Bennett v. United States, 16-2039

• Citation: 868 F.3d 1
• Decision Date: 05 July 2017
• Docket Number: No. 16-2039,16-2039
• Parties: George H. BENNETT, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

868 F.3d 1

George H. BENNETT, Petitioner, Appellee,
v.
UNITED STATES of America, Respondent, Appellant.

No. 16-2039

United States Court of Appeals, First Circuit.

July 5, 2017

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellant.

James S. Nixon, Assistant Federal Defender, with whom Federal Defender Office—Bangor Branch was on brief, for appellee.

Before Barron, Circuit Judge, Souter, Associate Justice,^* and Selya, Circuit Judge.

BARRON, Circuit Judge.

This appeal concerns George Bennett's challenge to his thirty-year prison term for a number of federal crimes. Bennett's sentence depended, in significant part, on the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). That law imposes a mandatory minimum prison sentence of fifteen years on a defendant who has been convicted of violating 18 U.S.C. § 922(g), a statute that prohibits certain persons from possessing or transporting firearms, if that defendant has at least three prior convictions for an offense that falls within ACCA's definition of a "violent felony." 18 U.S.C. § 924(e).

Bennett was convicted of, among other things, violating § 922(g), and the sentencing judge determined that at least three of Bennett's prior convictions under Maine law were for an offense that qualifies as a "violent felony" under ACCA. The sentencing judge therefore applied ACCA's mandatory minimum fifteen-year sentence to Bennett's § 922(g) conviction. The sentencing judge then imposed a sentence of twenty-five years of imprisonment for the § 922(g) conviction, even though, if Bennett were not subject to ACCA, the maximum prison sentence permitted for that conviction would have been only ten years. Combined with the punishment that the sentencing judge imposed for Bennett's other federal convictions, the twenty-five-year prison sentence for that conviction resulted in an overall prison sentence for Bennett of thirty years.

In this federal habeas petition, Bennett now contends that his sentence must be set aside because of its dependence on ACCA's application. Specifically, Bennett argues that he does not have three prior convictions for an offense that qualifies as a "violent felony" within the meaning of ACCA. Bennett contends, among other things, that Maine law permitted the state to convict him of two of the supposedly ACCA-qualifying crimes (which were for the crime of aggravated assault) by showing that he had a mens rea of mere recklessness. He thus contends that those convictions cannot qualify as ones for an offense that is a "violent felony." The District Court agreed with Bennett, granted Bennett's habeas petition, and ordered that he be re-sentenced without subjecting him to ACCA's mandatory fifteen-year minimum prison sentence. The government then filed this timely appeal.

We conclude that the text and purpose of ACCA leave us with a "grievous ambiguity," United States v. Godin , 534 F.3d 51, 60-61 (1st Cir. 2008) (quoting United States v. Councilman , 418 F.3d 67, 83 (1st Cir. 2005) (en banc)), as to whether ACCA's definition of a "violent felony" encompasses aggravated assault in Maine,

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insofar as that offense may be committed with a mens rea of mere recklessness, as opposed to purpose or knowledge. We therefore conclude that we must apply the rule of lenity to determine whether that offense qualifies as a "violent felony" under ACCA. And, in consequence, we conclude that Bennett's two prior Maine convictions for aggravated assault do not so qualify and thus that the District Court's order granting Bennett habeas relief must be affirmed.

I.

We start by recounting the case's rather involved procedural history. In the course of doing so, we provide greater detail about the relevant statutory provisions—both state and federal.

A.

On April 5, 1994, Bennett and several co-defendants were indicted on a number of federal charges in United States District Court for the District of Maine. After a jury trial, Bennett was convicted of: (1) conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846 ; (2) use or carrying of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c) ; and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

At sentencing, Bennett received the following punishment: five years of imprisonment for his conviction under §§ 841 and 846 ; five years of imprisonment for his conviction under § 924(c) ; and twenty-five years of imprisonment for his conviction under § 922(g)(1). The twenty-five-year prison sentence for Bennett's conviction under § 922(g)(1) was ordered to run concurrently to his five-year prison sentence for his conviction under §§ 841 and 846, and consecutively to his five-year prison sentence for his conviction under § 924(c). Thus, the overall term of imprisonment that Bennett received was thirty years.

With respect to Bennett's sentence for his conviction under § 922(g)(1), the Probation Office prepared a pre-sentence investigation report (PSR) that concluded that Bennett was subject to ACCA, due to his having at least three prior convictions for an offense that qualifies as a "violent felony." The PSR set forth a recommended sentencing range of 262 to 327 months of imprisonment, based on the United States Sentencing Guidelines. The actual prison sentence that was imposed on Bennett for that conviction—twenty-five years, or 300 months—fell within the recommended range. The sentence for that conviction thus exceeded both the ten-year maximum prison sentence to which Bennett would have been subject absent ACCA's application and the fifteen-year mandatory minimum prison sentence that ACCA itself required to be imposed.

B.

ACCA provides that a "person who violates [ 18 U.S.C. § 922(g) ] and has three previous convictions ... for a violent felony or a serious drug offense ... shall be fined under this title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1) (emphasis added). ACCA defines a "violent felony" as follows:

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).

Subsection (i) of ACCA's definition of a "violent felony" is commonly referred to as

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the "force" clause. The "otherwise" clause of subsection (ii) of that definition, which follows that subsection's listing of certain offenses ("burglary," "arson," "extortion," or crimes that "involve[ ] use of explosives"), is commonly referred to as the "residual" clause.

In applying ACCA's mandatory penalty enhancement to Bennett's § 922(g)(1) conviction, the sentencing judge relied on information set forth in the PSR. The PSR had identified Bennett's ACCA-qualifying prior convictions for a "violent felony" as: 1) a 1978 conviction for Maine aggravated assault, 2) a 1979 conviction for Maine aggravated assault and criminal threatening with a dangerous weapon, and 3) a 1986 conviction for Maine aggravated assault.

The sentencing judge did not specify whether those Maine state law convictions—which plainly were not for any of the enumerated offenses listed in subsection (ii) of § 924(e)(2)(B) —were for an offense that fell within the force clause or the residual clause of ACCA's definition of a "violent felony." Neither did the PSR.

At the time of Bennett's conviction under § 922(g)(1), Maine defined aggravated assault as, in relevant part, "intentionally, knowingly or recklessly caus[ing]: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon; or C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life." Me. Rev. Stat. Ann. tit. 17-A, § 208 (1981). See State v. Davis , 580 A.2d 163, 164 (Me. 1990) (noting that the "critical element of aggravated assault is bodily injury caused by the defendant's behavior" and that the "defendant's mental state can be intentional, knowing or reckless").¹ Maine defined the mens rea of recklessness at the relevant time—as it still does—this way: "[a] person acts recklessly ... when the person consciously disregards a risk." Me. Rev. Stat. Ann. tit. 17-A, § 35(3)(A) ; see also Model Penal Code, § 2.02(2)(c) ("A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."); United States v. Voisine , 778 F.3d 176, 202 (1st Cir.), aff'd , ––– U.S. ––––, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016) (noting that Maine's definition of recklessness is "materially indistinguishable from the definition of recklessness in the Model Penal Code").²

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C. ...