United States v. Whindleton
2015 U.S. App. LEXIS 13958
| 1st Cir. | 2015Background
- Defendant Jermaine Whindleton convicted under 18 U.S.C. § 922(g)(1) for possession of a shotgun after prior felony convictions; sentenced to 15 years under the ACCA based on three qualifying prior convictions.
- Prior convictions at issue: New York Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39(1), 2005) and Massachusetts Assault with a Dangerous Weapon (Mass. Gen. Laws ch. 265, § 15B(b), 2009). A third drug conviction (MA possession with intent to distribute) was conceded to qualify.
- ACCA (18 U.S.C. § 924(e)) increases § 922(g) mandatory minimum to 15 years if the defendant has three prior convictions for "violent felony" or "serious drug offense."
- Court reviews predicate-qualification questions de novo, applying the categorical approach and the modified categorical approach where statutes list alternative means.
- District court found the New York sale conviction a "serious drug offense" and the Massachusetts ADW a "violent felony;" Whindleton appealed both determinations.
Issues
| Issue | Whindleton's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether NY Penal Law § 220.39(1) (sale/offering to sell narcotics) is a "serious drug offense" under ACCA | An offer to sell is too remote from actual distribution/possession with intent and thus does not "involve" distribution | An offer to sell (under NY law) requires intent and ability to consummate the sale and is sufficiently related to distribution to qualify | Qualified: an offer-to-sell conviction that proves intent and ability to proceed is a "serious drug offense" under the ACCA |
| Whether Mass. ADW (§ 15B(b)) is a "violent felony" under ACCA Force Clause | ADW may be based on attempted or threatened offensive touching (too slight under Johnson), so it may not require the violent force Johnson requires | The dangerous-weapon element transforms the offense into one involving violent force; ADW necessarily has an element of use/attempted use/threatened use of physical force | Qualified: ADW satisfies the Force Clause and counts as a "violent felony" under ACCA |
Key Cases Cited
- United States v. McKenney, 450 F.3d 39 (1st Cir. 2006) (conspiracy to possess with intent to distribute qualifies as a "serious drug offense")
- United States v. Vickers, 540 F.3d 356 (5th Cir. 2008) (offer to sell drugs can qualify as a serious drug offense under ACCA)
- United States v. Bynum, 669 F.3d 880 (8th Cir. 2012) (knowingly offering to sell drugs is a "serious drug offense")
- Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013) (per curiam) (an offer to sell with intent and ability can be a substantial step toward attempted distribution)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarifies categorical and modified categorical approaches)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause; defined "physical force" as violent force)
- United States v. Am, 564 F.3d 25 (1st Cir. 2009) (held Massachusetts ADW satisfies ACCA Force Clause)
- United States v. Hart, 674 F.3d 33 (1st Cir. 2012) (ABDW poses a serious potential risk of physical injury due to dangerous-weapon element)
- United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010) (threatening conduct with a deadly weapon qualifies as violent felony under Force Clause)
Final disposition: Court affirmed Whindleton's ACCA-enhanced 15-year sentence.