USCA1 Opinion
August 20, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2382
KENNETH J. PATRONE,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Kenneth Patrone on brief pro se.
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Lincoln C. Almond, United States Attorney, Margaret E. Curran and
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Michael E. Davitt, Assistant United States Attorneys, on brief for
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appellee.
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Per Curiam. Petitioner-appellant Kenneth Patrone
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was convicted of being a felon in possession of a firearm, 18
U.S.C. 922(g), and of possessing an unregistered firearm,
26 U.S.C. 5241, 5861(d) and 5871. Sentenced as an armed
career criminal under 18 U.S.C. 924(e), Patrone received
the mandatory minimum enhanced sentence on the first count, a
fifteen-year term of imprisonment without parole, and a
concurrent ten-year term on count two. Patrone appealed and
we affirmed. United States v. Patrone, 948 F.2d 813 (1st
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Cir. 1991), cert. denied, 112 S. Ct. 2953 (1992).1
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Patrone then moved to vacate, set aside or correct
his sentence. 28 U.S.C. 2255. Over petitioner's
objection, the district court approved the recommendation of
a magistrate-judge that the motion be denied and this appeal
ensued. For the reasons that follow, we affirm.
Petitioner essentially raises two issues on
appeal:2 (1) that his counsel rendered ineffective
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1. As the underlying relevant facts are set out in our
opinion on direct appeal, we do not repeat them.
2. Much of Patrone's argument on appeal is based on issues
and theories not presented to the district court (e.g.,
counsel's failure to conduct reasonable pretrial
investigation; double jeopardy). Those issues and arguments
may not be raised for the first time here. United States v.
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Dietz, 950 F.2d 50, 55 (1st Cir. 1991). Nor may petitioner
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reassert arguments, rejected on direct appeal, that three
prior offenses do not qualify for consideration under
924(e) because they were constitutionally unsound. Patrone,
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948 F.2d at 816-17. Nothing presented now persuades us to
revisit that issue. See United States v. Michaud, 901 F.2d
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5, 6 (1st Cir. 1990).
assistance at the sentencing proceeding and (2) that at least
one of three prior convictions was not a violent felony for
sentence enhancement purposes under 18 U.S.C. 924(e). We
address the latter contention first.
Petitioner challenges the classification of his
1978 breaking and entering conviction under Rhode Island law
as a violent crime because it involved the burglary of a
building under construction and not a dwelling. As such,
petitioner argues, the burglary offense was not a "generic"
burglary as defined in Taylor v. United States, 495 U.S. 575
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(1990), or countable as a predicate offense for sentence
enhancement purposes. This, however, is incorrect for two
reasons. First, the Taylor court defined generic burglary as
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the "unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime." Id.
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at 599.
[A]n offense constitutes "burglary" for
purposes of a 924(e) sentence
enhancement if either its statutory
definition substantially corresponds to
"generic" burglary, or the charging paper
and jury instructions actually required
the jury to find all the elements of
generic burglary in order to convict the
defendant.
Id. at 602. Patrone concedes the 1978 conviction for
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breaking and entering. Based on the undisputed description
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of this offense in paragraph 31 of the presentence
3. Although Patrone claims he never "signed" the presentence
report, he does not claim that he did not read it and has not
investigation report3 ("breaking and entering a building at
pointed out any inaccuracies in its descriptions of his
criminal conduct.
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night with the intent to commit larceny"), that charge
plainly is a generic burglary under Taylor. See United
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States v. Wilkinson, 926 F.2d 22, 29 (1st Cir.), cert.
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denied, 111 S. Ct. 2813 (1991); see also United States v.
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Bregnard, 951 F.2d 457, 460 (1st Cir. 1991) (uncontested
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presentence report description of prior convictions may form
sufficient basis for determining whether prior offense is a
generically violent crime under Taylor), cert. denied, 112 S.
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Ct. 2939 (1992). Even if a building "under construction" is
somehow not a "building or structure" under Taylor's generic
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burglary definition, the 1978 offense nevertheless falls
within 924(e) because it clearly "otherwise involves
conduct that presents a serious potential risk of physical
injury to another." 924(e)(2)(B)(ii).
Second, our decision in United States v. Fiore, 983
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F.2d 1 (1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993),
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makes plain that the 1978 burglary conviction under Rhode
Island law is properly countable as a predicate offense. In
Fiore, this court decided that a conviction under Rhode
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Island law for conspiracy to break and enter a commercial
premise qualifies as a predicate offense for purposes of
implementing the career offender provisions of the federal
sentencing guidelines. Id. at 3-4. Applying Taylor and
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U.S.S.G. 4B1.2(1), we concluded that, under Rhode Island
law, the underlying crime at issue, a commercial burglary,
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was a crime of violence for career offender sentencing
purposes, and noted that "burglary of a commercial building
poses a potential for episodic violence so substantial as to
bring such burglaries within the violent felony/crime of
violence ambit." Id. at 4.
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Patrone derives no support from definitions
contained in the career offender guidelines, U.S.S.G.
4B1.2(1)(ii) (a "crime of violence . . . is burglary of a
dwelling . . ."). Although the "violent felony" language of
924(e)(2)(B) is at issue here, and not the "crime of
violence" guidelines definition, 4B1.2(1), in play in
Fiore, the latter takes its force from the former, id. at 3
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n.2, and both include the additional defining words "conduct
that presents a serious potential risk of physical harm."
"One can easily imagine a significant likelihood that
physical harm will often accompany the very conduct that
normally constitutes . . . burglary . . . ." United States
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v. Doe, 960 F.2d 221, 224 (1st Cir. 1992).
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Thus, under the Taylor methodology which focuses
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upon the inherent risk of violence posed by the prior offense
without regarding the actual facts and circumstances
underlying the conviction, id., there is no meaningful
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distinction for 924(e) purposes between the burglary of a
dwelling and a non-residential building or structure, whether
under construction or not, whether occupied or not. See
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Taylor, 495 U.S. at 597 ("Congress presumably realized that
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the word `burglary' is commonly understood to include not
only aggravated burglary, but also run-of-the-mill burglaries
involving an unarmed offender, an unoccupied building, and no
use or threat of force."). Consequently, Patrone's 1978
breaking and entering conviction was a generic burglary under
Taylor.4
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Accordingly, regarding the ineffectiveness claims
that counsel's conduct was deficient because of his failure
to contest at sentencing the violent crime status of the
three prior convictions at issue, it cannot be said that
there was any resulting prejudice. In short, even if
counsel's performance was subpar, a question we need not
decide, Patrone has failed to show that "but for counsel's
errors, the result below would have been different." See
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Murchu v. United States, 926 F.2d 50, 58 (1st Cir.), cert.
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denied, 112 S. Ct. 99 (1991).
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4. Similarly, Patrone's argument that a 1984 breaking and
entering in the daytime involved no violence is unavailing.
"Burglary is generally a violent crime whether or not the
particular burglary at issue threatens violence." Doe, 960
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F.2d at 224 (internal quotation marks omitted). Patrone does
not contest that the third offense counted for enhancement, a
1978 conviction for assault with a dangerous weapon, was
properly treated as a violent felony. Thus, the district
court correctly treated these three convictions as predicate
offenses under 924(e).
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As to petitioner's remaining contentions, we affirm
the judgment of the district court for the reasons stated in
the report of the magistrate-judge.
Affirmed.
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