Lassend v. United States
898 F.3d 115
1st Cir.2018Background
- In 2010 Lassend was arrested for possessing a firearm and ammunition and later convicted in federal court under 18 U.S.C. § 922(g)(1). The PSR treated him as an Armed Career Criminal (ACCA) based on at least three prior violent-felony convictions, producing a 15-year mandatory minimum.
- Prior convictions relied on by the government included Massachusetts Assault by Dangerous Weapon (ADW) and New York convictions for first-degree robbery (two separate counts) and attempted second-degree assault (prisoner assault).
- Lassend appealed his conviction in 2013 but did not challenge the ACCA sentence on vagueness grounds at that time; his conviction was affirmed.
- After Johnson v. United States (2015) (Johnson II) invalidated the ACCA residual clause, Lassend filed a § 2255 petition arguing his predicate convictions did not satisfy the ACCA force clause and thus his ACCA sentence was unconstitutional.
- The district court found Lassend had cause to excuse procedural default (because Johnson II overruled prior controlling precedent), considered the merits, and held that three prior convictions (Mass. ADW, NY Penal Law § 120.05(7) attempted prisoner-assault, and NY Penal Law § 160.15(4) first-degree robbery—display of what appears to be a firearm) qualify as ACCA violent-felony predicates. Lassend appealed; the First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Lassend) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Procedural default of Johnson II claim | Johnson II was not reasonably available at time of direct appeal; but he defaulted so must show cause and prejudice | Johnson argues defaulted claims are barred unless cause and prejudice shown; but concedes Johnson II overruled prior precedent | Court: Cause shown because Johnson II explicitly overruled prior controlling precedent (James, Sykes); prejudice tied to merits and assessed there |
| Whether Massachusetts ADW is an ACCA predicate under the force clause | ADW can be committed recklessly or by minimal touching, so may not involve "violent force" | First Circuit precedent (Am, Whindleton, Hudson) holds ADW includes requisite mens rea and violent force | Held: ADW qualifies as violent felony under ACCA force clause; bound by circuit precedent |
| Whether NY Penal Law § 120.05(7) (prisoner assault / attempted second-degree assault) is a violent felony | Lassend: statute could cover non-force causation (e.g., guile, omission) so may not require violent force | Gov't: indictment and plea facts show conviction under § 120.05(7); Castleman and case law support that causing bodily injury intentionally involves physical force; realistic probability of non-force convictions under § 120.05(7) is absent | Held: § 120.05(7) conviction (as established by Shepard documents) qualifies as an ACCA violent felony under the force clause |
| Whether NY Penal Law § 160.15(4) (1st-degree robbery—display what appears to be a firearm) is a violent felony | Lassend: display of an object that merely appears to be a weapon (not actually dangerous) and accomplice display could mean defendant lacked intent to use force; Leocal intent requirement not met | Gov't: statute requires forcible stealing (intent to compel) and display that induces reasonable fear; accomplice liability and Dean reasoning mean statute's elements satisfy force and intent requirements | Held: § 160.15(4) meets both Johnson I (force) and Leocal (intent) requirements; conviction qualifies as ACCA predicate |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" for ACCA as violent force)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (overruled ACCA residual clause)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (causing bodily injury intentionally can involve indirect use of force)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (§16(a) requires a level of intent greater than negligent conduct)
- Dean v. United States, 556 U.S. 568 (2009) (statutory focus on elements/event, not particular actor's intent; culpability of co-actors can support liability)
- Stuckey v. United States, 878 F.3d 62 (2d Cir. 2017) (concluding NY §160.15(4) qualifies as an ACCA predicate)