UNITED STATES OF AMERICA, Appellee, v. JEROME CAPELTON, a/k/a ANTHONY COLEMAN, Defendant, Appellant.
No. 19-1613
United States Court of Appeals For the First Circuit
July 16, 2020
Hon. Michael A. Ponsor, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Before Howard, Chief Judge, Torruella and Barron, Circuit Judges.
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.
“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
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
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,
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
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
offenses, generic aiding and abetting liability required proof of an element -- shared intent -- that joint
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, 910 N.E.2d 869 (Mass. 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
a mens rea of specific intent to promote or facilitate the crime, as generic aiding and abetting requires. Consequently, Capelton reasons that Massachusetts joint venture liability criminalized more conduct than generic aiding and abetting liability and, thus, his prior convictions were overbroad and cannot serve as predicates for career offender purposes.
In response, the Government disputes that Massachusetts joint venture liability is broader in scope than generic aiding and abetting liability, arguing that Capelton misinterprets Massachusetts case law, which does require proof of shared intent in order to convict on a joint venture theory and thus does not allow a conviction based on mere knowledge. The Government also contends that we must uphold Capelton‘s conviction because, first, he waived his challenge during the 2019 resentencing by endorsing the sentence, and second, any error was harmless because Capelton has already completed his term of imprisonment, and his term of supervised release is mandated by statute.7
We need not resolve whether Capelton waived his sentencing challenge because as we will explain, we reject his
claim on the merits. See United States v. Llanos-Falero, 847 F.3d 29, 33 n.2 (1st Cir. 2017) (opting to bypass an appellate-waiver argument to address the merits instead because the issues raised by the appellant all failed); Yeboah-Sefah v. Ficco, 556 F.3d 53, 68 n.6 (1st Cir. 2009) (withholding resolution of a waiver dispute because the petitioner‘s claim could be “easily reject[ed]” on the merits). We hold that Capelton‘s Massachusetts convictions qualify as “controlled substance offense[s]” and therefore constitute valid predicate offenses under the relevant provision of the career-offender guideline.
A.
We review whether a prior conviction qualifies as a predicate offense under section 4B1.1 de novo. United States v. Mohamed, 920 F.3d 94, 99 (1st Cir. 2019) (quoting United States v. Davis, 873 F.3d 343, 345 (1st Cir. 2017); United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009). To qualify as a career offender, a defendant must have, among other requirements, “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
substance offense.” For purposes of the career-offender guideline, a “controlled substance offense” is defined as
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
We apply the “categorical approach” set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), to determine whether a prior offense qualifies as a “controlled substance offense” under section 4B1.1. United States v. García-Cartagena, 953 F.3d 14, 18 (1st Cir. 2020); see also Benítez-Beltrán, 892 F.3d at 466 (“We use a ‘categorical approach’ to determine whether the offense for which a defendant was previously convicted matches an expressly enumerated offense under
B.
Based on an application of the categorical approach, Capelton argues that the Massachusetts joint venture liability standard in 1992 and 1996 (the years of his purported predicate felony convictions) encompassed more conduct than the generic definition of aiding and abetting, resulting in a categorical mismatch. Capelton‘s argument relies on the following analytical steps: (1) that aiding and abetting liability is implicit in every Massachusetts criminal charge; (2) that the categorical approach requires that we consider, in looking to the minimum conduct
criminalized by a statute, the scope of aiding and abetting liability; and (3) that the principal and accomplice theories of guilt are indivisible from the substantive offense. We neither accept nor reject any of those premises because, as the Government proposes in its brief, we assume without deciding that they are true; after all, the Government does not address them, and the parties’ dispute hinges on a comparison of the mens rea required to prove joint venture liability in Massachusetts and generic aiding and abetting liability at the time of Capelton‘s purported predicate offenses in 1992 and 1996.
The parties generally agree that generic aiding and abetting liability requires a shared intent with the principal and that knowledge alone is insufficient to meet the
that the generic aiding and abetting liability standard proposed by the parties is correct. See United States v. Boleyn, 929 F.3d 932, 940 (8th Cir. 2019) (adopting this approach), cert. denied,
We side with the Government. We have been warned that in applying the categorical approach, the “focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.‘” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzáles v. Dueñas-Álvarez, 549 U.S. 183, 193 (2007)). As we explain next, Capelton has not persuaded us that, at the time of his Massachusetts convictions in 1992 and 1996, Massachusetts applied its aiding and abetting liability
standard to encompass more conduct than the generic form of that standard. Put another way, Capelton has not shown that a jury in Massachusetts could convict a defendant on a joint venture theory of guilt without finding that the defendant had a shared intent with the principal to commit the crime. Accordingly, we reject Capelton‘s contention that his prior convictions are overbroad.
C.
In 1979, the SJC articulated the theory of joint venture liability in Commonwealth v. Soares, stating that to convict a defendant on such theory, the prosecution had to show that the defendant shared the intent required for the underlying crime with the principal. See 387 N.E.2d 499, 506 (Mass. 1979) (“The theory underlying joint enterprise is that one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal.“). Four years later, in Commonwealth v. Bianco, the SJC articulated the Soares joint venture liability standard as a three-part test, recognizing joint venture liability when a defendant was “(1) present at the scene of the crime, (2) with knowledge that another intends to
(Mass. 1983) (citing Commonwealth v. Casale, 408 N.E.2d 841 (Mass. 1980), and Soares, 387 N.E.2d at 499).
The Bianco three-part test was the standard in place at the time of Capelton‘s Massachusetts convictions. Capelton argues that the SJC‘s use of the conjunctive word “or” in the second prong of the Bianco test suggests that knowledge and intent were separate elements of joint venture liability and, thus, a defendant could be convicted under that theory “upon proof of mere knowledge that another intended to commit the crime, without proof of specific intent to commit the crime.”
The Government persuasively argues that Capelton erroneously isolates the second prong of the test when, in context, the three prongs read together “plainly require intent.” In support, the Government explains that “[o]ne who is actually present at the scene of an impending crime, and who has knowledge that the principal intends to commit the crime, and who even has a prior ‘agreement’ with the principal that he is ‘willing and available to help’ . . . shares the intent of the principal.” In response, Capelton argues that only the second prong of the test concerns the mens rea requirement, and that if the Government‘s reasoning were correct, the “with intent to commit a crime” clause of the second prong would be superfluous.
It is hard to imagine a situation relevant to the drug crimes at issue here (possession with intent to distribute and distribution of a controlled substance) in which the combination of the second prong -- “knowledge that another intends to commit the crime” -- with the third prong -- the “agreement [to be] willing and available to help the other [commit the crime] if necessary” -- does not amount to having a shared intent with the principal “to promote or facilitate the commission of the crime,” as the parties agree generic aiding and abetting requires. And while Capelton proposes that Bianco “did not include the shared mental state language” from Soares, the SJC in Bianco rejected the argument that the defendants in that case could be convicted on a joint enterprise theory “because there was insufficient evidence that they shared the mental state required of joint venturers,” and cited Soares to support this conclusion. See Bianco, 446 N.E.2d at 1045 (emphasis added).
Capelton makes much of the post-Bianco case Zanetti, 910 N.E.2d 869, arguing that it changed the joint venture standard articulated in Bianco by implementing a heightened mens rea requirement of shared intent. According to Capelton, Soares‘s shared mental state requirement that the SJC had eliminated in Bianco in 1983 was not reintroduced until 2009 in Zanetti. However, a close reading of Zanetti instead supports the
Government‘s contention that, in 1992 and 1996, the Massachusetts joint venture theory of liability required a showing of shared intent.
In Zanetti, the SJC implemented procedural reforms to the jury instructions in an attempt to clarify the law on joint venture. 910 N.E.2d at 871, 883. It recognized that Bianco‘s definition of joint venture liability “ha[d] proven to be a source of confusion to jurors and judges.” Id. at 880-81. The confusion arose from an outdated and “false distinction between a principal and an accomplice” (or joint venturer) created by the language in the model jury instructions. Id. at 881. The SJC explained that at the time, the model jury instructions “encourage[d] judges to instruct on the required elements of the charged offense, and then separately instruct on joint venture
Contrary to Capelton‘s contention, there is no indication in Zanetti that the SJC thought that Bianco had eliminated the shared intent requirement from Soares, which it then had to reintroduce in Zanetti as a requirement to prove joint venture liability. Rather, it appears to us that the SJC was concerned that, with the instructions for principal liability being separated from the instructions for joint venture liability, the jury would not understand that, “to find the defendant guilty as a joint venturer, [it] must find that the Commonwealth ha[d] proved both the elements of the offense and the defendant‘s knowing participation in the offense.” Id. at 882. The SJC also expressed concern that, in cases where a lesser crime escalates into a more serious crime, the severed jury instructions could confuse the jury about whether a defendant needed to share the intent of the principal in the initial crime and/or in the subsequent one. Id. at 882 n.20.
Furthermore, the SJC expressly stated that the reformulated joint venture standard was “hardly novel” and that “it best reflect[ed] the spirit behind the common law as . . . reflected in the aiding and abetting statute, which declares the aider and abettor to be as culpable as the chief perpetrator of the offense.” Id. at 883 (citation omitted); see
venture criminal liability has two essential elements: that the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent.” Zanetti, 910 N.E.2d at 883. Thus, the SJC expressed that it was merely “[s]treamlining the [jury] instruction” for accomplice liability, id., “hop[ing] to provide clearer guidance to jurors and diminish the risk of juror confusion in cases where two or more persons may have committed criminal acts,” id. at 884. The shift in language, the SJC clarified, “d[id] not enlarge or diminish the scope of existing joint venture liability.” Id.
In our view, the series of cases decided between Bianco and Zanetti to which both Capelton and the Government cite also tend to support the Government‘s position that the Commonwealth had to prove shared intent in the wake of Bianco. See, e.g., Commonwealth v. Clemente, 893 N.E.2d 19, 51 (Mass. 2008) (concluding that a joint venturer “must share the mental state of the principal,” and jury instructions that quoted the Bianco test verbatim, “considered as a whole, explained that concept to the jury“); Commonwealth v. Cannon, 869 N.E.2d 594, 600 (Mass. 2007) (upholding jury instruction requiring proof of shared intent to be convicted of the crime as a joint venturer); Commonwealth v. Hernández, 790 N.E.2d 1083, 1087-88 (Mass. 2003) (“Under the joint venture theory, for a trafficking conviction, the defendant need
not have possessed the drugs, actually or constructively. He need only have shared the intent of the principal to distribute.” (citations omitted)); Commonwealth v. Blake, 696 N.E.2d 929, 934 (Mass. 1998) (affirming conviction under a joint venture theory of liability where sufficient evidence supported an inference
This leads us to conclude that Massachusetts required a showing of shared intent to convict a defendant on a theory of joint venture pre- and post-Zanetti, and importantly to this
appeal, during the time period Capelton was convicted of his drug offenses in Massachusetts. Thus, Capelton has not shown, as required by Moncrieffe, that there is “a realistic probability” that Massachusetts would have applied its drug statute at issue here to conduct that fell outside the generic definition of aiding and abetting, namely, where the joint venturer lacked the requisite intent to distribute. See Moncrieffe, 569 U.S. at 191 (quoting Dueñas-Álvarez, 549 U.S. at 193). Accordingly, we reject Capelton‘s contention that his two prior state convictions are overbroad and do not qualify as “controlled substance offense[s],” and we hold that the district court correctly sentenced Capelton under the career-offender guideline. Our conclusion makes it unnecessary to reach the parties’ harmless error arguments.
III. Conclusion
For the foregoing reasons, Capelton‘s sentence is affirmed.
Affirmed.