UNITED STATES of America, Appellee, v. Jose DELGADO, Defendant, Appellant.
No. 01-1196.
United States Court of Appeals, First Circuit.
Heard Nov. 5, 2001. Decided May 6, 2002.
51, 52, 53, 54, 55, 56, 57
Kevin P. McGrath, Assistant United States Attorney, with whom James B. Farmer, United States Attorney, and Michael D. Ricciuti, Assistant United States Attorney, were on brief for appellee.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.
This case requires us to decide whether the district court acted within its legal authority in relying upon a police report relating to a defendant‘s prior state conviction to conclude that he was a career offender and thus subject to an enhanced sentence under the federal sentencing guidelines. Concluding that the court exercised its sentencing authority properly, we affirm.
I.
On July 30, 1999, defendant-appellant Jose Delgado and a co-defendant sold crack cocaine (cocaine base) to an undercover agent of the Drug Enforcement Administration (DEA). On August 24, 1999, Delgado, with two other co-defendants, again sold cocaine base to that DEA agent. On December 8, 1999, Delgado and nine others were charged in a multi-count drug trafficking indictment. Delgado was indicted on one count of conspiracy to possess cocaine base with intent to distribute in violation of
Pursuant to a written plea agreement, Delgado pled guilty to these charges on September 6, 2000. At sentencing, the court concluded, over Delgado‘s objection, that he was a career offender and that, under the career offender guideline,
In determining Delgado‘s career offender status under
II.
The career offender guideline,
Here, Delgado—who was 23 years old at the time of the instant controlled substance offense—clearly satisfies the first two criteria under
A. The Taylor Categorical Approach
In determining whether Delgado‘s April 1999 conviction constitutes a crime of violence, we follow the categorical approach outlined in Taylor v. United States, 495 U.S. 575 (1990), and subsequent First Circuit precedent. While questions of law concerning interpretation of the sentencing guidelines are reviewed de novo, the factual conclusions of the sentencing court, which must be supported by a preponderance of the evidence, are reviewed for clear error. See United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997); United States v. Grant, 114 F.3d 323, 328 (1st Cir. 1997).
Under the Taylor approach, a sentencing court should “look only to the fact of conviction and the statutory definition of the prior offense” to determine whether a prior conviction qualifies as a predicate offense for sentencing enhancement purposes.5 Id. at 602; see also
Sometimes, however, “looking to the statutory definition alone” will not establish whether the crime underlying the prior conviction was one of violence because some statutes contain language that covers both violent and non-violent crimes. Harris, 964 F.2d at 1235. Where the statutory definition encompasses both violent and non-violent offenses, a sentencing court may look to the charging document—such as the indictment or information—and jury instructions to ascertain whether the conviction was for a violent or non-violent crime. See Taylor, 495 U.S. at 602; United States v. Shepard, 231 F.3d 56, 63 (1st Cir. 2000); United States v. Sacko, 178 F.3d 1, 3 (1st Cir. 1999); Harris, 964 F.2d at 1235.
If the charging document only incorporates the unhelpfully broad statutory language and if there is no jury charge because the conviction is based on a guilty plea, a sentencing court may appropriately look to the conduct in respect to which the defendant was charged and pled guilty, not because the court may properly be interested (in this context) in the violent or non-violent nature of that particular conduct, but because that conduct may indicate that the defendant and the government both believed that the generically violent crime ... rather than the generically non-violent crime ... was at issue.
Harris, 964 F.2d at 1236. Thus, the issue before the sentencing court is not what the defendant “did to provoke the criminal charges to which he pled guilty.” Shepard, 231 F.3d at 69. Rather, what is critical is “the meaning of the defendant‘s guilty plea“—that is, whether the defendant‘s guilty plea “constitute[s] an admission” to a crime of violence under “the preponderance of the evidence” standard. Id. at 66, 68.
In discerning the plea‘s meaning, the court may rely on “sufficiently reliable evidence independent of a fact-specific admission.” Id. at 66. Such evidence—so long as it is deemed sufficiently reliable by the district court—may include police reports. Id. at 67 (“Based on our precedents, we see no justification for an absolute bar to the consideration of [police reports] when the sentencing court must determine whether the defendant and the government both believed that the defendant was entering a guilty plea to a generically violent crime.“).
B. The Trial Court‘s Ruling on the Predicate Offense
Here, with respect to the April 1999 conviction, Delgado was initially charged in December 1998 with Home Invasion in violation of
It is well established in our precedent—and the parties do not disagree—that
And it is my determination that the amendment to a breaking and entering in the nighttime with intent to commit a felony must be interpreted in the—by looking at the entire picture, including the original criminal complaint in which this defendant was charged with knowingly entering and remaining in the dwelling place of another. And I have considered the police report. It may not be entirely reliable in all of its aspects. But with respect to where the crime was committed, I think it is entirely reliable, and I believe that the statements that are made in that report lead me to believe that the conviction of which Mr. Delgado—or to which Mr. Delgado pled guilty was a crime of violence, therefore, a second predicate, and he will be deter-
mined to be a career offender under the guideline provisions.
Delgado argues that it was error for the district court to rely on these documents—namely, the original complaint and the police report—in determining whether the April 1999 conviction was a crime of violence.
The original complaint alleging Home Invasion states that
on 12/05/98, [Delgado] did knowingly enter, or enter and remain in, the dwelling place of another, knowing or having reason to know that one or more persons were present within and: (1) did so while armed with a dangerous weapon, or (2) did use force or threaten the imminent use of force upon a person within such dwelling....
Because the amended charge to which Delgado pled guilty supercedes the original complaint, we have reservations about the appropriateness of the trial court giving the original complaint any further consideration in determining the meaning of Delgado‘s plea on the crime of violence issue. We do not have to decide that issue, however. Even assuming that the district court‘s reliance on the original complaint was improper, such error was harmless because the police report alone was sufficient to justify the district court‘s ruling that the defendant had pled guilty to a crime of violence.
The “crime of violence” determination required the district court to focus on a simple question framed by the breaking and entering charge to which Delgado pled guilty under
On 12/05/98, ... [three officers] were dispatched to the area of 103 Spruce Street for a 911 call of a[n] unknown problem. I arrived at the scene and spoke with ... victim ... Ruby Cartagena. Cartagena [said] that she was babysitting for her sister a[n] Esmeralda Cartagena at the address of 16 Temple Street. Cartagena stated that ... while she was in the apartment babysitting she received a phone call and once she picked up the phone who ever was on the other end hung up the phone.... Cartagena then went into one of the bedrooms and while in the bedroom she heard the front door open she proceeded to the front door and once she entered the living room all of a sudden a cloth was put over her face and someone grabbed Cartagena and told her not to yell or they [would] hurt her.... Car[t]agena then observed the suspect #2 proceed to where the kitchen was and suspect #3 go into the bedroom where the children were, su[s]pect #1 stayed with Cartagena holding her and after approximately a minute or two suspect #1 placed Cartagena into the bathroom and shut the door on her while still holding the bathroom door shut. Cartagena then heard the suspects leave the [apartment] and she ran out of the bathroom and proceeded to the window. Cartagena then observed a grey [motor vehicle] leaving the front of the house of 16 Temple Street.
Other than a general objection to reliance on the police report, Delgado offered nothing about the circumstances of the plea hearing or the creation of the police report to challenge the sentencing court‘s conclusion that Delgado and the government both believed that he was entering a guilty plea to the “generically violent crime” of breaking and entering a dwelling.8 Harris, 964 F.2d at 1236. In the absence of such a proffer, we conclude that there was no clear error in the district court‘s finding that, by a preponderance of the evidence, Delgado pled guilty to the amended charge of breaking and entering a dwelling with intent to commit a felony. See Damon, 127 F.3d at 141 (holding that “factual conclusions of sentencing court, which must be supported by a preponderance of the evidence, are reviewed for clear error“).
Delgado gains nothing by arguing that the district court could not rely on an uncertified copy of the police report. Without minimizing the value of providing certified copies of police reports at a sentencing hearing, we note first that Delgado did not object specifically to the court‘s reliance on an uncertified document. Moreover, certifying a copy of a police report simply attests that the report is a true and accurate copy of the original. Delgado never challenged the accuracy of the copy included in the Pre-Sentence Report, either in the district court or on appeal.
Finally, to the extent that Delgado challenges the police report on hearsay grounds, we reject that argument out of hand. It is well-established that a sentencing court “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”
III.
Delgado claims that the district court erred when it failed to depart downward sua sponte on account of his alleged post-offense rehabilitation and the conditions of his pre-sentence confinement. However, Delgado explicitly conceded in his plea agreement that there were no grounds for a departure: “Defendant agree[s] that there is no basis for a de-
Even in the absence of waiver, Delgado‘s failure to present this claim below constitutes a procedural default curtailing appellate review. See United States v. Piper, 35 F.3d 611, 620 n. 6 (1st Cir. 1994) (“It is settled that, in respect to criminal sentencing, as in other contexts, arguments not squarely presented to the sentencing court cannot debut as of right in an appellate venue.“). Thus, we decline to consider Delgado‘s departure claim.
Affirmed.
SELYA, Circuit Judge (concurring).
In virtually all circumstances, newly-constituted panels within a circuit are bound by the holdings of prior panels. See, e.g., United States v. Chhien, 266 F.3d 1, 11 (1st Cir. 2001); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991). Given the force of this rule and its applicability here, I acknowledge that United States v. Shepard, 231 F.3d 56, 66 (1st Cir. 2000), dictates the outcome of this appeal. I write separately, however, because I believe that Shepard, and cases like it, take impermissible liberties with the narrow exception envisioned in Taylor v. United States, 495 U.S. 575, 602 (1990), and, thus, undermine the integrity of the categorical approach favored by the Supreme Court for cases in which predicate offenses are used to enhance defendants’ sentences. Were we writing on a pristine page, I would hold particularized inquiry of the type and kind approved in the majority opinion (inquiry which ranges well past the charging papers, jury instructions, and other formal accouterments of the predicate offense to a copy of a police report compiled by an investigating officer) to be beyond the limits contemplated by the Taylor Court. The page, however, is not pristine, and so I reluctantly concur in the judgment of the panel.
Notes
Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does break, burn, blow up or otherwise injures or destroys a safe, vault or other depository of money, bonds or other valuables in any building, vehicle or place, with intent to commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony, shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years.