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United States v. Rose

United States Court of Appeals, First Circuit

July 18, 2018

UNITED STATES OF AMERICA, Appellant,
v.
KENDALL ROSE, Defendant, Appellee. UNITED STATES OF AMERICA, Appellant,
v.
IKE WEEMS, a/k/a True, Defendant, Appellee. UNITED STATES OF AMERICA, Appellant,
v.
ANTHONY SABETTA, Defendant, Appellee. UNITED STATES OF AMERICA, Appellant,
v.
ALBERTO RODRÍGUEZ, Defendant, Appellee.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. John J. McConnell, Jr., U.S. District Judge, Hon. William E. Smith, U.S. District Judge]

          Donald C. Lockhart, Assistant United States Attorney, with whom Stephen G. Dambruch, Acting United States Attorney, was on brief, for appellant.

          Judith H. Mizner, Assistant Federal Public Defender, Federal Public Defender Office, was on brief, for appellees.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         Kendall Rose, Ike Weems, Anthony Sabetta, and Alberto Rodríguez (collectively, the "Defendants") brought motions under 28 U.S.C. § 2255 to vacate, set aside, or correct their sentences. They argued that, in the wake of Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015), their convictions for the Rhode Island offense of Assault with a Dangerous Weapon (A/BDW), see R.I. Gen. Laws § 11-5-2(a), no longer qualify as predicate convictions triggering the Armed Career Criminals Act's (ACCA) mandatory 15-year sentence, see 18 U.S.C. § 924(e). The district court agreed with them, and granted those motions. The government appealed. We affirm.

         I.

         We begin with an overview of this case's factual and procedural background, which also gives us the opportunity to review the law that is in play here.

         A.

         The facts relevant to this appeal are straightforward and uncontested. All of the Defendants were convicted of violating 18 U.S.C. § 922(g), which forbids from possessing firearms individuals who have been convicted of crimes that are punishable with over one year of imprisonment. "In general, the law punishes violation of this ban by up to 10 years' imprisonment." Johnson II, 135 S.Ct. at 2555 (citing 18 U.S.C. § 924(a)(2)). "But if the violator has three or more earlier convictions for a 'serious drug offense' or a 'violent felony,' [ACCA] increases his prison term to a minimum of 15 years and a maximum of life." Id. (citing 18 U.S.C. § 924(e)). This was the case for the Defendants, who all received mandatory sentences of at least 15 years that relied at least in part on their predicate convictions under R.I. Gen. Laws § 11-5-2(a).

         After the Defendants received their ACCA-enhanced sentences, the Supreme Court decided Johnson II. That case pertained to ACCA's definition of "violent felony" for purposes of determining whether a defendant's prior convictions trigger the statute's 15-year mandatory sentence. Under ACCA, a "violent felony" is

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). Johnson II held that the last of these clauses -- known as the "residual clause" (and emphasized above), 135 S.Ct. at 2563 -- was void for vagueness. Then, in Welch v. United States, the Supreme Court held that Johnson II had announced a new substantive rule that, as a result, would apply retroactively on collateral review. 136 S.Ct. 1257, 1268 (2016). So today, ACCA-enhanced sentences that depended on predicate convictions for offenses qualifying as violent felonies under ACCA's residual clause are now invalid unless those offenses are either one of the offenses enumerated in § 924(e)(2)(B)(ii) or meet the force clause's definition of "violent felony," see id. § 924(e)(2)(B)(i).

         The Defendants' § 2255 motions asserted that their convictions under R.I. Gen. Laws § 11-5-2(a) are not convictions for violent felonies under the force clause.[1] The Defendants therefore argued that they do not have the three predicate convictions necessary support their 15-year-plus sentences under ACCA. R.I. Gen. Laws § 11-5-2(a) establishes, in pertinent part, that "[e]very person who shall make an assault or battery, or both, with a dangerous weapon, or with acid or other dangerous substance, or by fire, or an assault or battery that results in serious bodily injury shall be guilty of a felony assault." Id. The statute does not expressly identify the mental state necessary to commit A/BDW. This ends up complicating things.

         B.

         The Defendants' motions came before two different district judges, who, with the parties' consent, held a joint hearing and resolved the motions in a jointly issued memorandum and order. United Statesv.Sabetta, 221 F.Supp.3d 210, 213 n.1 (D.R.I. 2016).[2] That memorandum and order explained that "Chief Judge Smith and ...


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