United States v. Oliveira ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 11-2020
11-2071
UNITED STATES,
Appellee, Cross-Appellant,
v.
ANTHONY OLIVEIRA,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
John H. Cunha, Jr., Charles Allen Hope, Jaime J. Zambrana and
Cunha & Holcomb, P.C. on brief for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney on brief for appellee.
October 3, 2012
Per Curiam. The government has appealed from the 100-
month sentence imposed upon Anthony Oliveira following his guilty
plea to being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1). We agree with the government
that, in view of this court's recent decision in United States v.
Rodriguez, 659 F.3d 117 (1st Cir. 2011), which issued after
Oliveira was sentenced, the district court erred in its
determination that Oliveira's Massachusetts convictions of larceny
from a person did not qualify as "crimes of violence" under the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). We also
agree with the government and the district court that Oliveira's
Massachusetts conviction of resisting arrest qualifies as a third
ACCA predicate.1 Therefore, we vacate the sentence and remand for
Oliveira to be resentenced under the ACCA.
The government identified four prior Massachusetts
convictions which it maintained qualified as predicates under the
ACCA's residual clause: two convictions of larceny from a person,
one conviction of resisting arrest, and one conviction of assault
and battery on a prison guard. Oliveira challenged the use of any
1
Because only three predicates are required, it is
unnecessary to address Oliveira's argument that his conviction of
assault and battery on a prison guard did not qualify as an ACCA
predicate, an issue which the district court did not reach.
However, we note that we recently held that a Massachusetts
conviction for assault and battery on a correctional officer
qualifies categorically as a crime of violence under U.S.S.G. §
2K2.1(a)(2). See United States v. Jonas, 689 F.3d 83, 89 (1st Cir.
2012).
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of those convictions as ACCA predicates on the ground that they did
not qualify as "violent felonies" under the ACCA's residual clause.
The district court agreed that the Massachusetts offense of larceny
from a person did not qualify. See United States v. Oliveira, 798
F.Supp.2d 319, 330-333 (D.Mass. 2011).
After Oliveira was sentenced, and while this appeal was
pending, we ruled in Rodriguez, supra, that the Massachusetts
offense of larceny from a person qualifies as a "violent felony"
under the ACCA's residual clause, reaffirming our earlier holding
in United States v. DeJesus, 984 F.2d 21, 25 (1st Cir. 1993), that
the offense was a "crime of violence" under the residual clause of
U.S.S.G. § 4B1.2(a)(2). See Rodriguez, 659 F.3d at 119-120.
Oliveira does not dispute that Rodriguez applies to his case, but
he argues instead that it was wrongly decided. We are precluded
from considering that argument by the law of the circuit doctrine
under which we are "bound by a prior panel decision, absent any
intervening authority." United States v. Grupee, 682 F.3d 143, 149
(1st Cir. 2012).
The law of the circuit doctrine also forecloses
Oliveira's other challenges to being sentenced as a career
criminal. We recently reaffirmed our holding in United States v.
Almenas, 553 F.3d 27, 32-35 (1st Cir. 2009) and United States v.
Weekes, 611 F.3d 68, 72-73 (1st Cir. 2010), that a Massachusetts
conviction for resisting arrest qualifies as a "crime of violence"
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under the Guidelines. See Grupee, 682 F.3d at 149. We declined to
consider Grupee's contention that Almenas erred in applying the
test under Begay v. United States, 553 U.S. 137 (2008), "owing to
the law of the circuit doctrine." Id. Oliveira has failed to
identify any supervening authority that would bring his case within
an exception to the law of the circuit doctrine.
Similarly, Oliveira's constitutional challenge to the
residual clause is foreclosed by our decision in United States v.
Hart, 674 F.3d 33, 41 n.3 (1st Cir. 2012) (rejecting argument that
residual clause is unconstitutionally vague).
The sentence is vacated and the case is remanded for
resentencing in accordance with this opinion.
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