United States v. Dyer ( 1993 )

June 18, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1045
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN DYER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Cyr and Boudin, Circuit Judges.
Martin J. Ridge, with whom Beagle, Pearce, & Ridge was on
brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Jay P. McCloskey, United States Attorney, and Jonathan
Chapman, Assistant United States Attorney, were on brief, for the
United States.
June 18, 1993
Per Curiam. In this criminal appeal, defendant-
Per Curiam.
appellant Stephen Dyer challenges his sentence. He makes three
claims.
1. Dyer contends that the career offender guidelines,
U.S.S.G. 4B1.1, 4B1.2, impermissibly exceed the scope of 28
U.S.C. 994(h), the pertinent enabling statute and, therefore,
could not validly be employed to enhance his sentence. The Third
Circuit repudiated precisely the same asseveration in United
States v. Whyte, 892 F.2d 1170 (3d Cir. 1989), cert. denied, 494
U.S. 1070 (1990). We think the Whyte court correctly upheld the
career offender guidelines, and we reject appellant's argument on
the basis of Whyte. See id. at 1174.
2. Next, Dyer contends that his criminal record,
though extensive, does not include two predicate offenses of the
type necessary to animate the career offender guidelines. This
argument was not presented to the district court and is,
therefore, waived. See United States v. Dietz, 950 F.2d 50, 55
(1st Cir. 1991) (stating, in connection with sentencing, that
"arguments not seasonably addressed to the trial court may not be
raised for the first time in an appellate venue").
Moreover, even if we were to reach the point, we would
reject it on the merits. Dyer concedes that he was convicted of
a controlled substance offense coming within the ambit of
U.S.S.G. 4B1.2(2).1 In addition, he was convicted of burglary
1This offense is described in paragraph 78 of the
presentence investigation report (PSI Report).
2
under 17-A M.R.S.A. 401(1) (a statute that criminalizes illegal
entry into a structure).2 We have made it abundantly clear that
such a crime is properly includable as a predicate offense for
purposes of the career offender guidelines. See, e.g., United
States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992), cert. denied, 113
S. Ct. 1850 (1993). And, moreover, consistent with the caselaw,
e.g., id. at 3; United States v. Bell, 966 F.2d 703, 705-06 (1st
Cir. 1992), we decline appellant's invitation to peek behind the
conviction and examine its particular facts. See Taylor v.
United States, 495 U.S. 575, 600 (1990).3
3. Finally, Dyer contends that the district court
impermissibly withheld an offense-level reduction based on
acceptance of responsibility. See U.S.S.G. 3E1.1. The key
question under section 3E1.1 is not whether a defendant has
mouthed "a pat recital of the vocabulary of contrition," but
whether he has accepted full responsibility for his part in the
offense of conviction by demonstrating "candor and authentic
remorse." United States v. Royer, 895 F.2d 28, 30 (1st Cir.
1990); accord, e.g., United States v. Uricoechea-Casallas, 946
F.2d 162, 167 (1st Cir. 1991); United States v. Bradley, 917 F.2d
601, 606 (1st Cir. 1990). The defendant has the task of proving
2This offense is described in paragraph 52 of the PSI
Report.
3We note in passing that appellant does not come within the
narrow exception to Taylor, see 495 U.S. at 602, as he proffered
neither the indictment nor the jury instructions for the district
court's perusal. The appellate record is, of course, similarly
barren.
3
his entitlement to an acceptance-of-responsibility credit, see
Bradley, 917 F.2d at 606, and the sentencing court's
determination to withhold the credit may be set aside only if it
is clearly erroneous. See Royer, 895 F.2d at 29.
We discern no clear error in this instance. Dyer did
not appear for his appointed sentencing. He was thereafter
apprehended in a hotel room, under an alias. Given Dyer's
boycotting of the scheduled day of reckoning, the district court
acted well within its lawful power in declining to award him
credit for acceptance of responsibility. See, e.g., United
States v. Yeo, 936 F.2d 628, 628-29 (1st Cir. 1991).
We need go no further.4 Having carefully reviewed the
entire record, we conclude, without serious question, that the
district court imposed an appropriate, lawfully constituted
sentence.
Affirmed.
4Since career offender status requires proof of only two
prior convictions for predicate offenses, we need not consider
whether, as the lower court ruled, the convictions described in
paragraphs 50, 59a and 60, respectively, of the PSI, also qualify
as predicate offense convictions.
4