FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. F. Dennis Saylor, IV, U.S. District Judge
A. Pickett, with whom Pickett Law Offices, P.C., was on
brief, for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Torruella, Lynch, and Kayatta, Circuit Judges.
Lassend appeals from the district court's denial of his
§ 2255 petition. United States v. Lassend, No.
CR 10-40019, 2017 WL 2960518 (D. Mass. July 11, 2017),
certificate of appealability granted, 265 F.Supp.3d
103 (D. Mass. 2017). He argues that his sentence as an armed
career criminal under the Armed Career Criminal Act
("ACCA") is unconstitutional under Supreme Court
precedent decided after his earlier appeal from his
conviction was rejected in 2013.
affirm the district court and find that the three prior
convictions are ACCA predicates. We again hold that a
Massachusetts conviction for assault with a deadly weapon is
a predicate offense under the ACCA's force clause. As to
Lassend's New York conviction for attempted second-degree
assault, we conclude that a conviction under New York Penal
Law § 120.05(7) qualifies as a violent felony under the
ACCA's force clause. We reach the same conclusion as to
Lassend's conviction for New York first-degree robbery
under New York Penal Law § 160.15(4). Our analysis is
consistent with that of many other circuits, and as to the
New York first-degree robbery conviction, consistent with the
views of the Second Circuit in Stuckey v. United
States, 878 F.3d 62 (2d Cir. 2017), petition for
cert. filed, No. 17-9369 (U.S. June 11, 2018).
Lassend's sentence stands.
Lassend's Arrest and Conviction
2010, two individuals in Fitchburg, Massachusetts called 911
to report that Lassend had been walking up and down the
street with a gun and firing shots into the air. Police
officers placed Lassend under arrest at the scene. The
officers recovered ammunition from Lassend's pocket and
found a gun in an unlocked closet in the common hallway of a
nearby apartment building. A search of Lassend's
residence uncovered a holster that appeared to fit that gun,
and additional ammunition.
September 2010, Lassend was indicted on charges of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (Count One), and being a felon in possession
of ammunition, also in violation of § 922(g)(1) (Count
Two). After a five-day trial, the jury convicted Lassend of
both counts in October 2011.
Original District Court Sentencing Proceedings
Probation Office's 2012 presentence report
("PSR") determined that Lassend was subject to a
sentencing enhancement under the ACCA because he had at least
three prior convictions for a violent felony or a serious
drug offense. The PSR identified four of his prior
convictions as qualifying ACCA predicates: (1) a 1992 New
York conviction for "Robbery in First Degree: Forcible
Theft Armed with Deadly Weapon"; (2) a 1997 New York
conviction for "Robbery in First Degree: Display What
Appears to [Be a] Firearm"; (3) a 1998 New York
conviction for "Assault in Second Degree"; and (4)
a 2010 Massachusetts conviction for "Assault and Battery
by Dangerous Weapon" ("ABDW") and
"Assault by Dangerous Weapon" ("ADW").
determined that Lassend's Guidelines sentencing range
("GSR") was 235 to 293 months, with a mandatory
minimum of 15 years under the ACCA. Lassend objected, inter
alia, in the district court to the PSR's conclusion that
he was subject to an ACCA enhancement, arguing that the
residual clause of the ACCA was "unconstitutionally void
sentencing, in March 2012, the district court overruled
Lassend's objections to the PSR, including his objection
to the PSR's determination that he was subject to an ACCA
enhancement. Lassend stated that he had no other objections
to the PSR "just as long as [his] objection to the
[ACCA] on grounds that it's constitutionally void for
vagueness [wa]s preserved." The district court then
adopted the PSR's calculations and determined that
Lassend's GSR was 235 to 293 months. After hearing from
both parties, the district court sentenced Lassend to a term
of imprisonment of 235 months on each count, to be served
concurrently, followed by a five-year term of supervised
filed a direct appeal challenging his conviction. See
United States v. Lassend, 545 Fed.Appx. 3 (1st Cir.
2013) (per curiam). He did not appeal his sentence, nor argue
that the residual clause of the ACCA was unconstitutional.
See id. Lassend's conviction was affirmed in
October 2013. See id. Lassend did not petition for
Habeas Corpus Proceedings Before the District Court
Supreme Court later decided Johnson v. United States
("Johnson II"), 135 S.Ct. 2551 (2015), on
June 26, 2015. On July 20, 2015, Lassend filed a
supplemental pro se petition under § 2255, arguing
that he should not have been sentenced under the ACCA in
light of Johnson II. The government opposed his
the district court appointed counsel to represent Lassend in
the § 2255 proceedings, Lassend filed another
supplemental petition in which he argued that his sentence
was unconstitutional because the government could not show
that his criminal record contained violent felonies under the
ACCA's force clause, 18 U.S.C. § 924(e)(2)(B)(i).
Consequently, he argued, his ACCA sentence must have been
based on predicates that relied on the ACCA's residual
clause, 18 U.S.C. § 924(e)(2)(B)(ii), which was declared
unconstitutionally vague in Johnson II, see
135 S.Ct. at 2563. In particular, Lassend argued that (1) his
New York conviction for attempted second-degree assault does
not qualify as a violent felony because the crime can be
committed recklessly; (2) his New York first-degree robbery
convictions do not qualify as violent felonies because they
do not require the use of violent force; (3) his
Massachusetts ABDW conviction does not qualify as a violent
felony because the crime can be committed recklessly and by a
mere touching; and (4) his Massachusetts ADW conviction does
not qualify as a violent felony because it does not require
the intentional use of violent force.
government opposed these arguments for the same reasons it
now gives in support of the district court's
decision.It also argued those issues should not be
reached because Lassend had procedurally defaulted his
Johnson II claims. We deal with the procedural
default and merits arguments below.
note that the government obtained the indictment and
plea-colloquy transcript for Lassend's New York attempted
second-degree assault conviction and placed them in the
record before the district court. The government argued that
although the indictment did not cite the statutory provision
for the counts charged, it contained language mirroring the
statutory language of New York Penal Law § 120.05(2) as
to the first count and New York Penal Law § 120.05(7)
(prisoner assault) as to the second count. The government
argued that the plea-colloquy transcript showed that Lassend
pled guilty to the second count of the indictment, and,
consequently, the applicable statutory provision for his
conviction was § 120.05(7).
hearing on Lassend's § 2255 petition in May 2017,
Lassend argued for the first time that his New York
first-degree robbery conviction under New York Penal Law
§ 160.15(4) is not a violent felony because the statute
does not require the actual use of a dangerous weapon to
threaten the victim, nor, he says, does it require that the
perpetrator himself intentionally use violent force.
11, 2017, the district court denied Lassend's § 2255
petition in a careful decision. See Lassend, 2017 WL
2960518, at *1. Addressing Lassend's procedural default
on his ACCA claim, the district court noted that the Supreme
Court had rejected vagueness challenges to the ACCA's
residual clause in James v. United States, 550 U.S.
192 (2007), overruled by Johnson II, 135 S.Ct. 2551,
and Sykes v. United States, 564 U.S. 1 (2011),
overruled by Johnson II, 135 S.Ct. 2551, and those
decisions were controlling at the time of Lassend's
sentencing and direct appeal. Lassend, 2017 WL
2960518, at *8. Moreover, Lassend's direct appeal was
filed, argued, and decided before the Supreme Court granted
certiorari in Johnson II. Id. As such, the
district court found that a Johnson II claim was not
reasonably available to Lassend at the time of his direct
appeal, thereby establishing cause. Id. The district
court also reasoned that the prejudice inquiry merged with
Lassend's merits claims because if Lassend could show
that he should not have been sentenced under the ACCA in
light of Johnson II, "his failure to raise that
claim obviously resulted in prejudice." Id.
the merits of Lassend's claims, the district court first
found that, under clear First Circuit precedent,
Lassend's Massachusetts ADW conviction qualifies as a
violent felony under the ACCA's force clause.
Id. at *10. The district court also found that
Lassend's New York attempted second-degree assault
conviction qualifies as an ACCA predicate under the force
clause. Id. at *10-12. Applying the modified
categorical approach, the district court determined that
Lassend had been convicted under New York Penal Law §
120.05(7) because the relevant Shepard documents --
the state court indictment and the plea-colloquy transcript
-- showed that Lassend had pled guilty to the second count of
the indictment, the language of which mirrored that of §
120.05(7). Lassend, 2017 WL 2960518, at *11. The
district court rejected Lassend's argument that a
conviction under § 120.05(7) does not constitute a
violent felony because a perpetrator can violate subsection
(7) without using violent force in causing injury.
Id. at *11-12. In doing so, the district court noted
that the Supreme Court's decision in United States v.
Castleman, 134 S.Ct. 1405 (2014), undermined cases
suggesting that the indirect application of force cannot
involve the use of physical force as required by the force
clause. Lassend, 2017 WL 2960518, at *12.
district court next found that Lassend's 1997 New York
first-degree robbery conviction qualifies as a violent
felony. Id. at *12-16. It applied the modified
categorical approach to determine that Lassend had been
convicted under § 160.15(4). Id. at *13. It
then determined that the "[d]isplays what appears to be
a . . . firearm" element of that subsection involves the
threatened use of physical force, thereby qualifying the 1997
conviction as a violent felony. Id. at *14-15
(alteration in original) (quoting N.Y. Penal Law §
160.15(4)). The district court also determined that §
160.15(4) satisfies both the intent requirement of Leocal
v. Ashcroft, 543 U.S. 1 (2004), and the force
requirement of Johnson v. United States
("Johnson I"), 559 U.S. 133 (2010).
Lassend, 2017 WL 2960518, at *16 (citing Stuckey
v. United States, 224 F.Supp.3d. 219, 225-230 (S.D.N.Y.
district court accordingly held that Lassend was properly
sentenced as an armed career criminal. Id.
district court granted Lassend a certificate of appealability
on Lassend's claim that his ACCA sentence violates the
individual in federal custody may petition for
post-conviction relief under 28 U.S.C. § 2255(a) if,
inter alia, the individual's sentence "was imposed
in violation of the Constitution or laws of the United
States" or "is otherwise subject to collateral
attack." Id. The petitioner bears the burden of
proof. Wilder v. United States, 806 F.3d 653, 658
(1st Cir. 2015) (citing David v. United States, 134
F.3d 470, 474 (1st Cir. 1998)). When reviewing a district
court's denial of a § 2255 petition, we review the
district court's legal conclusions de novo and any
factual findings for clear error. Id. (citing
Owens v. United States, 483 F.3d 48, 57 (1st Cir.
2007), abrogated on other grounds by Weaver v.
Massachusetts, 137 S.Ct. 1899 (2017)).
not raised on direct appeal may not be raised on collateral
review unless the petitioner shows cause and prejudice."
Massaro v. United States, 538 U.S. 500, 504 (2003)
(citing United States v. Frady, 456 U.S. 152, 167-68
(1982); Bousley v. United States, 523 U.S. 614, 622
(1998)). The procedural default rule is "adhered to by
the courts to conserve judicial resources and to respect the
law's important interest in the finality of
petitioner has cause for procedurally defaulting a
constitutional claim where that claim was "so novel that
its legal basis [wa]s not reasonably available to
counsel" at the time of the default. Reed v.
Ross, 468 U.S. 1, 16 (1984). Despite that broad language
of reasonableness, the Supreme Court also held in
Reed that a claim "will almost certainly have
[had] . . . no reasonable basis" when the claim is based
on a "constitutional principle that had not been
previously recognized but which is held to have retroactive
application," and the constitutional principle arises
from a decision in which the Court (1) "explicitly
overrule[s] one of [its own] precedents," or (2)
"overtur[ns] a longstanding and widespread practice to
which [the] Court ha[d] not spoken, but which a
near-unanimous body of lower court authority ha[d] expressly
approved." Id. at 17. We are bound by those
time of Lassend's direct appeal in 2013, the Supreme
Court's decisions in James and Sykes
were still good law. Both of those decisions had rejected
challenges to the ACCA's residual clause on
constitutional vagueness grounds. Sykes, 564 U.S. at
28 (Scalia, J., dissenting); James, 550 U.S. at 210
n.6. Johnson II expressly overruled James
and Sykes in relation to the ACCA. See 135
S.Ct. at 2563. Even though Lassend had made a vagueness
argument in the district court and had abandoned it on
appeal, under Reed, we find that Lassend has shown
cause for his procedural default. See United States v.
Snyder, 871 F.3d 1122, 1127 (10th Cir. 2017) (holding