United States v. López, 17-1080

• Decision Date: 16 May 2018
• Docket Number: No. 17-1080,17-1080
• Parties: UNITED STATES of America, Appellee, v. Luis LÓPEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

890 F.3d 332

UNITED STATES of America, Appellee,

v.Luis LÓPEZ, Defendant, Appellant.

No. 17-1080

United States Court of Appeals, First Circuit.

May 16, 2018

James L. Sultan, with whom Kerry A. Haberlin and Rankin & Sultan, Boston, MA, were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

Before Torruella, Lipez, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

We have before us a case of déjà vu: an all too familiar argument that we have rejected in at least three prior decisions. Not to beat a dead horse, but today, adhering to our precedent, we necessarily reject the argument once more.

Luis López pled guilty to being a felon in possession of a firearm and possession with intent to distribute heroin. The Probation Office for the District of Massachusetts (the "Probation Office") determined that López was subject to a mandatory minimum sentence of fifteen years imprisonment under the Armed Career Criminal Act ("ACCA") because he had previously been convicted of at least three qualifying ACCA predicate offenses. Before us, López challenges the sufficiency of his prior convictions to serve as ACCA predicates, alleging that direction from the Supreme Court requires us to revisit existing First Circuit precedent. We find no intervening law that alters the validity of our prior decisions concerning ACCA predicate offenses and thus affirm his sentence.

A. Getting Our Factual Bearings

We won't dwell on the circumstances leading to López's most recent arrest and convictions because they are undisputed. López's objections focus instead on five prior Massachusetts convictions identified by the Probation Office that qualify as "serious drug offense[s]" or "violent feloni[es]" as defined by ACCA. Our recitation of the facts therefore follows López's lead and only briefly addresses the circumstances leading to his most recent convictions. We then shift gears, focusing primarily on the Probation Office's presentence report ("PSR") and the district court's subsequent sentencing determination.

1. López's Most Recent Criminal Convictions

The New Bedford, Massachusetts police department executed a search warrant on López's girlfriend's residence on December 31, 2014, following an investigation indicating that López was selling heroin at the house. Although López initially denied the presence of anything illegal, he eventually told the officers he was hiding heroin and a pistol. Officers found three individually packaged bags of heroin and several Percocet pills in López's jeans pocket, in addition to four grams of heroin elsewhere in the house. Police also recovered a loaded Glock 9mm with sixteen rounds of ammunition in the magazine. The pistol was traced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives and was determined to have been reported stolen in North Carolina three months earlier.

On March 17, 2016, a federal grand jury in the District of Massachusetts returned an indictment charging López with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). López pled guilty to both charges.

2. Presentence Report and Sentencing

Following López's guilty plea, the Probation Office prepared a PSR. The PSR concluded that López was subject to a sentencing enhancement under 18 U.S.C. § 924(e), known colloquially as ACCA, because he had at least three prior convictions for "serious drug offense[s]" or "violent felon[ies]." 18 U.S.C. §§ 924(e)(2)(A), (B). In fact, the PSR identified five Massachusetts convictions that qualified as predicate offenses under ACCA: (1) a 2007 conviction for distribution of a class B drug prosecuted in the New Bedford District Court; (2) a May 2009 conviction for assault with a dangerous weapon ("ADW") prosecuted in the New Bedford District Court; (3) an October 2009 conviction for possession to distribute a class A drug prosecuted in the New Bedford District Court; (4) a 2012 conviction for breaking and entering in the nighttime for a felony prosecuted in the New Bedford District Court; and (5) a 2013 conviction for unlawful distribution of a class B substance (cocaine) prosecuted in the Bristol Superior Court.

Therefore, under ACCA, López was subject to a fifteen-year (180–month) mandatory minimum sentence. After scoring the severity of López's offenses and his criminal history against the U.S. Sentencing Guidelines, the PSR further recommended that the district court impose a sentence between 188 and 235 months.

López, in a memorandum sent to the district court, objected to the PSR for three reasons. First, he challenged the classification of his two New Bedford District Court drug convictions as "serious drug offense[s]" as defined by ACCA. Next, he argued that his ADW conviction did not qualify as an ACCA "violent felony." Finally, he objected to the classification of his breaking and entering conviction as a qualifying offense because he argued it was incorrectly classified as a "burglary" to meet the ACCA definition of a violent felony. The Probation Office, in its own memorandum, rejected López's contentions and reaffirmed its position that all five of López's convictions had been properly identified as qualifying ACCA predicate offenses.

At the sentencing hearing convened on January 11, 2017, the district court accepted that at least three of the offenses outlined in the PSR qualified as ACCA predicates and noted that it interpreted López's objections to the PSR "more by the way of preserving the issues with respect to how we apply the mandatory minimum sentence" and that there "[is] not much I can do about it at this point."¹ The district court sentenced López to ACCA's mandatory minimum sentence of fifteen years (180 months) imprisonment. In handing down this sentence, the district court judge stated:

Well, without offering an opinion as to what a sentence might be if it were not for the constraints of the mandatory minimum sentence, as Mr. Sultan’s [counsel for López] memo candidly recognizes, I have no choice in this matter, until and unless the First Circuit or the Supreme Court changes the applicable law, but to impose the mandatory minimum sentence.... I think, as you understand, the Court's hands are tied in this matter.

The facts recounted, we move on to the main act.

B. Analysis

On appeal (like at the district court), López challenges whether his 2007 and 2009 drug convictions qualify as "serious drug offense[s]" under ACCA. He next reasserts his contention that his 2009 ADW conviction does not qualify as an ACCA "violent felony." Finally, López tells us his 2012 breaking and entering conviction was also insufficient to serve as an ACCA predicate.² But this appeal can start and stop at López's "serious drug offense" challenge. Indeed, for reasons we will explain in a moment, we conclude that both López's 2007 and 2009 drug convictions are qualifying predicates. Importantly, López has a third, independent drug conviction (from 2013) whose sufficiency he has never contested to serve as a predicate offense (either at the lower court or before us now). That uncontested conviction coupled with his 2007 and 2009 convictions means it's "one, two, three strikes you're out" for López. We thus do not ultimately reach López's challenges to his ADW conviction or his breaking and entering conviction.

1. ACCA and Sentencing in Massachusetts

First, some context. ACCA prescribes stiffer sentences for repeat offenders when they are convicted of enumerated crimes. See 18 U.S.C. § 924. If a defendant is convicted of an eligible crime, including any conviction of a crime punishable by imprisonment for a term exceeding one year, and "has three previous convictions ... for a violent felony or a serious drug offense, or both," that defendant faces a mandatory minimum sentence of fifteen years and other potential sentence enhancements. See 18 U.S.C. § 924(e)(1). ACCA defines a "serious drug offense" in part as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added).³

Sentencing courts apply a "categorical approach" in determining whether a defendant's prior conviction meets the criteria for an ACCA predicate offense. Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Under this approach, courts generally look only to whether a defendant was previously convicted and the elements that comprise the relevant statute of conviction in determining whether a prior offense may serve as a predicate offense under ACCA. Id. Courts may not look to the particular facts underlying a defendant's prior conviction in this analysis. Id. If the relevant statute of conviction has the same or narrower elements than a serious drug offense, the offense may serve as an ACCA predicate. Id. Likewise, a prior conviction may serve as a qualifying ACCA predicate if it includes the same or narrower elements than a "generic" ACCA crime such as burglary. See 18 U.S.C. § 924(e)(2)(B)(ii) ; Descamps, 570 U.S. at 261, 133 S.Ct. 2276.

As noted above, López contends that his 2007 and 2009 drug distribution convictions were improperly classified as serious drug offenses as defined by ACCA. For each of these convictions, López faced "punish[ment] by imprisonment in the state prison for not more than ten years or in a jail or house of correction for not more than two and one-half years."⁴

M.G.L. ch. 94C, §§ 32(a), 32A(a). López challenges the sufficiency of these offenses to serve as ACCA predicates because of the Commonwealth's decision to prosecute him in a ...