United States v. Weems

United States Court of Appeals
For the First Circuit
No. 17-1059
UNITED STATES OF AMERICA,
Appellant,
v.
KENDALL ROSE,
Defendant, Appellee.
No. 17-1064
UNITED STATES OF AMERICA,
Appellant,
v.
IKE WEEMS, a/k/a True,
Defendant, Appellee.
No. 17-1066
UNITED STATES OF AMERICA,
Appellant,
v.
ANTHONY SABETTA,
Defendant, Appellee.
No. 17-1067
UNITED STATES OF AMERICA,
Appellant,
v.
ALBERTO RODRÍGUEZ,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge,
Hon. William E. Smith, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Donald C. Lockhart, Assistant United States Attorney, with
whom Stephen G. Dambruch, Acting United States Attorney, was on
brief, for appellant.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender Office, was on brief, for appellees.
July 18, 2018
TORRUELLA, Circuit Judge. Kendall Rose, Ike Weems,
Anthony Sabetta, and Alberto Rodríguez (collectively, the
"Defendants") brought motions under 28 U.S.C. § 2255 to vacate,
set aside, or correct their sentences. They argued that, in the
wake of Johnson v. United States (Johnson II), 135 S. Ct. 2551(2015), their convictions for the Rhode Island offense of Assault
with a Dangerous Weapon (A/BDW), see R.I. Gen. Laws § 11-5-2(a),
no longer qualify as predicate convictions triggering the Armed
Career Criminals Act's (ACCA) mandatory 15-year sentence, see 18
U.S.C. § 924(e). The district court agreed with them, and granted
those motions. The government appealed. We affirm.
I.
We begin with an overview of this case's factual and
procedural background, which also gives us the opportunity to
review the law that is in play here.
A.
The facts relevant to this appeal are straightforward
and uncontested. All of the Defendants were convicted of
violating 18 U.S.C. § 922(g), which forbids from possessing
firearms individuals who have been convicted of crimes that are
punishable with over one year of imprisonment. "In general, the
law punishes violation of this ban by up to 10 years'
imprisonment." Johnson II, 135 S. Ct. at 2555 (citing 18 U.S.C.
-3-
§ 924(a)(2)). "But if the violator has three or more earlier
convictions for a 'serious drug offense' or a 'violent felony,'
[ACCA] increases his prison term to a minimum of 15 years and a
maximum of life." Id. (citing 18 U.S.C. § 924(e)). This was the
case for the Defendants, who all received mandatory sentences of
at least 15 years that relied at least in part on their predicate
convictions under R.I. Gen. Laws § 11-5-2(a).
After the Defendants received their ACCA-enhanced
sentences, the Supreme Court decided Johnson II. That case
pertained to ACCA's definition of "violent felony" for purposes of
determining whether a defendant's prior convictions trigger the
statute's 15-year mandatory sentence. Under ACCA, a "violent
felony" is
any crime punishable by imprisonment for a term
exceeding one year . . . that --
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson II held that
the last of these clauses -- known as the "residual clause" (and
emphasized above), 135 S. Ct. at 2563 -- was void for vagueness.
Then, in Welch v. United States, the Supreme Court held that
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Johnson II had announced a new substantive rule that, as a result,
would apply retroactively on collateral review. 136 S. Ct. 1257,
1268 (2016). So today, ACCA-enhanced sentences that depended on
predicate convictions for offenses qualifying as violent felonies
under ACCA's residual clause are now invalid unless those offenses
are either one of the offenses enumerated in § 924(e)(2)(B)(ii) or
meet the force clause's definition of "violent felony," see id.
§ 924(e)(2)(B)(i).
The Defendants' § 2255 motions asserted that their
convictions under R.I. Gen. Laws § 11-5-2(a) are not convictions
for violent felonies under the force clause. 1 The Defendants
therefore argued that they do not have the three predicate
convictions necessary support their 15-year-plus sentences under
ACCA. R.I. Gen. Laws § 11-5-2(a) establishes, in pertinent part,
that "[e]very person who shall make an assault or battery, or both,
with a dangerous weapon, or with acid or other dangerous substance,
or by fire, or an assault or battery that results in serious bodily
injury shall be guilty of a felony assault." Id. The statute
does not expressly identify the mental state necessary to commit
A/BDW. This ends up complicating things.
1 It is undisputed that ADW does not qualify as a violent felony
as one of ACCA's enumerated offenses, that is, "burglary, arson
. . . extortion, [or another offense that] involves use of
explosives." See 18 U.S.C. § 924(e)(2)(B)(ii).
-5-
B.
The Defendants' motions came before two different
district judges, who, with the parties' consent, held a joint
hearing and resolved the motions in a jointly issued memorandum
and order. United States v. Sabetta, 221 F. Supp. 3d 210, 213 n.1
(D.R.I. 2016).2 That memorandum and order explained that "Chief
Judge Smith and Judge McConnell independently reached the
conclusions contained" therein. Id.In deciding whether, post-Johnson II, the Defendants'
convictions under R.I. Gen. Laws § 11-5-2 continued to constitute
convictions for "violent felonies," the district court recognized
that its inquiry was limited to "the fact of conviction and the
statutory definition of the prior offense." Id. at 215 (quoting
Taylor v. United States, 495 U.S. 575, 602 (1990)). This is known
as the "categorical approach." Taylor, 495 U.S. at 602. The
district court explained that, "[t]o satisfy the force clause under
the categorical approach, the use, attempted use, or threatened
use of violent force must be an element of the prior offense."
Sabetta, 221 F. Supp. 3d at 215 (citing Descamps v. United States,
570 U.S. 254, 277 (2013)). As the district court put it, "[t]he
2 The district court's memorandum and order also resolved the
motions of three additional individuals who are not parties to
this appeal.
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facts of the defendant's crime do not matter, only the elements of
the offense do." Id.; see also Bennett v. United States, 868 F.3d
1, 22 (1st Cir. 2017) ("[I]t may seem anomalous that an offense
bearing the name 'aggravated assault' could escape ACCA's reach .
. . . But Congress instructed us to take our cues from an offense's
elements rather than from either its label or the underlying means
by which that offense was carried out in a particular case."
(citing Mathis v. United States, 136 S. Ct. 2243, 2251 (2016)))
withdrawn, 870 F.3d 34, 36 (1st Cir. 2017).
There is a wrinkle to this, though, when a single statute
"list[s] elements in the alternative, and thereby define[s]
multiple crimes." Mathis, 136 S. Ct. at 2249. Statutes of that
sort are known as "divisible" statutes. Id. When a defendant has
been convicted under a divisible statute, courts employ what is
"labeled (not very inventively) the 'modified categorical
approach.'" Descamps, 570 U.S. at 257. Under the modified
categorical approach, courts are authorized to look at a limited
category of documents -- known as "Shepard documents," see Shepard
v. United States, 544 U.S. 13, 20 (2005) -- to determine "which
alternative formed the basis of the defendant's prior conviction,"
Descamps, 570 U.S. at 257.
Here, the district court first determined that R.I. Gen.
Laws § 11-5-2(a) -- which it described as "not the model of
-7-
clarity" -- "is divisible[,] and that at least one of the offenses
contained within that statute is [A/BDW]." Sabetta, 221 F. Supp.
3d at 216. The district court also concluded that, as the Rhode
Island Supreme Court has recognized, "the act element of [A/BDW]
can be accomplished by the means of an assault, a battery, or
both." Id.; see (State v. Soler, 140 A.3d 755, 763 (R.I. 2016);
see also Mathis, 136 S. Ct. at 2256 (explaining that in determining
whether an alternatively phrased statute is divisible, courts must
"determine whether its listed items are elements or means," and
instructing courts to look first to state law to determine which
is the case). The district court then found, in light of the
Shepard documents the government had introduced, that all of the
Defendants had been convicted of Rhode Island A/BDW. Sabetta, 221
F. Supp. 3d at 217.
As a result, it became incumbent upon the district court
to determine whether Rhode Island A/BDW satisfies ACCA's force
clause. Its analysis proceeded in two steps. First, it queried
whether the mental state of recklessness is sufficient to sustain
a conviction for Rhode Island A/BDW. After surveying the relevant
case law -- a survey we will replicate momentarily -- the district
court tentatively concluded that recklessness is enough. Id. at
220. While explaining that "this is a close call, and our
conclusion is not free from doubt," the district court nonetheless
-8-
found that the rule of lenity compelled the holding that, for
purposes of the Defendants' challenges to their sentences,
"recklessness is sufficient to satisfy a conviction for Rhode
Island A/BDW." Id.
Next, the district court set out to determine whether "a
crime that only requires proving a recklessness mens rea with
respect to the attempted, threatened, or actual use of force
against the person of another [can] qualify as a violent felony
under the ACCA's force clause." Id. at 221. This circuit's
precedent, it concluded, indicated that such crimes cannot satisfy
the force clause. Id. at 223. It therefore held that Rhode
Island A/BDW "is not categorically a violent felony under the
ACCA." Id. at 224. As a result, the district court declined to
reach the Defendants' alternative argument that Rhode Island A/BDW
is not a violent felony under the categorical approach because the
battery form does not require "violent force." Id. at 224 n.12;
see Johnson v. United States, 559 U.S. 133, 140 (2010) ("[I]n the
context of [ACCA's] definition of 'violent felony,' the phrase
'physical force' means violent force -- that is, force capable of
causing physical pain or injury to another person.").
Lastly, the district court rejected the government's
argument that the Defendants had procedurally defaulted on their
Johnson II-based challenges to their sentences by failing to
-9-
challenge the constitutionality of ACCA's residual clause at
sentencing or on direct appeal. Sabetta, 221 F. Supp. 3d at 226.
Any such challenge, the district court reasoned, would have been
"sufficiently novel" at the time "to excuse each of the Defendants'
failure to raise it at sentencing or on direct review." Id. at
227. Finding that the Defendants easily established that they
suffered prejudice from the legal error underpinning their
sentences -- because "if the Defendants were sentenced today, their
sentences would have been statutorily capped at 120 months" -- the
district court announced that it would schedule individual
hearings on the Defendants' motions to vacate and be re-sentenced.
Id.
After the government moved unsuccessfully for
reconsideration, the district court resentenced each of the
Defendants to 120 months' imprisonment. The government now
appeals to us.
II.
A.
As an initial matter, we observe that the government
does not argue that the district court erred in determining that
Rhode Island A/BDW's assault and battery forms are not divisible
from each other. Rather, for purposes of our analysis, the
government urges us to "assume in the [D]efendants' favor that the
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two components are not divisible," thereby waiving any argument to
the contrary. The Defendants agree with the government on this
point. Thus, in light of the parties' agreement that we should
assume that the assault and battery forms of Rhode Island A/BDW
are not divisible, our analysis proceeds under that assumption.
B.
We first take up the assault form of Rhode Island A/BDW.
The government argued below that, consistent with Voisine v. United
States, 136 S. Ct. 2272 (2016), an offense that has only a mens
rea of recklessness may nonetheless satisfy ACCA's force clause.
The district court did not agree. On appeal, while the government
"preserves its Voisine-based position for further review," it
concedes that this circuit's case law now forecloses the argument
that crimes with a mens rea of recklessness may be violent felonies
under the force clause. This concession is based on a correct
understanding of our circuit's precedent. Though, because the
reasons for this are slightly convoluted, we take a moment here to
explain why this is so.
In Bennett, we considered whether Maine aggravated
assault, which requires a mental state of mere recklessness,
constituted a violent felony under ACCA's force clause. 868 F.3d
at 7. We recognized that the petitioner's convictions could
qualify as force-clause violent felonies "[o]nly if causing bodily
-11-
injury with such a reckless mental state does constitute the use
of physical force against the person of another" -- a question
that our circuit and the Supreme Court had left unanswered. Id.
In setting out to answer that question, we first took note of our
holding in United States v. Fish, 758 F.3d 1 (1st Cir. 2014), that
the Massachusetts crime of assault and battery with a dangerous
weapon -- which we found to require only recklessness -- did not
qualify as a crime of violence under 18 U.S.C. § 16(b), which
defines "crime of violence" in a manner "closely analogous" to the
how ACCA's force clause defines "violent felony." Bennett, 868
F.3d at 8 (citing 758 F.3d at 9). Our holding in Fish, in turn,
drew from the Supreme Court's holding in Leocal v. Ashcroft, 543
U.S. 1, 9-10 (2004), that § 16(b) does not reach crimes of
negligence. Fish, 758 F.3d at 8. Though we acknowledged in Fish
that "the Supreme Court explicitly limited its reasoning to
negligence-or-less crimes," we concluded that "Leocal's rationale
would seem to apply equally to crimes encompassing reckless conduct
wherein force is brought to bear accidentally, rather than being
actively employed." Id. at 9.
Bennett also considered the Supreme Court's then-recent
holding in Voisine. Voisine involved 18 U.S.C. § 921(a)(33)(A)'s
definition of "misdemeanor crime of domestic violence" -- for
purposes of 18 U.S.C. § 922(g)(9)'s prohibition on individuals
-12-
convicted of such crimes possessing firearms -- as having an
element of "the use . . . of physical force." Voisine, 136 S. Ct.
at 2276. The Supreme Court held in Voisine that § 921(a)(33)(A)
did encompass crimes of recklessness. Id. at 2279. We recognized
in Bennett that, "to determine how Voisine bears on the question
at hand, we must decide what significance, if any, to attribute to
the seemingly divergent contexts and purposes between ACCA and
§ 922(g)(9)." Bennett, 868 F.3d at 17 (internal quotation marks
omitted). But after a detailed review of those things, we still
found ourselves confronted with a "grievous ambiguity" as to
"whether Congress intended the phrase 'use . . . of physical force
against the person of another' in ACCA's definition of a 'violent
felony' to include or exclude reckless aggravated assault as Maine
defines it." Id. at 23 (quoting United States v. Godin, 534 F.3d
51, 60-61 (1st Cir. 2008)). For that reason, the rule of lenity
brought us to the conclusion that Maine reckless aggravated assault
was not a violent felony under ACCA's force clause. Id.However, six days after the opinion in Bennett issued,
we received a "Notice of Death" from the government, informing us
that the petitioner had died five days prior to the opinion
issuing. Bennett, 870 F.3d at 35. This prompted us to withdraw
that opinion and vacate the judgment as moot. Id. at 36. This
did not mean, however, that the value of the opinion's reasoning
-13-
as to whether the force clause extends to crimes of recklessness
vanished in a puff of smoke. For, between the dates when the
government moved for us to withdraw the opinion in Bennett and
when we formally did so, we decided United States v. Windley, 864
F.3d 36 (1st Cir. 2017) (per curiam). And that opinion, noting
the possibility of Bennett's future withdrawal, stated that "this
panel, after careful consideration, reached the same conclusion
about whether reckless offenses qualify as violent felonies under
the force clause. Thus, by citing Bennett, we not only follow
precedent that is currently binding but also endorse and adopt its
reasoning as our own." Id. at 37 n.2. Windley, therefore, held
that Massachusetts ABDW, insofar as it may be committed with a
mens rea of mere recklessness, was not a violent felony. On the
basis of this precedent, the government agrees that, if
recklessness is sufficient to be convicted of the assault form of
Rhode Island A/BDW, that offense could not qualify as a violent
felony under the force clause.
We now turn to the question of whether a mental state of
recklessness is, in fact, sufficient for one to be convicted of
Rhode Island A/BDW.
C.
As the district court recognized, State v. Jeremiah
bears substantially on this question. See 546 A.2d 183 (R.I.
-14-
1988), abrogated on other grounds by State v. Jackson, 752 A.2d 5(R.I. 2000). There -- in taking up a defendant's sufficiency-of-
the-evidence challenge to his conviction for Rhode Island A/BDW --
the Rhode Island Supreme Court opened its analysis by quoting its
1897 decision in State v. Baker, where it set forth that "[a]n
assault, as ordinarily defined, is any unlawful attempt or offer,
with force or violence, to do a corporal hurt to another, whether
from malice or wantonness." Id. at 186 (quoting 38 A. 653, 654
(R.I. 1897)). In Baker, the Rhode Island Supreme Court affirmed
the A/BDW conviction of a defendant who had fired a pistol at or
in the direction of another individual -- an act the court
characterized as "reckless." 38 A. at 654. In support of its
conclusion that the defendant had committed A/BDW, the Baker court
cited multiple other cases showing, it said, "that it is an assault
to . . . recklessly fire a pistol in the direction of another."
Id.Here, after taking note of the term "wantonness" in
Jeremiah and Baker, the district court observed that "[t]he
authority here is sparse, to be sure, but the decisions of the
Rhode Island Supreme Court suggest that 'wantonness' is synonymous
with 'recklessness.'" Sabetta, 221 F. Supp. 3d at 218. After
reviewing those decisions, and considering the government's
counterarguments, the district court determined that the rule of
-15-
lenity compelled the conclusion that "recklessness is sufficient
to satisfy a conviction for Rhode Island [A/BDW]." Id. at 220.
On appeal, the government argues that while Baker, "an
1897 case[,] suggests one may commit [A/BDW] by 'recklessly
fir[ing] a pistol in the direction of another,' that stray passage
has never once been quoted in the intervening 120 years even though
Baker itself is often cited for other propositions." The
government further contends that, as the post-Baker case law and
other sources demonstrate, "wantonness" is not equivalent to
recklessness, and is sufficiently akin to "intent" to satisfy
ACCA's force clause. The Defendants, meanwhile, maintain that the
district court properly understood Rhode Island law as
sufficiently ambiguous on this point to require invoking the rule
of lenity. We now consider these opposing views of Rhode Island
law.
The government begins by arguing that Jeremiah --
despite setting forth that one may commit A/BDW with "malice or
wantonness" -- stands for three principles that show that Rhode
Island A/BDW requires more than recklessness. The first of these
principles is that § 11-5-2(a) requires proof of an "unlawful offer
to do corporal injury to another under such circumstances as may
create a reasonable apprehension of immediate injury unless the
person so threatened takes action or inaction to avoid it, coupled
-16-
with a present ability to carry the offer into effect." Jeremiah,
546 A.2 at 186-87 (emphasis added). These four emphasized terms,
according to the government, are proof of an intent requirement.
The second relevant principle that Jeremiah espoused, according to
the government, is that "[i]n Baker this court also recognized
that '[t]o constitute an assault with a dangerous weapon it is
necessary that the weapon should be presented at the party intended
to be assaulted, within the distance at which it may do
execution.'" Id. at 186 (citing 38 A. at 654). The language
"intended to be assaulted," the government argues, further shows
that recklessness cannot suffice. And lastly, the third principle
to which the government points is that "the actual present ability
of the defendant to inflict harm on the victim by using a dangerous
weapon is an element of the offense of assault with a dangerous
weapon." Id. (emphasis added). Together, the government
contends, these three principles "undercut any claim that mere
recklessness is enough."
But we do not find Jeremiah to provide particularly
strong evidence that recklessness is insufficient to sustain a
conviction for Rhode Island A/BDW. Indeed, of the passages of
Jeremiah that the government cites, it is only that case's
invocation of Baker's requirement that "the weapon should be
presented at the party intended to be assaulted" that appears to
-17-
suggest an intent requirement. See 38 A. at 654 (emphasis added).
And even this does not provide irrefutable proof. While the word
"intended" undeniably speaks in some measure to an intent
requirement, this word also appears amid a discussion not of the
assailant's mental state, but rather of how the "weapon should be
presented." Id. Thus, the passive "party intended to be
assaulted" is also amenable to the reading that those words, in
this context, simply mean "the would-be victim." Meanwhile, we
find the remaining passages from Jeremiah that the government cites
to be compatible with Rhode Island A/BDW requiring only
recklessness -- for example, that the assailant make an "unlawful
offer" and have the "present ability" to inflict harm. See 546
A.2d at 186-87. Thus, we are unconvinced by the government's
arguments that Jeremiah shows that the word "wantonness" as used
in Baker means something different from "recklessness."
The government also renews its insistence that a
requirement of more than recklessness is evident in State v.
Clifton, 777 A.2d 1272 (R.I. 2001), and State v. Franco, 750 A.2d
415 (R.I. 2000). In Clifton, the Rhode Island Supreme Court upheld
a defendant's conviction for A/BDW because it found that the
evidence introduced at trial "could sufficiently support an
objective inference that Clifton possessed the requisite criminal
intent to harm one or both of [the victims]." 777 A.2d at 1277.
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The government's reliance on Clifton, however, seems to gloss over
the difference between a crime having an intent requirement and a
crime requiring the mental state of "intent." Let us explain. In
the context of criminal law, "intentionally" can be synonymous
with "purposely," see Model Penal Code § 1.13 (Am. Law Inst. 2017),
which is a greater mens rea than "recklessly," see id. § 2.02(2).
But Clifton says only that Rhode Island A/BDW has a "requisite
criminal intent." 777 A.2d at 1277. It does not say that A/BDW
can only be committed "intentionally." And that distinction is
important, because "criminal intent" can also simply mean "mens
rea" or "mental state." See, e.g., Morissette v. United States,
342 U.S. 246, 254-57 (1952) (contrasting strict liability
regulatory offenses with those requiring "criminal intent").
Thus, it is also possible to read Clifton's reference to A/BDW's
"requisite criminal intent" as indicating only that A/BDW is not
a strict liability crime. So, Clifton provides limited insight
as to whether recklessness can suffice for a conviction for Rhode
Island A/BDW.
Franco is likewise uninstructive on this score. As
evidence that Rhode Island A/BDW requires more than recklessness,
the government cites a footnote of that opinion that explains that
"[t]he sixth charge, pertaining to assault with a dangerous weapon,
namely a credit card machine that fell on [the victim's] head, was
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dismissed at the close of evidence because there was no evidence
that defendant or [his accomplice] possessed the intent to do
bodily harm when the machine was yanked from the wall." 750 A.2d
at 418 n.2. But all that this footnote truly indicates is that
the trial judge who dismissed this count appears to have done so
pursuant to a belief that A/BDW requires "intent to do bodily
harm." Whether that belief was correct was not before the court
in Franco, and the opinion appears only to have included that
footnote to explain -- after describing in the main text the
allegations contained in counts one through five and seven -- what
became of count six. See id. at 417-18. Franco, therefore, also
has little bearing on the question of whether Rhode Island A/BDW
requires mere recklessness or something more.
Next, the government cites State v. Hallenbeck, which,
it says, in explaining that one may commit manslaughter "wantonly
or recklessly," indicates that those are two different mental
states. See 878 A.2d 992, 1005 (R.I. 2005). In support of the
notion that wantonness is both distinct from and a more culpable
mental state than recklessness, the government also cites Black's
Law Dictionary, which provides the following definition of
"wanton": "Unreasonably or maliciously risking harm while being
utterly indifferent to the consequences. In criminal law, wanton
usu[ally] connotes malice (in the criminal-law sense), while
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reckless does not." Wanton, Black's Law Dictionary 1815 (10th ed.
2014).
We are unconvinced that Hallenbeck definitively shows
that "wantonly" and "recklessly" are distinct mental states under
Rhode Island law. It seems at least equally reasonable to read
that above-quoted line from Hallenbeck as setting out two
alternative wordings for the same mental state -- an example,
perhaps, of the lexical thoroughness for which courts are known to
have a penchant. See, e.g., Herbert v. Mohawk Rubber Co., 872
F.2d 1104, 1110 (1st Cir. 1989) (explaining that a plaintiff may
make out a prima facie case for employment discrimination in cases
involving workforce reductions by showing, among other things,
"that he was purposefully or intentionally discriminated against
as an individual" (emphasis added)); United States v. Fei Lin, 139
F.3d 1303, 1309 (9th Cir. 1998) (holding that any error in district
court's jury instructions that the government needed to prove
beyond a reasonable doubt "that the defendant 'knowingly
transmitted a communication containing a demand for ransom'" was
harmless because "[b]ased on the evidence, it would not have been
possible for the jury to find that appellants knowingly transmitted
those demands without also finding that appellants purposefully or
intentionally" did so (emphasis added)). Of course, we recognize
that the same could be said for Jeremiah's use of "malice or
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wantonness." See 546 A.2d at 186 (quoting Baker, 38 A. at 654).
But, because the government's objective is to show that Rhode
Island A/BDW is categorically a violent felony, it needs to show
that it would be impossible for a defendant to be convicted of
that offense with a mental state of mere recklessness. And though
Hallenbeck and Black's Law Dictionary's potential equation of
"wantonness" to "malice" may both cut somewhat towards
"wantonness" being distinct from "recklessness," we do not think
that these sources confer certainty (least of all in light of the
Defendants' multiple arguments to the contrary, which we shall
turn to in a moment). Moreover, even if this were not so, and
"recklessness" and "wantonness" were plainly distinct mental
states, the government would still have to clear the additional
hurdle of showing that crimes that can be committed "wantonly"
satisfy the force clause -- a notion for which it offers scant
support.
The government's final argument pertains to R.I. Gen.
Laws § 11-5-2.2 -- titled "Battery--Criminal negligence." That
statute, according to the government, shows that "when the state
legislature wishes to allow for conviction based on a lower mens
rea standard, it knows how to do so." Therefore, we take the
government's argument to go, were recklessness sufficient for a
conviction for Rhode Island A/BDW, then the legislature would have
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used the word "recklessness" somewhere in that offense's statutory
title or definition. But this does not convince us. Negligent
assault, as set out in R.I. Gen. Laws § 11-5-2.2, contrasts with
the separate offense of "Simple assault or battery," codified at
§ 11-5-3. And, it is beyond dispute that a more culpable mental
state than wantonness (e.g., "intent") would support a conviction
for Rhode Island A/BDW. Hence, the legislature's express
provision of the solitary mens rea that could lead to conviction
under § 11-5-2.2 has minimal bearing on our inquiry here: whether
recklessness is above or below Rhode Island A/BDW's threshold mens
rea.
Having reviewed the government's view of how we should
read Rhode Island law, we now turn to the Defendants' contentions.
Broadly, the Defendants argue that, at a minimum, Rhode Island law
is so ambiguous as to Rhode Island A/BDW's mens rea that we should
apply the rule of lenity in their favor. They call our attention
to various sources suggesting that wantonness is a mens rea falling
short of intent, and is effectively equivalent to recklessness.
To begin, the Defendants point out that four years after
deciding Baker, the Rhode Island Supreme Court defined "wantonly"
as "[d]one in a licentious spirit, perversely, recklessly, without
regard to propriety or the rights of others; careless of
consequences, and yet without settled malice." State v. Gilligan,
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50 A. 844, 847 (R.I. 1901). The Defendants also argue that our
own precedent supports this conception of "wantonness." In United
States v. Tavares, we addressed whether the Massachusetts offense
of assault and battery with a dangerous weapon (ABDW) is a crime
of violence under ACCA. 843 F.3d 1, 12 (1st Cir. 2016). We found
the state statute at issue to be divisible, encompassing two
offenses, one of which criminalized "the intentional commission of
a wanton or reckless act . . . causing physical or bodily injury
to another." Id. (quoting Mass. Gen. Laws ch. 265, § 15A(b)). We
treated that form as requiring only a "reckless mens rea." Id.
at 15. And in Windley, we denominated this offense the "reckless
form" of Massachusetts ABDW. 864 F.3d at 37. This, the
Defendants press, demonstrates our at least implicit recognition
that wantonness is tantamount to recklessness. And while we don't
think this point is so forceful as to be dispositive here, we do
accept that it provides indicia that it wouldn't be unreasonable
to read "wantonness" in Baker and Jeremiah as establishing a mens
rea of recklessness.
Next, the Defendants tell us that Rhode Island A/BDW is
a "general intent" crime, for which recklessness can necessarily
suffice. Indeed, in State v. Prout, the Rhode Island Supreme
Court recognized Rhode Island A/BDW as a general intent crime.
996 A.2d 641, 647 (R.I. 2010). And in State v. Sivo, it explained
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that "[g]eneral-intent crimes require only the intention to make
the bodily movement which constitutes the act which the crime
requires." 925 A.2d 901, 914 (R.I. 2007) (internal quotation
marks omitted). This, we think, does tend to add to the
Defendants' contention that recklessness suffices in this
instance, but we also do not find it so forceful as to be
dispositive.
The Defendants next direct us to Rhode Island case law
on simple assault, which, they say, provides further evidence that
Rhode Island A/BDW has a mens rea of mere recklessness. For
example, the Rhode Island Supreme Court has defined assault as "a
physical act of a threatening nature or an offer of corporal injury
which puts an individual in reasonable fear of imminent bodily
harm." Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690, 694
(R.I. 1995) (quoting Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.
1983)); see also State v. Cardona, 969 A.2d 667, 673 (R.I. 2009)
(reciting the same definition in a felony domestic assault case).
This would seem to leave room for recklessness. And crucially,
in State v. Ashness, the Rhode Island Supreme Court set forth that
A/BDW consists of an assault plus the additional element of the
defendant's "actual present ability to inflict harm on the victim
by using a dangerous weapon." 461 A.2d 659, 666 n.8 (R.I. 1983).
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This too points in the direction of Rhode Island A/BDW requiring
only a mental state of recklessness.
Having considered the parties' urged readings of it, we
do not think that Rhode Island case law provides any resounding
certainty as to whether recklessness is sufficient to support a
conviction for A/BDW. Ultimately, Rhode Island's rather unclear
(and possibly even conflicting) precedent regarding A/BDW's
requisite mental state prevents us from concluding that is
categorically a violent felony. Indeed, it appears possible that,
without departing from controlling case law, a Rhode Island court
could -- relying for example on Jeremiah's provision of
"wantonness" as a sufficient mens rea, see 546 A.2d at 186, and
Gilligan's definition of "wantonly" as "recklessly . . . without
settled malice," see 50 A. at 847 -- uphold a defendant's
conviction for A/BDW when the defendant had a mental state of only
recklessness. And that distinct possibility, consistent with the
dictates of the categorical approach, means that we cannot treat
Rhode Island A/BDW as a violent felony for purposes of ACCA's force
clause. See Mathis, 136 S. Ct. at 2248.
Lastly, given our acceptance of the parties' concession
that battery and assault constitute different factual means of
committing Rhode Island A/BDW, rather than alternative elements of
that offense, we do not need to take up whether the battery form
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of that offense meets the "physical force" component of ACCA's
force clause. Consistent with the categorical approach, our
holding that the assault form of Rhode Island A/BDW does not
satisfy the force clause makes inevitable the conclusion that Rhode
Island A/BDW is not a violent felony under ACCA.
D.
All of this leaves us with one final matter to address.
Having concluded that Rhode Island A/BDW cannot serve as an ACCA
predicate conviction, the district court also rejected the
government's arguments that the Defendants should not be forgiven
for having failed to bring a constitutional challenge to ACCA's
residual clause at sentencing or on direct appeal. The district
rejected this argument, reasoning that the Defendants would not
have had any "reasonable basis" to have challenged the residual
clause prior to Johnson II, and that they therefore had sufficient
cause for failing to take that position. Sabetta, 221 F. Supp.
3d at 225-26.
On appeal, the Defendants argue that the government's
challenge to that determination below is so skeletal as to be
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). The government's appellate brief first recites that, on
collateral review, to forgive procedural default, a court must
find both cause and prejudice, or that the petitioner is actually
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innocent. See Damon v. United States, 732 F.3d 1, 4 (1st Cir.
2013) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)).
The government then explains that the district court held "that
all [of the Defendants] had shown cause and prejudice, dismissing
the government's contrary argument." But, rather than renewing
that "contrary argument," or otherwise asserting that the district
court erred, the government simply tells us that because Rhode
Island A/BDW does satisfy the force clause, the Defendants "cannot
show any error, let alone actual prejudice," and that as a result,
we "need not decide whether the district court was mistaken in
finding 'cause.'" Accordingly, because the government has not
invited us to review the district court's holding that the
Defendants did have cause, we refrain from doing so. And because
we agree with the district court that the Defendants suffered
prejudice (in the form of their resultant enhanced sentences), we
uphold its determination that the Defendants' procedural default
does not bar them from the relief they have sought.
III.
Because Rhode Island A/BDW does not constitute a violent
felony under ACCA's force clause, the Defendants no longer have
the three predicate convictions necessary to support their
original sentences. Therefore, the district court's decision
granting their motions under 28 U.S.C. § 2255 is affirmed.
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