United States v. Dawn , 842 F.3d 3 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1136
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES DAWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Robert F. Hennessy and Thompson & Thompson, PC on brief, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief, for appellee.
November 16, 2016
BARRON, Circuit Judge. James Dawn appeals his
convictions for federal firearms offenses on the ground that the
District Court, in accepting his guilty pleas, did not conduct a
proper inquiry under Rule 11 of the Federal Rules of Criminal
Procedure. Dawn also appeals his sentence, arguing that the
District Court erred in classifying him as an armed career criminal
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
We affirm both the convictions and the sentence.
I.
Dawn was indicted in March 2014 for dealing in firearms
without a license, 18 U.S.C. § 922(a)(1)(A), and for being a felon
in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1).
He initially pled not guilty. In July, however, his counsel, Jaime
Zambrana, informed the Magistrate Judge assigned to the case that
Dawn intended to change his plea to guilty.
At the change of plea hearing in September, the District
Court began by stating that "the purpose of this hearing is to
satisfy me that what appears to be your intention to plead guilty
is a knowing and voluntary act." The District Court then proceeded
to ask Dawn a range of questions concerning his ability to
understand the charges against him and to make a decision to plead
guilty to them.
At the District Court's direction, the government
informed Dawn that he could face a sentence of up to ten years for
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the felon-in-possession charge, but if he were determined to be an
"armed career criminal," he would face a maximum sentence of life
imprisonment and a mandatory minimum sentence of fifteen years.
That statement was a reference to the ACCA, 18 U.S.C. § 924(e),
which applies if a defendant has three previous convictions for a
"violent felony or a serious drug offense." The government also
informed Dawn that he would face a sentence of up to five years
for dealing in firearms without a license.
The District Court next asked Dawn, "So, you understand
what the maximum penalties could be in this case, depending on how
I resolve the factual matters here?" Dawn replied, "Yes, your
Honor." The District Court then stated, "You understand that.
So, what you are exposing yourself to is potentially those maximum
penalties." Dawn replied, "Yes, your Honor." The District Court
went on to describe the rights Dawn would be giving up by pleading
guilty, discuss the evidence that could be presented at trial, and
ask Dawn to enter a plea. The District Court concluded that Dawn's
"decision to plead guilty is a knowing and voluntary act on
[Dawn's] part."
Dawn then entered a guilty plea. After entering the
guilty plea, Dawn's attorney, Zambrana, moved to continue the
sentencing hearing. Zambrana stated that the government intended
to seek a sentence under the ACCA. Zambrana alleged, incorrectly,
that one of the predicate offenses that the government was relying
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upon under the ACCA was Dawn's 2007 conviction for possession with
intent to distribute a class D substance, in violation of
Massachusetts General Laws Chapter 94C, § 32C. Zambrana requested
more time to allow Dawn to seek to have this conviction vacated.
That motion was heard at the beginning of the scheduled sentencing
hearing.
At that hearing, Zambrana spoke in support of the motion
to continue sentencing. Zambrana contended that he was in the
process of challenging two of Dawn's prior state-law convictions
that the government was asserting qualified Dawn as a career
offender under the ACCA: first, the 2007 conviction referenced in
the motion to continue sentencing, which was not actually
classified as an ACCA predicate offense in the presentence report;
and second, a conviction for trafficking cocaine, which was
classified as an ACCA predicate offense in the presentence report.
The District Court did not grant the requested continuance. The
District Court explained that the convictions that Zambrana had
identified in requesting the continuance were relatively old and
that any success that his counsel had in having them vacated could
be addressed in a post-sentencing motion pursuant to Rule 35 of
the Federal Rules of Criminal Procedure.
The District Court took a brief recess so that Zambrana
could explain to Dawn the process for challenging the sentence by
filing a Rule 35 motion in the event that his challenges to any
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prior state conviction on which the sentence relied were
successful. After the recess, the District Court confirmed that
Dawn had the opportunity to review the presentence report and did
not object to it. The District Court sentenced Dawn to 180 months
of imprisonment -- the mandatory minimum -- and 60 months of
supervised release. This appeal followed.
II.
Dawn challenges his convictions on the ground that the
District Court failed to inquire at the Rule 11 hearing whether he
was induced to plead guilty by way of any force, threats, or
promises. See Fed. R. Crim. P. Rule 11(b)(2) (stating that
"[b]efore accepting a plea of guilty or nolo contendere, the court
must address the defendant personally in open court and determine
that the plea is voluntary and did not result from force, threats,
or promises"). Because Dawn raises this issue for the first time
on appeal, we review only for plain error. United States v. Ortiz-
García, 665 F.3d 279, 285 (1st Cir. 2011). We find none.
"In order to establish plain error, a defendant must
show that: (1) an error occurred; (2) the error was plain; (3) the
error affected the defendant's substantial rights; and (4) the
error 'seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.'" Id. (quoting United States
v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)). To satisfy
the "substantial rights" prong of the test in this context, the
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defendant must show "a reasonable probability that, but for the
error, he would not have entered the plea." Id. at 286 (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)).
Dawn contends that the purported Rule 11 violation was
clear and obvious, and he contends that this error affected his
substantial rights in the following way. Dawn argues that if the
District Court had inquired into whether Dawn's decision to plead
guilty had been influenced by improper promises, Dawn would have
disclosed Zambrana's "unfilled and unfulfillable promise to at
least attempt to seek avoidance of the ACCA by collaterally
attacking some of Dawn's prior convictions in state court." Dawn
contends that, following the disclosure of that "promise," the
District Court would have clarified for Dawn that Zambrana's
promise to challenge those convictions was an empty one because
Zambrana in fact had promised to challenge a conviction that was
not actually classified as an ACCA predicate. And, further, Dawn
contends, such a clarification by the District Court would have
changed Dawn's expectation as to whether he would be subject to
the ACCA enhancement and thus affected his decision to plead
guilty. Accordingly, Dawn contends that the District Court's
alleged error in failing to inquire into whether any promises Dawn
received affected his substantial rights.
There may be some question, as the government contends,
as to whether the District Court's inquiry in this case was clearly
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insufficient under Rule 11. See United States v. Henry, 113 F.3d
37, 41-42 (5th Cir. 1997). But even if we were to assume that the
District Court did plainly err in not directly inquiring about
whether Dawn's counsel made any promises, Dawn has not shown how,
but for such an error, it is probable that he would not have pled
guilty. Thus, he cannot satisfy the third prong of the plain error
standard. See Dominguez Benitez, 542 U.S. at 76.
In this regard, we note that, to support his contention
that Dawn's counsel made an unfulfillable promise to him that
induced his plea, Dawn points only to his counsel's statements in
the criminal proceedings themselves. And those statements, upon
scrutiny, provide weak support for his contention.
The first statement Dawn points to is one that Zambrana
made in a pretrial conference prior to the Rule 11 hearing.
Zambrana stated that he was "looking into some of [Dawn's] prior
convictions which have a significant impact on the Guidelines."
But this statement is not itself a promise to Dawn by Zambrana,
nor is it persuasive evidence that Zambrana made the unfulfillable
promise that Dawn contends Zambrana had made and that Dawn argues
is the kind of promise to which Rule 11 refers.
Dawn does point to two other statements Zambrana made,
each of which post-dates the Rule 11 hearing itself. The first
appears in Zambrana's motion to continue sentencing. The second
was made by Zambrana to the court in the hearing on that motion.
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But these statements are no more helpful to Dawn than the one just
discussed. They, too, show merely that Zambrana was planning to
file or had filed motions in state court to challenge certain of
Dawn's prior convictions and thus that Zambrana was looking into
Dawn's prior convictions. These statements do not show that
Zambrana made the kind of promise to Dawn on which his Rule 11
challenge depends. Thus, Dawn has not shown that any inquiry by
the District Court into the kind of promise to which Rule 11 refers
actually would have uncovered that a promise of the type Dawn
alleges was made in fact had been made.
Moreover, the government's evidence against Dawn was
overwhelming, a point that Dawn does not at any point contest in
his briefing to us. This feature of the case thus further
undermines Dawn's contention that there is a reasonable
probability that he would not have pled guilty but for the District
Court's failure to conduct the inquiry under Rule 11 that he
contends was required. See Dominguez Benitez, 542 U.S. at 85
("Other matters that may be relevant . . . are the overall strength
of the Government's case and any possible defenses . . . . [O]ne
can fairly ask a defendant seeking to withdraw his plea what he
might ever have thought he could gain by going to trial.").1
1 At the Rule 11 hearing, the government discussed the
evidence it would put forth if the case went to trial. The
government stated that it would show that, on three separate
occasions, cooperating witnesses purchased firearms from Dawn,
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III.
Dawn separately argues that the District Court erred in
classifying him as a career offender under the ACCA. The ACCA
provides a sentence of fifteen years if a defendant commits the
offense of illegally possessing a firearm, in violation of 18
U.S.C. § 922(g), and qualifies as a career offender. 18 U.S.C.
§ 924(e)(1). A defendant qualifies as a career offender if the
defendant has three predicate offenses. Id.
The presentence report listed four convictions that were
claimed to qualify as ACCA predicate offenses: a conviction for
assault and battery with a dangerous weapon, under Massachusetts
General Laws Chapter 265, § 15A(b); a conviction for assault with
a dangerous weapon, under Massachusetts General Laws Chapter 265,
§ 15B(b); and two different convictions for trafficking in cocaine,
under Massachusetts General Laws Chapter 94C, § 32A. Dawn does
not dispute that two of those convictions -- the convictions for
trafficking in cocaine -- qualify as ACCA predicate offenses
because they are serious drug offenses. See 18 U.S.C.
§ 924(e)(2)(A)(ii). He does, however, contend that neither of the
other two -- namely, his convictions for assault and battery with
a dangerous weapon and assault with a dangerous weapon -- qualifies
as an ACCA predicate offense because he contends that neither is
with cash, while wearing recording devices. No possible defenses
are apparent from the record, nor does Dawn identify any.
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a violent felony under the ACCA. The ACCA defines a "violent
felony" as "any crime punishable by imprisonment for a term
exceeding one year . . . that has as an element the use, attempted
use, or threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B).
We review de novo the classification of a prior offense
as a violent felony under the ACCA. United States v. Carrigan,
724 F.3d 39, 48 (1st Cir. 2013). We have previously held that a
conviction under Massachusetts law for assault with a dangerous
weapon does qualify as a violent felony under 18 U.S.C. § 924(e).
United States v. Whindleton, 797 F.3d 105, 116 (1st Cir. 2015).
Dawn contends that Whindleton was wrongly decided in light of the
Supreme Court's 2015 decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), and our decisions in United States v. Martinez,
762 F.3d 127 (1st Cir. 2014), and United States v. Fish, 758 F.3d
1 (1st Cir. 2014). But we considered and rejected these same
arguments in United States v. Fields, 823 F.3d 20, 35 & n.12 (1st
Cir. 2016), and United States v. Hudson, 823 F.3d 11, 16-18 (1st
Cir. 2016). Because Dawn does not contest that there are two other
qualifying predicate convictions, the government has identified
three prior convictions that qualify as predicate offenses under
the ACCA. Accordingly, Dawn's challenge to his sentence fails.
IV.
For the reasons given, we affirm.
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