Boulanger v. United States

• Decision Date: 21 October 2020
• Docket Number: No. 18-1018,18-1018
• Citation: 978 F.3d 24
• Parties: Gerard BOULANGER, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

978 F.3d 24

Gerard BOULANGER, Petitioner, Appellant,

v.UNITED STATES of America, Respondent, Appellee.

No. 18-1018

United States Court of Appeals, First Circuit.

October 21, 2020

Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & Teitelbaum LLP, Boston, MA, were on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Thompson, Selya, and Barron, Circuit Judges.

THOMPSON, Circuit Judge.

In 2003, the petitioner, Gerard Boulanger robbed a New Hampshire drug store and used a gun to do it. Because this is illegal, he was prosecuted and, relevant here, a jury convicted him of using a firearm during a crime of violence (specifically, pharmacy robbery) in violation of 18 U.S.C. § 924(c). Then, at sentencing, the district court determined that Boulanger qualified for a sentencing enhancement under the Armed Career Criminal Act ("ACCA") because his criminal record included at least three violent felonies, chief among them: New Hampshire state court convictions for robbery and armed robbery. None of this was at issue when we affirmed Boulanger's convictions in 2006. See United States v. Boulanger, 444 F.3d 76 (1st Cir. 2006). In the intervening years, the law about what qualifies as a violent felony under ACCA and what counts as a crime of violence for § 924(c) has changed. Relying on these changes, Boulanger is back before us now, complaining that the district court mistakenly denied his second § 2255 petition because his New Hampshire robbery convictions are not violent felonies (and therefore his sentence should not be longer because of ACCA) and pharmacy robbery is not a crime of violence under § 924(c) (so he's not guilty of that at all). After carefully unravelling the relevant law and facts, we affirm.

BACKGROUND

Boulanger's Relevant State Court Convictions

In the 1980s, Boulanger had a spate of trouble throughout New Hampshire. In July 1980, he stole $600 from a grocery store in Portsmouth by pointing a gun at the store's clerk. That same month, he again used a gun to rob a gas station in Lee, this time getting $780. In August 1980, Boulanger similarly robbed a convenience store in Manchester and, later that month, a gas station in Epping. At some point during this spree, Boulanger gained possession of a Dover gas station's stolen bank deposit bag (with $2,057 cash inside) and hung onto it, despite knowing it was stolen. He was arrested soon after the Epping robbery and pleaded guilty to charges related to all of this activity. In chronological order of offense, Boulanger pleaded guilty to armed robbery for the Portsmouth grocery store, robbery for the Lee gas station, armed robbery for the Manchester convenience store, robbery for the Epping gas station, and receiving stolen property for keeping the Dover gas station's bank bag. Boulanger was sentenced to four to eight years in state prison on each count, with his sentences to run concurrently.

Boulanger served some time and was paroled in May 1983. In October 1983, while still on parole, Boulanger used a gun to rob a convenience store in Portsmouth and steal one store clerk's wallet and another's purse. He was charged with three counts of armed robbery stemming from this incident and pleaded guilty.

Boulanger's Conviction and Post-Conviction Litigation

Fast forward to 2003, when Boulanger used a gun to rob an East Rochester, New Hampshire, pharmacy of Oxycontin and methadone. Boulanger, 444 F.3d at 78-79. A jury convicted him of robberies involving controlled substances, in violation of 18 U.S.C. §§ 2118(a) and (c)(1) ("pharmacy robbery") (Count I); use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c) (Count II); possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) (Count III); and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count V). Boulanger, 444 F.3d at 80-81. The "crime of violence" in Count II referred to Count I, pharmacy robbery. At sentencing, the district court found that Boulanger had previously been convicted of at least three violent felonies and was therefore subject to a mandatory minimum sentence of fifteen years under ACCA, 18 U.S.C. § 924(e)(1).¹ The district court sentenced Boulanger to a total of 460 months' imprisonment.²

Boulanger appealed his convictions to us and we affirmed. Boulanger, 444 F.3d at 78. He then filed his first § 2255 petition in 2007, which the district court denied.

In the decade that followed, the Supreme Court issued decisions that Boulanger came to see as relevant to his convictions, including the 2015 decision in Johnson v. United States ("Johnson II"), 576 U.S. 591, 606, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), where the Court held that part of ACCA's structure for defining predicate violent felonies, called the "residual clause," was void for vagueness. Generally (with exceptions we need not detail here) if a person was sentenced under ACCA because of past crimes that only qualified as violent felonies under the "residual clause," that sentence was newly understood to be unconstitutional and that defendant could petition a court for relief.

In 2016, we granted Boulanger permission to file such a petition. He filed his second § 2255 motion arguing that his sentence was improperly enhanced under ACCA (because, to him, without ACCA's residual clause, his record did not contain three violent felonies) and his conviction for Count II, using a firearm during a crime of violence, was invalid (because, he told us, Johnson II also meant that § 924(c)'s residual clause was unconstitutional and, without that clause, pharmacy robbery was not a crime of violence). The district court found Boulanger's petition to be untimely as to the § 924(c) argument and to otherwise have no merit.³ Kucinski v. United States, 2016 WL 4926157, at *4 (D.N.H. Sept. 15, 2016) (finding § 924(c) argument untimely); Boulanger v. United States, 2017 WL 6542156, at *6 (D.N.H. Dec. 21, 2017) (denying relief as to remaining claims). After some procedural steps not relevant here, Boulanger appealed.

OUR TAKE

Boulanger raises the same two challenges to his convictions before us that he did in his underlying § 2255 petition: that his record does not contain three ACCA predicate offenses and that pharmacy robbery is not a crime of violence. Each challenge is a question of law, so we review the district court's denial of the petition de novo. United States v. Cruz-Rivera, 904 F.3d 63, 65 (1st Cir. 2018) (reviewing de novo district court's determination that offense was a crime of violence under § 924(c) ); United States v. Mulkern, 854 F.3d 87, 90 (1st Cir. 2017) (reviewing de novo whether a crime was an ACCA predicate).

We begin by explaining the shared framework for evaluating whether at least three of Boulanger's prior convictions are violent felonies under ACCA and whether pharmacy robbery is a crime of violence under § 924(c).

Under the Armed Career Criminal Act, a defendant convicted of felony possession of a firearm pursuant to 18 U.S.C. § 922(g) who has three or more prior convictions for a "violent felony" or serious drug offense is subject to a fifteen-year mandatory-minimum prison sentence. 18 U.S.C. § 924(e)(1). The statute defines "violent felony" in a few ways, 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" (often called the "elements clause" or the "force clause"); "is burglary, arson, [ ] extortion, [or] involves use of explosives" (the "enumerated clause"); or "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause"). Id. § 924(e)(2)(B). The residual clause, we now know, is unconstitutionally vague. Johnson II, 576 U.S. at 606, 135 S.Ct. 2551. Therefore, a prior conviction qualifies as a "violent felony" only if it satisfies the elements clause or the enumerated clause. There is no question that the enumerated clause is not a factor here and that Boulanger's prior record did not contain serious drug offenses, so we are left to wrestle only with whether Boulanger's criminal history contains three convictions that qualify as "violent felonies" under the elements clause.

Similarly, Boulanger was properly convicted under 18 U.S.C. § 924(c)(1)(A) if he "use[d] or carrie[d] a firearm" during a "crime of violence" or a "drug trafficking crime." Drug trafficking is not at issue here, so we turn to the question of whether pharmacy robbery, 18 U.S.C. § 2118(a), is a "crime of violence." Congress defined "crime of violence" in § 924(c) to be a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (the "elements clause"), or one "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" (the "residual clause"). 18 U.S.C. § 924(c)(3). Since Boulanger's conviction, the Supreme Court has held that § 924(c)'s residual clause is unconstitutional. Davis, 139 S. Ct. at 2336.

We therefore must solve whether Boulanger's New Hampshire armed robberies fall within ACCA's elements clause and whether pharmacy robbery is covered by § 924(c)'s elements clause. To resolve each of these questions, we employ a "categorical approach" in which we ask whether the least culpable conduct covered by the violated statute (here, armed robbery and pharmacy robbery) fits within the relevant elements clause. See Taylor v. United States, 495 U.S. 575, 588-89, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; United States v. García-Ortiz, 904 F.3d 102, 106-07 (1st Cir. 2018) (applying categorical approach to § 924(c) crime of violence analysis). We do not look at the facts of Boulanger's actual crimes but...