UNITED STATES OF AMERICA, Appellee, v. LUIS LOPEZ, Defendant, Appellant.
No. 17-1080
United States Court of Appeals For the First Circuit
May 16, 2018
Torruella, Lipez, and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
James L. Sultan, with whom Kerry A. Haberlin and Rankin & Sultan 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.
Luis Lopez 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 Lopez 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, Lopez 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 Lopez‘s most recent arrest and convictions because they are undisputed. Lopez‘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 Lopez‘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. Lopez‘s Most Recent Criminal Convictions
The New Bedford, Massachusetts police department executed a search warrant on Lopez‘s girlfriend‘s residence on December 31, 2014, following an investigation indicating that Lopez was selling heroin at the house. Although Lopez 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 Lopez‘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 Lopez with being a felon in possession of a firearm in violation of
2. Presentence Report and Sentencing
Following Lopez‘s guilty plea, the Probation Office prepared a PSR. The PSR concluded that Lopez was subject to a sentencing enhancement under
Therefore, under ACCA, Lopez was subject to a fifteen-year (180-month) mandatory minimum sentence. After scoring the severity of Lopez‘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.
Lopez, 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 Lopez‘s contentions and reaffirmed its position that all five of Lopez‘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 Lopez‘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 Lopez 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 Lopez] 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), Lopez 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, Lopez 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 Lopez‘s “serious drug offense”
1. ACCA and Sentencing in Massachusetts
First, some context. ACCA prescribes stiffer sentences for repeat offenders when they are convicted of enumerated crimes. See
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 (2013) (citing Taylor v. United States, 495 U.S. 575, 600 (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
As noted above, Lopez 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, Lopez 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
Despite the fact that the statutes proscribing Lopez‘s crimes impose a possible punishment of up to ten years, Lopez alleges that, realistically speaking, the maximum possible sentence he could have received in either case was a mere two and one-half years because of the statutory restrictions placed on Massachusetts district courts (like the one where he was prosecuted) when it comes to sentencing. As such, he tells us these two convictions cannot serve as ACCA predicate offenses.
Having laid out the legal context regarding ACCA and the dual-track nature of sentencing in Massachusetts for certain crimes, we address Lopez‘s challenges to the applicability of the statute to his prior convictions and find them unavailing. But first, we briefly pause to determine the correct standard of review.
2. Standard of Review
In general, we review de novo a preserved challenge to the sufficiency of a prior offense to serve as a predicate under ACCA. United States v. Hudson, 823 F.3d 11, 14 (1st Cir. 2016). Plain error review is, on the other hand, appropriate where a defendant fails to preserve an objection to an alleged sentencing error. United States v. Rivera-Clemente, 813 F.3d 43, 50 (1st Cir. 2016).
Lopez‘s objection to the classification of his 2007 and 2009 convictions as “serious drug offense[s]” is premised on his contention that we should revisit existing First Circuit precedent in light of two Supreme Court cases, Moncrieffe v. Holder, 569 U.S. 184 (2013), and Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). The Government tells us we need not reach Lopez‘s argument here because he failed to adequately preserve this claim at the federal district court level. In particular, the Government argues we should deem Lopez‘s “serious drug offense” claims waived because Lopez did not specifically cite either Moncrieffe or Carachuri-Rosendo to the sentencing court in making his objection. As the Government tells it, this objection is subject at most to plain error review. We don‘t agree.
The Government sets the bar too high for a defendant attempting to preserve an objection for appeal. While it is true a defendant must object with specificity
3. Law of the Circuit Doctrine
Lopez‘s argument that his district court convictions cannot serve as ACCA predicates is not new to us. Indeed, we have addressed, and rejected, nearly identical arguments on three prior occasions. See Hudson, 823 F.3d at 15 (affirming ACCA sentencing enhancement where conviction under
the Court dealt with facts similar to Carachuri-Rosendo and reaffirmed that “[t]he outcome in a hypothetical prosecution is not the relevant inquiry” in determining whether a defendant‘s prior conviction qualifies as an aggravated felony under the INA.8
Moncrieffe, 569 U.S. at 197; see Carachuri-Rosendo, 560 U.S. at 566. Lopez analogizes the Government‘s approach to classifying a prior conviction as an aggravated felony in Carachuri-Rosendo and Moncrieffe, rejected by the Court in those cases, to the district court‘s determination here that his 2007 and 2009 drug convictions carried a maximum penalty of ten years. Lopez argues that his convictions could only carry a maximum penalty of ten years were he to have been prosecuted in a Massachusetts superior court, a factually different scenario to his case where both convictions were prosecuted in the New Bedford District Court. In light of Moncrieffe and Carachuri-Rosendo, Lopez suggests that the dispositive question in determining whether a prior state conviction qualifies as a “serious drug offense” within the meaning of ACCA is the maximum sentence a defendant could have actually received under the charging circumstances, not the hypothetical maximum sentence were the case to have been prosecuted differently.
Lopez is wrong. In fact, as mentioned earlier, his ask directly conflicts with our previous decisions in Hudson, Weekes, and Moore. See Hudson, 823 F.3d at 15; Weekes, 611 F.3d at 72; Moore, 286 F.3d at 49. And unfortunately for him, the pesky “law of the circuit doctrine” dooms his argument that these cases require our renewed attention. United States v. Rodriguez, 527 F.3d 221, 224 (1st Cir. 2008). This doctrine requires us to follow prior panel decisions closely on point. Id. It is “neither a straightjacket nor an immutable rule,” though. Id. (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000)). Indeed, there are two exceptions to the law of the circuit doctrine in which a departure from circuit precedent is warranted: 1) “where the previous holding is contradicted by controlling authority, subsequently announced,” United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) (quoting Rodriguez, 527 F.3d at 225); and 2) when “authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind.” Id. (quoting Williams v. Ashland Eng‘g Co., 45 F.3d 588, 592 (1st Cir. 1995)).
Lopez does not meet either exception, however. His reliance on Moncrieffe and Carachuri-Rosendo is misguided for two reasons. First, Moncrieffe and Carachuri-Rosendo fail to meet the timing requirement imposed in both exceptions to the rule of the circuit doctrine. See Pires, 642 F.3d at 9-10. Carachuri-Rosendo was neither “subsequently announced” nor does it “postdate[]” our decisions in Weekes or Hudson. See Carachuri-Rosendo, 560 U.S. at 582; Hudson, 823 F.3d at 15; Pires, 642 F.3d at 9; Weekes, 611 F.3d at 72. Likewise, we decided Hudson three years after Moncrieffe. See Moncrieffe, 133 S. Ct. at 1687; Hudson, 823 F.3d at 15. We therefore aren‘t fooled by Lopez‘s characterization of Moncrieffe and Carachuri-Rosendo as intervening authority; that designation is simply incorrect.
Second, even without considering the timing of these cases, neither Moncrieffe nor Carachuri-Rosendo controls over our prior ACCA decisions, nor do they “offer[] a sound reason for believing that the former panel” that rendered judgment in those cases “would change its collective mind.” Pires, 642 F.3d at 9 (quoting Williams, 45 F.3d at 592). In fact, we already rejected the interpretation of Carachuri-Rosendo (and by extension Moncrieffe) that Lopez attempts to employ here in United States v. Rodriguez, No. 11-1431 (1st Cir. July 16, 2012), an unpublished judgment. In that case, the defendant argued that Carachuri-Rosendo demanded we revisit Moore and Weekes. See Rodriguez, judgment at 2. We disagreed, however, explaining that we saw “no reason to believe that the Moore and Weekes panels would change their minds in light of Carachuri-Rosendo.” Rodriguez, judgment at 2. Similarly, both parties in Hudson addressed Carachuri-Rosendo in their briefing to the court. See Brief of Appellee at 29-32, United States v. Hudson, No. 14-2124 (1st Cir. August 18, 2015); Brief of Appellant at 27, United States v. Hudson, No. 14-2124 (1st Cir. June 9, 2015). The defendant in Hudson specifically relied on Carachuri-Rosendo to argue that this court‘s decision in Moore was wrongly decided. We nevertheless held in Hudson that the defendant “offer[ed] no new or previously unaddressed reason to deviate from our prior holdings on the issue.” 823 F.3d at 15. In other words, we necessarily concluded that Carachuri-Rosendo did not undermine the validity of Moore.
We apply the same reasoning of Hudson and Rodriguez to Lopez‘s case. Unlike in Moncrieffe or Carachuri-Rosendo, there is no dispute in the present case that Lopez was charged with a statute that prescribed a maximum punishment of ten years imprisonment.9
Finally, Lopez resorts to a last ditch effort to change our minds and sway us from existing circuit precedent by pointing
us to decisions of the Fourth, Eighth, and Tenth Circuits that allegedly demonstrate a rejection of the type of sentencing enhancement applied in his case. See United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014); United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc); United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011). Like most Hail Mary passes, Lopez‘s falls short. Not only are sister circuit decisions not binding on this court, but none of the decisions cited by Lopez outside of the First Circuit postdate Hudson. Moreover, we find the decisions that Lopez cites incomparable to the present case. See Brooks, 751 F.3d at 1210-11; Simmons, 649 F.3d at 249-50; Haltiwanger, 637 F.3d at 884. Indeed, each out-of-circuit case cited concerns the improper alteration of a defendant‘s record of conviction for the purposes of applying recidivist enhancements.10 See Brooks, 751 F.3d at 1210-11; Simmons, 649 F.3d at 249-50; Haltiwanger, 637 F.3d at 884. Like Carachuri-Rosendo, the three cases cited have no bearing on this case where there is no dispute that Lopez was convicted of a statute that prescribes a maximum sentence that fits within the requirements of an ACCA predicate offense. See Carachuri-Rosendo, 560 U.S. at 582; Brooks, 751 F.3d at 1210-11; Simmons, 649 F.3d at 249-50; Haltiwanger, 637 F.3d at 884. This is true even if prosecutorial discretion afforded Lopez a better sentencing outcome in the state courts of the Commonwealth. In sum, then, we conclude that both of Lopez‘s drug convictions in Massachusetts district court may serve as predicate offenses under ACCA.
As we previewed earlier, our determination that the district court did not err in relying on Lopez‘s 2007 and 2009 drug
C. Conclusion
Our job here done, we affirm.
THOMPSON
CIRCUIT JUDGE