USCA1 Opinion

August 20, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2382
KENNETH J. PATRONE,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________
____________________

Kenneth Patrone on brief pro se.

_______________
Lincoln C. Almond, United States Attorney, Margaret E. Curran
_________________
__________________
Michael E. Davitt, Assistant United States Attorneys, on brief
__________________
appellee.
____________________
____________________

Per Curiam.
__________

Petitioner-appellant Kenneth

Patrone

was convicted of being a felon in possession of a firearm, 18

U.S.C.

922(g), and of possessing

26 U.S.C.

an unregistered firearm,

5241, 5861(d) and 5871.

career criminal

under 18

U.S.C.

Sentenced as an armed

924(e),

Patrone received

the mandatory minimum enhanced sentence on the first count, a

fifteen-year

term

of

imprisonment without

concurrent ten-year term on count two.

we affirmed.

United States
_____________

parole,

and

Patrone appealed and

v. Patrone, 948
_______

F.2d 813

Cir. 1991), cert. denied, 112 S. Ct. 2953 (1992).1

_____ ______

(1st

Patrone then moved to

his

sentence.

28

vacate, set aside or correct

U.S.C.

objection, the district court

2255.

be denied and this appeal

For the reasons that follow, we affirm.

Petitioner

appeal:2

petitioner's

approved the recommendation of

a magistrate-judge that the motion

ensued.

Over

(1)

that

essentially
his

counsel

raises

two

rendered

issues

on

ineffective

____________________
1. As the underlying relevant facts are set
opinion on direct appeal, we do not repeat them.

out

in our

2. Much of Patrone's argument on appeal is based on issues

and theories not presented to the district court (e.g.,
counsel's
failure
to
conduct
reasonable
pretrial
investigation; double jeopardy). Those issues and arguments
may not be raised for the first time here. United States v.
_____________
Dietz, 950 F.2d 50, 55 (1st Cir. 1991).
Nor may petitioner
_____
reassert arguments, rejected on direct appeal, that three
prior offenses do not qualify for consideration under
924(e) because they were constitutionally unsound.
Patrone,
_______
948 F.2d at 816-17.
Nothing presented now persuades us to
revisit that issue.
See United States v. Michaud, 901 F.2d
___ _____________
_______
5, 6 (1st Cir. 1990).

assistance at the sentencing proceeding and (2) that at least

one of three prior

convictions was not a violent

sentence enhancement purposes

under 18 U.S.C.

felony for
924(e).

We

address the latter contention first.

Petitioner

challenges

1978 breaking and entering

as

a violent

building

burglary
(1990),

it involved

under construction and

not a

the burglary
dwelling.

the burglary offense was

his

of a

As such,

not a "generic"

as defined in Taylor v. United States, 495 U.S. 575

______
_____________
or countable

as

enhancement purposes.
reasons.

classification of

conviction under Rhode Island law

crime because

petitioner argues,

the

a predicate

This,

offense for

however, is incorrect

sentence
for two

First, the Taylor court defined generic burglary as

______

the "unlawful or unprivileged entry

building or structure, with

into, or remaining in, a

intent to commit a crime."

Id.
___

at 599.
[A]n offense constitutes "burglary" for
purposes
of
a
924(e)
sentence
enhancement
if either
its statutory
definition substantially corresponds to
"generic" burglary, or the charging paper
and jury instructions actually required
the jury to find all the elements of
generic burglary in order to convict the
defendant.
Id.
___

at

602.

breaking and

Patrone
entering.

concedes
Based on

the

1978

conviction for

the undisputed description

____________________
of this
offense in
paragraph 31 of
the presentence
3. Although Patrone claims he never "signed" the presentence
report, he does not claim that he did not read it and has not

investigation report3 ("breaking and entering a building at

pointed out any inaccuracies in its descriptions of his
criminal conduct.
-3-

night

with

the

intent

to commit

plainly is

States
______

Wilkinson, 926
_________

v.

generic burglary

denied, 111 S.
______
Bregnard,
________

Ct. 2813

951 F.2d

under

F.2d

22,

Taylor.
______
29 (1st

(1991); see also

___ ____

457,

460 (1st

presentence report description of

sufficient basis

larceny"),

that

charge

See
___

United
______

Cir.),

cert.
_____

United States
_____________

Cir. 1991)

v.

(uncontested

prior convictions may form

for determining whether prior

offense is a

generically violent crime under Taylor), cert. denied, 112 S.

______
_____ ______
Ct.

2939 (1992).

Even if a building "under construction" is

somehow not a "building

burglary
within

definition,
924(e)

conduct that

or structure" under Taylor's generic

________
the

because

presents a

injury to another."

1978
it

offense
clearly

nevertheless falls
"otherwise

serious potential risk

924(e)(2)(B)(ii).

involves

of physical

Second, our decision in United States v. Fiore, 983

_____________
_____
F.2d 1 (1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993),
_____ ______
makes

plain that

the 1978

burglary conviction

under Rhode

Island

law is properly countable as a predicate offense.

Fiore,
_____

this

Island law
premise

court decided
for conspiracy

qualifies as

implementing the career

that

conviction under

to break and

enter a

predicate offense
offender provisions
3-4.

commercial

of the

guidelines.

Id. at
___

U.S.S.G.

4B1.2(1), we

concluded that, under

law, the

underlying crime

at issue, a

Rhode

for purposes

sentencing

In

of

federal

Applying Taylor
______

and

Rhode Island

commercial burglary,

-4-

was

crime

purposes, and

of

violence for

career

noted that "burglary of

offender

sentencing

a commercial building

poses a potential for episodic

violence so substantial as to

bring

the

such

burglaries within

violence ambit."

Id. at 4.
___

violent felony/crime

of

Patrone
contained

in

derives

the

no

support

career offender

4B1.2(1)(ii) (a "crime

from

definitions

guidelines,

of violence

. . .

U.S.S.G.

is burglary of

dwelling . . ."). Although the "violent felony" language of

924(e)(2)(B)

is

at

issue

violence" guidelines
Fiore,
_____

here,

and

definition,

that

presents a

"One

can

physical

of

play

in

the additional defining words "conduct

imagine

harm will

in

"crime

from the former, id. at 3

___

serious potential

easily

the

4B1.2(1),

the latter takes its force

n.2, and both include

not

often

risk of

significant

accompany the

normally constitutes . . .

physical harm."
likelihood

that

very conduct

that

burglary . . . ."

United States
_____________

v. Doe, 960 F.2d 221, 224 (1st Cir. 1992).

___
Thus,

under the

Taylor methodology
______

which focuses

upon the inherent risk of violence posed by the prior offense

without

regarding

underlying

the

distinction for

the

actual

conviction,

facts

id.,
___

there

and
is

924(e) purposes between the

circumstances
no

meaningful

burglary of a

dwelling and a non-residential building or structure, whether

under

construction or

not, whether

-5-

occupied or

not.

See
___

Taylor, 495
______
the

U.S. at 597 ("Congress

word `burglary'

is commonly

presumably realized that

understood to

include not

only aggravated burglary, but also run-of-the-mill burglaries

involving an unarmed offender, an unoccupied building, and no
use

or threat

of

force.").

Consequently, Patrone's

1978

breaking and entering conviction was a generic burglary under

Taylor.4
______
Accordingly,
that counsel's
to

contest

at sentencing

prior convictions

there

was

any

errors, the
Murchu
______

resulting

performance was

decide, Patrone

ineffectiveness claims

conduct was deficient because

three

counsel's

regarding the

the violent
at issue,

it

prejudice.
subpar,

has failed to

result below would

v. United States, 926

_____________

denied, 112 S. Ct. 99 (1991).

______

of his failure

crime status
cannot be
In

short,

a question

show that "but

have been
F.2d 50, 58

of the

said that
even

we need

if
not

for counsel's

different."

See
___

(1st Cir.), cert.

_____

____________________
4. Similarly, Patrone's argument that a 1984 breaking and
entering in the daytime involved no violence is unavailing.
"Burglary is generally a violent crime whether or not the
particular burglary at issue threatens violence."
Doe, 960
__________
___
F.2d at 224 (internal quotation marks omitted). Patrone does
not contest that the third offense counted for enhancement, a
1978 conviction for assault with a dangerous weapon, was
properly treated as a violent felony.
Thus, the district
court correctly treated these three convictions as predicate
offenses under
924(e).
-6-

As to petitioner's remaining contentions, we affirm

the

judgment of the district court for the reasons stated in

the report of the magistrate-judge.

Affirmed.
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-7-