233 F.3d 101 (1st Cir.

2000)

UNITED STATES OF AMERICA, Plaintiff, Appellee,

v.
HENRY PETERSON, Defendant, Appellant.
No. 99-2294.

United States Court of Appeals, For the First Circuit.

Heard Oct. 2, 2000.
Decided December 5, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF RHODE ISLAND.
Hon. Ronald R. Lagueux, U.S. District Judge.[Copyrighted Material
Omitted]
James M. Fox, by appointment of the court, on brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom
Margaret E. Curran, United States Attorney, and Terrence P. Donnelly,
Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.
LYNCH, Circuit Judge.

Henry Peterson was convicted of five federal narcotics and firearms offenses on
August 27, 1999. Peterson challenges the federal prosecution as vindictive and
a violation of equal protection under the Fourteenth Amendment because it was
based on the same underlying criminal activities as a prior Rhode Island
prosecution. Peterson also claims that the trial judge abused his discretion by
not reopening the case to allow Peterson to testify on his own behalf.

In addition, Peterson challenges the district court's application of the Sentencing

Guidelines, which based on his offense level, his criminal history, and the
court's finding that three prior convictions qualified him as an "armed career
criminal" under 18 U.S.C. 924(e), prescribed a sentence between 262 and 327

months. He argues that one of the predicate offenses used to determine his
armed career criminal status should not count as a "violent felony" under 18
U.S.C. 924(e)(2)(B)(ii). Peterson further claims that the sentencing court
incorrectly enhanced his sentence for the use of weapons "in connection with"
his narcotics offenses.
3

We agree with Peterson that one of his offenses does not qualify as a "violent
felony" for purposes of 924(e), but reject his remaining arguments.
Accordingly, we affirm the conviction and remand for resentencing.

BACKGROUND
4

Henry Peterson was arrested in Cranston, Rhode Island on February 4, 1998,

while in possession of five grams of crack cocaine. A consented-to search of his
apartment revealed marijuana, drug paraphernalia, several firearms, and
ammunition. A search of Peterson's girlfriend's apartment uncovered more
marijuana and an additional firearm. The girlfriend, Tanya Baptiste (who had
also been arrested), claimed that the drugs and gun found in her apartment both
belonged to Peterson.

In state court, Peterson pled nolo contendere to possession with intent to

distribute controlled substances, firearm possession after conviction for a crime
of violence, and possession of stolen goods. He received a ten-year sentence,
seven years of which were suspended.

Federal prosecutors, apparently dissatisfied with the length of the state

sentence, then sought indictment under federal narcotics and firearms law. At
trial, the defense rested without offering evidence. The court alerted the jury
that closing statements were forthcoming, recessed, and then held a charging
conference. At that belated point, Peterson's counsel informed the court that
Peterson now wished to testify on his own behalf, despite having decided not to
testify during his case-in-chief. The district judge refused to reopen the
evidence to allow Peterson to testify.

Peterson was ultimately convicted on all five counts, including two counts of
18 U.S.C. 922(g), being a felon in possession of a firearm. Based on three prior
state convictions for breaking and entering, he was sentenced as an armed
career criminal under 18 U.S.C. 924(e)(1), which provides for a fifteen-year
minimum sentence. The combination of his armed career criminal status and
the finding that his weapon possession was "in connection with" a controlled
substance offense resulted in an offense level of 34 under the Sentencing

Guidelines. Peterson was sentenced accordingly.

DISCUSSION
8

We first dispose of Peterson's trial-related claims and then address his claims
relating to sentencing.
I. Vindictive Prosecution Claim

Peterson admits that prosecution on both state and federal charges is

constitutionally permissible under the dual sovereignty doctrine. See Heath v.
Alabama, 474 U.S. 82, 88-89 (1985). He also acknowledges that the federal
government's Petite policy1 confers no substantive rights upon defendants. See
United States v. McCoy, 977 F.2d 706, 712 (1st Cir. 1992).

10

Peterson thus premises his objection to his federal prosecution on either

prosecutorial vindictiveness or an equal protection violation. Because Peterson
failed to raise a claim of vindictive prosecution prior to trial, the claim is
waived and we review for plain error. See United States v. Gary, 74 F.3d 304,
313 (1st Cir. 1996); United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir.), cert.
denied, 523 U.S. 1122 (1998). We presume that the prosecutor acted in good
faith, and did not prosecute in a vindictive manner. See United States v.
Bassford, 812 F.2d 16, 19 (1st Cir. 1987). To rebut this presumption and obtain
an evidentiary hearing on the issue,2 the defendant must allege facts (1) tending
to show selective prosecution, and (2) raising a reasonable doubt about the
propriety of the prosecution's motive. See Gary, 74 F.3d at 313.

11

Peterson fails to make either showing. First, to show selective prosecution,

Peterson must show "that [he] was prosecuted while others similarly situated
were not." Bassford, 812 F.2d at 20. Peterson argues that his girlfriend Tanya
Baptiste was similarly situated, yet faced no federal prosecution. However,
Baptiste was a small time pawn to Peterson's king: he directed the narcotics
distribution operation, while she merely participated in it. Thus, she was not
similarly situated to Peterson. Second, Peterson has not shown that the
government's prosecution was in bad faith. He claims that the government acted
with the sole motive of prolonging his sentence. But such motive is a legitimate
one for successive prosecution. See United States v. Stokes, 124 F.3d 39, 45
(1st Cir. 1997); see also Bassford, 812 F.2d at 19 (impermissible conditions are
those such as race, religion, or the desire to prevent the exercise of the
defendant's constitutional rights); id. at 20 ("[T]he conduct of two independent
sovereigns does not lend itself to the concept of vindictive prosecution.")

(citations omitted). On these facts, we cannot find any error, much less the
plain error required for us to act on a waived claim.
12

Alternatively, Peterson suggests that his federal prosecution violated the Equal
Protection Clause. It is a violation of equal protection for the government to
base prosecution on an unjustifiable standard or arbitrary classification. See
Gary, 74 F.3d at 313. But there is no evidence of either here.

13

We therefore find no error in Peterson's prosecution.

14

II. Failure to Reopen the Evidence to Permit Peterson to Testify

15

At trial, after the defense rested, the court told the jury to expect closing
arguments within the hour and went into recess; after recess, the court held a
brief charging conference. At the end of the conference, counsel for Peterson
told the court that Peterson now wished to testify on his own behalf. Counsel
noted that, until now, Peterson had agreed with his attorney's decision not to put
on any evidence in the case. Furthermore, counsel advised the court that for
ethical reasons he could not examine Peterson if Peterson were allowed to
testify. The district court refused to reopen the evidence in order to allow
Peterson to testify. Peterson claims that the district court's refusal to do so
violated his constitutional right to testify in his own defense.

16

It is true that a criminal defendant has a constitutional right to testify in his own
defense. See Rock v. Arkansas, 483 U.S. 44, 49 (1987). However, the right to
testify is not absolute; it must sometimes "bow to accommodate other
legitimate interests in the criminal trial process." Id. at 55 (internal quotation
marks and citation omitted). Hence, a defendant does not have an unrestricted
right to testify at any point during trial. Generally, if he wishes to testify, he
must do so before he rests his case; otherwise, he can move the trial court to
reopen the evidence, but the choice whether to reopen is left to the court's
sound discretion. See United States v. Santana, 175 F.3d 57, 64 (1st Cir. 1999).
Such a rule serves to ensure that the trial proceeds in a fair and orderly manner,
with the defendant's testimony occurring when the judge, jury, and prosecution
reasonably expect it. See United States v. Jones, 880 F.2d 55, 59-60 (8th Cir.
1988).

17

Thus, in reviewing whether the district court properly exercised its discretion
not to reopen the evidence, we look to whether the court properly weighed the
defendant's right to testify against the need for order and fairness in the
proceedings. See Rock, 483 U.S. at 56 ("In applying its evidentiary rules a

[court] must evaluate whether the interests served by a rule justify the
limitation imposed on the defendant's constitutional right to testify.") In
conducting this inquiry, we find helpful the Fifth Circuit's decision in United
States v. Walker, 772 F.2d 1172 (5th Cir. 1985), where the court enumerated
the factors a district court must consider in deciding whether to reopen the
evidence to allow a defendant to testify:
18

In exercising its discretion, the court must consider the timeliness of the
motion, the character of the testimony, and the effect of the granting of the
motion. The party moving to reopen should provide a reasonable explanation
for failure to present the evidence in its case-in-chief. The evidence proffered
should be relevant, admissible, technically adequate, and helpful to the jury in
ascertaining the guilt or innocence of the accused. The belated receipt of such
testimony should not imbue the evidence with distorted importance, prejudice
the opposing party's case, or preclude an adversary from having an adequate
opportunity to meet the additional evidence offered.

19

Walker, 772 F.2d at 1177 (citations and quotation marks omitted).3 In short, the
court must consider whether the likely value of the defendant's testimony
outweighs the potential for disruption or prejudice in the proceedings, and if so
whether the defendant has a reasonable excuse for failing to present the
testimony during his case-in-chief.

20

Peterson argues that, given the timeliness of his motion to reopen, it posed no
threat of disrupting or prejudicing the proceedings. We agree that the small
delay posed a relatively small threat. Peterson moved to reopen approximately a
half-hour after the defense rested. During that time, counsel for both sides
prepared their closing arguments during recess, and the court then conducted a
very simple charging conference lasting no more than a few minutes; other than
that, nothing of substance took place. Thus, while reopening the evidence
always can be expected to disrupt trial proceedings to some extent, here the
disruption would have been comparatively minor. Compare United States v.
Parker, 73 F.3d 48, 54 (5th Cir.), opinion vacated upon reh'g en banc, 80 F.3d
1042 (5th Cir. 1996), and reinstated in relevant part, 104 F.3d 72 (5th Cir. 1997)
(finding timeliness of motion to reopen to weigh in defendant's favor where
motion was made one hour after defense rested, during which hour court
recessed for lunch), with Walker, 772 F.2d at 1177 (finding delay of one day to
weigh slightly against defendant), and United States v. Paz, 927 F.2d 176, 179
(4th Cir. 1991) (no abuse of discretion in denying motion to reopen where
motion was made after verdict was reached).

21

Nonetheless, while small, the potential for disruption upon reopening the

evidence was not insignificant. For example, reopening the evidence may have
confused the jurors after they had been told to expect closing arguments when
they returned from recess. Moreover, Peterson's attorney had indicated he
would not be able to participate in any examination of Peterson, posing
procedural problems for the judge if Peterson were permitted to testify. Given
the potential for disruption in this sense, the district court was at liberty to deny
the motion to reopen if Peterson's testimony was likely to be of little value. And
the record sufficiently supports that conclusion. Peterson gave the court hardly
any indication as to what he wished to testify about, stating only he "just
want[ed] to bring out certain facts about certain issues" that his counsel
allegedly failed to develop during cross-examination of the government's
witnesses. In the court's opinion, Peterson was "playing games," possibly
maneuvering to lay the grounds for a future 2255 petition -- a suspicion
bolstered by the fact that throughout the trial, Peterson had, on the record,
accused his attorney of working for the government and deliberately attempting
to throw the trial. Cf. United States v. Stewart, 20 F.3d 911, 917 (8th Cir. 1994)
(no abuse of discretion where value of defendant's testimony was cast in doubt
by previous efforts to delay and disrupt trial). Most important, Peterson's
attorney cast grave doubt over the likely value of Peterson's testimony by
repeatedly insisting that he would not be able to put Peterson on the stand given
his ethical duties to the court -- thereby strongly suggesting that Peterson
planned to commit perjury. Ordinarily, in light of the defendant's constitutional
right to testify, we would presume a defendant's testimony to be of significant
value, see Walker, 772 F.2d at 1178 (finding testimony of a defendant in his
own trial to be of "inherent significance"); but the facts of this case are
sufficient to rebut this presumption.
22

Finally, as to the reasonableness of Peterson's excuse for not testifying during

his case-in-chief, Peterson offered no excuse, let alone a reasonable one.
Peterson had ample time during his case-in-chief to offer testimony; he
admitted that he and counsel had agreed that he would not exercise this option.
Even assuming Peterson's testimony would have been valuable, Peterson still
owed the court some sort of reasonable explanation for his sudden change in
tack. Cf., e.g., Parker, 73 F.3d at 54 (finding defense counsel's mistake
reasonable excuse); Walker, 772 F.2d at 1183-84 (finding "not significantly
unreasonable" defendant's excuse that during case-in-chief he was too
emotionally distraught to testify). Without such a requirement of excuse, the
rule generally limiting testimony to the evidence-taking stage of a trial would
hardly be a rule at all, and it would be too easy for a defendant to postpone
testifying for strategic reasons until after the close of evidence.

23

In these circumstances, we find no abuse of discretion and no infringement of

Peterson's constitutional right to testify.

III. Armed Career Criminal Status
24

The Armed Career Criminal Act, 18 U.S.C. 924(e), imposes a fifteen-year

minimum sentence on offenders of section 922(g) who have three previous
"violent felony" convictions. What constitutes a "violent felony" for the
purposes of this section is a question of federal law, see Taylor v. United States,
495 U.S. 575, 591 (1990), and is controlled by 18 U.S.C. 924(e)(2)(B), which
defines the term in relevant part as: any crime punishable by imprisonment for a
term exceeding one year . . . that --

25

...

26

(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.

27

Peterson admits that this language covers two of his prior state convictions, but
challenges the inclusion of a third conviction for breaking and entering under
R.I. Gen. Laws 11-8-2. The sentencing court held the conviction to fall within
the section's scope and so imposed the mandatory minimum required by the
ACCA. We review de novo, United States v. Sacko, 178 F.3d 1, 2-3 (1st Cir.
1999), and reverse.

28

In determining whether Peterson's conviction under 11-8-2 qualifies as a

"violent felony," we look to the statutory definition, rather than the specific
facts, of Peterson's crime. See Taylor, 495 U.S. at 600 (1990). Rhode Island law
sets out a gradated series of statutory breaking and entering offenses. See R.I.
Gen. Laws 11-8-1 et seq. Peterson was convicted under the least serious among
them. The offense is defined as follows:

29

Unlawful breaking and entering of dwelling house. Every person who shall
break and enter at any time of the day or night any dwelling house or
apartment, whether the same is occupied or not, or any outbuilding or garage
attached to or adjoining any dwelling house, without the consent of the owner
or tenant of such dwelling house, apartment, building, or garage, shall be
imprisoned for not less than one (1) year and not more than five (5) years or
fined not more than two thousand dollars ($2,000) or shall suffer both such fine
and imprisonment.

30
31

R.I. Gen. Laws 11-8-2.

Peterson argues that 11-8-2 does not rise to the level of a "violent felony"
because it does not include a requirement that the defendant break and enter
with intent to commit a crime.4 The offense thus stands in contrast to the more
serious breaking and entering crimes in Rhode Island, which do require
criminal intent, R.I. Gen. Laws 11-8-3 to -6, and the statutory crime of burglary,
11-8-1, which has been construed to require criminal intent as a matter of
common law, State v. O'Rourke, 399 A.2d 1237, 1238 (R.I. 1979). Section 118-2 also stands in contrast to the breaking and entering offenses that we have
previously determined to be violent felonies. All of those offenses included a
criminal intent requirement. See United States v. Sawyer, 144 F.3d 191, 194-95
(1st Cir. 1998) (Me. Rev. Stat. Ann. tit. 17-A, 401); United States v. Payne, 966
F.2d 4, 8-9 (1st Cir. 1992) (Mass. Gen. Laws ch. 266, 17-18); United States v.
Paleo, 967 F.2d 7, 10 (1st Cir. 1992) (unspecified Massachusetts statutes);
United States v. Fiore, 983 F.2d 1, 4 n.6 (1st Cir. 1992) (R.I. Gen. Laws 11-84); United States v. Patterson, 882 F.2d 595, 601-02 (1st Cir. 1989) (Mass Gen.
Laws ch. 266, 16, 18).

32

As a matter of statutory construction, we agree with Peterson that the lack of a

criminal intent requirement places 11-8-2 outside the realm of a "violent
felony." Congress specified in 924(e) the type of breaking and entering offense
that qualifies as a violent felony -- burglary -- and that offense requires criminal
intent. Burglary is one of a handful of offenses specifically listed in 924(e)(2)
(B) as a violent felony. As the Supreme Court made clear in Taylor v. United
States, supra, Congress intended the term "burglary" to encompass a large
subset of breaking and entering offenses. Specifically, "burglary" encompasses
those breaking and entering offenses defined to include two elements: first, the
defendant must break and enter into a "building or structure"; second, the
defendant must break and enter "with intent to commit a crime." See Taylor,
495 U.S. at 599 ("[A] person has been convicted of burglary for purposes of a
924(e) enhancement if he is convicted of any crime, regardless of its exact
definition or label, having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to commit a crime.")
Because Peterson's breaking and entering offense lacked any criminal intent
element, it does not qualify as a burglary.

33

We do not think that 924(e)(2)(B)(ii)'s catchall clause -- covering crime that

"otherwise involves conduct that presents a serious risk of physical injury to
another" -- changes the analysis. In specifying burglary as a violent felony,
Congress made its own categorical judgment as to what subset of breaking and

entering offenses "presents a serious potential risk of physical injury to

another." Had Congress wished to cast a wider net, it could have easily used the
more general term "breaking and entering" instead. But it chose to single out
burglary, and it defined that term to include a criminal intent requirement. We
are not at liberty to dilute or eliminate that criminal intent requirement; yet that
is precisely the effect that would result were we to determine that 11-8-2 falls
under the "otherwise" clause. If breaking and entering is to be considered a
violent felony regardless of any criminal intent requirement, then that limitation
placed on the definition of burglary is rendered meaningless. We do not think
the "otherwise" clause should be construed to include a class of breaking and
entering crimes within the scope of 924(e)(2)(B)(ii) that the definition of
burglary explicitly excludes.
34

Our reading of 924(e)(2)(B)(ii) is corroborated by its legislative history. As

explained in Taylor, the original version of 924(e) included as predicate
offenses only "robbery or burglary." Burglary was defined in the statute to
include a criminal intent requirement. See Taylor, 495 U.S. at 581 (citing
Armed Career Criminal Act of 1984, Pub. L. 98-473, ch. 18, 98 Stat. 2185, 18
U.S.C.App. 1202(c)(9) (1982 ed., Supp. III) (repealed in 1986 by Pub. L. 99308, 104(b), 100 Stat. 459)). When the statute was recodified and amended into
its present form, Congress gave no indication that it was dissatisfied with scope
of the term "burglary" or that it wished to sweep all breaking and entering
offenses within the reach of 924(e). Indeed, Congress kept the term "burglary"
in the amended section and intended to preserve the term's original statutory
definition. See Taylor, 495 U.S. at 589-90, 598.

35

What the legislative history instead suggests is that, in expanding 924(e) to

cover arson, extortion, explosives crimes, and crimes otherwise presenting
serious risk of physical injury, Congress sought to add to 924(e)'s coverage not
new species of breaking and entering crimes beyond burglary, but crimes of
entirely different genera. See, e.g., Armed Career Criminal Legislation:
Hearing on H.R. 4639 and H.R. 4768 before the Subcommittee on Crime of the
House Committee on the Judiciary, 99th Cong., 2d Sess. 33 (1986) (describing
as "fundamental premise" of proposed amendments "that it makes no sense to
single out robbery and burglary as qualifying prior offenses while omitting
more serious felonies such as murder or major drug dealing") (statement of
Bruce Lyons, President-elect of National Association of Criminal Defense
Lawyers); Armed Career Criminal Act Amendments: Hearing on S.2312 before
the Subcommittee on Criminal Law of the Senate Committee on the Judiciary,
99th Cong., 2d Sess. 12 (1986) ("We support this expanded coverage of the
Act. Persons who have been convicted of, for example, two rapes and an
assault with a dangerous weapon are every bit as dangerous . . . as a person

who has been convicted of two burglaries and a robbery.") (prepared statement
of Deputy Assistant Attorney General James Knapp).
36

Our prior cases do not argue for a different conclusion. It is true that this court
has twice before found statutory breaking and entering crimes to fall under
924(e)'s "otherwise" clause. See United States v. Payne, 966 F.2d 4, 8-9 (1st
Cir. 1992) (Mass. Ann. Laws ch. 266, 17-18); United States v. Patterson, 882
F.2d 595, 601-02 (1st Cir. 1989) (Mass. Gen. Laws ch. 266 16, 18). But the
state offenses at issue in those cases included a criminal intent requirement;
indeed, each of the offenses fit the Taylor definition of burglary. The only
reason the offenses were analyzed under the "otherwise" clause was that, at the
time Patterson was decided, the definition of "burglary" under 924(e) had yet to
be settled by Taylor. See Patterson, 882 F.2d at 604 (turning to the "otherwise"
clause after failing to divine how Congress intended to define burglary). Payne
simply followed in Patterson's footsteps, even though Taylor had been decided
in the interim and could have allowed for an alternative analysis. See Payne,
966 F.2d at 8 n.6.5

37

We do not suggest that no breaking and entering offense except one precisely
meeting the Taylor definition of burglary could ever fall under 924(e)(2)(B)(ii)
through its "otherwise" clause. See Taylor, 495 U.S. at 600 n.9 ("The
Government remains free to argue that any offense -- including offenses similar
to generic burglary -- should count towards enhancement as one that 'otherwise
involves conduct that presents a serious potential risk of physical injury to
another' under 924(e)(2)(B)(ii)."). But in order to fall under the "otherwise"
clause, a breaking and entering offense must contain elements truly comparable
to those of a burglary -- comparable enough that the offense poses an
equivalent risk of physical injury. For example, breaking and entering into a
houseboat with intent to commit a crime might not constitute burglary because a
houseboat is, arguably, not a "building" or "structure"; but it might nonetheless
be appropriate to regard such a crime as falling under the "otherwise" clause
given that its venue is similar enough to a building that the crime poses the
same risk of violence. Here, by contrast, 11-8-2 does not contain an element
similar to the criminal intent requirement of burglary; rather, it is missing that
element altogether. Consequently, the crime poses substantially less risk of
violence than burglary and thus falls short of the mark set by Congress in its
explicit selection of burglary as a violent felony.6

38

Congress's intent in enacting 924(e) was to separate out for heightened

punishment offenders repeatedly convicted of truly violent crimes. Lest we
trivialize that intent, courts construing the reach of the provision must take care
to stay within the guideposts set by Congress.

39

For the foregoing reasons, we remand for resentencing.

IV. Weapons Enhancement

40

The district court enhanced Peterson's sentence for the use of a firearm "in
connection with" his narcotics offenses pursuant to U.S.S.G 2K2.1(b)(5) and
4B1.4(b)(3)(A). We review the district court's application of a particular
sentencing guideline de novo, but the factual findings underlying that
application are reviewed for clear error. See United States v. Thompson, 32
F.3d 1, 4 (1st Cir. 1994).

41

Because we have found that Peterson's conviction for breaking and entering is
not a predicate violent felony, see supra, we do not apply the Sentencing
Guideline relevant to armed career criminals, U.S.S.G. 4B1.4(a), but rather
apply only U.S.S.G. 2K2.1(b)(5), a largely similar provision that applies
generally to firearms offenders. Section 2K2.1(b)(5) provides for an offense
level enhancement of 4 "if the defendant used or possessed any firearm or
ammunition in connection with another felony offense."

42

We construe the phrase "in connection with" broadly. See United States v.
Thompson, 32 F.3d 1, 7 (1st Cir. 1994); see also United States v. Ellis, 168
F.3d 558, 563 (1st Cir. 1999) (reading same phrase broadly in 4B1.4(b)(3)(A)).
Although there must be a "causal or logical relation or sequence between the
possession and the related offense," and "[m]ere coincidental possession" is
insufficient, see Ellis, 168 F.3d at 563, we will find that a firearm has been used
"in connection with" an offense "if the possession has 'the potential to aid or
facilitate' the other crime," id. (quoting Thompson, 32 F.3d at 6). We have not
even required physical proximity between the firearms and the narcotics. See
Thompson, 32 F.3d at 6 (citing United States v. Brewster, 1 F.3d 51, 54 (1st
Cir. 1993)).

43

In this case, the government established at trial that Peterson kept two guns in
the same apartment where he stored marijuana. It was also established that a
third gun was stored near additional marijuana at Peterson's girlfriend's house.
All of the guns were readily accessible. The district court concluded that it was
Peterson's "modus operandi to have guns near his stash of marijuana." Given
that Peterson had firearms in close proximity to his drugs in two different
locations, this factual finding was not clear error. And the finding sufficiently
supports the legal conclusion that the firearm possession was "in connection
with" the underlying narcotics offense. In Thompson, we noted that "the usual
case" in which the Guideline applies is one in which the defendant "had the

firearm available to protect his supply of drugs." 32 F.3d at 8. Peterson's

"modus operandi" is well within the ambit of the Guideline. See United States
v. McFadden, 13 F.3d 463, 465-66 (1st Cir. 1994) (the presence of a readily
available weapon in a location containing drugs is enough to meet the "in
connection with" standard of U.S.S.G. 2K2.1(b)(5)).
CONCLUSION
44

We find none of Peterson's trial-related claims persuasive. We are also

unconvinced by his attempt to avoid a weapons-related sentencing
enhancement. We do conclude, however, that his conviction under R.I. Gen.
Laws 11-8-2 was not a conviction for a violent felony for purposes of 18 U.S.C.
924(e). Accordingly, we affirm in part and reverse in part, and remand for
resentencing.

NOTES:
1

The policy requires federal prosecutors to obtain permission from the

Department of Justice before engaging in a prosecution based on "alleged
criminality which was an ingredient of a previous state prosecution against that
person." McCoy, supra, at 712 (internal quotation marks omitted); see Petite v.
United States, 361 U.S. 529, 530-31 (1960) (per curiam). The prosecutor in this
case sought and received such permission.

For a summary finding of vindictive prosecution from this Court, the defendant
faces an even higher burden. See Bassford, 812 F.2d at 19.

Walker was decided prior to Rock's determination of a constitutional right to

testify. The Walker court explicitly refrained from answering the question
whether a defendant has a constitutional right to testify, but the court noted that
it did not wish to "imply that if we were to determine that a defendant had a
constitutional right to testify we would necessarily apply a different analysis to
the issue." Walker, 772 F.2d at 1179 n.10.

Peterson also points out that 11-8-2 covers break-ins of both occupied and
unoccupied dwellings, the latter of which, he contends, are non-violent crimes;
accordingly, he concludes, the sentencing court was obliged to examine the
indictment and jury instructions in Peterson's case to determine whether
Peterson was convicted of breaking into an occupied dwelling. We do not
address this argument.

We have also held breaking and entering offenses to fall under the "otherwise"

clause of U.S.S.G. 4B1.2(a), which tightly parallels 924(e)(2)(B). Again, each

of these offenses required criminal intent and met the Taylor definition of
burglary. See United States v. Sawyer, 144 F.3d 191, 194-96 (1st Cir. 1998)
(Me. Rev. Stat. Ann. tit. 17-A, 401); United States v. Fiore, 983 F.2d 1, 4-5 (1st
Cir. 1992) (R.I. Gen. Laws 11-8-4). The reason these offenses were analyzed
under the "otherwise" clause rather than as burglaries traces back to a slight
discrepancy between U.S.S.G. 4B1.2(a) and 924(e)(2)(B)(ii). The two
provisions are identical except that the former lists "burglary of a dwelling"
rather than simply "burglary" as a violent felony. In order to harmonize
U.S.S.G. 4B1.2(a) with 924(e)(2)(B)(ii) as construed in Taylor, we have read
the former's "otherwise" clause to include breaking and entering (i.e., burglary)
of buildings other than dwellings. See Sawyer, 144 F.3d at 196; Fiore, 983 F.2d
at 4-5.
6

The government argues in its brief that the risk of violence posed by a breaking
and entering "has little or nothing to do with the criminal's subjective intentions
in breaking and entering." On the contrary, it seems obvious that a person who
breaks into a building intending to steal, rape, or murder poses a greater risk of
violence than one who breaks and enters without such intentions. Indeed, in
contrast to generic burglary, 11-8-2 easily encompasses vagrants and pranksters
among its ranks; thus, the average 11-8-2 offender is substantially less likely to
harbor a predisposition toward violence than the average burglar.

45

TORRUELLA, Chief Judge, dissenting in part.

46

Although I agree with the majority on the bulk of this opinion, I would find that
the breaking and entering statute here, R.I. Gen. Laws 11-8-2, qualifies as a
"violent felony" with respect to 18 U.S.C. 924(e) under both Taylor v. United
States, 495 U.S. 575, 591 (1990), and this Court's prior decisions. I accordingly
dissent from Part III.

47

The majority focuses on the fact that the Supreme Court's definition of
"burglary" in Taylor required that a criminal statute include two elements to
qualify: that the defendant break and enter into a "building or structure" and
that the defendant break and enter "with intent to commit a crime." Id. at 599.
From this definition of burglary in 924(e)(2)(B)(i), the majority concludes that
Congress did not intend that the "otherwise" clause of 924(e)(2)(B)(ii) include
any breaking and entering offense lacking these two features. Admittedly, the
Rhode Island statute does not include a felonious intent element.

48

However, I can not conclude that the Taylor decision, which only interpreted
924(e)(2)(B)(i), necessarily excluded breaking and entering crimes such as this

one from the "otherwise" clause of 924(e)(2)(B)(ii). Although the majority is

correct that the legislative history concentrates on "entirely different genera" of
property crimes (such as arson and extortion), the history also discusses at
length the reasons why Congress considered burglary to be a prototypical
violent felony. The legislative sponsor, cited in the House Report, found
burglary to be "one of the 'most damaging crimes to society,' because it
involves 'invasion of [victims'] homes or workplaces' and 'violation of their
privacy." Taylor, 495 U.S. at 581 (citing H.R. Rep. No. 98-1073, at 1, 3
(1984)). The Senate Report noted that while burglary is often considered nonviolent, "its character can change rapidly, depending on the fortuitous presence
of the occupants of the home when the burglar enters, or their arrival while he
is still on the premises." Id. (citing S. Rep. No. 98-190, at 5 (1983)). These
animating purposes suggest the appropriateness of finding 11-8-2 to be a violent
felony: whether criminal intent is an element of the statute or not, a violation of
11-8-2 potentially involves the "invasion of the home or workplace," the
"violation of privacy," and the potential for violence toward unanticipated
occupiers or discoverers feared by Congress in enacting and amending this
legislation.
49

This Court's prior decisions have realized that the motivation for including a
breaking and entering felony as "violent" under the "otherwise" clause rests
primarily on the negative effects of the intrusion and minimally on the reason
why the criminal enters the structure. In United States v. Payne, 966 F.2d 4 (1st
Cir. 1992), we found that attempted breaking and entering was a violent felony.
We held that the risk of injury stemmed not from the completion of the breakin, "but rather from the possibility that some innocent party may appear on the
scene while the break-in is occurring." Id. at 8. Notably, we did not premise
this serious risk on the fact that the perpetrator was entering the building to
commit a felony, or indeed any crime, inside. See also United States v. Sawyer,
144 F.3d 191, 195-96 (1st Cir. 1998) (distinction between crime and one of four
serious felonies irrelevant to violent felony determination); United States v.
Patterson, 882 F.2d 595, 603 (1st Cir. 1989) ("[W]hile a burglary might start
out as a non-violent crime, the burglar may resort to violence if someone is on
the premises or appears there while the burglary is in process. . . . Congress
could quite reasonably conclude that no matter what the felon's intent upon
breaking in, the property owner may return, a neighbor may investigate, or a
law enforcement official may respond. All of these scenarios present a grave
threat of harm to persons." (citing United States v. Portwood, 857 F.2d 1221,
1224 (8th Cir. 1988)). We concluded in Patterson, as I would conclude here,
that "[u]nder the catch-all provision of the statute, it matters not how burglary
is defined[; t]he crucial factor is an unauthorized entry of the premises of
another."

50

Id.

51

Although the majority does not need to reach the issue, Peterson also argues
that the "unoccupied" status of the building should pull it out of the ambit of the
"otherwise" clause. Again, neither the Supreme Court nor this Court has
premised the risk of harm on the occupied or un-occupied status of the
dwelling. See Taylor, 495 U.S. at 597 (The definition of a violent felony
includes any "unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime."); United States v. Schofield, 114 F.3d
350, 352 (1st Cir. 1997) ("Under Taylor, it is irrelevant whether the school was
occupied."); Payne, 966 F.2d at 8 (Although "any confrontation is more likely
to result in violence if it occurs while the perpetrator is in the building, as he is
then likely to have no easy way out and to cause greater alarm to whomever he
confronts," there remains "a serious risk of confrontation while a perpetrator is
attempting to enter the building."). This risk of serious injury stemming from
the arrival of a passerby, or even more seriously, from the discovery of a
trespasser inside a building with limited exit possibilities, is enough to meet the
threshold of violence under the ACCA.

52

Our analysis requires us to examine whether "the probability of physical harm

presented by the mine-run of conduct that falls within the heartland of the
statute" is sufficient to meet the "violent felony" standard of 924(e)(2)(B)(ii).
United States v. De-Jesus, 984 F.2d 21, 24 (1st Cir. 1993). After a careful
reading of Taylor and this Court's precedent, I find that the same risks inherent
in other "violent felony" statutes are at play in this one. Accordingly, I would
affirm the district court's decision on this issue.