USCA1 Opinion

September 28, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1326
PETER N. GEORGACARAKOS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________
____________________
Peter N. Georgacarakos on brief pro se.
______________________

Jay P. McCloskey, United States Attorney, and Michael M. DuBo

_________________
_______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
appealed from the

Appellant Peter

district court's denial

Georgacarakos
of his motion

correct sentence under 28 U.S.C.

2255.

found

and

distributing

841.

Because

guilty

violation

of

of

possessing

21

U.S.C.

criminal history included prior

substance
district

offense
court

and

ruled

for
that

Georgacarakos
cocaine

has
to
was
in

Georgacarakos'

convictions for a controlled

burglary

of

Georgacarakos

offender"

under section

The court

therefore assigned Georgacarakos

dwelling,
was

the

"career

4B1.1 of the sentencing guidelines.

an offense level

of

32 (including

two-level reduction

responsibility) and

sentenced him to a

of 260

a six-year

months plus

term

for acceptance

of

term of imprisonment
of supervised

release

following incarceration.
To
sentencing
of

"a

be sentenced

as

a career

guidelines, a defendant

felony that

controlled substance

is

either

offense," and

offender under

the

must be presently guilty

crime

of violence

must have had

or

"at least

two prior felony convictions of either a crime of violence or

a

controlled substance

offense."

U.S.S.G.

4B1.1.

The

guidelines define a "crime of violence" for these purposes to

include "any offense under federal or state law punishable by
imprisonment

for a term

exceeding one

burglary of a dwelling . . . ."

Georgacarakos'

sole

Id. at
___

argument

year that

. .

. is

4B1.2(1).

in

his

2255

petition, and on appeal, is that this aspect of section 4B1's

definition

of "crime

reasoning,

in

of

summary,

violence" is
runs

as

impermissible.

follows.

Before

His
the

sentencing guidelines were promulgated, Congress

already had

defined

2901(c)

"crime

including

of

violence"

"burglary

or

in

28

U.S.C.

housebreaking

in

the

nighttime."

Burglary in the daytime, by implication, was excluded.

2901(g), a

narcotics

violence could not be

rehabilitation
Congress,

governed by

U.S.C.

that

994(a), later

Commission

"consistent with

with

eligible for the civil

programs

in 28

Sentencing

offender charged

promulgate

United States Code,"

violence"

in

4B1 was

was inconsistent
Further, according

of

Since

directed that

sentencing

the

guidelines

this title and

the definition of

"crime of

extent that it

earlier definition in

to Georgacarakos,

subject defendants to such

a crime

chapter.

impermissible to the

with the

Under

commitment and

all pertinent provisions of

title 18,

as

it would be

2901(c).
unfair to

inconsistency in the treatment of

burglary of a dwelling in the daytime.

We reject

Georgacarakos' argument, and

affirm the

decision of the district court, for the reasons stated in the

district court's
opinion.

February 26,

Section 2901

contained therein

are

1993 order and

memorandum of

expressly states that the definitions

for

the terms

-3-

"[a]s

used

in

this

chapter," a chapter which is limited

rehabilitation

of

narcotics

to civil commitment and

addicts.

That

section's

definition of "crime of violence," therefore, does not govern

any use of the same term outside that chapter.
Consequently,

the

inconsistency

definitions of "crime of violence" in

guidelines and in

run afoul of the requirement of

the

sentencing guidelines be

provisions" of Titles 18

Congress

and 28.

from

differently

in

definition,

therefore, was

28 with

4B1 of the sentencing

which

28 U.S.C.

994(a) that

"consistent with all pertinent

of a "crime of violence" "[a]s

Title

the

2901(c) is perfectly permissible and does

not

preclude

between

Section

2901's definition

used in this chapter" did not

choosing

different

to

define

context.

not a

the

The

term

2901(c)

"pertinent provision"

the sentencing

guidelines

had to

of
be

consistent.
Indeed, as Georgacarakos himself concedes, Congress
permissibly

defined

"violent felony"

Criminal Act ["ACCA"], 18 U.S.C.

the definition

of "crime

the Armed

substantially different

of violence"

According to Georgacarakos, "Had Congress [in

any

other meaning than that

2901, it

would have created a

Career

924(e)(2)(B), as including

simply "burglary," also a definition

from

in

given crime of
new term, just

in

2901(c).

4B1] intended
violence in [ ]
as it created

the term 'violent

felony' when it

enacted the Armed

Career

-4-

Criminal

Act

definition

for that

intentions.

the

Congress

act so

it created

any other definition

one it

has

had

for

Georgacarakos' reasoning, if
used

intended
a

different

term to

fit its

This is what Congress would have done [in

had it intended
than

the

term

violence,"

"violent

but

with

for crime of

two

decades."

4B1]

violence
Thus,

by

4B1, like the ACCA, had simply

felony"

instead

precisely

the

of

"crime

same

of

substantive

definition, there would be no problem.

We

will

attach so much
concepts.

not,

in

these

circumstances

importance to the labels placed

The mere fact that

4B1 uses the

on statutory
same words --

"crime of violence" -- as

in

different result than if

4B1 employed some different label.

Indeed, as we

2901(c) does not

at least,

noted in United States v. Fiore,

______________
_____

require any

983 F.2d

(1st Cir. 1992), cert. denied, 113 S. Ct. 1830 (1993), "[t]he
____________

definition

of

'violent

felony'

enhancement provision is the

defining a 'crime of
1991).

in

the

ACCA's

sentence

source of the language used

violence' under U.S.S.G.

in

4B1.2 (Nov.

Decisions interpreting the ACCA constitute persuasive

authority

when a court is called upon to construe the career

offender guideline."
The

Id. at 3 n.2 (citations omitted).

___

real crux of

Georgacarakos' argument

is that

the choice of the label "crime of violence" must nevertheless

be determinative because that label must logically carry with

-5-

it

2901(c)'s pre-existing

have already

definition of that term.

ruled, this argument fails

definition is

expressly limited

because

to the

As we

2901(c)'s

term's use

in that

chapter.
Nor do we see any adverse practical consequences of
the presence
these

two

commission

of different definitions
contexts.

As

of the

the district

of a "crime of violence" under

court

same term

in

pointed out,

2901 precludes a

narcotics
programs

offender
in lieu

from

participation

of imprisonment,

"crime of violence" under

status

under the

enhanced

For

that

neither

sentencing

unfairness

difficulties

for

whereas commission

guidelines,

These

that would

reason, the

rehabilitation

4B1 may lead to

sentence.

determinations

in

courts.

career offender
resulting

two

very

not foreseeably

differing
for

are

There is

nor
no

in

an

different

overlap at

definitions

offenders

of a

all.

should create
interpretive

genuine

conflict

between them.
The

district

motion under 28 U.S.C.

court's

denial

2255 is affirmed.
________

-6-

of

Georgacarakos'