United States v. Rollins ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2199
UNITED STATES OF AMERICA,
Appellee,
v.
BENJAMIN F. ROLLINS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
Brian M. Glover on brief for appellant.
Craig N. Moore, United States Attorney, Donald C. Lockhart,
Assistant U.S. Attorney, and Adi Goldstein, Assistant U.S.
Attorney, on brief for appellee.
October 29, 2004
Per Curiam. The issue in this sentencing appeal is whether
larceny from the person is a "crime of violence" within the meaning
of the Sentencing Guidelines. Because this court already decided
that issue in the affirmative in United States v. De Jesus, 984
F.2d 21 (1st Cir. 1993), the defendant's sentence--which was based,
in pertinent part, on his prior conviction of a "crime of
violence," i.e., larceny from the person–-is summarily affirmed.
If a defendant convicted of violating 18 U.S.C. § 922(g)
has a prior conviction for a "crime of violence," the defendant's
base offense level is automatically 20. USSG App. A; USSG
§ 2K2.1(a)(4)(A). For this purpose, "crime of violence" is defined
as an offense that
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) . . . involves conduct that presents a serious
potential risk of physical injury to another.
USSG § 2K2.1, comment. (n.5); § 4B1.2(a).
In the district court, defendant focused only on subsection
(1) of that definition and argued that the Rhode Island larceny-
from-the-person statute does not have "as an element the use,
attempted use, or threatened use of physical force against the
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person of another." That argument is a "straw man"; neither the
Probation Department, the government, nor the district court relied
on subsection (1) of that definition. On appeal, defendant argues,
for the first time, that the Rhode Island statute also does not
satisfy subsection (2) of that definition. Leaving to one side
that defendant forfeited the latter argument by failing to make it
below, see B & T Masonry Constr. Co. v. Pub. Serv. Mut. Ins. Co.,
2004 WL 1921827 *3 (1st Cir. Aug. 30, 2004), that argument is
foreclosed by this court's decision in De Jesus.
In De Jesus, this court, applying subsection (2) of the above
definition, held that "as the crime of larceny from the person
under Massachusetts law bears an inherent risk of violent outbreak,
it constitutes a crime of violence" within the meaning of Guideline
§ 4B1.2(a). De Jesus, 984 F.2d at 25; see also id. at 24 n.6. The
court reached that conclusion even though the Massachusetts statute
has been construed to apply to stealing not only from the victim's
person but also "'from the presence of the victim,'" that is, from
"within his area of control." Id. at 23 (quoting Commonwealth v.
Subilosky, 352 Mass. 153, 166, 224 N.E.2d 197, 206 (1967)). If
anything, conduct that violates the Rhode Island statute at issue
here, which applies to stealing from the victim's "immediate
presence," State v. Shepard, 726 A.2d 1138, 1140, 1142 (R.I. 1999)
(emphasis supplied), is even more likely than its Massachusetts
counterpart to involve violence between the offender and the
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victim. Therefore, the district court was correct in concluding
that De Jesus is controlling here.
Nevertheless, defendant argues that, "[despite] this
precedent, . . . Larceny From the Person, by its nature, does not
present a substantial risk of personal injury." In so arguing,
defendant appears to be asking that De Jesus be overruled, which a
panel of this court may not do. See United States v. Downs-Moses,
329 F.3d 253, 263 (1st Cir.), cert. denied, 124 S. Ct. 305 (2003).
Moreover, overruling De Jesus would be unwarranted because its
analysis and conclusion are consistent with Supreme Court precedent
as to how the Guidelines' definition of "crime of violence" should
be applied, see Taylor v. United States, 495 U.S. 575, 602 (1990),
and with the decisions of every other circuit that has considered
whether larceny from a person is a "crime of violence" under that
definition, see United States v. Smith, 359 F.3d 662, 665 (4th Cir.
2004) (collecting cases).
Defendant here does not take issue with the categorical
approach dictated by Taylor and applied in De Jesus. Rather, he
argues that the De Jesus panel erred in categorizing a violation of
the Rhode Island statute as a "crime of violence" because "while
some instances of Larceny of the Person may present a serious
potential risk of serious injury to another, there are numerous
ways in which no potential risk of serious injury arises, let alone
a serious one." That argument, however, was expressly considered
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and rejected in De Jesus itself. As this court explained there,
such an argument is foreclosed by Taylor, under which "[t]he
linchpin of the taxonomy . . . is not the breadth of the statutory
sweep but the degree of risk, expressed in terms of the probability
of physical harm presented by the mine-run of conduct that falls
within the heartland of the statute." De Jesus, 984 F.2d at 24.
Thus, although larceny from the person "'typically involves no
threat of violence,' the risk of ensuing struggle is omnipresent."
Id. (quoting United States v. McVicar, 907 F.2d 1, 2 (1st Cir.
1990)); see also United States v. Howze, 343 F.3d 919, 924 (7th Cir.
2003) (categorizing larceny from the person as a crime of violence
because every such larceny "entails a close encounter between
criminal and victim, an encounter that creates the potential not
only for violence but also for injury caused by the act of
taking").
Accordingly, defendant's sentence is summarily affirmed. See
Loc. R. 27(c).
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