United States v. Duval

United States Court of Appeals
For the First Circuit

Nos. 05-2163 and 06-1317

UNITED STATES OF AMERICA,

Appellee,

v.

TIMOTHY J. DUVAL and MICHAEL R. DOUCETTE,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.

Miriam Conrad, Federal Defender Office, was on brief, for
appellant Doucette.
John J. Barter, was on brief, for appellant Duval.
Claire J. Evans, Criminal Appellate Section, U.S. Department
of Justice, with whom Michael J. Sullivan, United States Attorney,
and John A. Capin, Assistant United States Attorney, were on brief,
for appellee.

August 7, 2007
 TORRUELLA, Circuit Judge. Timothy J. Duval and

Michael R. Doucette were each convicted of one count of being a

felon in possession of a firearm and ammunition, in violation of 18

U.S.C. § 922(g)(1). Duval and Doucette now appeal their

convictions and sentences. After careful consideration, we affirm.

I. Background

On January 27, 2003, Heath Woodward, then a resident of

Sanford, Maine, reported that his 1996 maroon Buick was stolen from

a convenience store parking lot. Woodward later testified that he

did not have any weapons in the car at that time.

In late January, Duval, Doucette, and Carlos Ramos (an

acquaintance of Duval and Doucette) spent a few nights at an

apartment rented by Robert Dyott. Dyott was an associate of Ramos

and unbeknownst to his guests, an informant for the Bureau of

Alcohol, Tobacco, and Firearms ("ATF"). Dyott would later testify

that while staying at his apartment, Doucette said that he and

Duval had stolen a car from a convenience store and that they had

some weapons in the trunk of that car that they wanted to "move"

(i.e., sell). Dyott also testified that Duval and Ramos were in

the room when Doucette said this, and that Duval did not disavow

Doucette's statement. According to Dyott, Doucette also said that

he and Duval were going to stay at a hotel the following night.

On January 31, 2003, a guest identifying himself as

"Carlos Ramos" registered at the Chelmsford Best Western for

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himself and a guest named "Paul Santos." They were assigned room

102. In filling out the registration form, "Ramos" identified his

car as a "96 maroon Buick." That same night, a call was placed

from Room 102 to a cell phone provided to Dyott by the ATF.

On February 1, 2003, Dyott spoke with Daniel Meade, an

ATF Agent, and told him that there was a stolen car with weapons at

the Chelmsford Best Western. The ATF notified the Chelmsford

police department, which sent Officers Tyros and Tine, joined by

Agent Meade, to the Best Western to investigate the suspected

stolen vehicle. Officer Tyros watched as a Caucasian male, later

identified as Duval, walked toward a maroon Buick carrying a black

object, and paused briefly by the trunk of the car. Tyros

testified that Duval noticed his presence and walked back to room

102.

Later that day, Agent Meade encountered Duval and

Doucette as they walked towards a gas station near the motel and

asked them to identify themselves. Upon learning their identities,

Agent Meade arrested Duval and Doucette on outstanding warrants.

Meade found the keys to the stolen Buick in Doucette's front

pocket. A search of the car revealed a Remington rifle, a

Remington shotgun, a Marlin rifle, and ammunition inside the trunk.

Investigators found no fingerprints in the trunk, on the firearms,

or the ammunition. However, Duval's and Doucette's prints were

recovered from objects found in the passenger compartment.

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 On June 19, 2003, a complaint was filed with the United

States District Court for the District of Massachusetts charging

Duval and Doucette each with being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). The Government filed

an indictment against Duval and Doucette on September 3, 2003.

Both Duval and Doucette pleaded not guilty.

In an attempt to comply with Local Rule 116.1(c)(1) and

Brady v. Maryland, 373 U.S. 83 (1963), the Government initially

disclosed to Duval and Doucette in October 2003 that it would call

Dyott to testify at trial, and that Dyott was a Government

informant. The Government stated that Dyott had not been paid for

his cooperation and that there was no evidence that would otherwise

cast doubt on his credibility. But two months later, the

Government informed Duval and Doucette that Dyott had been paid

$5,150 for his cooperation since 1998. Then, in February 2004, the

Government sent a letter to Duval and Doucette stating that in

1998, it had dropped firearms charges against Dyott in exchange for

his cooperation. Eight months after that, the Government added

that it had discovered that Dyott had been paid an additional $600

in 1998 and 1999, and that Dyott had a long history of mental

illness.

On January 10, 2005, the Government moved to supplement

its witness list to include Carlos Ramos, the acquaintance of Duval

and Doucette who had allegedly rented the motel room for them. The

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Government disclosed in a letter to Duval and Doucette that Ramos

had a history of drug abuse, and had once cooperated with the

Government by making a "controlled buy." The following week, on

January 19, the Government sent a second letter to Duval and

Doucette stating that Ramos had told the Government that he did not

see any guns or hear either defendant make any reference to guns,

and that Ramos had told Agent Meade in 2003 that he had no

knowledge of a stolen car. Other than this disclosure, the

Government indicated that it had no additional exculpatory

information regarding Ramos.

Two days later, on January 21, 2005, the Government sent

another letter to Duval and Doucette. This time, the letter stated

that the Government did have exculpatory information regarding

Ramos, specifically that Ramos was offered leniency for his

participation in the firearms transaction in exchange for becoming

an informant. The letter also stated that Agent Meade had

interviewed Ramos in February 2003, but that Meade had not made any

notes of the interview. The letter stated that Meade had asked

Ramos about his renting a hotel room for Duval and Doucette, but

that he did not recall if he asked Ramos whether he was in the room

with Dyott, Duval, and Doucette in late January when Doucette was

alleged to have offered to sell Dyott weapons. The Government

continued to assert that Ramos had not been paid for his

cooperation on the Duval and Doucette case. On January 31, 2005,

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the Government sent yet another letter to Duval and Doucette,

amending its prior disclosure to add that Ramos had in fact

attempted to make at least three or four controlled purchases for

the ATF, and that Meade had given him money to buy telephone

calling cards. On the sixth day of the trial -- February 14, 2005

-- the Government disclosed to Duval and Doucette, seemingly

contrary to prior claims that Ramos had not been paid in connection

with the present case, that an entry on the ATF payment roster

indicated that Ramos had been paid $50 for "informant subsistence."

The entry included a reference to "Ducette [sic] & Duval."

Duval and Doucette moved to dismiss the indictment

because of a pattern of Government non-compliance with its

disclosure obligations. The Government opposed the dismissal of

the indictment, contending that neither Duval nor Doucette had

suffered prejudice as a result of the belated disclosures. The

court denied the motion to dismiss, stating that the Government had

violated its Brady obligations, but that neither Duval nor Doucette

were prejudiced.

Duval and Doucette also requested that the Government

provide the records of each individual payment to Dyott and Ramos

so they could determine if the Government had failed to disclose

any other payments to the witnesses. Instead, the Government

provided Duval and Doucette a summary of the payments made to

Dyott. Duval and Doucette claimed that the summary was

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insufficient given the history of belated disclosures by the

Government, and asked the court to compel production of the payment

records, or in the alternative, to review the records in camera, in

order to determine whether any additional payments had been made to

Dyott or Ramos. The court denied the request.1

In addition, Duval moved to exclude as inadmissible

hearsay Dyott's testimony that Doucette had offered firearms for

sale. The court denied Duval's motion to exclude without

prejudice, ruling that he could raise it again at trial if the

Government failed to show that Doucette's statement was either a

statement in furtherance of a conspiracy or an adoptive admission

by Duval.

The jury trial of Duval and Doucette began on February 7,

2005, and lasted eight days. At trial, Dyott testified that he had

met with Duval, Doucette, and Ramos in late January, that Doucette

had told him that he had firearms to sell, and that Duval said

nothing when he heard this. Dyott also disclosed on direct

examination his past and present drug habits, mental illness, and

criminal history. Duval and Doucette cross-examined Dyott as to

his cooperation with the ATF and payments that he received. In

addition, both Ramos and Agent Meade testified, along with various

other witnesses.

1
The request was made prior to trial and was renewed after the
Government's additional disclosure of exculpatory evidence on
February 14, 2005.

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 During closing arguments, the Government noted that Duval

had been within fifteen miles of the location where the Buick was

stolen, that the Buick did not have firearms or ammunition in it

when it was stolen, that the Buick was later found at the hotel

where Duval and Doucette were staying, that Duval had suspiciously

approached the vehicle but turned away when he saw the police, that

Doucette had the keys to the vehicle, and that the trunk contained

firearms and ammunition. The Government then stated, "[Y]ou can

stop right there . . . because that evidence proves beyond a

reasonable doubt that [Duval and Doucette] were in knowing

possession [of the firearms and ammunition]. But there's more."

The Government then noted that Dyott had testified that Doucette

had admitted to possessing the firearms, and that Duval had

remained silent. The Government acknowledged Dyott's substantial

credibility problems but said, "Take Mr. Dyott's testimony,

discount it altogether. . . . [T]here is still no reasonable doubt

that these men possessed those guns and that ammunition." Duval

and Doucette then gave their closing arguments. Duval suggested

that "the Government cannot get around the testimony of Robert

Dyott. [If] Robert Dyott's testimony [is] not in this case, there

is no case." Doucette stated, "[I]f you don't believe Mr. Dyott's

testimony about a conversation he claims to have heard January 31st

of 2003, if you don't believe his testimony beyond a reasonable

doubt, you cannot convict in this case."

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 Duval and Doucette then asked the court to give two

instructions to the jury. First, they asked the court to instruct

the jury that, "if [you] do not believe Mr. Dyott's testimony

beyond a reasonable doubt [about his alleged conversation with

Doucette], [you] must acquit the defendant." Second, Duval and

Doucette asked the court to instruct the jury that "[o]ne cannot be

found guilty of possessing an object unless he has knowledge of its

presence. Knowledge alone, however, is not enough to prove

possession. Similarly, mere presence in the vicinity of the object

is insufficient to prove possession." The court refused both

instructions, and instead instructed the jury as follows:

To possess something means to have control or
dominion and control over something. It is
not necessarily the same as legal ownership.

The law recognizes different kinds of
possession. Possession includes both actual
and constructive possession. A person who
has direct, physical control of something on
or around his person is in actual possession
of it. A person who is not in actual
possession but who has the -- both the power
and intention to exercise control or dominion
and control over something is in constructive
possession of it. So whenever I use the word
"possession" in these instructions, I mean
both actual and constructive possession.

In considering the issue of possession in this
case it is not necessary for you to conclude
that a defendant in this case was in actual or
constructive possession of the firearm and/or
ammunition for a specified period of time.

More than one person can have control over the
same firearms and/or ammunition. If this is
so, then these people have what is called

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 joint possession. For purposes of determining
a defendant's guilt, joint possession is not
different from sole possession.

While you may consider a defendant's proximity
to the firearms and/or ammunition in deciding
whether the government has established beyond
a reasonable doubt that he possessed those
items, mere proximity to the firearm and/or
ammunition or mere presence of a defendant in
the place where the firearm and/or ammunition
were found is insufficient by itself to
support a finding of possession.
. . .
The Government must also establish beyond a
reasonable doubt as to each defendant that he
knowingly possessed the firearms and/or
ammunition in question. The word "knowingly"
means that the act was done voluntarily and
intentionally and not because of ignorance,
mistake, or accident. Thus, in order to
convict a defendant, you must find beyond a
reasonable doubt that he knew he was in
possession of a firearm and/or ammunition and
that he knew that what he possessed was a
firearm and/or ammunition as we commonly use
these words.

The jury convicted both Duval and Doucette on the sole

count of being a felon in possession of a firearm. Presentence

reports were prepared for both defendants, suggesting that they

were subject to the Armed Career Criminals Act ("ACCA"), 18 U.S.C.

§ 924(e), which imposes a mandatory minimum sentence of fifteen

years on any person convicted of a firearms charge who has been

previously convicted of three violent felonies. Neither Duval's

nor Doucette's prior convictions were alleged before the jury, and

the jury made no finding as to them.

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 Both Duval and Doucette challenged the court's ability to

impose a sentence under the ACCA unless the predicate convictions

had been proven to a jury. In addition, Duval stated that one of

the predicate convictions being used to support his eligibility for

an ACCA sentence, a conviction for assault and battery under Me.

Rev. Stat. Ann. tit. 17-A, § 207(1)(A), was neither a violent crime

nor a felony. The court rejected Duval's and Doucette's arguments

and found them both to be subject to the ACCA because they had each

been convicted of three prior felonies. The court imposed a

sentence of 180 months on Duval and 204 months on Doucette.

II. Discussion

Duval and Doucette appeal their convictions on the ground

that the Government failed to meet its obligation to disclose

exculpatory evidence under Brady, 373 U.S. 83, and the Jencks Act,

18 U.S.C. § 3500(b). In addition, Duval argues that Dyott's

testimony as to Doucette's statement during the January 30, 2003

meeting should not have been admitted against him because it was

inadmissible hearsay. Duval and Doucette both challenge the

district court's failure to give their requested jury instructions

regarding the elements of constructive possession and the

sufficiency of the evidence against them. Duval and Doucette also

bring a Sixth Amendment challenge to their ACCA-mandated sentences.

Finally, Doucette argues that he has not been convicted of three

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violent felonies, and thus is not subject to sentencing under the

ACCA. We discuss each of these claims in turn.

A. The Government's Disclosure Obligations

Duval and Doucette argue that the Government failed to

comply with its obligations under Brady and the Jencks Act to

disclose exculpatory and impeaching evidence regarding Dyott and

Ramos and that it should have been sanctioned accordingly. In

addition, because of the belated disclosure that Ramos had been

paid for his cooperation with the ATF, Duval and Doucette suggest

that the Government may have failed to disclose additional payments

made to Dyott and Ramos, and they argue that they were entitled to

in camera review of the Government's records of payments to

confidential informants. We review the district court's denial of

sanctions and in camera review for abuse of discretion. See United

States v. Rosario-Peralta, 175 F.3d 48, 55 (1st Cir. 1999); United

States v. Devin, 918 F.2d 280, 289 (1st Cir. 1990).

In Brady v. Maryland, the Supreme Court held that a

prosecutor has a duty to disclose, upon request, "evidence

favorable to an accused . . . where the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution." 373 U.S. at 87; see also Giglio v.

United States, 405 U.S. 150, 154 (1972) (reversing a conviction

where the Government failed to disclose that it had granted

immunity to a witness upon whose testimony the Government's case

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was heavily dependent). Likewise, under the Jencks Act, the

prosecution has an obligation to "provide, upon request, certain

prior statements made by trial witnesses . . . that . . . 'relate[]

to the subject matter as to which the witness has testified.'"

United States v. Schneiderhan, 404 F.3d 73, 79 (1st Cir. 2005)

(citing 18 U.S.C. § 3500(b)). To vacate a conviction because of a

Brady violation, a defendant must show that "the evidence at issue

must be favorable to the accused, either because it is exculpatory,

or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and

prejudice must have ensued." United States v. Casas, 356 F.3d 104,

114 (1st Cir. 2004) (quoting United States v. Josleyn, 206 F.3d

144, 153 (1st Cir. 2000)). The test for a Jencks Act violation is

similar; we look to see whether the Government failed to disclose

prior statements by witnesses that relate to their testimony at

trial, and whether the nondisclosure was prejudicial.

Schneiderhan, 404 F.3d at 79. "When the issue is one of delayed

disclosure rather than of nondisclosure, however, the test is

whether defendant's counsel was prevented by the delay from using

the disclosed material effectively in preparing and presenting the

defendant's case." United States v. Ingraldi, 793 F.2d 408, 411-12

(1st Cir. 1986); see also United States v. Arboleda, 929 F.2d 858,

864 (1st Cir. 1991) (applying Ingraldi to allegations that the

Government belatedly disclosed Jencks Act materials).

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 We begin by noting that the Government's conduct during

the course of this prosecution was a clear violation of its Brady

and Jencks Act obligations. The Government "amended" its

disclosures of potentially exculpatory evidence no less than five

times, each time disclosing information that further cast doubt on

the testimony of Dyott and Ramos, two of the Government's principal

witnesses at trial. At least part of the problem appears to have

been that the ATF agent involved in the investigation kept scant

notes on conversations with Ramos that tended to exculpate his

prime suspects, Duval and Doucette -- a practice whose propriety is

questionable.2 Another part of the problem appears to have been

shoddy record-keeping by the ATF with regard to payments to

confidential informants. Finally, overly broad statements by the

Government that all exculpatory information had been disclosed may

have led Duval and Doucette to believe that the Government had in

fact disclosed all that it knew, when it had not. Whether the late

disclosures were the product of happenstance or of negligence is

unclear, but we take this opportunity to remind prosecutors that

disclosure of Brady and Jencks Act material is not a suggestion,

but a constitutional and statutory obligation.

2
Cf. United States v. Houlihan, 92 F.3d 1271, 1289 (1st Cir.
1996) ("Eschewing tape recordings and ordering law enforcement
agents not to take notes during pretrial interviews is risky
business -- and not guaranteed to redound either to the sovereign's
credit or to its benefit. By adopting a 'what we don't create can't
come back to haunt us' approach, prosecutors demean their primary
mission: to see that justice is done.").

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 We are mindful that not all convictions must be vacated

because of non-compliance with disclosure obligations; we must also

determine whether the late-disclosed information prejudiced Duval

and Doucette's ability to present their case. The first set of

evidence belatedly disclosed by the Government was impeachment

evidence regarding Dyott, namely that he had been treated for

mental illness and had been paid $5,750 and given leniency in a

prior case in exchange for his services as a confidential

informant. This information falls within the purview of Brady

because it could be used to impeach the reliability and motivation

of Dyott's testimony. However, the last of these disclosures

occurred in October 2004, nearly six months before the start of the

trial. This left sufficient time for Duval's and Doucette's

counsel to incorporate the information into their defense strategy.

While we do not condone the lateness of these disclosures, we do

not find that the district court abused its discretion in

determining that the lateness did not prejudice Duval and Doucette

in the preparation of their cases, and that sanctions were not

warranted.

The second set of late disclosures involved statements by

Ramos to Agent Meade that he had not heard Dyott and Doucette

discussing the arms sale; this statement falls within the scope of

material that must be disclosed under Brady because it casts doubt

on both the Government's claim that the conversation occurred, and

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the claim that Duval heard the statement and adopted the implicit

admission of criminal activity by remaining silent. It also falls

within the ambit of the Jencks Act, as it is a prior statement by

a witness that relates to his trial testimony. However, as the

Government points out, Ramos remained missing until January 2005,

and it is unclear that Duval and Doucette could have located him

before then. Furthermore, Ramos admitted during cross-examination

that he had told Meade that he did not remember hearing anything

about the sale of arms at the motel, and that he did not tell Meade

anything about the stolen car when they met in February 2003.

Thus, even assuming that Doucette and Duval could have located

Ramos before that time and interviewed him regarding his statement,

it is unclear what benefit this would have been to the defense

strategy. See Casas, 356 F.3d at 115 (finding no prejudice where

defense counsel had an opportunity to cross-examine witness about

belatedly disclosed cooperation agreement). Again, we do not find

that the district court abused its discretion in determining that

neither Duval nor Doucette were prejudiced by the late disclosure

of Ramos's statement, and thus that sanctions were therefore not

warranted.

Finally, Duval and Doucette point to the mid-trial

disclosure that the Government may have paid Ramos $50 in

connection with his cooperation in another case. The Government

has stated that it has no further records of payment, but Duval and

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Doucette, having observed a pattern of delayed disclosures, suggest

otherwise. Thus, Duval and Doucette suggest that the proper remedy

for this late disclosure is to give them the opportunity to examine

the Government's confidential informant payment records to

determine if other payments have been made to Ramos.3 In the

alternative, Duval and Doucette propose that we direct the court to

engage in an in camera review of the records to determine whether

additional exculpatory material exists. Duval and Doucette suggest

that their case is similar to United States v. Rosario-Peralta,

175 F.3d 48 (1st Cir. 1999). In that case, various Government

agencies had been pursuing a boat at sea that was observed dumping

drugs overboard. Id. at 50-51. The principal defense theory was

that the pursuing vessels had lost track of the boat engaged in the

dumping, and that they had mistakenly seized the defendants' boat

instead. Id. at 55. Accordingly, the defendants requested

communication logs from the Government, which they argued would

conclusively establish that their boat could not have been the same

boat observed dumping drugs overboard. Id. at 54. We noted that

the information in the logs was "critical to defendants' theory and

was a disputed issue at trial," and that "we do not see how [the

logs] could fail to be relevant." Id. at 55. Thus, we ordered in

3
Assuming that they found additional exculpatory information,
Duval and Doucette argue that they would be entitled to a new trial
or dismissal of the indictment altogether.

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camera review of the logs to determine whether they contained

potentially exculpatory evidence. Id. at 57.

Two principal differences between the present case and

Rosario-Peralta support our conclusion that the district court did

not abuse its discretion in failing to order in camera review of

the Government's payment logs. First, the defendants in Rosario-

Peralta made a clear showing that the evidence they sought in fact

existed; the Government had acknowledged the existence of the

communication logs and that they dealt with the defendants' case,

but had argued that they were cumulative of other evidence

presented. Here, Duval and Doucette have merely postulated a

theory that additional records of payment to Ramos or Dyott exist;

albeit a theory that was fostered by the Government's pattern of

non-disclosure. While we emphasize that the Government's denial

that additional Brady or Jencks Act material exists is not

dispositive to our analysis, Duval and Doucette have not done much

better than to take a shot in the dark. This is insufficient to

establish the likelihood of a Brady violation, United States v.

Caro-Muñiz, 406 F.3d 22, 30 (1st Cir. 2005), and as such is

certainly insufficient to require in camera review.

Second, the material sought in Rosario-Peralta was

undisputably directly relevant to the key issue in the case: the

tapes would either potentially reveal that the defendants' boat had

been the one pursued or that the Government had, in fact, lost

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track of the boat in question. In Duval and Doucette's case, even

if there were an adequate showing that records of additional

payments made to Ramos or Dyott existed, they would not bear

directly on the guilt or innocence of either defendant. Although

the records would have some utility as impeachment evidence, Duval

and Doucette were already aware that Ramos and Dyott had accepted

payments from the ATF.4 Thus, the records would have been

cumulative of other evidence, and it is unclear that their addition

would have "put the whole case in such a different light as to

undermine confidence in the verdict." Casas, 356 F.3d at 114.

Accordingly, the court did not err in denying Duval and Doucette's

request to review the Government's records. See United States v.

Nelson-Rodríguez, 319 F.3d 12, 35 (1st Cir. 2003) (holding that

neither Brady nor the Jencks Act "provides grounds for relief

unless the exclusion or failure to produce prejudiced [the]

defense").

In short, while we disapprove of the practice of belated

disclosures of Brady and Jencks Act material, we do not find that

the Government's conduct in this case was so prejudicial that the

district court abused its discretion in denying sanctions.

4
Our belief that Duval and Doucette were not prejudiced is
bolstered by the fact that the known payments to Ramos were not
used to impeach him at trial.

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 B. Use of the Adoptive Admission Against Duval

Duval's next claim of error concerns the district court's

decision to admit against him the testimony of Dyott, who claimed

that Doucette said that he and Duval wanted to sell firearms in

their possession. The Government claimed that Dyott's testimony

implicated Duval because Duval was present when the incriminating

statement was made yet did not attempt to disassociate himself from

it, and thus was admissible as an adoptive admission by an opponent

party. See Fed. R. Evid. 801(d)(2)(B).5 On January 27, 2005,

Duval filed a written motion to exclude the use of Dyott's

testimony as inadmissible hearsay. On February 4, 2005, the

district court denied Duval's pretrial motion without prejudice to

its renewal during trial. At the Government's request, the

statement was admitted at trial.

While the admissibility of evidence is ordinarily

reviewed for abuse of discretion, United States v. Barrow, 448 F.3d

37, 42 (1st Cir. 2006), we review the case at bar for plain error

because Duval "failed to interpose a contemporaneous objection" at

trial. Udemba v. Nicoli, 237 F.3d 8, 16 (1st Cir. 2001); see also

United States v. Desimone, No. 05-2314, 2007 WL 1633556 at *5 (1st

Cir. June 7, 2007) (reviewing the admission of hearsay for plain

5
The Government also claimed that Doucette's statement was
admissible as a statement in furtherance of a conspiracy. Because
we find this statement admissible as an adoptive admission, we need
not reach this issue.

-20-
error). "Under the plain error standard, an appellant must

demonstrate that (1) there was an error; (2) the error was plain;

and (3) the error affected substantial rights." United States v.

Tom, 330 F.3d 83, 93 (1st Cir. 2003) (quoting Johnson v. United

States, 520 U.S. 461, 466-67 (1997)). In addition, the error must

have "seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings." Id. (quoting Johnson, 520

U.S. at 466-67).

We have long recognized "so-called adoptive admissions,

including admissions by silence or acquiescence," as admissible

against a party-opponent pursuant to Federal Rule of Evidence

801(d)(2)(B). United States v. Fortes, 619 F.2d 108, 115 (1st Cir.

1980). In United States v. Miller, we elaborated, stating that "a

party's agreement with a fact stated by another may be inferred

from (or 'adopted' by) silence . . . when (i) a statement is made

in a party's presence, (ii) the nature of the statement is such

that it normally would induce the party to respond, and (iii) the

party nonetheless fails to take exception." 478 F.3d 48, 51 (1st

Cir. 2007). Alleged admissions by silence may be properly

submitted to the jury only if "a reasonable jury could properly

find the ultimate fact in favor of the proponent of the evidence."

United States v. Barletta, 652 F.2d 218, 219 (1st Cir. 1981).

In the present case, Dyott testified as to the

incriminating nature of Doucette's statement and placed Duval at

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the scene of the conversation. Duval argues that these

foundational facts -- which were proffered by the Government --

were insufficient to prove that he heard the statement, and thus

for it to be admitted as an adoptive admission. While in some

cases, the paucity of facts introduced at trial precludes any

reasonably grounded finding of actual acquiescence, see, e.g.,

United States v. Moore, 522 F.2d 1068, 1076 (9th Cir. 1975), we

have left the resolution of substantial yet conflicting testimony

for the jury, see, e.g., United States v. Wiseman, 814 F.2d 826,

829 (1st Cir. 1987). This same principle applies to cases in which

the facts give rise to conflicting but plausible inferences.

In the present case, the trial court properly found that

the Government laid an adequate foundation for the admission of

Dyott's testimony by offering testimony that the conversation

between Dyott and Doucette took place in a small room, and that

Duval was in that room, testimony from which it could be reasonably

inferred that Duval heard Doucette's statements. Although Duval

offered the contrary testimony of Ramos, who stated that he did not

hear the conversation between Dyott and Doucette, the ultimate

question of whether to believe Ramos's testimony and to infer from

it that Duval also did not hear Doucette was properly left to the

jury. Because the court properly found that a foundation existed

for the admission of Dyott's testimony against Duval, we see no

-22-
basis for concluding that the district court erred, plainly or

otherwise, in admitting his testimony against Duval.

C. Instructional Errors

Duval and Doucette argue that the court erred in denying

their request for two jury instructions. First, Duval and Doucette

contend that the court erroneously denied their request to instruct

the jury on the sufficiency of evidence against them. Second,

Duval and Doucette argue that the court erred in refusing to give

their requested instruction on the elements of constructive

possession.

The standard of review varies with respect to claims of

instructional error. See United States v. Figueroa-Encarnación,

343 F.3d 23, 29 (1st Cir. 2003) (noting this phenomenon). Here,

however, the claims of error are such that we review the denial of

the requested jury instructions for abuse of discretion. Fryar v.

Curtis, 485 F.3d 179, 183 (1st Cir. 2007). In considering whether

the district court abused its discretion, we look to see whether

the requested instruction was "(1) correct as a matter of

substantive law, (2) not substantially incorporated into the charge

as rendered, and (3) integral to an important point in the case."

White v. N.H. Dept. of Corr., 221 F.3d 254, 263 (1st Cir. 2000).

1. The "Constructive Possession" Instruction

Duval and Doucette claim that the court's instructions on

constructive possession were insufficient because it failed to give

-23-
their requested instruction that "knowledge alone, however, is not

enough to prove possession. Similarly, mere presence in the

vicinity of the object is insufficient to prove possession." Duval

and Doucette suggest that by failing to give this instruction, the

jury was allowed to equate knowledge with possession, and that

knowledge alone is not sufficient to establish constructive

possession.

Applying the three-factor test set forth in White, 221

F.3d at 263, we note that there does not appear to be any dispute

that Duval and Doucette's requested instruction was correct as a

matter of law: mere presence in the vicinity of an object is

insufficient to prove constructive possession of that object, see

United States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992), and

knowledge of an object's location, without more, is insufficient to

establish possession of that object, see United States v. McLean,

409 F.3d 492, 501 (1st Cir. 2005) ("[T]here must be some action,

some word, or some conduct that links the individual to the

contraband and indicates that he had some stake in it, some power

over it." (quoting In re Sealed Case, 105 F.3d 1460, 1463 (D.C.

Cir. 1997)). Furthermore, there is little question that the issue

of constructive possession was integral to the case.

The district court did not abuse its discretion in

denying the requested instruction, however, because the law of

constructive possession was "substantially incorporated into the

-24-
charge as rendered." White, 221 F.3d at 263. We have said before

that a court is not obligated to "follow the exact form and wording

of the defendant's proposed instructions." United States v.

Gibson, 726 F.2d 869, 874 (1st Cir. 1984). Here, the court very

clearly instructed the jury that to find constructive possession it

needed to find both "power and intention to exercise control or

dominion and control over something," and that Defendants

"knowingly possessed the firearms and/or ammunition in question."

Thus, it is not the case that the jury was invited to convict based

on mere knowledge of the firearms; rather, the jury was plainly

instructed that it needed to find knowing possession. Because the

court's instructions adequately expressed the law of constructive

possession, we detect no error in its denial of Defendant's

requested instruction.

2. The "Sufficiency" Instruction

Duval and Doucette also argue that the court erred by

refusing to instruct the jurors that, "if they do not believe Mr.

Dyott's testimony beyond a reasonable doubt [that Doucette had told

Dyott about the stolen guns], . . . they must acquit the

defendant." As we have already explained, the court correctly gave

detailed instructions on the elements of the offenses with which

Duval and Doucette were charged and a defendant is not entitled to

an instruction "on every particular that conceivably might be of

interest to the jury." Rosario-Peralta, 199 F.3d at 567.

-25-
 Nevertheless, Duval and Doucette put a new twist on their

claim, arguing that the requested instruction was necessary because

the prosecutor suggested on closing that, in fact, there was

sufficient evidence apart from Dyott's testimony to convict Duval

and Doucette. In analyzing this claim of prosecutorial misconduct,

our first step is to determine whether the prosecutor did in fact

make "improper statements" to the jury on closing. See United

States v. Lowe, 145 F.3d 45, 50 (1st Cir. 1998) (reaching other

elements of test for prosecutorial misconduct only after

determining that statements made by the prosecutor were

"improper").

We set forth the standard for establishing constructive

possession in Wight: the Government must show "that the defendant

had dominion and control over the area where the contraband was

found." 968 F.2d at 1397. While circumstantial evidence can be

used to satisfy this burden, "mere presence or association with

another who possessed the contraband is insufficient to establish

constructive possession," id., nor is it sufficient to show only

that a defendant had access to the weapons, see United States v.

Kelso, 942 F.2d 680, 682 (9th Cir. 1991). "[T]he ability and

intent to exercise dominion and control over the firearm or area

where it is located," however, is sufficient to support a finding

of constructive possession. United States v. Robinson, 473 F.3d

387, 399 (1st Cir. 2007).

-26-
 The prosecutor argued to the jury that, even if they

disregarded Dyott's testimony (which had been heavily impeached at

trial), the remaining evidence was sufficient to convict. Duval

and Doucette argue that the Government's evidence was insufficient,

as a matter of law, for the jury to infer constructive possession

because apart from Dyott, there was no direct evidence that they

knew that the firearms were in the trunk. In support of this

claim, Duval and Doucette provide a litany of supposedly analogous

cases in which findings of constructive possession were overturned.

See, e.g., United States v. Reece, 86 F.3d 994, 996 (10th Cir.

1996) (holding that "[w]here possession is not clear," constructive

possession requires "some nexus, link, or other connection between

the defendant and the contraband."); United States v. Soto, 779

F.2d 558, 560 (9th Cir. 1986) ("It is well established that mere

presence as a passenger in a car from which the police recover

weapons does not establish possession. The mere proximity of a

weapon to a passenger in a car goes only to its accessibility, not

to the dominion or control which must be proved to establish

possession." (citations omitted)). Furthermore, Duval and Doucette

emphasize that here the guns were hidden in the trunk of their car

rather than in the passenger compartment, which they argue

distinguishes their situation from prior appeals where we upheld

jury inferences of constructive possession. See, e.g., United

States v. Liranzo, 385 F.3d 66, 69-70 (1st Cir. 2004) (affirming

-27-
defendant's conviction where the "precarious, angled position" of

weapon suggested it was stashed after car came to stop, and

defendant was only person observed moving.). Lastly they aver

that, as in Kelso, access to a place where a firearm is located is

insufficient to infer knowledge that the firearm is there. 942

F.2d at 682. Absent Dyott's testimony, Duval and Doucette's

argument goes, the Government did not offer sufficient evidence to

prove that they were aware of the contents of the trunk.

We agree that the evidence could have supported a jury

inference that Duval and Doucette did not constructively possess

the weapons. However, that is not the question on appeal. The

jury found Duval and Doucette guilty, and thus we must determine

whether, as a matter of law, the prosecutor was incorrect when he

stated that the jury could infer from the evidence presented that

Duval and Doucette constructively possessed the firearms found in

the trunk even if they disregarded Dyott.

We conclude that there was sufficient evidence apart from

Dyott's testimony for the jury to infer that Duval and Doucette

constructively possessed the firearms found in the trunk, and thus

that the prosecutor's arguments were not improper. Like the

defendants in Liranzo, the evidence suggests Doucette and Duval

exercised "exclusive dominion and control over the location of the

gun." 385 F.3d at 70. Doucette had the keys when the two were

apprehended, Duval appeared to avoid opening the trunk upon sight

-28-
of police officers, and the guns were not in the car when it was

stolen. Although much of the Government's evidence was

circumstantial, we have held that circumstantial evidence may

support a finding of constructive possession. United States v.

McFarland, 445 F.3d 29, 31 (1st Cir. 2006).

Accordingly, this is not a situation where the evidence

showed only a defendant's "mere proximity" to weapons. See Soto,

779 F.2d at 560-61; United States v. Madkins, 994 F.2d 540, 542

(8th Cir. 1993) (holding that it was unreasonable for a jury to

infer constructive possession of a weapon from the fact that the

defendant was found working under the hood of a car where the

weapon was found). Duval and Doucette's reliance on United States

v. Blue, 957 F.2d 106 (4th Cir. 1992), is similarly misplaced. In

Blue, the Fourth Circuit overturned a conviction where the only

evidence presented was the presence of a gun under the defendant-

passenger's seat and testimony that the defendant dipped his

shoulder as the police officer approached the vehicle. Id. at 107-

08. Here, not only was there evidence that guns were in the trunk

of the stolen car and that Duval turned away from the trunk when he

noticed a police officer, but also that Doucette had the keys to

the trunk, that Duval and Doucette had stolen the car and had

exclusive possession of it thereafter, and that they had

suspiciously registered under a false name at the Chelmsford motel,

where the car and the guns were eventually found. This quantum of

-29-
evidence was legally sufficient for the jury to infer that Duval

and Doucette constructively possessed the weapons at issue.

Thus, because there was sufficient evidence apart from

Dyott's testimony that Defendants constructively possessed the

weapons found in their car, we find no error in the denial of a

jury instruction to the contrary.

D. Constitutional Challenges to the ACCA

Duval and Doucette both argue that the Government's

failure to plead and prove their prior convictions to the jury

renders ACCA sentences invalid under the Sixth Amendment. We

review constitutional challenges to the ACCA de novo. United

States v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006).

The Supreme Court rejected this very argument in

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), and

has since reiterated its position that the fact of a prior

conviction is exempt from the general rule that a jury must find

any fact that raises a sentence above the statutorily-prescribed

maximum, see United States v. Booker, 543 U.S. 220, 244 (2005);

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We continue to

be bound by Supreme Court precedent on this point, and as such, we

must reject Duval and Doucette's Sixth Amendment challenge to the

imposition of an ACCA sentence. See, e.g., McKenney, 450 F.3d at

46; United States v. Coplin, 463 F.3d 96, 105 (1st Cir. 2006).

-30-
 E. Duval's Challenges to the ACCA Sentence

In addition to his constitutional arguments, Duval

contends that he should not be subject to an ACCA sentence because

he has not been convicted of three violent felonies. The ACCA

imposes a mandatory minimum sentence on defendants convicted of

"three previous convictions by any court . . . for a violent

felony." 18 U.S.C. § 924(e)(1). A violent felony is defined 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

. . . or otherwise involves conduct that presents a serious

potential risk of physical injury to another." Id. § 924(e)(2)(B).

In determining whether a conviction was for a violent felony, the

trial court may look "only to the fact of conviction and the

statutory definition of the prior offense." Taylor v. United

States, 495 U.S. 575, 602 (1990). In Shepard v. United States, the

Supreme Court recognized that where a defendant had plead guilty to

a prior crime, a court could also examine a "statement of factual

basis for the charge, shown by a transcript of plea colloquy or by

written plea agreement presented to the court, or by a record of

comparable findings of fact adopted by the defendant upon entering

the plea." 544 U.S. 13, 20 (2005) (citation omitted).

There appears to be no dispute among the parties that

Duval had been convicted of at least two violent felonies prior to

-31-
his conviction for the instant offense. Thus, the dispute centers

around Duval's third conviction, a conviction for assault and

battery under Me. Rev. Stat. Ann. tit. 17-A, § 207, which provides

in part that it shall be a crime for a person to "intentionally,

knowingly or recklessly cause[] bodily injury or offensive physical

contact to another person."6 Ordinarily, simple assault and

battery is punishable in Maine as a "Class D" offense, id., which

provides for a maximum sentence of up to one year in prison, id.

§ 1252(2). However, because Duval had previously been convicted of

two misdemeanor assaults, he was sentenced under Maine's recidivist

offender statute, making Duval's conviction a "Class C" offense,

id., which provided for a maximum sentence of five years in prison,

id. § 1252 (4-A). Duval offers two arguments as to why his third

conviction should not qualify as a violent felony for the purposes

of the ACCA.

1. The Recidivist Sentencing Enhancement

First, Duval argues that because assault is usually

punishable as a Class D felony with a maximum term of less than one

year in prison, his conviction was for a misdemeanor, and thus not

a "felony," even though the sentence he received was five years

because of Maine's recidivist sentencing statute. Thus, Duval asks

6
Because we are unaware of additional information regarding
Duval's conviction that could be considered under Shepard, we must
rely only on the fact of conviction and the statutory definition of
the crime for which Duval has been convicted. See United States v.
Walter, 434 F.3d 30, 38 (1st Cir. 2006).

-32-
us to decide whether the word "crime" as used in 18 U.S.C. § 924

(e)(2)(B) means criminal conduct (assault) or criminal conduct in

combination with certain attendant circumstances (assault plus

recidivism). We ordinarily review de novo a claim that a defendant

is not subject to the ACCA de novo. United States v. Mastera, 435

F.3d 56, 59 (1st Cir. 2006).

This question is a novel one in this circuit, but has

been addressed by other courts. Duval urges us to adopt the

reasoning of the Ninth Circuit in United States v. Corona-Sánchez,

291 F.3d 1201 (9th Cir. 2002) (en banc). In Corona-Sánchez, the

Ninth Circuit held that under Taylor's categorical approach, the

proper analysis for determining whether a crime was a "felony"

would be to "consider the sentence available for the crime itself,

without considering separate recidivist sentencing enhancements."

Id. at 1209. Thus, the Ninth Circuit found that a prior conviction

for petty theft in California, which provides for a maximum

sentence of six months, Cal. Penal Code § 490, could not be a

felony conviction even though the defendant had been subject to

California's repeat offender statute which increased the maximum

term to one year, id. § 666. Corona-Sánchez, 291 F.3d at 1210.

Also supporting Duval's position is a line of decisions which hold

that the ACCA, itself a recidivist sentencing statute, does not

alter the nature of the underlying offense, but simply changes the

sentencing structure for it. See, e.g., United States v. McGatha,

-33-
891 F.2d 1520, 1521-25 (11th Cir. 1990) (concluding that the ACCA

is simply a sentencing enhancement provision); United States v.

Rumney, 867 F.2d 714, 718 (1st Cir. 1989) ("[T]he three felonies

provision is for sentence enhancement and is not an element of a

heightened crime.").

The Government, on the other hand, urges us to adopt the

reasoning of the Fifth and Seventh Circuits. In Mutascu v.

Gonzáles, the Fifth Circuit found that where a defendant had been

previously convicted and sentenced under California's recidivist

sentencing statute, the ultimate conviction was not merely for

"petty theft," but rather for "petty theft with prior jail term."

444 F.3d 710, 712 (5th Cir. 2006). Thus, the Fifth Circuit refused

to "atomize" a sentence into its recidivist and predicate

components, and held instead that the relevant sentence for the

purposes of determining whether a crime was a felony was the

sentence "ordered by a court of law." Id. (quoting 8 U.S.C. § 1101

(a)(48)(B)). Likewise, the Seventh Circuit has held that

recidivist sentencing statutes may be used to determine the maximum

sentence for a prior conviction when deciding whether a prior drug

conviction constituted a "serious drug offense" for the purposes of

the ACCA. United States v. Henton, 374 F.3d 467, 469-70 (7th Cir.

2004). The Fourth Circuit has suggested a similar conclusion,

although it noted that the maximum sentence imposable under a

recidivist sentencing statute might depend on compliance with

-34-
additional safeguards codified in state law. United States v.

Williams, 326 F.3d 535, 539-40 (4th Cir. 2003).

The parties also point to recent Supreme Court decisions

on sentencing issues to support their positions. In Apprendi, the

Supreme Court very explicitly stated that "recidivism 'does not

relate to the commission of the offense' itself." 530 U.S. at 496

(quoting Almendarez-Torres, 523 U.S. at 230). Duval contends that

this statement supports his argument that his recidivist sentence

was the product of a sentencing enhancement and not a change in the

underlying offense. The Government points us to Ewing v.

California, in which the Court, reviewing California's recidivist

sentencing statute, explained that the petitioner had not been

convicted of "merely 'shoplifting three golf clubs.' Rather, Ewing

was convicted of felony grand theft for stealing nearly $1,200

worth of merchandise after previously having been convicted of at

least two 'violent' or 'serious' felonies." 538 U.S. 11, 28

(2003). This, the Government argues, supports its argument that

recidivist sentencing statutes in effect create new "recidivist

crimes," which might be construed as felonies even if the

underlying offense was a misdemeanor.

These arguments highlight two conundrums. The first is

that by using state-law definitions of crimes to determine

sentencing on federal offenses, Congress may have allowed states to

disturb the balance struck in the ACCA: repeat offenders would be

-35-
subject to higher sentences, but only if they had committed three

violent felonies. For example, it appears that under Maine's

recidivist sentencing statute, a person might be convicted of three

violent "felonies" (and thus sentenced under the ACCA) even if he

had only been twice convicted of certain felony offenses (robbery)

and once of a misdemeanor offense (assault). This would seem to

disturb Congress's determination that the ACCA should be applied

only to hardened criminals, i.e., those who have committed three

(rather than two) crimes whose nature is so serious that they are

punishable as felonies.

Second, this case highlights the ambiguous status

accorded to recidivist sentencing statutes. The Government asks us

to classify Duval's third offense as "recidivist assault," an

offense that is different than non-recidivist assault. However, in

light of the Supreme Court's holding in Apprendi that a maximum

sentence may not be raised based on elements of the offense not

pleaded and proven to a jury, 530 U.S. at 490, this calls into

question Almendarez-Torres's holding that, in fact, prior

convictions need not be proven to a jury before they are used to

increase a sentence beyond the statutory maximum. 523 U.S. at 239-

247 (rejecting argument that recidivism is an element of a crime

that needs to be plead and proven to a jury); see Rangel-Reyes v.

United States, 126 S. Ct. 2873, 2874 (2006) (Thomas, J., dissenting

-36-
from denial of certiorari) (urging the Court to overrule

Almendarez-Torres for this reason).

In spite of the difficult questions that the Government's

position presents, we are ultimately persuaded that logic and

precedent support the conclusion that Duval was convicted of

"recidivist assault," and thus was convicted of a felony. First,

although Apprendi stated that recidivism did not necessarily relate

to the commission of an offense, 530 U.S. at 496, this does not

mean that an offense could not be defined with respect to

recidivism. In fact, since Apprendi was decided, Ewing construed

a conviction under California's repeat offender statute as

recidivist theft, 538 U.S. at 28, and more recently, in López v.

Gonzáles, the Court noted that state drug possession statutes

correspond to federal drug statutes, including "possession of

cocaine base and recidivist possession," 127 S. Ct. 625, 630 n.6

(2006) (emphasis added). We acknowledge that these holdings create

some tension with Almendarez-Torres, but as Justice Thomas noted in

his dissent from denial of certiorari in Rangel-Reyes, the Supreme

Court is "the only court authorized to" overturn that decision.

126 S. Ct. at 2875.

Furthermore, although there are some anomalies in having

Maine's recidivist offender statute affect the operation of the

ACCA's recidivist offender scheme, this is not a unique situation.

A single conviction in Maine for simple assault is ordinarily not

-37-
treated as a felony for ACCA purposes because it carries a penalty

of less than one year, Me. Rev. Stat. Ann. tit. 17-A, §§ 207,

1252(2), whereas a conviction for the exact same conduct in

Massachusetts would be treated as a felony because Massachusetts

law punishes assault by up to two and a half years, Mass. Gen. Laws

ch. 265, § 13A(a). Moreover, states use different characteristics

to categorize the same crimes as felonies or misdemeanors. Maine

makes assault a felony if it is accomplished with the use of a

firearm, see State v. Gilbert, 473 A.2d 1273, 1275 n.1 (Me. 1984)

("Criminal threatening is a Class D crime, which, when committed

with use of a dangerous weapon, is enhanced to a Class C

offense."), whereas Oregon uses the presence of a victim's minor

child to turn a simple assault into a felony, see United States v.

Moreno-Hernández, 419 F.3d 906, 910, 915 (9th Cir. 2005) (also

noting that a conviction with such an enhancement would qualify as

a felony crime of violence). It appears that Congress implicitly

accepted such inconsistencies in the application of the ACCA

because it was concerned about federalism and wanted to preserve

the state's role in defining, enforcing, and prosecuting

essentially local crimes:

In "enhancing" this [federal firearms] offense
with [ACCA]-type sanctions, if the defendant
has been convicted three times of robbery or
burglary, we are "enhancing" an existing
Federal crime, which would alleviate many of
the problems associated with [the ACCA] such
as the issue of a local D.A. veto or the
difficulties encountered by Federal courts in

-38-
 applying State robbery and burglary laws in
Federal prosecutions.

H.R. Rep. No. 1073 at 5, reprinted in 1984 U.S.C.C.A.N. 3665. We

can only assume that Congress thought that these federalism

concerns would outweigh whatever inconsistencies arose.

In addition, as one of the dissents in Corona-Sánchez

pointed out:

Raising an offense from a misdemeanor to a
felony has effects far beyond the extra time
defendant might serve. While employers may be
willing to overlook a misdemeanor in potential
employees, they are much less likely to hire
convicted felons, especially for positions of
trust and responsibility. Suffering a felony
conviction, rather than a misdemeanor, can
also have serious effects on personal
relationships and reputation in the community.
Moreover, under [California] law, felons
suffer a variety of limitations and
disabilities that misdemeanants do not.
Misdemeanor sentences are served in local
jails, while felony time is spent in state
prison. For the rest of their lives, felons
(but not misdemeanants) are denied the right
to vote . . . and the right to bear arms.

Corona-Sánchez, 291 F.3d at 1219 (Kozinski, J., dissenting in part

and concurring in part) (internal citations omitted). So too here.

See, e.g., Me. Rev. Stat. Ann. tit. 17-A, § 1252(1)(A)(2)

(specifying that a class C felon sentenced to more than nine months

in jail are committed to the Department of Corrections); Me. Rev.

Stat. Ann. tit. 8, § 275-D(5)(D)(2) (listing Class C felony

conviction as a ground for denying an off-track betting facility

license); 28 Me. Rev. Stat. Ann. tit. 28-A, § 653(2)(A) (listing

-39-
Class C felony conviction as a ground for denying liquor license).

It would be unusual if a court could not consider Duval's

conviction as a felony for the ACCA when Maine law would recognize

it as such for state-law purposes.

If Congress finds fault in the pattern of inconsistent

sentences mandated by the ACCA, it is within its power to amend it.

However, as it presently stands, the ACCA defines a felony as "any

crime punishable by imprisonment for a term exceeding one year."

18 U.S.C. § 924(e)(2)(B). Because Duval was convicted of a crime

which provided for punishment of up to five years, he has been

convicted of a felony for the purposes of the ACCA.

2. Is Assault a Violent Crime in Maine?

Duval also argues for the first time on appeal that even

if his assault conviction was for a felony, it was not for a

violent crime. Duval argues that because the charging documents

and plea agreement provide no indication as to the nature of the

assault that he committed, we must find that he engaged in the

minimum level of culpable conduct punishable under the assault

statute, i.e., "recklessly causing offensive physical contact," and

that this conduct would not qualify as a violent crime. Because

Duval did not raise this objection to his sentence below, we review

that objection for plain error. United States v. Bennett, 469 F.3d

46, 51 (1st Cir. 2006). Plain error requires that the defendant

show that "(1) that an error occurred (2) which was clear or

-40-
obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." Id. (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

We detect no plain error in the district court's

determination that a conviction in Maine for simple assault

constitutes a crime of violence for the purposes of the ACCA. In

United States v. Nason, we explicitly stated that "both variants of

assault regulated under Maine's general-purpose assault statute

necessarily involve the use of physical force," and concluded that

a conviction in Maine for simple assault qualified as a crime of

domestic violence for the purposes of 18 U.S.C. § 922(g)(9). 269

F.3d 10, 21 (1st Cir. 2001). Nason is the only case cited by

either party to have interpreted the Maine assault and battery

statute, and we cannot distinguish it in any meaningful way from

the circumstances of Duval's case. Until such time as we revisit

Nason en banc, see United States v. Allen, 469 F.3d 11, 17 (1st

Cir. 2006) (noting that, absent extraordinary circumstances, three-

judge panels are bound by prior circuit panel decisions), we are

bound to apply its holding that even "offensive contact"

constitutes a violent felony under Maine's assault and battery

statute.7

7
Although my colleagues would prefer not to address the issue, I
consider that circuit law on this point is in some disarray. We
have strongly suggested that a conviction under the Massachusetts

-41-
 III. Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

Affirmed.

assault and battery statute -- which is similar to the Maine
statute -- would not constitute a crime of violence for purposes of
the ACCA absent evidence that the conviction was for a "violent"
assault, rather than for an offensive contact. See United States
v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998) (noting that the
Massachusetts assault and battery statute "involves different types
of offenses, some arguably violent and some not"); United States v.
Fernández, 121 F.3d 777, 779 (1st Cir. 1997) ("[B]oth violent and
non-violent conduct is covered by the [Massachusetts assault and
battery] statute."). I think that the circuit might do better to
resolve this disarray in light of the fact that the imposing a
sentence under ACCA often makes a world of difference to the amount
of prison time a defendant receives. See James v. United States,
127 S. Ct. 1586, 1602 (2007) (Scalia, J., dissenting) ("Imprecision
and indeterminacy are particularly inappropriate in the application
of a criminal statute. Years of prison hinge on the scope of
ACCA's residual provision, yet its boundaries are ill defined.").

-42-