United States v. Schofield ( 1997 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-2332



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                MICHAEL V. SCHOFIELD,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                    [Hon. Ronald R. Lagueux, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            George J. West, by Appointment of the Court, for appellant.
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            Margaret E.  Curran, Assistant United  States Attorney, with  whom
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        Sheldon Whitehouse,  United States  Attorney, and Gerard  B. Sullivan,
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        Assistant United States Attorney, were on brief for the United States.





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                                    June 10, 1997

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                 Per Curiam.  Michael Schofield pled  guilty to one count
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            of  being a  "felon in  possession" of  a firearm,  18 U.S.C.



              922(g),  and received  a mandatory  minimum sentence  of 15



            years  imprisonment  under  the  Armed  Career  Criminal  Act



            ("ACCA"),  id.   924(e)(1).   He  now appeals  this sentence,
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            arguing that certain prior  state convictions in Rhode Island



            do not count as "predicate offenses" triggering the ACCA.  We



            disagree and affirm.



                 The  ACCA   establishes  a  15-year   mandatory  minimum



            sentence for any person  who violates section 922(g)  and has



            three  prior convictions "for  a violent felony  or a serious



            drug offense, or both,  committed on occasions different from



            one another."   18 U.S.C.   924(e)(1).   Prior to Schofield's



            guilty plea, the government filed an information charging him



            with six  prior "violent felony" convictions,  which are also



            described  in his  Presentence Investigation  Report ("PSR").



            On appeal,  he  does not  challenge the  classification as  a



            violent felony  of one  robbery conviction.    See PSR    40.
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            Schofield   does,  however,   argue  that   the   other  five



            convictions  were  not  for  "violent  felonies"  within  the



            meaning of the statute.



                 Schofield's  argument  might  seem   extraordinary  with



            respect to  his prior  conviction for second  degree robbery.



            See  PSR    38.   In the  course  of that  offense, Schofield
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            knocked  his victim  to the  pavement and  stole  her purse--







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            certainly  "violent"  conduct.   But the  ACCA operates  at a



            level of  abstraction  and requires  courts,  in  determining



            predicate  convictions,  to   employ  "a  formal  categorical



            approach, looking  only to  the statutory definitions  of the



            prior offenses,  and not  to the particular  facts underlying



            those  convictions."  Taylor v. United  States, 495 U.S. 575,
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            600 (1990).



                 Nevertheless,  Rhode  Island's  second   degree  robbery



            offense is  plainly a predicate  offense for purposes  of the



            ACCA.    The  statute--unchanged  in  pertinent  part   since



            Schofield's violation in 1991--defines second  degree robbery



            as  "robbery or  other larceny  from the  person by  force or



            threat, where there is no weapon and no injury and the victim



            is  neither a handicapped person or an elderly person."  R.I.



            Gen.  Laws    11-39-1.   The  "force  or threat"  requirement



            undoubtedly brings the offense  within the ACCA's category of



            violent felonies, which includes any felony that, inter alia,
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            "has  as an element the use, attempted use, or threatened use



            of  physical force against the person of another."  18 U.S.C.



              924(e)(2)(B).1






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                 1Accord  United States v.  Brown, 52  F.3d 415,  426 (2d
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            Cir.  1995)  (New  York  attempted robbery  conviction  is  a

            "violent  felony"),  cert. denied,  116  S.  Ct. 754  (1996);
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            United  States v. Presley, 52  F.3d 64, 69  (4th Cir.), cert.
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            denied, 116 S. Ct. 237 (1995) (Virginia robbery conviction is
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            "violent felony"); United States  v. Dickerson, 901 F.2d 579,
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            584 (7th Cir. 1990)  (Illinois robbery conviction is "violent

            felony").



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                 We  are  left  to  determine  whether  one  or  more  of



            Schofield's breaking and entering  convictions can serve as a



            predicate  offense, bringing  to  three the  total number  of



            "violent  felonies."    One  of  those  convictions  was  for



            breaking  and entering  a  commercial or  public building  in



            violation of R.I.  Gen. Laws   11-8-4.   See  PSR   39.2   We
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            have  previously  held  that convictions  for  conspiracy  to



            violate this  same statute are "violent  felonies" within the



            meaning of  U.S.S.G.   4B1.2(1), United States  v. Fiore, 983
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            F.2d  1, 4  (1st  Cir. 1992),  cert.  denied, 507  U.S.  1024
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            (1993); and cases  interpreting that provision  are pertinent



            in  construing the  ACCA's "violent  felonies"  category, see
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            United States  v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).
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            (Under  Taylor,  it  is  irrelevant whether  the  school  was
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            occupied  or  there  was  any  actual  threatened  violence.)



            Because the  schoolhouse breaking and entering  offense was a



            violent felony, we need not consider the other three breaking



            and entering convictions.



                 Finally,  Schofield  contends  that  the  various  prior



            offenses were not "committed  on occasions different from one






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                 2As  Schofield observes,  the state  judgment and  other

            documents do not indicate  the specific breaking and entering

            statute under  which Schofield was convicted.   But Schofield

            does not  dispute the PSR's  portrayal of the  offense, which

            involved  the  breaking  and  entering  of  a  public  school

            building.   Section 11-8-4 is the  only Rhode Island breaking

            and entering statute  that would have applied to  this crime.

            See R.I. Gen. Laws   11-8-2 et seq.
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            another,"  as required by section 924(e)(1).  But there is no



            question that the  three predicate offenses on which  we have



            relied  took  place  on  different  dates  and  at  different



            locations,  and that is all the ACCA requires.  United States
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            v.  Riddle, 47  F.3d 460,  462 (1st  Cir. 1995).   "Congress,
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            thinking  primarily  about  the  protection  of  the  public,



            adopted a  definition of  armed career criminal  that ignores



            the  duration of  the career  . .  . or  the lack  of lengthy



            intervals or arrests between  the crimes."  Id.   Because the
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            district court  properly sentenced Schofield  under the ACCA,



            we  need not reach his challenges to the alternative sentence



            imposed under the Sentencing Guidelines.



                 Affirmed.
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