George H. BENNETT, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.
No. 16-2039
United States Court of Appeals, First Circuit.
July 5, 2017
James S. Nixon, Assistant Federal Defender, with whom Federal Defender Office-Bangor Branch was on brief, for appellee.
Before BARRON, Circuit Judge, SOUTER, Associate Justice,* and SELYA, Circuit Judge.
BARRON, Circuit Judge.
This appeal concerns George Bennett‘s challenge to his thirty-year prison term for a number of federal crimes. Bennett‘s sentence depended, in significant part, on the Armed Career Criminal Act (ACCA),
Bennett was convicted of, among other things, violating
In this federal habeas petition, Bennett now contends that his sentence must be set aside because of its dependence on ACCA‘s application. Specifically, Bennett argues that he does not have three prior convictions for an offense that qualifies as a “violent felony” within the meaning of ACCA. Bennett contends, among other things, that Maine law permitted the state to convict him of two of the supposedly ACCA-qualifying crimes (which were for the crime of aggravated assault) by showing that he had a mens rea of mere recklessness. He thus contends that those convictions cannot qualify as ones for an offense that is a “violent felony.” The District Court agreed with Bennett, granted Bennett‘s habeas petition, and ordered that he be re-sentenced without subjecting him to ACCA‘s mandatory fifteen-year minimum prison sentence. The government then filed this timely appeal.
We conclude that the text and purpose of ACCA leave us with a “grievous ambiguity,” United States v. Godin, 534 F.3d 51, 60-61 (1st Cir. 2008) (quoting United States v. Councilman, 418 F.3d 67, 83 (1st Cir. 2005) (en banc)), as to whether ACCA‘s definition of a “violent felony” encompasses aggravated assault in Maine,
I.
We start by recounting the case‘s rather involved procedural history. In the course of doing so, we provide greater detail about the relevant statutory provisions—both state and federal.
A.
On April 5, 1994, Bennett and several co-defendants were indicted on a number of federal charges in United States District Court for the District of Maine. After a jury trial, Bennett was convicted of: (1) conspiracy to possess marijuana with intent to distribute, in violation of
At sentencing, Bennett received the following punishment: five years of imprisonment for his conviction under
With respect to Bennett‘s sentence for his conviction under
B.
ACCA provides that a “person who violates [
any crime punishable by imprisonment for a term exceeding one year . . . that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Subsection (i) of ACCA‘s definition of a “violent felony” is commonly referred to as
In applying ACCA‘s mandatory penalty enhancement to Bennett‘s
The sentencing judge did not specify whether those Maine state law convictions—which plainly were not for any of the enumerated offenses listed in subsection (ii) of
At the time of Bennett‘s conviction under
C.
Bennett filed several unsuccessful petitions for habeas relief in the years that followed his sentencing. Then, on April 25, 2016, more than two decades after his sentencing, Bennett sought leave to file this successive petition pursuant to
Based on the Supreme Court‘s then-recent decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (”Johnson II“), Bennett argued that his two Maine convictions for aggravated assault could not qualify as convictions for an offense that is a “violent felony” and thus that he did not have the three prior, qualifying convictions that ACCA requires. Bennett argued that, even if those two convictions for aggravated assault might have qualified at the time of sentencing under the residual clause of ACCA‘s definitional provision, Johnson II invalidated that clause on constitutional vagueness grounds. And, Bennett argued, those convictions could not qualify under the force clause, which was the only portion of the definition of “violent felony” that remained operative after Johnson II under which Bennett‘s past convictions for Maine aggravated assault could possibly qualify.3
Two days later, we granted Bennett‘s application for leave to file a successive habeas petition. On May 4, 2016, Bennett filed this habeas petition in the United States District Court for the District of Maine.
The petition contends that Bennett‘s convictions for aggravated assault were not for an offense that has as an element the “use . . . of physical force against the person of another,” as the convictions would have had to have been in order to qualify, after Johnson II, under ACCA‘s definition of a “violent felony.” The petition contends that, because Maine law permitted Bennett to be convicted of aggravated assault while having a mens rea of only recklessness, the offense for which he was convicted does not involve a “use” of force “against the person of another.”
The petition also argues that Bennett‘s convictions for aggravated assault were not for a qualifying offense under ACCA for an additional reason. The petition contends that, notwithstanding Maine law‘s requirement that an aggravated assault cause bodily injury, Maine law permits a defendant to be convicted of aggravated assault even for “the slightest offensive touching” and thus that this offense does not have the use of “force” as an element.
In addition to arguing that Bennett does not have three prior convictions for an offense that qualifies as a “violent felony,” and thus that ACCA may not be applied in sentencing him, the petition states that Bennett “ha[s] likely already served the maximum allowable term” of imprisonment. For that reason, the petition seeks to have Bennett‘s sentence set aside.
D.
The District Court bypassed the petition‘s contention that, because aggravated
In evaluating whether these convictions qualify as ones for a “violent felony,” the District Court applied what is known as the “categorical approach.” See Mathis v. United States, 136 S.Ct. 2243, 2248-49, 2251, 195 L.Ed.2d 604 (2016). That approach requires courts to determine whether an offense qualifies as a “violent felony” under ACCA by examining the elements of the offense of conviction rather than the conduct of the defendant in committing that offense. Id.
The District Court began the inquiry under the categorical approach by examining the offense of aggravated assault in Maine as if that offense is what is known as an indivisible offense with respect to the mens rea element. This offense is indivisible with respect to the mens rea element if the distinct, possible mens reas (“knowingly, intentionally, or recklessly“) represent distinct means of committing the crime of aggravated assault rather than distinct elements of three distinct crimes of aggravated assault. The District Court concluded that, under this elements-based approach, Maine aggravated assault, if indivisible, has as its mens rea element mere recklessness, as that is the least strict mens rea that the government would need to prove a defendant had in order to secure a conviction. On that understanding, the District Court then concluded that Bennett‘s convictions for aggravated assault were not for an offense that has as an element the “use . . . of physical force against the person of another,” as Bennett‘s convictions would have had to have been in order to qualify post-Johnson II as convictions for an offense that is a “violent felony.”
The District Court also concluded that it would reach the same conclusion if aggravated assault in Maine were actually what is known as a “divisible offense.” This offense is divisible with respect to its mens rea element if the possible mens reas for aggravated assault in Maine denominate not simply distinct means of committing that one crime, but instead the distinct mens rea element for each of three distinct crimes.5 The District Court explained that Bennett‘s convictions for Maine aggravat-
The government then filed this timely appeal. Our review is de novo. Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
II.
The key question on appeal is easier to state than it is to resolve. Does “caus[ing] . . . bodily injury,”
We have not previously had occasion to address this particular question regarding the scope of ACCA‘s definitional provision. Nor have we had occasion to consider even a variant of this question under ACCA‘s force clause.6 And neither has the Supreme Court.
Moreover, in holding that ABDW did not fall within that definition, we relied on the Supreme Court‘s decision in Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). There, the Court held that the definition of a “crime of violence” in
And there is still one more precedent of potential relevance. After Fish—a decision that accorded with the reasoning of every other circuit then to have considered whether a recklessly committed offense could qualify as a “crime of violence” as defined in
This third definition, like
In the end, after carefully reviewing these various—and, as we will explain, not always easy to reconcile—precedents, as well as the text and purpose of ACCA, we conclude that ACCA‘s definition of a “violent felony” contains a “grievous ambiguity” with respect to whether that definition encompasses reckless aggravated assault in Maine, Godin, 534 F.3d at 60-61 (quoting Councilman, 418 F.3d at 83). And thus, applying the rule of lenity, we conclude that Bennett‘s convictions for aggravated assault do not qualify under ACCA‘s definitional provision as ones for a “violent felony.” See id.
In so holding, as we will explain, we do not see how we could conclude, based on Voisine, that the key statutory phrase in ACCA‘s force clause—“use . . . of physical force against the person of another,”
As this synopsis of our reasoning indicates, there are quite a few steps that we must take in order to resolve the key question that we confront. And so we have a bit of a journey ahead of us. We begin by taking the first of these many steps, which involves our review of one of the precedents that, though not strictly controlling, is still of considerable relevance: the Supreme Court‘s decision in Leocal.
A.
Leocal held that a defendant‘s conviction under Florida law for the offense of causing serious bodily injury to another while driving under the influence does not fall within the scope of
Leocal‘s analysis is relevant here for the following reason. As we have mentioned,
Moreover, Leocal gave significant weight to that “against” phrase in concluding that Florida‘s driving-under-the-influence offense was not a “crime of violence” under
Specifically, Leocal first focused on
The Court then referred back to this “against” phrase that it had identified as the critical one in pointing out that, although we would naturally describe a person who pushed someone else as having “‘use[d] . . . physical force against’ another,” we would not similarly say that a “person ‘use[d] . . . physical force against’ another by stumbling and falling into him.” Id. (brackets modified). For, the Court concluded, “[w]hile one may, in theory, actively employ something in an accidental manner,” an ordinary English speaker would not likely “say that a person actively employs physical force against another person by accident.” Id. (second emphasis added).
On this basis, Leocal held that the plain meaning of
The Court went on to explain that
The Court then added that, even if
Leocal explicitly left open, however, whether the “key” “use . . . of physical force against” language common to both
B.
By the time that the issue arose in our circuit approximately a decade later in
In Fish, we drew a similar conclusion. We held that
C.
From this review, ACCA‘s force clause would not appear to encompass reckless aggravated assault under Maine law. ACCA‘s force clause contains virtually the same language as do
In response, the government points out that Fish construed
But, the government‘s argument fails to explain how
Nevertheless, the government does identify one other reason why Fish‘s analysis is not applicable here. And that reason is the Supreme Court‘s post-Fish decision in Voisine. This argument does have potential merit. A “controlling intervening event” such as a “Supreme Court opinion on the point” can dislodge otherwise binding circuit precedent. Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 65 (1st Cir. 2008). Moreover, we did recently state that Voisine “calls into question the continuing validity of Fish, as well as the similar and analogous holdings of at least ten other circuits.” United States v. Tavares, 843 F.3d 1, 18 (1st Cir. 2016). Accordingly, we now consider the question before us in light of Voisine.
III.
Voisine concerns the scope of yet a third statute,
We focus first on Voisine‘s textual analysis of this definition. We then consider Voisine‘s analysis of the purpose of the statute in which that definition appears. After undertaking that review, we examine post-Voisine lower-court precedents, some of which have read Voisine to require that similarly worded statutes (including ACCA) be construed to encompass reckless offenses, and some of which have not. We conclude by explaining why we agree with those courts that have held that Voisine does not require the conclusion that ACCA encompasses reckless offenses, at least when they are defined as broadly as aggravated assault is defined in Maine.
A.
Voisine addressed whether the definition of a “misdemeanor crime of domestic violence” encompassed the offense of assault under Maine law. 136 S.Ct. at 2276-77 (citing
In rejecting the defendant‘s contention, Voisine focused, as a matter of text, on the ordinary meaning of the word “use” in the definition‘s key phrase—“use . . . of physical force,”
The key, the Court explained, is that, although the word “use” does require that the “force involved in a qualifying assault must be volitional,” that word “does not demand that the person applying force have the purpose or practical certainty that [the force] will cause harm, as compared with the understanding that it is substantially likely to do so.” Id. at 2278-79. Thus, the Court concluded that, at least when appearing in connection with
To make the point that a reckless assault did involve a “volitional” harm-causing action, and thus that such an offense did have as an element the “use . . . of physical force,” the Court offered two examples. The Court explained that “[i]f a person with soapy hands loses his grip on a plate, which then shatters and cuts his wife, the person has not ‘use[d]’ physical force in common parlance.” Id. But, when a person “throws a plate in anger against the wall near where his wife is standing,” his “hurl counts as a ‘use’ of force even if the husband did not know for certain . . . but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife.” Id.
Similarly, the Court explained, “if a person lets slip a door that he is trying to hold open for his girlfriend, he has not actively employed (‘used‘) force even though the result is to hurt her.” Id. But, if a person “slams the door shut with his girlfriend following close behind,” he, too, has “used physical force“—“regardless of whether he thinks it absolutely sure or only quite likely that he will catch her fingers in the jamb.” Id.
Voisine acknowledged that Leocal had construed a “similar” statutory definition, id.—namely,
But, Voisine explained, its conclusion that reckless assault under Maine law did have as an element “the use . . . of physical force” was “in no way inconsistent” with “Leocal‘s exclusion of accidental con-
Voisine also explained that its construction of the phrase “use . . . of physical force” to “encompass[] acts of force undertaken recklessly,” id. at 2282, was fully consistent with Congress‘s purposes in enacting
Against this background, Voisine emphasized that reading
The Court then concluded by addressing whether it was obliged to apply the rule of lenity. Id. at 2282 n.6. The Court explained that it was not so obliged because, as its review of the text and purpose revealed, ”
B.
Based on Voisine, one of our sister circuits has concluded that a conviction for the offense of “drive by shooting“—which requires proof that: “1) the defendant ‘was in or had just exited a motor vehicle‘; 2) the defendant ‘recklessly discharged a firearm at or toward another motor vehicle or a building‘; and 3) the defendant fired ‘at or toward a person, or an occupied building or motor vehicle’ “—qualifies as a predicate offense under the force clause of ACCA‘s definition of a “violent felony.”
One other circuit court, and at least one district court in our circuit, have reached similar conclusions as Fogg post-Voisine. See United States v. Mendez-Henriquez, 847 F.3d 214, 221-22 (5th Cir. 2017), cert. denied, 137 S.Ct. 2177, 198 L.Ed.2d 245 (2017) (interpreting
In addition, in United States v. Benally, 843 F.3d 350, 354 (9th Cir. 2016), the Ninth Circuit noted that Voisine‘s holding that “reckless conduct” has as an element the “use . . . of force” as required by
Other district courts in our circuit, however, have come down the other way. See United States v. Dancy, 248 F.Supp.3d 292 (D. Mass. Apr. 3, 2017); United States v. Lattanzio, 232 F.Supp.3d 220 (D. Mass. Feb. 8, 2017); Virden v. United States, No. 90-CR-10325-LTS, 2017 WL 470891 (D. Mass. Feb. 3, 2017); Cruz v. United States, No. 09-CR-10104-RWZ, ECF No. 57 (D. Mass. Jan. 26, 2017); United States v. Sa-betta, 221 F.Supp.3d 210 (D.R.I. 2016). And so, too, have other district courts outside of our Circuit. See, e.g., United States v. Butler, 253 F.Supp.3d 133 (D.D.C. May 25, 2017); United States v. Brown, 249 F.Supp.3d 287 (D.D.C. Apr. 12, 2017); United States v. Wehunt, 230 F.Supp.3d 838 (E.D. Tenn. Jan. 24, 2017); United States v. Johnson, 227 F.Supp.3d 1078 (N.D. Cal. Dec. 16, 2016); United States v. Hill, 225 F.Supp.3d 328 (W.D. Pa. 2016).13
The government urges us to follow Fogg and similarly inclined courts, notwithstanding our holding in Fish. And we can see why. Voisine makes clear that a reckless assault does not involve merely the “accidental” employment of force but instead the “‘use’ of force,” 136 S.Ct. at 2279, a conclusion that is arguably in tension with our reasoning in Fish. See Fish, 758 F.3d at 9 (describing “reckless conduct wherein force is brought to bear accidentally, rather than being actively employed“). And, as we will explain, Voisine does provide some support for the conclusion that, because the ordinary meaning of the phrase “use of physical force,” as found in
But, Voisine did not expressly rule out the possibility of there being grounds for concluding otherwise. See id. at 2280 n.4. In fact, Voisine expressly left open the question whether
Thus, to determine how Voisine bears on the question at hand, we must decide what significance, if any, to attribute to the seemingly divergent “contexts and purposes” between ACCA and
1.
With respect to “contexts,” Voisine had no occasion to consider the meaning that the “elastic” word “use,” Leocal, 543 U.S. at 9, might take on in the context of a clause that includes a modifying “against” phrase, such as the one that appears in ACCA‘s definition of a “violent felony” or
Congress chose in ACCA to “denominate ‘the use of force against another’ as a single, undifferentiated element.” United States v. Hayes, 555 U.S. 415, 421 n.4,
Indeed, ten circuits—plus our own, in Fish—had deployed similar logic prior to Voisine in construing
The logic of these precedents is clear enough. The injury caused to another by the volitional action in a reckless assault is, by definition, neither the perpetrator‘s object, nor a result known to the perpetrator to be practically certain to occur. For that reason, one might doubt whether such a volitional action—even if it is an action that “deliberate[ly] . . . endanger[s] another,” Voisine, 136 S.Ct. at 2279—is an action that also is naturally described as one that is taken “against” another. See, e.g., Dancy, 248 F.Supp.3d at 297 (“[T]hrowing a plate against the wall does not involve using force ‘against the person of another,’ as would be present if the husband deliberately threw the plate at his wife.“); see also Voisine, 136 S.Ct. at 2286 n.4 (Thomas, J., dissenting) (“The Door Slammer has used force against the door, which has then caused injury to his girlfriend.” (emphasis added)).
We recognize that one might say in common parlance that “throw[ing] a plate . . . against the wall,” Voisine, 136 S.Ct. at 2279, in conscious disregard of the risk posed to one standing nearby, is not only a “use . . . of physical force” but also a “use . . . of physical force against” the person who is clearly in harm‘s way. In such a scenario, there is an identifiable person endangered by the force used. It is much less clear, however, that it would be similarly natural to say that a person who chooses to drive in an intoxicated state uses force “against” the person injured in the resulting, but unintended, car crash, even if one might say that the act of driving a car is volitional and therefore that the driver “use[d] . . . physical force” by driving the car so recklessly. Cf. Voisine, 136 S.Ct. at 2287-90 (Thomas, J., dissenting) (highlighting that it is “implausible” that an ordinary English speaker would say that the “Text-Messaging Dad“—who, “[k]nowing that he should not be texting and driving,” is nevertheless distracted by sending a text to his wife, which “causes [him] to rear end the car in front of him” and thereby injures his son, a passenger—“use[s] . . . physical force against his son” (emphasis added and brackets modified)); Webster‘s New Collegiate Dictionary 62 (9th ed. 1991) (defining “against” as “directly opposite“; “facing“).
Yet aggravated assault in Maine encompasses the latter drunk-driving example just as surely as it encompasses the former plate-throwing example. And, strikingly, several courts—including our own in Fish—that have found the “against” phrase significant in excluding various reckless offenses from the scope of
It is hard to know whether the majority in Voisine would describe such reckless driving as merely involving a “use . . . of physical force” or as also involving a “use . . . of physical force against” the injured party. The simple fact is that Voisine had no need to describe the offense at issue there by means of the latter phrase in order to find the offense qualifying under the statutory definition there at issue. Voisine also does not itself address the reckless driving example that the Voisine dissent posits and that the Voisine dissent then contends cannot be described as one that involves “using force against the [driver‘s] son.” 136 S.Ct. at 2290 (Thomas, J., dissenting). But, it is at least of some note that Voisine does not at any point actually describe a reckless assault in the terms that the dissent treats Voisine as using to describe such an offense: as an offense that involves the “use . . . of physical force against the victim.”14
For these reasons, while Voisine does make clear that a reckless assault is not a true accident and thus involves a “use . . . of physical force,” Voisine does not appear to foreclose the possibility that the follow-on “against” phrase in ACCA performs the narrowing function that Fish and a slew of other circuits had ascribed to the similarly worded “against” phrase in
Nevertheless, we can hardly be sure. We have already noted that, at one point, Voi-
There is also another reason that we might discount the significance of the fact that
For these reasons, we are, in the end, uncertain. After carefully reviewing Voisine‘s analysis of the text of
2.
When we turn from “contexts” to “purposes,” we find no more reason to be con-
Specifically, “ACCA seeks to protect society at large from a diffuse risk of injury or fatality at the hands of armed, recidivist felons.” Id. By contrast, ”
In particular, ACCA aims at offenses that “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger,” rather than offenses that merely “reveal a degree of callousness toward risk.” Begay v. United States, 553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). “Crimes,” the Court stated in Begay, “committed in such a purposeful, violent, and aggressive manner are potentially more dangerous when firearms are involved. And such crimes are characteristic of the armed career criminal, the eponym of the statute.” Id. at 145, 128 S.Ct. 1581 (citations omitted) (emphasis added); United States v. Velázquez, 777 F.3d 91, 97 (1st Cir. 2015) (“[T]he driving force behind Begay was the Court‘s desire to limit application of the stringent penalties imposed by the ACCA . . . to those predicate felonies involving conduct that is not only dangerous but also indicative of a willingness to inflict harm on an identifiable victim.” (emphasis added)).
Against that backdrop, the Court in Begay held that the defendant‘s convictions under New Mexico law for driving under the influence—a strict liability offense in that state—were not for the kind of offense that Congress would have intended to qualify as a “violent felony.” 553 U.S. at 146, 128 S.Ct. 1581. Begay therefore concluded that there was “no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.” Id.
To be sure, Begay did not hold that recklessly committed offenses are excluded from ACCA‘s force clause. Begay was construing only an offense for which the mens rea was non-existent. What is more, Begay was only construing ACCA‘s then-still-fully-operative residual clause. And the Court rested its analysis, in which purposefulness loomed so large, in significant part on the fact that the residual clause in
After all, we have noted, the reckless form of that crime in Maine encompasses causing injury by driving while intoxicated. So defined, that crime—serious as it is—does not necessarily reveal a defendant to pose the kind of risk that Congress appears to have had in mind in defining a “violent felony” under ACCA. Cf. Leocal, 543 U.S. at 11, 125 S.Ct. 377 (“In construing both parts of
C.
Stepping back, it may seem anomalous that an offense bearing the name “aggravated assault” could escape ACCA‘s reach. And it must seem especially so when the aggravated assault appears to have been carried out either at gunpoint or at knifepoint—as was apparently the case here for the two prior Maine convictions at issue in this case. But Congress instructed us to take our cues from an offense‘s elements rather than from either its label or the underlying means by which that offense was carried out in a particular case. Mathis, 136 S.Ct. at 2251.
Moreover, under the categorical approach, we must consider the least serious conduct covered by an offense. See United States v. Armour, 840 F.3d 904, 908 (7th Cir. 2016); cf. Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). And, by defining the offense‘s requisite mens rea to be mere recklessness, Maine ensures that this offense covers conduct less clearly in Congress‘s ken when it crafted ACCA than much of the conduct that this offense covers—namely, causing bodily injury in a drunk-driving crash with no intent to cause such injury and no certainty that injury to another would result from driving in an intoxicated state. See Pineo, 798 A.2d at 1095 & n.2; Cloutier, 628 A.2d at 1048.
We recognize that, as the District Court suggested, aggravated assault may be indivisible with respect to the mens rea element of that offense. For that reason, it may be that in some states even aggravated assaults committed intentionally or knowingly—forms of aggravated assault that we may assume that Congress wished to cover—would not be covered. In some states, after all, no more than proof of reckless conduct would be required to secure a conviction in the event that the offense is not divisible along the mens rea axis. But, this result, insofar as it may turn out to be required by the way that a state may define the offense of aggravated assault, also follows from the way that Congress has crafted the definition of a “violent felony.” As the Court has made clear, Congress chose to focus on the elements of the offense of conviction in defining what a “violent felony” is. See Mathis, 136 S.Ct. at 2251.
D.
Voisine certainly does “call[] into question” our otherwise seemingly applicable analysis in Fish, see Tavares, 843 F.3d at 18, but we cannot say that Voisine does more than that. Voisine expressly reserves the question whether its holding applies to a statute that is “similarly worded” to ACCA. 136 S.Ct. at 2280 n.4. Prior to Voisine, circuits, including our own, consistently construed statutory language of the kind before us here narrowly. Against that background, given the differences in “contexts and purposes” between the statute construed in Voisine and ACCA, id., we are left with a “grievous ambiguity,” Godin, 534 F.3d at 60-61 (quoting Councilman, 418 F.3d at 83), concerning whether Congress intended the phrase “use . . . of physical force against the person of another” in ACCA‘s definition of a “violent felony” to include or exclude reckless aggravated assault as Maine defines it. And so, we must apply the rule of lenity. Id. (explaining that the “rule of lenity applies only if, after seizing everything from which aid can be derived, a court can make no more than a guess as to what Congress intended” (internal quotation marks, brackets, and citation omitted)); see also Leocal, 543 U.S. at 11 n.8, 125 S.Ct. 377 (“Even if § 16 lacked clarity . . . we would be constrained to interpret any ambiguity in the statute in petitioner‘s favor.“).19 For, in addition to the notice concerns that one might doubt are of much practical significance in a case with these facts, the rule of lenity does serve the additional and important purpose of ensuring “the proper balance between Congress, prosecutors, and courts.” United States v. Bowen, 127 F.3d 9, 13 (1st Cir. 1997) (quoting United States v. Kozminski, 487 U.S. 931, 952, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988)). We are considering here a sentencing enhancement of great consequence. We should have confidence, therefore, that we are doing Congress‘s will in applying this enhancement here.
For these reasons, we cannot conclude that ACCA‘s definition of a violent felony encompasses aggravated assault in Maine, insofar as that offense has a mens rea element of mere recklessness. And, accordingly, we hold that Bennett does not have three prior convictions for a “violent felony” and that he should not have been sentenced for his conviction under
IV.
The judgment of the District Court is affirmed.
Gregorio IGARTÚA, et al., Plaintiffs, Appellants, v. Donald J. TRUMP, President of the United States of America; Wilbur L. Ross, Jr., Secretary of Commerce; Karen L. Haas, Clerk of the U.S. House of Representatives, Defendants, Appellees.*
No. 15-1336
United States Court of Appeals, First Circuit.
Entered: August 9, 2017
has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and petition for rehearing en banc be denied.
KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge, LYNCH, Circuit Judge, and BARRON, Circuit Judge join, statement on denial of rehearing en banc.
The prolonged inability of our fellow citizens to vote for certain federal officials is certainly a matter of legitimate concern. The only issue now before us, though, is whether our court should convene an en banc hearing to consider whether the plaintiffs’ claims in this action must be heard in the first instance by a three-judge court under
To warrant the assignment of this lawsuit to a three-judge court, we would need to find that the complaint satisfies two criteria: (1) it commences “an action challenging the constitutionality of the apportionment of congressional districts,”
Before HOWARD, Chief Judge, TORRUELLA, LYNCH, LIPEZ, THOMPSON, KAYATTA, and BARRON, Circuit Judges.
ORDER OF COURT
Pursuant to First Circuit Internal Operating Procedure X(C), Appellant Gregorio Igartua‘s petition for rehearing en banc