United States v. Williams

80 F.4th 85

UNITED STATES of America, Appellee, v. Kourtney WILLIAMS, Defendant, Appellant.

No. 21-1493

United States Court of Appeals, First Circuit

August 22, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge]

Jessica LaClair, with whom Law Office of Jessica LaClair was on brief, for appellant.

Noah Falk, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

Before Gelpí, Howard, and Thompson, Circuit Judges.

HOWARD, Circuit Judge.

Defendant-appellant Kourtney Williams appeals the sentence he received in connection with a 2014 robbery in Maine. Specifically, he contends that his base offense level should have been lower, because: (1) the district court mistakenly found that two of his earlier convictions for assault with a dangerous weapon under Massachusetts law and robbery with the use of a dangerous weapon under Maine law were "crime[s] of violence" under U.S. Sentencing Guidelines ("USSG") § 2K2.1; and (2) the record does not in fact show that he was convicted of robbery with the use of a dangerous weapon under Maine law. Because our cases foreclose his first contention, and we disagree with his second, we affirm.

I. Background

This is Williams's second appeal. See United States v. Lara, 970 F.3d 68 (1st Cir. 2020). In the present appeal, he challenges only his sentence; therefore, we summarize the facts relevant to that issue.

In April 2015, Williams was indicted for conspiracy to possess with intent to distribute controlled substances, 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C); conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a); use of a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii); and possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1) and 924(e). In September 2016, a jury found him not guilty of conspiracy to possess with intent to distribute controlled substances, but guilty of the other charges.

At his first sentencing, the district court concluded that Williams qualified as a "career offender" under USSG § 4B1.1 because, as relevant here, he "ha[d] at least two prior felony convictions" for "crime[s] of violence" as defined by § 4B1.2 - - specifically, assault with a dangerous weapon, Mass. Gen. Laws ch. 265, § 15B(b) ("Massachusetts ADW") and robbery with the use of a dangerous weapon, Me. Rev. Stat. Ann. tit. 17-A, §§ 651(1)(B) and 1252(4) ("Maine RDW")¹ -- and calculated his guidelines sentencing range accordingly. Williams, 2017 WL 3485562 at *2-5; § 4B1.2, cmt. n.1 (cross-referencing the definition in § 4B1.1).

The district court sentenced him to a total incarcerative sentence of 184 months and mandatory supervised release, and Williams appealed, challenging his convictions and sentence. We affirmed his convictions, except for the one for use of a firearm during and in relation to a crime of violence under § 924(c)(1)(A), and vacated and remanded the case for resentencing in light of that determination. Lara, 970 F.3d at 73.

At his resentencing, the district court concluded that his base offense level was 26 under USSG § 2K2.1(a)(1), which applied because of his conviction for possession of a firearm by a felon in violation of § 922(g)(1). That section provides in relevant part for a base offense level of 26 where a defendant has previously "sustain[ed] at least two felony convictions of . . . a crime of violence." "Crime of violence" is in turn defined by § 4B1.2, which is part of the career offender Guidelines. See United States v. Castro-Vazquez, 802 F.3d 28, 34 n.3 (1st Cir. 2015); USSG § 2K2.1 cmt. n.1. The district court concluded, consistent with its earlier ruling, that Williams had two previous felony convictions for crimes of violence -- one for Massachusetts ADW and one for Maine RDW -- and calculated his Guidelines sentencing range on that basis. The court imposed a total prison sentence of 140 months followed by three years of supervised release.

II. Discussion

The only question in this appeal is whether the district court correctly concluded that Williams had two prior felony convictions for "crime[s] of violence." Williams contends that Massachusetts ADW and Maine RDW are not crimes of violence, and also that he was not in fact convicted of Maine RDW, but rather of robbery in violation of § 651(1)(B), which the parties agree does not qualify as a crime of violence.

Whether a prior conviction qualifies as a "crime of violence" is a question of law that, if preserved, we review de novo. See United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).²

Section 4B1.2(a) defines an offense as a "crime of violence" if the offense is "punishable by imprisonment for a term exceeding one year" and: "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another," or (2) "is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, [or] robbery . . . ." The first clause is often referred to as the "elements" or "force" clause; the second is often referred to as the "enumerated" clause. And the Supreme Court held in Johnson v. United States that " 'physical force' means violent force -- that is, force capable of causing physical pain or injury to another person." 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis in original).

The government contends that Massachusetts ADW is a crime of violence under the elements clause, but that Maine RDW qualifies as a crime of violence under either clause of § 4B1.2. However, the parties treat the analysis applicable to Maine RDW as the same under either clause, and we focus here on the elements clause.

We apply the "categorical approach" to determine "whether a defendant's prior conviction for a certain crime satisfies the [elements] clause." See United States v. Starks, 861 F.3d 306, 315 (1st Cir. 2017) (examining an identical clause under the Armed Career Criminal Act ("ACCA")).³ Under that approach, the question turns not on whether the defendant in fact "used, attempted to use, or threatened to use violent force in committing the crime as a matter of historical fact, but on whether the use, attempted use, or threatened use of violent force is required to satisfy one of the crime's elements." Id. Thus, a court should consider "whether the least serious conduct for which there is a 'realistic probability' of a charge and conviction necessarily involves the use of violent force." Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)).

A. Massachusetts ADW

We have previously held that Massachusetts ADW is a "crime of violence" under the elements clause of § 4B1.2 and ACCA. United States v. Fields, 823 F.3d 20, 35 (1st Cir. 2016) (§ 4B1.2); United States v. Hudson, 823 F.3d 11, 18 (1st Cir. 2016) (ACCA). Williams's main contention as to Massachusetts ADW is that the Supreme Court's decisions in United States v. Taylor, — U.S. —, 142 S. Ct. 2015, 213 L.Ed.2d 349 (2022), and Borden undermine those previous decisions, and that we should therefore reconsider them. The government contends that we remain bound by Hudson and Fields.

Under the law of the circuit doctrine, "newly constituted panels . . . are constrained by prior panel decisions directly (or even closely) on point," Hudson, 823 F.3d at 14-15 (quotations omitted), absent "the occurrence of a controlling intervening event (e.g., a Supreme Court opinion on the point; a ruling of the circuit, sitting en banc; or a statutory overruling) or, in extremely rare circumstances, where non-controlling but persuasive case law suggests such a course," United States v. Chhien, 266 F.3d 1, 11 (1st Cir. 2001).

Thus, to determine whether Borden or Taylor represents a "controlling intervening event," it is necessary to review the existing case law in this circuit concerning the elements clause of § 4B1.2, as well as closely analogous provisions in § 16 and ACCA.

The first such relevant case is United States v. Fish, in which we concluded that § 16(b) -- which defines a crime of violence as including "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," § 16(b) (emphasis added) -- "does not reach recklessness offenses." 758 F.3d 1, 9-10 (1st Cir. 2014). We thus concluded that a conviction for assault and battery with a dangerous weapon ("ABDW") under Massachusetts law did not qualify as a "crime of violence" under § 16(b), because it can be committed with "the intentional commission of a reckless act." Id. at 16. We based our conclusion on the Supreme Court's decision in Leocal v. Ashcroft, which held that the phrase "use . . . of physical force against another" in the elements clause of § 16 -- that is, § 16(a) -- excluded negligence-or-less crimes because the phrase "most naturally suggests a higher degree of intent than negligent or merely accidental conduct." 543 U.S. 1, 9-10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). The Court found the same as to § 16(b), due to the same language in that clause. Id. at 11, 125 S.Ct. 377. In Fish, we noted that several other circuits had extended Leocal's rationale to reckless crimes under §§ 16(a) and (b), which Leocal had not had the occasion to address, and made the same extension as to § 16(b). 758 F.3d at 10-11, 11 n.4.⁴

Next, in United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015), we held that Massachusetts ADW is a "crime of violence" under ACCA's elements clause. Id. at 107. We had previously concluded that simple assault under Massachusetts law is not a "crime of violence" under that clause because it can be accomplished by an attempted or threatened offensive touching and thus does not require "violent force" as defined by Johnson - - that is, "force capable of causing physical pain or injury to another...