United States v. Rose

• Decision Date: 18 July 2018
• Docket Number: No. 17-1066,No. 17-1059, No. 17-1067, No. 17-1064,17-1059
• Citation: 896 F.3d 104
• Parties: UNITED STATES of America, Appellant, v. Kendall ROSE, Defendant, Appellee. United States of America, Appellant, v. Ike Weems, a/k/a True, Defendant, Appellee. United States of America, Appellant, v. Anthony Sabetta, Defendant, Appellee. United States of America, Appellant, v. Alberto Rodríguez, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

896 F.3d 104

UNITED STATES of America, Appellant,

v.Kendall ROSE, Defendant, Appellee.

United States of America, Appellant,

v.Ike Weems, a/k/a True, Defendant, Appellee.

United States of America, Appellant,

v.Anthony Sabetta, Defendant, Appellee.

United States of America, Appellant,

v.Alberto Rodríguez, Defendant, Appellee.

No. 17-1059

No. 17-1064

No. 17-1066

No. 17-1067

United States Court of Appeals, First Circuit.

July 18, 2018

Donald C. Lockhart, Assistant United States Attorney, with whom Stephen G. Dambruch, Acting United States Attorney, was on brief, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, Federal Public Defender Office, was on brief, for appellees.

Before Torruella, Kayatta, and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

Kendall Rose, Ike Weems, Anthony Sabetta, and Alberto Rodríguez (collectively, the "Defendants") brought motions under 28 U.S.C. § 2255 to vacate, set aside, or correct their sentences. They argued that, in the wake of Johnson v. United States (Johnson II ), ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), their convictions for the Rhode Island offense of Assault with a Dangerous Weapon (A/BDW), see R.I. Gen. Laws § 11-5-2(a), no longer qualify as predicate convictions triggering the Armed Career Criminals Act's (ACCA) mandatory 15-year sentence, see 18 U.S.C. § 924(e). The district court agreed with them, and granted those motions. The government appealed. We affirm.

I.

We begin with an overview of this case's factual and procedural background, which also gives us the opportunity to review the law that is in play here.

A.

The facts relevant to this appeal are straightforward and uncontested. All of the Defendants were convicted of violating 18 U.S.C. § 922(g), which forbids from possessing firearms individuals who have been convicted of crimes that are punishable with over one year of imprisonment. "In general, the law punishes violation of this ban by up to 10 years' imprisonment." Johnson II, 135 S.Ct. at 2555 (citing 18 U.S.C. § 924(a)(2) ). "But if the violator has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony,’ [ACCA] increases his prison term to a minimum of 15 years and a maximum of life." Id. (citing 18 U.S.C. § 924(e) ). This was the case for the Defendants, who all received mandatory sentences of at least 15 years that relied at least in part on their predicate convictions under R.I. Gen. Laws § 11-5-2(a).

After the Defendants received their ACCA-enhanced sentences, the Supreme Court decided Johnson II. That case pertained to ACCA's definition of "violent felony" for purposes of determining whether a defendant's prior convictions trigger the statute's 15-year mandatory sentence. Under ACCA, a "violent felony" is

any crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [.]

18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson II held that the last of these clauses—known as the "residual clause" (and emphasized above), 135 S.Ct. at 2563 —was void for vagueness. Then, in Welch v. United States, the Supreme Court held that Johnson II had announced a new substantive rule that, as a result, would apply retroactively on collateral review. ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). So today, ACCA-enhanced sentences that depended on predicate convictions for offenses qualifying as violent felonies under ACCA's residual clause are now invalid unless those offenses are either one of the offenses enumerated in § 924(e)(2)(B)(ii) or meet the force clause's definition of "violent felony," see id. § 924(e)(2)(B)(i).

The Defendants' § 2255 motions asserted that their convictions under R.I. Gen. Laws § 11-5-2(a) are not convictions for violent felonies under the force clause.¹ The Defendants therefore argued that they do not have the three predicate convictions necessary support their 15-year-plus sentences under ACCA. R.I. Gen. Laws § 11-5-2(a) establishes, in pertinent part, that "[e]very person who shall make an assault or battery, or both, with a dangerous weapon, or with acid or other dangerous substance, or by fire, or an assault or battery that results in serious bodily injury shall be guilty of a felony assault." Id. The statute does not expressly identify the mental state necessary to commit A/BDW. This ends up complicating things.

B.

The Defendants' motions came before two different district judges, who, with the parties' consent, held a joint hearing and resolved the motions in a jointly issued memorandum and order. United States v. Sabetta, 221 F.Supp.3d 210, 213 n.1 (D.R.I. 2016).² That memorandum and order explained that "Chief Judge Smith and Judge McConnell independently reached the conclusions contained" therein. Id.

In deciding whether, post- Johnson II, the Defendants' convictions under R.I. Gen. Laws § 11-5-2 continued to constitute convictions for "violent felonies," the district court recognized that its inquiry was limited to "the fact of conviction and the statutory definition of the prior offense." Id. at 215 (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). This is known as the "categorical approach." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The district court explained that, "[t]o satisfy the force clause under the categorical approach, the use, attempted use, or threatened use of violent force must be an element of the prior offense." Sabetta, 221 F.Supp.3d at 215 (citing Descamps v. United States, 570 U.S. 254, 277, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). As the district court put it, "[t]he facts of the defendant's crime do not matter, only the elements of the offense do." Id.; see also Bennett v. United States, 868 F.3d 1, 22 (1st Cir. 2017) ("[I]t may seem anomalous that an offense bearing the name ‘aggravated assault’ could escape ACCA's reach.... But Congress instructed us to take our cues from an offense's elements rather than from either its label or the underlying means by which that offense was carried out in a particular case." (citing Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) ) ) withdrawn, 870 F.3d 34, 36 (1st Cir. 2017).

There is a wrinkle to this, though, when a single statute "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis, 136 S.Ct. at 2249. Statutes of that sort are known as "divisible" statutes. Id. When a defendant has been convicted under a divisible statute, courts employ what is "labeled (not very inventively) the ‘modified categorical approach.’ " Descamps, 570 U.S. at 257, 133 S.Ct. 2276. Under the modified categorical approach, courts are authorized to look at a limited category of documents—known as " Shepard documents," see Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) —to determine "which alternative formed the basis of the defendant's prior conviction," Descamps, 570 U.S. at 257, 133 S.Ct. 2276.

Here, the district court first determined that R.I. Gen. Laws § 11-5-2(a) —which it described as "not the model of clarity"—"is divisible[,] and that at least one of the offenses contained within that statute is [A/BDW]." Sabetta, 221 F.Supp.3d at 216. The district court also concluded that, as the Rhode Island Supreme Court has recognized, "the act element of [A/BDW] can be accomplished by the means of an assault, a battery, or both." Id.; see ( State v. Soler, 140 A.3d 755, 763 (R.I. 2016) ; see also Mathis, 136 S.Ct. at 2256 (explaining that in determining whether an alternatively phrased statute is divisible, courts must "determine whether its listed items are elements or means," and instructing courts to look first to state law to determine which is the case). The district court then found, in light of the Shepard documents the government had introduced, that all of the Defendants had been convicted of Rhode Island A/BDW. Sabetta, 221 F.Supp.3d at 217.

As a result, it became incumbent upon the district court to determine whether Rhode Island A/BDW satisfies ACCA's force clause. Its analysis proceeded in two steps. First, it queried whether the mental state of recklessness is sufficient to sustain a conviction for Rhode Island A/BDW. After surveying the relevant case law—a survey we will replicate momentarily—the district court tentatively concluded that recklessness is enough. Id. at 220. While explaining that "this is a close call, and our conclusion is not free from doubt," the district court nonetheless found that the rule of lenity compelled the holding that, for purposes of the Defendants' challenges to their sentences, "recklessness is sufficient to satisfy a conviction for Rhode Island A/BDW." Id.

Next, the district court set out to determine whether "a crime that only requires proving a recklessness mens rea with respect to the attempted, threatened, or actual use of force against the person of another [can] qualify as a violent felony under the ACCA's force clause." Id. at 221. This circuit's precedent, it concluded, indicated that such crimes cannot satisfy the force clause. Id. at 223. It therefore held that Rhode Island A/BDW "is not categorically a violent felony under the ACCA." Id. at 224. As a result, the district court declined to reach the Defendants' alternative argument that Rhode Island A/BDW is not a violent felony under the categorical approach because the battery form does not require "violent force." Id. at 224 n.12 ; see Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("[I]n the context of [ACCA's] definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another...