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United States v. Edwards

United States Court of Appeals, First Circuit

May 19, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JAMES EDWARDS, a/k/a Black, Defendant, Appellee.

         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 ...


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