USCA1 Opinion
For the First Circuit
____________________
No. 96-1957
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL J. GIGNAC,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
____________________
Before
Lynch, Circuit Judge,
Aldrich and Bownes, Senior Circuit Judges.
____________________
Tina Schneider for appellant.
Margaret D. McGaughey
, Assistant United States Attorney, with whom
Jay
P.
McCloskey, United States Attorney, and Jonathan
R.
Chapman,
Assistant United States Attorney, were on brief for appellee.
____________________
July 21, 1997
____________________
BOWNES, Senior
Circuit
Judge. On the night of
August 17, 1995, defendant-appellant Michael Gignac and two
other men robbed a store in Portland, Maine. The robbers all
wore masks; two of them were armed. Gignac was indicted on
three counts: Count I alleged that he interfered with commerce
by means of robbery in violation of 18 U.S.C. S 1951(a),
S 1951(b)(1), and 18 U.S.C. S 2. Count II charged Gignac with
using and carrying a firearm in relation to a crime of violence
in violation of 18 U.S.C. S 924(c)(1), S 924(c)(3), and 18
U.S.C. S 2. Count III accused Gignac of possession of a
firearm by a felon in violation of 18 U.S.C. S 922(g),
S 924(e)(1), and 18 U.S.C. S 2. The jury found Gignac guilty
on Count I, but not guilty on Counts II and III. The court
sentenced Gignac as a career offender under S 4B1.1 of the
United States Sentencing Guidelines. The court found that
Gignac was a career offender because of prior convictions for
arson, burglary of a church, and assault on a prison officer.
Our review is plenary because we are considering
interpretive questions under the Sentencing Guidelines.
United
States
v.
Meader, No. 96-2123, slip op. at 11 (1st Cir.
July 11, 1997);
United States v. Fiore
, 983 F.2d 1, 2 (1st Cir.
1992); United
States
v.
St.
Cyr, 977 F.2d 698, 701 (1st Cir.
1992).
Gignac raises two issues on appeal: (1) Whether the
court erred in applying the career offender sentence
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enhancement provision; and (2) Whether the court abused its
discretion in allowing the prosecutor to impeach defendant with
the number, but not the nature, of his prior convictions.
The Career Offender Enhancement
As a result of Gignac being adjudged a career
offender, his adjusted offense level changed from 27 to 32.
The consequent sentencing range increased from 132-160 months
(level 27) to 210-262 months (level 32). He was sentenced to
the statutory maximum of 20 years. This contrasts with a
maximum sentence of 13 years plus, without the career offender
enhancement.
Section 4B1.1 of the Guidelines defines a career
offender as follows:
A defendant is a career offender if (1)
the defendant was at least eighteen years
old at the time of the instant offense,
(2) the instant offense of conviction is a
felony that is either a crime of violence
or . . ., and (3) the defendant has at
least two prior felony convictions of
either a crime of violence or a controlled
substance offense.
There is no doubt that Gignac comes within categories (1) and
(2) of the career offender guideline provisions. The basis of
his appeal is that he does not come within category (3) because
he does not have two prior felony convictions for crimes of
violence.
Gignac had a number of prior felony convictions. We
focus only on those involving a crime of violence. In 1989
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Gignac was convicted in Maine state court of arson and assault.
Gignac concedes that this conviction comes within category (3)
of the Guidelines. In 1993 Gignac was convicted for assault on
a corrections officer. He argues that this conviction was not
a category (3) crime of violence. We disagree.
Section 4B1.2(1) of the Guidelines states:
The term "crime of violence" means any
offense under federal or state law
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 . . . .
Under Maine law, assault on a corrections officer is
a Class C felony. The law states:
1. A person is guilty of assault on an
officer if . . .
B. While in custody in a penal
institution or other facility pursuant to
an arrest or pursuant to a court order, he
commits an assault on a member of the
staff or facility. As used in this
paragraph "assault" means the crime
defined in chapter 9, section 207.
Me. Rev. Stat. Ann. tit. 11-A, S 752-A. Assault is defined
under S 207(1) of title 17-A as "A person is guilty of assault
if he intentionally, knowingly, or recklessly causes bodily
injury or offensive physical contact to another."
We agree with the district court that an assault on
a prison guard by its very nature involves a serious potential
risk of injury to another. That is all that is required under
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S 4B1.2(1)(i) of the Guidelines. Note 2 of the Commentary to
S 4B1.2 states that "crimes of violence" include offenses where
"that offense has as an element the use, attempted use, or
threatened use of physical force against the person of
another." We hold that the assault on the prison officer by
defendant was a crime of violence under the career offender
section (S 4B1.1) of the Guidelines.
Impeachment of Defendant with Number
But Not Nature of His Prior Convictions
Before we get to the merits of this argument, we must
first determine whether it was properly preserved for appeal.
The first question is whether defendant's motion in limine to
exclude any reference to prior convictions was sufficient alone
without further objection to warrant consideration by this
court.
The record discloses the following. A chambers
conference was held on the motion
in
limine prior to defendant
taking the stand. The question of admissibility of Gignac's
prior convictions was discussed in the framework of Fed. R.
Evid. 609. At the close of the conference the district court
told the parties that if defendant took the stand, the
government would be permitted to establish that there were five
previous felony convictions and the dates, but that the
government would not be allowed to show "the specifics of the
charges on those previous convictions." The court ended the
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conference with the following admonition:
Now counsel, again, remember, that is a
tentative ruling. It's subject to what
the defendant says if he takes the stand.
It may be that he would say something that
would cause me to reevaluate that ruling
in terms of allowing some of the specific
charges or whatever, but based upon what
you've told me to date, that's my ruling.
Defense counsel did not object to the court's ruling
at any time after the conference and before Gignac testified.
Defense counsel brought out at the start of direct examination
that Gignac had been convicted of more than one felony. On
cross-examination the prosecutor elicited testimony from Gignac
that he had five prior felony convictions between 1988 and
1993. There was no objection to this line of questions.
The law in this circuit is clear: a motion
in
limine
alone is not sufficient to forward the issue for appellate
review. The rule and its rationale have been stated most
recently in Gill v. Thomas, 83 F.3d 537 (1st Cir. 1996).
We also held in Gill that if a party introduces
potentially impeaching evidence itself in order "to take the
sting" out of it, this eliminates any potential evidentiary
error by the use of such evidence in cross-examination.
Id. at
541.
For the foregoing reasons, defendant Gignac has
failed to properly preserve the second issue raised by him. We
cannot refrain from noting, however, that even had the issue
been properly preserved below, it would be of no avail. There
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is no substantive merit to this claim. See United
States
v.
Powell, 50 F.3d 94, 101-02 (1st Cir. 1995).
The judgment of the district court is
affirmed in all
respects.
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