United States v. MacArthur , 805 F.3d 385 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1303
UNITED STATES OF AMERICA,
Appellee,
v.
LAUREN MACARTHUR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Lenore Glaser for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
November 9, 2015
KAYATTA, Circuit Judge. Defendant Lauren MacArthur
("MacArthur") entered a straight guilty plea to: (1) illegal
possession of firearms after having been previously convicted of
a crime punishable by imprisonment for a term of more than one
year; and (2) illegal possession of firearms that he knew or had
reasonable cause to believe were stolen. The district court
sentenced him to concurrent terms of imprisonment of 216 months
for count one and 120 months for count two.
MacArthur now challenges the district court's
calculation of the applicable sentencing ranges under the United
States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"),
which the district court considered in determining the length of
MacArthur's sentence. He claims that the district court erred
three times: (1) by treating two prior burglary convictions as
crimes of violence so as to raise his base offense level to 26
under § 2K2.1(a)(1) of the Guidelines; (2) by denying him credit
for acceptance of responsibility under § 3E1.1; and (3) by applying
an obstruction of justice enhancement under § 3C1.2.1 MacArthur
also makes several pro se supplemental claims.
For the reasons explained below, we affirm the sentence.
1 Because MacArthur was sentenced in March 2014, and in the absence
of ex post facto clause concerns, the court uses the Guidelines
Manual that became effective on November 1, 2013. See U.S.S.G.
§ 1B1.11.
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I. Facts
"Because this appeal follows a guilty plea, we draw the
facts from the change-of-plea colloquy, the presentence
investigation report (PSI Report), and the transcript of the
[sentencing] hearing." United States v. Cintrón-Echautegui, 604
F.3d 1, 2 (1st Cir. 2010).
On January 20, 2012, a Maine State trooper observed on
Interstate 95 a moving vehicle displaying a license plate that was
obscured by dirt. When the trooper activated his emergency lights,
the vehicle (which was being driven by MacArthur) sped away.
During the ensuing chase, MacArthur drove through red lights and
intersections at high rates of speed, passing other vehicles at
speeds of up to 90 miles per hour. Law enforcement eventually
slowed MacArthur by deploying a spike strip that punctured one of
his tires. MacArthur, nevertheless, pressed on, crossing into an
oncoming lane of traffic at one point and hitting a bridge
guardrail. The trooper eventually stopped MacArthur's vehicle by
ramming it off the road. Once the vehicle was stopped, MacArthur
fled on foot. Giving chase, law enforcement caught MacArthur and
placed him under arrest.
After MacArthur's arrest, local police retrieved a
firearm that had been spotted in a snowbank near the scene of the
arrest, plus a second firearm found in a riverbank near where
MacArthur's vehicle (with windows opened in the cold winter
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weather) had swerved during the chase. The firearms had been
stolen in a burglary shortly before MacArthur's arrest. Each
firearm had magazines inserted in them that would hold more than
fifteen rounds of ammunition.
MacArthur was federally indicted on May 17, 2012, and
pled guilty on November 26, 2012. On March 12, 2014, the district
court sentenced MacArthur to concurrent terms of imprisonment of
216 and 120 months.
Between indictment and sentencing for his federal
offenses, MacArthur found himself in jail on state charges. During
that imprisonment, MacArthur assaulted a corrections officer.
That assault occurred after MacArthur refused to comply with an
order to return to his cell during a lockdown and obstructed the
efforts of a corrections officer who attempted to close MacArthur's
cell door. When the corrections officer grabbed MacArthur by the
lapels and pushed him back into his cell, MacArthur began hitting
the corrections officer in the face with a closed fist. Records
from the Penobscot County Jail reflect that MacArthur had also
been involved in numerous other fights while in custody.2
2This was not the first time that MacArthur assaulted a corrections
officer while incarcerated. Before the issuance of the federal
charges in this case, MacArthur assaulted two corrections officers
of the Penobscot County Sheriff's Department.
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II. Discussion
A. Counting MacArthur's Prior Burglary Convictions as "Crimes of
Violence"
MacArthur challenges the district court's decision to
count two prior convictions as "crimes of violence" under U.S.S.G.
§ 2K2.1, thereby raising his base offense level to 26. The
applicable term "crime of violence" is defined as:
[A]ny offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that --
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
§ 2K2.1 cmt. n. 1; § 4B1.2(a). MacArthur was convicted at least
twice of "burglary" under Maine law. The question is whether he
was convicted of "burglary of a dwelling," as is necessary to
render burglary a crime of violence under § 2K2.1. We begin our
answer to this question by looking at the Maine statute defining
burglary, Me. Rev. Stat. Ann. tit. 17-A, § 401. That statute
provides that a person is guilty of burglary if:
A. The person enters or surreptitiously
remains in a structure knowing that that
person is not licensed or privileged to do so,
with the intent to commit a crime therein.
Violation of this paragraph is a Class C
crime; or
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B. The person violates paragraph A and:
. . . .
(4) The violation is against a structure that
is a dwelling place. Violation of this
subparagraph is a Class B crime[.]
This definition of burglary describes at least two
alternative offenses, only one of which includes, as an element of
the offense, the entry or unauthorized presence in a dwelling. So
if we know only that a person has been convicted in Maine of
"burglary," we do not know whether that person has been convicted
of the type of burglary that constitutes a crime of violence under
§ 2k2.1. When confronted with ambiguity such as this arising out
of a criminal offense that divides into alternative forms with
materially differing elements, our established practice is to try
to discern, if possible, "which of a statute's alternative elements
formed the basis of the defendant's prior conviction." Descamps
v. United States, 133 S. Ct. 2276, 2284 (2013). In making this
attempt, we look only "to limited materials, often called Shepard
documents, from the convicting court, such as charging documents,
plea agreements, plea colloquies, and jury instructions." United
States v. Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015)
(citing Descamps, 133 S. Ct. at 2281, 2284).
But here, as in Serrano-Mercado, this analysis is
"frustrated" because the prosecution did not proactively tender
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any Shepard documents, while MacArthur, in turn, voiced no
objection either to the absence of such documents or to
classification of his burglary offenses as "crimes of violence."
See id. at 844. McArthur now belatedly argues that, without proper
Shepard documents officially confirming the relevant nature of his
convictions, the district court erred in finding them to be for
crimes of violence.
Such an unpreserved argument failed in Serrano-Mercado,
and fails here on plain error review. Indeed, the record here
provides grist for an argument that MacArthur has actually waived
any argument that he was not convicted of burglarizing two
dwellings. See United States v. Jimenez, 512 F.3d 1, 7 (1st Cir.
2007); United States v. Turbides–Leonardo, 468 F.3d 34, 38 (1st
Cir. 2006). Most notably, while the PSR neither appended nor
expressly referred to any state court document, and listed the
offenses as "Burglary," it also included a concise and unambiguous
description of each offense. In each instance the PSR listed the
formal offense, the date of conviction, the case number, and an
express statement that MacArthur was convicted of entering a
"dwelling" or a "home," naming in each instance the occupant or
owner of the dwelling or home. MacArthur and his counsel--who
collectively would know whether MacArthur had burglarized an
actual dwelling--voiced no objection, nor even demanded additional
proof. Rather, they raised other objections to the PSR. MacArthur
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thereafter filed two sentencing memoranda, and he appeared at
sentencing with counsel. At the hearing, the district court
carefully confirmed that MacArthur had read the entire PSR and
that counsel had explained it to him. The following colloquy then
took place:
THE COURT: . . .
But you do understand that, as I told you quite
a little while ago, that there are matters in
the report that reflect your criminal history,
your background, where you were born and
brought up, your schooling, your education,
your work history, things of that sort, have
you had an opportunity to review your
background?
THE DEFENDANT: Yes, sir.
THE COURT: It also describes in some detail
the nature of the offense -- offenses here.
Have you had an opportunity to review the
description of the offenses?
THE DEFENDANT: Yes, sir.
THE COURT: Now, you realize, Mr. MacArthur,
that I am going to rely on the contents of the
report in determining your sentence. You
understand that.
THE DEFENDANT: Yes, sir.
THE COURT: Knowing that the contents of the
report may affect your sentence, is there
anything in the report you believe is
inaccurate?
THE DEFENDANT: No, sir.
District courts regularly rely on all sorts of
assertions contained in PSRs. See United States v. Fernández-
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Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) (explaining that "it is
settled beyond hope of contradiction that unobjected-to facts
contained in a presentence report ordinarily are considered
reliable evidence for sentencing purposes" (quotations marks and
citation omitted)). Here, the district court was given no reason
not to rely on the express descriptions of the burglary convictions
as instances in which MacArthur was indeed convicted of entering
a dwelling. Error, if error there was by the court, is hardly
obvious. Moreover, to reverse when there is no basis for finding
that an objection by MacArthur likely would have led to a different
result would make little sense, and might encourage defendants to
turn withheld objections into sentencing reset buttons to be
employed if the sentence exceeds expectations.
Whether we should therefore invoke waiver to reject
MacArthur's appeal, see Turbides-Leonardo, 468 F.3d at 38, we need
not decide. His failure to show either obvious error or that the
result likely would have differed but for the claimed error dooms
his appeal even if we allowed him the benefit of plain error
review. See Serrano-Mercado, 784 F.3d at 848.
B. Acceptance of Responsibility
MacArthur next challenges the district court's decision
to deny him a downward adjustment for acceptance of responsibility
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under U.S.S.G. § 3E1.1.3 MacArthur preserved this issue for
review. Accordingly, review of the district court's factual
determination that he has not accepted responsibility is for clear
error, and review of the district court's interpretation of the
Guidelines is de novo. United States v. Jordan, 549 F.3d 57, 60
(1st Cir. 2008).
MacArthur relies upon three arguments to support this
claim. First, he contends, at least in his initial brief, that
the district court's determination was based on an assault that he
committed before he was charged with the federal crimes for which
he was sentenced in this case. But as the sentencing transcript
clearly demonstrates, and as appellate defense counsel admitted at
oral argument, the district court based its March 12, 2014,
sentencing determination on an assault that MacArthur committed
after he pled guilty to the federal charges in this case.
Second, MacArthur argues that the district court erred
in relying on that assault because that conduct was unrelated to
his crime of conviction. This argument is foreclosed by Jordan,
in which this court held that "in determining the propriety vel
non of an acceptance-of-responsibility credit, [a district court]
3 Under § 3E1.1(a), a defendant receives a downward adjustment of
two points "[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense." Subsection (b) of that provision
provides that an additional point shall be subtracted from a
defendant's offense level where subsection (a) has been satisfied
and certain other conditions are met.
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may consider a defendant's commission of any post-indictment
criminal conduct, whether or not it bears a significant connection
to, or constitutes a significant continuation of, the offense of
conviction." 549 F.3d at 60–61.
Finally, MacArthur contends that the assault was not
established by a preponderance of the evidence at sentencing. The
evidence presented, however, included a report from the
corrections officer whom MacArthur assaulted on that date. The
report described how MacArthur obstructed the officer's efforts to
close MacArthur's cell door during a lockdown and how he hit the
officer with a closed fist after the officer grabbed MacArthur and
pushed him back against the cell wall. This report is enough to
establish as not clearly wrong the district court's finding that
MacArthur precipitated and committed the assault.
C. MacArthur's Double Counting Claim
MacArthur also contests the district court's application
of the two-point enhancement for causing reckless endangerment
during flight under U.S.S.G. § 3C1.2. He argues that the conduct
forming the basis for this enhancement--his leading the troopers
on a high speed chase--had already been taken into account when
the district court applied the four-point enhancement under
§ 2K2.1(b)(6)(B) for possessing the firearms "in connection with
another felony offense." This, according to MacArthur,
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impermissibly resulted in double counting. Because he did not
object at sentencing, we review for plain error.
While it is true that the district court cited
MacArthur's high speed chase in applying the four-point
enhancement under § 2K2.1(b)(6)(B), the district court did so in
a belt-and-suspenders manner, as it also cited MacArthur's
burglary of the home from which the firearms were stolen. Since
the burglary alone is plainly an uncharged felony, and MacArthur
in a sentencing memorandum admitted to that burglary, any reliance
by the district court on the car chase was unnecessary. On plain
error review, we cannot, therefore, say that any such reliance
could have prejudiced MacArthur even were we to assume, arguendo,
that the type of "double counting" of which MacArthur complains
would otherwise be improper.
D. Pro Se Supplemental Claims
MacArthur brings several pro se supplemental claims,
none of which merit relief. In these claims, MacArthur seeks
relief from an enhancement under the Armed Career Criminal Act, 18
U.S.C. § 924(e). MacArthur, however, was not sentenced pursuant
to that statute. Nor did his enhancement under U.S.S.G. § 2K2.1
rely on the residual clause contained in the definition of "crime
of violence" under § 4B1.2(a)(2). His challenges based on the
Supreme Court's decisions in Taylor v. United States, 495 U.S. 575
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(1990), and Johnson v. United States, 135 S. Ct. 2551 (2015), are,
therefore, meritless.
Lastly, MacArthur uses Johnson to attack the Maine state
burglary statute, asserting that the statute is both
unconstitutionally vague and indivisible. To the extent MacArthur
seeks to collaterally challenge his prior state court convictions
in this appeal, we have no jurisdiction to entertain such claims.
His argument, moreover, that the Maine state burglary statute is
indivisible fails for the reasons provided above.
III. Conclusion
For the foregoing reasons, we affirm the sentence
adjudged in this case.
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