# United Stat es Court of Appeals For the First C ircuit

No. 01-1196 UNITED STATES OF AMERICA, Appellee,

v. JOSE DELGADO, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge ]

Before Selya, Circuit Judge , Coffin, Senior Circuit Judge , and Lipez, Circuit Judge .

Veronica J. White for appellant. Kevin P. McGrath , Assistant United States Attorney, with whom James B. Farmer , United States Attorney, and Michael D. Ricciuti , Assistant United States Attorney, were on brief for appellee.

May 6, 2002-2- LIPEZ, Circuit Judge . This case r equire s us to decide whether the district court acted within its legal authority in relying upon a police report relating to a defendant's prior state conviction to conclude that he was a career offender and thus subject to an enha nced sentence under the federal sentencing guidelines. Concluding that the court exercised its sentencing authority properly, we affirm. I.

On July 30, 1999, defendant-appellant José Delgado and a co-defendant sold crack cocaine (cocaine base) to an undercover agent of the Drug Enforcement Administration (DEA). On August 24, 1999, Delgado, with two other co-defendants, again sold cocaine base to that DEA agent. On December 8, 1999, Delgado and nine others were charged in a multi-count drug trafficking indictment. Delgado was indicted on one count of conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846, and two counts of coca ine base distribution and aiding and abetting that distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Pursuant to a written plea agreement, Delgado pled guilty to these charges on September 6, 2000. At sent encing, the court concluded, over Delgado's objection, that he was a career offender

a ndthat, under the career offender guideline, U.S.S.G. § 4B1.1 , his base offense level was 32, and his criminal history category

was VI. Awarding Delgado a three-level reduction for acceptance of responsibility, th e di strict court calculated his final adjusted1 Absent Delgado's career offender status, his sentence would

likelyhave been seven years shorter than the 151 months he received.

2 Delgado's criminal history also includes a 1996 conviction for cocaine possession under Puerto Rico law. A controlled substance offense may qualify as a predicate act triggering application of the career offender guidelines where the defendant possessedthe drugs with the intent to manufacture, import, export, distribute or dispense them. See U.S.S.G. §§ 4B1.1 and 4B1.2. Here , however, as the government acknowledges, there is no indication in the Pre-Sentence Report that Delgado possess ed t he cocaine with any such intent; therefore, it does not appear that th is con viction qualifies as a predicate offense for purposes of the career offender guidelines. -3- offense level at 29. The applicable sentencing range for a level 29 category VI offender was 151 to 188 months. The district court accordinglysentencedDel gado, inter alia , to 151 months' imprisonment followed by three years of supervised release. 1

In determining Delgado's career offender status under § 4B1.1, the district court concluded that Delgado's criminal historyincluded two prior convictions for crimes of violence, thus warranting an increase in the offense level for the instant offense. 2 On February 10, 1999, Delgad o wa s convicted in state court of assault with a dangerous weapon, assault and battery on a police officer, and disorderly conduct, and sentenced to ninety days in prison. On April 1, 1999, Delgado pled guilty to the charge of breaking an d enterin g with intent to commit a felony. The effect of this latter conviction on Delgado's federal sentence was hotlydisputed by the parties at sentencing and now constitutes the core issue on appeal.3 Section 4B1.2 defines "crime of violence" as:

(a) . . . any offense under federal or state law , punishable by imprisonment for a termexceeding one year, that (1) has as an element the us e, 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 otherw i se involves conduct that present s a serious potential risk of physical injury to another. -4- II. The career offender guideline, U.S.S.G. § 4B1.1, provides for an enhanced sentence if (1) the defendant was at least eighteen years old at the time he committed the offense for which he is being se ntenced; (2) that offense is a felony that either constitutes a crime of violence or a controlledsubstance offense; and(3) the defendant has at least two prior felony convictions for either crimes of violence o r crimes involving controlled substances. For application of the career offender provisions, the

sen te ncing guidelines define "crime of violence" to encompass certain federal and state offenses punishable by more than a year in prison, including "burglary of a dwelling." 3 U.S.S.G. § 4B1.2.

Here, Delgado -- who was 23 years old at the time of the instant controlled substance offense -- clearly satisfies the first two criteria under § 4B1.1. Furthermore, Delgado concedes that his February 1999 conviction constitutes a crime of violence and thus qualifies as a predicate offense under § 4B1.1. Delgado argues, however, that the brea king-and-entering offense to which he pled guiltyin April 1999 does not constitute a crime of violence under4 Delgado also argues that the April 1999 co nvic tion is not

fit for inclusion in the career offender calculus because it was obtainedin violation of M assachusetts state criminal procedure. This collateral attack on the validity of the April 1999 conviction is improper. "[W]ith the sole exception of convictions obtained in violation of right to counsel," a defendant in a federal sentencing proceeding has no right to attack collaterally the validity of a prior state co nvic tion used to enhance his federal sentence. Custis v. United States , 511 U.S. 485, 487 (1994). See also United States v. Cordero , 42 F.3d 697, 701 (1st Cir. 1994) (quoting Custis in context of § 4B1.1 career offender guideline). This limitation on collateral challenges is intended to preserve the integrity of "the finality doctrine that serves to cons erve scarce judicial resources and promote efficiency" and to prevent sentencing courts fromhaving to "'rummage through frequently nonexistent or diff icu lt to obtain state court transcripts or records that may date from another era, and may come from any one of the 50 States.'" United States v. Burke , 67 F.3d 1, 3 (1s t Cir. 1995) (quoting Custis , 511 U.S. at 496). Delgado conceded at the sentencing hearing that he was represented by counsel in the state criminal proceedings relating to the April 1999 conviction. Thus, we refuse to consider Delgado's collateral challenge to that prior conviction. -5- § 4B1.1, and hence he is not a career offender within the meaning of the guidelines. 4 A. The TaylorCategorical Approach

In determining whether Delgado's April 1999 conviction constitutes a crime of violence, we follow the categorical approach outlinedin Taylor v. United States , 495 U.S. 575 (1990), and subsequent First Circuit precedent. While questions of law concerning interpretation of the sentencing guidelines are reviewed de novo, the fac tua l conclusions of the sentencing court, which must be supported by a preponderance of the evidence, are reviewed for clear error. See United States v. Damon , 127 F.3d 139, 141 (1st Cir. 1997); United States v. Grant , 114 F.3d 323, 328 (1st Cir. 1997).5 In Taylor , the Supreme Court considered whether the

defendant's prior burglary conviction constituted a "violent felony" under 18 U.S.C. § 924(e)(1), a sentence enhancement provision of the Armed Car eer C riminal Act. 495 U.S. at 577-78. Although the § 924(e)(1) definition of "violent felony" is not identical to the § 4B1.1 definition of "crime of violence," we look generallyto cases pertaining to either provision "to elucidate the nature of the categorical inquiry." United States v. Shepard , 231 F.3d56, 63 n.7 (1st Cir. 2000) (noting that "[d]espite the differences between § 4B1.1 and § 924(e)(2), the categ oric al approach applies to both provisions"). See , e.g. , United States v. Fernandez , 121 F.3d 777, 778-79 (1st Cir. 1997) (applying categorical approach to § 4B1.1 "crime of violence" determination); UnitedStates v. Meader , 118 F.3d 876, 882-85 (1st Cir. 1997) (same). -6-

Under the Taylor approach, a se ntencing court should "look only to the fact of conviction and the statutory definition of the prior offense" to de termin e whether a prior conviction qualifies as a predicate offense for sentenci ng enhancement purposes. 5 Id. at 602 . See also United States v. Meader , 118 F.3d 876, 882 (1st Cir. 1997) (deciding whether a crime is a "crime of violence" is an inquiry "restricted to the statutory definitions of the prior offenses without regard to the particular facts underlying them"); United States v. Har ris , 964 F.2d 1234, 1235 (1st Cir. 1992).

Sometimes, however, "looking to the statutory definition alone" will not es tablis h whether the crime underlying the prior conviction was one of violence because some statutes contain language that covers both violent and non-violent crimes. Harris , 964 F.2d at 1235 (internal quotation marks omitted). Where the statutorydefinition encompasses both violent and non-violent offenses, a sentencing court may look to the charging document -- such as the indictment or information -- and jury instructions to-7-

ascertain whether the conviction was for a violent or non-violent crime. See Taylor , 495 U.S. at 602; United States v. Shepard , 231 F.3d56, 63 (1st Cir. 2000); United States v. Sacko , 178 F.3d 1, 3 (1st Cir. 1999); Harris , 964 F.2d at 1235.

If the charging document only incorporates the unhelpfullybroad statutory language and if there is no jury charge because the conviction is based on a guilty plea, a sentencing court may appropriately

look to the conduct in respect to w hich the defe n dant was charged and pled guilty, not because the court may p roperly be interested (in this context) in the violent or non-violent nature of that particular conduct, but because that conduct m a y indicate that the defendant andthe governm e nt both believed that the genericallyviolent crime . . . rather than the genericallynon-violent crime . . . was at issue. Harris , 964 F.2d at 1236. Thus, the issue before the sentencing court is not what the defendant "did to provoke the criminal charges to which he pled guilty." Shepard , 231 F.3d at 69. Rather, what is critical is "the meaning of the defendant's guilty plea" -- that is, whether the defendant's guilty plea "constitute[s] an admission" to a crime of violence under "the preponderance of the evidence" standard. Id. at 66, 68.

In discerning the plea's meaning, the court may rely on "sufficiently reliable evidence independent of a fact-specific admission." Id. at 66. Such evidence -- so long as it is deemed sufficiently reliable by the district court -- may include police reports. Id. a t 67 ("Based on our precedents, we see no justification for an absolute bar to the consideration of [police6 It does not appear that an amended complaint was ever filed;

instead, a notation was placed on a document entitled "Criminal Docket" to reflect the April 1999 amended charge. Although the "Criminal Docket" document contains no explicit citation to a statute, both parties agree that Mass. Gen. L. ch. 266, § 16 is the stat ute wh ich most closely tracks the language of the amended charge in that document. Furthermore, the sentence imposed, two years in a house of correction, is consistent with the penalty provisions of that offense. Accordingly, we conclude (andDelgado does not dispute) that this statute sets forth the offense to which he pled guilty. Section 16 states in relevant part:

Whoever, in the night time, breaks and enters a building, ship, vessel or vehicle, with intent to commit a felony, or who attempts to or does bre ak , burn, blow up or otherwise injures or dest roys a safe, vault or other depository of money, bonds or other valuables in any building, vehicle or place, with intent t o commit a larceny or felony, whether he succeeds or fails in the perpetration of such larceny or felony, shall be punished by imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years.

-8- reports] when the sentencing court must determine whether the defendant and the government both believed that the defendant was entering a guilty plea to a generically violent crime."). B. The Trial Court's Ruling on the Predicate Offense

Here, with respect to the April 1999 conviction, Delgado

was initially charged in December 199 8 with Home Invasion in violation of Mass. Gen. L. ch. 265, § 18C. However, the Fitchburg District Court amended the charge of Home Invasion to Breaking and Entering in the Night Time with Intent to Commit a Felony. Delgado pled guilty to that amended charge in April 1999. 67 The "preponderance of the evidence" standard generally

applies when a court must make factual determinations which control whether a defendant qualifies for an enhancement under the career offender guidelines. See Shepard , 231 F.3d at 68; U.S.S.G. § 4B1.1.

-9-

It is well established i n o ur precedent -- and the parties do not disagree -- that Mass. Gen. L. ch. 266, § 16 includes conduct that constitutes a crime of violence as well as conduct that does not. See United States v. Dueno , 171 F.3d 3, 5 (1st Cir. 1999) (holding that § 16 "e ncompasses conduct that constitutes a crime of violence (i.e., breaking into and entering

a person's home, see U.S.S.G. § 4B1.2(a)(2) ('burglary of a dwelling' is a crime of violence)), and conduct that almost certainlydo es n ot (i.e., breaking into and entering a vehicle . . .)"); Harris , 964 F.2dat 1235 (reading § 16 in similar fa shion in context of "violent felony"). Because the statuto r y definition does not resolve the question of whether the conviction

was for a crim e of viol ence, the sentencing court had to look elsewhere, beyondthe statute, in accordance with the approach set forth in Taylor and our subsequent precedent. Based upon the original compl aint containing the charge of Home Invasion in violation of Mass. Gen. L. ch. 265, § 18C, and the police report underlying the April 1999 conviction, the district court concluded at the sentencing heari ng, pursuant to the preponderance of the evid ence s tandard, 7 that Delgado pled guilty to breaking into and entering a dwelling, and therefore that the April 1999 conviction-10-

was for a crime of violence under § 4B1.1. The court specifically stated: Andit is my determination that the ame nd ment

to a brea kin g and entering in the nighttime with i ntent to commit a felony must be interpret edin the - by looking at the entire picture, including the original cr i minal complaint in which this defen d ant was charged with knowingly entering and remaining in the dwelling p la ce of another. And I have consideredthe police report. It may n ot be entirely reliable in all of i ts aspects. But with respect to where the crime was committed, I think it is entirely reliable, andI believe that the statements that are m ade in that report lead me to b el ieve that the conviction of which Mr. Delgado - or to which Mr. Delgado pledguiltywas a crime of violence, therefore, a se co nd predicate, and he will be determined to be a career off end er under the guideline provisions. Delgado argues that it was error for the district court to rely on these documents -- namely, the ori ginal complaint and the police report -- in determining whether the April 1999 conviction was a crime of violence.

The original complaint alleging Home Invasion states that

on 12/05/98, [Delgado] did knowingly enter, or enter and remain in, the dwelling place of another, knowing or having reason to know that one or more persons were prese nt wit hin and: (1) did so while armed with a dangerous weapon, or (2) did use forc e or threaten the imminent use of force upon a person within such dwelling

. . . . Because the amended charge to which Delgado pled guilty supercedes the original complaint, we have reservations about t he appropriateness of the tri al court giving the original complaint any further consideration in determining the meaning of Delgado's plea on the crime of violence issue. We do not have to decide that-11-

issue, however. Even assuming that the district court's reliance

on the original complaint wa s improper, such error was harmless because the police report a lone w as sufficient to justify the district court's ruling that the defendant had pled guilty to a crime of violence.

The "crime of violence" determination required the district court to focus on a simple question framed by the breaking and entering charge to which Delgado pled guilty under Mass. Gen. L. ch. 266, § 16. Section 16 criminalizes, inter alia , br eakin g and entering "a building, ship, vessel or vehicle, with intent to commit a felony." Mass. G en. L. ch. 266, § 16. Given the inclusion of "burglary of a dwelling" as a crime of violence under § 4B1.2, the cou rt only had to decide if the government had presentedsufficiently reliable evidence to permit it to conclude, by a preponderance of the evidence, that Delgado's plea to the § 16 charge constituted an admission to break ing and entering a dwelling, instead of a "ship, vessel or vehicle." Id. The police report, appended to the Pre-S entence Report, includes numerous references to a d welling and the details characteristic of a dwelling: On 12/05/98, . . . [three officers] were

dispatchedto the area of 103 Spruce Street for a 911 call of a[n] unknown problem. I arrived at the scene and spoke with . . . victim . . . Ruby Cartagena. Cartagena [said] that she was babysitting for her s ister a[n] Esmeralda Cartagena at the address of 16 Temple S tr eet. Cartagena stated t hat . . . while she was in the apartment babysitting she received a phone call and once she picked up the phone who ever was on the other end hung up the p hone . . . . Cartagena then went in to one of the bedrooms8 To dispel any inference that the building that is the object

of the breaking and entering must be a dwelling to qualify as a "crime of violence" under the career offender guidelines, we note that, wh ile § 4B1.2(a)(2) explicitly enumerates "burglary of a dwelling" as a sample offense in defining the term "crime of violence," we have held that breaking and entering a co mmercial building also constitutes a crime of violence under the "otherwise" clause of § 4B1.2(a)(2). See United States v. Fiore , 983 F.2d 1, 4 (1st Cir. 1992) (because "burglary of a commercial building poses a potential for episodic violence so substantial as to bring such -12- andwhile in the bedroom s h e heard the front door open she proceeded to the front do or an d once she entered the liv ing r oom all of a sudden a cloth was put over her face and someone grabbed Cartagen a and told her not to yell or they [would] hurt her. . . . Car[t]agena then observed the susp ec t #2 proceedto where the kitchen was andsuspect #3 go into the bedroom where the chil dren w ere, su[s]pect #1 stayedwith Cartagena holding her andafter approximately a minute or two suspect #1 placedCartagena into the bathroom andshut the door on her while still hold ing t he bathroomdoor shut. Car ta gena then heard the suspects leave the [apartment] and she ran out of the bathroom and proceeded to the window. Cartagena then observed a grey [motor vehicle] leaving the front of the house of 16 Temple St. Focusing on the narrow issue before it, th e di strict court sensibly observed t hat the police report "may not be entirely reliable in all of its aspects," but "is entirely reliable" as to "where the crime was committed." The court thus concluded that the crime "to which Mr. Delgado pled guilty was a crime of violence."

Other than a general objection to reliance on the police report, Delgado offered nothing ab out th e circumstances of the plea hearing or the creation of the police report to challenge the sentencing court's conclusion that Delgado and the government both believedthat he was entering a guilty plea to the "generica ll y violent crime" of breaking andentering a dwelling. 8 Harris , 964burg laries within the violent felony/crime of violence ambit , "

state court conviction for conspiracy to commit breaki ng a nd entering of commercial building comprises "crime of violence"); see also United States v. Sawyer , 144 F.3d 191, 195-96 (1st Cir. 1998). -13- F.2dat 1236. In the absence of such a proffer, we conclude that there was no clear error in the district court's finding that, by

a preponderance of the eviden ce, Delgado pled guilty to the amendedcharge of breaking andentering a dwelling with intent to commit a felony. See Damon , 127 F.3d at 141 (holdin g that "factual conclusions of sentencing court, which must be supported by a preponderance of the evidence, ar e re viewed for clear error"). Delgado gains nothing by arguing that the district court could no t rely on an uncertified copy of the police report. Without minimizing the value of providing c ertified copies of police reports at a sentencing hearing, we note first that Delgado didnot object specificall y to the court's reliance on an uncertifieddocument. Moreove r, cert ifying a copy of a police report simply attests that the report is a true andaccurate copy of the original. Delgado never challenged the accuracy of t he copy included in the Pre-Sentence Report, either in the di stri ct court or on appeal.

Finally, to the extent t hat Delgado challenges the police report on h ea rsay grounds, we reject that argument out of h and. It is well-established that a sentencing court "ma y consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the-14-

i nformation has sufficient indicia of reliability to suppo rt it s probable accuracy." U.S.S.G. § 6A1.3. See also United States v. Zuleta-Alv arez , 922 F.2d 33, 36 (1st Cir. 1990) ("The sentencing court is free to rely upon outside evidence, including hearsay evidence that has never been subject to cross-examination."). III. Delgado claims tha t the district court erred when it failedto depart downward sua sponte on account of his alleged post-offense rehabilitation and the conditions of his pre-sentence confinement. Howeve r, Delgado explicitly conceded in his plea agreement that there were no grounds for a departu re: "Defendant agree[s] that there is no basis for a depa rt ure from the sentencing range established by the United States Sent enc ing Guidelines. Accordi ng ly, . . . Defendant will [not] seek a departure on any ground fro m the Sentencing Guidelines here." Thus, Delgado has waived his claim for a departure.

Even in the absence of wai ve r, Delgado's failure to present this claim below constitutes a p r ocedural default curtailing appellate review. See United States v. Piper , 35 F.3d 611, 620 n.6 (1st Cir. 1994) ("It is settled that, in resp ect t o criminal sentencing, as in other contexts, arguments not squarely presentedto the sentencing court cannot debut as of right in an appellate venue."). Thus, we decline to consider De lgado's departure claim.

Affirmed.

- Concurring Opinion Follows --15- SELYA, Circuit Judge (concur ri ng). In virtually all circumstances, newly-constituted panels within a circuit are bound by the hol dings of prior panels. See , e.g. , United States v. Chhien , 266 F.3d 1, 11 ( 1st C ir. 2001); United States v. Wogan , 938 F.2d 1446, 1449 (1st Cir. 1991). Given the force of this rule andits applicability here, I acknowledge that United States v. Shepard , 231 F.3d 56, 66 (1st Cir. 2000), dictates the outcome of this appeal. I write separately, however, because I believe that Shepard , and cases like it, take impermissible liberties with the

narrow exception envisioned in Taylor v. U nite d States , 495 U.S. 575, 602 (19 90), and, thus, undermine the integrity of the categorical approach favored by the Suprem e Court for cases in which predicate of fense s are used to enhance defendants' sentences. We re we wri ting on a pristine page, I would hold particularizedinquiry of the type and kindapprov ed in the majority opinion (inquiry which ranges well pa st the charging papers, jury instructions, and oth er for mal accouterments of the predicate offense to a copy of a police report compiled by an investigating officer) to be beyond the limits contemplated bythe Taylor Court. The page, however, is not pr istine, and so I reluctantly concur in the judgment of the panel.