09-4999-cr
United States v. Carlos Escalera


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON
OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT,
A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARYORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.


        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 17th day of November, two thousand ten.

PRESENT:

                    ROGER J. MINER,
                    CHESTER J. STRAUB,
                    DEBRA ANN LIVINGSTON,
                                    Circuit Judges,



UNITED STATES OF AMERICA
          Appellee,

          -v.-                                                                             No. 09-4999-cr

CARLOS ESCALERA,
          Defendant-Appellant.


                                        JOSE M. ROJAS, The Rojas Law Firm, LLC, Hartford,
                                        Connecticut, for Appellant.

                                        BRIAN P. LEAMING, Assistant United States Attorney (Nora R.
                                        Dannehy, Assistant United States Attorney, on the brief) for David B.
                                        Fein, United States Attorney for the District of Connecticut, New
                                        Haven, Connecticut, for Appellee.
       Appeal from the United States District Court for the District of Connecticut (Janet C.

Hall, Judge.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

that the judgment of conviction and sentence imposed on November 10, 2009 are AFFIRMED.

       Defendant Carlos Escalera appeals from a judgment of conviction entered on November 10,

2009, pursuant to his guilty plea on one count of possession of ammunition by a convicted felon.

See 18 U.S.C. § 922(g)(1). At sentencing, the district court concluded that Escalera’s criminal

history subjected him to the Armed Career Criminal Act (“ACCA” or “The Act”), 18 U.S.C. §

924(e), and, accordingly, sentenced Escalera to 180 months in prison, which was the minimum

sentence mandated by that statute. On appeal, Escalera challenges that sentence, contending that the

district court erred in concluding that he had committed the requisite three predicate offenses for

purposes of the ACCA. We presume the parties’ familiarity with the underlying facts, the procedural

history, and the issues on appeal.

       The ACCA provides a 15-year mandatory minimum sentence for any person who violates

section 922(g) and “has three previous 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). The Act

defines a “violent felony” to include, among other things, “burglary,” and makes a “serious drug

offense” any “offense under State law, involving manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled substance (as defined in section 102 of the

Controlled Substance Act . . .).” 18 U.S.C. § 924(e)(2)(B), (A)(ii). Where a defendant’s previous

conviction was obtained pursuant to a state law that criminalizes both “predicate” and “non-

predicate” conduct for purposes of the ACCA, courts must make the factual finding that the offense


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in question involved predicate conduct before qualifying it as a “previous conviction” for purposes

of the Act. See United States v. Savage, 

, 964-65 (2d Cir. 2008).

        The district court determined that Escalera’s criminal history included, among other things,

the following three Connecticut state court convictions, each of which was obtained pursuant to a

guilty plea: (1) a November 2005 conviction for third-degree burglary, (2) a May 1996 conviction

for sale of narcotics, and (3) a June 2004 conviction for sale of narcotics. On the record before it,

the district court made the further factual determination that the conduct underlying each offense was

sufficient to render all three predicate convictions for purposes of the ACCA. On appeal, Escalera

challenges those factual determinations, contending principally that the record below was insufficient

to support them.

        We review the district court’s factual findings with respect to the nature of a prior offense

under the “clear error” standard, United States v. Houman, 

, 827 (2d Cir. 2000) (per

curiam), reversing only where we are left with the “definite and firm conviction that a mistake has

been committed,” United States v. DiSilva, 

, 356 (2d Cir. 2010). We detect no such

error in this record.

        With respect to the burglary conviction, Escalera correctly notes that Connecticut’s law is

broader than the federally adopted “generic” equivalent, which consists of the “unlawful or

unprivileged entry into . . . a building or other structure, with the intent to commit a crime.” United

States v. Taylor, 

, 599 (1990); cf. Conn. Gen. Stat. § 53a-100(a)(1) (2008) (defining

“building” as used in state burglary law to include “in addition to its ordinary meaning, . . . any

watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle”). Accordingly, as

noted, for Escalera’s plea to qualify as a predicate conviction for purposes of the ACCA, the district


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court was required to make the factual finding that Escalera’s conviction stemmed from conduct

which fell within the narrower, federally adopted “generic” definition. See United States v. Brown,

, 265 (2d Cir. 2008). In so doing, it was entitled to look to “the terms of the charging

document [or] the terms of a plea agreement or transcript of colloquy between judge and defendant

in which the factual basis for the plea was confirmed by the defendant.” Shepard v. United States,

, 26 (2005). Here, the district court, in reliance on the transcript of the plea colloquy,

determined that Escalera had confirmed before the state court that his crime involved the unlawful

entry into a residence. The district court thus concluded that the offense fell within the narrower

federal definition of burglary and that it therefore qualified as a predicate conviction for purposes

of the ACCA.

        Escalera contends that the district court’s reliance on the state court transcript of his plea

colloquy was in error because he entered a so-called Alford plea in that proceeding. See North

Carolina v. Alford, 

, 37 (1970). We disagree. While Escalera’s attorney stated, at the

outset of his client’s plea hearing, that “it’s an Alford plea,” the prosecutor proceeded to set forth the

factual allegations – including the allegation that Escalera entered a “residence” – and the state court

then asked Escalera whether “those facts [are] accurate,” to which Escalera, without reservation or

objection from his attorney, responded “[y]es.” The defendant thus “confirmed” the “factual basis

for the plea” in a “transcript or colloquy between judge and defendant” which the district court was

entitled to rely upon. 

. Accordingly, we see no error, let alone clear error,

in the district court’s factual determination that the offense fell within the narrowed federal definition

of burglary and thus qualified as a predicate conviction for purposes of the ACCA.

        We similarly detect no error in the district court’s determination that Escalera’s two drug


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offenses qualified as predicate crimes for purposes of the statute. For those offenses to qualify, the

district court was required to determine that each involved a “controlled substance (as defined in

section 102 of the Controlled Substance Act).” 18 U.S.C. § 924(e)(2)(A). Here, the district court,

in reliance on the state court plea colloquies, concluded that both offenses involved heroin, which

is indisputably a controlled substance as defined by section 102. See 21 U.S.C. § 802. Escalera

contends the plea colloquies were insufficient to support those factual findings. We disagree. In

both instances, the transcripts of the state court proceedings reflect Escalera’s clear and unequivocal

confirmation of factual allegations that he sold and possessed heroin. As such, the district court

correctly found that the offenses qualified as predicate convictions for purposes of the ACCA.

       To the extent Escalera raises other arguments with respect to the sentence imposed, we have

considered them and reject them as meritless. Accordingly, and for the foregoing reasons, the

judgment of conviction and sentence imposed are AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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