Lassend v. United States

United States Court of Appeals
For the First Circuit
No. 17-1900
KIRK LASSEND,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Karen A. Pickett, with whom Pickett Law Offices, P.C., was on
brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
August 2, 2018
LYNCH, Circuit Judge. Kirk Lassend appeals from the
district court's denial of his § 2255 petition. United States v.
Lassend, No. CR 10-40019, 2017 WL 2960518 (D. Mass. July 11, 2017),
certificate of appealability granted, 265 F. Supp. 3d 103 (D. Mass.
2017). He argues that his sentence as an armed career criminal
under the Armed Career Criminal Act ("ACCA") is unconstitutional
under Supreme Court precedent decided after his earlier appeal
from his conviction was rejected in 2013.
We affirm the district court and find that the three
prior convictions are ACCA predicates. We again hold that a
Massachusetts conviction for assault with a deadly weapon is a
predicate offense under the ACCA's force clause. As to Lassend's
New York conviction for attempted second-degree assault, we
conclude that a conviction under New York Penal Law § 120.05(7)
qualifies as a violent felony under the ACCA's force clause. We
reach the same conclusion as to Lassend's conviction for New York
first-degree robbery under New York Penal Law § 160.15(4). Our
analysis is consistent with that of many other circuits, and as to
the New York first-degree robbery conviction, consistent with the
views of the Second Circuit in Stuckey v. United States, 878 F.3d
62 (2d Cir. 2017), petition for cert. filed, No. 17-9369 (U.S.
June 11, 2018). Lassend's sentence stands.
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I. Background
A. Lassend's Arrest and Conviction
In July 2010, two individuals in Fitchburg,
Massachusetts called 911 to report that Lassend had been walking
up and down the street with a gun and firing shots into the air.
Police officers placed Lassend under arrest at the scene. The
officers recovered ammunition from Lassend's pocket and found a
gun in an unlocked closet in the common hallway of a nearby
apartment building. A search of Lassend's residence uncovered a
holster that appeared to fit that gun, and additional ammunition.
In September 2010, Lassend was indicted on charges of
being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (Count One), and being a felon in possession of
ammunition, also in violation of § 922(g)(1) (Count Two). After
a five-day trial, the jury convicted Lassend of both counts in
October 2011.
B. Original District Court Sentencing Proceedings
The Probation Office's 2012 presentence report ("PSR")
determined that Lassend was subject to a sentencing enhancement
under the ACCA because he had at least three prior convictions for
a violent felony or a serious drug offense. The PSR identified
four of his prior convictions as qualifying ACCA predicates: (1) a
1992 New York conviction for "Robbery in First Degree: Forcible
Theft Armed with Deadly Weapon"; (2) a 1997 New York conviction
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for "Robbery in First Degree: Display What Appears to [Be a]
Firearm"; (3) a 1998 New York conviction for "Assault in Second
Degree"; and (4) a 2010 Massachusetts conviction for "Assault and
Battery by Dangerous Weapon" ("ABDW") and "Assault by Dangerous
Weapon" ("ADW").
The PSR determined that Lassend's Guidelines sentencing
range ("GSR") was 235 to 293 months, with a mandatory minimum of
15 years under the ACCA. Lassend objected, inter alia, in the
district court to the PSR's conclusion that he was subject to an
ACCA enhancement, arguing that the residual clause of the ACCA was
"unconstitutionally void for vagueness."
At sentencing, in March 2012, the district court
overruled Lassend's objections to the PSR, including his objection
to the PSR's determination that he was subject to an ACCA
enhancement. Lassend stated that he had no other objections to
the PSR "just as long as [his] objection to the [ACCA] on grounds
that it's constitutionally void for vagueness [wa]s preserved."
The district court then adopted the PSR's calculations and
determined that Lassend's GSR was 235 to 293 months. After hearing
from both parties, the district court sentenced Lassend to a term
of imprisonment of 235 months on each count, to be served
concurrently, followed by a five-year term of supervised release.
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C. Direct Appeal
Lassend filed a direct appeal challenging his
conviction. See United States v. Lassend, 545 F. App'x 3 (1st
Cir. 2013) (per curiam). He did not appeal his sentence, nor argue
that the residual clause of the ACCA was unconstitutional. See
id. Lassend's conviction was affirmed in October 2013. See id.
Lassend did not petition for certiorari.
D. Habeas Corpus Proceedings Before the District Court
The Supreme Court later decided Johnson v. United States
("Johnson II"), 135 S. Ct. 2551 (2015), on June 26, 2015. On
July 20, 2015, Lassend filed a supplemental1 pro se petition under
§ 2255, arguing that he should not have been sentenced under the
ACCA in light of Johnson II. The government opposed his petition.
After the district court appointed counsel to represent
Lassend in the § 2255 proceedings, Lassend filed another
supplemental petition in which he argued that his sentence was
unconstitutional because the government could not show that his
criminal record contained violent felonies under the ACCA's force
clause, 18 U.S.C. § 924(e)(2)(B)(i). Consequently, he argued, his
ACCA sentence must have been based on predicates that relied on
the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), which
1 On October 14, 2014, Lassend had filed a timely pro se
petition under 28 U.S.C. § 2255, challenging his conviction on
four grounds.
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was declared unconstitutionally vague in Johnson II, see 135 S. Ct.
at 2563. In particular, Lassend argued that (1) his New York
conviction for attempted second-degree assault does not qualify as
a violent felony because the crime can be committed recklessly;
(2) his New York first-degree robbery convictions do not qualify
as violent felonies because they do not require the use of violent
force; (3) his Massachusetts ABDW conviction does not qualify as
a violent felony because the crime can be committed recklessly and
by a mere touching; and (4) his Massachusetts ADW conviction does
not qualify as a violent felony because it does not require the
intentional use of violent force.
The government opposed these arguments for the same
reasons it now gives in support of the district court's decision.2
It also argued those issues should not be reached because Lassend
had procedurally defaulted his Johnson II claims. We deal with
the procedural default and merits arguments below.
We also note that the government obtained the indictment
and plea-colloquy transcript for Lassend's New York attempted
second-degree assault conviction and placed them in the record
2 The government also explained that the district court
need not reach the issue of whether Lassend's Massachusetts ABDW
conviction should also be considered a violent felony given that
Lassend's criminal record contained three other predicate violent
felonies.
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before the district court.3 The government argued that although
the indictment did not cite the statutory provision for the counts
charged, it contained language mirroring the statutory language of
New York Penal Law § 120.05(2) as to the first count and New York
Penal Law § 120.05(7) (prisoner assault) as to the second count.
The government argued that the plea-colloquy transcript showed
that Lassend pled guilty to the second count of the indictment,
and, consequently, the applicable statutory provision for his
conviction was § 120.05(7).
At the hearing on Lassend's § 2255 petition in May 2017,
Lassend argued for the first time that his New York first-degree
robbery conviction under New York Penal Law § 160.15(4) is not a
violent felony because the statute does not require the actual use
of a dangerous weapon to threaten the victim, nor, he says, does
it require that the perpetrator himself intentionally use violent
force.
On July 11, 2017, the district court denied Lassend's
§ 2255 petition in a careful decision. See Lassend, 2017 WL
2960518, at *1. Addressing Lassend's procedural default on his
ACCA claim, the district court noted that the Supreme Court had
3 The government also obtained certified copies of
convictions showing that Lassend's 1992 first-degree robbery
conviction was for violating § 160.15(2) and that his 1997 first-
degree robbery conviction was for violating § 160.15(4). Lassend
does not dispute that he was convicted under these statutes.
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rejected vagueness challenges to the ACCA's residual clause in
James v. United States, 550 U.S. 192 (2007), overruled by Johnson
II, 135 S. Ct. 2551, and Sykes v. United States, 564 U.S. 1 (2011),
overruled by Johnson II, 135 S. Ct. 2551, and those decisions were
controlling at the time of Lassend's sentencing and direct appeal.
Lassend, 2017 WL 2960518, at *8. Moreover, Lassend's direct appeal
was filed, argued, and decided before the Supreme Court granted
certiorari in Johnson II. Id. As such, the district court found
that a Johnson II claim was not reasonably available to Lassend at
the time of his direct appeal, thereby establishing cause. Id.
The district court also reasoned that the prejudice inquiry merged
with Lassend's merits claims because if Lassend could show that he
should not have been sentenced under the ACCA in light of
Johnson II, "his failure to raise that claim obviously resulted in
prejudice." Id.
As to the merits of Lassend's claims, the district court
first found that, under clear First Circuit precedent, Lassend's
Massachusetts ADW conviction qualifies as a violent felony under
the ACCA's force clause. Id. at *10. The district court also
found that Lassend's New York attempted second-degree assault
conviction qualifies as an ACCA predicate under the force clause.
Id. at *10-12. Applying the modified categorical approach, the
district court determined that Lassend had been convicted under
New York Penal Law § 120.05(7) because the relevant Shepard
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documents -- the state court indictment and the plea-colloquy
transcript -- showed that Lassend had pled guilty to the second
count of the indictment, the language of which mirrored that of
§ 120.05(7). Lassend, 2017 WL 2960518, at *11. The district court
rejected Lassend's argument that a conviction under § 120.05(7)
does not constitute a violent felony because a perpetrator can
violate subsection (7) without using violent force in causing
injury. Id. at *11-12. In doing so, the district court noted
that the Supreme Court's decision in United States v. Castleman,
134 S. Ct. 1405 (2014), undermined cases suggesting that the
indirect application of force cannot involve the use of physical
force as required by the force clause. Lassend, 2017 WL 2960518,
at *12.
The district court next found that Lassend's 1997 New
York first-degree robbery conviction qualifies as a violent
felony. Id. at *12-16. It applied the modified categorical
approach to determine that Lassend had been convicted under
§ 160.15(4). Id. at *13. It then determined that the "[d]isplays
what appears to be a . . . firearm" element of that subsection
involves the threatened use of physical force, thereby qualifying
the 1997 conviction as a violent felony. Id. at *14-15 (alteration
in original) (quoting N.Y. Penal Law § 160.15(4)). The district
court also determined that § 160.15(4) satisfies both the intent
requirement of Leocal v. Ashcroft, 543 U.S. 1 (2004), and the force
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requirement of Johnson v. United States ("Johnson I"), 559 U.S.
133 (2010). Lassend, 2017 WL 2960518, at *16 (citing Stuckey v.
United States, 224 F. Supp. 3d. 219, 225-230 (S.D.N.Y. 2016)).
The district court accordingly held that Lassend was
properly sentenced as an armed career criminal. Id.
The district court granted Lassend a certificate of
appealability on Lassend's claim that his ACCA sentence violates
the Constitution.
II. Discussion
An individual in federal custody may petition for post-
conviction relief under 28 U.S.C. § 2255(a) if, inter alia, the
individual's sentence "was imposed in violation of the
Constitution or laws of the United States" or "is otherwise subject
to collateral attack." Id. The petitioner bears the burden of
proof. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015)
(citing David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)).
When reviewing a district court's denial of a § 2255 petition, we
review the district court's legal conclusions de novo and any
factual findings for clear error. Id. (citing Owens v. United
States, 483 F.3d 48, 57 (1st Cir. 2007), abrogated on other grounds
by Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)).
A. Procedural Default
"[C]laims not raised on direct appeal may not be raised
on collateral review unless the petitioner shows cause and
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prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003)
(citing United States v. Frady, 456 U.S. 152, 167-68 (1982);
Bousley v. United States, 523 U.S. 614, 622 (1998)). The
procedural default rule is "adhered to by the courts to conserve
judicial resources and to respect the law's important interest in
the finality of judgments." Id.
1. Cause
A petitioner has cause for procedurally defaulting a
constitutional claim where that claim was "so novel that its legal
basis [wa]s not reasonably available to counsel" at the time of
the default. Reed v. Ross, 468 U.S. 1, 16 (1984). Despite that
broad language of reasonableness, the Supreme Court also held in
Reed that a claim "will almost certainly have [had] . . . no
reasonable basis" when the claim is based on a "constitutional
principle that had not been previously recognized but which is
held to have retroactive application," and the constitutional
principle arises from a decision in which the Court (1) "explicitly
overrule[s] one of [its own] precedents," or (2) "overtur[ns] a
longstanding and widespread practice to which [the] Court ha[d]
not spoken, but which a near-unanimous body of lower court
authority ha[d] expressly approved." Id. at 17. We are bound by
those latter statements.
At the time of Lassend's direct appeal in 2013, the
Supreme Court's decisions in James and Sykes were still good law.
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Both of those decisions had rejected challenges to the ACCA's
residual clause on constitutional vagueness grounds. Sykes, 564
U.S. at 28 (Scalia, J., dissenting); James, 550 U.S. at 210 n.6.
Johnson II expressly overruled James and Sykes in relation to the
ACCA. See 135 S. Ct. at 2563. Even though Lassend had made a
vagueness argument in the district court and had abandoned it on
appeal, under Reed, we find that Lassend has shown cause for his
procedural default. See United States v. Snyder, 871 F.3d 1122,
1127 (10th Cir. 2017) (holding that petitioner's procedurally
defaulted Johnson II claim was not reasonably available because
Johnson II overruled Sykes and James, thus satisfying the first
prong of Reed).
The government argues that Bousley requires that we find
that Lassend had no cause. In that case, the petitioner argued
that he had cause for his procedural default because it would have
been futile to raise the argument in question. Bousley, 523 U.S.
at 623. The Court rejected this contention, stating that "futility
cannot constitute cause if it means simply that a claim was
'unacceptable to that particular court at that particular time.'"
Id. (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). The
government uses this case to argue that Lassend had no cause for
procedurally defaulting his ACCA constitutionality argument even
though Sykes and James foreclosed such a challenge. Bousley is no
help to the government because the petitioner's argument in that
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case was not based on a constitutional right created by the Supreme
Court's overruling of its own precedent. See 523 U.S. at 622.
Reed stated that, where the Supreme Court "explicitly overrule[s]
one of [its own] precedents, . . . the failure of a defendant's
attorney to have pressed such a claim . . . is sufficiently
excusable to satisfy the cause requirement." 468 U.S. at 17. That
is what happened here. Unlike the defaulted argument in Bousley,
Lassend's argument was not "available at all," Smith v. Murray,
477 U.S. 527, 537 (1986) (internal quotation marks omitted), until
the Supreme Court "explicitly overrule[d]" Sykes and James, Reed,
468 U.S. at 17.
2. Prejudice
To overcome procedural default, Lassend must also show
"'actual prejudice' resulting from the errors of which he
complains." Frady, 456 U.S. at 168. If Lassend is correct that
the prior convictions he is challenging are not violent felonies,
he can argue actual prejudice because his sentence was undoubtedly
influenced by the determination that he had qualifying ACCA
predicates.4 On the other hand, if Lassend's challenge fails on
4 The finding that Lassend was an armed career criminal
under the ACCA subjected him to a statutory minimum sentence of 15
years for violating 18 U.S.C. § 922(g)(1), see id. § 924(e)(1),
compared to a ten-year statutory maximum that would otherwise be
applicable, see id. § 924(a)(2). The finding also increased his
total offense level, and thereby his GSR, under the Sentencing
Guidelines. See U.S.S.G. § 4B1.4.
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the merits, there cannot be actual prejudice because there would
be no error from which such prejudice would flow. While we have
found little law on the topic of prejudice, we think that the
prejudice inquiry dovetails with the merits inquiry, and is not
satisfied by mere argument. Contra Snyder, 871 F.3d at 1128.
B. Merits of Constitutional Challenge to the ACCA
An individual who violates 18 U.S.C. § 922(g)(1) is
generally subject to a maximum penalty of ten years' imprisonment.
See id. § 924(a)(2). However, under the ACCA, a violation of
§ 922(g)(1) carries a mandatory minimum of fifteen years'
imprisonment if the defendant has "three previous
convictions . . . for a violent felony . . . ." Id. § 924(e)(1).
The ACCA's force clause defines "violent felony" as a conviction
that carries a maximum term of imprisonment of more than one year,
and that "has as an element the use, attempted use, or threatened
use of physical force against the person of another." Id.
§ 924(e)(2)(B)(i). The Supreme Court has defined "physical force"
under the force clause as "violent force -- that is, force capable
of causing physical pain or injury to another person." Johnson I,
559 U.S. at 140 (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th
Cir. 2003)).
On appeal, Lassend challenges the district court's
determination that his convictions for Massachusetts ADW, New York
attempted second-degree assault, and New York first-degree robbery
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qualify as predicates under the ACCA's force requirement, as
defined in Johnson I, making different arguments as to each. The
parties agree that each of the statutes giving rise to these three
convictions are divisible. Hence, we apply the modified
categorical approach. See id. at 144. Under it, we first
determine "which of the multiple offenses listed in the statute[s]
w[ere] the crime[s] committed by the defendant," United States v.
Faust, 853 F.3d 39, 53 (1st Cir.), reh'g denied, 869 F.3d 11 (1st
Cir. 2017), and then evaluate whether those offenses meet the
ACCA's violent-force requirement, see United States v. Starks, 861
F.3d 306, 315-16 (1st Cir. 2017). We consider whether the least
serious conduct covered by the offense "necessarily involves the
use[, attempted use, or threatened use] of violent force," but
there must be "a 'realistic probability' of a charge and
conviction" for that conduct. Id. at 315 (citing Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013); United States v. Fish, 758
F.3d 1, 6 (1st Cir. 2014)).5
1. Massachusetts ADW
The Massachusetts ADW statute provides that
[w]hoever, by means of a dangerous weapon,
commits an assault upon another shall be
5 For the purposes of our analysis, we assume that
decisions construing the term "crime of violence" in the Sentencing
Guidelines and decisions construing the term "crime of violence"
in 18 U.S.C. § 16(a) inform the construction of the term "violent
felony" in the ACCA. See Fish, 758 F.3d at 9; United States v.
Hart, 674 F.3d 33, 41 n.5 (1st Cir. 2012).
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punished by imprisonment in the state prison
for not more than five years or by a fine of
not more than one thousand dollars or
imprisonment in jail for not more than two and
one-half years.
Mass. Gen. Laws ch. 265, § 15B(b). Lassend does not dispute that
he was convicted under this statute.
In United States v. Whindleton, 797 F.3d 105, 116 (1st
Cir. 2015), we rejected the argument that Johnson I overruled our
holding in United States v. Am, 564 F.3d 25 (1st Cir. 2009), that
the Massachusetts ADW statute "'has as an element the use,
attempted use, or threatened use of physical force' as required by
the ACCA's Force Clause." Whindleton, 797 F.3d at 116 (citing Am,
564 F.3d at 33). While Whindleton left open the question as to
whether Massachusetts ADW fails to qualify as a violent felony
under ACCA because it lacks a requirement that the use or threat
be intentional, id. at 116 n.12, we answered that question in the
negative in United States v. Hudson, 823 F.3d 11 (1st Cir. 2016).
There, we held that a conviction under the Massachusetts ADW
statute "includes a mens rea requirement sufficient to qualify the
conviction as a predicate under the ACCA's force clause." Id.
at 17.
Of course, "newly constituted panels in a multi-panel
circuit court are bound by prior panel decisions that are closely
on point." United States v. Wurie, 867 F.3d 28, 34 (1st Cir. 2017)
(quoting San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st
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Cir. 2010)), cert. denied, 138 S. Ct. 690 (2018). Lassend fails
to even make the argument that an exception6 to this rule applies.
We are bound by the law of the circuit that a conviction under
Mass. Gen. Laws ch. 265, § 15B(b) constitutes a violent felony
under the ACCA's force clause.
2. New York Attempted Second-Degree Assault under
Subsection (7)
Under New York Penal Law § 120.05(7),
[a] person is guilty of assault in the second
degree when . . . [h]aving been charged with
or convicted of a crime and while confined in
a correctional facility, as defined in
subdivision three of section forty of the
correction law, pursuant to such charge or
conviction, with intent to cause physical
injury to another person, he causes such
injury to such person or to a third
person . . . .
Id. Reading the second count of the indictment underlying
Lassend's conviction for attempted second-degree assault and his
plea colloquy, it is clear that Lassend was convicted under New
York Penal Law § 120.05(7).7
6 There are narrow exceptions to the law of the circuit
rule, including (1) "when the holding of the prior panel is
'contradicted by controlling authority, subsequently announced'";
or (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." Wurie, 867 F.3d
at 34 (first quoting San Juan Cable, 612 F.3d at 33; then quoting
United States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)).
7 The second count of the indictment stated the following:
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Both the indictment and the plea-colloquy transcript are
Shepard-approved documents. See Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016) (citing Shepard v. United States, 544 U.S.
13, 26 (2005)). The district court correctly concluded that
§ 120.05(7) was the applicable statue of conviction.
We reject8 Lassend's assertion that the indictment must
expressly cite § 120.05(7) for the documents to establish that he
was convicted under that statutory provision. See United States
The grand jury of the County of the Bronx by
this indictment, accuses the defendant Kirk
Lassend of the crime of assault in the second
degree committed as follows:
The defendant, Kirk Lassend, . . . with intent
to cause physical injury to another person,
Willie Wells, did cause such injury to Willie
Wells, where at the time of the commission of
the act, the defendant was confined in a
correctional facility pursuant to having been
charged with or convicted of a crime.
And defense counsel stated that "Mr. Lassend has authorized me
. . . to enter a plea of guilty to attempted assault in the second
degree, under count two of [the] indictment . . . ." (emphasis
added). The trial court also confirmed with Lassend that he was
pleading guilty to "attempted assault in the second degree under
the second count of the indictment . . . ." (emphasis added).
8 We also reject Lassend's claim that the documents do not
establish that he was convicted under § 120.05(7) because the plea-
colloquy transcript shows that he pled guilty to "attempted
assault" whereas the indictment charged assault. Lassend fails to
explain how this alleged discrepancy is material, given that
Lassend acknowledged during the plea colloquy that he was pleading
guilty to count two of the indictment. Moreover, the ACCA's force
clause expressly encompasses crimes involving the "attempted . . .
use of physical force." 18 U.S.C. § 924(e)(2)(B)(i) (emphasis
added).
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v. Sanchez-Espinal, 762 F.3d 425, 430 (5th Cir. 2014) (holding
that "[a] charging [document] that closely tracks the language of
a particular statute can establish that the defendant was charged
under that section").
Lassend next argues that a conviction under § 120.05(7)
does not qualify as a violent felony because the statute does not
actually require that physical force be used to cause the injury.
To support this argument, Lassend relies primarily on two district
court decisions from other circuits, which concern a different
subsection of § 120.05 and purport to rely on a suggestion from
Second Circuit reasoning in Chrzanoski v. Ashcroft, 327 F.3d 188
(2d Cir. 2003), which the Second Circuit may have itself
disavowed.9 The Second Circuit recently recognized that, to the
9 Lassend relies on United States v. Poindexter, No. 3:97-
CR-00079, 2016 WL 6595919 (E.D. Va. Nov. 7, 2016) and Grant v.
United States, No. 06-CR-732, 2017 WL 2881132 (E.D.N.Y. July 5,
2017). The district courts in both Poindexter and Grant held that
a conviction for second-degree assault under New York Penal Law
§ 120.05(1) is not a violent felony under the ACCA's force clause.
Grant, 2017 WL 2881132, at *5; Poindexter, 2016 WL 6595919, at *4.
Under § 120.05(1), second-degree assault is committed when an
individual, "[w]ith intent to cause serious physical injury to
another person, causes such injury to such person or to a third
person." N.Y. Penal Law § 120.05(1). Both Poindexter and Grant
relied on the Second Circuit's reasoning in Chrzanoski v. Ashcroft,
327 F.3d 188 (2d Cir. 2003). See Grant, 2017 WL 2881132, at *5-
6; Poindexter, 2016 WL 6595919, at *4. In Chrzanoski, the Second
Circuit held that a conviction under Connecticut General Statutes
§ 53a-61(a)(1) -- which contains virtually identical language to
New York Penal Law § 120.05(1) -- does not qualify as a crime of
violence pursuant to 18 U.S.C. § 16(a). 327 F.3d at 192, 195. In
so holding, the Second Circuit noted that
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extent that its reasoning in Chrzanoski suggests that the use of
physical force cannot be indirect, that logic does not survive the
Supreme Court's decision in Castleman. See United States v. Hill,
890 F.3d 51, 60 (2d Cir. 2018). In Castleman, the Court held that
the common law concept of physical force "encompasses even its
indirect application," so, for example, sprinkling poison in a
victim's drink constitutes the use of physical force because the
use of force is not the sprinkling of the poison, but "the act of
employing poison knowingly as a device to cause physical harm."
134 S. Ct. at 1414-15.
it seems an individual could be convicted of
intentional assault in the third degree for
injury caused not by physical force, but by
guile, deception, or even deliberate
omission. . . . [H]uman experience suggests
numerous examples of intentionally causing
physical injury without the use of force, such
as a doctor who deliberately withholds vital
medicine from a sick patient. . . .
Id. at 195-96. Like the Second Circuit in Chrzanoski, we held in
Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015), that a conviction
under Connecticut General Statutes § 53a-61(a)(1) does not qualify
as a crime of violence under 18 U.S.C. § 16(a). Whyte, 807 F.3d
at 467, 471. However, the government in Whyte had waived the
argument that, under the Supreme Court's reasoning in Castleman,
causing injury categorically "involves the use of physical force
by the defendant himself even if the defendant's misconduct was
limited to guile, deception, or deliberate omission." Whyte v.
Lynch, 815 F.3d 92, 92-93 (1st Cir. 2016) (internal quotation marks
omitted) (denying petition for rehearing). Moreover, as we explain
below, there is a material difference between generic assault
statutes like Connecticut General Statutes § 53a-61(a)(1) and New
York Penal Law § 120.05(1), on the one hand, and New York Penal
Law § 120.05(7), on the other.
- 20 -
The Court in Castleman also held that "the knowing or
intentional causation of bodily injury necessarily involves the
use of physical force" under 18 U.S.C. § 921(a)(33)(A). 134 S. Ct.
at 1414 (emphasis added). But the Court recognized that while the
term "physical force" as used in § 921(a)(33)(A) should be given
its presumptive common law meaning of "offensive touching," the
same cannot be said for the term "physical force" in the ACCA's
force clause. Id. at 1410. Specifically, the ACCA deals with
violent felonies and, consequently, violent force -- not merely
offensive touching -- is required for a crime to satisfy the ACCA's
force clause. Id. As such, the Court expressly stated that it
was not reaching the issue of "[w]hether or not the causation of
bodily injury necessarily entails violent force." Id. at 1413
(emphasis added).10
We need not decide whether some methods of indirectly
causing physical harm11 -- for example, deliberately withholding
10 Justice Scalia concurred in Castleman. 134 S. Ct. at
1416 (Scalia, J., concurring in part and concurring in the
judgment). Under his view, the term "physical force" in
§ 921(a)(33)(A)(ii) should be given the same meaning as the term
"physical force" in the ACCA's force clause. Id. at 1417.
Moreover, Justice Scalia believed that "'intentionally or
knowingly causi[n]g bodily injury' . . . categorically involves
the use of 'force capable of causing physical pain or injury to
another person.'" Id. (citation omitted).
11 Following Castleman, the Fourth Circuit has consistently
drawn a distinction between the causation of bodily injury and the
use of violent force. See United States v. Middleton, 883 F.3d
485, 491 (4th Cir. 2018) (noting that "the use of violent force"
cannot be conflated "with the causation of injury"); United States
- 21 -
vital medicine -- do not involve the use of violent force, because
Lassend's challenge to the use of § 120.05(7) as an ACCA predicate
suffers from an antecedent flaw.
In evaluating whether a crime satisfies the force
clause, we examine "the least serious conduct for which there is
a 'realistic probability' of a charge and conviction." Starks,
861 F.3d at 315 (emphasis added) (citing Moncrieffe, 569 U.S. at
190-91; Fish, 758 F.3d at 6). Lassend has not shown how there is
a realistic probability of violating § 120.05(7) -- which requires
that the assault be committed by a prisoner in a correctional
facility -- without using violent force. It is hard to imagine
how a prisoner could intentionally cause physical harm to someone
in prison by, for instance, failing to fulfill a legal duty.12 And
v. McNeal, 818 F.3d 141, 156 & 156 n.10 (4th Cir. 2016) (same).
On the other hand, other circuits have not recognized such a
distinction. See, e.g., United States v. Ontiveros, 875 F.3d 533,
535, 538 (10th Cir. 2017) (concluding that a conviction for
Colorado second-degree assault -- which is committed when a person
"[w]ith intent to cause bodily injury to another person, . . .
causes serious bodily injury to that person or another person,"
Colo. Rev. Stat. § 18-3-203(1)(g) -- is a crime of violence under
U.S.S.G. § 4B1.2(a)(1) because it is impossible to cause bodily
injury without the use of physical force), cert. denied, 138 S. Ct.
2005 (2018); United States v. Ovalle-Chun, 815 F.3d 222, 226 (5th
Cir. 2016) ("Impairing a person's physical condition or causing a
person substantial pain is consistent with a force violent enough
to constitute a crime of violence under U.S.S.G. § 2L1.2.").
12 It is possible that the hypothetical conduct described
in Chrzanoski -- withholding vital medicine -- can be the basis of
an assault charge under § 120.05(1), at least where there is a
legal duty to provide such medicine, see People v. Miranda, 612
N.Y.S.2d 65, 66 (App. Div. 1994).
- 22 -
Lassend does not point us to a single New York case in which a
conviction under § 120.05(7) has been obtained based on nonviolent
conduct. Because "[w]e are not supposed to imagine 'fanciful,
hypothetical scenarios' in assessing what the least serious
conduct is that the statute covers," United States v. Ellison, 866
F.3d 32, 38 (1st Cir. 2017) (quoting Fish, 758 F.3d at 6), we
conclude that Lassend's conviction under § 120.05(7) qualifies as
a violent felony under the ACCA's force clause.
3. New York First-Degree Robbery
Lassend was convicted under New York Penal Law
§ 160.15(4), which provides, in relevant part, that:
A person is guilty of robbery in the first
degree when he forcibly steals property and
when, in the course of the commission of the
crime or of immediate flight therefrom, he or
another participant in the crime . . .
[d]isplays what appears to be a pistol,
revolver, rifle, shotgun, machine gun or other
firearm . . . .
Id. (emphasis added). New York Penal Law § 160.15(4) requires
the state to prove that a defendant displayed an item that appears
to be a firearm in the course of "forcibly steal[ing]" property.
Id. "A person 'forcibly steals' when the person 'uses or threatens
the immediate use of physical force upon another person for the
purpose of . . . [c]ompelling the owner of such property or another
person to deliver up the property." People v. Lamont, 33 N.E.3d
1275, 1278 (N.Y. 2015) (alteration in original) (quoting N.Y. Penal
- 23 -
Law § 160.00(2)). The government satisfies the display requirement
by "show[ing] that the defendant consciously displayed something
that could reasonably be perceived as a firearm, with the intent
of forcibly taking property, and that the victim actually perceived
the display." People v. Lopez, 535 N.E.2d 1328, 1331 (N.Y. 1989)
(citing People v. Baskerville, 457 N.E.2d 752, 756 (N.Y. 1983)).
That display objectively puts a victim in reasonable fear of
physical harm, regardless of whether the item displayed is actually
capable of producing such harm. As such, as the district court
correctly held, § 160.15(4) "has as an element the . . . threatened
use of physical force against the person of another." 18 U.S.C.
§ 924(e)(2)(B)(i).
As the New York Court of Appeals stated in People v.
Miller, 661 N.E.2d 1358 (N.Y. 1995), the core robbery offense
"involves the misappropriation of property under circumstances
that pose a danger not only to the property but to the person."
Id. at 1362 (emphasis added). "It is the robber's intent . . . to
permanently deprive the victim of property by compelling the victim
to give up property or quashing any resistance to that act that is
prohibited by law." Id.
The court went on to discuss the "attendant
circumstances" (such as displaying a weapon), noting that these
aggravating circumstances embody a "legislative determination"
that the "'aggravating factors' exacerbate[] the core criminal act
- 24 -
and increase[] the danger of serious physical injury . . . , thus
warranting harsher punishment for the robber." Id. at 1361.
Lassend does not contest the fact that he was convicted
under § 160.15(4). Nor does he contest that his conviction shows
that he intended to forcibly steal property. That alone, he says,
is not enough.13 He challenges the use of his conviction as an
ACCA predicate on two aspects of the aggravating circumstances.
i. Display of What Appears To Be a Firearm
Lassend first argues that the display element of
§ 160.15(4) does not satisfy Johnson I's violent-force requirement
because a defendant can display an item that is not actually
dangerous. He focuses his argument on the language "displays what
appears to be a pistol, revolver, rifle, shotgun, machine gun or
other firearm." N.Y. Penal Law § 160.15(4) (emphasis added). He
says our decision in United States v. Starks, 861 F.3d 306 (1st
Cir. 2017), requires that we rule in his favor.
Lassend is correct that, under New York law, an
individual can violate § 160.15(4) by displaying an item that is
not actually a firearm, but only appears to the victim to be such.14
13 Neither party disputes that the "forcibly steals
property" element of § 160.15(4) does not satisfy Johnson I's
violent-force requirement in light of our decision in United States
v. Steed, 879 F.3d 440 (1st Cir. 2018).
14 A defendant charged under § 160.15(4) can present an
affirmative defense that the firearm displayed "was not a loaded
weapon from which a shot, readily capable of producing death or
other serious physical injury, could be discharged." This
- 25 -
There is a New York case suggesting that "[a] towel wrapped around
a black object . . . , a toothbrush held in a pocket . . . [,] or
even a hand consciously concealed in clothing" can satisfy the
display element of § 160.15(4) "if under all the circumstances the
defendant's conduct could reasonably lead the victim to believe
that a gun is being used during the robbery." Lopez, 535 N.E.2d
at 1331. "[I]t must appear to the victim by sight, touch or sound
that he is threatened by a firearm." Baskerville, 457 N.E.2d at
756. What matters for § 160.15(4) is not whether the defendant's
displayed item is actually capable of inflicting physical injury,
but rather whether the defendant's actions cause the victim to be
in reasonable fear of bodily harm.
Case law has long made it clear that display of what
appears to be a weapon increases fear of bodily harm. Lassend's
reliance on our decision in Starks does not work because that case
involved the crime of Massachusetts armed robbery, which we found
not to be a violent felony. See 861 F.3d at 320, 324. That crime
does not require the defendant to use, or make the victim aware of
the display of what appears to be a weapon. Id. at 320.
Our own case law requires rejection of Lassend's
argument, as does the law of other circuits. In Ellison, we held
affirmative defense does not "constitute a defense to a prosecution
for, or preclude a conviction of, robbery in the second degree,
robbery in the third degree or any other crime." Id.
- 26 -
that federal bank robbery is categorically a crime of violence
under U.S.S.G. § 4B1.2(a), even though it can be committed "by
intimidation," 18 U.S.C. § 2113(a). 866 F.3d at 33-34.
Intimidation is shown through evidence that the defendant's
actions "would, as an objective matter, cause a fear of bodily
harm" in the victim. Id. at 37. Similarly, in United States v.
Luna, 649 F.3d 91 (1st Cir. 2011), we held that Massachusetts armed
robbery involving only "threatening words or gestures" satisfies
the ACCA's force clause because it has "as an element the . . .
attempted use[] or threatened use of physical force." Id. at 108
(alteration in original) (citing 18 U.S.C. § 924(e)(2)(B)(i)). In
both cases, we focused on whether the victim reasonably perceived
a threat of bodily harm, not on whether the defendant could have
carried out that threat.
Case law from other circuits follows the same approach.
The Fifth Circuit in United States v. Ovalle-Chun, 815 F.3d 222
(5th Cir. 2016), held that a conviction under the Delaware
aggravated-menacing statute -- which is violated "when by
displaying what appears to be a deadly weapon[, a] person
intentionally places another person in fear of imminent physical
injury," Del. Code Ann. tit. 11, § 602(b) -- qualifies as a "crime
of violence" under U.S.S.G. § 2L1.2(b)(1). Ovalle-Chun, 815 F.3d
at 224, 226-27; see also Ledoue v. Att'y Gen., 462 Fed. App'x 162,
165-66 (3d Cir. 2011) (per curiam) (unpublished) (similar). In
- 27 -
doing so, the Fifth Circuit explicitly rejected the defendant's
argument "that aggravated menacing does not involve physical force
because it only requires that the victim have the perception that
there is a weapon but does not require an actual weapon." Ovalle-
Chun, 815 F.3d at 226.
The Sixth Circuit reached a similar conclusion in United
States v. Gloss, 661 F.3d 317 (6th Cir. 2011), with respect to the
Tennessee aggravated robbery statute, which covers
"the intentional or knowing theft of property
from the person of another by violence or by
putting the person in fear," where that theft
is "[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to
lead the victim to reasonably believe it to be
a deadly weapon; or . . . [w]here the victim
suffers serious bodily injury."
Id. at 318 (alteration in original) (quoting Tenn. Code. Ann.
§§ 39-13-401, 39-13-402). The Sixth Circuit held that a conviction
under the Tennessee statute qualifies as a violent felony under
the ACCA's force clause because "[a]ny robbery accomplished with
a real or disguised deadly weapon . . . falls under the first
clause of the definition of violent felony, as it necessarily
involves 'the use, attempted use, or threatened use of physical
force against the person of another.'" Id. at 319 (quoting
18 U.S.C. § 924(e)(2)(B)(i)).
- 28 -
ii. Accomplice
Lassend next urges us to hold that a conviction under
§ 160.15(4) is not a violent felony under Leocal and Johnson I
because the statute does not require a defendant to intend the use
of violent force as to the display of a firearm. In Leocal, the
Supreme Court held that the phrase "use . . . of physical force
against the person or property of another" in 18 U.S.C. § 16(a)
"most naturally suggests a higher degree of intent than negligent
or merely accidental conduct." 543 U.S. at 9. Accordingly, the
Court determined that a conviction under Florida's DUI statute --
which makes it a third-degree felony to operate a vehicle while
under the influence and "by reason of such operation, caus[e] . . .
[s]erious bodily injury to another," Fla. Stat. § 316.193(3)(c)(2)
-- is not a crime of violence under § 16(a). Leocal, 543 U.S. at
7-10. Lassend contends that, under § 160.15(4), a defendant can
be convicted of first-degree robbery if an accomplice displays a
weapon without the defendant's knowledge. Lassend argues that
this means that § 160.15(4) does not require a level of intent
"higher . . . than negligent or merely accidental conduct."
Leocal, 543 U.S. at 9.
We reject Lassend's argument that the fact that a
defendant can be convicted when an accomplice displays a firearm
or what appears to be a firearm means that § 160.15(4) does not
satisfy the ACCA's intent requirement under Leocal.
- 29 -
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) (emphasis added). This definition focuses on the
elements of the crime of conviction, not on the particular act
committed by the defendant or the circumstances of his conviction.
What matters for the force clause, then, is whether a felony's
legal definition involves violent force, not whether a particular
individual actually employed or intended to employ violent force
in committing that felony. In order for there to be a conviction
under § 160.15(4), one of the offenders must have threatened the
use of violent force.15 The force clause does not inquire into
which offender in fact made that threat.
The Supreme Court addressed similar language in Dean v.
United States, 556 U.S. 568 (2009). That case concerned 18 U.S.C.
§ 924(c)(1)(iii), which provides a mandatory minimum sentence of
10 years to a person who uses or carries a firearm during and in
15 To the extent Lassend may be arguing that a defendant
can be convicted where he unintentionally displays a weapon, he
has waived that argument by failing to develop it. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The argument would
fail even if properly raised. In order to sustain a conviction
under § 160.15(4), the prosecution must show, inter alia, "that
the defendant consciously displayed something that could
reasonably be perceived as a firearm." See, e.g., People v. Smith,
75 N.E.3d 84, 87-88 (N.Y. 2017) (emphasis added) (quoting Lopez,
535 N.E.2d at 1331).
- 30 -
relation to any violent crime or drug-trafficking crime, or
possesses a firearm in furtherance of such a crime, "if the firearm
is discharged." Dean, 556 U.S. at 572, 578 (citing 18 U.S.C.
§ 924(c)(1)(A)(iii)). The petitioner in that case argued that he
could not be sentenced under that provision because he did not
intend for the firearm to be discharged. Id. at 571. The Court
rejected that argument, holding that § 924(c)(1)(A)(iii) did not
impose an intent requirement as to the discharge of the firearm.
Id. at 572-74. The Court reasoned that the phrase "if the firearm
is discharged," "focuses on an event that occurs without respect
to a specific actor, and therefore without respect to any actor's
intent or culpability." Id. at 572. From that, the Court
determined that the statute was concerned with "whether something
happened -- not how or why it happened." Id. The same logic
applies here. The force clause focuses on the elements of the
crime of conviction -- i.e., what acts occurred -- "without respect
to any actor's intent or culpability." Id.
Our interpretation of the ACCA's force cause is
consistent with that of the Second Circuit, which recently rejected
an identical § 160.15(4) argument in Stuckey. It noted that "the
intent and force requirements outlined in Leocal and [Johnson I]
are examined separately." Stuckey, 878 F.3d at 70. It determined
that (1) § 160.15(4) satisfies Leocal's requirement that a
defendant have "a higher degree of intent than negligent or merely
- 31 -
accidental conduct," because the state is required to establish
the defendant's intent to commit forcible stealing, id. at 71
(quoting Leocal, 543 U.S. at 9), and (2) that Johnson I's violent-
force requirement is separately met by the statute's aggravating-
circumstance element, id.
The Second Circuit began by acknowledging that the
parties agreed that first-degree robbery under New York law
required the display of a weapon "in the course of a robbery,"
which "well exceeds the degree of violent physical force the ACCA
requires." Id. at 70. As explained above, we agree that
§ 160.15(4) meets the force requirement. The court reasoned that
the intent requirement announced in Leocal was met because, in
order to be convicted, "[t]he defendant must . . . actively and
intentionally engage in the commission of the robbery -- precisely
what Leocal requires . . . ." Id. at 71. Because § 160.15(4)
requires as an element of the offense that there be a use of force
or threatened use of force that is more than merely negligent,
this case is distinguishable from Leocal, which involved a Florida
reckless driving statute that did not require criminal intent.
Id.
Indeed, our holding also comports with traditional
accomplice-liability principles. As the Second Circuit noted,
§ 160.15(4) "reflects the principle of criminal law that a
defendant may be held responsible for actions taken by an
- 32 -
accomplice to certain crimes." Stuckey, 878 F.3d at 70 (citing
United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938); Francis
Bowes Sayre, Criminal Responsibility for the Acts of Another, 43
Harv. L. Rev. 689, 702–04 (1930)). The government says it found
one other case that supports this. See United States v. Young,
229 F. App'x 423, 424 (8th Cir. 2007) (per curiam) (unpublished)
(noting that recognizing a distinction between "solo and group
crimes" in evaluating whether an offense is a violent felony under
the ACCA "would be inconsistent with the general principle that a
person convicted as an accomplice is guilty of the same underlying
offense as the principal").
The Supreme Court dealt with the culpability of
principals and accomplices in Gonzales v. Duenas-Alvarez, 549 U.S.
183 (2007). In that case, the Court applied the categorical
approach to determine whether aiding and abetting a vehicle theft
offense under California law was a generic theft offense for the
purposes of 8 U.S.C. § 1101(a)(43)(G). Duenas-Alvarez, 549 U.S.
at 185. The California statute in that case stated in relevant
part that "any person who is a party or an accessory to or an
accomplice in the driving or unauthorized taking or stealing [of
a vehicle], is guilty of a public offense. Cal. Veh. Code Ann.
§ 10851(a) (emphasis added). The Ninth Circuit had held that
§ 10851(a) was not a generic theft offense because "generic theft
has as an element the taking or control of others' property" and
- 33 -
the Ninth Circuit "believed that one might 'aid' or 'abet' a theft
without taking or controlling property." Duenas-Alvarez, 549 U.S.
at 188 (citing Penuliar v. Ashcroft, 395 F.3d 1037, 1044-45 (9th
Cir. 2005)).
The Court, in reversing the Ninth Circuit, recognized
that "every jurisdiction -- all States and the Federal Government
-- has 'expressly abrogated the distinction'" between principals,
aiders and abettors present at the scene of a crime, and
accessories before the fact. Id. at 189-90 (quoting 2 W. LaFave,
Substantive Criminal Law § 13.1(e), at 333 (2d ed. 2003)). Given
that accomplices are to be treated the same as principals for the
purposes of state and federal law, it is perfectly natural that
§ 160.15(4) holds a defendant responsible when a fellow robbery
participant displays a weapon.
The government draws a similar analogy to the felony
murder rule. In Dean, the Court observed that:
It is unusual to impose criminal punishment
for the consequences of purely accidental
conduct. But it is not unusual to punish
individuals for the unintended consequences of
their unlawful acts. See 2 W. LaFave,
Substantive Criminal Law § 14.4, pp. 436–437
(2d ed. 2003). The felony-murder rule is a
familiar example: If a defendant commits an
unintended homicide while committing another
felony, the defendant can be convicted of
murder. See 18 U.S.C. § 1111.
Dean, 556 U.S. at 575. The Court also noted that 18 U.S.C.
§ 924(c)(1)(A)(iii)
- 34 -
accounts for the risk of harm resulting from
the manner in which the crime is carried out,
for which the defendant is responsible. An
individual who brings a loaded weapon to
commit a crime runs the risk that the gun will
discharge accidentally. A gunshot in such
circumstances -- whether accidental or
intended -- increases the risk that others
will be injured, that people will panic, or
that violence (with its own danger to those
nearby) will be used in response. Those
criminals wishing to avoid the penalty for an
inadvertent discharge can lock or unload the
firearm, handle it with care during the
underlying violent or drug trafficking crime,
leave the gun at home, or -- best yet -- avoid
committing the felony in the first place.
Dean, 556 U.S. at 576 (citation omitted). Similarly, an individual
who commits first-degree robbery with an accomplice "runs the
risk," id., that the accomplice will employ or threaten violent
force to facilitate the robbery. And when such violent force is
actually employed or threatened during the robbery, "the risk of
harm resulting from the manner in which the crime is carried out,"
id., increases, and all participants in the crime are fairly
burdened with enhanced sentences under the ACCA.16
16 In line with Dean, many circuits have explained that it
is typical to hold defendants accountable for the unintended
consequences of intentional criminal acts. See, e.g., United
States v. McDuffy, 890 F.3d 796, 802 (9th Cir. 2018) (holding that
there is "no need to read a mens rea requirement" into 18 U.S.C.
§ 2113(e), which punishes criminals for killing someone in the
course of a bank robbery, because "[c]ommitting the basic crime of
bank robbery is already wrongful conduct"); United States v.
Burwell, 690 F.3d 500, 502, 507 (D.C. Cir. 2012) (en banc) (holding
that there is no need to read a mens rea requirement into 18 U.S.C.
§ 924(c)(1)(B)(ii), which imposes a mandatory minimum sentence of
30 years' imprisonment for an individual who carries a machine gun
- 35 -
The intent requirement for conviction as an accomplice
or accessary can vary by crime and jurisdiction. Compare Rosemond
v. United States, 134 S. Ct. 1240, 1243 (2014) (holding that, under
federal law, to prove aiding and abetting the crime of using or
carrying a firearm during a crime of violence, the government must
prove "that the defendant actively participated in the underlying
[crime] . . . with advance knowledge that a confederate would use
or carry a gun during the crime's commission") with Miller, 661
N.E.2d at 1363 (holding that strict liability attaches to the
aggravating circumstances under New York Penal Law § 160.15). When
Congress passed the ACCA, it was presumably aware that various
states imposed vicarious liability under certain criminal laws.
Congress made no attempt to exclude convictions under such laws
from the force clause.
If Congress had desired to preclude convictions from
qualifying as ACCA predicates where the defendant acted as an
accomplice and did not intend the principal's use of force, it
would have done so clearly. Congress could have included an
while committing a crime of violence because, inter alia, it is
not "unusual to punish individuals for the unintended consequences
of their unlawful acts"); United States v. Taylor, 659 F.3d 339,
343-44 (4th Cir. 2011) (upholding the validity of U.S.S.G.
§ 2k2.1(b)(4)(A) -- which increases a defendant's offense level by
two points if a firearm involved in a § 922(g) offense was stolen,
regardless of whether the defendant knew or had reason to believe
that the firearm was stolen -- because "[a]n unlawful course of
conduct inevitably carries its share of risks").
- 36 -
express intent requirement in the ACCA's force clause, as it did
in other subsections of 18 U.S.C. § 924. See, e.g., 18 U.S.C.
§ 924(a)(1), (a)(2), (a)(3), (a)(5), (a)(6)(B), (a)(7), (b),
(d)(1), (f), (h), (i)(1), (k); see also Dean, 556 U.S. at 572-73
(refusing to read an intent requirement into 18 U.S.C.
§ 924(c)(1)(A)(iii) in part because "Congress expressly included
an intent requirement" for the preceding subsection, 18 U.S.C.
§ 924(c)(1)(A)(ii) (citing Russello v. United States, 464 U.S. 16,
23 (1983))).
For these reasons, we hold, consistent with the Second
Circuit, that § 160.15(4) meets the requirements of Leocal and
Johnson I. First, § 160.15(4)'s display element independently
meets Johnson I's violent-force requirement. Second, § 160.15(4)
does not criminalize the type of "negligent or merely accidental
conduct" that Leocal discussed, 543 U.S. at 9, because a weapon
must be consciously displayed during forcible stealing to violate
§ 160.15(4). Hence, a conviction under § 160.15(4) is a violent
felony under the ACCA's force clause.
III. Conclusion
Because three of Lassend's convictions qualify as
violent felonies under the ACCA's force clause,17 we affirm the
district court's dismissal of his § 2255 petition.
17 Because we have determined that three of Lassend's
convictions qualify as ACCA predicates, we need not decide whether
- 37 -
his conviction for forcible theft while armed with a deadly weapon
under New York Penal Law § 160.15(2) is an ACCA predicate. See
United States v. Mastera, 435 F.3d 56, 62 (1st Cir. 2006).
- 38 -