United States v. Blodgett , 130 F.3d 1 ( 1997 )

STAHL, Circuit Judge.

Appellant Paul A. Blodgett, convicted and sentenced on two counts of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), appeals the district court’s decision to enhance his sentence pursuant to the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e). Specifically, Blodgett disputes that his prior criminal record re-fleets the three predicate offenses necessary for an ACCA enhancement. Finding no error, we affirm.

Background and Prior Proceedings

On May 9, 1996, police in Old Orchard Beach, Maine, arrested Blodgett after a high-speed automobile pursuit and subsequent foot chase. The police found Blodgett hiding under a blanket, holding a loaded and half-cocked 9 millimeter handgun. The government charged Blodgett with four weapons related counts, two pertaining to the 9 millimeter handgun and two pertaining to a 12 gauge shotgun subsequently found in Blod-gett’s ear. A jury convicted Blodgett on the counts relating to the 9 millimeter handgun.

The district court imposed a 293 month sentence. The court based its sentence in part on its conclusion that Blodgett’s criminal history triggered the fifteen-year mandatory minimum sentence provided in the ACCA. Although Blodgett had eight juvenile and nineteen adult convictions that produced no criminal history points, the court determined that Blodgett had five other convictions which supplied the predicate necessary for an ACCA enhancement. Blodgett conceded two of the five convictions, but disputed that any of the remaining three, a 1984 Massachusetts conviction for breaking and entering, a 1983 Maine conviction for reckless conduct with a dangerous weapon, and a 1987 Maine conviction for burglary, should count toward the enhancement. Blodgett’s challenge to the district court’s ACCA enhancement forms the basis of this appeal.

Discussion

lcWhether a conviction for a particular type of crime qualifies as a predicate offense presents a purely legal question, sparking de novo review.” United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994) (citing United States v. DeJesus, 984 F.2d 21, 23 n. 4 (1st Cir.1993)); see United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992). Our de novo review leads us to conclude that at least one of the convictions Blodgett challenges, the 1984 Massachusetts conviction for breaking and entering, serves as a predicate offense for purposes of the ACCA enhancement. Accordingly, we affirm.

The ACCA provides that anyone convicted as a felon in possession of a firearm who has three previous “violent felony” or “serious drug” convictions will receive a fifteen-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that reflects any of several enumerated violent attributes.¹ 18 U.S.C. § 924(e)(2). Certain crimes, however, do not fall within the statutory definition of a “crime punishable by imprisonment for a term exceeding one year.” Such crimes include any offense that a state classifies as a misdemeanor and which carries a maximum penalty of two years or less, see 18 U.S.C. § 921(a)(20)(B), and any offense for which a person has had his civil rights restored, unless that restoration expressly provides that the person may not ship, transport, possess or receive firearms, see 18 U.S.C. § 921(a)(20).

In 1984, Blodgett was convicted for breaking and entering and sentenced to 18 months in the state prison. Blodgett now claims that the offense does not constitute a felony, and, even if it does, that he never lost one of his civil rights and had the others restored subsequent to that conviction and prior to his most recent offense. Neither of Blodgett’s arguments is availing.

Contrary to Blodgett’s assertion, the 1984 Massachusetts conviction clearly falls within the definition of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 921(a)(20). Massachusetts defines “felony” as “[a] crime punishable by death or imprisonment in the state pris-on____” Mass. Gen. Laws eh. 274, § 1 (noting that all other crimes are misdemeanors). The breaking and entering statute that underlies Blodgett’s 1984 Massachusetts conviction provides for a maximum punishment of twenty years imprisonment. See Mass. Gen. Laws eh. 266, § 16. In other words, Massachusetts classifies Blodgett’s conviction as a felony, and, even if it did not, the maximum sentence Blodgett could have received removes his conviction from the exception of § 921(a)(20)(B). See United States v. Indelicato, 97 F.3d 627, 628 n. 1 (1st Cir.1996) (considering the maximum statutorily authorized punishment rather than actual sentence for purposes of 18 U.S.C. § 921(a)(20)(B)), cert. denied, — U.S. -, 117 S.Ct. 1013, 136 L.Ed.2d 890 (1997).

Blodgett insists that even if the conviction does constitute a felony, Massachusetts restored his civil rights which precludes the conviction from counting toward an ACCA enhancement. See 18 U.S.C. § 921(a)(20). “In this circuit, the civil rights that must be restored to trigger the exception are the rights to vote, hold public office, and to serve on a jury.” United States v. Estrella, 104 F.3d 3, 6 (1st Cir.1997). We consider civil rights restored for purposes of § 921(a)(20) whether by automatic application of law or by affirmative, executive act. See United States v. Caron, 77 F.3d 1, 4 (1st Cir.1996) (en banc). As we have noted, a convicted felon in Massachusetts retains the right to vote, loses the right to hold public office for the duration of any sentence, and loses the right to serve on a jury for seven years after conviction. See id. at 2. The government does not dispute that Massachusetts has restored Blodgett’s core civil rights.

Blodgett, however, is not home free. Restoration of civil rights removes the conviction from the realm of ACCA predicate offenses “unless ... such restoration ... expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U.S.C. § 921(a)(20). In United States v. Estrella, 104 F.3d 3, 8 (1st Cir.), cert. denied, - U.S. -, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997), we held that the restrictions Massachusetts imposes on a felon’s right to own firearms trigger the “unless” clause in § 921(a)(20). Felons desiring to own firearms in Massachusetts must have been released from custody for five years, and then must obtain a firearm identification card. See id. at 7. A firearm identification card permits a felon to possess a handgun in his residence or place of business and to possess a rifle anywhere. See id. Notably, a felon may not possess a handgun outside of his residence or place of business, nor sell, rent or lease a firearm to another person. See id. Estrella, therefore, precludes Blod-gett’s argument.

Blodgett points out that Estrella determined whether such a Massachusetts conviction could serve as a felony supporting a conviction under the federal felon in possession of a firearm statute. See 18 U.S.C. § 922(g)(1) (providing criminal penalties for felons who possess firearms). He maintains that “[t]here are reasons why this Court might choose to interpret Massachusetts law as preserving the federal ban on handgun possession by a felon, and yet not interpret Massachusetts law as allowing a severe enhancement of defendant’s sentence where defendant’s civil rights have been restored.” Blodgett does not enumerate these reasons, but generally seems to argue for a different interpretation of Massachusetts law depending on whether the government seeks to use the conviction for purposes of § 922(g) or § 921(a)(20), and, therefore, § 924(e).

In United States v. Alston, 112 F.3d 32, 37 (1st Cir.1997), we rejected the precise argument Blodgett makes in this appeal. The defendant in Alston challenged the inclusion of a prior Massachusetts conviction as a predicate offense for ACCA purposes because his civil rights had been restored. 112 F.3d at 37. We noted that “Massachusetts materially restricts an ex-felon’s right to carry and traffic in firearms regardless of the passage of time,” id., and that such restrictions trigger the “unless” exception to § 921(a)(20), see id. at 38 (citing Estrella, 104 F.3d at 8). On that basis we affirmed the enhancement of the defendant’s sentence pursuant to the ACCA. See id.; see also United States v. Palazzi, 115 F.3d 906, 908 (11th Cir.1997) (adopting Estrella’s interpretation of Massachusetts law under the “unless” clause of § 921(a)(20) and affirming an ACCA enhancement on that basis). We see no reason to deviate from Alston in this case. We therefore conclude that the district court properly considered Blodgett’s 1984 Massachusetts conviction as a predicate offense for a § 924(e) enhancement.

Conclusion

Blodgett concedes that two of his prior convictions constitute predicate offenses, and we find that his 1984 Massachusetts conviction for breaking and entering constitutes the third predicate offense for ACCA enhancement purposes. We need not consider the remaining two challenged convictions. See 18 U.S.C. § 924(e) (requiring three prior violent felony convictions to trigger enhancement).

Affirmed.

1 . Specifically, a violent felony is a “crime punishable by imprisonment for a term exceeding one year” that:

(i) has as an element the use, attempted use or threatened use of force against the person of another; or

(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

18 U.S.C. § 924(e)(2).