out the slate--a racketeering indictment that resulted in defendant's conviction in 1979, after trial, for an amalgam of offenses, namely, engaging in racketeering activity (horse race fixing), see 18 U.S.C. Sec. 1962(c), conspiracy to engage in such activity, see 18 U.S.C. Sec. 1962(d), sports bribery, see 18 U.S.C. Sec. 224, and travel in aid of racketeering (horse race fixing), see 18 U.S.C. Sec. 1952(a). 2 The lower court did not think the government's candidate qualified for election to the "crime of violence" ranks, notwithstanding the government's claim that strong-arm tactics were standard fare in the racketeering and racketeering-related activities over which Winter presided. Consequently, the court decreed that, for want of a second predicate offense, the career offender guideline did not pertain.

The instant appeal turns on the appropriateness of categorizing at least one of the 1979 offenses as a crime of violence. Whether a conviction for a particular type of crime qualifies as a predicate offense presents a purely legal question, sparking de novo review. See United States v. De Jesus, 984 F.2d 21, 23 n. 4 (1st Cir.1993); United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993).

III. Crimes of Violence

To constitute a crime of violence, a felony must fit into one of several pigeonholes. To be specific, a crime of violence is any state or federal offense punishable by more than one year in prison that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. Sec. 4B1.2(1)(i), or (2) reposes on a short list of specially enumerated crimes such as "burglary of a dwelling, arson, or extortion," U.S.S.G. Sec. 4B1.2(1)(ii), or (3) "involves use of explosives," id., or (4) "otherwise involves conduct that presents a serious potential risk of physical injury to another," id.

Determining whether a previous conviction represents a crime of violence necessitates a formal categorical approach. See DeLuca, 17 F.3d at 8; De Jesus, 984 F.2d at 23; United States v. Bell, 966 F.2d 703, 704 (1st Cir.1992); Fiore, 983 F.2d at 3; see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990) (adopting categorical approach for analogous determination under Armed Career Criminal Act); United States v. Doe, 960 F.2d 221, 223-24 (1st Cir.1992) (same). 3 As a rule, this type of approach is restricted to an examination of how the legislature has defined the crime, without any concomitant inquiry into the details of the defendant's actual criminal conduct. See DeLuca, 17 F.3d at 8; De Jesus, 984 F.2d at 23; Fiore, 983 F.2d at 3; see also Taylor, 495 U.S. at 600, 110 S.Ct. at 2159. Nevertheless, "there are certain limited circumstances in which some investigation beyond the formal nature of the charge may be warranted." DeLuca, 17 F.3d at 8 n. 3; accord Taylor, 495 U.S. at 602, 110 S.Ct. at 2160; Doe, 960 F.2d at 224. For example, if the statutory description is inscrutable, or if it blankets both violent and non-violent crimes, a court may peek beneath the coverlet. See, e.g., United States v. Harris, 964 F.2d 1234, 1235 (1st Cir.1992) (employing similar exception in an ACCA case); see also Taylor, 495 U.S. at 602-03, 110 S.Ct. at 2160.

These principles inform our treatment of the instant case. Here, the first three avenues to dubbing the 1979 offenses crimes of violence are dead ends; the government concedes--as, indeed, it must--that no count of conviction was for a felony of which physical force is an element, or for a felony listed by name in the career offender guideline, or for a felony involving the use of explosives. Thus, the issue before us hinges on whether any of the counts of conviction, considered from a categorical standpoint, can be said to "involve[ ] conduct that presents a serious potential risk of physical injury to another." U.S.S.G. Sec. 4B1.2(1)(ii); see also U.S.S.G. Sec. 4B1.2, comment. n. 2(B).

IV. Analysis

The label "racketeering," though pejorative, does not shed much light on whether the activity in question poses (or fails to pose) a serious potential risk of violence. After all, racketeering comes in many shapes and sizes, and covers a wide range of activities. Those activities are uniformly nefarious and almost invariably nasty--but they are not necessarily violent. 4 One is reminded of the label "conspiracy," a label so encompassing that it "says next to nothing about the underlying nature of the crime," and, therefore, gives a court no real insight into whether a conviction bearing the label can be classified as a crime of violence. Fiore, 983 F.2d at 3. Since the statutory language describing racketeering, taken alone, tells us so little, we can only conclude that convictions for racketeering sometimes will constitute predicate offenses and sometimes will not. It follows, a fortiori, that the same is true vis-a-vis convictions for conspiracy to engage in racketeering.

Because crimes of this androgynous sort, not unlike chameleons, "will necessarily take on the characteristics and coloration of [their] environment," id. (discussing general conspiracy), some exploration of that environment must be undertaken. Yet, a caveat is in order: even where, as here, the category limned in the statute is an inexact semantic construct, warranting further inquiry, the task of classification continues to demand a categorical as opposed to a fact-sensitive analysis. This means that if previous convictions for racketeering or racketeering conspiracy are in issue, a court seeking to ascertain the appropriateness of predicate offense treatment under Taylor principles must ask categorically oriented questions such as: "Racketeering by what means?" "Racketeering to what end?" And in answering these questions, the court should not plunge into the details of a particular defendant's conduct, but, rather, again in fidelity to Taylor principles, should merely assess the nature and object of the racketeering activity as described in the indictment and fleshed out in the jury instructions. See Taylor, 495 U.S. at 602, 110 S.Ct. at 2160; De Jesus, 984 F.2d at 23 n. 5.

This methodology makes good sense, for it cabins further inquiry in keeping with its categorical roots, permitting the court to take a predetermined sample of the earlier case and evaluate its composition without at the same time inviting the judicial equivalent of an archaeological dig. We turn, therefore, to the charging papers and jury instructions in the 1979 case to ascertain the nature and object of the racketeering activity. 5


The earlier indictment identified the "racketeering activity" with which Winter was charged as "horse race fixing," and described the offenses...

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