United States v. Edwards

• Decision Date: 19 May 2017
• Docket Number: No. 15-1874,15-1874
• Citation: 857 F.3d 420
• Parties: UNITED STATES of America, Appellee, v. James EDWARDS, a/k/a Black, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

857 F.3d 420

UNITED STATES of America, Appellee,
v.
James EDWARDS, a/k/a Black, Defendant, Appellant.

No. 15-1874

United States Court of Appeals, First Circuit.

May 19, 2017

Elizabeth Prevett , Federal Public Defender Office, for appellant.

Mark T. Quinlivan , Assistant United States Attorney, with whom Carmen M. Ortiz , United States Attorney, was on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

Preface

A person with three convictions for violent felonies or serious drug offenses who commits a federal firearms crime is an armed career criminal and must be sentenced to at least 15 years in prison—so says the Armed Career Criminal Act ("ACCA," for short). See 18 U.S.C. § 924(e). Under the governing rule, the government must prove the existence of the prior convictions by a preponderance of the evidence. See United States v. Mulkern , 854 F.3d 87, 90 (1st Cir. 2017) ; see also United States v. Dancy , 640 F.3d 455, 467 (1st Cir. 2011). The preponderance-of-the-evidence standard "is a more-likely-than-not rule." Mulkern , 854 F.3d at 90 n.2 (quoting United States v. Vixamar , 679 F.3d 22, 29 (1st Cir. 2012) ).

Now meet James Edwards, the defendant in today's case. Edwards pled guilty—without a plea agreement—to a bunch of federal firearms offenses under 18 U.S.C. § 922(g).¹ These pleas added to his already long criminal record, which included Massachusetts convictions for (1) unarmed robbery, (2) assault with a dangerous weapon, (3) distribution of a controlled substance, and (4) armed assault with intent to murder. The district judge

857 F.3d 422

concluded that convictions (1) and (2)—unarmed robbery and assault with a dangerous weapon, respectively—are violent felonies. And Edwards conceded (then, as now) that conviction (3)—distribution of a controlled substance—is a serious drug offense. As for conviction 4—armed assault with intent to murder—the judge thought it is not a violent felony because no binding caselaw directly holds that it is. So relying on convictions (1), (2), and (3), the judge deemed Edwards an armed career criminal and sentenced him to 15 years behind bars.

Unhappy with this outcome, Edwards appeals. But examining the matter afresh, see United States v. Dawn , 842 F.3d 3, 7 (1st Cir. 2016), we affirm—though our analysis differs in some respects from the judge's.

Narrowing of the Issues

Edwards attacks his sentence on a variety of grounds, not all of which require extended discussion.

For example, Edwards insists that the judge blundered by "imposing sentence on the basis of prior convictions that were not included in the indictment, not admitted by [him], and not proven to a jury beyond a reasonable doubt." Recognizing that his argument runs smack into Almendarez–Torres v. United States , 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a precedent we must apply until the Justices themselves say otherwise, he raises the issue only to preserve it for possible Supreme Court review. So we need say no more about that argument. And though he says that United States v. Whindleton , 797 F.3d 105, 114 (1st Cir. 2015), cert. dismissed , ––– U.S. ––––, 137 S.Ct. 23, 195 L.Ed.2d 896 (2016), and cert. denied , ––– U.S. ––––, 137 S.Ct. 179, 196 L.Ed.2d 147 (2016), holds that assault with a dangerous weapon in Massachusetts is a violent felony, he notes his objection to that holding simply to preserve it for possible further review. Enough said about that issue too. With two predicates properly counted—assault with a dangerous weapon (thanks to Whindleton ) and distribution of a controlled substance (thanks to his concession)—Edwards is left to argue that neither the unarmed-robbery conviction nor the armed-assault-with-intent-to-murder conviction is a violent felony. And so, his argument continues, neither conviction can provide the necessary third predicate for his ACCA sentence. But because—for reasons shortly stated—we conclude that his armed-assault-with-intent-to-murder conviction does qualify as an ACCA predicate, we need not decide whether his unarmed-robbery conviction does as well.

On, then, to the armed-assault-with-intent-to-murder issue.

Armed-Assault-with-Intent-to-Murder Conviction as the Third ACCA Predicate

ACCA Basics

Pertinently for Edwards's case, ACCA defines a "violent felony" as a crime punishable by a prison term "exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another," see 18 U.S.C. § 924(e)(2)(B)(i) —this is known as the elements clause.² And

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" ‘physical force,’ " we know, means not simply what "force" means in physics, but "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States ("Johnson I "), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

In deciding whether the elements clause covers armed assault with intent to murder, we look only to the crime's statutory definition, not to Edwards's specific conduct—courts call that the "categorical approach." See, e.g. , Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).³ And after figuring out the crime's definition, we must see whether "the minimum conduct criminalized" by the statute's elements matches ACCA's violent-felony definition, see Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) —if there is no match, then the state conviction is not an ACCA predicate, see Mathis , 136 S.Ct. at 2248. But—and it is an important "but" (as we shall see)—our minimum-conduct focus "is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that [Massachusetts] would apply its statute to conduct that falls outside’ " ACCA's violent-felony definition. See Moncrieffe , 133 S.Ct. at 1684-85 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).⁴

Statute of Conviction

The relevant statute of conviction pertinently says that "[w]hoever, being armed with a dangerous weapon, assaults another with intent to ... murder shall be punished by imprisonment in the state prison for not more than twenty years." Mass. Gen. Laws ch. 265, § 18(b). According to Massachusetts's highest court—the Supreme Judicial Court—armed assault with an intent to murder requires "proof of assault (while armed with a dangerous weapon) and a specific intent to kill that equates with malice," with malice (in this context) meaning a lack of " ‘justification, excuse, or mitigation.’ "⁵ Commonwealth v. Vick , 454 Mass. 418, 910 N.E.2d 339, 350 (2009) (quoting Commonwealth v. Johnston , 446 Mass. 555, 845 N.E.2d 350, 354 (2006) ). And, unsurprisingly, "an intent to kill may be inferred from the defendant's

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conduct," Commonwealth v. Henson , 394 Mass. 584, 476 N.E.2d 947, 952 (1985), seen in light of the surrounding circumstances, see Commonwealth v. Lewis , 465 Mass. 119, 987 N.E.2d 1218, 1224 (2013).

Parties' Positions

The gist of the parties' arguments is easily stated.

Focusing on the word "assault" in the phrase "armed assault with intent to murder," Edwards correctly says that in Massachusetts a person can commit an assault in one of two ways—through an attempted battery or through an immediately threatened battery. See Whindleton , 797 F.3d at 112 & n.8 (citing and quoting Commonwealth v. Porro , 458 Mass. 526, 939 N.E.2d 1157, 1163 (2010) ). A battery, he rightly adds, is a harmful or offensive touching. See id. (citing and quoting Commonwealth v. Burke , 390 Mass. 480, 457 N.E.2d 622, 624 (1983) ). Relevantly for our purposes, we know that a harmful battery results from "[a]ny touching ‘with such violence that bodily harm is likely to result,’ " while an offensive battery results from an intentional, unconsented-to touching that is an "affront to the victim's personal integrity." Burke , 457 N.E.2d at 624 (quoting Commonwealth v. Farrell , 322 Mass. 606, 78 N.E.2d 697, 705 (1948) ); see also Commonwealth v. Eberhart , 461 Mass. 809, 965 N.E.2d 791, 798 (2012). Now, an offensive touching, he further and again correctly notes, does not necessarily involve sufficient force under Johnson I , see United States v. Martinez , 762 F.3d 127, 137-38 (1st Cir. 2014) —remember, Johnson I says the type of "force" that comes within the elements clause is "force capable of causing physical pain or injury to another person," see 559 U.S. at 140, 130 S.Ct. 1265. Putting this all together, he insists that because a person may be convicted of armed assault with intent to murder under the offensive-touching branch of assault, the conviction is not a predicate violent felony under ACCA's elements clause.

For its part, the government rightly points out that (we quote from its brief) "[t]he crime of armed assault with intent to murder adds the additional elements that a defendant be armed and have a specific intent to kill that...