United States v. Sacko
Case Date: 03/15/1999
Court: United States Court of Appeals
Docket No: 97-2386
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For the First Circuit ____________________ No. 97-2386 UNITED STATES, Appellee, v. GEORGE SACKO, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge] ____________________ Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge. _____________________ Mark J. Gardner, by appointment of the Court, for appellant. James H. Leavey, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, was on brief, for appellee. ____________________ March 15, 1999 ____________________ TORRUELLA, Chief Judge. The defendant, George Sacko ("Sacko"), was arrested in December 1996, and charged with: (1) possession of firearms by a convicted felon, and (2) possession of a silencer by a convicted felon. On July 8, 1997, Sacko pled guilty to both counts. The district court determined that Sacko was an armed career criminal under 18 U.S.C. 924(e)(1) because of three previous Rhode Island convictions for: (1) assault with a dangerous weapon; (2) assault with intent to murder; and (3) statutory rape or, as it is described under Rhode Island General Laws, sexual assault in the third degree. Sacko was sentenced, as a level 31 Category VI offender, to 212 months imprisonment and five years of supervised release to be served concurrently on each count. DISCUSSION The only issue before us is the propriety of the district court's sentencing of Sacko as an armed career criminal by virtue of his previous conviction for statutory rape under Rhode Island law. The Rhode Island statutory rape statute punishes a person over the age of eighteen who engages in sexual penetration with another person over the age of fourteen and under the age of consent, which is sixteen years of age. See R.I. Gen. Laws 11- 37-6 (1989). Under the Armed Career Criminal Act ("ACCA"), this enhancement was only proper if Sacko's conviction was for a "violent felony." 18 U.S.C. 924(e)(1). The district court determined that it was such a crime. This issue is one of law, and our review is de novo. See United States v. Meader, 118 F.3d 876, 881 (1st Cir. 1997), cert. denied, 118 S. Ct. 729 (1998). Section 924(e)(2)(B) defines a "violent felony" as follows: [T]he term "violent felony" means any crime 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 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Under Taylor v. United States, 495 U.S. 575 (1990), whether a predicate offense qualifies as a crime of violence requires a "categorical" examination of the statutory crime. Taylor considered whether the defendant's predicate offenses constituted "burglary" as defined in 18 U.S.C. 924(e), a sentencing enhancement statute. Taylor had been convicted of "burglary" in Missouri at a time when Missouri had seven different statutes under which a person could be charged for that crime. The Supreme Court held that, rather than examining the particular circumstances of the crimes for which the defendant was convicted, a sentencing court should look only to whether the statute of conviction contained the elements of a "generic" burglary and should not inquire whether the specific crime committed was especially dangerous to others. See Taylor, 495 U.S. at 598. The Court defined generic burglary as a crime that consists of: "unlawful and unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. Taylor noted that in some situations the statute of conviction may include elements beyond those of a generic burglary (e.g., entry into places other than buildings). See id. at 599-600. To address that issue, and other problems of interpretation of 924(e), sentencing courts should employ a "formal categorical approach," and generally "look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602. A sentencing court may go beyond the fact of conviction in those cases where the statute encompasses both violent felonies (e.g., generic burglary) and non-violent felonies (e.g., burglary of a vehicle rather than of a building). See id. In such a situation, the sentencing court may examine the indictment or information and jury instructions in order to discern which type of crime the offender was convicted of perpetrating. See id. The Taylor Court remanded the case so that this determination could be made with respect to Taylor's prior convictions. After Taylor, our analysis of predicate offenses has followed this categorical approach. See United States v. Damon, 127 F.3d 139, 141-46 (1st Cir. 1997); Meader, 118 F.3d at 881-83 ("[T]he standard approach for determining whether a particular crime fits within the 'crime of violence' rubric is a generic one, in which inquiry is restricted to the statutory definitions of prior offenses, without regard to the particular facts underlying them.") (citations omitted); United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994); United States v. De Jes |