United States v. Daniel Franco

May 3, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1614
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DANIEL FRANCO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Stahl, Circuit Judges.
Scott A. Lutes, on brief for appellant.
Lincoln C. Almond, United States Attorney, and Stephanie S.
Browne, Assistant United States Attorney, on brief for appellee.
Per Curiam. Defendant, Daniel Franco, pleaded
guilty to a one count indictment charging him with unlawful
possession of firearms after having been convicted of a
felony, in violation of 18 U.S.C. 922(g). He appeals the
court's finding that he was subject to sentence enhancement
as an armed career criminal under 18 U.S.C. 924(e)(1), the
sentencing range calculation under 4B1.4 of the Sentencing
Guidelines, and the imposition upon him of the costs of
supervised release.
The brief filed by defendant's attorney states that
the first two grounds on appeal are raised in accordance with
Anders v. California, 386 U.S. 738 (1967), thus indicating
the attorney's view that they are not meritorious. Defendant
has been accorded an opportunity to file additional
arguments, which he has not done.
The brief shows that defendant's attorney has
conducted the required detailed review and analysis of the
case. Penson v. Ohio, 488 U.S. 75, 81 n.4 (1988). Counsel
has also actively pursued the one arguable point on appeal,
and the prosecution has now conceded it. As we agree that
the Anders-briefed issues are indeed frivolous, and we find
no other arguable legal issues after reviewing the record,
the case may be determined without further adversarial
presentation. Penson, 488 U.S. at 82, 83-84.
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Under 924(e) a person convicted of violating
922(g) is subject to sentence enhancement if he has three
previous convictions for a violent felony or a serious drug
offense or both. Defendant concedes that two of his prior
offenses were properly classified as "violent" felonies under
18 U.S.C. 924(e).1 He takes issue, however, with the
court's classification of three other prior felony
convictions as "violent." Two of the three convictions at
issue were entered on pleas of nolo contendere to charges of
breaking and entering under R.I. Gen. Laws 11-8-3 (1969),
R.I. Gen. Laws 11-8-3 (1981); the third was on a plea of
guilty to assault with a dangerous weapon under R.I. Gen.
Laws 11-5-2 (1969).
As to the two breaking and entering convictions,
defendant argues that these crimes do not qualify as
predicate "violent" offenses because the state's statutory
1. 924(e)(2)(B) defines "violent" felony as:
... any crime punishable by imprisonment
for a term exceeding one year, or any act
of juvenile delinquency involving the use
or carrying of a firearm, knife, or
destructive device that would be
punishable by imprisonment for such term
if committed by an adult, that --
(i) has as an element the use,
attempted use or threatened use of
physical force against the person of
another; or
(ii) is burglary, arson, or
extortion, involves the use of
explosives, or otherwise involves conduct
that presents a serious potential risk of
physical injury to another ....
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definition refers to several offenses, some of which fall
outside the generic definition of "burglary." The state's
definition also does not include a separately stated element
of violence. The charging documents in these cases, however,
clearly reveal that in each case defendant was convicted of a
felony that fell squarely within the "generic" definition of
burglary (unlawful entry of an apartment with the intent of
committing larceny, and unlawful entry of a building with the
intent of committing larceny). Taylor v. United States, 495
U.S. 575, 598 (1990); see United States v. Paleo, 967 F.2d 7,
10 (1st Cir. 1992) (when statute includes both generic and
non-generic burglaries, sentencing court may look to the
charging documents). Despite the absence of a separately
stated element of violence, Congress included these crimes
among the predicate "violent" crimes under 924(e) because
of their "inherent potential for harm to persons." Taylor,
495 U.S. at 588; Paleo, 967 F.2d at 10.
Defendant's conviction for assault with a dangerous
weapon is also properly included as a predicate "violent"
crime for sentence enhancement purposes under 924(e)(1).
By definition, this crime "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)(i); Taylor,
495 U.S. at 600-601. Accordingly, we need not look beyond
the fact of conviction to determine that the crime is an
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appropriate predicate offense. United States v. Bregnard,
951 F.2d 457, 459 (1st Cir. 1991) (Taylor's categorical
approach extends to the entire enhancement statute), cert.
denied, 112 S. Ct. 2939 (1992).2 Defendant's argument that
924(e)(2)(B) defines assaults as violent predicate
offenses only if they are accomplished with a "gun, knife or
destructive device" misreads the federal statute. The quoted
language qualifies only crimes of juvenile delinquency; it is
irrelevant to crimes committed by adult offenders.
We also find no error in the application of the
sentencing guidelines. As defendant was subject to an
enhanced sentence under 924(e), his offense level was
properly determined under 4B1.4(a)(b)(3) to be 33. With a
decrease of two points for acceptance of responsibility to
31, and a criminal history level of VI, the court correctly
found the guideline range to be 188-235 months. As an aside,
2. Defendant seemingly argues that since he was charged
with using an object that was not inherently dangerous, "to
wit, a stick," the state statute necessarily includes
potentially "unharmful" types of assault. This argument is
belied by the statutory definition itself, which requires a
"dangerous" weapon, and by the Rhode Island courts' reading
of the statute as requiring "an unlawful offer to do corporal
injury to another under such circumstances as may create a
reasonable apprehension of immediate injury ... coupled with
a present ability to carry the offer into effect." State v.
Jeremiah, 546 A.2d 183, 186 (R.I. 1988). The object itself
must be either an inherently dangerous object or used in such
a way that serious bodily harm may have resulted. State v.
Mercier, 415 A.2d 465, 467 (R.I. 1980). Compare with the
statute discussed in United States v. Harris, 964 F.2d 1234(1st Cir. 1992), and Bregnard, 951 F.2d at 459-60.
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we note a typographical error on the sentencing report, page
5, where, despite a correct computational result, the total
offense level is reported as "23." The district court may
correct this error at any time under Fed. R. Crim. P. 36.
Lastly, defendant argues, and the government now
concedes, that in light of this court's decision in United
States v. Corral, 964 F.2d 83, 84 (1st Cir. 1992), issued one
day after the sentence imposed here, the costs of supervised
release should not have been imposed on the defendant, who
was found indigent. We thus vacate that portion of the
sentence. In accordance with Anders we have
examined the entire record and find no other meritorious
issues for appeal. Counsel's attention is directed to Loc.
R. 45.6.
Accordingly the judgment below is affirmed in part
and vacated and remanded in part for corrections in
accordance with this opinion.
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