US v. Duquette

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [13-2055]

Case: 13-2055

Document: 00116798758

Page: 1

Date Filed: 02/13/2015

Entry ID: 5886222

United States Court of Appeals
For the First Circuit

No. 13-2055
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH DUQUETTE,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Howard, Selya, and Thompson,
Circuit Judges.

Lenore Glaser on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney (Appellate Chief),
on brief for appellee.

February 13, 2015

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THOMPSON, Circuit Judge.

Entry ID: 5886222

Appellant Joseph Duquette

("Duquette") challenges the 15-year sentence meted out to him after
pleading guilty to being a felon in possession of multiple firearms
in violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 924(e).

We affirm.

I. BACKGROUND
The events culminating in Duquette's conviction and
sentence occurred in January of 2011.

Duquette's 14-year-old

daughter, along with her brother (it is not clear from the record
if he was Duquette's son), stayed at Duquette's home in Maine for
a weekend visit.

During their visit, Duquette's daughter saw a

shotgun on the kitchen table.

Duquette then showed her a pistol

that he kept in his bedroom, and she noticed two loaded magazines
on the dresser, too. Those magazines, Duquette explained, were for
his "AK-47."
Duquette warned the two youngsters not to touch any of
the guns, as they could "blow a hole in them [that is, the
children]."

This prohibition did not apply to him, though.

After

becoming upset at some point that weekend, Duquette threatened to
kill his daughter's mother, got his pistol, and left the house.
Fortunately, Duquette did not follow through with his threat, and
he returned home a short while later.

Nevertheless, his daughter

was sufficiently worried that she later told her mother about what
had happened. Her mother promptly contacted the police, who, after

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obtaining a search warrant, recovered a rifle, a shotgun, a pistol,
and some ammunition from Duquette's home. Duquette's possession of
these weapons was a problem for him because he had multiple prior
felony convictions.
A grand jury charged Duquette with unlawful possession of
firearms after having been convicted of multiple crimes classified
as felonies under the laws of Maine.

The indictment alleged that

his prior felony convictions included unlawful trafficking in
scheduled drugs, two convictions for possession of a firearm by a
felon, trafficking in prison contraband, escape, assault on an
officer, and--of import here--two burglary convictions.
record,

the

government

alleged

that

Duquette's

Given his

possession

of

firearms was in violation of 18 U.S.C. §§ 922(g)(1)1 and 924(e)2,
charges which carried with them the possibility of a mandatory 15year minimum sentence.

Duquette ultimately entered a guilty plea.

At Duquette's sentencing hearing, the district judge
first determined what the United States Sentencing Guidelines

1

"It shall be unlawful for any person -- (1) who has been
convicted in any court of, a crime punishable by imprisonment for
a term exceeding one year . . . to . . . possess in or affecting
commerce, any firearm or ammunition . . . ."
18 U.S.C.
§ 922(g)(1).
2

"In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court referred to
in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another, such person shall be . . . imprisoned not less
than fifteen years." 18 U.S.C. § 924(e)(1).
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("Guidelines") had to say about how long his sentence should be.
Applying the Guidelines's directives, the judge took into account
the nature of Duquette's offense and the fact that it involved
firearms,

his

criminal

history,

and

that

he

responsibility for his actions by pleading guilty.

had

accepted

Based on these

factors, the judge determined that the Guidelines recommended a
sentence somewhere between 135 and 168 months.
After settling on the sentencing range recommended by the
Guidelines, the district judge still had to contend with the
potentially-applicable statutory minimum sentence in the ACCA.

To

be subject to the ACCA's 15-year minimum sentence, three or more of
Duquette's

past

convictions

must

have

qualified

as

"violent

felonies." See 18 U.S.C. § 924(e)(1). A "violent felony," as that
term is used in the ACCA, includes (among others) any crime
"punishable by imprisonment for a term exceeding one year . . .
that . . . is burglary."
judge

found

that

18 U.S.C. § 924(e)(2)(B).

Duquette's

state-law

burglary

The district
convictions

constituted violent felonies given that he had been sentenced to
more than one year in jail as punishment for each crime.

The judge

concluded that, in light of his other priors, Duquette had at least
three convictions for violent felonies.
the

ACCA's

minimum

15-year

(180-month)

Accordingly, and because
sentence

exceeded

the

Guidelines-recommended range of 135 to 168 months, the district

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judge

imposed

the

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statutory

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minimum

jail

term

of

Entry ID: 5886222

15

years.

Duquette's appeal of his sentence followed.
II. DISCUSSION
Duquette's sole challenge to the length of his sentence
can be summed up rather succinctly.

Conceding that his prior drug

and assault convictions qualify as two out of the three convictions
needed to trigger the ACCA's minimum sentence, Duquette refers back
to the Guidelines to argue that he may be designated as a "career
offender" only if his burglary convictions qualify as crimes of
violence, not as defined by the ACCA, but as defined by the
Guidelines.

See U.S.S.G. § 4B1.1.

Duquette, however, never tells

us why he thinks the Guidelines's definition of a crime of violence
should trump the ACCA's clear language and its own, specific
definition of a violent felony.
He simply says that, for his burglaries to count towards
career

offender

status,

he

must

have

burglarized

someone's

dwelling, not simply any old structure. See U.S.S.G. § 4B1.2. The
problem, as Duquette sees it, is that there was no evidence in the
record showing that either of his past burglaries involved a
dwelling.

And in the absence of such evidence, he posits that the

district court had no basis for concluding that his past burglaries
were

violent

sentence.

felonies

triggering

the

See 18 U.S.C. § 924(e)(1).

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ACCA's

15-year

minimum

Duquette urges us to vacate

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his sentence and remand for the district court to sentence him
again, without regard to the ACCA's 15-year minimum.
The government raises several arguments against this, but
the only one we need concern ourselves with is its position that
the ACCA does not require a defendant's burglary to have involved
a dwelling for it to count as a violent felony under the ACCA.

The

government also offers up a theory to explain Duquette's failure to
tell us why his sentence should be controlled by the Guidelines and
not the ACCA: "in insisting that only burglary of a dwelling can
qualify as an ACCA 'violent felony,' Duquette confuses that term
with the [] Guidelines' Career Offender provision, which defines
'crime of violence' in a more limited way to apply only to burglary
of a dwelling." As we shall see, the government, not Duquette, has
it right.
The question we must resolve here is whether Duquette's
past burglary convictions under Maine law qualify as violent
felonies as defined by the ACCA, 18 U.S.C. § 924(e)(1).
determination

of

whether

a

prior

conviction

qualifies

"The
as

a

predicate offense for purposes of the ACCA is a legal question
subject to de novo review."

United States v. Pakala, 568 F.3d 47,

54 (1st Cir. 2009).3

3

Unpreserved objections, of course, are subject to plain
error review only. See United States v. Tavares, 705 F.3d 4, 24
(1st Cir. 2014). The government says Duquette has only "arguably
preserved" an objection to one of the two burglary convictions
being counted as a predicate offense toward armed career criminal
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Resolving

the

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issue

raised

by

Entry ID: 5886222

Duquette

is

straightforward. "In Taylor v. United States, 495 U.S. 575 (1990),
the Supreme Court addressed what burglaries constitute violent
felonies under § 924(e)(2)(B)(ii) of the ACCA."

Id. (internal

quotation marks and brackets omitted). The Taylor Court "held that
a 'generic burglary' constitutes a 'violent felony' for purposes of
the ACCA."

Id. (quoting Taylor, 495 U.S. at 599).

It proceeded to

"define[] a 'generic burglary' as '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,

status and, therefore, plain error review should apply to any
appellate argument not predicated upon that particular offense. To
prevail under the plain error standard, Duquette would "bear the
burden of showing '(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
The record reveals that at the change of plea hearing,
Duquette's lawyer advised the court that Duquette would argue at
sentencing that certain of his past convictions should not count
towards armed career criminal status. Then at sentencing, Duquette
himself informed the judge that one of his convictions "was a Class
C burglary of a school."
He advised the judge that his other
burglary conviction "was a Class C" as well, and was related to an
incident in which a friend of his went off on his own one night and
returned with a "wood splitter," apparently with the police right
on his tail. Based on the record here, and although the question
is close, we think Duquette probably preserved the issues he raises
on appeal. We need not, however, decide this particular question.
Duquette is unable to demonstrate any error--plain or otherwise--so
it makes no difference anyway whether we apply de novo or plain
error review. Since the government appears to have conceded that
de novo review applies to at least one of Duquette's arguments,
we'll just consider our entire review to be de novo and move on.
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with intent to commit a crime."
599).

Date Filed: 02/13/2015

Entry ID: 5886222

Id. (quoting Taylor, 495 U.S. at

Nowhere does Taylor indicate (or even imply) that whether

the burgled structure is a dwelling has anything to do with
determining whether the guilty individual committed a "generic
burglary."
Pursuant to Taylor, our task is to examine the Maine
burglary statute under which Duquette was convicted and determine
whether it sets forth the "generic burglary" elements of (1)
unlawful or unprivileged entry into, or remaining in, (2) a
building or structure, with (3) intent to commit a crime.

If we

find that the statute contains these elements, Duquette's burglary
convictions categorically constitute violent felonies within the
meaning of the ACCA, and our work is done.

See Taylor, 495 U.S. at

602 (recognizing that the ACCA generally requires courts to take a
"categorical approach" by "look[ing] only to the fact of conviction
and

the

statutory

definition

of

the

predicate

[i.e.,

prior]

offense" to determine whether a prior offense fits the ACCA's
definition of a violent felony); see also United States v. Dancy,
640 F.3d 455, 466 (1st Cir. 2011) ("The inquiry under the ACCA is
whether the state's legal definition of the offense of conviction
fulfills . . . the ACCA's definition of a violent felony.").
Duquette states, and we accept for purposes of this
appeal, that the relevant parts of the Maine burglary statute
provide as follows:

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A person is guilty of burglary if:
A. The person enters or surreptitiously
remains in a structure knowing that that
person is not licenced or privileged to do so,
with the intent to commit a crime therein.
Me. Rev. Stat. tit. 17-A, § 401(1).

By its clear and unambiguous

terms, the statute contains all of the elements of "generic
burglary" that the Supreme Court set forth in Taylor. Duquette, in
fact, concedes this in his brief.

See Appellant's Br. at 8

(quoting Taylor, 495 U.S. at 599 ("The statutory elements match the
elements of 'generic burglary' defined as 'unlawful or unprivileged
entry to a building or structure with the intent to commit a
crime.'")).
burglary

We find, therefore, that this statutory definition of

"substantially

Taylor, 495 U.S. at 602.

corresponds

to

'generic'

burglary."

This is fatal to Duquette's appeal:

because Maine's burglary statute sets forth the definition of
"generic burglary," under Taylor, a conviction under that statute
qualifies as a "violent felony" under the ACCA.

And because

Duquette has two burglary convictions and concedes that two of his
other convictions qualify as violent felonies as well, Duquette is
subject to the ACCA's minimum sentence as one who has previously
been convicted of three or more violent felonies.
Not so fast, says Duquette.

Relying on United States v.

Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc), he argues that the
district judge should not have found that his burglary convictions
count as violent felonies under the ACCA because there is no
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evidence in the record to show that he burglarized a residence on
either occasion.

Duquette's argument is off-base though.

The long and short of it is that Giggey involved the
interpretation and application of the Guidelines's definition of a
"crime of violence," not the ACCA's definition of a "violent
felony."

We held in Giggey that "a prior conviction for burglary

not of a dwelling is not per se a 'crime of violence'" under the
Guidelines's definition of a career offender.

Id. at 28.

In the

course of reaching this conclusion, we did, however, recognize and
note that the Guidelines's career offender provisions are concerned
with a definition of burglary that is "narrower" than the ACCA's
definition of that crime.

Id. at 36.

Although satisfying the

Guidelines's narrower definition of burglary requires a burglary to
have involved a residence, "the term 'burglary' as used in the ACCA
[is] broad enough to include both residential and non-residential
offenses."

Id. at 35-36.

Accordingly, and to the extent it

applies here at all, Giggey actually hurts Duquette's position.
And

even

if

Duquette

could

convince

us

that

his

burglaries do not qualify as "crimes of violence" or render him a
"career offender" pursuant to the Guidelines (an issue on which we
express no opinion), this would do him no good anyway.

Because

Duquette's sentence is reflective of the ACCA's statutory minimum,
and not a sentencing range suggested by the Guidelines, showing
that his burglaries were not "crimes of violence" or that he is not

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a "career offender" for Guidelines purposes could not result in him
receiving a sentence shorter than the 15 years mandated by the
ACCA.

See Dorsey v. United States, 132 S.Ct. 2321, 2327 (2012)

(recognizing that because a federal sentencing statute "trumps the
Guidelines[,] . . . ordinarily no matter what range the Guidelines
set forth, a sentencing judge must sentence an offender to at least
the

minimum

prison

term

set

forth

in

a

statutory

mandatory

minimum").
III. CONCLUSION
For the reasons set forth above, the district judge did
not

err

when

he

concluded

that

Duquette's

prior

subjected him to the ACCA's 15-year minimum sentence.
Affirmed.

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convictions