APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Elizabeth Prevett, Federal Public Defender Office, for
appellant.
Mark
T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
Before
Torruella, Thompson, and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
Preface
A
person with three convictions for violent felonies or serious
drug offenses who commits a federal firearms crime is an
armed career criminal and must be sentenced to at least 15
years in prison - so says the Armed Career Criminal Act
("ACCA, " for short). See 18 U.S.C. §
924(e). Under the governing rule, the government must prove
the existence of the prior convictions by a preponderance of
the evidence. See United States v. Mulkern, 854 F.3d
87, 90 (1st Cir. 2017); see also United States v.
Dancy, 640 F.3d 455, 467 (1st Cir. 2011). The
preponderance-of-the-evidence standard "is a
more-likely-than-not rule." Mulkern, 854 F.3d
at 90 n.2 (quoting United States v. Vixamar, 679
F.3d 22, 29 (1st Cir. 2012)).
Now
meet James Edwards, the defendant in today's case.
Edwards pled guilty - without a plea agreement - to a bunch
of federal firearms offenses under 18 U.S.C. §
922(g).[1] These pleas added to his already long
criminal record, which included Massachusetts convictions for
(1) unarmed robbery, (2) assault with a dangerous weapon, (3)
distribution of a controlled substance, and (4) armed assault
with intent to murder. The district judge concluded that
convictions (1) and (2) - unarmed robbery and assault with a
dangerous weapon, respectively - are violent felonies. And
Edwards conceded (then, as now) that conviction (3) -
distribution of a controlled substance - is a serious drug
offense. As for conviction 4 - armed assault with intent to
murder - the judge thought it is not a violent felony because
no binding caselaw directly holds that it is. So relying on
convictions (1), (2), and (3), the judge deemed Edwards an
armed career criminal and sentenced him to 15 years behind
bars.
Unhappy
with this outcome, Edwards appeals. But examining the matter
afresh, see United States v. Dawn, 842 F.3d 3, 7
(1st Cir. 2016), we affirm - though our analysis differs in
some respects from the judge's.
Narrowing
of the Issues
Edwards
attacks his sentence on a variety of grounds, not all of
which require extended discussion.
For
example, Edwards insists that the judge blundered by
"imposing sentence on the basis of prior convictions
that were not included in the indictment, not admitted by
[him], and not proven to a jury beyond a reasonable
doubt." Recognizing that his argument runs smack into
Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998), a precedent we must apply until the Justices
themselves say otherwise, he raises the issue only to
preserve it for possible Supreme Court review. So we need say
no more about that argument. And though he says that
United States v. Whindleton, 797
F.3d 105, 114 (1st Cir. 2015), cert. dismissed, 137
S.Ct. 23 (2016), and cert. denied, 137 S.Ct. 179
(2016), holds that assault with a dangerous weapon in
Massachusetts is a violent felony, he notes his objection to
that holding simply to preserve it for possible further
review. Enough said about that issue too. With two predicates
properly counted - assault with a dangerous weapon (thanks to
Whindleton) and distribution of a controlled
substance (thanks to his concession) - Edwards is left to
argue that neither the unarmed-robbery conviction nor the
armed-assault-with-intent-to-murder conviction is a violent
felony. And so, his argument continues, neither conviction
can provide the necessary third predicate for his ACCA
sentence. But because - for reasons shortly stated - we
conclude that his armed-assault-with-intent-to-murder
conviction does qualify as an ACCA predicate, we need not
decide whether his unarmed-robbery conviction does as well.
On,
then, to the armed-assault-with-intent-to-murder issue.
Armed-Assault-with-Intent-to-Murder
Conviction as the Third ACCA Predicate
ACCA
...