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Bennett v. United States

United States Court of Appeals, First Circuit

July 5, 2017

GEORGE H. BENNETT, Petitioner, Appellee,
v.
UNITED STATES OF AMERICA, Respondent, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellant.

          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), 18 U.S.C. § 924(e). That law imposes a mandatory minimum prison sentence of fifteen years on a defendant who has been convicted of violating 18 U.S.C. § 922(g), a statute that prohibits certain persons from possessing or transporting firearms, if that defendant has at least three prior convictions for an offense that falls within ACCA's definition of a "violent felony." 18 U.S.C. § 924(e).

         Bennett was convicted of, among other things, violating § 922(g), and the sentencing judge determined that at least three of Bennett's prior convictions under Maine law were for an offense that qualifies as a "violent felony" under ACCA. The sentencing judge therefore applied ACCA's mandatory minimum fifteen-year sentence to Bennett's § 922(g) conviction. The sentencing judge then imposed a sentence of twenty-five years of imprisonment for the § 922(g) conviction, even though, if Bennett were not subject to ACCA, the maximum prison sentence permitted for that conviction would have been only ten years. Combined with the punishment that the sentencing judge imposed for Bennett's other federal convictions, the twenty-five-year prison sentence for that conviction resulted in an overall prison sentence for Bennett of thirty years.

         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, insofar as that offense may be committed with a mens rea of mere recklessness, as opposed to purpose or knowledge. We therefore conclude that we must apply the rule of lenity to determine whether that offense qualifies as a "violent felony" under ACCA. And, in consequence, we conclude that Bennett's two prior Maine convictions for aggravated assault do not so qualify and thus that the District Court's order granting Bennett habeas relief must be affirmed.

         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 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846; (2) use or carrying of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

         At sentencing, Bennett received the following punishment: five years of imprisonment for his conviction under §§ 841 and 846; five years of imprisonment for his conviction under § 924(c); and twenty-five years of imprisonment for his conviction under § 922(g)(1). The twenty-five-year prison sentence for Bennett's conviction under § 922(g)(1) was ordered to run concurrently to his five-year prison sentence for his conviction under §§ 841 and 846, and consecutively to his five-year prison sentence for his conviction under § 924(c). Thus, the overall term of imprisonment that Bennett received was thirty years.

         With respect to Bennett's sentence for his conviction under § 922(g)(1), the Probation Office prepared a pre-sentence investigation report (PSR) that concluded that Bennett was subject to ACCA, due to his having at least three prior convictions for an offense that qualifies as a "violent felony." The PSR set forth a recommended sentencing range of 262 to 327 months of imprisonment, based on the United States Sentencing Guidelines. The actual prison sentence that was imposed on Bennett for that conviction -- twenty-five years, or 300 months -- fell within the recommended range. The sentence for that conviction thus exceeded both the ten-year maximum prison sentence to which Bennett would have been subject absent ACCA's application and the fifteen-year mandatory minimum prison sentence that ACCA itself required to be imposed.

         B.

         ACCA provides that a "person who violates [18 U.S.C. § 922(g)] and has three previous convictions . . . for a violent felony or a serious drug offense . . . shall be fined under this title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1) (emphasis added). ACCA defines a "violent felony" as follows:

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.

18 U.S.C. § 924(e)(2)(B) (emphasis added).

         Subsection (i) of ACCA's definition of a "violent felony" is commonly referred to as the "force" clause. The "otherwise" clause of subsection (ii) of that definition, which follows that subsection's listing of certain offenses ("burglary, " "arson, " "extortion, " or crimes that "involve[] use of explosives"), is commonly referred to as the "residual" clause.

         In applying ACCA's mandatory penalty enhancement to Bennett's § 922(g)(1) conviction, the sentencing judge relied on information set forth in the PSR. The PSR had identified Bennett's ACCA-qualifying prior convictions for a "violent felony" as: 1) a 1978 conviction for Maine aggravated assault, 2) a 1979 conviction for Maine aggravated assault and criminal threatening with a dangerous weapon, and 3) a 1986 conviction for Maine aggravated assault.

         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 § 924(e)(2)(B) -- were for an offense that fell within the force clause or the residual clause of ACCA's definition of a "violent felony." Neither did the PSR.

         At the time of Bennett's conviction under § 922(g)(1), Maine defined aggravated assault as, in relevant part, "intentionally, knowingly or recklessly caus[ing]: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon; or C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life." Me. Rev. Stat. Ann. tit. 17-A, § 208 (1981). See State v. Davis, 580 A.2d 163, 164 (Me. 1990) (noting that the "critical element of aggravated assault is bodily injury caused by the defendant's behavior" and that the "defendant's mental state can be intentional, knowing or reckless").[1] Maine defined the mens rea of recklessness at the relevant time -- as it still does -- this way: "[a] person acts recklessly . . . when the person consciously disregards a risk." Me. Rev. Stat. Ann. tit. 17-A, § 35(3)(A); see also Model Penal Code, § 2.02(2)(c) ("A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."); United States v. Voisine, 778 F.3d 176, 202 (1st Cir.), aff'd, 136 S.Ct. 2272 (2016) (noting that Maine's definition of recklessness is "materially indistinguishable from the definition of recklessness in the Model Penal Code").[2]

         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 28 U.S.C. § 2255(h)(2).

         Based on the Supreme Court's then-recent decision in Johnson v. United States, 135 S.Ct. 2551 (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 assault in Maine requires proof of only "the slightest offensive touching, " that offense does not have a use of "force" as an element. The District Court instead focused on Bennett's contention that these convictions were not for an offense that has as an element the "use . . . of physical force against the person of another, " 18 U.S.C. § 924(e)(2)(B)(i) (emphases added), because Maine permitted Bennett to be convicted of aggravated assault with a mens rea of mere recklessness.[4]

         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 (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 aggravated assault then would still not constitute convictions that qualify as predicate offenses under the definition of a "violent felony" set forth in ACCA's force clause, because the record showed that Bennett's convictions were for the "reckless" variant.

         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, " Me. Rev. Stat. Ann. tit. 17-A, § 208, in "conscious[] disregard[ of] a risk" of doing so (i.e., recklessly), Me. Rev. Stat. Ann. tit. 17-A, § 35(3)(A) -- and thus without having the object of causing such injury (i.e., purposefully) or knowing that such injury is practically certain to result (i.e., knowingly) -- constitute "the use . . . of physical force against the person of another, " 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added)? Only if causing bodily injury with such a reckless mental state does constitute the use of physical force against the person of another can Bennett's convictions for aggravated assault qualify as convictions for a "violent felony" under § 924(e)(2)(B)(i). And only then may Bennett be subject to ACCA's fifteen-year mandatory minimum prison sentence.

         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.

         Nonetheless, the question does not come to us on a blank slate. In United States v. Fish, 758 F.3d 1, 9 (1st Cir. 2014), we addressed whether reckless assault and battery with a dangerous weapon (ABDW) under Massachusetts law falls within the closely analogous statutory definition of a "crime of violence" found in 8 U.S.C. § 16(b). That part of § 16 is much like ACCA's definitional provision, in that it requires that a qualifying offense "involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b) (emphasis added).

         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 (2004). There, the Court held that the definition of a "crime of violence" in § 16 -- both as it is set forth in subsection (b) and as it is set forth in in subsection (a), which requires that a qualifying offense have "as an element the use . . . of physical force against the person or property of another, " 18 U.S.C. § 16(a) -- excluded the offense of causing serious bodily injury by driving while intoxicated, for which the mens rea element was negligence or less. Leocal, 543 U.S. at 10.

         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 § 16, Fish, 758 F.3d at 10 n.4 -- the Supreme Court decided Voisine, 136 S.Ct. 2272. In that case, the Court held that a misdemeanor offense of reckless assault under Maine law does qualify under a third definitional provision --namely, 18 U.S.C. §§ 921(a)(33)(A). That provision defines a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), which prohibits any person who has been convicted of such a crime from possessing a firearm. See 18 U.S.C. § 922(g)(9).

         This third definition, like § 16(a)'s definition of a "crime of violence, " also requires an offense to have as an element "the use . . . of physical force, " which is the same phrase that appears as well in § 16(b)'s definition of a "crime of violence." But, the definition of "misdemeanor crime of domestic violence" in 18 U.S.C. § 921(a)(33)(A) omits the follow-on "against the person of another" phrase that appears in ACCA's definition of a "violent felony" and a version of which appears in both subsections (a) and (b) of ...


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