USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-2332
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL V. SCHOFIELD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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George J. West, by Appointment of the Court, for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, and Gerard B. Sullivan,
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Assistant United States Attorney, were on brief for the United States.
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June 10, 1997
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Per Curiam. Michael Schofield pled guilty to one count
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of being a "felon in possession" of a firearm, 18 U.S.C.
922(g), and received a mandatory minimum sentence of 15
years imprisonment under the Armed Career Criminal Act
("ACCA"), id. 924(e)(1). He now appeals this sentence,
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arguing that certain prior state convictions in Rhode Island
do not count as "predicate offenses" triggering the ACCA. We
disagree and affirm.
The ACCA establishes a 15-year mandatory minimum
sentence for any person who violates section 922(g) and has
three prior convictions "for a violent felony or a serious
drug offense, or both, committed on occasions different from
one another." 18 U.S.C. 924(e)(1). Prior to Schofield's
guilty plea, the government filed an information charging him
with six prior "violent felony" convictions, which are also
described in his Presentence Investigation Report ("PSR").
On appeal, he does not challenge the classification as a
violent felony of one robbery conviction. See PSR 40.
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Schofield does, however, argue that the other five
convictions were not for "violent felonies" within the
meaning of the statute.
Schofield's argument might seem extraordinary with
respect to his prior conviction for second degree robbery.
See PSR 38. In the course of that offense, Schofield
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knocked his victim to the pavement and stole her purse--
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certainly "violent" conduct. But the ACCA operates at a
level of abstraction and requires courts, in determining
predicate convictions, to employ "a formal categorical
approach, looking only to the statutory definitions of the
prior offenses, and not to the particular facts underlying
those convictions." Taylor v. United States, 495 U.S. 575,
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600 (1990).
Nevertheless, Rhode Island's second degree robbery
offense is plainly a predicate offense for purposes of the
ACCA. The statute--unchanged in pertinent part since
Schofield's violation in 1991--defines second degree robbery
as "robbery or other larceny from the person by force or
threat, where there is no weapon and no injury and the victim
is neither a handicapped person or an elderly person." R.I.
Gen. Laws 11-39-1. The "force or threat" requirement
undoubtedly brings the offense within the ACCA's category of
violent felonies, which includes any felony that, inter alia,
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"has as an element the use, attempted use, or threatened use
of physical force against the person of another." 18 U.S.C.
924(e)(2)(B).1
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1Accord United States v. Brown, 52 F.3d 415, 426 (2d
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Cir. 1995) (New York attempted robbery conviction is a
"violent felony"), cert. denied, 116 S. Ct. 754 (1996);
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United States v. Presley, 52 F.3d 64, 69 (4th Cir.), cert.
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denied, 116 S. Ct. 237 (1995) (Virginia robbery conviction is
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"violent felony"); United States v. Dickerson, 901 F.2d 579,
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584 (7th Cir. 1990) (Illinois robbery conviction is "violent
felony").
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We are left to determine whether one or more of
Schofield's breaking and entering convictions can serve as a
predicate offense, bringing to three the total number of
"violent felonies." One of those convictions was for
breaking and entering a commercial or public building in
violation of R.I. Gen. Laws 11-8-4. See PSR 39.2 We
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have previously held that convictions for conspiracy to
violate this same statute are "violent felonies" within the
meaning of U.S.S.G. 4B1.2(1), United States v. Fiore, 983
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F.2d 1, 4 (1st Cir. 1992), cert. denied, 507 U.S. 1024
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(1993); and cases interpreting that provision are pertinent
in construing the ACCA's "violent felonies" category, see
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United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994).
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(Under Taylor, it is irrelevant whether the school was
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occupied or there was any actual threatened violence.)
Because the schoolhouse breaking and entering offense was a
violent felony, we need not consider the other three breaking
and entering convictions.
Finally, Schofield contends that the various prior
offenses were not "committed on occasions different from one
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2As Schofield observes, the state judgment and other
documents do not indicate the specific breaking and entering
statute under which Schofield was convicted. But Schofield
does not dispute the PSR's portrayal of the offense, which
involved the breaking and entering of a public school
building. Section 11-8-4 is the only Rhode Island breaking
and entering statute that would have applied to this crime.
See R.I. Gen. Laws 11-8-2 et seq.
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another," as required by section 924(e)(1). But there is no
question that the three predicate offenses on which we have
relied took place on different dates and at different
locations, and that is all the ACCA requires. United States
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v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995). "Congress,
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thinking primarily about the protection of the public,
adopted a definition of armed career criminal that ignores
the duration of the career . . . or the lack of lengthy
intervals or arrests between the crimes." Id. Because the
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district court properly sentenced Schofield under the ACCA,
we need not reach his challenges to the alternative sentence
imposed under the Sentencing Guidelines.
Affirmed.
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