USCA1 Opinion

        June 8, 1992            [NOT FOR PUBLICATION]






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        No. 92-1131 

                                 EUGENE A. MILLION V,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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            Eugene A. Million V on brief pro se.
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            Richard S. Cohen, United  States Attorney, Margaret  D. McGaughey,
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        Assistant  United States  Attorney, and  James L.  McCarthy, Assistant
                                                 __________________
        United States Attorney, on brief for appellee.


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                      Per  Curiam.    1.     Appellant  contends  he  was
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            incorrectly  placed in criminal  history category  II, rather

            than  I, for sentencing purposes.   The PSR  listed two prior

            convictions.  The  first, labelled "Juvenile  Adjudications,"

            was  for  theft.    Appellant   received  a  $100  fine  ($70

            suspended) and  a $26.01 restitution  order to Zayre's.   The

            second,  labelled "criminal conviction," was for unauthorized

            use of property (automobile).  Appellant was  fined $100 ($50

            of  which was  suspended).   Appellant argues that  these are

            very minor offenses --  mere convenience pleas --  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  defendant  had  had

            continuing  permission to  use the  vehicle.   The sentencing

            transcript indicates, however, that the  promised witness did

            not  appear  at   sentencing.    Appellant  did  not  seek  a

            continuance on that ground or  procure a letter or  affidavit

            from the car  owner.  Appellant may not  now complain of what

            he failed to show at sentencing.

                      Second,   appellant   argues   that    U.S.S.G.    

            4A1.2(c)(1)  specifically  excludes  the  two  offenses  from

            consideration  in  computing  criminal  history.    Appellant

            misreads the section.  The  section commences by stating that

            "all felony  offenses are counted" and  that "[s]entences for

            misdemeanor   and  petty  offenses  are  counted,  except  as



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            follows."  Exclusions are then listed.  Appellant's theft and

            unauthorized use offenses  are not in the list  of exclusions

            and are not similar to any in the list.

                      Third,   appellant   contends  that   the  juvenile

            adjudication  for   theft  is   excluded  under  U.S.S.G.    

            4A1.2(c)(2),  which states  that "[j]uvenile  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   4A1.2(c)(2)]."  United
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            States v. Unger,  915 F.2d  759, 763 (1st  Cir. 1990),  cert.
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            denied,  111  S.Ct.  1005  (1991).   In  Unger,  the  conduct
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            underlying the juvenile  adjudications consisted of  breaking

            and entering with intent  to commit larceny, receiving stolen

            goods,  and assault and battery.   We concluded that "[u]nder

            no  stretch  of the  imagination  can  these malefactions  be

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

            loitering,  or  vagrancy."   Ibid.   The  same is  true here.
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            Appellant's   offense,   whether   euphemistically   labelled

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

            the  PSR)  is materially  more  serious  than a  mere  status

            offense.

                      2.  To  the extent appellant now  attempts to raise

            ineffective assistance of counsel  claims, we do not consider

            them as they were not presented in the   2255 petition below.



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                      3.   We  have considered  all of  appellant's other

            arguments and  find them without merit  substantially for the

            reasons stated by the government in its comprehensive brief.

                      Affirmed.
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