United States Court of Appeals

For the First Circuit

No. 09-1542

UNITED STATES OF AMERICA,

Appellant,

v.

TIMOTHY GIGGEY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

 Lynch, Chief Judge,

Torruella and Boudin, Circuit Judges.

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

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

James S. Hewes, by appointment of the court, for appellee.

Judith H. Mizner, Assistant Federal Public Defender, for the

Federal Public Defender for the Districts of Massachusetts, New

Hampshire and Rhode Island, Amicus Curiae.

December 14, 2009
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BOUDIN, Circuit Judge. This appeal is a sequel to our en

banc decision in United States v. Giggey, 551 F.3d 27 (1st Cir.

2008), in which we remanded a criminal case for re-sentencing.

Following the new sentence the government now appeals; it does not

challenge the new sentence on the merits but requests that we ask

the Sentencing Commission to clarify how courts ought properly to

apply the Sentencing Guidelines to non-dwelling burglary.

The history of this case, elsewhere recounted, Giggey,

551 F.3d at 30-32; United States v. Giggey, 501 F. Supp. 2d 237 (D.

Me. 2007), can be abbreviated. On December 19, 2006, Giggey, along

with his brother and a juvenile male, set out to burglarize a

building in Lewiston, Maine. To create a diversion, the three set

a series of small fires in a nearby vacant building; but the fires

spread and razed four neighboring buildings that had received

funding pursuant to a federal rehabilitation grant from the

Department of Housing and Urban Development. Giggey pled guilty to

maliciously destroying by fire a building owned by an organization

that received federal financial assistance. 18 U.S.C. § 844(f)

(2006).

During sentencing, the district court found Giggey to be

a career offender, a category that embraces one who, being 18 or

older, commits a felony that is a "crime of violence" (or a drug

offense) as defined by the guidelines and has at least two other
The Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), 1

which has other sentencing consequences not here relevant, uses

similar language to define the phrase "violent felony" except that

the term "burglary" is not qualified by the phrase "of a dwelling."

Id. § 924(e)(2)(B). In other respects cases construing the statute

are also frequently authority as to the guideline. See United

States v. Pratt, 568 F.3d 11, 19 n.7 (1st Cir. 2009). 

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such convictions. U.S.S.G. § 4B1.1(a); see also 28 U.S.C. § 994(h)

(2006). Section 4B1.2(a) of the guidelines states that:

The term “crime of violence” means any offense

under federal or state law, punishable by

imprisonment for a term exceeding one year,

that--

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

or threatened use of physical force against

the person of another, or

(2) is burglary of a dwelling, arson, or

extortion, involves use of explosives, or

otherwise involves conduct that presents a

serious potential risk of physical injury to

another.1

This career offender designation increased Giggey's

guidelines range from 63 to 78 months to 151 to 188 months. See

U.S.S.G. § 4B1.1(b). Giggey's prior convictions supporting the

designation were two earlier burglary convictions: one for the

burglary of a garage in March 2000 for which Giggey received a twoyear sentence with all but 90 days suspended, and the second for

the burglary of a convenience store in June 2004 for which he

received a 30-month sentence with all but four months suspended.

At the time of his initial sentence, the district court

in designating Giggey a career offender was constrained by First
See Taylor v. United States, 495 U.S. 575, 600-02 (1990); 2

Chambers v. United States, 129 S. Ct. 687, 690-93 (2009); Begay v.

United States, 128 S. Ct. 1581, 1584 (2008); James v. United

States, 550 U.S. 192, 201-02 (2007); Shepard v. United States, 544

U.S. 13, 17 (2005).

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Circuit precedent holding that non-residential burglaries were per

se crimes of violence. See United States v. Sawyer, 144 F.3d 191,

195-96 (1st Cir. 1998); United States v. Fiore, 983 F.2d 1, 4-5

(1st Cir. 1992), cert. denied 507 U.S. 1024 (1993). Nevertheless,

in sentencing Giggey as a career offender, the district judge--

pointing to developments since Sawyer and Fiore--urged this court

to reconsider the holding of those cases. Giggey was sentenced to

95 months' imprisonment, a downward variance from the Guidelines

range based on statutory factors. 18 U.S.C. § 3553(a).

Giggey appealed, and this court en banc overruled Sawyer

and Fiore, holding that the district court had to examine, using a

categorical approach, whether the predicate offenses "present[ed]

a serious potential risk of physical injury." See Giggey, 551 F.3d

at 38-39. On remand, the district court held that Giggey's prior

burglary offenses did not pose such a danger and that he was not a

career offender. Giggey was then sentenced to 42 months'

imprisonment, reflecting cooperation with the government and time

spent being held on state charges. The government now appeals.

Under the categorical approach adopted by the Supreme

Court and repeatedly reaffirmed, career offender designation 2

depends not on the conduct of the defendant in the case at hand but
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on whether the offense of conviction is one of those identified in

the relevant statute or guideline. As Taylor explained, sentencing

courts may "look[] only to the statutory definitions of the prior

offenses, and not to the particular facts underlying those

convictions." 495 U.S. at 600. Accord Begay, 128 S. Ct. at 1584

("In determining whether this crime is a violent felony, we

consider the offense generically, that is to say, we examine it 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.").

In other words, if the crime is one identified in the

statute or guideline--such as arson or extortion, U.S.S.G. §

4B1.2(a)(2)--it counts as one of violence for career offender

purposes, regardless of whether the defendant's own conduct was

actually violent. And if the defendant's crime does not have the

use of force as an enumerated element and is not an enumerated

crime or within the residual clause, it is irrelevant that the

defendant committed it in a violent way. The key is the crime

committed, not the facts of the particular event.

In implementing this approach, the first step is to

identify the offense of conviction. Where the statute covers

multiple crimes--as where it is divided into categories--it is

sometimes difficult to tell which subordinate crime is the offense

of conviction; for this purpose alone, it is permissible to consult
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a restricted set of sources (e.g., indictment, plea colloquy, jury

instructions) to answer this question. Shepard, 544 U.S. at 26;

Taylor, 495 U.S. at 602. But such information is permissibly used

not to determine whether the defendant committed the crime in a way

that involved or threatened violence, but merely to help decide

which offense he was convicted of by trial or plea.

 The Maine statute embracing Giggey's prior crimes broadly

defines burglary to cover one who "enters or surreptitiously

remains in a structure, knowing that he is not licensed or

privileged to do so, with the intent to commit a crime therein,"

but it then sub-categorizes burglaries, each of which is a separate

crime carrying a different penalty. Me. Rev. Stat. Ann. tit. 17-A,

§ 401 (2000). Giggey pled in both of the earlier cases to a class

C burglary and so this is the offense that must be classified under

the guideline; unlike Shepard there is no uncertainty here as to

which offense Giggey pled to.

Class C burglaries as defined under Maine law are a

residual category which, by contrast to class A or B burglaries, do

not involve firearms, other dangerous weapons, entry into dwellings

or the infliction or attempt to inflict bodily injury. See Giggey,

551 F.3d at 44 (Lipez, J., concurring in judgment). Accordingly,

a class C burglary does not have as an element physical force

against another, nor is it one of the crimes (such as burglary of

a dwelling) expressly named in the guideline. The question then is
In Chambers the court held that failure to report for 3

imprisonment does not satisfy ACCA's physical force, enumerated

crime, or serious potential risk of physical injury requirements,

and is crime of inaction, not purposeful violent and aggressive

conduct; in reaching this result the Court rejected the

government's argument that three individual cases showed violence

by reference to United States Sentencing Commission report. 129 S.

Ct. at 691-93.

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whether the class C burglary viewed categorically creates a risk of

physical injury comparable to that of the crimes listed in section

4B1.2(a)(2) of the guidelines. Begay, 128 S. Ct. 1585.

Admittedly this comparability question may be difficult,

but answering it is what the categorical approach entails. By

"comparable," the Supreme Court means that the offense must be

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

Begay, 128 S. Ct. at 1585. James resolved a related burglary issue

by common sense and analogy, 550 U.S. at 203-05; in Begay, the

Court found that DUI was different in the way or manner the risk

was produced and, unlike the listed crimes, did not involve

"purposeful, violent, and aggressive conduct." 128 S. Ct. at 1586

(internal quotation marks omitted). Most recently, Chambers

followed a similar approach. 129 S. Ct. at 692-93.3

In this appeal, the government has not argued for

reversal on the grounds that the district court mis-identified the

crime of conviction, that it mis-assessed the risk presented by the

nature of class C burglary or that it improperly considered

evidence of Giggey's specific conduct. Instead, it urges our court
As we explained in Giggey's first appeal, the Commission had 4

two opportunities to make a definitive statement as to whether nonresidential burglaries should be enumerated as crimes of violence;

it considered proposals in 1992 and 1993 to amend § 4B1.2 and its

commentary to provide a definitive answer, but each proposal

failed. Giggey, 551 F.3d at 34-35.

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to stay the government's appeal and request the Sentencing

Commission to clarify whether non-dwelling burglary is a "crime of

violence" for career offender purposes. Conceivably we could do

so, although no exact precedent for this course is cited. Cf.

United States v. Gondek, 65 F.3d 1, 4 (1st Cir. 1995) (advising

the Commission of a recurring problem after decision).

However, the Commission has been aware for some time of

the debate about non-dwelling burglaries and, even if it chose to

amend or clarify its existing guideline, that is usually a lengthy

process. Further, it is not clear what help the Commission would 4

be likely to furnish where, under Taylor's approach, we face the

task of assessing the comparability of the risk of an offense as

defined by a particular state statute. No doubt the Commission

could amend its guideline to enlarge or narrow its coverage, but an

enlargement would not apply retroactively and a narrowing would not

change the result in this case.

Because there is no specification of error by the

government directed to the district court's reasoning or findings

and the government's alternative request that we consult the

Commission is unpromising, we dismiss the appeal.
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It is so ordered.