United States v. Pierce ( 1995 )


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    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
    ____________________

    No. 94-2182

    UNITED STATES,

    Appellee,

    v.

    FREDERICK ALAN PIERCE,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Morton A. Brody, U.S. District Judge] ___________________

    ____________________

    Before

    Boudin, Circuit Judge, _____________
    Aldrich and Bownes, Senior Circuit Judges. _____________________
    ____________________

    J. Hilary Billings for appellant. __________________
    F. Mark Terison, Assistant United States Attorney, with whom Jay _______________ ___
    P. McCloskey, United States Attorney, and James L. McCarthy, Assistant ____________ _________________
    United States Attorney, were on brief for appellee.


    ____________________

    July 21, 1995
    ____________________





















    BOWNES, Senior Circuit Judge. In this appeal, BOWNES, Senior Circuit Judge. _____________________

    defendant-appellant Frederick Alan Pierce challenges, on

    several grounds, his convictions and sentence for conspiracy

    to possess cocaine with intent to distribute, 21 U.S.C.

    846, and carrying a firearm during and in relation to a drug

    trafficking crime, 18 U.S.C. 924(c)(1). After carefully

    considering Pierce's arguments, we affirm.

    I. I. __

    A. Factual Background A. Factual Background ______________________

    On June 28, 1993, pursuant to a prior plan, Pierce

    and a fellow Maine resident, codefendant David Leland Maddox,

    drove to Lawrence, Massachusetts, in order to purchase four

    ounces of cocaine. Paul Abraham, an acquaintance of Pierce's

    who was to "middle" the deal, informed drug enforcement

    personnel of the arrangements. The sale did not go through.

    Pierce and Maddox were arrested on Interstate 95 in New

    Hampshire while returning to Maine. The arresting officers

    seized $3,333.50 from Pierce; they also confiscated drug

    paraphernalia and a loaded gun from the car. Maddox

    subsequently pleaded guilty and became a cooperating witness.

    B. Procedural History B. Procedural History ______________________

    On October 12, 1993, Pierce was arraigned on a two-

    count indictment charging him with the crimes of conviction.

    On that same day, Magistrate-Judge Beaulieu appointed Gary M.

    Growe to represent him. In the ensuing month and a half,



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    problems developed between Growe and Pierce, and, on November

    30, 1993, the day before jury selection was to commence,

    Growe filed a motion to withdraw as counsel. Pierce joined

    in the motion. The government opposed Growe's request,

    pointing out that Pierce already had been provided with

    Jencks discovery material and arguing that Pierce might use

    the material to create problems for potential witnesses. The

    district court heard argument on Growe's motion on December

    1, 1993.

    At the hearing, Growe maintained that a personality

    conflict was compromising his ability to evaluate objectively

    certain defense theories proposed by Pierce. After spending

    some time inquiring into the particulars of the problem, the

    court denied the motion. In so doing, the court described

    the conflict as "not so great that it results in a total lack

    of communication preventing an adequate defense." That same

    day, the court also empaneled the jury for the case.

    On December 6, 1993, two days before opening

    statements were scheduled to be delivered, Growe filed a

    second motion to withdraw. Again, Pierce joined in the

    motion. On December 7, 1993, the district court held a

    hearing to address the motion. The essence of Growe's second

    withdrawal request was that his relationship with Pierce had

    deteriorated to the point where (1) Pierce was ignoring

    Growe's advice and talking to the press about the case; and



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    (2) Pierce believed Growe was wrongfully providing the

    government with "vital information." After inquiring for

    some time into the basis for the second motion, the court

    denied it. In so doing, the court pointed out that the case

    was "literally on the eve of trial." It also stated: "At

    some point, the Court has to take the position that the whole

    system just cannot be -- come down to its knees because of

    the inability of the defendant and counsel to agree on -- on

    how their case should be tried." The court did, however,

    grant Growe's motion to withdraw from representing Pierce in

    another matter that was scheduled to go to trial the

    following month.

    The next day, the jury was sworn and trial

    commenced. On December 10, 1993, the jury returned guilty

    verdicts on both counts of the indictment. On February 25,

    1994, Pierce moved for the appointment of new counsel for

    sentencing, and on March 16, 1994, the court granted the

    motion, appointing Pierce's present counsel to replace Growe.

    Meanwhile, on February 24, 1994, the government filed a

    complaint seeking civil forfeiture of the $3,333.50 seized

    from Pierce at the time of his arrest. See 21 U.S.C. ___

    881(a)(6) (subjecting to civil forfeiture "[m]oneys . . .

    intended to be furnished by any person in exchange for a

    controlled substance"). On April 5, 1994, Pierce filed an





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    answer to the complaint. Subsequently, the government

    withdrew its claim as to $1,000.

    On October 20, 1994, Magistrate-Judge Beaulieu held

    a bench trial on the forfeiture action, and on October 25,

    1994, he issued an order of forfeiture in the amount of

    $2,333.50. Judgment entered on October 31, 1994. That same

    day, Pierce filed a motion to dismiss the criminal case on

    double jeopardy grounds. On November 1, 1994, the court

    orally denied the motion to dismiss and proceeded to sentence

    Pierce.

    The court first determined that Pierce's base

    offense level was 18 for the conspiracy conviction. Relying

    on a 1984 Florida "withheld adjudication" in which Pierce had

    pleaded nolo contendere to a charge of delivering cannabis, ____ __________

    and a 1985 Florida sexual battery conviction, the court then

    adjusted this level to 32 because it determined that Pierce

    was a "career offender" under U.S.S.G. 4B1.1 (1994) (person

    who is more than eighteen years old, stands convicted of a

    crime of violence or a controlled substance offense, and has

    two prior felony convictions for either crimes of violence or

    controlled substance offenses is a career offender subject to

    an upward adjustment of his base offense level). Because

    Pierce's criminal history category was VI, see id. (all ___ ___

    career offenders have criminal history categories of VI), the

    applicable guideline range was 210 to the statutory maximum



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    of 240 months. The court then sentenced Pierce to 210 months

    on his conspiracy conviction, and to the mandatory 60 months

    consecutive sentence on his firearm conviction, see 18 U.S.C. ___

    924(c)(1) (firearm sentence must be consecutive to the

    underlying sentence), for a total sentence of 270 months'

    imprisonment. This appeal followed.

    II. II. ___

    Pierce makes five arguments on appeal: (1) the

    entry of judgment in the civil forfeiture action bars the

    instant criminal prosecution under the Fifth Amendment's

    Double Jeopardy Clause; (2) the denial of the two motions to

    withdraw constituted an abuse of discretion and led to a

    violation of his Sixth Amendment rights; (3) the 1984 Florida

    withheld adjudication was not a "conviction" cognizable under

    the career offender provisions of the guidelines; (4) the

    1985 Florida sexual battery conviction was not a "crime of

    violence" as that term is defined by the career offender

    provisions; and (5) a conspiracy conviction cannot predicate

    a finding that a defendant is a career offender. We discuss

    each in turn.

    A. Double Jeopardy A. Double Jeopardy ___________________

    Pierce first contends that the Double Jeopardy

    Clause precluded the government from further pursuing his

    criminal prosecution once judgment entered in the civil

    forfeiture action. In Pierce's view, the civil and criminal



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    actions were separate proceedings arising out of the same

    criminal acts and instituted by the federal government for

    penal purposes. See United States v. $405,089.23 U.S. ___ _____________ _________________

    Currency, 33 F.3d 1210, 1216-22 (9th Cir. 1994) (Double ________

    Jeopardy Clause is violated where the same criminal acts give

    rise to both a criminal prosecution and a separate, civil

    forfeiture action under 21 U.S.C. 881(a)(6); civil

    forfeiture under 881(a)(6) is "punishment"); but see United ___ ___ ______

    States v. Tilley, 18 F.3d 295, 297-300 (5th Cir.) (deeming a ______ ______

    particular civil forfeiture brought under 881(a)(6) not to

    be punishment), cert. denied, 115 S. Ct. 573 (1994); United _____ ______ ______

    States v. One Single Family Residence, 13 F.3d 1493, 1499 ______ ____________________________

    (11th Cir. 1994) (viewing a criminal prosecution and an

    overlapping forfeiture action to be part of "a single,

    coordinated prosecution"); United States v. Millan, 2 F.3d ______________ ______

    17, 19-21 (2d Cir. 1993) (same), cert. denied, 114 S. Ct. 922 _____ ______

    (1994). Besides arguing that we should reject $405,089.23 ___________

    and adopt the reasoning of Tilley, One Single Family ______ ___________________

    Residence, and Millan, the government responds that the _________ ______

    Double Jeopardy Clause, if violated, would bar only the civil

    forfeiture proceeding, and not Pierce's criminal prosecution.

    Because we agree with this last argument, we reject Pierce's

    double jeopardy challenge without deciding whether the

    forfeiture action was a separate penal proceeding.





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    In relevant part, the Fifth Amendment states that

    no person shall "be subject for the same offence to be twice

    put in jeopardy of life or limb." It is well established

    that this Double Jeopardy Clause protects against both

    successive punishments and successive prosecutions for the

    same criminal offense. E.g., United States v. Dixon, 113 S. ____ _____________ _____

    Ct. 2849, 2855 (1993). The Clause does not even potentially

    come into play, however, until the defendant has first been

    put into jeopardy. Crist v. Bretz, 437 U.S. 28, 32-33 _____ _____

    (1978). And even then, it is only the second proceeding that ______

    is constitutionally endangered, for the Clause's basic design

    is "to protect an individual from being subjected to the

    hazards of trial and possible conviction more than once for ____ ____ ____

    an alleged offense." Green v. United States, 355 U.S. 184, _____ _____________

    187 (1957) (emphasis supplied).

    Our inquiry therefore reduces to whether Pierce was

    first subjected to jeopardy for the conduct underlying this

    action prior to jeopardy attaching in this action. Plainly, _____ __

    he was not. It is settled that jeopardy attaches in a

    criminal jury case when the jury is empaneled and sworn.

    E.g., Crist, 437 U.S. at 35. Pierce's criminal jury was ____ _____

    empaneled on December 1, 1993, and sworn on December 8, 1993,

    several months prior to the inception of the civil forfeiture

    proceeding. Thus, any double jeopardy problem arising out of





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    the institution of the civil forfeiture proceeding can only

    be seen as imperiling that proceeding.

    Pierce does not challenge any of the legal

    principles we have set forth; nor does he dispute that

    jeopardy first attached in the criminal proceeding. Instead,

    he disagrees with our mode of analysis. Focusing on the

    Double Jeopardy Clause's prohibition against successive

    punishments, Pierce contends that the moment of punishment ___________

    controls, asserting that "the issue is not so much which

    jeopardy attaches first as which jeopardy is first complete."

    Because jeopardy first "became complete," and punishment was

    first imposed (in the form of the judgment ordering

    forfeiture) in the civil proceeding, Pierce argues that his

    sentence in this case is a "successive punishment" precluded

    by the Clause. We are not persuaded.

    Pierce's argument that the "completion" of jeopardy

    triggers the Clause's protections completely disregards the

    fact that the Clause protects against more than just

    successive punishments; it also protects against successive

    prosecutions. To illustrate, if Pierce's argument were

    correct, he would not have been entitled to assert the double

    jeopardy bar in the civil forfeiture action because jeopardy

    had not yet been "completed" in this criminal proceeding.

    Patently, however, Pierce was so entitled (presuming, of





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    course, that the forfeiture action was both separate and

    punitive). The Supreme Court has made quite clear that

    the State with all its resources and
    power should not be allowed to make
    repeated attempts to convict an
    individual for an alleged offense,
    thereby subjecting him to embarrassment,
    expense and ordeal and compelling him to
    live in a continuing state of anxiety and
    insecurity, as well as enhancing the
    possibility that even though innocent he
    may be found guilty.

    Green, 355 U.S. at 187. This sentiment, along with the _____

    accused's interest in retaining a chosen jury, has fostered

    the view that jeopardy attaches in a jury trial when the jury

    is empaneled and sworn. See Crist, 437 U.S. at 35-36. It ___ _____

    also has led to the rule that the denial of a motion to

    dismiss on double jeopardy grounds is immediately appealable.

    Abney v. United States, 431 U.S. 651, 661-62 (1977). _____ _____________

    Although he does not say so explicitly, Pierce

    implies that a criminal defendant should have the right to

    withhold objection to a forbidden successive prosecution and

    raise a double jeopardy argument only in the event that the

    second prosecution leads to a prior and less severe

    punishment than that meted out in the original case. Put

    another way, a defendant ought to have the option to endure

    an unconstitutional second trial in the hope that it will

    both conclude first and lead to a more lenient punishment

    than that eventually imposed in the first trial, and then to

    object to the punishment imposed in the first trial on double


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    jeopardy grounds. We cannot locate any authority to support

    this proposition, and we reject it out of hand.

    The Double Jeopardy Clause is a shield against the

    oppression inherent in a duplicative, punitive proceeding; it

    is not a tool by which a defendant can avoid the consequences

    of the proceeding in which jeopardy first attached. The law

    of double jeopardy is quite complicated, and often (as here),

    the question whether a second proceeding violates the Clause

    is a close one. Because, under Article III of the Federal

    Constitution, the question can only be answered in the

    context of an actual case or controversy, the public has a

    strong interest in the government being able to institute the

    second proceeding without risking the first. After all, the

    government should not be dissuaded from bringing legitimate

    penal proceedings, and opposing counsel and the courts

    (including the appellate courts, see Abney, 431 U.S. at 661- ___ _____

    62) are there to protect the defendant's rights if the

    government has miscalculated. This simply is not a situation

    where the price to society of allowing a defendant to parlay

    the government's miscalculation into a "get out of jail free"

    card is worth the deterrent effect such a regime might have.

    Pierce's theory of completed jeopardy would

    effectively trade away some of the most valuable protections

    of the Double Jeopardy Clause for rather dubious gains. We





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    therefore reject it, and overrule Pierce's double jeopardy

    challenge to the penalty imposed in this proceeding.

    B. Denial of Motions to Withdraw B. Denial of Motions to Withdraw _________________________________

    Pierce next asserts that the district court's

    denial of the two motions to withdraw constituted an abuse of

    discretion and led to a violation of his Sixth Amendment

    rights. To the extent that Pierce is taking issue with the

    adequacy of his representation after the denial of the

    motions, we think that his fact-specific argument should be

    more fully developed and presented to the district court in

    the first instance. Accordingly, we decline to address it at

    this time. See, e.g., United States v. Jadusingh, 12 F.3d ___ ____ _____________ _________

    1162, 1169-70 (1st Cir. 1994) (fact-specific ineffective

    assistance claims ordinarily ought first be presented to the

    district court in a 28 U.S.C. 2255 petition). We therefore

    limit our focus to whether, in light of the then-existing _____________

    circumstances, the court erred in denying the motion. Cf. ___

    United States v. Torres, 793 F.2d 436, 440 (1st Cir. 1986) ______________ ______

    (in evaluating the denial of a motion for a continuance to

    obtain new counsel, "we must pay particular attention to ``the

    reasons presented to the trial judge at the time the request __ ___ ____ ___ _______

    is denied'") (quoting Ungar v. Sarafite, 376 U.S. 575, 589 __ ______ _____ ________

    (1964)) (emphasis supplied). We detect no error.

    In the analogous context of a challenge to a denial

    of a defendant's motion to substitute counsel, we have stated



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    that we will "consider several factors, including the

    timeliness of the motion, the adequacy of the court's inquiry

    into the defendant's complaint, and whether the conflict

    between the defendant and his counsel was so great that it

    resulted in a total lack of communication preventing an

    adequate defense." United States v. Allen, 789 F.2d 90, 92 ______________ _____

    (1st Cir.), cert. denied, 479 U.S. 846 (1986). Of course, we _____ ______

    are aware that the trial court has a superior vantage point

    for evaluating matters such as these; we therefore will

    reverse only if we perceive an abuse of discretion. See id. ___ ___

    We also are mindful that when, as here, the granting of the

    defendant's request would almost certainly necessitate a

    last-minute continuance, the trial judge's actions are

    entitled to extraordinary deference. As the Supreme Court

    has stated:

    Trial judges necessarily require a great
    deal of latitude in scheduling trials.
    Not the least of their problems is that
    of assembling the witnesses, lawyers, and
    jurors at the same place at the same
    time, and this burden counsels against
    continuances except for compelling
    reasons. Consequently, broad discretion
    must be granted trial courts on matters
    of continuances; only an unreasoning and
    arbitrary "insistence upon
    expeditiousness in the face of a
    justifiable request for delay" violates
    the right to assistance of counsel.

    Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar, ______ ______ _____

    376 U.S. at 589).




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    In view of all these considerations, the trial

    court's decisions pass muster. Taking first the final Allen _____

    factor, we note that, while Pierce has adduced proof that his

    relationship with Growe was beset with problems, he has not

    established a total lack of communication preventing an

    adequate defense. The record reveals that Growe and Pierce

    were conversing with one another and had some appreciation

    for the other's opinions and sensibilities at the time the

    motions were filed. We therefore have no basis to conclude

    that the district court clearly erred in finding that the

    communication between the counsel and client was sufficient

    to allow a satisfactory defense. Cf. Allen, 793 F.2d at 92 ___ _____

    (noting the discretion afforded to trial court determinations

    regarding substitution of counsel).

    Furthermore, when presented with the motions, the

    court held hearings at which it questioned Growe and Pierce

    at some length regarding the nature of their problems with

    each other. We have read the transcripts of these hearings

    and find the court's inquiries to have been more than

    adequate. If there is a relative lack of specificity

    regarding the exact reasons for the difficulties between

    Growe and Pierce, it is a result of a lack of elaboration on

    their part. It certainly is not a result of insufficient

    questioning by the court.





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    Finally, the motions were, by any measure,

    untimely. Although we appreciate that the docket moves

    quickly in the District of Maine, the fact remains that Growe

    waited until the day before empanelment before notifying the

    court that there was a problem. More importantly, a quick

    docket does not alleviate the logistical problems engendered

    by a last-minute continuance. See Morris, 461 U.S. at 11-12. ___ ______

    Nor can it allay the legitimate concerns about witness

    intimidation the government may have when a criminal

    defendant is in possession of Jencks material well before the

    inception of trial.

    In sum, because the circumstances here were not

    sufficiently compelling, the district court acted well within

    its discretion in declining to bring the proceedings to a

    halt on the eve of trial. We therefore reject Pierce's

    argument that the district court committed reversible error

    in denying the two motions to withdraw.

    C. The 1984 Florida Withheld Adjudication C. The 1984 Florida Withheld Adjudication __________________________________________

    Pierce argues that the district court erred in

    concluding that the 1984 Florida withheld adjudication in

    which he had pleaded nolo contendere to delivering cannabis ____ __________

    constitutes a cognizable predicate conviction for purposes of

    the relevant "career offender" guideline. See U.S.S.G. ___

    4B1.1. In Pierce's view, a withheld adjudication simply

    cannot be regarded as a "conviction" under this guideline



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    because the term "conviction" necessarily implies the entry

    of a final adjudicatory judgment. A careful reading of

    relevant guideline language and commentary persuades us that

    Pierce's argument is incorrect.

    Although there is surface appeal to the argument

    that there can be no "conviction" unless and until a final

    adjudicatory judgment is entered, the sentencing guidelines

    clearly construe the term differently. Section 4B1.2(3),

    which defines the terms used in 4B1.1, states: "The date

    that a defendant has sustained a conviction shall be the date

    that the guilt of the defendant has been established, whether ___ _____

    by guilty plea, trial, or plea of nolo contendere." (emphasis ____ __________

    supplied). Thus, there is a textual basis in the career

    offender guidelines for concluding that a guilt-establishing

    event (such as a plea where a defendant states that he does

    not wish to contest the charges), and not the formal entry of

    an adjudicatory judgment, determines whether and when there

    has been a countable "conviction."

    This view is borne out by the relevant guideline

    commentary. Application note 4 to 4B1.2 directs the

    sentencing court to utilize the provisions of 4A1.2

    (captioned "Definitions and Instructions for Computing

    Criminal History") in "the counting of convictions under

    4B1.1." Two provisions of 4A1.2 compel the conclusion that

    withheld adjudications following pleas of nolo contendere are ____ __________



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    countable convictions under 4B1.2. First, 4A1.2(a)(4)

    drives home the point that there can be a "conviction" prior

    to, and therefore without, the formal entry of an

    adjudicatory judgment: "``Convicted of an offense' for

    purposes of this provision, means that the guilt of the

    defendant has been established, whether by guilty plea,

    trial, or plea of nolo contendere." And 4A1.2(f), which ____ __________

    governs diversionary dispositions like withheld

    adjudications, is quite clear that admissions of guilt (or

    pleas formally declining to contest guilt), rather than

    formal entries of judgment, control countability:

    Diversion from the judicial process
    without a finding of guilt (e.g., ____
    deferred prosecution) is not counted [as
    a prior sentence]. A diversionary
    disposition resulting from a finding or
    admission of guilt, or a plea of nolo ____
    contendere, in a judicial proceeding is __________
    counted as a sentence under 4A1.1(c)
    [of the criminal history guidelines] even
    if a conviction is not formally entered,
    except that diversion from juvenile
    court is not counted.

    The application note corresponding to the provision is

    explanatory of its purposes: "Section 4A1.2(f) requires

    counting prior adult diversionary dispositions if they

    involved a judicial determination of guilt or an admission of

    guilt in open court. This reflects a policy that defendants

    who receive the benefit of a rehabilitative sentence and

    continue to commit crimes should not be treated with further

    leniency." 4A1.2, comment. (n.9).


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    Employing an extremely literal reading, Pierce

    suggests that these guideline provisions are relevant only to

    the "counting" of convictions, and that they have no bearing

    on whether a particular event should be "defined" as a

    conviction. The difference between "counting" and "defining"

    convictions in this context is, however, only semantic.

    Section 4B1.1 directs that "convictions" of a certain type be

    counted, and other guidelines and commentary which elaborate

    upon the events to be counted essentially define that which

    is a conviction. In other words, the sentencing court is to

    "count" whatever is "defined" as a conviction (so long as it

    is for a crime of violence or a controlled substance

    offense).

    When 4A1.2(a)(4) and (f) are applied to the

    question presented (as 4B1.2, comment. (n.4) dictates), it

    becomes clear that the diversionary disposition at issue here

    -- the 1984 Florida withheld adjudication -- should be

    counted as a conviction under 4B1.1 See United States v. ___ _____________

    Jones, 910 F.2d 760, 761 (11th Cir. 1990) (per curiam) _____ ___ ______

    (withheld adjudication following a nolo contendere plea ____ __________

    constitutes a conviction for career offender status). We

    therefore reject Pierce's argument that the district court

    erred in counting the withheld adjudication as a predicate

    conviction for purposes of the career offender guideline.

    D. The 1985 Florida Sexual Battery D. The 1985 Florida Sexual Battery ___________________________________



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    Pierce's fourth argument is that the district court

    erred in deciding that his 1985 Florida conviction for sexual

    battery is a "crime of violence" and therefore a cognizable

    predicate conviction for purposes of 4B1.1. Central to his

    argument is an assertion that the statute defining the

    offense for which he was convicted, Fla. Stat. Ann.

    794.011(5), does not, inter alia, have as an element "the _____ ____

    use, attempted use or threatened use of physical force

    against the person of another." See 4B1.2(1) (defining ___

    phrase "crime of violence" for purposes of 4B1.1).

    Regardless of whether Pierce is correct about the current _______

    version of the statute (a matter on which we express no

    opinion), a plain reading of the statute under which Pierce

    was convicted reveals that, in 1985, the use of force was an ___

    element of the offense. See Fla. Stat. Ann. 794.011(5) ___

    (West 1984) ("A person who commits sexual battery upon a

    person 12 years of age or older, without that person's

    consent, and in the process thereof uses physical force and ____ ________ _____ ___

    violence not likely to cause serious personal injury is ________

    guilty of a felony . . . .") (emphasis supplied). And

    because the statutory formulation of the predicate crime, and

    not the actual facts of the case itself, dictates whether the

    offense is a crime of violence for purposes of the federal

    sentencing guidelines, see United States v. DeLuca, 17 F.3d ___ _____________ ______

    6, 8 (1st Cir. 1994), our inquiry is at an end.



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    The 1985 Florida sexual battery was a crime of

    violence under 4B1.2(1). We therefore reject Pierce's

    argument that the district court erred in counting the sexual

    battery as a predicate conviction for purposes of the career

    offender guideline.

    E. Conspiracy and Career Offender Status E. Conspiracy and Career Offender Status _________________________________________

    Pierce's final claim, made solely to preserve the

    issue for further appeal, is that a conspiracy conviction

    cannot serve as a triggering or predicate offense for

    purposes of the career offender guideline. Pierce

    acknowledges that we recently decided this issue against him,

    see United States v. Piper, 35 F.3d 611, 616-19 (1st Cir. ___ _____________ _____

    1994), cert. denied, 115 S. Ct. 1118 (1995), and that this _____ ______

    panel is duty-bound to follow Piper, see, e.g., Metcalf & _____ ___ ____ _________

    Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d ___________ ____________________________________

    935, 939 n.3 (1st Cir. 1993) ("in a multi-panel circuit,

    newly constituted panels, generally speaking, are bound by

    prior decisions on point"). We therefore reject the claim.

    III. III. ____

    For the reasons stated above, we affirm the

    convictions and sentence of defendant Frederick Alan Pierce.

    Affirmed. Affirmed ________









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