United States v. Lopez , 890 F.3d 332 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1080
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS LÓPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
James L. Sultan, with whom Kerry A. Haberlin and Rankin &
Sultan were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
May 16, 2018
THOMPSON, Circuit Judge. We have before us a case of
déjà vu: an all too familiar argument that we have rejected in at
least three prior decisions. Not to beat a dead horse, but today,
adhering to our precedent, we necessarily reject the argument once
more.
Luis López pled guilty to being a felon in possession of
a firearm and possession with intent to distribute heroin. The
Probation Office for the District of Massachusetts (the "Probation
Office") determined that López was subject to a mandatory minimum
sentence of fifteen years imprisonment under the Armed Career
Criminal Act ("ACCA") because he had previously been convicted of
at least three qualifying ACCA predicate offenses. Before us,
López challenges the sufficiency of his prior convictions to serve
as ACCA predicates, alleging that direction from the Supreme Court
requires us to revisit existing First Circuit precedent. We find
no intervening law that alters the validity of our prior decisions
concerning ACCA predicate offenses and thus affirm his sentence.
A. Getting Our Factual Bearings
We won't dwell on the circumstances leading to López's
most recent arrest and convictions because they are undisputed.
López's objections focus instead on five prior Massachusetts
convictions identified by the Probation Office that qualify as
"serious drug offense[s]" or "violent feloni[es]" as defined by
ACCA. Our recitation of the facts therefore follows López's lead
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and only briefly addresses the circumstances leading to his most
recent convictions. We then shift gears, focusing primarily on
the Probation Office's presentence report ("PSR") and the district
court's subsequent sentencing determination.
1. López's Most Recent Criminal Convictions
The New Bedford, Massachusetts police department
executed a search warrant on López's girlfriend's residence on
December 31, 2014, following an investigation indicating that
López was selling heroin at the house. Although López initially
denied the presence of anything illegal, he eventually told the
officers he was hiding heroin and a pistol. Officers found three
individually packaged bags of heroin and several Percocet pills in
López's jeans pocket, in addition to four grams of heroin elsewhere
in the house. Police also recovered a loaded Glock 9mm with
sixteen rounds of ammunition in the magazine. The pistol was
traced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives
and was determined to have been reported stolen in North Carolina
three months earlier.
On March 17, 2016, a federal grand jury in the District
of Massachusetts returned an indictment charging López with being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) and possession with intent to distribute heroin in
violation of 21 U.S.C. § 841(a)(1). López pled guilty to both
charges.
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2. Presentence Report and Sentencing
Following López's guilty plea, the Probation Office
prepared a PSR. The PSR concluded that López was subject to a
sentencing enhancement under 18 U.S.C. § 924(e), known
colloquially as ACCA, because he had at least three prior
convictions for "serious drug offense[s]" or "violent felon[ies]."
18 U.S.C. §§ 924(e)(2)(A), (B). In fact, the PSR identified five
Massachusetts convictions that qualified as predicate offenses
under ACCA: (1) a 2007 conviction for distribution of a class B
drug prosecuted in the New Bedford District Court; (2) a May 2009
conviction for assault with a dangerous weapon ("ADW") prosecuted
in the New Bedford District Court; (3) an October 2009 conviction
for possession to distribute a class A drug prosecuted in the New
Bedford District Court; (4) a 2012 conviction for breaking and
entering in the nighttime for a felony prosecuted in the New
Bedford District Court; and (5) a 2013 conviction for unlawful
distribution of a class B substance (cocaine) prosecuted in the
Bristol Superior Court.
Therefore, under ACCA, López was subject to a fifteen-
year (180-month) mandatory minimum sentence. After scoring the
severity of López's offenses and his criminal history against the
U.S. Sentencing Guidelines, the PSR further recommended that the
district court impose a sentence between 188 and 235 months.
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López, in a memorandum sent to the district court,
objected to the PSR for three reasons. First, he challenged the
classification of his two New Bedford District Court drug
convictions as "serious drug offense[s]" as defined by ACCA. Next,
he argued that his ADW conviction did not qualify as an ACCA
"violent felony." Finally, he objected to the classification of
his breaking and entering conviction as a qualifying offense
because he argued it was incorrectly classified as a "burglary" to
meet the ACCA definition of a violent felony. The Probation
Office, in its own memorandum, rejected López's contentions and
reaffirmed its position that all five of López's convictions had
been properly identified as qualifying ACCA predicate offenses.
At the sentencing hearing convened on January 11, 2017,
the district court accepted that at least three of the offenses
outlined in the PSR qualified as ACCA predicates and noted that it
interpreted López's objections to the PSR "more by the way of
preserving the issues with respect to how we apply the mandatory
minimum sentence" and that there "[is] not much I can do about it
at this point."1 The district court sentenced López to ACCA's
mandatory minimum sentence of fifteen years (180 months)
1 The district court declined to decide whether López's
breaking and entering conviction was properly classified as an
ACCA predicate, reasoning that such a determination was
unnecessary in light of López's other ACCA predicates.
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imprisonment. In handing down this sentence, the district court
judge stated:
Well, without offering an opinion as to what a sentence
might be if it were not for the constraints of the
mandatory minimum sentence, as Mr. Sultan’s [counsel for
López] memo candidly recognizes, I have no choice in
this matter, until and unless the First Circuit or the
Supreme Court changes the applicable law, but to impose
the mandatory minimum sentence. . . . I think, as you
understand, the Court's hands are tied in this matter.
The facts recounted, we move on to the main act.
B. Analysis
On appeal (like at the district court), López challenges
whether his 2007 and 2009 drug convictions qualify as "serious
drug offense[s]" under ACCA. He next reasserts his contention
that his 2009 ADW conviction does not qualify as an ACCA "violent
felony." Finally, López tells us his 2012 breaking and entering
conviction was also insufficient to serve as an ACCA predicate.2
But this appeal can start and stop at López's "serious drug
offense" challenge. Indeed, for reasons we will explain in a
moment, we conclude that both López's 2007 and 2009 drug
convictions are qualifying predicates. Importantly, López has a
third, independent drug conviction (from 2013) whose sufficiency
he has never contested to serve as a predicate offense (either at
2 We note, though, that the Government did not rely on this
breaking and entering conviction either in the district court or
on appeal to argue that López has at least three qualifying
convictions.
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the lower court or before us now). That uncontested conviction
coupled with his 2007 and 2009 convictions means it's "one, two,
three strikes you're out" for López. We thus do not ultimately
reach López's challenges to his ADW conviction or his breaking and
entering conviction.
1. ACCA and Sentencing in Massachusetts
First, some context. ACCA prescribes stiffer sentences
for repeat offenders when they are convicted of enumerated crimes.
See 18 U.S.C. § 924. If a defendant is convicted of an eligible
crime, including any conviction of a crime punishable by
imprisonment for a term exceeding one year, and "has three previous
convictions . . . for a violent felony or a serious drug offense,
or both," that defendant faces a mandatory minimum sentence of
fifteen years and other potential sentence enhancements. See 18
U.S.C. § 924(e)(1). ACCA defines a "serious drug offense" in part
as "an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . for which a maximum term
of imprisonment of ten years or more is prescribed by law." 18
U.S.C. § 924(e)(2)(A)(ii) (emphasis added).3
3 For the interested reader, we note that 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)(i). And that a
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Sentencing courts apply a "categorical approach" in
determining whether a defendant's prior conviction meets the
criteria for an ACCA predicate offense. Descamps v. United States,
570 U.S. 254, 261 (2013) (citing Taylor v. United States, 495 U.S.
575, 600 (1990)). Under this approach, courts generally look only
to whether a defendant was previously convicted and the elements
that comprise the relevant statute of conviction in determining
whether a prior offense may serve as a predicate offense under
ACCA. Id. Courts may not look to the particular facts underlying
a defendant's prior conviction in this analysis. Id. If the
relevant statute of conviction has the same or narrower elements
than a serious drug offense, the offense may serve as an ACCA
predicate. Id. Likewise, a prior conviction may serve as a
qualifying ACCA predicate if it includes the same or narrower
elements than a "generic" ACCA crime such as burglary. See 18
U.S.C. § 924(e)(2)(B)(ii); Descamps, 570 U.S. at 261.
As noted above, López contends that his 2007 and 2009
drug distribution convictions were improperly classified as
serious drug offenses as defined by ACCA. For each of these
convictions, López faced "punish[ment] by imprisonment in the
violent felony under ACCA explicitly includes convictions for
"burglary, arson, or extortion." Id. § 924(e)(2)(B)(ii). But
because we do not reach López's challenges to his two convictions
of violent crimes (ADW and breaking and entering), we need not
address this aspect of ACCA in the body of the opinion.
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state prison for not more than ten years or in a jail or house of
correction for not more than two and one-half years."4
M.G.L. ch. 94C, §§ 32(a), 32A(a). López challenges the
sufficiency of these offenses to serve as ACCA predicates because
of the Commonwealth's decision to prosecute him in a Massachusetts
district court as opposed to a superior court. The Commonwealth
of Massachusetts grants district and superior courts concurrent
jurisdiction over certain crimes, including the drug related
offenses for which López was convicted in 2007 and 2009.
M.G.L. ch. 218, § 26. Despite concurrent jurisdiction in cases
like these, Massachusetts district courts lack authority to
sentence a defendant to a state prison. M.G.L. ch. 218, § 27.
Rather, district courts in Massachusetts may only sentence a
defendant to a jail or house of correction for a term of up to two
and one-half years. M.G.L. ch. 279, § 23. Therefore, the maximum
sentence that may be imposed by a Massachusetts district court for
a conviction under M.G.L. ch. 94C, §§ 32(a) or 32A(a) is two and
one-half years in a jail or house of correction. See M.G.L. ch.
279, § 23. In contrast, a conviction for either of the same
4
López was convicted in 2007 under M.G.L. ch. 94C, § 32A(a)
and in 2009 under § 32(a). Whereas § 32(a) concerns the
distribution of Class A substances under the Controlled Substances
Act ("CSA") and § 32A(a)concerns Class B substances, the two
statutes impose an identical punishment. See M.G.L. ch. 94C, §§
32(a), 32A(a).
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crimes, when prosecuted in a Massachusetts superior court, may
yield a sentence of up to ten years.
Despite the fact that the statutes proscribing López's
crimes impose a possible punishment of up to ten years, López
alleges that, realistically speaking, the maximum possible
sentence he could have received in either case was a mere two and
one-half years because of the statutory restrictions placed on
Massachusetts district courts (like the one where he was
prosecuted) when it comes to sentencing. As such, he tells us
these two convictions cannot serve as ACCA predicate offenses.
Having laid out the legal context regarding ACCA and the
dual-track nature of sentencing in Massachusetts for certain
crimes, we address López's challenges to the applicability of the
statute to his prior convictions and find them unavailing. But
first, we briefly pause to determine the correct standard of
review.
2. Standard of Review
In general, we review de novo a preserved challenge to
the sufficiency of a prior offense to serve as a predicate under
ACCA. United States v. Hudson, 823 F.3d 11, 14 (1st Cir. 2016).
Plain error review is, on the other hand, appropriate where a
defendant fails to preserve an objection to an alleged sentencing
error. United States v. Rivera-Clemente, 813 F.3d 43, 50 (1st
Cir. 2016).
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López's objection to the classification of his 2007 and
2009 convictions as "serious drug offense[s]" is premised on his
contention that we should revisit existing First Circuit precedent
in light of two Supreme Court cases, Moncrieffe v. Holder, 569
U.S. 184 (2013), and Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010). The Government tells us we need not reach López's argument
here because he failed to adequately preserve this claim at the
federal district court level. In particular, the Government argues
we should deem López's "serious drug offense" claims waived because
López did not specifically cite either Moncrieffe or Carachuri-
Rosendo to the sentencing court in making his objection. As the
Government tells it, this objection is subject at most to plain
error review. We don't agree.
The Government sets the bar too high for a defendant
attempting to preserve an objection for appeal. While it is true
a defendant must object with specificity to an alleged sentencing
error to trigger preservation of that claim on appeal, see United
States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017); United
States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007), we have no
trouble concluding López did enough here.5 Notably, López sent a
memorandum to the district court including a subsection dedicated
5López raised his objection both in a "sentencing memorandum"
shared with the court in response to the PSR, and at the time of
sentencing.
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to "State Court Drug Convictions (PSR, ¶¶ 44, 50)." López
specifically argued in this memorandum that his 2007 and 2009 drug
convictions did not qualify as predicate ACCA convictions because
these offenses were prosecuted in a Massachusetts district court
where the maximum term of incarceration he faced was two and one-
half years, not ten years or more as required by ACCA. López's
memorandum further acknowledged that his position was at
loggerheads with existing circuit precedent, but maintained that
this court's decision in Hudson that convictions under M.G.L. ch.
94C, § 32A(a) qualify as "serious drug offense[s]" was wrongly
decided. 823 F.3d at 15. Claiming that López was required to
address specific cases, including Moncrieffe and Carachuri-
Rosendo, at the court below to support his contention that First
Circuit precedent should be revisited asks too much. Indeed, this
requirement would have little practical basis given that the
district court was in no position to offer any redress to López's
claim of alleged error in this case. See Eulitt ex rel. Eulitt v.
Maine, Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 2004) (finding
that a district court is "hard put" to ignore binding circuit
precedent until court of appeals overturns that precedent). Having
found López's objection preserved, we move on to our final act and
review his claim de novo.
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3. Law of the Circuit Doctrine
López's argument that his district court convictions
cannot serve as ACCA predicates is not new to us. Indeed, we have
addressed, and rejected, nearly identical arguments on three prior
occasions. See Hudson, 823 F.3d at 15 (affirming ACCA sentencing
enhancement where conviction under M.G.L. ch. 94C, § 32A(a)
prosecuted in a Massachusetts district court served as a predicate
offense); United States v. Weekes, 611 F.3d 68, 72 (1st Cir. 2010)
(same); United States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002)
(same). Attempting to escape the same fate, López tells us that
Hudson, Weekes, and Moore should be revisited in light of what he
says is "intervening" Supreme Court precedent, Moncrieffe and
Carachuri-Rosendo.6 In Carachuri-Rosendo, the Supreme Court held
that the Government could not reclassify a defendant's prior
conviction to meet the definition of an "aggravated felony" under
the Immigration and Nationality Act ("INA") when the actual
circumstances under which that defendant was prosecuted could have
never led to such a conviction.7 560 U.S. at 582. In Moncrieffe,
6Calling these cases "intervening" case law is not correct
for reasons we will discuss in our analysis. Suffice it to say,
the First Circuit precedent López suggests we should revisit in
light of Carachuri-Rosendo and Moncrieffe largely postdates both
decisions.
7In Carachuri-Rosendo, our judicial superiors rejected the
claim that a defendant's simple possession conviction under Texas
state law could later be classified as an "aggravated felony"
within the meaning of the INA. See 560 U.S. at 582. The INA
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the Court dealt with facts similar to Carachuri-Rosendo and
reaffirmed that "[t]he outcome in a hypothetical prosecution is
not the relevant inquiry" in determining whether a defendant's
prior conviction qualifies as an aggravated felony under the INA.8
authorizes a lawful permanent resident to apply for discretionary
relief from removal if he has "not been convicted of any aggravated
felony." See id. at 567. The petitioner, Carachuri-Rosendo, was
a lawful permanent resident who sought such discretionary relief
from a removal order on the basis that he had not been convicted
of an aggravated felony within the meaning of the INA. Id. at
566. The Government argued that Carachuri-Rosendo had been
convicted of an aggravated felony because he was previously
convicted of two Texas state law offenses that could have
hypothetically resulted in a federal felony conviction were these
offenses prosecuted under different circumstances in federal
court. Id. at 570. The Court rejected the Government's
"hypothetical approach" to classifying a prior conviction as an
aggravated felony because it relied on facts that did not serve as
the basis for the state conviction and punishment. Id. at 580.
8In Moncrieffe, the Government attempted to demonstrate that
petitioner, Moncrieffe, was ineligible for discretionary relief
from removal by arguing that he had been convicted of an aggravated
felony. See 569 U.S. at 188-89. Moncrieffe had been convicted of
a Georgia offense that criminalized possession with intent to
distribute marijuana. Id. Under the CSA, possession with intent
to distribute marijuana can be either a felony or a misdemeanor
depending on the circumstances of the offense. Id. at 193-94.
Specifically, a defendant found to be "distributing a small amount
of marihuana [sic] for no remuneration" is treated as a
misdemeanant as opposed to a felon. Id. at 193 (citing 21 U.S.C.
§ 841(b)(1)(E)(4)). An aggravated felony under the INA only
encompasses offenses that "proscrib[e] conduct punishable as a
felony under [the CSA]." Id. at 188 (quoting Lopez v. Gonzalez,
549 U.S. 47, 60 (2006)). The Court in Moncrieffe found that it
was unclear from Moncrieffe's record of conviction whether he had
been convicted for possession with intent to distribute an amount
of marijuana greater than "a small amount . . . for no
remuneration." See id. at 206. The Court therefore held that
Moncrieffe's prior conviction for selling marijuana could not be
classified as an aggravated felony where the record was ambiguous
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Moncrieffe, 569 U.S. at 197; see Carachuri-Rosendo, 560 U.S. at
566. López analogizes the Government's approach to classifying a
prior conviction as an aggravated felony in Carachuri-Rosendo and
Moncrieffe, rejected by the Court in those cases, to the district
court's determination here that his 2007 and 2009 drug convictions
carried a maximum penalty of ten years. López argues that his
convictions could only carry a maximum penalty of ten years were
he to have been prosecuted in a Massachusetts superior court, a
factually different scenario to his case where both convictions
were prosecuted in the New Bedford District Court. In light of
Moncrieffe and Carachuri-Rosendo, López suggests that the
dispositive question in determining whether a prior state
conviction qualifies as a "serious drug offense" within the meaning
of ACCA is the maximum sentence a defendant could have actually
received under the charging circumstances, not the hypothetical
maximum sentence were the case to have been prosecuted differently.
López is wrong. In fact, as mentioned earlier, his ask
directly conflicts with our previous decisions in Hudson, Weekes,
and Moore. See Hudson, 823 F.3d at 15; Weekes, 611 F.3d at 72;
Moore, 286 F.3d at 49. And unfortunately for him, the pesky "law
of the circuit doctrine" dooms his argument that these cases
require our renewed attention. United States v. Rodríguez, 527
as to whether the conviction was punishable as a misdemeanor or a
felony under the CSA. See id.
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F.3d 221, 224 (1st Cir. 2008). This doctrine requires us to follow
prior panel decisions closely on point. Id. It is "neither a
straightjacket nor an immutable rule," though. Id. (quoting
Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d
136, 142 (1st Cir. 2000)). Indeed, there are two exceptions to
the law of the circuit doctrine in which a departure from circuit
precedent is warranted: 1) "where the previous holding is
contradicted by controlling authority, subsequently announced,"
United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) (quoting
Rodríguez, 527 F.3d at 225); and 2) when "authority that postdates
the original decision, although not directly controlling,
nevertheless offers a sound reason for believing that the former
panel, in light of fresh developments, would change its collective
mind." Id. (quoting Williams v. Ashland Eng'g Co., 45 F.3d 588,
592 (1st Cir. 1995)).
López does not meet either exception, however. His
reliance on Moncrieffe and Carachuri-Rosendo is misguided for two
reasons. First, Moncrieffe and Carachuri-Rosendo fail to meet the
timing requirement imposed in both exceptions to the rule of the
circuit doctrine. See Pires, 642 F.3d at 9-10. Carachuri-Rosendo
was neither "subsequently announced" nor does it "postdate[]" our
decisions in Weekes or Hudson. See Carachuri-Rosendo, 560 U.S. at
582; Hudson, 823 F.3d at 15; Pires, 642 F.3d at 9; Weekes, 611
F.3d at 72. Likewise, we decided Hudson three years after
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Moncrieffe. See Moncrieffe, 133 S. Ct. at 1687; Hudson, 823 F.3d
at 15. We therefore aren't fooled by López's characterization of
Moncrieffe and Carachuri-Rosendo as intervening authority; that
designation is simply incorrect.
Second, even without considering the timing of these
cases, neither Moncrieffe nor Carachuri-Rosendo controls over our
prior ACCA decisions, nor do they "offer[] a sound reason for
believing that the former panel" that rendered judgment in those
cases "would change its collective mind." Pires, 642 F.3d at 9
(quoting Williams, 45 F.3d at 592). In fact, we already rejected
the interpretation of Carachuri-Rosendo (and by extension
Moncrieffe) that López attempts to employ here in United States v.
Rodriguez, No. 11-1431 (1st Cir. July 16, 2012), an unpublished
judgment. In that case, the defendant argued that Carachuri-
Rosendo demanded we revisit Moore and Weekes. See Rodriguez,
judgment at 2. We disagreed, however, explaining that we saw "no
reason to believe that the Moore and Weekes panels would change
their minds in light of Carachuri-Rosendo." Rodriguez, judgment
at 2. Similarly, both parties in Hudson addressed Carachuri-
Rosendo in their briefing to the court. See Brief of Appellee at
29-32, United States v. Hudson, No. 14-2124 (1st Cir. August 18,
2015); Brief of Appellant at 27, United States v. Hudson, No. 14-
2124 (1st Cir. June 9, 2015). The defendant in Hudson specifically
relied on Carachuri-Rosendo to argue that this court's decision in
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Moore was wrongly decided. We nevertheless held in Hudson that
the defendant "offer[ed] no new or previously unaddressed reason
to deviate from our prior holdings on the issue." 823 F.3d at 15.
In other words, we necessarily concluded that Carachuri-Rosendo
did not undermine the validity of Moore.
We apply the same reasoning of Hudson and Rodriguez to
López's case. Unlike in Moncrieffe or Carachuri-Rosendo, there is
no dispute in the present case that López was charged with a
statute that prescribed a maximum punishment of ten years
imprisonment.9 M.G.L. ch. 94C, §§ 32(a), 32A(a); see Moncrieffe,
569 U.S. at 195-96; Carachuri-Rosendo, 560 U.S. at 582. The
statutes under which López was convicted thus "fit[] comfortably
within the ambit of 'serious drug offense' as that term is defined
in" ACCA. Moore, 286 F.3d at 49.
Finally, López resorts to a last ditch effort to change
our minds and sway us from existing circuit precedent by pointing
9 The Court in Carachuri-Rosendo found that the defendant's
record of conviction contained no finding that he was charged with
an offense that met the statutory definition of an aggravated
felony under the INA. 560 U.S. at 576. The Court held that an
immigration court "cannot, ex post, enhance the state offense of
record just because facts known to it would have authorized a
greater penalty." Id. Similarly, the Court in Moncrieffe found
that the relevant conviction in that case "did not 'necessarily'
involve facts that correspond to an offense punishable as a felony
under the CSA." 569 U.S. at 194-95. The facts and statutes at
issue in Moncrieffe and Carachuri-Rosendo render López's
comparison to the present case inapposite. See Moncrieffe, 569
U.S. at 195-96; Carachuri-Rosendo, 560 U.S. at 576.
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us to decisions of the Fourth, Eighth, and Tenth Circuits that
allegedly demonstrate a rejection of the type of sentencing
enhancement applied in his case. See United States v. Brooks, 751
F.3d 1204 (10th Cir. 2014); United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc); United States v. Haltiwanger, 637 F.3d
881 (8th Cir. 2011). Like most Hail Mary passes, López's falls
short. Not only are sister circuit decisions not binding on this
court, but none of the decisions cited by López outside of the
First Circuit postdate Hudson. Moreover, we find the decisions
that López cites incomparable to the present case. See Brooks,
751 F.3d at 1210-11; Simmons, 649 F.3d at 249-50; Haltiwanger, 637
F.3d at 884. Indeed, each out-of-circuit case cited concerns the
improper alteration of a defendant's record of conviction for the
purposes of applying recidivist enhancements.10 See Brooks, 751
10 In Simmons, for example, the Fourth Circuit reheard a
challenge to a petitioner's sentence enhancement under the CSA en
banc in light of the Supreme Court's decision in Carachuri-Rosendo.
Simmons, 649 F.3d at 249-50. The contested enhancement, which
doubled petitioner Simmons's sentence for marijuana distribution,
was triggered because of a prior conviction for possession of
marijuana under North Carolina state law. Id. at 239. The CSA
allowed enhancement of sentence in this case if Simmons had "a
prior conviction for a felony drug offense." Id. (citing 21 U.S.C.
§ 841(b)(1)(B)(vii)). Simmons's prior marijuana possession could
have only resulted in imprisonment for more than a year, and could
have therefore only qualified as a felony drug offense, if the
state satisfied two conditions. Id. at 241. In Simmons's case,
the prosecution failed to meet either of these conditions. Id.
The court concluded that Simmons's prior state law conviction could
not later be relied upon as a predicate offense where the state
never satisfied the conditions necessary to convict Simmons of a
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F.3d at 1210-11; Simmons, 649 F.3d at 249-50; Haltiwanger, 637
F.3d at 884. Like Carachuri-Rosendo, the three cases cited have
no bearing on this case where there is no dispute that López was
convicted of a statute that prescribes a maximum sentence that
fits within the requirements of an ACCA predicate offense. See
Carachuri-Rosendo 560 U.S. at 582; Brooks, 751 F.3d at 1210-11;
Simmons, 649 F.3d at 249-50; Haltiwanger, 637 F.3d at 884. This
is true even if prosecutorial discretion afforded López a better
sentencing outcome in the state courts of the Commonwealth. In
sum, then, we conclude that both of López's drug convictions in
Massachusetts district court may serve as predicate offenses under
ACCA.
As we previewed earlier, our determination that the
district court did not err in relying on López's 2007 and 2009
drug convictions in applying the ACCA sentencing enhancement is
enough to end our analysis. This, again, is because López does
not dispute the sufficiency of one of the five offenses listed in
the PSR to serve as a predicate offense under ACCA -- a 2013
conviction for unlawful distribution of cocaine. López,
felony drug offense at the time of his conviction. Id. at 244-
45. The other out-of-circuit cases cited by López similarly
involve attempts to impose sentencing enhancements where the prior
offenses relied upon to trigger those enhancements were
unsupported by facts necessary to impose the punishments mandated
for predicate offenses. See Brooks, 751 F.3d at 1210-11; Simmons,
649 F.3d at 249-50; Haltiwanger, 637 F.3d at 884.
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therefore, has at least three prior convictions for a serious drug
offense under ACCA and was properly subjected to the fifteen-year
mandatory minimum sentence under the statute. 18 U.S.C.
§ 924(e)(1). We won't rule on issues we don't have to. We thus
do not reach López's claims regarding the classification of his
ADW conviction or his breaking and entering conviction as "violent
felon[ies]" under ACCA since doing so would in no way change the
ultimate outcome here.
C. Conclusion
Our job here done, we affirm.
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