805 F.3d 385
1st Cir.2015Background
- MacArthur pled guilty to two federal charges: possession of firearms after felony conviction and possession of stolen firearms; sentenced to concurrent 216 and 120 months.
- During a high-speed police chase, officers recovered two stolen firearms (each with >15-round magazines) discarded near the scene; firearms had been stolen in a prior burglary.
- PSI attributed two prior Maine burglary convictions to MacArthur and described them as burglaries of dwellings; neither Shepard documents nor state charging papers were provided at sentencing.
- While detained awaiting federal sentencing, MacArthur assaulted a corrections officer after entering a lockdown dispute; the PSR documented this post-plea misconduct.
- District court: treated the Maine burglary convictions as "crimes of violence" under U.S.S.G. § 2K2.1 (raising base level), denied acceptance-of-responsibility credit under § 3E1.1 based on post-plea assault, and imposed a § 3C1.2 enhancement for reckless endangerment during flight.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MacArthur's prior Maine burglary convictions qualify as "burglary of a dwelling" and thus crimes of violence under U.S.S.G. § 2K2.1 | The PSR descriptions and MacArthur's silence/inaction at sentencing permit treating the prior convictions as burglaries of dwellings | Without Shepard documents, the court could not reliably determine those convictions were burglaries of dwellings; court erred | Affirmed: PSR descriptions plus MacArthur's failure to object rendered the district court's finding not clearly erroneous; plain-error review fails for lack of obvious error or prejudice |
| Whether MacArthur should receive an acceptance-of-responsibility reduction under § 3E1.1 | Denial appropriate because MacArthur committed an assault after pleading guilty, undermining acceptance | Assault was unrelated to the federal offense or occurred before federal charges; insufficient proof by preponderance | Affirmed: district court properly considered post-plea misconduct; evidence (officer report) supported finding; review for clear error fails |
| Whether § 3C1.2 enhancement for reckless endangerment during flight double-counted conduct already used for § 2K2.1(b)(6)(B) enhancement | Enhancement proper; burglary alone justified § 2K2.1(b)(6)(B), so any reference to the chase was surplus and not prejudicial | The chase was already accounted for in § 2K2.1(b)(6)(B); applying § 3C1.2 double-counted the conduct | Affirmed: even if overlap existed, district court relied independently on the uncharged burglary (admitted by defendant), so any double-counting did not cause prejudice on plain-error review |
| Challenges based on Taylor and Johnson and claim that Maine burglary statute is vague/indivisible | Government: Guidelines application did not rely on ACCA residual clause; Taylor/Johnson do not aid MacArthur; collateral attack on state convictions not allowed here | MacArthur contends statute is vague/indivisible and Johnson invalidates prior-conviction use | Affirmed: claims meritless; not sentenced under ACCA; no residual-clause reliance; collateral challenge to state convictions is not permitted on this direct appeal |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (use Shepard documents to identify which alternative statutory element formed the basis of a prior conviction)
- United States v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015) (applying Descamps and discussing failure to produce Shepard documents and waiver of objection)
- United States v. Jordan, 549 F.3d 57 (1st Cir. 2008) (district court may consider post-indictment criminal conduct when assessing acceptance of responsibility)
- United States v. Fernández-Cabrera, 625 F.3d 48 (1st Cir. 2010) (unobjected-to PSR facts ordinarily reliable for sentencing)
- United States v. Jimenez, 512 F.3d 1 (1st Cir. 2007) (waiver of sentencing objections by failure to contest PSR)
- United States v. Turbides–Leonardo, 468 F.3d 34 (1st Cir. 2006) (discussion of waiver in sentencing context)
- United States v. Cintrón-Echautegui, 604 F.3d 1 (1st Cir. 2010) (drawing facts from plea colloquy, PSR, and sentencing transcript)