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USCA1 Opinion
October 19, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1436
ALLEN CAGGIANO,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Allen Caggiano, on brief pro se.
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A. John Pappalardo, United State Attorney, and Stephen A.
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Higginson, Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. Allen Caggiano seeks review of a district
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court judgment dismissing his motion for federal habeas
corpus relief under 28 U.S.C. 2255. Caggiano was convicted
of several violations of federal firearms laws under 18
U.S.C. 922(a),(g),(h) and 18 U.S.C. App. II, 1202(a).
His sentence was enhanced under the Armed Career Criminal Act
("Act"), 18 U.S.C. 924(e). The Act imposes a mandatory
minimum prison sentence of fifteen years on persons who
violate section 922(g) of the Act, if they have three
previous convictions for a "violent felony." Caggiano
appealed his conviction to this court, alleging ineffective
assistance of counsel because his trial counsel had withdrawn
several motions to suppress evidence seized during allegedly
unlawful searches. We affirmed his conviction in United
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States v. Caggiano, 899 F.2d 99 (1st Cir. 1990), finding that
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the searches had been validly conducted pursuant to lawful
warrants. Caggiano then brought his section 2255 motion,
alleging various constitutional infirmities in his
indictment, conviction and sentencing. The district court
dismissed the motion. We now affirm.
Much of Caggiano's argument on appeal is based on a new
legal theory that was not presented to the district court --
that the relevant provisions of the Act were not in effect at
the time Caggiano was indicted, tried and sentenced, so that
his conviction and sentencing violated the ex post facto
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clause of the United States Constitution. Caggiano also
claims that count three of his indictment was defective
because based on false testimony that he had been convicted
of three predicate felony convictions for "robbery or
burglary." 1 It is well established that an appellate court
does not consider arguments not presented in the first
instance to the trial court. Accordingly, we do not consider
those arguments, nor any other arguments that Caggiano raises
for the first time on appeal. United States v. Valencia-
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Copete, 792 F.2d 4, 5 (1st Cir. 1986); Porcaro v. United
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States, 784 F.2d 38, 39 (1st Cir. 1986).
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We also note that Caggiano has not appealed the district
court's decision on counts one through five of his original
section 2255 motion.2 He has appealed only the district
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1. In his brief to the district court Caggiano alleged that
a government agent falsely testified that "Allan J. Caggiano"
had three or more convictions for robbery or burglary,
although he had none. Brief in Support of Defendant-
Appellant's Motion Under 28 U.S.C. 2255, at 43. However,
Caggiano was arguing there that the "Allan J. Caggiano" named
in the indictment was his son and that his son had no
convictions. He was not arguing that he had not committed
the crimes of robbery and burglary, as he does here. Indeed,
in his brief Caggiano conceded that he had committed the
crimes of robbery or burglary, but argued that they were not
valid predicate felonies because he had committed them as a
juvenile. The district court conclusively demonstrated the
invalidity of Caggiano's argument on that score, and Caggiano
has not appealed that determination.
2. The issues raised in the original motion which Caggiano
has not appealed are: that his indictment, conviction and
sentence were invalid because based on convictions for acts
committed as a juvenile, that his trial was not fair because
it was based on false and malicious testimony and on evidence
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court's decision relating to count one, as amended.3 After
originally filing his motion, Caggiano argued that a recent
Supreme Court case precluded the government's reliance on an
attempted breaking and entering conviction to enhance
Caggiano's sentence. The court amended count one of the
motion because the case had suggested that an attempted
breaking and entering would not qualify as a "burglary" under
the Act. See Taylor v. United States, 495 U.S. 575, 598
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(1990) ("burglary" as a predicate violent felony for sentence
enhancement meant "generic" burglary in which there was an
actual entry into a building). Therefore, we confine our
discussion to the issue whether the convictions submitted by
the government were for valid predicate offenses and to
Caggiano's other claims of error in the district court's
decision.
Caggiano's arguments are the following: his sentence
was enhanced without having had three violent felony
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that had been tampered with, that the evidence submitted at
trial had been obtained through unlawful searches, that his
trial attorney had rendered ineffective assistance of
counsel, and that his indictment had been procured through
prosecutorial misconduct and an unlawful amendment of the
indictment.
3. We read his briefs to appeal both the decision of
November 1, 1991, in which the district court held that an
attempted breaking and entering in the nighttime is a
"violent felony," and the decision of March 11, 1992, in
which the court held that arson, assault and battery,
breaking and entering in the nighttime, and attempted armed
robbery were "violent felonies."
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convictions as defined in 18 U.S.C. 924(e); he was not
given an evidentiary hearing; the district court improperly
had the government file certificates of conviction for
felonies not presented to the grand jury or sentencing court;
the district court improperly ordered Caggiano either to file
an affidavit attesting that he was not the person named on
the certificates of conviction, or to face dismissal of his
motion; and he was deprived of effective assistance of
counsel when advised by counsel to stipulate to having had
two violent felony convictions.
The central substantive issue to be resolved is whether
Caggiano's previous convictions were violent felonies under
the Act. In relevant part, the Act defines a violent felony
to be:
any crime punishable by imprisonment for a term
exceeding one year, . . . that (i) has as an
element the use, attempted use, or threatened use
of physical force against the person of another; or
(ii) is burglary, arson, . . . or otherwise
involves conduct that presents a serious potential
risk of physical injury to another . . . .
18 U.S.C. 924(e)(2)(B).4 The term "crime punishable by
imprisonment for a term exceeding one year" excludes "any
State offense classified by the laws of the State as a
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4. We cite here the version of the Act under which Caggiano
was convicted and sentenced. Although we have declined to
consider the ex post facto issue raised by Caggiano on
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appeal, we note that, contrary to Caggiano's assertion, the
Act had become effective before the search exposing
Caggiano's unlawful possession of firearms took place.
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misdemeanor and punishable by a term of imprisonment of two
years or less." Id. 921(a)(20)(B).
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In affirming Caggiano's sentence enhancement, the
district court relied on four previous convictions, one each
for arson, assault and battery, breaking and entering in the
nighttime with intent to commit larceny and larceny, and
attempted armed robbery. The court found that each of those
offenses carried sentences of at least two and one-half years
under Massachusetts law and was a violent felony under the
Act. In addition, the court found that attempted breaking
and entering, on which Caggiano had also been convicted, was
a violent felony. Caggiano does not dispute that his
convictions for arson and attempted armed robbery were valid
predicate offenses. He denies only that his assault and
battery, breaking and entering and attempted breaking and
entering convictions were predicate offenses under the Act.
First, Caggiano acknowledges that a complaint against
him for assault and battery was issued, but claims that he
was not convicted of the charge. The record contradicts his
assertion, however. Certified court documents show that
Caggiano pled guilty to the assault and battery at issue.
Under the Act, the law of the jurisdiction in which
conviction proceedings were held determines what a
"conviction" is. Id. 921(a)(20). Massachusetts law makes
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clear that criminal defendants are considered "convicted" if
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they admit the truth of the charge against them by pleading
guilty. Mass. Gen. Laws c. 263 6. Therefore, Caggiano was
convicted of assault and battery, and the court properly
relied on that conviction as a prior violent felony.5
Second, Caggiano claims that attempted breaking and
entering with intent to commit larceny and breaking and
entering with intent to commit larceny are not violent
felonies because larceny is a misdemeanor under state law.6
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5. Assault and battery unquestionably comes within the
section 924(e)(2)(B)(i) definition of a violent felony since
one element of the crime is the use of physical force against
the person of another. Although Caggiano has not raised this
issue, we note, however, that assault and battery is a
misdemeanor in Massachusetts. See Mass. Gen. Laws c. 274 1
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(a crime punishable by imprisonment in the state prison is a
felony); c. 265 13A (assault and battery is punishable by
imprisonment for two and one-half years in a house of
correction). Nevertheless, because of the length of the
period of confinement imposed, assault and battery would be a
"violent felony" under the Act. Crimes that are not
considered to be violent felonies include only state offenses
both "classified by the laws of the State as a misdemeanor
and punishable by a term of imprisonment of two years or
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less." 18 U.S.C. 921(a)(20)(B) (emphasis added). Thus, we
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conclude that misdemeanors for which state laws provide
imprisonment for more than two years are valid predicate
offenses under the Act. Since assault and battery is
punishable by imprisonment for over two years in
Massachusetts, it qualifies as a violent felony.
6. The government has argued that we should not consider
Caggiano's misdemeanor argument because Caggiano did not make
it to the district court. Strictly speaking, the government
is correct. However, we have considered Caggiano's argument
since it responds to the district court's ruling that
Caggiano's breaking and entering conviction was a violent
felony. In making that ruling, the court stated that
Caggiano's conviction was a violent felony within the meaning
of "18 U.S.C. 924(e)(2)(B) and 921(a)(20) (assuming that
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921(a)(20) applies to 924(e))." (Emphasis added.)
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Section 921(a)(20) excludes from the definition of violent
-7-
This argument is based on a mistaken interpretation of the
crimes for which Caggiano was convicted. Although certain
larcenies are misdemeanors under state law, see Mass. Gen.
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Laws c. 266, 30; c. 274, 1, Caggiano was not convicted of
attempted larceny or larceny alone, but of attempted and
actual breaking and entering a building in the nighttime with
intent to commit larceny. See Exhibits D, E, and F,
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attached to Government's Reply to Court Order Dated November
1, 1991.7 Under Massachusetts law, any larceny in a
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felony state offenses classified by state law as
"misdemeanors" and punishable by imprisonment of two years or
less. The district court having raised the misdemeanor issue
by its reference to section 921, Caggiano is justified in
challenging the breaking and entering conviction on that
basis, and therefore we also permit him to challenge the
court's earlier holding respecting the attempted breaking and
entering convictions on that basis, too.
Although the district court appears to have had some
doubt that section 921(a)(20) applies, we find that it does.
Section 924(e) states that a "violent felony" is "any crime
punishable by imprisonment for a term exceeding one year"
that meets certain other criteria. Section 921(a)(20)(B)
defines the term "crime punishable by imprisonment for a term
exceeding one year" for Chapter 44 (Firearms) of the United
States Code. Section 924(e) is in Chapter 44. Furthermore,
both section 921(a)(20) and section 924(e) had become
effective by the time Caggiano was discovered to be in
unlawful possession of firearms.
7. The record does not contain the original certified copy
of Caggiano's conviction for breaking and entering (Exhibit
D), though it is clear from the record that the government
submitted it to the court and that the court reviewed it.
Since the record contains a copy of Caggiano's indictment for
breaking and entering and Caggiano has not denied the
conviction, we see no reason to discount it. In any event,
there are at least three other convictions for which original
certified copies exist in the record and which support
Caggiano's sentence enhancement.
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building is a felony, regardless whether anything was stolen
at all or what the value was of anything taken. See Mass.
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Gen. Laws c. 266, 20 (whoever steals in a building shall be
punished by imprisonment in the state prison); c. 274, 1 (a
crime punishable by imprisonment in a state prison is a
felony); Commonwealth v. Ronchetti, 333 Mass. 78, 81-82
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(1955) (the intent to steal is inferred from the breaking and
entering itself; the Commonwealth was not required to prove
that the defendant intended a larceny which amounted to a
felony since, under Mass. Gen. Laws c. 266, 20, larceny in
a building is a felony). Thus, the fact that Caggiano was
charged with an "intent to commit larceny" in these
convictions does not convert these felonies to
misdemeanors.8 Consequently, the district court correctly
included Caggiano's convictions for attempted breaking and
entering and for breaking and entering as predicate offenses.
See also United States v. Payne, 966 F.2d 4, 8 (1st Cir.
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1992) (attempted daytime breaking and entering conviction was
a violent felony under the Act); United States v. Patterson,
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8. Under Massachusetts law, both an attempted and actual
breaking and entering of a building in the nighttime are
felonies under the only statutory section that applies to
Caggiano's convictions. See Mass. Gen. Laws c. 274, 1 (a
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crime punishable by imprisonment in state prison is a
felony); c. 266, 16 (breaking and entering a building in
the nighttime is punishable by up to twenty years in state
prison); c. 274, 6 (an attempt to commit a crime punishable
in state prison for five years or more is itself punishable
by imprisonment in state prison for up to five years).
-9-
882 F.2d 595 (1st Cir. 1989), cert. denied, 493 U.S. 1027
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(1990) (nighttime breaking and entering conviction was a
violent felony under the Act).
In sum, the government successfully showed that Caggiano
had more than the three previous convictions required by the
Act for sentence enhancement. Caggiano's claim that the
court could not permit the government to submit the
additional certificates of conviction, or require him to
submit an affidavit denying that he was the person convicted,
has no merit. Rule 7(a) of the rules governing section 2255
proceedings provides that the judge may direct the parties to
expand the record "by the inclusion of additional materials
relevant to the determination of the merits of the motion."
Certainly, the certificates of conviction were relevant to
determining the merits of Caggiano's section 2255 motion
averring that he did not have the requisite three predicate
offenses, especially since Caggiano had reneged on his
stipulation at the sentencing hearing that he had three such
offenses. Subsection (b) of the rule further states that
"[a]ffidavits may be submitted and considered as a part of
the record," and subsection (c) requires that a party "be
afforded an opportunity to admit or deny" materials added to
the record. Thus, the court's direction that Caggiano submit
an affidavit denying the certified convictions submitted by
the government was fully authorized by Rule 7.
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Caggiano's claim that he could not submit affidavits
denying the convictions because the government did not
provide him with copies of the convictions in either April or
December 1991 is contradicted by the record, at least with
respect to the copies provided in April 1991. See
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Petitioner's Responce to Governments Memorandum in Responce
to Court Order of April 1, 1991 [sic], passim, and Exhibits
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A12-A16 (referring to the copies of the convictions and
reproducing them as exhibits). Moreoever, although we have
no way of determining conclusively that Caggiano actually
received copies of all of the certified convictions submitted
by the government in December 1991, the record suggests that
he did. In his Appendix submitted to this court are copies
of two of the certified convictions submitted by the
government. See Record of Appendix/Exhibits for
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Petitioner/Appellant, at A-11, A-14. Under these
circumstances, the government's contention that it sent
Caggiano copies of the original certified convictions is the
more credible. In any event, the uncertified convictions,
which were in Caggiano's possession, gave him ample details
about the charges underlying the alleged convictions, so that
he should have been able to prepare an affidavit denying that
he was the person named in the charge. He failed to do so,
and the court's dismissal of his motion for failure to submit
the affidavit was correct.
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Nor are we swayed by Caggiano's further argument that
the court could not ask the government to submit proof of
additional convictions since that evidence had not been
proffered to the grand jury in connection with Caggiano's
indictment under sections 922(g) and 924(e) of the Act.
First, Caggiano's argument appears to be based on certain
factual misconceptions, e.g., that the government was
required to show three previous "robberies" or "burglaries",
and not three previous "violent felonies." His misconception
appears to be based on his belief that the version of section
924(e) under which he was indicted had not yet become
effective at the time of his indictment, but that an earlier
version requiring as predicate offenses robberies and
burglaries, rather than violent felonies, was effective. As
we have already said, we will not consider arguments on
appeal that were not first presented to the district court.
See also, supra, footnote 4. Second, we assume for
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argument's sake that Caggiano is correct that, for sentencing
enhancement purposes, the government was confined to the
evidence of convictions submitted to the grand jury for
indictment. Nevertheless, the predicate convictions, to
which Caggiano contends the government was confined, were all
for offenses which the statute clearly considers to be
violent felonies, or which we have found to be violent
felonies, i.e., attempted breaking and entering with intent
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to commit larceny, breaking and entering with intent to
commit larceny, attempted armed robbery and arson.
Therefore, assuming that the district court erred in asking
the government to submit proof of additional convictions, its
errorwas harmlessand doesnot providea valid groundfor appeal.
Caggiano also contends that he was deprived of effective
assistance of counsel when advised by trial counsel to
stipulate to having had two violent felony convictions.9
The convictions to which he refers are the ones for assault
and battery and attempted breaking and entering discussed
above. We have already found that those convictions were for
violent felonies that would justify sentence enhancement
under the Act. Accordingly, the advice by trial counsel to
stipulate to those convictions was sound.
Finally, Caggiano faults the district court for not
granting him an evidentiary hearing.10 As the court
suggested in its November 1991 order, an evidentiary hearing
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9. Because we can readily dispose of Caggiano's claim of
ineffective assistance of counsel on the merits, we do not
consider whether he is barred from raising the issue in his
section 2255 petition because he failed to raise it in his
direct appeal, in which he had alleged ineffective assistance
of counsel on different grounds.
10. The government argues that Caggiano did not request a
hearing. Although Caggiano's section 2255 motion itself made
no request for a hearing, his reply brief to the government's
brief on his motion expressly requested a hearing. See
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Defendant-Appellant's Responce [sic] to Government's Answer
to Defendant's Motion to Vacate, Set Aside or Correct
Sentence, at 23.
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might have been necessary if Caggiano had disputed that the
convictions were his. Caggiano failed to do so, and
consequently no material fact is left to be resolved. Hence,
a hearing was not required. See United States v. DiCarlo,
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575 F.2d 952, 954 (1st Cir. 1978) (a hearing is not required
if a section 2255 motion is conclusively refuted as to the
alleged facts by the files and record); 28 U.S.C. 2255 (a
hearing on a section 2255 motion is not granted if the motion
and the files and records of the case conclusively show that
the petitioner is entitled to no relief).
The district court judgment dismissing Caggiano's
section 2255 motion is affirmed.
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Document Info
Docket Number： 92-1436
Filed Date： 10/19/1992
Precedential Status： Precedential
Modified Date： 3/3/2016