UNITED STATES of America, Appellee, v. Ira W. DAMON, III, Defendant, Appellant.
No. 97-1032.
United States Court of Appeals, First Circuit.
Heard Aug. 1, 1997. Decided Oct. 6, 1997.
127 F.3d 139
Jeffrey Silverstein, with whom Billings & Silverstein was on brief, for defendant, appellant.
Before LYNCH, Circuit Judge, HILL * and GIBSON,** Senior Circuit Judges.
LYNCH, Circuit Judge.
Under the U.S. Sentencing Guidelines, punishment for an offense is, at times, increased when the defendant was previously convicted of unrelated crimes. This case presents serious issues of both substance and procedure in this “enhancement” process. The substantive issue is whether the crime of aggravated criminal mischief under state law is categorically a “crime of violence” under
We hold, under Supreme Court precedent, that it was error for the district court to look beyond the categorical nature of the crime, which was revealed in the state charging document. Thus the district court here could not inquire further to discover the reality of the defendant‘s prior crime as revealed in the Presentence Investigative Report: that the defendant attempted to set fire to his house to collect insurance. Such acts certainly would be a crime of violence, if that information could properly have been considered by the district court. Nevertheless, the decision of the Supreme Court in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990), and the decisions of the U.S. Sentencing Commission embodied in amendments to
I. Background
Ira Damon was stopped while driving his car on February 28, 1996 by officer Brent Beaulieu of the Newport, Maine police. Beaulieu patted-down Damon and found pistol and shotgun ammunition in Damon‘s pockets. Damon‘s car held a shotgun, a pistol, two rifles, and a loaded clip of pistol ammunition.
Damon pled guilty to the federal charge of being a felon in possession of a firearm, in violation of
Damon has been afoul of the law before. We go through the sentencing calculations
* Hon. James C. Hill of the Eleventh Circuit, sitting by designation.
** Hon. John R. Gibson of the Eighth Circuit, sitting by designation.
Because Damon was under a “criminal justice sentence” at the time of the offense, the federal sentencing judge added two criminal history points under
The sentencing court determined that the offense level for Damon‘s crime was twentytwo, by setting the base offense level at twenty under
In this appeal, Damon primarily argues that his prior conviction for criminal mischief should not have been classified as a “crime of violence,” that the court should not have awarded him additional criminal history points for related offenses, and that the court erred in determining that he was under a criminal justice sentence at the time of his arrest. We conclude that Damon‘s first argument has merit, unlike the second and third.
II. The Standard of Review
Questions of law concerning interpretation of the Guidelines are reviewed de novo, and the factual conclusions of the sentencing court, which must be supported by a preponderance of the evidence, are reviewed for clear error. United States v. Grant, 114 F.3d 323, 328 (1st Cir.1997).
III. The “Crime of Violence” Determination
Because it classified Damon‘s prior conviction for aggravated criminal mischief as a crime of violence, the sentencing court determined that the base offense level was 20 under
The Guidelines,
The term “crime of violence” means any offense under federal or state law punishable by imprisonment for a term exceeding one year that—
(i) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Under Taylor, whether a predicate offense qualifies as a crime of violence requires a “categorical” examination of the statutory crime. Taylor considered whether the defendant‘s predicate offenses were “burglary” as defined in
Taylor noted that in some situations the statute of conviction may include elements beyond those of a generic burglary (e.g., entry into places other than buildings). Id. at 599-600, 110 S.Ct. at 2158-59. To address that issue, and other problems of interpretation of
After Taylor, this court‘s analysis of predicate offenses has followed this categorical approach. See United States v. Meader, 118 F.3d 876, 881-83 (1st Cir.1997) (“[T]he standard approach for determining whether a particular crime fits within the ‘crime of violence’ rubric is a generic one, in which inquiry is restricted to the statutory definitions of prior offenses, without regard to the particular facts underlying them.“) (citations omitted); United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir.1993) (“[R]ather than examining the actual circumstances underlying the earlier conviction, we examine only the statutory formulation of the crime charged to see if that crime is a crime of violence....“).
The state statute, defining aggravated criminal mischief under
1. A person is guilty of aggravated criminal mischief if that person intentionally, knowingly or recklessly:
A. Damages or destroys property of another in an amount exceeding $2,000 in value, having no reasonable ground to believe that the person has a right to do so;
B. Damages or destroys property in an amount exceeding $2,000 in value, to enable any person to collect insurance proceeds for the loss caused;
C. Damages, destroys or tampers with the property of a law enforcement agency, fire department or supplier of gas, electric, steam, water, transportation, sanitation or communication services to the public, having no reasonable ground to believe that the person has a right to do so, and thereby causes a substantial interruption or impairment of service rendered to the public; or
D. Damages, destroys or tampers with property of another and thereby recklessly endangers human life.
This state statute, on its face, covers many types of activities, some actually or potentially violent, depending on the subsection involved, some not. Through its subsections,
We turn to the crime with which Damon was charged. It is clear that he was not charged under subsection D, which necessarily involves harm to others, but rather under subsection B, which does not. Damon was charged in an information which recited:
That on or about January 8, 1994, in the town of N. Anson, County of Somerset and State of Maine, Ira Damon III did intentionally, knowingly or recklessly damage or destroy property in an amount exceeding $2,000.00 in value, to wit, his own house, in order to enable himself to collect insurance proceeds for the loss caused.
The inquiry is whether the elements of subsection B fit the definition of a crime of violence under
Damon‘s prior conviction for aggravated criminal mischief qualifies as a crime of violence if and only if a serious potential risk of physical injury to another is a “normal, usual, or customary concomitant” of the predicate offense of aggravated criminal mischief as set forth in
The government vociferously argues that causing damage to a house of $2,000 or more in order to collect insurance proceeds normally involves “a serious potential risk of physical injury to another.” We think not. We note that arson, which does pose a great risk to fire department personnel and others, is a separate crime and that simply causing damage to property, including a house, does not require the damage be done by arson. There are many easy ways to cause $2,000 in property4 damage which do not risk physical injury to other people. Exposing the interior of a house to the elements by opening windows or doors could cause such damage. Leaving a few windows open on a frigid night or, to give a New England example, during a Nor‘easter, will readily lead to such damage to a house. Furthermore, it is more typically true that people defrauding insurance companies by damaging property will not want other persons to be present who could give witness to the misdeeds. And so, ironically, the intent to defraud the insurer reduces any potential risk of harm to others.
This contrasts markedly with the risks associated with the typical burglary of a dwelling. Burglary has “an inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” Taylor, 495 U.S. at 588, 110 S.Ct. at 2153.
Examining just the statutory language and the charging document,5 we conclude that the
The government nonetheless argues that the inquiry should not stop there, Taylor notwithstanding. At the government‘s insistence, and relying on this court‘s 1992 decision in United States v. Harris, 964 F.2d 1234 (1st Cir.1992), the district court engaged in further inquiry. It turned to the PSI and learned that Damon had attempted to “sell his house to the insurance company” (as this activity is commonly described)6 by burning it. The district court sensibly concluded that this was the equivalent of arson, and that, under explicit mandate of the Guidelines and our precedent, arson is undeniably a crime of violence, not the least of which for the threat it poses to firefighters. See United States v. Mitchell, 23 F.3d 1 (1st Cir.1994). Accordingly, the court concluded that the actual aggravated criminal mischief here was a crime of violence and so increased Damon‘s sentence.
In light of Taylor and changing definitions from the Sentencing Commission, we think the district court was precluded from looking so deeply into the nature of the predicate offense. That the court thought it permissible to do so under our decision in Harris was not unreasonable, but as we now clarify, was wrong.
In Harris and in United States v. Bregnard, 951 F.2d 457 (1st Cir.1991), this court held that it was proper for the sentencing court, in determining whether a prior guilty plea was to a crime of violence where the statute typically included both generally violent and non-violent crimes, to examine the description in the offenders’ uncontested presentencing reports of the prior indictment and plea. In both Harris and Bregnard, the defendant had been previously convicted of assault and battery. Because the state crime of assault and battery, Mass. Gen. Laws ch. 265 § 13A, encompassed both violent and non-violent conduct, this court said that it was proper for the sentencing court to determine of which variety of the offense the defendant had been convicted, and to look to the uncontested portions of the presentencing report to do so. Harris at 1236; Bregnard at 459-60.
We noted in Harris that Taylor establishes that “sometimes, looking to the ‘statutory definition’ alone will not establish whether or not the prior offense was a ‘violent felony,’ for some statutes contain language in a single section that covers several separate crimes, some of which are ‘violent’ and some of which are not.” Harris, 964 F.2d at 1235.
Harris stated that the proper inquiry under the categorical approach does not concern what the defendant actually did, but rather examines whether the defendant was convicted of a “generically violent crime” or a “generically non-violent crime.” Id. at 1236. Harris held that when a trial court is faced with a past conviction for violating a single statute that covers both a violent and a nonviolent crime it may decide which crime was involved by looking to an uncontested presentencing report. The Harris court noted the availability of other sources of information, such as the indictment or guilty plea, to make this determination. Id. at 1236 (“A sentencing court, faced with a prior conviction under a statute that makes it unlawful to break into a ‘building’ or into a ‘vehicle,’ might simply read the indictment or the guilty plea ... to see if it says ‘building’ or ‘vehicle.‘“).
Under Taylor, when the predicate statutory crime has been determined to be typically non-violent, the inquiry ends. In this case, the charging document makes it clear that Damon was convicted under
Our society has decided to enhance the punishment for those who have a history of crimes of violence, and it may appear a strange system which reverses a sentencing judge for determining whether the defendant‘s past criminal actions were in fact violent. Such a result is compelled by Taylor8 and by the Guidelines. We pause to explain some of the reasons, as we understand them, which motivated the choice to prefer the categorical approach.
The first reason, as Taylor observed, is that Congress intended that the Guidelines take a categorical approach to sentencing. The language of
Second, using a categorical approach makes more sense administratively than conducting a fact-intensive inquiry. The categorical approach usually requires the sentencing court to look only to a few readily available sources of undisputed information. The sentencing court is thus spared from mini-trials on prior offenses, which have already been once adjudicated, when deciding the appropriate punishment. See Taylor,
Third, this approach honors the choice of the state in its decisions concerning which crimes to prosecute and how plea bargains should be negotiated. It respects the autonomy of the state system. To give an example, the state here did not charge Damon with arson, clearly a crime of violence. It charged him with aggravated criminal mischief. To the extent that enhancement provisions are “intended to supplement the States’ law enforcement efforts against ‘career’ criminals,” Taylor, 495 U.S. at 581, 110 S.Ct. at 2149, it is more fundamentally fair to act in ways “consistent with the prerogatives of the States in defining their own offenses.” Id. at 582, 110 S.Ct. at 2150 (quoting from the Senate Report for the Armed Career Criminal Act of 1982).
Fourth, the categorical approach is more or less evenhanded in its imperfections. In this case and in Doe, the categorical approach has resulted in a less severe sentence than would result were sentencing court permitted to examine the actual circumstances of the predicate offense. In other cases, however, the sentence could be harsher than if the actual conduct could be examined. For example, in United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) this court held that the Massachusetts crime of assault and battery on a police officer is, categorically, a crime of violence. Despite the fact that the crime could theoretically include both violent and non-violent variants, the usual case was violent. Id. at 779-80. Thus a defendant who actually did commit the offense in a non-violent manner would be subjected to a harsher sentence.9
Finally, we are dealing with sentencing enhancements. Defendants have already been punished once for their earlier offenses. Those who do not receive enhancements they might if the court were allowed to examine the actual conduct underlying the predicate offense have not escaped punishment for these prior bad acts.
The choice of a categorical procedure for the evaluation of predicate offenses could easily be made differently. But arguments in favor of a different process are better addressed elsewhere. We are bound by Taylor and the Guidelines.
IV. The Criminal History Calculation
Damon argues that the sentencing court improperly tallied criminal history points for related offenses and that he was not under a criminal justice sentence at the time of the instant offense. These arguments are without merit.
Damon claims that his two prior state law convictions for aggravated criminal mischief and criminal threatening were “related” within the meaning of U.S.S.G. and so must be treated as a single sentence under
would not necessarily affect the outcome of this case.
at least in respect to offenses that are temporally and factually distinct (that is, offenses which occurred on different dates and which did not arise out of the same course of conduct), charges based thereon should not be regarded as having been consolidated (and, therefore, “related“) unless the original sentencing court entered an actual order of consolidation or there is some other persuasive indicium of formal consolidation apparent on the face of the record which is sufficient to indicate that the offenses have some relationship to one another beyond the sheer fortuity that sentence was imposed by the same judge at the same time.
There was no formal order of consolidation of these two offenses, and we conclude that they are unrelated for sentencing purposes.
Damon also argues that the district court should not have assessed two criminal history points for his conviction for operating a motor vehicle as an habitual offender. He claims that this conviction is related to the instant offense, as he was stopped with the guns in his car. The mere fortuity that one offense led to the discovery of a second crime is not sufficient to make the offenses “related” within the meaning of the Guidelines. See United States v. Troncoso, 23 F.3d 612, 616 (1st Cir.1994) (drug selling charges unrelated to violation of federal immigration laws, even though former led to discovery of latter), cert. denied, 513 U.S. 1116, 115 S.Ct. 912, 130 L.Ed.2d 793 (1995); United States v. Beddow, 957 F.2d 1330, 1338-39 (6th Cir.1992) (conviction for carrying a concealed weapon not part of federal money laundering offense, even though gun was found at time of arrest for money laundering); United States v. Banashefski, 928 F.2d 349, 353 (10th Cir.1991) (state conviction for possession of a stolen car severable from federal offense of being a felon in possession, even though firearm was found in car‘s trunk at time of arrest on stolen vehicle charge).
Damon next argues that he was not under a “criminal justice sentence” at the time he committed the instant offense, February 28, 1996, because while the Maine Superior Court imposed a sentence for his aggravated criminal mischief and criminal threatening offenses on February 22, 1996, the court stayed execution of these sentences until March 21, 1996.
There is no question that Damon was required to surrender to prison to serve his sentence at the time he was found with firearms in his possession. The application note for
Damon‘s offenses of negotiating worthless instruments occurred over a period of eight days in October of 1989. Damon was sentenced for these three offenses on January 3, 1990, on May 14, 1990, and on June 11, 1991. Sentencing for the latter two crimes occurred in a different court than for the first offense. Different sentences were imposed for each offense. We find none of the factors necessary to implicate a common scheme or plan present in the record of this case. See United States v. Correa, 114 F.3d 314, 317 (1st Cir.1997); United States v. Patasnik, 89 F.3d 63, 74 (2nd Cir.1996); United States v. Letterlough, 63 F.3d 332, 336 (4th Cir.1995), cert. denied, 516 U.S. 955, 116 S.Ct. 406, 133 L.Ed.2d 324 (1995); United States v. Yeo, 936 F.2d 628, 629 (1st Cir.1991).
V. Conclusion
Under the categorical approach, sentencing courts must determine, first, which statutory offense the defendant was convicted of committing and, second, whether this type of offense is usually violent. When the statute of conviction for a predicate offense is broad enough to cover both generic violent crimes and generic non-violent
The violent crime enhancement to Damon‘s sentence is vacated and the case is remanded to the district court for resentencing in accordance with this opinion.
HILL, Senior Circuit Judge, concurring.
I concur in the judgment and in all of the opinion of Judge Lynch except that portion commencing on page 15, remarking upon the fact that the law forbids a sentencing judge from ascertaining the existence, vel non, of pertinent facts and shouldering the burden “to explain why.”
The reason for my concurrence is that Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) and decisions of this court, interpreting Taylor, upon which the opinion relies, require this result. Being bound, I do not dissent from our requiring a sentencing judge “to ignore the reality of the prior offense in determining whether that offense is a crime of violence.” We import instructions—“Don‘t ask. Don‘t tell.”