GEORGE H. BENNETT, Petitioner, Appellee,
UNITED STATES OF AMERICA, Respondent, Appellant.
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.
S. Nixon, Assistant Federal Defender, with whom Federal
Defender Office -- Bangor Branch was on brief, for appellee.
Barron, Circuit Judge, Souter, Associate Justice,
and Selya, Circuit Judge.
BARRON, Circuit Judge.
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).
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.
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.
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.
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
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).
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
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.
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).
(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
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
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.
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"). 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").
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.
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.
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.
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."
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.
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.
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.
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.
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
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. 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
government then filed this timely appeal. Our review is de
novo. Ellis v. United States, 313 F.3d 636, 641 (1st
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.
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. And neither has the Supreme Court.
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).
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.
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.
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 ...