USCA1 Opinion

October 19, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 92-1436

ALLEN CAGGIANO,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
___________________

Allen Caggiano, on brief pro se.

______________
A. John Pappalardo, United State Attorney, and Stephen A.
__________________
___________
Higginson, Assistant
United States Attorney, on brief for
_________
appellee.

__________________
__________________

Per Curiam.
__________
court

judgment

Allen

Caggiano seeks review of

dismissing

his

corpus relief under 28 U.S.C.

of

several

U.S.C.

violations of

motion
2255.

federal

922(a),(g),(h) and

a district

for federal

habeas

Caggiano was convicted

firearms

18 U.S.C.

laws under

App. II,

18

1202(a).

His sentence was enhanced under the Armed Career Criminal Act
("Act"), 18 U.S.C.

924(e).

minimum

prison

sentence of

violate

section 922(g)

previous

convictions

appealed his conviction

fifteen

of
for

The Act

the
a

Act,

"violent

to this court,

imposes a
years
if

mandatory

on persons
they

felony."

have

who
three

Caggiano

alleging ineffective

assistance of counsel because his trial counsel had withdrawn

several motions to suppress
unlawful

searches.

We

evidence seized during allegedly

affirmed his

conviction in

United
______

States v. Caggiano, 899 F.2d 99 (1st Cir. 1990), finding that

______
________
the searches
warrants.
alleging

had been
Caggiano

various

then brought

dismissed the motion.

legal

his section

constitutional

indictment, conviction

Much

validly conducted pursuant

2255 motion,

infirmities

and sentencing.

to lawful

in

The district

his
court

We now affirm.

of Caggiano's argument on appeal is based on a new

theory that was not presented to the district court --

that the relevant provisions of the Act were not in effect at

the time Caggiano was indicted, tried and sentenced,
his

conviction and

sentencing

violated the

so that

ex post
__ ____

facto
_____

Caggiano

also

-2-

clause

of the

claims

that

United

States Constitution.

count three

because based on

of

his

indictment was

false testimony that he

defective

had been convicted

of

three

burglary."
does

not

predicate
1

felony

convictions

for

"robbery

or

It is well established that an appellate court

consider

arguments

instance to the trial court.

not presented

in

the

first

Accordingly, we do not consider

those arguments, nor any other arguments that Caggiano raises

for the first
Copete,
______

time on

792 F.2d

4, 5

appeal.

United States v.
______________

(1st Cir.

1986); Porcaro
_______

Valencia_________
v. United
______

States, 784 F.2d 38, 39 (1st Cir. 1986).

______
We also note that Caggiano has not appealed the district
court's decision
section

on counts one through five

2255 motion.2

He

has appealed

of his original

only the

district

____________________
1. In his brief to the district court Caggiano alleged that
a government agent falsely testified that "Allan J. Caggiano"
had three or more convictions for robbery or burglary,
although he had none.
Brief in Support of DefendantAppellant's Motion Under 28 U.S.C.
2255, at 43.
However,
Caggiano was arguing there that the "Allan J. Caggiano" named
in the indictment was his son and that his son had no
convictions.
He was not arguing that he had not committed
the crimes of robbery and burglary, as he does here. Indeed,
in his brief Caggiano conceded that he had committed the
crimes of robbery or burglary, but argued that they were not
valid predicate felonies because he had committed them as a
juvenile.
The district court conclusively demonstrated the
invalidity of Caggiano's argument on that score, and Caggiano
has not appealed that determination.
2. The issues raised in the original motion which Caggiano
has not appealed are: that his indictment, conviction and
sentence were invalid because based on convictions for acts
committed as a juvenile, that his trial was not fair because
it was based on false and malicious testimony and on evidence
-3-

court's decision relating to

originally filing

his motion, Caggiano argued

Supreme Court case precluded

attempted

breaking

Caggiano's
motion

and

sentence.

because

count one, as amended.3

that a recent

the government's reliance on an

entering
The court

the case

After

had

conviction

to

amended count

suggested

enhance

one of

that an

the

attempted

breaking and entering would not qualify as a "burglary" under

the Act.

See Taylor v.
___________

United States,
_____________

495 U.S. 575,

598

(1990) ("burglary" as a predicate violent felony for sentence

enhancement meant
actual entry

"generic" burglary

into a

building).

discussion to the issue

the

government

Caggiano's

were for

other claims

in which there

Therefore,

was an

we confine

our

whether the convictions submitted by

valid
of

predicate

error in

offenses and

the district

to

court's

decision.
Caggiano's
was

enhanced

arguments are the

without

having

had

following:
three

his sentence
violent

felony

____________________
that had been tampered with, that the evidence submitted at
trial had been obtained through unlawful searches, that his

trial attorney
had rendered ineffective
assistance of
counsel, and that his indictment had been procured through
prosecutorial misconduct and an unlawful amendment of the
indictment.
3. We read his briefs to appeal both the decision of
November 1, 1991, in which the district court held that an
attempted breaking and entering in the nighttime is a
"violent felony," and the decision of March 11, 1992, in
which the court held that arson, assault and battery,
breaking and entering in the nighttime, and attempted armed
robbery were "violent felonies."
-4-

convictions
given
had

as defined

in 18

an evidentiary hearing;
the

government

file

U.S.C.

924(e); he

was not

the district court improperly

certificates

of

conviction

for

felonies not presented to the grand jury or sentencing court;

the district court improperly ordered Caggiano either to file
an
the

affidavit attesting that he

was not the

certificates of conviction, or

motion;

and

counsel when

he

was

deprived of

advised by counsel

person named on

to face dismissal of his

effective

assistance

to stipulate to

of

having had

two violent felony convictions.

The central substantive issue
Caggiano's previous
the Act.

to be resolved is whether

convictions were violent

felonies under

In relevant part, the Act defines a violent felony

to be:
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 otherwise
involves conduct that presents a serious potential
risk of physical injury to another . . . .
18 U.S.C.

924(e)(2)(B).4

imprisonment
State

for a

The term

term exceeding

offense classified

by

"crime punishable

one year"

the laws

of

by

excludes "any

the State

as

____________________
4. We cite here the version of the Act under which Caggiano
was convicted and sentenced.
Although we have declined to
consider the ex post facto issue raised by Caggiano on
__ ____ _____
appeal, we note that, contrary to Caggiano's assertion, the
Act had
become effective before
the search
exposing
Caggiano's unlawful possession of firearms took place.
-5-

misdemeanor and punishable by

years or less."
In

Id.
___

affirming

a term of imprisonment

of two

921(a)(20)(B).
Caggiano's

district court relied on

sentence

enhancement,

the

four previous convictions, one each

for arson, assault and battery,

nighttime

with intent

to

attempted

armed robbery.

breaking and entering in the

commit larceny

and larceny,

and

The court found that each of those

offenses carried sentences of at least two and one-half years

under Massachusetts
Act.
and
a

In

law and was

addition, the court

a violent felony

under the

found that attempted

breaking

entering, on which Caggiano had also been convicted, was

violent

felony.

Caggiano does

convictions for arson and

predicate
battery,

offenses.
breaking

not

dispute

that

his

attempted armed robbery were valid

He denies

only that

and entering

his assault

and attempted

and

breaking and

entering convictions were predicate offenses under the Act.

First,

Caggiano acknowledges

him

for assault and battery

was

not convicted of the charge.

assertion,

however.

Caggiano pled
Under

the

conviction

Act,

Id.
___

of
were

claims that he

The record contradicts his

court

the assault

law

proceedings

"conviction" is.
clear

the

complaint against

was issued, but

Certified

guilty to

that a

the

and battery
jurisdiction

held

921(a)(20).

documents show

determines

Massachusetts

that

at issue.
in

which
what

law makes

that criminal defendants are considered "convicted" if

-6-

they admit the truth

guilty.
convicted

of the charge against them

Mass. Gen. Laws c. 263

of assault

and

6.

by pleading

Therefore, Caggiano was

battery, and

the court

properly

relied on that conviction as a prior violent felony.5

Second,

Caggiano

claims

entering

with

intent to

entering

with

intent

felonies because

to

that

commit

attempted

larceny

commit larceny

larceny is a misdemeanor

breaking and

and breaking
are

not

and

violent

under state law.6

____________________
5. Assault and battery unquestionably comes within the
section 924(e)(2)(B)(i) definition of a violent felony since
one element of the crime is the use of physical force against
the person of another. Although Caggiano has not raised this
issue, we note, however, that assault and battery is a
misdemeanor in Massachusetts. See Mass. Gen. Laws c. 274
1
___
(a crime punishable by imprisonment in the state prison is a
felony); c. 265
13A (assault and battery is punishable by
imprisonment for two and one-half years in a house of
correction).
Nevertheless, because of the length of the
period of confinement imposed, assault and battery would be a
"violent felony" under the Act.
Crimes that are not
considered to be violent felonies include only state offenses
both "classified by the laws of the State as a misdemeanor
and punishable by a term of imprisonment of two years or
___ __________ __ _ ____ __ ____________ __ ___ _____ __
less." 18 U.S.C. 921(a)(20)(B) (emphasis added). Thus, we
____
conclude that misdemeanors for which state laws provide
imprisonment for more than two years are valid predicate
offenses under the Act.
Since assault and battery is
punishable by
imprisonment
for
over
two
years
in
Massachusetts, it qualifies as a violent felony.
6. The government has argued that we should not consider
Caggiano's misdemeanor argument because Caggiano did not make
it to the district court.
Strictly speaking, the government

is correct. However, we have considered Caggiano's argument

since it responds to the district court's ruling that
Caggiano's breaking and entering conviction was a violent
felony.
In making that ruling, the court stated that
Caggiano's conviction was a violent felony within the meaning
of "18 U.S.C.
924(e)(2)(B) and 921(a)(20) (assuming that
___ __________ _________ ____ _
921(a)(20) applies to
924(e))."
(Emphasis added.)
__________ _______ __ ___________
Section 921(a)(20) excludes from the definition of violent
-7-

This argument is
crimes for

based on a

which Caggiano

mistaken interpretation of
was convicted.

larcenies are

misdemeanors under

Laws c. 266,

30; c. 274,

attempted

larceny or

the

Although certain

state law, see

___

Mass. Gen.

1, Caggiano was not convicted of

larceny

alone, but

of attempted

and

actual breaking and entering a building in the nighttime with

intent

to

commit

larceny.

attached to Government's Reply

1,

1991.7

Under

See Exhibits
___

D,

E,

and F,

to Court Order Dated November

Massachusetts

law,

any

larceny

in

____________________
felony
state
offenses
classified
by
state
law as
"misdemeanors" and punishable by imprisonment of two years or
less. The district court having raised the misdemeanor issue

by its reference to section 921, Caggiano is justified in

challenging the breaking and entering conviction on that
basis, and therefore we also permit him to challenge the
court's earlier holding respecting the attempted breaking and
entering convictions on that basis, too.
Although the district court appears to have had some
doubt that section 921(a)(20) applies, we find that it does.
Section 924(e) states that a "violent felony" is "any crime
punishable by imprisonment for a term exceeding one year"
that meets certain other criteria.
Section 921(a)(20)(B)
defines the term "crime punishable by imprisonment for a term
exceeding one year" for Chapter 44 (Firearms) of the United
States Code. Section 924(e) is in Chapter 44. Furthermore,
both
section 921(a)(20) and section 924(e) had become
effective by the time Caggiano was discovered to be in
unlawful possession of firearms.
7. The record does not contain the original certified copy
of Caggiano's conviction for breaking and entering (Exhibit
D), though it is clear from the record that the government
submitted it to the court and that the court reviewed it.
Since the record contains a copy of Caggiano's indictment for
breaking and entering and Caggiano has not denied the
conviction, we see no reason to discount it. In any event,
there are at least three other convictions for which original
certified copies exist in the record and which support
Caggiano's sentence enhancement.
-8-

building is a felony,
at all

regardless whether anything was stolen

or what the value

Gen. Laws c. 266,

was of anything taken.

See Mass.
___

20 (whoever steals in a building shall be

punished by imprisonment in the state prison); c. 274,

crime

punishable by

imprisonment

in a

state

1 (a

prison is

felony);

Commonwealth
____________

v.

Ronchetti, 333
_________

Mass.

78,

81-82

(1955) (the intent to steal is inferred from the breaking and

entering itself;
that

the Commonwealth was not

the defendant

felony

is a felony).

with

convictions
misdemeanors.8
included

larceny which amounted

since, under Mass. Gen. Laws c. 266,

a building
charged

intended a

required to prove

an

"intent

does

not

20, larceny in

Thus, the fact that

to

commit

convert

Consequently,

Caggiano's convictions

Caggiano was

larceny"
these

the district

to a

in

felonies

these
to

court correctly

for attempted

breaking and

entering and for breaking and entering as predicate offenses.

See also United States v.
_______________________

Payne, 966
_____

F.2d 4,

8 (1st

Cir.

1992) (attempted daytime breaking and entering conviction was

a violent felony under the Act);

United States v. Patterson,

_____________
_________

____________________
8. Under Massachusetts law, both an attempted and actual
breaking and entering of a building in the nighttime are
felonies under the only statutory section that applies to
Caggiano's convictions. See Mass. Gen. Laws c. 274,
1 (a
___
crime punishable by imprisonment in state prison is a
felony); c. 266,
16 (breaking and entering a building in
the nighttime is punishable by up to twenty years in state
prison); c. 274,
6 (an attempt to commit a crime punishable
in state prison for five years or more is itself punishable
by imprisonment in state prison for up to five years).
-9-

882 F.2d 595

(1st Cir.

(1990) (nighttime

1989), cert. denied,

____________

breaking

and entering

493 U.S.

conviction

1027
was

violent felony under the Act).

In sum, the government successfully showed that Caggiano
had more than the three
Act
court

for sentence
could

additional

not

previous convictions required by the

enhancement.
permit

certificates

the

Caggiano's
government

of conviction,

or

claim that

the

to

the

submit

require

him to

submit an affidavit denying that he was the person convicted,

has

no merit.

Rule 7(a) of the rules governing section 2255

proceedings provides that the judge may direct the parties to

expand the

record "by the inclusion

relevant to

the determination of the merits

Certainly, the
determining
averring
offenses,

certificates of

the

merits of

that he did not

especially

stipulation at
offenses.

of additional materials

the record,"

conviction were

Caggiano's

section

relevant to
2255 motion

have the requisite three predicate

since

Caggiano

had

reneged

on

his

the sentencing hearing that he had three such

Subsection

"[a]ffidavits

of the motion."

(b) of

the rule

may be submitted
and subsection

further states

and considered as

(c) requires

that a

that

a part of
party "be

afforded an opportunity to admit or deny" materials added

to

the record.
an affidavit

Thus, the court's direction that Caggiano submit

denying the certified

convictions submitted by

the government was fully authorized by Rule 7.

-10-

Caggiano's
denying

the

claim

that he

convictions

could not

because

the

submit affidavits

government

did

not

provide him with copies of the convictions in either April or

December 1991 is
respect

to

contradicted by the

the

copies

Petitioner's Responce
to Court Order of
A12-A16

no

way of

in

April

to Governments Memorandum

April 1, 1991 [sic], passim,

______

(referring

reproducing them

provided

record, at least

to the

copies

as exhibits).

determining

of

1991.

See
___

in Responce
and Exhibits

the convictions

Moreoever,

conclusively that

with

and

although we have
Caggiano actually

received copies of all of the certified convictions submitted

by the government in December
he did.

In his

of

of

two

the

1991, the record suggests that

Appendix submitted to this court

certified

convictions

are copies

submitted

by

the

government.

See
___

Record

Petitioner/Appellant,
circumstances,

the

at

which were

In

Appendix/Exhibits

A-11,

government's

Caggiano copies of the

more credible.

of

A-14.

Under

contention

that

for
these

it

sent

original certified convictions is the

any event, the

uncertified convictions,

in Caggiano's possession, gave

him ample details

about the charges underlying the alleged convictions, so that

he should have been able to prepare an affidavit denying that
he was the person named in

the charge.

He failed to

do so,

and the court's dismissal of his motion for failure to submit

the affidavit was correct.

-11-

Nor are

we swayed

the court could

additional

convictions

proffered

to the

indictment

under

First,

not ask

by Caggiano's further
the government to
since

grand jury

that

Caggiano's argument

submit proof

evidence

in connection

sections 922(g)

argument that

and

appears to

had

of

not been

with Caggiano's

924(e)
be based

of the

Act.

on certain

factual

misconceptions,

e.g.,

required to show three previous

that

the

government

was

"robberies" or "burglaries",

and not three previous "violent felonies."

His misconception

appears to be based on his belief that the version of section

924(e) under
effective
version

which

he

was

indicted

had

not

yet

become

at the time of his indictment, but that an earlier

requiring

as

predicate

offenses

robberies

and

burglaries, rather than violent felonies, was effective.

As

we

on

have already

appeal

said,

we will

that were not first

See also,
_________

supra,
_____

not

consider arguments

presented to the district court.

footnote

4.

Second,

we

assume

for

argument's sake that Caggiano is correct that, for sentencing

enhancement
evidence

of

indictment.

purposes,

the

government was

convictions submitted
Nevertheless,

to

the

the predicate

confined

to the

grand jury

for

convictions,

to

which Caggiano contends the government was confined, were all

for

offenses

which

violent felonies,

or

the

statute clearly

which

felonies, i.e., attempted

we

have found

considers
to

breaking and entering

-12-

be

to

be

violent

with intent

to

commit

commit

larceny, breaking

larceny,

and

attempted

Therefore, assuming

entering

armed

with intent

robbery

that the district court

and

to

arson.

erred in asking

the government to submit proof of additional convictions, its

errorwas harmlessand doesnot providea valid groundfor appeal.
Caggiano also contends that he was deprived of effective
assistance
stipulate

of
to

counsel
having had

The convictions to which

and

battery and

above.
violent

when

advised by

two

violent

trial

to

felony convictions.9

he refers are the ones

attempted

counsel

breaking and

for assault

entering discussed

We have already found that those convictions were for

felonies

under the Act.

that

would justify

sentence

Accordingly, the advice by trial

enhancement
counsel to

stipulate to those convictions was sound.

Finally,
granting

him

Caggiano

faults the

an evidentiary

suggested in its November

district

hearing.10

court
As

the

for not
court

1991 order, an evidentiary hearing

____________________
9. Because we can readily dispose of Caggiano's claim of
ineffective assistance of counsel on the merits, we do not
consider whether he is barred from raising the issue in his
section 2255 petition because he failed to raise it in his
direct appeal, in which he had alleged ineffective assistance
of counsel on different grounds.
10. The government argues that Caggiano did not request a
hearing. Although Caggiano's section 2255 motion itself made
no request for a hearing, his reply brief to the government's
brief on his motion expressly requested a hearing.
See
___
Defendant-Appellant's Responce [sic] to Government's Answer

to Defendant's Motion
Sentence, at 23.

to

Vacate,

Set

Aside

or

Correct

-13-

might have been necessary

if Caggiano had disputed

that the

convictions

Caggiano

so,

were

his.

failed

to

do

consequently no material fact is left to be resolved.

a

hearing was not required.

575 F.2d 952,

if

and

Hence,

See United States v. DiCarlo,

__________________
_______

954 (1st Cir. 1978) (a hearing is not required

a section 2255 motion

alleged facts by

is conclusively refuted

the files and record); 28

U.S.C.

as to the
2255 (a

hearing on a section 2255 motion is not granted if the motion

and

the files and records of the case conclusively show that

the petitioner is entitled to no relief).

The

district

court

judgment

section 2255 motion is affirmed.

_________

dismissing

Caggiano's

-14-