USCA1 Opinion

June 8, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1131
EUGENE A. MILLION V,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Eugene A. Million V on brief pro se.
___________________
Richard S. Cohen, United States Attorney, Margaret

D. McGaugh

________________
Assistant United States

____________________
Attorney, and James L. McCarthy, Assist
__________________
United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
incorrectly
than

for

second,

The

theft.

contends

history category

I, for sentencing purposes.

suspended) and

The PSR

first, labelled "Juvenile

Appellant

received

a $26.01 restitution

he

was

II, rather

listed two prior

Adjudications,"
$100

fine

($70

order to Zayre's.

The

labelled "criminal conviction," was for unauthorized

use of property (automobile).

of

Appellant

placed in criminal

convictions.
was

1.

which was

suspended).

very minor offenses --

Appellant was

fined $100 ($50

Appellant argues that

mere convenience pleas --

these are
and should

not be counted.

His attack is threefold.

First, he says he intended to have the owner of the

automobile

testify

at

sentencing that

continuing

permission to

use the

vehicle.

transcript indicates, however, that the

not

appear

at

sentencing.

continuance on that ground or

from the car

owner.

defendant

had

The sentencing

promised witness did

Appellant

did

not

procure a letter or

Appellant may not

had

seek

affidavit

now complain of what

he failed to show at sentencing.

Second,
4A1.2(c)(1)

appellant

specifically

consideration

in

"all felony
misdemeanor

excludes

computing

misreads the section.

The

argues
the

criminal

petty

two

U.S.S.G.
offenses

history.

from

Appellant

section commences by stating that

offenses are counted" and

and

that

offenses

are

that "[s]entences for

counted,

except

as

-2-

follows."

Exclusions are then listed.

unauthorized use offenses

Appellant's theft and

are not in the list

and are not similar to any in the list.

of exclusions

Third,

appellant

adjudication

for

theft

4A1.2(c)(2),

which states

contends

is

that

excluded

the

under

that "[j]uvenile

juvenile

U.S.S.G.

status offenses

and truancy" and

"offenses similar to them, by whatever name

. . . known, are

never counted."

We "look to

the substance

of the underlying state offense in order to determine whether

it falls within the proscription [of
States v. Unger,
______
_____
denied,
______

111

915 F.2d

S.Ct.

1005

underlying the juvenile

no

759, 763 (1st

(1991).

of the

Unger,
_____

the

cert.
_____
conduct

breaking

to commit larceny, receiving stolen

and assault and battery.

stretch

In

United
______

Cir. 1990),

adjudications consisted of

and entering with intent

goods,

4A1.2(c)(2)]."

We concluded that "[u]nder

imagination

can

these malefactions

be

considered 'status offenses' like, say, hitchhiking, truancy,

loitering,

or

Appellant's

offense,

shoplifting
the

PSR)

vagrancy."

Ibid.
____

whether

The

same is

true here.

euphemistically

labelled

(as appellant phrases it) or theft (as stated in

is materially

more

serious

than a

mere

status

offense.
2.

To

the extent appellant now

ineffective assistance of counsel

claims, we do not consider

them as they were not presented in the

-3-

attempts to raise

2255 petition below.

3.
arguments and

We

have considered

all of

find them without merit

appellant's other

substantially for the

reasons stated by the government in its comprehensive brief.

Affirmed.
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