USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 97-1299
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL A. BLODGETT,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Bownes, Senior Circuit Judge. ____________________
____________________
Jane Elizabeth Lee for appellant. __________________
Margaret D. McGaughey, Assistant United States Attorney, with ______________________
whom Richard W. Murphy, Assistant United States Attorney, and Jay P. __________________ ______
McCloskey, United States Attorney, were on brief for appellee. _________
____________________
November 7, 1997
____________________
STAHL, Circuit Judge. Appellant Paul A. Blodgett, STAHL, Circuit Judge. _____________
convicted and sentenced on two counts of being a felon in
possession of a firearm, see 18 U.S.C. 922(g)(1), appeals ___
the district court's decision to enhance his sentence
pursuant to the Armed Career Criminal Act ("ACCA"), see 18 ___
U.S.C. 924(e). Specifically, Blodgett disputes that his
prior criminal record reflects the three predicate offenses
necessary for an ACCA enhancement. Finding no error, we
affirm.
Background and Prior Proceedings Background and Prior Proceedings
On May 9, 1996, police in Old Orchard Beach, Maine,
arrested Blodgett after a high-speed automobile pursuit and
subsequent foot chase. The police found Blodgett hiding
under a blanket, holding a loaded and half-cocked 9
millimeter handgun. The government charged Blodgett with
four weapons related counts, two pertaining to the 9
millimeter handgun and two pertaining to a 12 gauge shotgun
subsequently found in Blodgett's car. A jury convicted
Blodgett on the counts relating to the 9 millimeter handgun.
The district court imposed a 293 month sentence.
The court based its sentence in part on its conclusion that
Blodgett's criminal history triggered the fifteen-year
mandatory minimum sentence provided in the ACCA. Although
Blodgett had eight juvenile and nineteen adult convictions
that produced no criminal history points, the court
determined that Blodgett had five other convictions which
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supplied the predicate necessary for an ACCA enhancement.
Blodgett conceded two of the five convictions, but disputed
that any of the remaining three, a 1984 Massachusetts
conviction for breaking and entering, a 1983 Maine conviction
for reckless conduct with a dangerous weapon, and a 1987
Maine conviction for burglary, should count toward the
enhancement. Blodgett's challenge to the district court's
ACCA enhancement forms the basis of this appeal.
Discussion Discussion
"Whether a conviction for a particular type of
crime qualifies as a predicate offense presents a purely
legal question, sparking de novo review." United States v. __ ____ _____________
Winter, 22 F.3d 15, 18 (1st Cir. 1994) (citing United ______ ______
States v. DeJesus, 984 F.2d 21, 23 n.4 (1st Cir. 1993)); see ______ _______ ___
United States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992)). Our ______________ _____
de novo review leads us to conclude that at least one of the __ ____
convictions Blodgett challenges, the 1984 Massachusetts
conviction for breaking and entering, serves as a predicate
offense for purposes of the ACCA enhancement. Accordingly,
we affirm.
The ACCA provides that anyone convicted as a felon
in possession of a firearm who has three previous "violent
felony" or "serious drug" convictions will receive a fifteen-
year mandatory minimum sentence. 18 U.S.C. 924(e)(1). The
ACCA defines "violent felony" as "any crime punishable by
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imprisonment for a term exceeding one year" that reflects any
of several enumerated violent attributes.1 18 U.S.C.
924(e)(2). Certain crimes, however, do not fall within the
statutory definition of a "crime punishable by imprisonment
for a term exceeding one year." Such crimes include any
offense that a state classifies as a misdemeanor and which
carries a maximum penalty of two years or less, see 18 U.S.C. ___
921(a)(20)(B), and any offense for which a person has had
his civil rights restored, unless that restoration expressly
provides that the person may not ship, transport, possess or
receive firearms, see 18 U.S.C. 921(a)(20). ___
In 1984, Blodgett was convicted for breaking and
entering and sentenced to 18 months in the state prison.
Blodgett now claims that the offense does not constitute a
felony, and, even if it does, that he never lost one of his
civil rights and had the others restored subsequent to that
____________________
1. Specifically, a violent felony is a "crime punishable by
imprisonment for a term exceeding one year" that:
(i) has as an element the use,
attempted use or threatened use
of force against the person of
another; or
(ii) is burglary, arson, or
extortion, involves the 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).
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conviction and prior to his most recent offense. Neither of
Blodgett's arguments is availing.
Contrary to Blodgett's assertion, the 1984
Massachusetts conviction clearly falls within the definition
of a "crime punishable by imprisonment for a term exceeding
one year." 18 U.S.C. 921(a)(20). Massachusetts defines
"felony" as "[a] crime punishable by death or imprisonment in
the state prison. . . ." Mass. Gen. Laws ch. 274, 1
(noting that all other crimes are misdemeanors). The
breaking and entering statute that underlies Blodgett's 1984
Massachusetts conviction provides for a maximum punishment of
twenty years imprisonment. See Mass. Gen. Laws ch. 266, ___
16. In other words, Massachusetts classifies Blodgett's
conviction as a felony, and, even if it did not, the maximum
sentence Blodgett could have received removes his conviction
from the exception of 921(a)(20)(B). See United States v. ___ _____________
Indelicato, 97 F.3d 627, 628 n.1 (1st Cir. 1996) (considering __________
the maximum statutorily authorized punishment rather than
actual sentence for purposes of 18 U.S.C. 921(a)(20)(B)),
cert. denied, 117 S. Ct. 1013 (1997). _____ ______
Blodgett insists that even if the conviction does
constitute a felony, Massachusetts restored his civil rights
which precludes the conviction from counting toward an ACCA
enhancement. See 18 U.S.C. 921(a)(20). "In this circuit, ___
the civil rights that must be restored to trigger the
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exception are the rights to vote, hold public office, and to
serve on a jury." United States v. Estrella, 104 F.3d 3, 6 ______________ ________
(1st Cir. 1997). We consider civil rights restored for
purposes of 921(a)(20) whether by automatic application of
law or by affirmative, executive act. See United States v. ___ _____________
Caron, 77 F.3d 1, 4 (1st Cir. 1996) (en banc). As we have _____
noted, a convicted felon in Massachusetts retains the right
to vote, loses the right to hold public office for the
duration of any sentence, and loses the right to serve on a
jury for seven years after conviction. See id. at 2. The ___ ___
government does not dispute that Massachusetts has restored
Blodgett's core civil rights.
Blodgett, however, is not home free. Restoration
of civil rights removes the conviction from the realm of ACCA
predicate offenses "unless . . . such restoration . . .
expressly provides that the person may not ship, transport,
possess, or receive firearms." 18 U.S.C. 921(a)(20). In
United States v. Estrella, 104 F.3d 3, 8 (1st Cir.), cert. _____________ ________ _____
denied, 117 S. Ct. 2494 (1997), we held that the restrictions ______
Massachusetts imposes on a felon's right to own firearms
trigger the "unless" clause in 921(a)(20). Felons desiring
to own firearms in Massachusetts must have been released from
custody for five years, and then must obtain a firearm
identification card. See id. at 7. A firearm identification ___ ___
card permits a felon to possess a handgun in his residence or
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place of business and to possess a rifle anywhere. See id. ___ ___
Notably, a felon may not possess a handgun outside of his
residence or place of business, nor sell, rent or lease a
firearm to another person. See id. Estrella, therefore, ___ ___ ________
precludes Blodgett's argument.
Blodgett points out that Estrella determined ________
whether such a Massachusetts conviction could serve as a
felony supporting a conviction under the federal felon in
possession of a firearm statute. See 18 U.S.C. 922(g)(1) ___
(providing criminal penalties for felons who possess
firearms). He maintains that "[t]here are reasons why this
Court might choose to interpret Massachusetts law as
preserving the federal ban on handgun possession by a felon,
and yet not interpret Massachusetts law as allowing a severe
enhancement of defendant's sentence where defendant's civil
rights have been restored." Blodgett does not enumerate
these reasons, but generally seems to argue for a different
interpretation of Massachusetts law depending on whether the
government seeks to use the conviction for purposes of
922(g) or 921(a)(20), and, therefore, 924(e).
In United States v. Alston, 112 F.3d 32, 37 (1st _____________ ______
Cir. 1997), we rejected the precise argument Blodgett makes
in this appeal. The defendant in Alston challenged the ______
inclusion of a prior Massachusetts conviction as a predicate
offense for ACCA purposes because his civil rights had been
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restored. 112 F.3d at 37. We noted that "Massachusetts
materially restricts an ex-felon's right to carry and traffic
in firearms regardless of the passage of time," id., and that ___
such restrictions trigger the "unless" exception to
921(a)(20), see id. at 38 (citing Estrella, 104 F.3d at 8). ___ ___ ________
On that basis we affirmed the enhancement of the defendant's
sentence pursuant to the ACCA. See id.; see also United ___ ___ ___ ____ ______
States v. Palazzi, 115 F.3d 906, 908 (11th Cir. 1997) ______ _______
(adopting Estrella's interpretation of Massachusetts law ________
under the "unless" clause of 921(a)(20) and affirming an
ACCA enhancement on that basis). We see no reason to deviate
from Alston in this case. We therefore conclude that the ______
district court properly considered Blodgett's 1984
Massachusetts conviction as a predicate offense for a
924(e) enhancement.
Conclusion Conclusion
Blodgett concedes that two of his prior convictions
constitute predicate offenses, and we find that his 1984
Massachusetts conviction for breaking and entering
constitutes the third predicate offense for ACCA enhancement
purposes. We need not consider the remaining two challenged
convictions. See 18 U.S.C. 924(e) (requiring three prior ___
violent felony convictions to trigger enhancement).
Affirmed. Affirmed.
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Bownes, Senior Circuit Judge, concurring in the Bownes, Senior Circuit Judge, concurring in the ___________________________________________________
judgment: I write separately because I am concerned that we judgment ________
have significantly expanded a prior precedent, United States _____________
v. Estrella, 104 F.3d 3 (1st Cir. 1997), without giving ________
serious consideration to the difference between Estrella and ________
the circumstances attending the present case.
The defendant in Estrella appealed his conviction ________
under the federal felon-in-possession statute, 18 U.S.C.
922(g)(1), arguing that a prior Massachusetts felony
conviction could not serve as a predicate felony under the
federal statute because his civil rights had been restored by
operation of Massachusetts law. This court held that,
notwithstanding the retention of a felon's right to vote and
the restoration of his rights to hold public office and to
serve on a jury, the restrictions Massachusetts imposes on a
convicted felon's right to own firearms trigger the "unless"
clause in 18 U.S.C. 921(a)(20), which nullifies the
ordinary rule that a civil rights restoration will remove the
conviction from consideration as a predicate offense for
purposes of the federal felon-in-possession statute. See ___
Estrella, 104 F.3d at 8. Estrella's holding went no further ________ ________
than the context of that case: it merely permitted such a
prior conviction to serve as a predicate felony to support a
federal conviction under the felon-in-possession statute.
Id. ___
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In the present case, the majority applies this
conclusion to an entirely different context: to enhance
Blodgett's sentence under the Armed Career Criminal Act
(ACCA). As the opinion notes, Blodgett maintains that
"[t]here are reasons why this Court might choose to interpret
Massachusetts law as preserving the federal ban on handgun
possession by a felon, and yet not interpret Massachusetts
law as allowing a severe enhancement of defendant's sentence
where defendant's civil rights have been restored." Ante, at
7. Even if Massachusetts' restrictions on the right of an
individual, previously convicted of a Massachusetts felony,
to own firearms should have a bearing on the question of
whether to criminalize federally an individual's possession
of a firearm, it is not at all clear that Massachusetts'
restrictions have any effect upon the very different question
of whether that individual's Massachusetts conviction should
result in an enhanced sentence upon conviction of a later
federal offense. Accordingly, before we expand the Estrella ________
holding from one context to the other, I think we should
carefully consider whether such expansion is appropriate, and
we should discuss our reasoning if we decide to go ahead with
the expansion.
I do not think we did this in Alston. The Alston ______ ______
decision focused almost exclusively on a completely different
issue (whether the prosecution's significant alteration of a
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gun should have precluded its being received in evidence).
Alston's expansive reading of Estrella was offered in ______ ________
response to the last of several also-ran arguments that the
court dealt with only very briefly. We conclusorily applied
Estrella, noting simply that: ________
In Estrella, we found these limited ________
[Massachusetts] restrictions trigger the
above-quoted 'unless' exception to the
provision relied upon by Alston as
restoring his civil rights. 18 U.S.C.
921(a)(20). Estrella was decided after ________
Alston's sentence and the original
briefing [in this court], but his reply
brief has no effective answer to that
decision.
Alston, 112 F.3d at 38. Thus, far from "reject[ing] the ______
precise argument Blodgett makes in this appeal," as the
majority asserts ante at 7, Alston never addressed that ____ ______
argument. The court in Alston did not even acknowledge that ______
it was applying the Estrella conclusion to a different ________
context -- which is Blodgett's argument here -- much less
provide any reasoning for such an expansion. Nor did the
defendant in Alston brief the question of whether Estrella ______ ________
should be applied in the sentence enhancement context.
In the present case, in contrast, as the majority
acknowledges, Blodgett does at least raise the issue that
Estrella on its face does not address the present context. I ________
do not think we should assert that Estrella's holding has ________
been significantly enlarged to the sentencing context merely
by referring to Alston's conclusion (without further ______
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analysis) and stating that we will not "deviate from Alston" ______
here. If we are going to enshrine this expansion into solid
precedent, we should discuss its consistency with the plain
language (first) and the context and legislative history (if
the plain language is not clear) of the relevant provisions
of the enhanced sentencing statute (ACCA).
Nevertheless, as the majority notes, although
Blodgett does direct our attention to the implicit expansion
that would inhere in our application of Estrella to the ________
enhanced sentencing context, he has not provided us with
developed argumentation explaining why such expansion would
be inconsistent with legislative intent or otherwise
violative of law. It is a "settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation," are deemed waived.
Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d ____________________ ___________________________
370, 375 (1st Cir. 1991). For this reason, I concur in the
majority's judgment affirming the district court's sentence.
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