United States Court of Appeals

For the First Circuit

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
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LIPEZ, Circuit Judge. This case requires 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 enhanced 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 cocaine 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 sentencing, the court

concluded, over Delgado's objection, that he was a career offender

and that, 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, the district court calculated his final adjusted
1 Absent Delgado's career offender status, his sentence would

likely have 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

possessed the 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 possessed the

cocaine with any such intent; therefore, it does not appear that

this conviction qualifies as a predicate offense for purposes of

the career offender guidelines.

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offense level at 29. The applicable sentencing range for a level

29 category VI offender was 151 to 188 months. The district court

accordingly sentenced Delgado, 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

history included two prior convictions for crimes of violence, thus

warranting an increase in the offense level for the instant

offense.2 On February 10, 1999, Delgado was 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 and entering with intent to commit a felony. The

effect of this latter conviction on Delgado's federal sentence was

hotly disputed 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 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.

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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 sentenced; (2) that offense is a felony that either

constitutes a crime of violence or a controlled substance offense;

and (3) the defendant has at least two prior felony convictions for

either crimes of violence or crimes involving controlled

substances. For application of the career offender provisions, the

sentencing 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 breaking-and-entering offense to which he pled

guilty in April 1999 does not constitute a crime of violence under
4 Delgado also argues that the April 1999 conviction is not

fit for inclusion in the career offender calculus because it was

obtained in violation of Massachusetts 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 conviction 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 conserve scarce judicial

resources and promote efficiency" and to prevent sentencing courts

from having to "'rummage through frequently nonexistent or

difficult 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 (1st 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.

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§ 4B1.1, and hence he is not a career offender within the meaning

of the guidelines.4

A. The Taylor Categorical Approach

In determining whether Delgado's April 1999 conviction

constitutes a crime of violence, we follow the categorical approach

outlined in 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 factual 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 Career Criminal 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

generally to cases pertaining to either provision "to elucidate the

nature of the categorical inquiry." United States v. Shepard, 231

F.3d 56, 63 n.7 (1st Cir. 2000) (noting that "[d]espite the

differences between § 4B1.1 and § 924(e)(2), the categorical

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);

United States v. Meader, 118 F.3d 876, 882-85 (1st Cir. 1997)

(same).

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Under the Taylor approach, a sentencing court should

"look only to the fact of conviction and the statutory definition

of the prior offense" to determine whether a prior conviction

qualifies as a predicate offense for sentencing 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. Harris, 964 F.2d 1234, 1235

(1st Cir. 1992).

Sometimes, however, "looking to the statutory definition

alone" will not establish 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

statutory definition 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
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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.3d 56, 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

unhelpfully broad 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 which the

defendant was charged and pled guilty, not

because the court may properly be interested

(in this context) in the violent or non-violent

nature of that particular conduct, but because

that conduct may indicate that the defendant

and the government both believed that the

generically violent crime . . . rather than the

generically non-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. at 67 ("Based on our precedents, we see no

justification for an absolute bar to the consideration of [police
6 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

statute which 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 (and Delgado

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 break, burn, blow up or otherwise

injures or destroys a safe, vault or other

depository of money, bonds or other valuables

in any building, vehicle or place, with intent

to 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.

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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 1998 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 1999.6
7 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.

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It is well established in our 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 "encompasses 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

certainly does not (i.e., breaking into and entering a

vehicle . . .)"); Harris, 964 F.2d at 1235 (reading § 16 in similar

fashion in context of "violent felony"). Because the statutory

definition does not resolve the question of whether the conviction

was for a crime of violence, the sentencing court had to look

elsewhere, beyond the statute, in accordance with the approach set

forth in Taylor and our subsequent precedent. Based upon the

original complaint 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 hearing, pursuant to the preponderance of the

evidence standard,7 that Delgado pled guilty to breaking into and

entering a dwelling, and therefore that the April 1999 conviction
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was for a crime of violence under § 4B1.1. The court specifically

stated: 

And it is my determination that the amendment

to a breaking and entering in the nighttime

with intent to commit a felony must be

interpreted in the - by looking at the entire

picture, including the original criminal

complaint in which this defendant was charged

with knowingly entering and remaining in the

dwelling place of another. And I have

considered the police report. It may not be

entirely reliable in all of its aspects. But

with respect to where the crime was committed,

I think it is entirely reliable, and I believe

that the statements that are made in that

report lead me to believe that the conviction

of which Mr. Delgado - or to which Mr. Delgado

pled guilty was a crime of violence, therefore,

a second predicate, and he will be determined

to be a career offender under the guideline

provisions.

Delgado argues that it was error for the district court to rely on

these documents -- namely, the original 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 present within and:

(1) did so while armed with a dangerous weapon,

or (2) did use force 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 the

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

on the original complaint was improper, such error was harmless

because the police report alone was 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, breaking

and entering "a building, ship, vessel or vehicle, with intent to

commit a felony." Mass. Gen. L. ch. 266, § 16. Given the

inclusion of "burglary of a dwelling" as a crime of violence under

§ 4B1.2, the court only had to decide if the government had

presented sufficiently 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 breaking and entering a

dwelling, instead of a "ship, vessel or vehicle." Id. The police

report, appended to the Pre-Sentence Report, includes numerous

references to a dwelling and the details characteristic of a

dwelling:

On 12/05/98, . . . [three officers] were

dispatched to 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 sister a[n] Esmeralda

Cartagena at the address of 16 Temple Street.

Cartagena stated that . . . 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 phone. . . .

Cartagena then went into one of the bedrooms
8 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, while § 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 commercial

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

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and while in the bedroom she heard the front

door open she proceeded to the front door and

once she entered the living room all of a

sudden a cloth was put over her face and

someone grabbed Cartagena and told her not to

yell or they [would] hurt her. . . .

Car[t]agena then observed the suspect #2

proceed to where the kitchen was and suspect #3

go into the bedroom where the children were,

su[s]pect #1 stayed with Cartagena holding her

and after approximately a minute or two suspect

#1 placed Cartagena into the bathroom and shut

the door on her while still holding the

bathroom door shut. Cartagena 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, the district court

sensibly observed that 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 about the 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

believed that he was entering a guilty plea to the "generically

violent crime" of breaking and entering a dwelling.8 Harris, 964
burglaries within the violent felony/crime of violence ambit,"

state court conviction for conspiracy to commit breaking and

entering of commercial building comprises "crime of violence"); see

also United States v. Sawyer, 144 F.3d 191, 195-96 (1st Cir. 1998).

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F.2d at 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 evidence, Delgado pled guilty to the

amended charge of breaking and entering a dwelling with intent to

commit a felony. See Damon, 127 F.3d at 141 (holding that

"factual conclusions of sentencing court, which must be supported

by a preponderance of the evidence, are reviewed for clear

error"). 

Delgado gains nothing by arguing that the district court

could not rely on an uncertified copy of the police report.

Without minimizing the value of providing certified copies of

police reports at a sentencing hearing, we note first that Delgado

did not object specifically to the court's reliance on an

uncertified document. Moreover, certifying a copy of a police

report simply attests that the report is a true and accurate copy

of the original. Delgado never challenged the accuracy of the

copy included in the Pre-Sentence Report, either in the district

court or on appeal.

Finally, to the extent that Delgado challenges the

police report on hearsay grounds, we reject that argument out of

hand. It is well-established that a sentencing court "may

consider relevant information without regard to its admissibility

under the rules of evidence applicable at trial, provided that the
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information has sufficient indicia of reliability to support its

probable accuracy." U.S.S.G. § 6A1.3. See also United States v.

Zuleta-Alvarez, 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 that the district court erred when it

failed to depart downward sua sponte on account of his alleged

post-offense rehabilitation and the conditions of his pre-sentence

confinement. However, Delgado explicitly conceded in his plea

agreement that there were no grounds for a departure: "Defendant

agree[s] that there is no basis for a departure from the

sentencing range established by the United States Sentencing

Guidelines. Accordingly, . . . Defendant will [not] seek a

departure on any ground from the Sentencing Guidelines here."

Thus, Delgado has waived his claim for a departure. 

Even in the absence of waiver, Delgado's failure to

present this claim below constitutes a procedural default

curtailing appellate review. See United States v. Piper, 35 F.3d

611, 620 n.6 (1st Cir. 1994) ("It is settled that, in respect to

criminal sentencing, as in other contexts, arguments not squarely

presented to the sentencing court cannot debut as of right in an

appellate venue."). Thus, we decline to consider Delgado's

departure claim. 

Affirmed.

- Concurring Opinion Follows -
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SELYA, Circuit Judge (concurring). In virtually all

circumstances, newly-constituted panels within a circuit are bound

by the holdings of prior panels. See, e.g., United States v.

Chhien, 266 F.3d 1, 11 (1st Cir. 2001); United States v. Wogan,

938 F.2d 1446, 1449 (1st Cir. 1991). Given the force of this rule

and its 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. United States, 495 U.S.

575, 602 (1990), and, thus, undermine the integrity of the

categorical approach favored by the Supreme Court for cases in

which predicate offenses are used to enhance defendants'

sentences. Were we writing on a pristine page, I would hold

particularized inquiry of the type and kind approved in the

majority opinion (inquiry which ranges well past the charging

papers, jury instructions, and other formal accouterments of the

predicate offense to a copy of a police report compiled by an

investigating officer) to be beyond the limits contemplated by the

Taylor Court. The page, however, is not pristine, and so I

reluctantly concur in the judgment of the panel.