Of the Northern District of Florida, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2331

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS TORRES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,

Stafford, District Judge, *

and Torruella, Circuit Judge.

Karen A. Pickett, with whom Donnelly, Conroy & Gelhaar, LLP

was on brief for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

September 10, 2008
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TORRUELLA, Circuit Judge. Carlos Torres pled guilty to

possession of crack cocaine with intent to distribute. The

Presentence Investigation Report ("PSR") determined him to be a

career offender under the Sentencing Guidelines, resulting in a

Guidelines Sentencing Range ("GSR") of 188 to 235 months. Counted

for career-offender purposes were two New Jersey convictions -- one

for drug distribution and one for possessing an assault weapon --

that Torres committed at age seventeen, and for which he was

convicted and sentenced at age twenty. On appeal, Torres

challenges his qualification as a career offender by arguing that

these convictions were not properly countable because he was a

juvenile when he committed them, and that the gun-possession

offense was not a "crime of violence," as required under the

applicable guideline. He also argues that he must be resentenced

to take account of recent Guidelines amendments concerning crack

cocaine. After careful review, we affirm Torres's sentence.

I. Background

Torres sold 10.1 grams of crack cocaine to an undercover

agent. He was arrested and charged with distributing five or more

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), an

offense carrying a statutory mandatory minimum sentence of five

years and a maximum of forty years. Id. § 841(b)(1)(B). He pled

guilty and the district court accepted the plea.
 Torres was sentenced under the 2006 Guidelines. Under the 1

amended 2007 Guidelines, this base offense level would have been

twenty-four. See U.S.S.G. § 2D1.1(c)(8) (2007).

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Torres's PSR calculated his base offense level as

twenty-six because he possessed 10.1 grams of crack. See U.S.S.G.

§ 2D1.1(c)(7) (2006). It subtracted from this number three levels 1

for acceptance of responsibility, see id. § 3E1.1, for a total

offense level of twenty-three. The PSR determined, however, that

Torres qualified as a career offender under the Guidelines because

he fulfilled the three criteria in U.S.S.G. § 4B1.1: (1) he was

over age eighteen when he committed the crime of conviction;

(2) the crime of conviction was a controlled-substance offense; and

(3) he had at least two prior felony convictions of either a crime

of violence or a controlled-substance offense, or one of each. See

id. § 4B1.1(a). Two prior convictions are relevant to the

discussion below. First, in January 1996, Torres possessed

marijuana and crack cocaine within 1,000 feet of a school; a New

Jersey court convicted and sentenced him for possession with intent

to distribute in October 1998 ("New Jersey drug conviction").

Second, in February 1996, Torres illegally possessed what the PSR

described as a "fully-loaded M-11 machine gun"; a New Jersey court

convicted him of possession of an assault firearm in October 1998,

and set his sentence to run concurrently with that for the drug
 The PSR also listed what the Probation Office considered to be 2

a third prior New Jersey conviction, for burgling a store, which

Torres committed in June 1998 and for which he was convicted and

sentenced in October 1998. Below, we hold that the district court

properly counted the New Jersey drug conviction and the New Jersey

gun conviction as career-offender predicates, and two qualifying

prior convictions are all that is required. See U.S.S.G.

§ 4B1.1(a). For this reason, we need not state a view on whether

the burglary conviction was properly counted, and we deny Torres's

request, made in a Federal Rule of Appellate Procedure 28(j) letter

following oral argument, to delay a decision in this case until the

en banc court issues an opinion in United States v. Giggey,

No. 07-2317.

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offense. At the time he committed both offenses, Torres was 2

seventeen years old; at the time he was sentenced for both, he was

twenty.

Because Torres qualified as a career offender, and

because his offense of conviction has a statutory maximum of forty

years' imprisonment, the PSR calculated his base offense level as

thirty-four. See id. § 4B1.1(b)(B); 21 U.S.C. § 841(b)(1)(B).

This base offense level superseded Torres's non-career-offender

base offense level of twenty-six by operation of the relevant

provision in the career-offender section of the Guidelines.

See id. § 4B1.1(b) ("[I]f the offense level for a career offender

from the table in this subsection is greater than the offense level

otherwise applicable, the offense level from the table in this

subsection shall apply."). Under the terms of the same provision,

the PSR set Torres's Criminal History Category ("CHC") at VI.

See id. ("A career offender's criminal history category in every

case under this subsection shall be Category VI."). The PSR then
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subtracted three points to take account of Torres's acceptance of

responsibility, leaving him with a total offense level of

thirty-one and a CHC of VI. This produced a GSR of 188 to 235

months. Id. § 5A.

At sentencing, the district court found that the

Government had proved the New Jersey drug conviction and the New

Jersey gun conviction, that New Jersey law considered them adult

convictions, and that they therefore could be counted to render

Torres a career offender. The court accepted the PSR's

recommendation that Torres's career-offender offense level should

be thirty-one, his CHC VI, and his resulting GSR 188 to 235 months.

Calling Torres a "classic career offender [of the type] Congress

had in mind for these long prison sentences," the court rejected

Torres's plea to vary the sentence downward, considered the

18 U.S.C. § 3553(a) factors, and sentenced him near the bottom of

the range to 195 months in prison. Torres lodged a timely appeal.

II. Discussion

A. Standard of Review

We review the "procedural component of the sentence for

abuse of discretion; procedural errors amounting to an abuse of

discretion might include 'failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the 18 U.S.C. § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing
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to adequately explain the chosen sentence -- including an

explanation for any deviation from the Guidelines range.'" United

States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008) (quoting

United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)). Thus,

the district court's legal interpretation of Guidelines provisions

receives plenary review. See United States v. Vázquez-Botet, 532

F.3d 37, 65 (1st Cir. 2008).

B. Whether Torres's 1996 Convictions May Count Toward

 His Career-Offender Status

As they did before the district court, the parties argue

at length about whether it was proper for the district court to

count the New Jersey drug and gun convictions to render Torres a

career offender, as he was seventeen when he committed both but

twenty when he was convicted and sentenced. See U.S.S.G. § 4B1.2

cmt. n.1 ("A conviction for an offense committed at age eighteen or

older is an adult conviction. A conviction for an offense

committed prior to age eighteen is an adult conviction if it is

classified as an adult conviction under the laws of the

jurisdiction in which the defendant was convicted . . . .").

Torres contends that under the relevant New Jersey law the age of

adulthood is eighteen, so his convictions for offenses committed

when he was seventeen cannot be counted in his score. The

Government counters that, even though Torres was a minor when he

committed the offenses, he was convicted and sentenced at age
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twenty and treated by the New Jersey court as an adult, so the

offenses can be counted.

Under the circumstances, we need not delve into New

Jersey law or how the New Jersey court classified Torres

thereunder, because another provision in the Guidelines forecloses

Torres's challenge. Application Note 3 to § 4B1.2 states that

"[t]he provisions of §4A1.2 (Definitions and Instructions for

Computing Criminal History) are applicable to the counting of

convictions" for determining whether a defendant is a career

offender. Id. cmt. n.3. One of the provisions of § 4A1.2, in

turn, is Application Note 7, which discusses how to count offenses

committed prior to the age of eighteen for purposes of a

defendant's criminal-history score where the crime of conviction

was commenced within five years of release from confinement:

Section 4A1.2(d) covers offenses committed

prior to age eighteen. . . . [F]or offenses

committed prior to age eighteen, only those

that . . . resulted in imposition of an adult

or juvenile sentence or release from

confinement on that sentence within five years

of the defendant's commencement of the instant

offense are counted. To avoid disparities

from jurisdiction to jurisdiction in the age

at which a defendant is considered a

"juvenile," this provision applies to all

offenses committed prior to age eighteen.

Id. § 4A1.2 cmt. n.7.

The parties do not dispute that Torres was convicted of

and sentenced for the New Jersey drug and gun offenses in October

1998, served his respective sentences for the two crimes
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concurrently, and was ultimately released from the New Jersey

correctional facility in January 2002 after having been paroled for

a time and then having had his parole revoked. They likewise do

not dispute that Torres committed the "instant offense" -- that is,

selling 10.1 grams of crack cocaine to an undercover agent -- in

May and June 2004, less than five years after Torres's January 2002

release from New Jersey custody. The condition in Application

Note 7 of § 4A1.2 was therefore triggered, and Application Note 3

of § 4B1.2 allows recourse to Application Note 7 in determining

whether a prior conviction may be counted. See United States v.

Bacon, 94 F.3d 158, 161 (4th Cir. 1996) ("Whether a prior

conviction must be counted [toward a defendant's career-offender

status] under § 4B1.1 is determined by reference to § 4A1.2."); see

also Stinson v. United States, 508 U.S. 36, 38 (1993) (Guidelines

commentary authoritative if it does not violate Constitution or

federal statute, and is not inconsistent with the relevant

guideline itself).

As a result, the district court committed no error in

counting both New Jersey convictions in determining that Torres was

a career offender. This reading of the relevant Guidelines

provisions and commentary comports with that of the Sixth Circuit

in United States v. Hinds, 2 F. App'x 420 (6th Cir. 2001) (per

curiam), which held that the district court had properly counted

the defendant's prior conviction toward his career-offender status
 Because we find an alternative ground for affirmance, we need 3

not state a view on whether the district court was correct in

characterizing these as adult convictions. See United States v.

Brown, 510 F.3d 57, 74 (1st Cir. 2007) (affirmance permitted on any

ground supported by record).

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because his release from prison occurred less than five years

before he committed the federal offense that was the subject of the

appeal. Id. at 424-25. Given this fact, the Hinds court did not

reach the disputed question of whether the prior conviction was an

adult conviction or a juvenile conviction. See id. at 425. Our

reading is also consistent with that of the Third and Fourth

Circuits. See, e.g., United States v. Moorer, 383 F.3d 164, 167-68

(3d Cir. 2004) (relying on another portion of U.S.S.G. § 4A1.2 cmt.

n.7, incorporated by reference through U.S.S.G. § 4B1.2 cmt. n.3,

to determine that one of the defendant's prior convictions could be

counted for career-offender purposes); United States v. Mason, 284

F.3d 555, 559 (4th Cir. 2002) (suggesting that, had less than five

years transpired between defendant's release from prison and his

commission of the instant offense, the prior conviction could have

been counted toward his career-offender status).

For these reasons, it is immaterial whether Torres was

classified as an adult under New Jersey law, or whether the

relevant time for him to be so classified was when he committed

these crimes or when he was convicted and sentenced for them.3

Therefore, provided the district court was correct in finding the

New Jersey gun conviction to be a "crime of violence" for career-
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offender purposes -- a question we address immediately below -- the

court did not abuse its discretion in counting both the New Jersey

drug offense and the New Jersey gun offense as contributing to

Torres's status as a career offender.

C. Whether the New Jersey Gun Conviction Was for a Crime

 of Violence

The Guidelines list two types of offenses for which a

prior conviction may be counted to render a defendant a career

offender: "crime[s] of violence" and "controlled substance

offense[s]." U.S.S.G. § 4B1.1(a). The parties do not dispute that

the New Jersey drug conviction was for a controlled-substance

offense, and is thus countable. Torres does, however, challenge

the district court's conclusion that the New Jersey gun conviction

was for a crime of violence.

Section 4B1.2 of the Guidelines defines a "crime of

violence" as an offense that "has as an element the use, attempted

use, or threatened use of physical force against the person of

another." Application Note 1 elaborates on this definition,

explaining in pertinent part that "[u]nlawfully possessing a

firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun

or sawed-off rifle, silencer, bomb, or machine gun) is a 'crime of

violence.'" U.S.S.G. § 4B1.2 cmt. n.1 ¶ 5. Section 5845(a), in

turn, lists a number of firearms, including "a machinegun."

26 U.S.C. § 5845(a)(6). "Machinegun" is defined as "any weapon

which shoots, is designed to shoot, or can be readily restored to
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shoot, automatically more than one shot, without manual reloading,

by a single function of the trigger." Id. § 5845(b). Hence, a

prior conviction for unlawful possession of a machinegun meeting

this definition qualifies as a crime of violence for careeroffender purposes.

According to the PSR, the New Jersey court convicted

Torres of "[p]ossession of an [a]ssault [f]irearm" after he was

arrested carrying "a fully-loaded M-11 machine gun." Torres did

not object to this characterization of the crime. While the PSR

recommended that the 1996 New Jersey gun conviction be counted as

a crime of violence qualifying Torres for career-offender status,

it did not set forth an analysis of whether the particular

machinegun Torres was convicted of possessing met the definition of

"machinegun" in § 5845(b), or qualified as another of the firearms

listed in § 5845(a). Faced with no objection from Torres, the

district court likewise did not undertake such an analysis, but

instead found the facts as presented in the PSR and adopted the

PSR's legal recommendations. The court thus implicitly counted the

1996 New Jersey gun conviction as a crime of violence contributing

to Torres's status as a career offender.

As noted above, Torres now claims this was reversible

error. He concedes that the New Jersey court convicted him of

possessing an assault firearm, but asserts that New Jersey's

definition of "assault firearm" includes many guns not meeting the
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definition of any of the firearms in § 5845(a), and that the

Government failed to discharge its burden of proving at sentencing

that it was indeed one of these firearms. Since Torres did not

raise this argument below, we review for plain error. See United

States v. Brandao, No. 07-1215, ___ F.3d ___, 2008 WL 3866512, at

*12 (1st Cir. Aug 21, 2008) (plain-error standard asks (1) whether

the district court erred; (2) whether the error was "plain" -- that

is, clear or obvious; and (3) whether this error affected the

defendant's substantial rights and (4) whether the error

"'seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings'" (quoting United States v.

Olano, 507 U.S. 722, 732 (1993))); United States v. Colón-Díaz, 521

F.3d 29, 33 (1st Cir. 2008); United States v. Brown, 510 F.3d 57,

72 (1st Cir. 2007).

Torres's argument is unavailing. Where, as here, the

defendant does not object to a predicate conviction laid out in the

PSR, the relevant paragraph in the PSR can be used to satisfy the

Government's modest burden of proving the conviction. See United

States v. Jiménez, 512 F.3d 1, 7 (1st Cir. 2007); Brown, 510 F.3d

at 74. Although Torres is correct in pointing out that the record

lacks a detailed description of his gun, the Government would

probably have proffered such evidence had Torres lodged an

objection to the PSR. This, in turn, would have allowed the

district court to perform a fully informed § 5845 inquiry, and us
 We need not (and do not) decide today whether the possession of 4

any assault weapon is per se a crime of violence for careeroffender purposes, but merely that the district court's counting of

the gun-possession conviction in this case was not plain error.

 See supra note 1. 5

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on appeal to review the court's inquiry. It is precisely because

of this sort of scenario that the forfeiture rule exists.

Under the circumstances of this case, we need not remand

for resentencing so that the district court, with the benefit of

additional evidence describing the gun, can perform the § 5845

inquiry. Defendant has not met his burden of showing error or that

any error was plain. It is exceedingly unlikely that the

unauthorized possession of a weapon described in the PSR as an

"M-11 machine gun," and by the New Jersey court as an "assault

weapon," could fail to meet the straightforward definition in

§ 5845(b). Cf. United States v. Golding, 332 F.3d 838, 840-43 4

(5th Cir. 2003) (per curiam) (holding that unlawful machinegun

possession is a crime of violence). We accordingly decline

Torres's invitation to overturn the court's decision to count the

New Jersey gun conviction as a career-offender predicate.

D. Effect of Kimbrough and Amendments to Crack-Cocaine

 Guidelines

In his last sentencing challenge, Torres argues that this

case must be remanded for resentencing to take account of the U.S.

Sentencing Commission's recent amendment to the Guidelines lowering

the offense levels for certain crack-cocaine offenses, as well as 5
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the Supreme Court's decision in Kimbrough v. United States, 128

S. Ct. 558 (2007), which postdated his sentencing. Yet as the

Government argues and Torres concedes, what determined Torres's

base offense level of thirty-four was the unamended statutory

maximum for his crime -- forty years -- combined with the fact that

he had sufficient predicate convictions to qualify him as a career

offender. See 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1(b)(B)

(career-offender status combined with statutory maximum of twentyfive years or more yields base offense level of thirty-four).

Thus, it would serve no purpose to remand for resentencing because,

notwithstanding any salutary effect the Guideline amendment or

Kimbrough may have had on Torres were he not a career offender, in

this case the district court would still be compelled to assign

him, as a career offender, a base offense level of thirty-four.

See U.S.S.G. § 4B1.1(b)(B); see also Jiménez, 512 F.3d at 8-9. We

accordingly reject this ground of appeal.

III. Conclusion

For these reasons, we affirm Torres's sentence.

Affirmed.