Lassend v. United States, No. 17-1900

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: LYNCH, Circuit Judge.
• Citation: 898 F.3d 115
• Parties: Kirk LASSEND, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
• Docket Number: No. 17-1900
• Decision Date: 02 August 2018

898 F.3d 115

Kirk LASSEND, Petitioner, Appellant,
v.
UNITED STATES, Respondent, Appellee.

No. 17-1900

United States Court of Appeals, First Circuit.

August 2, 2018

Karen A. Pickett, Boston, MA, with whom Pickett Law Offices, P.C., was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

LYNCH, Circuit Judge.

Kirk Lassend appeals from the district court's denial of his § 2255 petition. United States v. Lassend, No. CR 10-40019, 2017 WL 2960518 (D. Mass. July 11, 2017), certificate of appealability granted, 265 F.Supp.3d 103 (D. Mass. 2017). He argues that his sentence as an armed career criminal under the Armed Career Criminal Act ("ACCA") is unconstitutional under Supreme Court precedent decided after his earlier appeal from his conviction was rejected in 2013.

We affirm the district court and find that the three prior convictions are ACCA predicates. We again hold that a Massachusetts conviction for assault with a deadly weapon is a predicate offense under the ACCA's force clause. As to Lassend's New York conviction for attempted second-degree assault, we conclude that a conviction under New York Penal Law § 120.05(7) qualifies as a violent felony under the ACCA's force clause. We reach the same conclusion as to Lassend's conviction for New York first-degree robbery under New York Penal Law § 160.15(4). Our analysis is consistent with that of many other circuits, and as to the New York first-degree robbery conviction, consistent with the views of the Second Circuit in Stuckey v. United States, 878 F.3d 62 (2d Cir. 2017), petition for cert. filed, No. 17-9369 (U.S. June 11, 2018). Lassend's sentence stands.

898 F.3d 119

I. Background

A. Lassend's Arrest and Conviction

In July 2010, two individuals in Fitchburg, Massachusetts called 911 to report that Lassend had been walking up and down the street with a gun and firing shots into the air. Police officers placed Lassend under arrest at the scene. The officers recovered ammunition from Lassend's pocket and found a gun in an unlocked closet in the common hallway of a nearby apartment building. A search of Lassend's residence uncovered a holster that appeared to fit that gun, and additional ammunition.

In September 2010, Lassend was indicted on charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count One), and being a felon in possession of ammunition, also in violation of § 922(g)(1) (Count Two). After a five-day trial, the jury convicted Lassend of both counts in October 2011.

B. Original District Court Sentencing Proceedings

The Probation Office's 2012 presentence report ("PSR") determined that Lassend was subject to a sentencing enhancement under the ACCA because he had at least three prior convictions for a violent felony or a serious drug offense. The PSR identified four of his prior convictions as qualifying ACCA predicates: (1) a 1992 New York conviction for "Robbery in First Degree: Forcible Theft Armed with Deadly Weapon"; (2) a 1997 New York conviction for "Robbery in First Degree: Display What Appears to [Be a] Firearm"; (3) a 1998 New York conviction for "Assault in Second Degree"; and (4) a 2010 Massachusetts conviction for "Assault and Battery by Dangerous Weapon" ("ABDW") and "Assault by Dangerous Weapon" ("ADW").

The PSR determined that Lassend's Guidelines sentencing range ("GSR") was 235 to 293 months, with a mandatory minimum of 15 years under the ACCA. Lassend objected, inter alia, in the district court to the PSR's conclusion that he was subject to an ACCA enhancement, arguing that the residual clause of the ACCA was "unconstitutionally void for vagueness."

At sentencing, in March 2012, the district court overruled Lassend's objections to the PSR, including his objection to the PSR's determination that he was subject to an ACCA enhancement. Lassend stated that he had no other objections to the PSR "just as long as [his] objection to the [ACCA] on grounds that it's constitutionally void for vagueness [wa]s preserved." The district court then adopted the PSR's calculations and determined that Lassend's GSR was 235 to 293 months. After hearing from both parties, the district court sentenced Lassend to a term of imprisonment of 235 months on each count, to be served concurrently, followed by a five-year term of supervised release.

C. Direct Appeal

Lassend filed a direct appeal challenging his conviction. See United States v. Lassend, 545 F. App'x 3 (1st Cir. 2013) (per curiam). He did not appeal his sentence, nor argue that the residual clause of the ACCA was unconstitutional. See id. Lassend's conviction was affirmed in October 2013. See id. Lassend did not petition for certiorari.

D. Habeas Corpus Proceedings Before the District Court

The Supreme Court later decided Johnson v. United States ("Johnson II"), ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), on June 26, 2015. On July 20, 2015,

898 F.3d 120

Lassend filed a supplemental¹ pro se petition under § 2255, arguing that he should not have been sentenced under the ACCA in light of Johnson II. The government opposed his petition.

After the district court appointed counsel to represent Lassend in the § 2255 proceedings, Lassend filed another supplemental petition in which he argued that his sentence was unconstitutional because the government could not show that his criminal record contained violent felonies under the ACCA's force clause, 18 U.S.C. § 924(e)(2)(B)(i). Consequently, he argued, his ACCA sentence must have been based on predicates that relied on the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), which was declared unconstitutionally vague in Johnson II, see 135 S.Ct. at 2563. In particular, Lassend argued that (1) his New York conviction for attempted second-degree assault does not qualify as a violent felony because the crime can be committed recklessly; (2) his New York first-degree robbery convictions do not qualify as violent felonies because they do not require the use of violent force; (3) his Massachusetts ABDW conviction does not qualify as a violent felony because the crime can be committed recklessly and by a mere touching; and (4) his Massachusetts ADW conviction does not qualify as a violent felony because it does not require the intentional use of violent force.

The government opposed these arguments for the same reasons it now gives in support of the district court's decision.² It also argued those issues should not be reached because Lassend had procedurally defaulted his Johnson II claims. We deal with the procedural default and merits arguments below.

We also note that the government obtained the indictment and plea-colloquy transcript for Lassend's New York attempted second-degree assault conviction and placed them in the record before the district court.³ The government argued that although the indictment did not cite the statutory provision for the counts charged, it contained language mirroring the statutory language of New York Penal Law § 120.05(2) as to the first count and New York Penal Law § 120.05(7) (prisoner assault) as to the second count. The government argued that the plea-colloquy transcript showed that Lassend pled guilty to the second count of the indictment, and, consequently, the applicable statutory provision for his conviction was § 120.05(7).

At the hearing on Lassend's § 2255 petition in May 2017, Lassend argued for the first time that his New York first-degree robbery conviction under New York Penal Law § 160.15(4) is not a violent felony because the statute does not require the actual use of a dangerous weapon to threaten the victim, nor, he says, does it require that the perpetrator himself intentionally use violent force.

On July 11, 2017, the district court denied Lassend's § 2255 petition in a careful decision. See

898 F.3d 121

Lassend, 2017 WL 2960518, at *1. Addressing Lassend's procedural default on his ACCA claim, the district court noted that the Supreme Court had rejected vagueness challenges to the ACCA's residual clause in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), overruled by Johnson II, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, and Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), overruled by Johnson II, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, and those decisions were controlling at the time of Lassend's sentencing and direct appeal. Lassend, 2017 WL 2960518, at *8. Moreover, Lassend's direct appeal was filed, argued, and decided before the Supreme Court granted certiorari in Johnson II. Id. As such, the district court found that a Johnson II claim was not reasonably available to Lassend at the time of his direct appeal, thereby establishing cause. Id. The district court also reasoned that the prejudice inquiry merged with Lassend's merits claims because if Lassend could show that he should not have been sentenced under the ACCA in light of Johnson II, "his failure to raise that claim obviously resulted in prejudice." Id.

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