797 F.3d 105 (1st Cir. 2015), 14-1932, United States v. Whindleton

Docket Nº:14-1932
Citation:797 F.3d 105
Opinion Judge:LYNCH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. JERMAINE WHINDLETON, Defendant, Appellant
Attorney:J. Hilary Billings, Assistant Federal Defender, for appellant. Ren
Judge Panel:Before Lynch, Thompson, and Kayatta, Circuit Judges.
Case Date:August 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 105

797 F.3d 105 (1st Cir. 2015)

UNITED STATES OF AMERICA, Appellee,

v.

JERMAINE WHINDLETON, Defendant, Appellant

No. 14-1932

United States Court of Appeals, First Circuit

August 10, 2015

Page 106

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. Nancy Torresen, U.S. District Judge.

J. Hilary Billings, Assistant Federal Defender, for appellant.

René e M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Lynch, Thompson, and Kayatta, Circuit Judges.

OPINION

Page 107

LYNCH, Circuit Judge.

Jermaine Whindleton appeals his fifteen-year sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (" ACCA" ), a defendant convicted under § 922(g)(1) faces a mandatory minimum sentence of fifteen years if he or she has three previous convictions for " a violent felony or a serious drug offense." Id. § 924(e). Whindleton concedes that one of his prior convictions qualifies as an ACCA predicate, but challenges on appeal the other two convictions identified by the district court.

We must resolve, first, whether Whindleton's prior conviction for Criminal Sale of a Controlled Substance under New York Penal Law § 220.39(1) qualifies as a " serious drug offense." Second, we must resolve whether Whindleton's prior conviction for Assault with a Dangerous Weapon under Massachusetts General Laws ch. 265, § 15B(b), qualifies as a " violent felony." Precedent informs our resolution of the former and mandates the latter. Since we conclude that both of the challenged convictions qualify as ACCA predicate offenses, we affirm Whindleton's sentence.

I.

Whindleton was arrested after using the barrel of a shotgun to strike Christopher Frey in the head during an argument in June of 2012 over a drug debt that Frey owed to Whindleton. Whindleton was later indicted for " knowingly possess[ing] . . . a Mossberg, Model 500B, 16 Gauge shotgun" after having been convicted of four felonies in violation of 18 U.S.C. § § 922(g)(1) and 924(e). Specifically, Whindleton had been previously convicted of (1) Criminal Sale of a Controlled Substance in the Third Degree in New York in 2005; (2) Assault in the Second Degree in New York in 2006; (3) Assault with a Dangerous Weapon (" ADW" ) in Massachusetts in 2009; and (4) Possession with Intent to Distribute in Massachusetts in 2009.

A conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), requires the defendant to possess a firearm after any one felony conviction. A jury found Whindleton guilty " of possession of a firearm by a convicted felon" on April 9, 2014.

An enhanced sentence under the ACCA, 18 U.S.C. § 924(e), requires the defendant to violate § 922(g) after three prior convictions for a " violent felony" or a " serious drug offense," as these terms are defined by the statute. If the ACCA applied to Whindleton's criminal history, he faced a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(1). If not, he faced a maximum sentence of ten years. Id. § 924(a)(2).

At sentencing, Whindleton conceded that his Massachusetts conviction for Possession

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with Intent to Distribute qualified as a " serious drug offense." Over Whindleton's objection, the district court concluded that Whindleton's New York conviction for Criminal Sale of a Controlled Substance in the Third Degree also qualified as a " serious drug offense," and that Whindleton's Massachusetts conviction for ADW qualified as " a violent felony." 1 As a result, the district court imposed the mandatory minimum sentence under the ACCA of 180 months, or 15 years.

II.

Section 922(g)(1) prohibits any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year from shipping, possessing, or receiving firearms. 18 U.S.C. § 922(g)(1). The ACCA increases the mandatory minimum sentence for this crime to fifteen years if the defendant has three prior convictions for " a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. § 924(e)(1). In this case, Whindleton argues that the district court erred when it concluded that his conviction for Criminal Sale of a Controlled Substance in the Third Degree qualified as a " serious drug offense," and that his conviction for ADW qualified as a " violent felony."

Whether a prior conviction qualifies as an ACCA predicate offense is a legal question we review de novo. United States v. Carrigan, 724 F.3d 39, 48 (1st Cir. 2013). We employ a categorical approach, under which " we may consider only the offense's legal definition, forgoing any inquiry into how the defendant may have committed the offense." United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011); see also United States v. Bryant, 571 F.3d 147, 157 n.7 (1st Cir. 2009) (applying the same approach to controlled substances offenses).

The categorical approach is " modified" if the defendant was convicted under a statute which " sets out one or more elements of the offense in the alternative." See Descamps v. United States, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under the modified categorical approach, the court may " consult a limited class of documents . . . to determine which alternative formed the basis of the defendant's prior conviction." Id. If these documents do not identify the basis of the defendant's prior conviction, the court must ensure that " each of the possible offenses of conviction would qualify [as an ACCA predicate]." Holloway, 630 F.3d at 257.

A. New York Criminal Sale of a Controlled Substance

Whindleton first argues that the district court erred in concluding that his 2005 conviction for Criminal Sale of a Controlled Substance in the Third Degree under New York Penal Law § 220.39(1) qualifies as a " serious drug offense" under the ACCA. The ACCA defines a " serious drug offense" as " an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . .., for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).2

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A person violates New York Penal Law § 220.39(1) " when he knowingly and unlawfully sells . . . a narcotic drug." New York defines " sell" to mean " to sell, exchange, give or dispose of to another, or to offer or agree to do the same." N.Y. Penal Law § 220.00(1) (emphasis added). Since Whindleton's record of conviction does not specify on what theory he was convicted, we must ensure that any form of the conviction would qualify as a " serious drug offense" under the ACCA. See Holloway, 630 F.3d at 257. Whindleton argues that his conviction does not qualify as a " serious drug offense" since an offer to sell does not " involv[e] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." 3

We have previously held that, " [b]y using 'involving,' Congress captured more offenses than just those that 'are in fact' the manufacture, distribution, or possession of, with intent to distribute, a controlled substance." United States v. McKenney, 450 F.3d 39, 42 (1st Cir. 2006). The definition of a " serious drug offense" also " 'encompass[es] . . . offenses that are related to or connected with such conduct.'" Id. at 43-44 (quoting United States v. King, 325 F.3d 110, 113 (2d Cir. 2003)).

For example, in McKenney, we held that a defendant's conviction for " conspiracy to violate a state controlled substances law by agreeing to possess with intent to deliver cocaine" qualified as a " serious drug offense" under the ACCA. Id. at 40. There was no argument that the defendant did, in fact, possess cocaine with intent to deliver, or that the defendant even took an overt step in that direction. Id. at 42-43 nn. 6 & 8. Nevertheless, we held that " the conspiracy standing alone was sufficient." Id. at 42-43 n.8. We explained that " the relationship between the inchoate offense of conspiracy and its object -- its entire purpose -- is plainly close enough that a conspiracy to possess with intent to distribute is, under the ACCA, an offense 'involving . . . possessing with intent to . . . distribute.'" Id. at 45 (alterations in original).

Whindleton concedes, as he must, that courts have " interpreted the ACCA's language to include conspiring or attempting to manufacture, distribute, or possess with intent to distribute drugs" as well as " aiding and abetting the distribution of drugs." See, e.g., McKenney, 450 F.3d at 45 (conspiracy); King, 325 F.3d at 115 (attempt); United States v. Madera, 521 F.Supp.2d 149, 152 (D. Conn. 2007) (accessory liability). But, he maintains, " an offer to provide drugs is simply not the equivalent of either a conspiracy, attempt, or aiding and abetting."

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We understand Whindleton's argument to be that an offer to sell is farther removed from its object than these inchoate crimes.4 We have said that " [n]ot all offenses bearing any sort of relationship with drug manufacturing, distribution, or possession with intent to manufacture or distribute will qualify as predicate offenses under the ACCA." McKenney, 450 F.3d at 45. Critically, " [t]he relationship must not be too remote or tangential." Id.

Other circuits, considering this question for different statutes, have concluded that offers to sell controlled substances are sufficiently " related to or connected with" drug distribution to qualify as serious drug crimes. In Texas, for example, the delivery statute was violated by " a person knowingly or intentionally offer[ing] to sell what he states is a controlled substance." United States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (citation and internal quotation marks omitted). Texas law did not require...

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