UNITED STATES of America, Appellee, v. Jermaine WHINDLETON, Defendant, Appellant.
No. 14-1932.
United States Court of Appeals, First Circuit.
Aug. 10, 2015.
797 F.3d 105
III.
With reluctance, therefore, we must again remand this case to the district court for further proceedings, including the consideration of any extrinsic evidence that might be useful and appropriate in determining the intent behind the filing requirement of the recall language of Article 19, Section 3. We offer no view of the Town‘s obligations to Clukey under the CBA if the factfinder concludes that post-layoff submission of an employee‘s contact information is not a condition precedent to his right to recall. Because the district court, adopting the recommendation of the magistrate judge, held that Clukey forfeited his right to recall by failing to file his address and phone number after his layoff, it did not address Clukey‘s procedural due process claim or an issue raised on remand concerning his seniority status under the CBA.6 See Clukey I, 717 F.3d at 60 (noting that the district court might want to engage in the analysis prescribed by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine what process Clukey was due “if doing so becomes necessary to resolve the case“); Clukey v. Town of Camden, No. 2:11-cv-372-GZS, 2014 WL 457658, at *1, *3 (D.Me. Feb. 4, 2014) (describing the condition precedent and seniority issues).
These outstanding issues reflect the piecemeal approach to this litigation pursued by the parties. There is the potential for more appeals in a case where we have already had two. This is a regrettable situation that drains the resources of everyone involved. We urge the parties to seriously consider settlement on remand.
Vacated and remanded for further proceedings consistent with this opinion.
Costs to appellant.
Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before LYNCH, THOMPSON, and KAYATTA, Circuit Judges.
LYNCH, Circuit Judge.
Jermaine Whindleton appeals his fifteen-year sentence for being a felon in possession of a firearm in violation of
We must resolve, first, whether Whindleton‘s prior conviction for Criminal Sale of a Controlled Substance under
I.
Whindleton was arrested after using the barrel of a shotgun to strike Christopher Frey in the head during an argument in June of 2012 over a drug debt that Frey owed to Whindleton. Whindleton was later indicted for “knowingly possess[ing] . . . a Mossberg, Model 500B, 16 Gauge shotgun” after having been convicted of four felonies in violation of
A conviction for being a felon in possession of a firearm, in violation of
An enhanced sentence under the ACCA,
At sentencing, Whindleton conceded that his Massachusetts conviction for Pos-
II.
Section
Whether a prior conviction qualifies as an ACCA predicate offense is a legal question we review de novo. United States v. Carrigan, 724 F.3d 39, 48 (1st Cir. 2013). We employ a categorical approach, under which “we may consider only the offense‘s legal definition, forgoing any inquiry into how the defendant may have committed the offense.” United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011); see also United States v. Bryant, 571 F.3d 147, 157 n. 7 (1st Cir. 2009) (applying the same approach to controlled substances offenses).
The categorical approach is “modified” if the defendant was convicted under a statute which “sets out one or more elements of the offense in the alternative.” See Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under the modified categorical approach, the court may “consult a limited class of documents . . . to determine which alternative formed the basis of the defendant‘s prior conviction.” Id. If these documents do not identify the basis of the defendant‘s prior conviction, the court must ensure that “each of the possible offenses of conviction would qualify [as an ACCA predicate].” Holloway, 630 F.3d at 257.
A. New York Criminal Sale of a Controlled Substance
Whindleton first argues that the district court erred in concluding that his 2005 conviction for Criminal Sale of a Controlled Substance in the Third Degree under
We have previously held that, “[b]y using ‘involving,’ Congress captured more offenses than just those that ‘are in fact’ the manufacture, distribution, or possession of, with intent to distribute, a controlled substance.” United States v. McKenney, 450 F.3d 39, 42 (1st Cir. 2006). The definition of a “serious drug offense” also “‘encompass[es] . . . offenses that are related to or connected with such conduct.‘” Id. at 43-44 (quoting United States v. King, 325 F.3d 110, 113 (2d Cir. 2003)).
For example, in McKenney, we held that a defendant‘s conviction for “conspiracy to violate a state controlled substances law by agreeing to possess with intent to deliver cocaine” qualified as a “serious drug offense” under the ACCA. Id. at 40. There was no argument that the defendant did, in fact, possess cocaine with intent to deliver, or that the defendant even took an overt step in that direction. Id. at 42-43 nn. 6 & 8. Nevertheless, we held that “the conspiracy standing alone was sufficient.” Id. at 42-43 n. 8. We explained that “the relationship between the inchoate offense of conspiracy and its object—its entire purpose—is plainly close enough that a conspiracy to possess with intent to distribute is, under the ACCA, an offense ‘involving . . . possessing with intent to . . . distribute.‘” Id. at 45 (alterations in original).
Whindleton concedes, as he must, that courts have “interpreted the ACCA‘s language to include conspiring or attempting to manufacture, distribute, or possess with intent to distribute drugs” as well as “aiding and abetting the distribution of drugs.” See, e.g., McKenney, 450 F.3d at 45 (conspiracy); King, 325 F.3d at 115 (attempt); United States v. Madera, 521 F.Supp.2d 149, 152 (D.Conn. 2007) (accessory liability). But, he maintains, “an offer to provide drugs is simply not the equivalent of either a conspiracy, attempt, or aiding and abetting.”
Other circuits, considering this question for different statutes, have concluded that offers to sell controlled substances are sufficiently “related to or connected with” drug distribution to qualify as serious drug crimes. In Texas, for example, the delivery statute was violated by “a person knowingly or intentionally offer[ing] to sell what he states is a controlled substance.” United States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008) (citation and internal quotation marks omitted). Texas law did not require the defendant to “have any drugs to sell or even intend ever to obtain the drugs he is purporting to sell.” Id. The Fifth Circuit nevertheless concluded that the Texas conviction qualified as a “serious drug offense” under the ACCA. Id. at 366. The Fifth Circuit explained that “[t]he expansiveness of the word ‘involving’ supports that Congress was bringing into the statute‘s reach those who intentionally enter the highly dangerous drug distribution world.” Id. at 365.
Joining the Fifth Circuit, the Eighth Circuit held that “knowingly offering to sell drugs is a ‘serious drug offense’ under the ACCA.” United States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012). The Eighth Circuit rejected the defendant‘s assertion that the offer “must be ‘genuine, made in good faith, or be accompanied by an actual intent to distribute a controlled substance’ to ‘involve’ drug distribution.” Id. at 887. “[S]o long as [the] defendant has intentionally made an offer to sell a controlled substance, he or she has ‘intentionally enter[ed] the highly dangerous drug . . . marketplace as a seller.‘” Id. (third and fourth alterations in original) (quoting Vickers, 540 F.3d at 365-66).
Under the New York statute at issue in this case, a defendant can be convicted of offering to sell a controlled substance even if the offer is not accepted, and even if the defendant does not yet possess the controlled substance. See People v. Mike, 92 N.Y.2d 996, 684 N.Y.S.2d 165, 706 N.E.2d 1189, 1191 (1998); see also People v. Samuels, 99 N.Y.2d 20, 750 N.Y.S.2d 828, 780 N.E.2d 513, 516 (2002). “However,” the New York Court of Appeals has explained, “in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell—i.e., that defendant had both the intent and the ability to proceed with the sale.” Mike, 706 N.E.2d at 1191.
These two requirements for a bona fide sale more closely align the offer to sell a controlled substance with its ultimate distribution. While there need not be proof that the offer was accepted, there must be proof that the defendant intended to proceed with the sale. See id. A fraudulent
Like our sister circuits, we conclude that an offer to sell a controlled substance—like an attempt to sell or a conspiracy to sell—is necessarily related to and connected with its ultimate goal, the distribution of controlled substances. We reject any requirement that the defendant already possess the controlled substance or that the offer be accepted.5 It is sufficient in this case that the defendant entered “the drug marketplace” with the intent and ability to proceed with the sale of a controlled substance if his or her offer were accepted.
Whindleton argues that this conclusion stretches the definition of a “serious drug crime” too far. According to Whindleton, “[s]uch an expansive reading of the ACCA undermines the categorical approach mandated for determination of qualifying predicates,” and “do[es] harm to the cannon [sic] of strict construction of criminal statutes, or the rule of lenity.” “Under such a standard,” he contends, “the mere possession of any drug, regardless of quantity, is ‘related to or connected with’ possession with intent to distribute.”
While the term “involving” may be expansive, it is not limitless. McKenney, 450 F.3d at 45. We hold today only that an offer to sell under New York law—requiring the intent and the ability to proceed with a sale—sufficiently involv[es] the distribution of drugs to qualify as a “serious drug offense” under the ACCA.
B. Massachusetts Assault with a Dangerous Weapon
Whindleton next argues that his 2009 conviction for ADW under
(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 . . . .
The Supreme Court has recently invalidated the Residual Clause as unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). That issue has dropped out of our case.7
Whindleton does not challenge the constitutionality of the Force Clause after Johnson. The Supreme Court specified that its decision in Johnson “does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act‘s definition of a violent felony.” Id. at 2563. We focus on whether Whindleton‘s conviction for ADW “has as an element the use, attempted use, or threatened use of physical force against the person of another,” such that it qualifies as a “violent felony” under the ACCA‘s Force Clause.
The Massachusetts ADW statute is violated by “[w]hoever, by means of a dangerous weapon, commits an assault upon another.”
This circuit has already held that a defendant‘s ADW conviction “clearly satisfies” the ACCA‘s Force Clause. United States v. Am, 564 F.3d 25, 33 & n. 9 (1st Cir. 2009). In Am, we quoted the Massachusetts Supreme Judicial Court as hold-
Generally, “a ruling of law by a panel of this court is binding upon subsequent panels.” Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 22 (1st Cir. 2001). An exception to the doctrine of stare decisis applies if “[a]n existing panel decision [is] undermined by controlling authority, subsequently announced, such as an opinion of the Supreme Court . . . .” United States v. Rodriguez-Pacheco, 475 F.3d 434, 441 (1st Cir. 2007) (first and second alterations in original) (citation and internal quotation marks omitted).
Whindleton challenges “the continuing vitality” of our holding in Am based on the Supreme Court‘s decision in another critical ACCA case named Johnson v. United States. In Johnson, the defendant had been convicted under Florida‘s battery statute, which could be violated by “any intentional physical contact, no matter how slight,” such as a tap on the shoulder without consent. 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (citation and internal quotation marks omitted). The Court held that “the phrase ‘physical force’ [in the ACCA] means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140. Because the Florida statute could be satisfied by physical force that did not amount to violent force, the Court held that a conviction under it did not qualify as a violent felony under the Force Clause. See id. at 139-43, 145.
Whindleton argues that Johnson undermines the holding of Am “[s]ince assault, even with use of a dangerous weapon, is based upon either an attempted or threatened battery that may be accomplished by a mere touching.” After careful review, we conclude that Johnson in no way undermines Am, and we remain bound by its holding. See United States v. Chanthachack, 483 Fed.Appx. 580, 580 (1st Cir. 2012) (per curiam) (citing Am as controlling precedent after Johnson).
It is critical that the statute at issue here is Assault with a Dangerous Weapon. The statute can be understood as having two elements: the attempted or threatened battery (simple assault) and the use of a dangerous weapon. See Melton, 763 N.E.2d at 1096. Whindleton‘s argument focuses solely on the first element. Namely, Whindleton argues that assault is either attempted or threatened battery; that battery can be accomplished by mere touching; and that, ergo, a defendant can be convicted of assault for attempted or
“To support a conviction under § 15B, the Commonwealth must show that the threat of harm was by means of a dangerous weapon.” Commonwealth v. Flanagan, 17 Mass.App.Ct. 366, 458 N.E.2d 777, 781 (1984). Under Massachusetts law, a dangerous weapon can be “dangerous per se” or “dangerous as used.” Commonwealth v. Tevlin, 433 Mass. 305, 741 N.E.2d 827, 833 (2001). The first category consists of “instrumentalit[ies] designed and constructed to produce death or great bodily harm.” Id. (alteration in original) (citation and internal quotation marks omitted). The second category consists of objects that, “as used by the defendant, [are] capable of producing serious bodily harm.” Id. (citation and internal quotation marks omitted). Logically, the harm threatened by an assault is far more violent than offensive touching when committed with a weapon that is designed to produce or used in a way that is capable of producing serious bodily harm or death. As a result, the element of a dangerous weapon imports the “violent force” required by Johnson into the otherwise overbroad simple assault statute.
Following this reasoning, a Massachusetts Appeals Court in Commonwealth v. Clark, 85 Mass.App.Ct. 1126, 10 N.E.3d 670, 2014 WL 2776858 (Mass.App.Ct. June 20, 2014) (unpublished opinion), held that ADW necessarily entails violent force due to the nature of a dangerous weapon. See id. at *1. There, the Massachusetts Appeals Court analyzed whether a conviction for ADW qualified as a “violent crime” under Massachusetts’ version of the ACCA.10 Id. Citing Am with approval, the court held that “[a]ll the crimes encompassed in [the ADW statute] are violent crimes under the [Massachusetts ACCA] force clause.” Id. The court focused on the dangerous-weapon element and explained that, “[b]ecause the weapon has to be capable of producing serious bodily harm or be designed and constructed to produce death or great bodily harm, every attempted battery or immediately threatened battery with this type of weapon is either an attempted use or threatened use of physical force that is capable of causing pain or injury.” Id.
Our court has previously relied on similar logic to find that Assault and Battery with a Dangerous Weapon (“ABDW“) qualifies as a violent felony under the now-invalided Residual Clause. See United States v. Hart, 674 F.3d 33, 40-44 (1st Cir. 2012). In Hart, we stressed that ABDW must “be perpetrated by means of a dangerous weapon.” Id. at 44. We held that, in light of Massachusetts’ definition
This conclusion is further supported by the Tenth Circuit‘s decision in United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010), issued after Johnson. There, the Tenth Circuit considered a New Mexico statute, which defined aggravated assault as “‘unlawfully assaulting or striking at another with a deadly weapon.‘” Id. at 669 (quoting
“Applying Johnson,” the Tenth Circuit concluded that this theory of assault qualified as a violent felony under the Force Clause of the ACCA.11 Id. at 670. The court explained:
Purposefully threatening or engaging in menacing conduct toward a victim, with a weapon capable of causing death or great bodily harm, threatens the use of “force capable of causing physical pain or injury” in two different ways. The conduct “could always lead to . . . substantial and violent contact, and thus it would always include as an element” the threatened use of violent force. And the conduct “could at least put the victim on notice of the possibility that the weapon will be used more harshly in the future, thereby constituting a threatened use of force.”
Id. at 672 (alteration in original) (citations omitted); see also United States v. Rede-Mendez, 680 F.3d 552, 558 (6th Cir. 2012) (noting that “the use of a deadly weapon may transform a lesser degree of force into the necessary ‘violent force’ “).
Finally, dicta in Johnson assumed that an assault and battery with a dangerous weapon was a “violent felony.” The Supreme Court noted that “[w]hen the adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of strong physical force is even clearer,” and quoted Black‘s definition of “violent felony” as “[a] crime characterized by extreme physical force, such as murder, forcible rape, and assault and battery with a dangerous weapon.” Johnson, 559 U.S. at 140-41 (emphasis added).
III.
We affirm Whindleton‘s sentence under the ACCA.