United States v. Báez-Martínez

• Decision Date: 11 February 2020
• Docket Number: No. 18-1289,18-1289
• Citation: 950 F.3d 119
• Parties: UNITED STATES of America, Appellee, v. Jorge Hiram BÁEZ-MARTÍNEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

950 F.3d 119

UNITED STATES of America, Appellee,

v.Jorge Hiram BÁEZ-MARTÍNEZ, Defendant, Appellant.

No. 18-1289

United States Court of Appeals, First Circuit.

February 11, 2020

Franco L. Pérez-Redondo, Research & Writing Specialist, with whom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Jorge Hiram Báez-Martínez challenges his Armed Career Criminal Act ("ACCA") sentence on the ground that he lacked the three required predicate felonies. The district court determined that Báez-Martínez's prior conviction for second-degree murder and two prior convictions for attempted murder were violent felonies, thus triggering the ACCA's fifteen-year mandatory minimum. We affirm.

I.

In 2012, Báez-Martínez was convicted at a jury trial for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The unobjected-to Presentence Investigation Report ("PSR") included the following prior offenses, all in violation of Puerto Rico law: (1) one conviction for second-degree murder; (2) two convictions for attempted murder; and (3) two convictions for carjacking,¹ each committed on the same occasion as the two attempted murders.² The PSR stated that the ACCA, 18 U.S.C. § 924(e)(1), applied, meaning that Báez-Martínez was subject to a statutory minimum of fifteen years' imprisonment. The district court agreed and sentenced Báez-Martínez to fifteen years. We affirmed his conviction. See United States v. Báez-Martínez, 786 F.3d 121, 130 (1st Cir. 2015).

In 2015, the Supreme Court declared the residual clause of the ACCA's definition of "violent felony" unconstitutional. See Johnson v. United States ("Johnson II"), ––– U.S. ––––, 135 S. Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). In light of this holding, the Supreme Court vacated Báez-Martínez's sentence and remanded to determine whether the ACCA still applied. See Báez-Martínez v. United States, ––– U.S. ––––, 136 S. Ct. 545, 193 L.Ed.2d 421 (2015) (mem.). On remand, the district court held that attempted murder and second-degree murder are violent felonies under the force clause, thus satisfying the ACCA's three-predicate-felony requirement. See United States v. Báez-Martínez, 258 F. Supp. 3d 228, 239–40 (D.P.R. 2017). The court did not address carjacking. The court again sentenced Báez-Martínez to fifteen years, remarking, "[I w]ish that I wouldn't have to sentence you to 180 months, but that is the minimum."³

Báez-Martínez timely appealed. We review de novo his preserved claim that his prior convictions do not constitute violent felonies under the ACCA. See United States v. Kennedy, 881 F.3d 14, 19 (1st Cir. 2018).

II.

The ACCA mandates a minimum sentence of fifteen years for qualifying defendants who violate § 922(g). 18 U.S.C. § 924(e)(1). A qualifying defendant is anyone who "has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. Báez-Martínez has no prior drug-related convictions, so we consider only potential violent felonies. "[V]iolent felony" is defined under the ACCA as:

any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another; or ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

Id. § 924(e)(2)(B).

Báez-Martínez does not dispute that second-degree murder, attempted murder, and carjacking are "punishable by imprisonment for a term exceeding one year." So we train our attention on the rest of the definition, which divides into three parts: the "force clause" (sometimes called the "elements clause"), the "enumerated clause," and the "residual clause." Stokeling v. United States, ––– U.S. ––––, 139 S. Ct. 544, 556, 202 L.Ed.2d 512 (2019). The residual clause is defunct after Johnson II, 135 S. Ct. at 2563. And since none of Báez-Martínez's prior convictions fall within the list of enumerated offenses, that leaves only the force clause. So, we ask if the crimes at issue "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another."

In answering this question, we apply the "categorical approach," which we have explained in detail many times before. See, e.g., United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017). In brief, we must presume that the defendant's prior offense was for the least culpable conduct for which there is a "realistic probability" of a conviction under the statute. United States v. Starks, 861 F.3d 306, 315 (1st Cir. 2017) (citing Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ); see Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). And in ascertaining the requirements of state law, we are "bound by [the state] Supreme Court's interpretation of state law, including its determination of the elements of" the criminal statute. Johnson v. United States ("Johnson I"), 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).⁴

With this approach in mind, we turn to considering the Puerto Rico offenses of second-degree murder and attempted murder. For the reasons that follow, we find that each offense "has as an element the use, attempted use, or threatened use of physical force against the person of another." Báez-Martínez's conviction for second-degree murder and his two convictions for attempted murder under Puerto Rico law therefore satisfy the ACCA's three-predicate-felony rule. We save for another day whether carjacking also categorically counts as a violent felony.

A. Second-Degree Murder

Báez-Martínez argues on appeal that second-degree murder under Puerto Rico law does not categorically satisfy the mens rea requirement of the force clause because, he contends, second-degree murder can be committed with a mens rea of "recklessness." As we will explain, our case law supports the contention that one who acts only recklessly does not "use ... physical force against the person of another" within the meaning of the ACCA's force clause. But, as we will also explain, Puerto Rico law -- like the law of most jurisdictions -- requires proof of a heightened degree of recklessness to convict a person of second-degree murder. And as we will finally explain, that heightened form of recklessness is sufficient for purposes of the force clause even though ordinary recklessness is not. We offer these explanations in reverse order.

1.

The incorporation of a mens rea component into the "violent felony" definition traces back to the Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). There, the Court interpreted the word "use" in the force clause of 18 U.S.C. § 16(a), defining "crime of violence" in nearly identical terms as the ACCA defines "violent felony," to require "a higher degree of intent than negligent or merely accidental conduct." Id. at 9, 125 S.Ct. 377. The Court reserved the question whether "reckless" conduct could suffice. Id. at 13, 125 S.Ct. 377.

The mens rea analysis made the jump to the ACCA in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). There, the Supreme Court held that drunk-driving statutes, which generally punish reckless conduct or possibly have no mens rea requirement at all, fall outside the scope of the ACCA's residual clause. Id. at 144–45, 128 S.Ct. 1581 ; see also Sykes v. United States, 564 U.S. 1, 13, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). In a series of cases thereafter, we -- like many circuit courts -- drew an increasingly hard line against treating statutes encompassing reckless conduct as violent felonies. See United States v. Holloway, 630 F.3d 252, 261 (1st Cir. 2011) ; see also United States v. Fish, 758 F.3d 1, 9–10 (1st Cir. 2014) (interpreting 18 U.S.C. § 16(b) ). Despite this approach having been marked as not yet finally resolved by the Supreme Court, see Voisine v. United States, ––– U.S. ––––, 136 S. Ct. 2272, 2279, 195 L.Ed.2d 736 (2016) ("[N]othing in Leocal ... suggests ... that ‘use’ marks a dividing line between reckless and knowing conduct."), we have since reaffirmed this bright-line rule in evaluating crimes under the force clause, see United States v. Rose, 896 F.3d 104, 109–10 (1st Cir. 2018) (citing Bennett v. United States, 868 F.3d 1 (1st Cir.), opinion withdrawn as moot, 870 F.3d 34, 36 (1st Cir. 2017) (per curiam), reasoning adopted by United States v. Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017) (per curiam)); Kennedy, 881 F.3d at 19–20.⁵

But murder (including second-degree murder) requires more than ordinary recklessness. The mens rea required for murder at common law was and remains "malice aforethought." 2 Wayne R. LaFave, Substantive Criminal Law § 14.1 (3d ed. 2017). Malice aforethought comes in four flavors: (1) intent to kill, (2) intent to cause serious bodily injury, (3) depraved heart (also referred to as "reckless indifference" or "extreme recklessness"), and (4) intent to commit a felony (the felony-murder rule). Id.; see United States v. Pineda-Doval, 614 F.3d 1019, 1038–40 (9th Cir. 2010) ; see also Samuel H. Pillsbury, Crimes of Indifference, 49 Rutgers L. Rev. 105, 116–21, 118 n.28 (1996). It is the third category that concerns us in this case.

Whatever the label, this "depraved heart" type of mental state is consistently distinguished from ordinary recklessness. See generally John C. Duffy, Note, Reality...