United States v. Carrigan ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-1916
UNITED STATES OF AMERICA,
Appellee,
v.
LAMAR CARRIGAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Stahl and Thompson,
Circuit Judges.
Sharon Fray-Witzer, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
July 19,2013
TORRUELLA, Circuit Judge. Lamar Carrigan ("Carrigan")
pled guilty to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). He did so without
a plea agreement and without reserving the right to appeal the
denial of his motion to suppress the firearm. He was sentenced
under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e),
to 15 years' imprisonment and three years of supervised release.
He appeals his conviction on several grounds. First, he
argues that the entry of a guilty plea without a reservation of the
right to appeal the denial of his motion to suppress was the result
of ineffective assistance of counsel. Second, he contends that he
suffered prejudice from the failure to reserve the right to appeal
said motion and that the police neither had reasonable suspicion to
stop him nor probable cause to arrest him. Finally, regarding his
sentence, Carrigan argues that he does not qualify as an armed
career criminal ("ACC"), and that the ACCA's residual clause is
unconstitutionally vague. We affirm.
I. Factual and Procedural Background
According to 911 call transcripts, at 1:30 a.m. on
February 1, 2008, the Boston Police Department ("BPD") received a
911 call from a motorist who said that the driver of an Acura had
pulled up alongside him and identified himself as "the Boston
Police" at the intersection of Columbia Road and Washington Street
in Boston. The driver of the Acura asked if the motorist was
-2-
alone, then told him to pull over. When the caller pulled his
vehicle over, the driver of the Acura got out of his car,
approached the motorist's vehicle and pointed a gun at the
motorist's face. The motorist put his car in drive and sped away.
Soon after, the Acura sped past the motorist down Quincy Street
toward Beverly. The caller reported to the 911 operator that he
was following the Acura and its license plate number was 446A20.
The motorist said the color of the Acura was navy blue or black,
and identified the driver as a black man wearing a sideways,
brown-and-blue hat (which he also described as two-toned), a black
leather jacket and baggy jeans. The caller told the dispatcher his
name was Jasmanie González, a name the police could not later find
by searching police records. He also provided his phone number so
he could be called back.
When the 911 dispatcher called the motorist back and
asked him where he was because an officer needed to take a report,
the caller stated that he was in Roslindale. However, he did not
provide his home address, declined to file a police report and
refused to be involved in the matter any further. The dispatcher
called the motorist a second time for additional information before
broadcasting the report to police units in the area. The
dispatcher detailed the incident and gave the caller's description
of the car, driver, and the reported license plate number.
-3-
According to BPD Sergeant Thomas Brooks' testimony during
the suppression hearing, ten minutes after the dispatcher's
broadcast, Sgt. Brooks observed a vehicle fitting the description
of the car described by the caller parked on Southwood Street,
Boston, a short distance from a pub. The car was unoccupied.
Sergeant Brooks reported the car's license plate number to the
dispatch as 446AT2. The dispatcher then responded that the car was
registered to an owner in Norwell. Another officer then broadcast
that he believed the car was used by "Lamar Carrington," who was
not the registered owner reported by dispatch. At this time, more
officers arrived in the area, including Sergeant Detective John
Fitzgerald, who was in plain clothes and driving an unmarked police
car. Fitzgerald, who also testified, parked across the street from
the Acura. Several marked police cars waited by the nearby
intersection of Southwood and Edgewood, where the Acura would most
likely have to pass.
Just before 2:00 a.m., Fitzgerald broadcast over the
radio that he saw the lights in the Acura turn on, indicating that
the car was being unlocked by remote control. Soon after, a black
male wearing a hat, leather jacket and jeans entered the vehicle
and began driving toward the intersection where the marked BPD cars
waited. Fitzgerald followed the Acura, maintaining a distance of
60 to 70 feet. As the Acura came around a curve, it was possible
for the driver to see the marked cars at the intersection. The
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driver of the Acura then made a right turn and pulled into a
residential driveway, driving to the very end of it and turning the
car's lights off. Fitzgerald stopped his car and told all officers
in the area to "stand by."
The driver backed down the driveway, opened his door
briefly, and then accelerated back up the driveway. Several
officers, some with their weapons drawn, approached the vehicle.
The officers identified themselves as Boston Police and told the
driver to raise his hands. One of the officers opened the
passenger's side door, turned off the ignition, and put the car in
park. Another officer then pulled the driver, who was later
identified as Carrigan, out of the driver's side door. Carrigan
was handcuffed, pushed to the ground, and pat-frisked. The
officers found a loaded semi-automatic firearm in Carrigan's jacket
pocket.
On November 18, 2010, after being indicted on one count
of being a felon in possession of a firearm, Carrigan filed a
motion to suppress the firearm and ammunition, alleging that they
were the result of an unlawful search and seizure. Carrigan
contended that the officers lacked probable cause to arrest him and
lacked reasonable suspicion to even stop him. The district court
held a hearing on February 8, 2011, on Carrigan's motion to
suppress, where some of the recorded 911 calls were played. The
judge stated that there was not much of a question on the
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reasonable suspicion point, and that it was likely that probable
cause for the arrest would be established as well, but wanted to
listen to the recordings in full before formally disposing of the
motion. The judge denied Carrigan's motion to suppress on February
14, 2011, via electronic order, noting that a memorandum would
follow.
On March 3, 2011, Carrigan pled guilty. He did so
without securing a plea agreement and without reserving the right
to appeal the denial of his suppression motion. At the plea
hearing, the government noted that Carrigan would be facing a
minimum of 15 years in prison because of his status as an ACC.
Carrigan's attorney stated to the court that he had explained this
to Carrigan, but also said he intended to raise objections to
Carrigan's status as an ACC at the sentencing hearing. The court
accepted Carrigan's plea.
A Pre-Sentence Report ("PSR") that issued on April 15,
2011, classified Carrigan as an ACC. Carrigan challenged his
status as an ACC, arguing that he did not possess the requisite
three prior convictions for violent felonies.
Based on Guideline calculations and Carrigan's ACC
status, the court sentenced him to the mandatory minimum of 15
years' imprisonment as prescribed by the ACCA. After the sentence
was imposed, defense counsel asked the judge to issue the
previously promised memorandum regarding the denial of Carrigan's
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motion to suppress. The judge responded with surprise, stating
that, because Carrigan had pled guilty shortly after the denial and
did not reserve his right to appeal, she had not written a
memorandum and would not issue one.
Carrigan filed this timely appeal. We take each of his
arguments in turn.
II. Analysis
A. Ineffective Assistance of Counsel
Carrigan's first argument on appeal is that his counsel
was ineffective because he advised Carrigan to enter a straight
plea without informing him of the consequences of not preserving
his right to appeal the denial of his suppression motion. In
support of his argument, he posits that his attorney was actually
unaware that Carrigan would be unable to appeal the denial of the
motion to suppress if he pled without making a reservation.
According to Carrigan, it is apparent from the record that his
attorney was surprised when the district court stated he would be
unable to appeal the order.1
1
Carrigan points to the following exchange, which took place
after the sentencing:
MR. DEMISSIE: Your Honor, we had a motion to suppress
hearing, and that was denied, and a finding and rulings
have not been filed.
THE COURT: But he's pled guilty. He pled guilty without
--
MR. DEMISSIE: Prior to pleading guilty, you had a motion
-7-
To show that his Sixth Amendment right to counsel was
violated, Carrigan must establish that: (1) his attorney's
performance was deficient under an objective standard of
reasonableness; and (2) his defense suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To
demonstrate prejudice, Carrigan must "show a reasonable probability
that the end result of the criminal process would have been more
favorable" but for defense counsel's deficient performance.
Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012); see also United
States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012). Failure to
satisfy one of the Strickland prongs is fatal and, therefore, we
are free to tackle either prong first. See United States v.
Caparotta, 676 F.3d 213, 219-220 (1st Cir. 2012).
to suppress --
THE COURT: No, I understand that, but he pled guilty, not
a conditional plea, not a plea that would have preserved
his rights, but he pled guilty fully.
MR. DEMISSIE: Yes.
THE COURT: So I didn't finish the findings because once
he pleads guilty and doesn't preserve that issue, there's
really no issue. This was a full plea, not a conditional
one, so I don't think that you have an appellate basis on
that at all.
MR. DEMISSIE: From the denial of the motion to suppress?
THE COURT: That's right, because if you want to plea and
preserve your legal rights, you have to do it as a
conditional plea . . . .
-8-
As a general rule, ineffective assistance of counsel
claims must be raised via a collateral attack, and not via direct
appeal. United States v. Soldevila-López, 17 F.3d 480, 485 (1st
Cir. 1994). We have, however, long recognized that "where the
critical facts are not genuinely in dispute and the record is
sufficiently developed to allow reasoned consideration of an
ineffective assistance claim," we can entertain it. Caparotta, 676
F.3d at 219 (quoting United States v. González-Arimont, 268 F.3d 8,
13 (1st Cir. 2001)). Both parties agree that the record is
sufficiently developed for this court to determine if Carrigan
suffered prejudice by not reserving the right to appeal. For the
reasons stated below, we find that the district court correctly
denied the motion to suppress and that, therefore, Carrigan fails
to show he suffered prejudice. Consequently, we do not reach the
question of counsel's ineffectiveness. See Caparotta, 676 F.3d at
219-20.
B. The Motion to Suppress
1. Reasonable Suspicion to Conduct a Terry Stop
In reviewing the denial of a motion to suppress, we will
review findings of fact for clear error and legal conclusions de
novo. United States v. Brown, 500 F.3d 48, 58 (1st Cir. 2007). In
this case, there are no factual findings for us to review, given
that the district court did not have to issue the memorandum
setting forth the rationale for its denial of the motion to
-9-
suppress after Carrigan pled. We thus review Carrigan's Fourth
Amendment claim de novo.
Carrigan first aims to establish that the police unduly
relied on the information provided by an anonymous 911 tipster and
that they lacked reasonable suspicion to conduct an investigatory
stop.
Our inquiry in this regard is, of course, guided by the
Supreme Court's watershed decision in Terry v. Ohio, 392 U.S. 1(1968). In Terry, the Court delineated the baseline test for
determining the constitutionality, under the Fourth Amendment, of
investigatory stops conducted by police officers. Brown, 500 F.3d
at 54. Under Terry, "[p]olice officers may lawfully effect an
investigatory stop as long as they can 'point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant' such an intrusion." Id.(citing Terry, 392 U.S. at 21). Reasonable suspicion is a concept
that lies somewhere between a visceral hunch and probable cause.
See Illinois v. Wardlow, 528 U.S. 119, 123 (2000) ("reasonable
suspicion" is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the
evidence" but still requires "at least a minimal level of objective
justification for making the stop"). Whether the officers had
enough information to possess reasonable suspicion "must be
evaluated through a broad-based consideration of all the attendant
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circumstances." Brown, 500 F.3d at 54 (citing Florida v. Royer,
460 U.S. 491, 500 (1983); United States v. Chhien, 266 F.3d 1, 5
(1st Cir. 2001)).
As recounted above, a 911 caller reported being the
victim of an assault. He provided a description of the alleged
perpetrator of the crime and of the car he was driving, a license
plate number, the direction the vehicle was traveling and a phone
number where he was successfully reached twice. He provided some
of this information to the 911 operator while the purported
perpetrator's vehicle was still allegedly in his sight. He was
then called back twice and twice he recounted the incident in a way
that seems reasonably consistent and coherent.
Carrigan argues that the description of the clothes the
alleged perpetrator was wearing differed in several aspects from
what Carrigan was wearing when the police first observed him
approaching the car, and that, in any case, the description was
corroborated only in innocent details. The caller said the
perpetrator of the alleged assault was wearing a brown-and-blue hat
(which he also described as two-toned), a black leather jacket and
baggy jeans. Sgt. Fitzgerald testified during the evidentiary
hearing that, when he first spotted Carrigan coming out of the bar,
he was wearing a blue and orange hat (with alternating blue and
orange panels all the way around), a brown leather jacket with
orange square patches and black jeans. We think that the
-11-
descriptions sufficiently matched and that, although the caller
stated that the hat was brown and blue, and it turned out to be
orange and blue, the discrepancy is not so large as to warrant a
finding of an improper identification. On the same token, the
caller described the jacket as black leather when, according to
Sgt. Fitzgerald, it was a leather jacket with brown and orange
patches. We, however, do not think the lack of a perfect match is
dispositive in this case.
Carrigan further argues that, aside from corroboration of
innocent and readily observable details regarding his general
appearance, the tipster did not provide information that could be
deemed reliable. In fact, he says, the caller only provided a
license plate and car type, which are also readily observable
elements that could have been used, for example, by someone trying
to frame him. He cites United States v. Monteiro, 447 F.3d 39 (1st
Cir. 2006), in support of his argument that corroboration of a
license plate number does not provide reasonable suspicion. In
Monteiro, we reviewed the reliability of a tip received through a
third party that included a license plate number for a car that was
spotted by police days after the tip was received. We found that
the mere offering of a license plate number by a tipster, although
providing "a solid means of identi[fying]" the suspect, did nothing
to corroborate the tipster's assertion that the suspect had
committed a crime. Id. at 47. We also stated, however, that the
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amount of information "required to establish the requisite quantum
of suspicion" depends on the reliability of the tip. Id. at 48.
That is, the more unreliable a tip appears, the more information
will be required to establish reasonable suspicion.
Carrigan's argument might be stronger if the police had
relied solely on the caller's information and moved in to detain
Carrigan as soon as they spotted him leaving the bar and walking to
the Acura. But the information that the police had at the time
they conducted the Terry stop did not consist of information
provided by the 911 caller alone. Indeed, once Carrigan got into
the Acura, the police began observing him. They saw that, after
driving down the street, Carrigan apparently attempted to avoid
several police cars that were blocking the upcoming intersection
and acted suspiciously when he entered a driveway, drove to the
very end of it and shut off the car's lights. The police then
further observed Carrigan back down the driveway almost all the way
to the street, open and close his door and drive up the driveway
once again. The Supreme Court has stated that "evasive behavior is
another pertinent factor in determining reasonable suspicion."
Wardlow, 528 U.S. at 124. Given what the officers already knew,
they reasonably interpreted Carrigan's behavior as unprovoked
flight warranting further investigation. Although it is well-
settled that individuals have a fundamental right to be left alone,
it is also settled that "[f]light, by its very nature, is not
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'going about one's business'; in fact, it is just the opposite."
Id. at 125. It was at this point, once they had matched the
description provided by the caller and had observed Carrigan
behaving suspiciously, that the officers decided to move in.
A broad-based consideration of the different pieces of
individual information the police possessed up to the point of the
stop leads us to conclude that the officers had reasonable
suspicion to initiate a Terry stop. See Brown, 500 F.3d at 54. We
emphasize that it is the sum total of the available information
that justifies the finding of reasonable suspicion; no single
individual piece of information provided by either the caller or by
the police's direct observation of Carrigan would be enough, on its
own, to justify the Terry stop. We now turn to Carrigan's second
argument regarding suppression: that the Terry stop became a de
facto arrest, and that the police officers lacked probable cause to
arrest him.
2. Probable Cause to Make an Arrest
According to Sgt. Fitzgerald, once Carrigan had driven up
the driveway a second time, several officers, including himself,
approached the Acura. Some of the officers had their guns drawn.
The officers yelled to Carrigan to show his hands. Two officers
then entered the Acura through the passenger-side door, turned off
the engine and took physical control of Carrigan. Once the
officers had Carrigan on the ground and on his stomach, they
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handcuffed him and patted him down. They discovered a firearm in
the front left pocket of his jacket. According to the PSR,
Carrigan disobeyed the command to show his hands. Carrigan did not
dispute this assertion in his objections to the PSR.
Carrigan argues that, as soon as the officers physically
went into the car and pulled him out, the Terry stop became a de
facto arrest. He contends that, since the officers lacked probable
cause to arrest him, the seizure of the firearm occurred in the
context of an illegal arrest and should be suppressed. The
government, for its part, argues that the police may take physical
control of and handcuff a person without turning a Terry stop into
a de facto arrest when it is necessary "to protect their own safety
and the safety of others in the area." United States v. Mohammed,
630 F.3d 1, 6 (1st Cir. 2010), cert denied 131 S. Ct. 2127 (2011).
A de facto arrest materializes "when a reasonable person
in the suspect's position would have understood, given the
circumstances, that he was essentially under arrest." Id.. It can
safely be said that when reasonable people are forcefully pulled
out of a car and handcuffed, they will generally understand
themselves to be under arrest. We have stated, however, that due
to the wide and unpredictable array of scenarios officers face in
the course of confronting suspects, "the touchstone is the
reasonableness of the measure undertaken to quell or confirm the
officers' suspicions." Id. (quoting Klaucke v. Daly, 595 F.3d
-15-
20, 25 (1st Cir. 2010)) (alteration and internal quotation marks
omitted). When the government intends to justify the use of
handcuffs in the context of a Terry stop it must "point to some
specific fact or circumstance that could have supported a
reasonable belief" that the use of handcuffs was necessary. United
States v. Meadows, 571 F.3d 131, 141 (1st Cir. 2009) (quoting
United States v. Acosta-Colón, 157 F.3d 9, 18-19 (1st Cir. 1998)).
The government has indeed pointed to specific
circumstances that support the officers' reasonable belief that
restraining Carrigan with handcuffs was necessary to conduct the
Terry stop. It specifically argues that Carrigan had not put the
car in park and that the engine was still running when the officers
approached the vehicle, which increased the dangerousness of the
situation given that he could have used the car as a weapon. The
evidence presented during the evidentiary hearing, i.e., Sgt.
Fitzgerald's testimony and the photographs of the driveway,
established that the driveway was narrow. Sgt. Fitzgerald
testified that the space between the fence and the driver side of
the car was under 18 inches. The government also points out that
the officers suspected that Carrigan was armed and that, if
cornered, he could react violently. Given the confined space in
which the police encountered Carrigan, the fact that the car was
still running and in drive, and the fact that the police officers
reasonably suspected that Carrigan was armed, we must conclude that
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the officers acted reasonably in making sure Carrigan was seized
and handcuffed as part of the investigatory stop. Therefore, the
forceful seizure of Carrigan and the use of handcuffs in this
particular case did not turn the lawful Terry stop into a de facto
arrest because the officers had a reasonable belief that such
measures were necessary to protect their own safety. We now turn
to Carrigan's challenge to his sentence.
C. Sentencing under the ACCA
1. Applicable Law
Whether a defendant qualifies as an ACC is a question of
law that we review de novo. United States v. Mastera, 435 F.3d 56,
59 (1st Cir. 2006). Accordingly, we review de novo the legal
question of whether a prior conviction qualifies as a "violent
felony." United States v. Sánchez-Ramírez, 570 F.3d 75, 81 (1st
Cir. 2009).
Carrigan pled guilty to being a felon in possession of
an illegal firearm. See 18 U.S.C. § 922(g)(1). The ACCA
prescribes a 15-year mandatory minimum sentence for an offender who
has three prior convictions "for a violent felony or a serious drug
offense" when the unlawful possession of a firearm occurred. Id.§ 924(e)(1). "Violent felony" is defined as:
any crime punishable for a term exceeding one
year . . . involving the use or carrying of a
firearm, knife, or destructive device . . .
that: (i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another [the force
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clause]; 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 [the residual clause].
Id. at 924(e)(2)(B).
In determining whether a prior conviction constitutes a
violent felony under the ACCA, courts employ a categorical
approach. United States v. Richards, 456 F.3d 260, 262-63 (1st
Cir. 2006). We thus determine if the statutory definition of the
prior offense fits the ACCA's definitions of "violent felony" under
either clause. In performing this categorical inquiry, courts
"typically must limit [their] inquiry to 'the fact of conviction
and the statutory definition of the prior offense.'" United States
v. Moore, 286 F.3d 47, 49 (1st Cir. 2002) (quoting Taylor v. United
States, 495 U.S. 575, 602 (1990)); see also United States v.
Holloway, 630 F.3d 252, 256 (1st Cir. 2011) ("This approach is
deemed categorical because we may consider only the offense's legal
definition, forgoing any inquiry into how the defendant may have
committed the offense."). If a prior conviction under state law is
at issue, "[s]tate court construction of the relevant state law
dictates our result." United States v. Hart, 674 F.3d 33, 41 (1st
Cir. 2012).
Determining whether a prior conviction falls within the
scope of the residual clause is somewhat more difficult when the
prior conviction relates to a crime proscribed by a statute that
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covers multiple offenses. Holloway, 630 F.3d at 256-57. If that
is the case, a set of rules dictates when the conviction may be
considered for purposes of the ACCA and when it may not. A court
must first determine which offense or offenses served as the
offense or offenses of conviction by looking at "a restricted set
of documents (e.g., indictment, plea colloquy, jury instructions)."
Id. at 257 (quoting Shepard v. United States, 544 U.S. 13, 26
(2005)). When the documents do not identify which of the offenses
proscribed was the offense of conviction, the conviction may be
used for purposes of the ACCA only when all of the offenses
proscribed in the particular statute qualify as violent felonies
under the ACCA. Id. If that is not the case, the conviction may
not be used as an ACCA predicate. Id.
2. Carrigan's prior convictions
Carrigan's prior convictions, all under Massachusetts
law, include: (1) a March 1996 conviction for armed robbery; (2) an
October 2000 conviction for resisting arrest; (3) a December 2000
conviction for assault with a dangerous weapon; and (4) two May
2006 convictions for assault and battery on a police officer and
assault and battery with a dangerous weapon. Carrigan concedes his
1996 conviction for armed robbery is a violent felony for purposes
of the ACCA. He argues, however, that his other convictions cannot
be considered "violent felonies" under the ACCA in his case because
in 2008, when the arrest in this case took place, no court had yet
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found those specific offenses to be ACCA predicates. He thus
argues that counting these convictions against him violated his due
process rights. In support of this argument, he cites United
States v. Lanier, 520 U.S. 259 (1997), where the Supreme Court
explained the fair warning requirement. He thus requests that the
we apply in his case "the canon of strict construction of criminal
statutes, or rule of lenity, [which] ensures fair warning by so
resolving ambiguity in a criminal statute as to apply it only to
conduct clearly covered." Id. at 266.
Contrary to what Carrigan argues, Lanier stands for the
proposition that the due process clause bars the application of a
novel construction of a statute where the scope of the statute is
ambiguous. See id. at 267 ("[T]he touchstone [of the due process
inquiry] is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time that the
defendant's conduct was criminal."). Lanier does not apply where
the scope of a statute is ascertainable from the plain meaning of
its words. As explained above, the scope of application of the
ACCA is fairly clear both under the force clause and the residual
clause as to the type of offenses covered. The fact that at the
time Carrigan committed the instant offense no court had found that
the specific convictions Carrigan has under his belt were ACCA
predicates does not mean that the ACCA was ambiguous at that time
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and that the application of the rule of lenity is warranted. We
thus find Carrigan's argument under Lanier unavailing.
As discussed below, two of the convictions in question
are ACCA predicates which the district court correctly considered
in sentencing him as an ACC.2 Those two convictions, plus
Carrigan's conviction for armed robbery, which he concedes is an
ACCA predicate, properly constitute three prior convictions for
violent felonies. We take each argument in turn.
We first tackle Carrigan's argument that his 1998
conviction for resisting arrest cannot be considered a violent
felony under the ACCA. He argues that the crime of resisting
arrest may be committed recklessly, but does not further develop
this issue. In United States v. Weeks, we said that "resisting
arrest [under Massachusetts law] qualifie[s] as a 'crime of
violence' under U.S.S.G. § 4B1.2 [the career offender guideline],
and because that Guideline and the ACCA are similarly worded," a
court may treat a conviction for resisting arrest as a violent
felony for purposes of the ACCA. 611 F.3d 68, 73 (1st Cir. 2010)
2
Carrigan also argues that his December 2000 assault with a
dangerous weapon conviction should not count under the ACCA since
the Boston Municipal Court had determined his guilty plea to be the
result of ineffective counsel. The same municipal court also
rejected Carrigan's request to have his plea set aside because
Carrigan had not been prejudiced as he would be serving time for
the conviction concurrently with another offense. We need not
determine if this conviction would qualify Carrigan as an ACC
because we find that his three other violent felony convictions
suffice the statutory requirements.
-21-
(citing United States v. Almenas, 553 F.3d 27, 34 n.7 (1st Cir.
2009) ("[F]or both prudential and precedential reasons, we have
read [the ACCA] and the almost parallel guideline language at issue
[in the guidelines definition of crime of violence] as being in
pari passu.")); see also United States v. Hart, 674 F.3d at 41 n.5
(1st Cir. 2012) ("The Sentencing Guidelines' term 'crime of
violence' and ACCA's term 'violent felony' are defined almost
identically. Accordingly, decisions construing one term inform the
construction of the other." (internal citations and quotation
marks omitted)).
Furthermore, contrary to what Carrigan argues, the two
methods of resisting arrest proscribed by Massachusetts law require
knowledge. See Mass. Gen Laws ch. 268, § 32B(a).3 Both methods
fall under either the force clause, see id. § 32B(a)(1), or the
residual clause, see id. § 32B(a)(2). Almenas, 553 F.3d at 33, 35.
3
In pertinent part, Mass. Gen Laws ch. 268, § 32B(a) states:
A person commits the crime of resisting arrest
if he knowingly prevents or attempts to
prevent a police officer, acting under color
of his official authority, from effecting an
arrest of the actor or another, by:
(1) using or threatening to use physical
force or violence against the police officer
or another; or
(2) using any other means which creates a
substantial risk of causing bodily injury to
such police officer or another.
(emphasis supplied).
-22-
Therefore, we conclude that the district court acted correctly in
finding that Carrigan's conviction for resisting arrest could be
considered, along with his conviction for armed robbery, as a crime
of violence for purposes of sentencing under the ACCA.
We must now determine whether Carrigan's conviction for
assault and battery with a deadly weapon and assault and battery of
a police officer also count as violent felonies for purposes of the
ACCA.
In Hart, we held that assault and battery with a deadly
weapon under Massachusetts law categorically qualifies as an ACCA
predicate under the ACCA's residual clause. 674 F.3d at 41-44. We
reasoned that the offense in question "clearly poses a serious
potential risk of injury, comparable to the degree of risk posed by
the enumerated offenses [of the residual clause]." Id. at 42. In
Hart, we also found that even if a conviction for assault and
battery with a dangerous weapon under Massachusetts law may
sometimes rest on a recklessness theory, "our analysis under the
residual clause is explicitly, and necessarily, limited to the
'ordinary case.'" Id. at 43 (citing James v. United States, 550
U.S. 192, 208 (2007)); see also id. at 43 n.7 (explaining that
"[r]egardless of the underlying theory, [assault and battery with
a deadly weapon] requires 'general intent to do the act causing
injury.'" (quoting Commonwealth v. Appleby, 380 Mass. 296, 308
(1979))). Prior to issuing Hart, we had ruled that assault and
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battery with a deadly weapon under Massachusetts law is a violent
felony under the career offender guidelines. See United States v.
Glover, 558 F.3d 71, 79-82 (1st Cir. 2009).
Finally, Carrigan argues that the ACCA's residual clause
is unconstitutionally vague. He acknowledges, however, that his
arguments may be foreclosed by this circuit's rulings in Weeks,
Hart and United States v. Dancy, 640 F.3d 455 (1st Cir. 2011). He
does not offer any new authority and he has not reformulated the
vagueness argument in any way that would prompt us to revisit our
previous rulings.4
III. Conclusion
For the reasons set forth above, we affirm Carrigan's
sentence.
Affirmed.
4
Carrigan filed a Fed. R. App. P. 28(j) letter asking this court
to find that his sentence is unconstitutional because the question
of his status as an ACC should have been submitted to the jury
pursuant to United States v. Alleyne, U.S. , 133 S. Ct. 2151(2013). We disagree. In Alleyne, the Supreme Court stated that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), remains
good law. See Alleyne, *10 n.1. In Almendarez-Torres, the Supreme
Court found that, where "the relevant statutory subject matter is
recidivism[,]" which "is as typical a sentencing factor as one
might imagine[,]" a crime is not being defined and, therefore, the
fact of the prior conviction need not be mentioned in the
indictment nor submitted to the jury. Id. at 230. Therefore, the
sentence imposed on Carrigan pursuant to the ACCA was based on a
determination of a sentencing factor, not a determination of an
element of an offense.
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