United States v. Dyer ( 1993 )

USCA1 Opinion

          June 18, 1993


                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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          No. 93-1045

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    STEPHEN DYER,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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                              _________________________

                                        Before

                        Selya, Cyr and Boudin, Circuit Judges.
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               Martin J.  Ridge, with whom  Beagle, Pearce, & Ridge  was on
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          brief, for appellant.
               Margaret  D. McGaughey,  Assistant  United States  Attorney,
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          with whom Jay  P. McCloskey, United States Attorney, and Jonathan
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          Chapman, Assistant United States Attorney, were on brief, for the
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          United States.

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                                    June 18, 1993
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                    Per  Curiam.    In  this  criminal  appeal,  defendant-
                    Per  Curiam.
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          appellant  Stephen Dyer challenges his sentence.   He makes three

          claims.

                    1.   Dyer contends that the career offender guidelines,

          U.S.S.G.     4B1.1, 4B1.2, impermissibly  exceed the scope  of 28

          U.S.C.   994(h),  the pertinent enabling statute  and, therefore,

          could not validly be employed to enhance his sentence.  The Third

          Circuit  repudiated  precisely  the same  asseveration  in United
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          States  v. Whyte, 892 F.2d 1170 (3d Cir. 1989), cert. denied, 494
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          U.S. 1070 (1990).  We think  the Whyte court correctly upheld the
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          career offender guidelines, and we reject appellant's argument on

          the basis of Whyte.  See id. at 1174.
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                    2.    Next,  Dyer contends  that  his  criminal record,

          though extensive,  does not include two predicate offenses of the

          type necessary to animate  the career offender guidelines.   This

          argument  was  not  presented  to  the  district  court  and  is,

          therefore, waived.   See United States v. Dietz,  950 F.2d 50, 55
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          (1st Cir.  1991) (stating,  in connection  with sentencing,  that

          "arguments not seasonably addressed to the trial court may not be

          raised for the first time in an appellate venue").

                    Moreover, even if we were  to reach the point, we would

          reject it on the merits.  Dyer concedes that he was  convicted of

          a  controlled  substance  offense  coming  within  the  ambit  of

          U.S.S.G.   4B1.2(2).1  In  addition, he was convicted of burglary

                              
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               1This   offense  is  described   in  paragraph  78   of  the
          presentence investigation report (PSI Report).

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          under 17-A M.R.S.A.   401(1) (a statute that criminalizes illegal

          entry into a structure).2  We  have made it abundantly clear that

          such a  crime is properly  includable as a predicate  offense for

          purposes  of the career  offender guidelines.   See, e.g., United
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          States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992), cert. denied, 113
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          S. Ct. 1850 (1993).   And, moreover, consistent with the caselaw,

          e.g., id. at 3; United States v. Bell, 966 F.2d 703,  705-06 (1st
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          Cir. 1992), we decline appellant's  invitation to peek behind the

          conviction  and  examine its  particular  facts.   See  Taylor v.
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          United States, 495 U.S. 575, 600 (1990).3
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                    3.   Finally,  Dyer contends  that  the district  court

          impermissibly  withheld  an  offense-level   reduction  based  on

          acceptance of  responsibility.   See U.S.S.G.    3E1.1.   The key
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          question  under section  3E1.1  is not  whether  a defendant  has

          mouthed  "a  pat recital  of the  vocabulary of  contrition," but

          whether he has  accepted full responsibility for his  part in the

          offense  of conviction  by  demonstrating  "candor and  authentic

          remorse."   United States  v. Royer,  895 F.2d  28, 30 (1st  Cir.
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          1990);  accord, e.g., United  States v.  Uricoechea-Casallas, 946
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          F.2d 162, 167 (1st Cir. 1991); United States v. Bradley, 917 F.2d
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          601, 606 (1st Cir. 1990).  The  defendant has the task of proving

                              
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               2This  offense  is  described in  paragraph  52  of  the PSI
          Report.

               3We note in passing that  appellant does not come within the
          narrow exception to Taylor, see 495 U.S. at 602, as  he proffered
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          neither the indictment nor the jury instructions for the district
          court's perusal.   The appellate record is,  of course, similarly
          barren.

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          his  entitlement to  an acceptance-of-responsibility  credit, see
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          Bradley,   917  F.2d   at  606,   and   the  sentencing   court's
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          determination to withhold the credit may be set aside only  if it

          is clearly erroneous.  See Royer, 895 F.2d at 29.
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                    We discern no  clear error in this instance.   Dyer did

          not  appear  for his  appointed  sentencing.   He  was thereafter

          apprehended  in a  hotel  room,  under an  alias.   Given  Dyer's

          boycotting of the scheduled day  of reckoning, the district court

          acted  well within  its lawful  power in  declining to  award him

          credit  for  acceptance  of responsibility.    See,  e.g., United
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          States v. Yeo, 936 F.2d 628, 628-29 (1st Cir. 1991).
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                    We need go  no further.4  Having carefully reviewed the

          entire  record, we conclude,  without serious question,  that the

          district  court  imposed  an  appropriate,  lawfully  constituted

          sentence.



          Affirmed.
          Affirmed.
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               4Since career  offender status  requires proof  of only  two
          prior  convictions for predicate  offenses, we need  not consider
          whether,  as the lower court  ruled, the convictions described in
          paragraphs 50, 59a and 60, respectively, of the PSI, also qualify
          as predicate offense convictions.

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