Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1116

UNITED STATES OF AMERICA,

Appellee,

v.

COSME SANCHEZ-RAMIREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

 Lynch, Chief Judge, 

Farris, and Howard, Circuit Judges. *

Michael Tumposky, with whom Stephen B. Hrones and Hrones,

Garrity & Hedges, were on brief, for appellant.

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

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

June 30, 2009
See 18 U.S.C. §§ 922(g)(1) and 924(e)(1). 1

See 18 U.S.C. §§ 922(a)(6) and 924(a)(2). 2

See 18 U.S.C. § 911. 3

- 2 -

HOWARD, Circuit Judge. Following a bench trial in which

the district court rejected his insanity defense, appellant Cosme

Sanchez-Ramirez ("Sanchez") was convicted of all three counts

lodged against him: being a felon in possession of a firearm,1

making a false statement in the acquisition of a firearm, and 2

making a false claim of citizenship. He was sentenced to 180 3

months' imprisonment. He posits two arguments on appeal. First,

Sanchez claims that the district court erred in not ordering a

competency hearing after the close of evidence and before closing

arguments, in addition to the one ordered immediately after his

arraignment. Second, he argues that the district court erroneously

applied the minimum sentence mandated by the Armed Career Criminal

Act ("ACCA") to him because certain prior burglary convictions in

Florida were not "violent felonies" within the meaning of the ACCA.

Finding the district court's decision not to order a second

competency hearing well within its discretion, and its sentencing

decision virtually on all fours with recent Supreme Court

precedent, we affirm. 

I. Factual Background

We recite the facts relevant to this appeal in the light

most favorable to the verdict. United States v. Marin, 523 F.3d
- 3 -

24, 26 (1st Cir. 2008). Sanchez was born in Cuba, and arrived in

the United States at age sixteen in 1980 as part of the Mariel

boatlift. His application for asylum was denied, and a deportation

order issued. Cuba, however, refused to accept Mariel returnees,

the deportation order was never executed, and Sanchez remained in

the United States.

In April 2005, Sanchez attempted to purchase a handgun

from a pawn shop and licensed firearms dealer in Bangor, Maine. A

store employee, Orlando Frati, testified that he provided Sanchez

with some assistance in filling out the required federal firearms

purchase application, including pointing out to Sanchez that he had

not answered a question seeking his citizenship status. Sanchez

responded by writing "Yes, USA" on the form. He further answered

that he was not a convicted felon, and that he was a Native

American or Alaskan Native. All three answers were false.

Sanchez examined two pistols while in the store. He did

not purchase either of them, but mentioned that he preferred the

smaller of the two because it was easier to conceal and thus avoid

suspicion or be readily available for use in any confrontation with

police. He also posed in front of a mirror with a gun in his

pocket. Sanchez produced a social security card, but did not have

the necessary photo identification to make a purchase. After

promising to return with the proper identification, Sanchez left in

the same taxi in which he had arrived. Frati had noted the license

plate number of the taxi as was his habit with waiting cabs. 
Sanchez's personal and medical history is culled from reports 4

in the record, as well as Sanchez's own testimony.

In addition to his own history, Sanchez testified that 5

members of his family also had a history of mental illness.

- 4 -

After Sanchez left, Frati submitted the completed

application to the National Instant Check System. After a delay,

the application was denied. Because he was concerned about the

denial in combination with Sanchez's concealment and police

comments, Frati provided authorities with Sanchez's application

form and a video from the store's surveillance system containing

footage of Frati's interaction with Sanchez in the store.

Investigation by an agent of the Bangor Police Department and

federal Bureau of Alcohol, Tobacco, Firearms and Explosives task

force revealed that Sanchez had been convicted of, inter alia, four

felonies -- three in Florida and one in Georgia. Using the taxi's

license number as a lead to locate him, authorities arrested

Sanchez soon after in a local motel.

At a detention hearing shortly after his arrest,

Sanchez's defense counsel moved for a psychiatric examination and

competency hearing. The district court granted the motion, and

Sanchez was transferred to a federal medical facility for

evaluation. Given its central role in this appeal, we first turn

to the record evidence relating to Sanchez's mental health. 

4

II. Mental health history

 Sanchez has a lengthy history of mental health problems,

the details of which are not in dispute. He testified that he 5
- 5 -

tried to injure himself on two separate occasions in Cuba before he

was ten years old and that he occasionally hears voices speaking to

him "from another world." Sanchez recounted being hospitalized in

Cuba when he was thirteen for purposes of a judicially-ordered

mental health examination. Sanchez said that he was forced to

leave Cuba in the Mariel boatlift because his mental health made

him an undesirable in the eyes of Fidel Castro.

Sanchez's difficulties continued after his arrival in the

United States. In 1984, he was hospitalized in California after

cutting his wrists. In 1993, he was hospitalized in New York,

after behaving erratically and "feeling like dead people were

following" him. In 1999, Sanchez was hospitalized in North

Carolina after he was found wandering on a highway. The record

also reflects two suicide attempts in Virginia and Georgia between

2000 and 2002 which resulted in hospitalizations.

Sanchez was living with a friend in Portland, Maine prior

to arriving in Bangor. While there, he suffered from depression

and hallucinations. Sanchez was also hospitalized after police

responded to a call that he was in possession of a knife and was

threatening suicide. He was again hospitalized during his time in

Portland when it was reported to police that he was trying to light

a fire in the kitchen of a shelter where he was staying. He

ultimately relocated to Bangor.

On the day prior to his attempted gun purchase, Sanchez

testified that he was planning on leaving Maine and taking a bus to

Atlanta, Georgia in order to seek medical attention there. He had
- 6 -

been drinking before going to the bus station, where he met a man

and a woman who convinced him that they could help him. Instead,

the three spent time taking pills and drinking liquor, before the

couple attempted to rob Sanchez. Although the robbery was

unsuccessful, the couple left Sanchez on a Bangor street near the

motel where he was eventually arrested. 

Early the next morning, Sanchez took a taxi to a local

hospital because he was not feeling well. He was denied treatment

at the emergency room due to the smell of alcohol on his breath.

Shortly thereafter, he began having a panic attack, which led to

suicidal thoughts which prompted him to direct the cab driver to

take him to a place to buy firearms.

III. Pre-trial proceedings

Pursuant to the district court's order, Sanchez was held

at the Federal Medical Detention Center in Massachusetts for 45

days following his arraignment. During that time, licensed

clinical psychologist Christine Scronce interviewed Sanchez for

eight hours and conducted four hours of psychological testing in

order to assess his competency to stand trial. She also collected

Sanchez's medical history -- both from records and his own

recollection -- and considered staff observations and evaluations.

At the conclusion of her work, Dr. Scronce prepared a lengthy

report and testified at a competency hearing before a Magistrate

Judge. She concluded, among other things, that Sanchez exhibited

"a general pattern of deceitful and manipulative behaviors," which
- 7 -

she described as "hallmark signs of malingering." In particular,

she noted that Sanchez often reported symptoms "for secondary

gain," such as being hospitalized rather than jailed, or being

allowed to receive meals in private.

Regarding the pending criminal proceedings, Scronce found

that Sanchez had a good relationship with his attorney, understood

the charges against him and had the ability to consult with counsel

to aid in his defense. Accordingly, Scronce concluded that Sanchez

was competent to stand trial. The Magistrate Judge, in addition to

accepting Scronce's conclusions, noted that Sanchez acted

appropriately during courtroom proceedings, and ultimately found

Sanchez competent to proceed. That ruling has not been appealed.

 Approximately one year later, in June 2006, defense

counsel moved for another pretrial evaluation on the grounds that

Sanchez was unreasonable and uncooperative. The motion was denied

without prejudice, but an accompanying motion to continue the trial

was granted in order to allow time to obtain additional medical

records and give defense counsel an opportunity to review Sanchez's

mental health history more fully and determine whether and to what

extent to place his mental state in issue at trial. Defense

counsel did not renew the motion before trial.

IV. Trial

A bench trial began in January 2007, lasting

approximately four trial days. The trial proceeded uneventfully.

Because Sanchez was interposing an insanity defense and also
- 8 -

arguing that his mental health negated the required mens rea, the

district court heard testimony from Dr. Scronce and from a defense

expert. After the close of evidence, the parties submitted written

trial briefs prior to scheduled final arguments in June. Three

days prior to the scheduled arguments, defense counsel filed a

third motion for a competency hearing. Counsel reported that

Sanchez had stopped taking his prescribed medication and was having

difficulty understanding the facts and issues relevant to his case.

The court did not immediately rule on the motion. The trial

court's post-trial Findings of Fact and Conclusions of Law describe

what followed:

When Mr. Ramirez arrived at the courthouse, he

was beside himself. Prior to the arguments

there was considerable banging in the holding

cell near the courtroom and, at a conference

of counsel, the United States Marshal

expressed serious safety concerns, noting that

Mr. Ramirez was virtually uncontrollable. As

this was not a jury trial and no evidence was

to be taken, the Court acceded to the

Marshal's recommendation that he be shackled

for the hearing.

When the proceedings began, Mr. Ramirez

engaged in a loud, continuous rant, a foul and

abusive harangue against all present. After

entering, the Court waited to see if Mr.

Ramirez would calm down. He did not. In

accordance with Illinois v. Allen, the Court

asked Mr. Ramirez if he could behave himself

and repeatedly warned him that it would have

him removed from the courtroom, if he

persisted. Mr. Ramirez continued unabated

with his incoherent and profane screed and

showed no signs of controlling himself. As

Mr. Ramirez was incapable of remaining in the

courtroom without disrupting the proceedings,

the Court ordered him removed and the parties

made their final presentations in his absence.
- 9 -

United States v. Ramirez, 495 F. Supp. 2d 92, 112 (D. Me.

2007) (internal citations and footnote omitted).

The trial court also noted that Sanchez's courtroom

behavior was a reversal from his demeanor during the multiple days

of trial, during which he sat quietly and testified

"appropriately." Id. at 112 n. 24. In the end, the trial court

found Sanchez guilty of the charges against him, rejected his

insanity defense, and denied the third motion for a competency

examination. Id. at 124 n. 33. It is this denial which Sanchez

now appeals.

V. Discussion

Due process requires that a defendant be mentally

competent to be tried, convicted or sentenced. United States v.

Gonzalez-Ramirez, 561 F.3d 22, 28 (1st Cir. 2009) (citing Drope v.

Missouri, 420 U.S. 162, 172-73 (1975)). The district court must

order a competency hearing "'if there is reasonable cause to

believe that the defendant may presently be suffering from a mental

disease or defect rendering him mentally incompetent to the extent

that he is unable to understand the nature of the proceedings

against him or to assist properly in his defense.'" Id. (quoting

18 U.S.C. § 4241(a)). We review for abuse of discretion the

district court's decision not to hold a competency hearing, and

will affirm the decision so long as there was a sufficient

evidentiary basis to support the decision. Id. (citing United

States v. Bruck, 152 F.3d 40, 46 (1st Cir. 1998)).
Sanchez's belief was based on inaccurate information provided 6

by Dr. Martinez. Indeed, the defense did not even disclose the

existence of Martinez's February report until mid-trial.

- 10 -

Here, as previously noted, Sanchez is not appealing the

trial court's conclusion that he was competent to stand trial. 

Instead, he argues that his behavior after the close of evidence

and prior to closing arguments -- at least partly fueled by his

failure to continue taking prescribed medication -- required the

district court to continue the proceedings and order another

competency evaluation and hearing.

The record reflects several factors which support the

court's decision. First, there is the fact that Sanchez was

originally found competent to stand trial, a decision which was

neither objected to nor appealed. It is true, as appellant argues,

that that conclusion was reached in August 2005, nearly two years

prior to the behavior at issue here. The record does not end

there, however. The second factor weighing against appellant's

position is that a report prepared in February 2006 by a defense

expert, Dr. Martinez, concluded that Sanchez was competent to stand

trial. Significantly, Sanchez mistakenly believed that Martinez's

report would be kept confidential. In addition to his finding of 6

competence, Dr. Martinez also noted Sanchez's tendency to malinger

and exaggerate his symptoms, and that his actions "indicate a

significant degree of . . . planned, controlled, behavior . . . ."

In August 2006, Dr. Martinez prepared a second report, which

Sanchez understood would be disclosed. Here, Dr. Martinez stopped

short of proclaiming Sanchez incompetent to stand trial, finding
- 11 -

only that he suffered from alcohol-induced psychosis at the time he

committed the crimes at issue. Also, as the trial court noted,

medical personnel reported that Sanchez had, in the past, told

others that reporting suicidal or homicidal ideations was a method

of avoiding jail by getting hospitalized. 

Another factor in support of the district court's

ultimate conclusion is that the second motion for a competency

hearing -- which was denied without prejudice in June 2006 -- was

never renewed, suggesting that the issues which gave rise to the

motion were temporary in nature.

Next, the district court had the opportunity to observe

Sanchez at trial, during January 2007. The record, which included

Sanchez's own testimony, is devoid of any indication that Sanchez

was suffering from any psychological difficulties during the trial.

See Cody v. United States, 249 F.3d 47, 53 n. 5 (1st Cir. 2001)

(defendant's observable appearance, demeanor and performance in

court supported district court's competency decision). And while

Sanchez correctly points out that this time period pre-dates by

approximately five months the time period at issue in this appeal,

there is again further evidence in the record that undermines his

claim. Sanchez was sentenced in January 2008, approximately six

months after the closing arguments. As with his conduct at trial,

the record reflects no signs of mental impairment during his

sentencing proceedings. On the contrary, he asked appropriate

questions, was coherent throughout his allocution, praised the
- 12 -

treatment he received at the Maine State Prison, and, according to

his attorney, was able to assist in the sentencing process.

While Sanchez's mental health in January 2008 may not,

standing alone, be an accurate gauge of his mental health in June

2007, the picture we are left with is one in which Sanchez's

behavior on and around June 11, 2007, stands in stark contrast to

his diagnoses and behavior on other occasions both before and after

that time period. In light of this record evidence, we conclude

that the district court acted within its discretion in denying

Sanchez's third motion for a competency hearing.

VI. Sentencing

The lone sentencing issue before us is Sanchez's argument

that the trial court erred in concluding that his three thirddegree burglary convictions in Florida were violent felonies within

the meaning of the ACCA. We review de novo the legal conclusion as

to whether a prior conviction qualifies as a "violent felony".

United States v. Brown, 510 F.3d 57, 73 (1st Cir. 2007).

The ACCA imposes a fifteen year mandatory minimum

sentence on anyone convicted of violating 18 U.S.C. § 922(g) --

unlawful firearms possession -- who has three prior convictions for

certain drug crimes or violent felonies. 18 U.S.C. § 924(e)(1).

A "violent felony" is defined as "any crime punishable by

imprisonment for a term exceeding one year . . . that:

(i) has as an element the use, attempted use,

or threatened use of physical force against

the person of another; or
The predicates at issue do not fit within clause (i) of the 7

ACCA because they do not have the threat or use of physical force

as an element. For the ACCA to apply under the enumerated

"burglary" provision of clause (ii), Sanchez's convictions would

have to be for so-called "generic" burglary, defined as "the

unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime." Taylor, 495 U.S. at

599. Because Florida's burglary statute includes curtilage within

- 13 -

(ii) is burglary, arson, or extortion,

involves use of explosives or otherwise

involves conduct that presents a serious

potential of physical injury to another.

18 U.S.C. § 924(e)(2)(B).

As relevant to this appeal, Sanchez's somewhat lengthy

criminal history included three convictions in Florida for burglary

of churches in 1990 and 1994. During this time period, Florida

defined burglary as "entering or remaining in a dwelling,

structure, or conveyance with the intent to commit an offense

therein, unless the premises are at the time open to the public or

the defendant is licensed or invited to enter or remain." Fla.

Stat. § 810.02(1) (1994). A "structure" was further defined as a

"building of any kind . . . together with the curtilage thereof."

Id. § 810.011(1). Finally, the three convictions at issue were for

third-degree burglary, defined as burglary of a structure where

"there is not another person in the structure at the time the

offender enters or remains . . ." and the offender does "not make

an assault or battery and is not armed . . . with a dangerous

weapon . . . ." Id. §§ 810.02(3), (4).

Where, as here, prior convictions do not fit the

definition of "generic burglary," we employ a categorical approach

to determine whether they fit within the ACCA's residual clause.7
its reach, and because the documents permissibly reviewed under

Shepard v. United States, 544 U.S. 13, 15-16 (2005), do not exclude

the possibility that Sanchez was convicted of "non-generic"

burglary, we look only to the residual clause. James v. United

States, 550 U.S. 192, 212 (2007).

- 14 -

Specifically, the issue is whether they "otherwise involve conduct

that presents a serious potential of physical injury to another."

United States v. Pratt, ___ F.3d ___, No. 05-2624, 2009 WL 1532961

at *5 (1st Cir. June 3, 2009); see also United States v. Pakala,

___ F.3d ___, No. 07-2092, 2009 WL 1636345 at *5 (1st Cir. June 12,

2009).

In determining whether these convictions are encompassed

by the ACCA, we begin by "examin[ing] [them] in terms of how the

law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion." Begay

v. United States, 128 S. Ct. 1581, 1584 (2008) (citing Taylor v.

United States, 495 U.S. 575, 602 (1990)). In addition we must

examine whether the putative predicate in question is "roughly

similar, in kind as well as in degree of risk posed" to the ACCA's

enumerated crimes -- burglary, arson, extortion, or those using

explosives. Id. at 1585.

As we noted in Pakala, much of our work in determining

whether a third-degree burglary conviction in Florida fits within

the ACCA has already been done by the Supreme Court in James. See

Pakala, ___ F.3d at ___, 2009 WL 1636345 at *6. In James the ACCA

predicate conviction at issue was for attempted burglary under the

same Florida statute, and the issue before the Court was whether

that conviction was covered by the residual clause of §
- 15 -

924(e)(2)(B). After first holding that an "attempt" under Florida

law is within the contours of the residual clause -- an issue not

before us -- the Court noted that Florida law has narrowly defined

"curtilage" as including only "an enclosed area surrounding a

structure." James, 550 U.S. at 213 (quoting United States v.

Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006)). Thus, the

inclusion of curtilage in the definition does not lessen "the risk

presented by attempted burglary so as to take the offense outside

the scope of clause (ii)'s residual provision." Id. On the

contrary, curtilage adjacent to a structure is typically enclosed

"to keep out unwanted visitors -- especially those with criminal

motives. And a burglar who illegally attempts to enter the

enclosed area surrounding a dwelling creates much the same risk of

physical confrontation . . . as does one who attempts to enter the

dwelling itself." Id. Thus, the Court concluded that since

attempting to enter the curtilage "requires both physical proximity

to the structure and an overt act directed toward breaching the

enclosure," attempted burglary "'presents a serious potential risk

that violence will ensue and someone will be injured.'" Id.

(quoting Matthews, 466 F.3d at 1275 (burglary of the curtilage in

violation of Florida law is a violent felony under the ACCA)); cf.

Chambers v. United States, 129 S. Ct. 687 (2009) (Illinois

conviction for failing to report for weekend confinement falls

outside of ACCA residual clause because it lacks serious potential

for risk of physical injury).
The district court correctly noted that the fact James 8

involved an attempted burglary, while Sanchez was convicted of

"successful" burglary, inures to Sanchez's detriment. Sanchez does

not engage this reasoning on appeal.

As the district court noted, an unoccupied commercial 9

building could be under surveillance by police, private security

personnel or even the property owner.

- 16 -

Sanchez seeks to escape the reach of James on the ground

that James involved attempted burglary of a dwelling, while 8

Sanchez's convictions all involved unoccupied churches, i.e., nonresidential structures. We are unpersuaded. In discussing the

dangers inherent in attempted burglary of a dwelling, the Court in

James reasoned that the "risk arises not from completion of the

burglary, but from the possibility that an innocent person might

appear while the crime is in progress." Id. at 203. In addition

to building occupants -- not a factor in this case -- the Court

also noted the possibility of confrontation with police or

bystanders who might investigate. Id. These risks are present 9

equally in Sanchez's third-degree "structure-curtilage" burglary

convictions. We therefore conclude that those convictions satisfy

the elements of the ACCA residual clause.

Finally, Sanchez argues that the district court ran afoul

of Begay -- decided after his sentencing -- because his Florida

convictions are not within the class of crimes that "are roughly

similar" to the ACCA's enumerated examples. 128 S. Ct at 1585.

Given that "burglary" is a listed example, this argument strains

credulity. Moreover, given both the risks enumerated by the Court
- 17 -

in James and those identified by the district court, we have little

difficulty concluding that Sanchez's Florida burglary convictions

are "roughly similar, in kind as well as in degree of risk posed"

to the ACCA's enumerated burglary example. Id.

Appellant's conviction and sentence are affirmed.