United States v. Capelton

• Decision Date: 16 July 2020
• Docket Number: No. 19-1613,19-1613
• Citation: 966 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Jerome CAPELTON, a/k/a Anthony Coleman, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

966 F.3d 1

UNITED STATES of America, Appellee,

v.Jerome CAPELTON, a/k/a Anthony Coleman, Defendant, Appellant.

No. 19-1613

United States Court of Appeals, First Circuit.

July 16, 2020

Samia Hossain, Federal Public Defender Office, on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellee.

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

TORRUELLA, Circuit Judge.

Defendant-Appellant Jerome Capelton ("Capelton") challenges the district court's determination on resentencing pursuant to the 2018 First Step Act that he is a career offender under section 4B1.1 of the U.S. Sentencing Guidelines (the "Guidelines"). In classifying Capelton as a career offender, the court relied on two Massachusetts drug convictions from 1992 and 1996, which Capelton claims do not qualify as predicate "controlled substance offense[s]" under the career-offender guideline. He argues that the convictions implicitly include aiding and abetting liability under Massachusetts law -- then called "joint venture"¹ -- which is broader in scope than generic aiding and abetting liability and, consequently, there cannot be a categorical match between the convictions and the definition of "controlled substance offense." According to Capelton, at the time of his Massachusetts convictions, a defendant could be convicted under the relevant Massachusetts drug statute on a theory of joint venture by proving knowledge of the crime alone, rather than by proving shared intent with the principal to promote or facilitate the crime, as would be required to be convicted as an aider and abettor of a generic "controlled substance offense." Because Capelton failed to establish that the scope of joint venture liability under Massachusetts law is any broader than under the generic standard, we find no error in the district court's determination of his career-offender status and affirm the sentence.

I. Background

On September 26, 2001, a jury convicted Capelton of one count of conspiracy to possess with intent to distribute at least fifty grams of cocaine base, in violation of 21 U.S.C. § 846, and three counts of distribution and possession with intent to distribute at least fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The presentence investigation report ("PSR") issued after Capelton's conviction indicated that the Guidelines' career-offender provisions, U.S.S.G. § 4B1.1, were applicable because Capelton was over the age of eighteen, the instant offenses involved a controlled substance violation, and Capelton had several Massachusetts state felony convictions, at least two of which were for either a crime of violence or a crime involving an applicable controlled substance violation.² With the career-offender guideline governing, Capelton's total offense level was thirty-seven³ and his criminal history category was VI, which yielded a guideline sentencing range ("GSR") of 360 months' to life imprisonment.

The district court adopted the PSR's recommendations, and after denying Capelton's request for a downward departure,⁴ it imposed sentences of 360 months of imprisonment followed by a five-year term of supervised release on each count, to be served concurrently. On direct appeal, Capelton raised several trial errors and challenged the district court's sentencing determination denying his request for a downward departure from the Guidelines. See United States v. Capelton, 350 F.3d 231 (1st Cir. 2003). We affirmed his conviction and sentence. See id. at 235. Subsequently, Capelton attempted to collaterally attack his conviction and sentence on several occasions without success.⁵ See Capelton v. United States, No. 15-cv-312-JL, 2016 WL 3102200, at *1 (D.N.H. Jan. 5, 2016).

In August 2010, the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, was signed into law. As it pertains to this appeal, the statute amended the Controlled Substances Act, 21 U.S.C. § 841(b)(1), by raising the quantity of crack cocaine necessary to trigger both the ten-year statutory-minimum sentence and statutory-maximum penalty of life imprisonment from fifty to 280 grams. See 21 U.S.C. § 841(b) ; Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372. These amendments applied only to defendants who were sentenced on or after the Fair Sentencing Act's effective date of August 3, 2010. See Dorsey v. United States, 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). However, in December 2018, the First Step Act was enacted into law, allowing certain defendants, like Capelton, who were convicted for crack cocaine offenses under 21 U.S.C. § 841 prior to the enactment of the Fair Sentencing Act, to seek a retroactive sentencing reduction. See First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222.

In light of the First Step Act, on March 6, 2019, the United States Probation Office ("Probation") issued a memorandum supplementing the PSR it had initially prepared for Capelton's sentencing back in 2002. The memorandum explained that Capelton still qualified as a career offender based on two prior Massachusetts drug convictions: a 1992 conviction for possession of a class B substance with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, § 32A(a), and a 1996 conviction for distribution of a class B substance, in violation of Mass. Gen. Laws ch. 94C, § 32A(b). However, because the statutory maximum term of imprisonment was reduced to forty years from life, Capelton's corresponding offense level was now thirty-four (down from thirty-seven). According to the memorandum, with the career-offender enhancement, Capelton's GSR was 262 to 327 months of imprisonment, and without it, his GSR was 168 to 210 months of imprisonment. Under either scenario, Capelton faced a supervised release term of a minimum of four years.

Capelton sought relief under the First Step Act on March 20, 2019. He requested to be resentenced under section 404(b) of that Act and without the application of the career-offender enhancement. Specifically, Capelton objected to his continued designation as a career offender, arguing that the two Massachusetts drug offenses identified in Probation's memorandum did not qualify as predicate "controlled substance offense[s]" under U.S.S.G. § 4B1.1 because, at the time of the offenses, generic aiding and abetting liability required proof of an element -- shared intent -- that joint venture liability under Massachusetts state law did not, which rendered the Massachusetts offenses categorically overbroad. Because Capelton had already served nearly nineteen years in prison, he requested a sentence of time served. On the other hand, the Government recommended that Capelton receive a sentence at the high end of the updated career-offender GSR.

The district court held a resentencing hearing on June 5, 2019. First, it acknowledged that Capelton's eligibility for a reduced sentence following the passage of the First Step Act was undisputed. It then turned to Capelton's career-offender status. Capelton expanded on the argument presented in his motion for relief, which he now also presses on appeal: that, under Massachusetts law prior to the 2009 opinion of the Supreme Judicial Court ("SJC") in Commonwealth v. Zanetti, 454 Mass. 449, 910 N.E.2d 869 (2009), a person could be found guilty of aiding and abetting a drug crime without necessarily having an intent to participate in the crime if the person was present with knowledge that the crime was being committed and willing to assist in the commission of the crime. According to Capelton, because the generic controlled substances offenses contemplated by the career-offender guideline required that a person have the intent to commit the crime, his Massachusetts state offenses were broader in scope and therefore a categorical mismatch with the guideline.

The district court questioned Capelton's argument because it had difficulty understanding "how someone can participate in possession of a drug with intent to distribute without having any intent to participate in a crime involving an intent to distribute." Ultimately, it rejected his theory as "imaginative but unsound," concluding that there was no "realistic probability that any jury would find an individual guilty of either of [the two Massachusetts drug crimes for which Capelton was convicted, even as an aider and abettor,] without finding beyond a reasonable doubt that there [wa]s an intent to commit that crime." Upholding Capelton's designation as a career offender, the court adopted a GSR of 262 to 327 months of imprisonment. It then granted a ten-month downward variance from the low end of the GSR based on Capelton's "very difficult upbringing" and the family support shown towards him. Accordingly, the court imposed a revised sentence of 252 months of imprisonment and four years of supervised release. Capelton then filed this appeal.⁶

II. Discussion

On appeal, Capelton disputes that his 1992 and 1996 Massachusetts convictions qualify as predicate "controlled substance offense[s]" under U.S.S.G. § 4B1.2(b) for career offender purposes. Specifically, Capelton avers that we should apply the "categorical approach" in analyzing whether his Massachusetts offenses fall within the career-offender guideline because, at the time of those offenses, aiding and abetting liability was indivisible from the Massachusetts substantive offenses -- i.e., Massachusetts law did not require a specific finding by the jury that it was convicting a defendant as a principal or as a joint venturer. He further contends that in 1992 and 1996, Massachusetts joint venture liability was broader than generic aiding and abetting liability and therefore the Massachusetts offenses were not categorically "controlled substance offense[s]." According to Capelton, when he was convicted in 1992 and 1996, Massachusetts could convict a defendant on a joint...