United States v. Reed, III

United States Court of Appeals
For the First Circuit

No. 15-1262

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES REED, III,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Howard, Chief Judge,
Kayatta and Barron, Circuit Judges.

James S. Hewes on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

July 18, 2016
 KAYATTA, Circuit Judge. After pleading guilty to a

robbery in which he brandished a firearm, Charles Reed, III

("Reed"), received a 192-month prison sentence. Reed now appeals

this sentence, arguing that the district court erred in concluding

that his prior convictions subjected him to a 15-year mandatory

minimum sentence under the Armed Career Criminal Act ("ACCA"), 18

U.S.C. § 924(e), and also triggered a career offender sentencing

enhancement under the United States Sentencing Guidelines ("the

Guidelines"). Because the district court properly applied the

career offender enhancement, and because Reed has shown no plain

error in the district court's conclusion that the ACCA applied, we

affirm.

I. Background1

On December 2, 2013, Reed and his roommates, Ryan Forrest

("Forrest") and Walter Heathcote ("Heathcote"), decided to commit

a robbery. The trio first discussed and discarded the idea of

robbing a gas station. They then visited a Walmart store with the

unrealized aim of stealing a television. Reed, high on heroin,

next suggested that they rob a Family Dollar store in Biddeford,

Maine. After Heathcote drove the trio to the store, Reed--who was

armed with a hunting rifle--went into the store with Forrest. The

1 Because Reed pled guilty, we draw the relevant facts from
the sentencing hearing and the unchallenged portions of the
Presentence Investigation Report. See United States v. Dávila-
González, 595 F.3d 42, 45 (1st Cir. 2010).

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two approached the cashier and demanded money. Recognizing Reed

as a regular customer, the cashier initially thought the robbery

was a joke, but Reed disabused the cashier of that impression by

asking him if he wanted to find out whether Reed's rifle was real.

The cashier told Reed and Forrest that he could not open

the store's safe without the store manager. Forrest found the

manager and the manager's pregnant fiancée in a nearby aisle and

brought them to the cashier. The manager input his code into the

safe, but he informed Reed and Forrest that the safe would not

open for two minutes due to a security feature. Becoming anxious,

Reed and Forrest left without waiting for the safe to open, pausing

only long enough to take the store's cordless phone, the cell phone

of a bystander, and multiple cartons of cigarettes, as well as

$600 from the open cash register.

Not surprisingly, police shortly thereafter arrested

Reed. He pled guilty to a federal information2 charging him with

one count each of robbery, 18 U.S.C. § 1951(a); brandishing of a

firearm during and in relation to a crime of violence, id.

§ 924(c)(1)(A)(ii); and possession of a firearm by a felon subject

to the ACCA's mandatory minimum sentence ("the ACCA count"), id.

§§ 922(g)(1), 924(e). A Presentence Investigation Report ("PSR")

2 Reed was initially prosecuted by state authorities, but
defense counsel represented that Maine has since dismissed its
charges in light of the federal prosecution.

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prepared by the probation office grouped the robbery count together

with the ACCA count, see U.S.S.G. § 3D1.2(c), and assigned the

grouped counts a base offense level of 24.3 That base offense

level was overridden, however, by the probation office's

determination that Reed's prior convictions rendered him subject

to the Guidelines' so-called career offender enhancement. See id.

§ 4B1.1. As a result of the enhancement, Reed's base offense level

was set at 37, and his Criminal History Category was set at VI.

See id. § 4B1.1(b). The PSR then granted Reed a three-level

reduction for his acceptance of responsibility, see id.

§§ 3E1.1(a)–(b), 4B1.1(b) n.*, resulting in a total offense level

of 34 on the grouped counts. The combination of Reed's total

offense level and Criminal History Category produced a recommended

Guidelines sentencing range of 262–327 months for the grouped

counts.

The remaining, ungrouped count--brandishing of a firearm

during and in relation to a crime of violence--carried an 84-month

mandatory minimum sentence to be served consecutively to the

sentence imposed on the grouped counts. See 18 U.S.C.

§ 924(c)(1)(A)(ii), (c)(1)(D)(ii). Adding this mandatory minimum

3 The PSR then increased this base offense level by two points,
to 26, because of Reed's supposed leadership role in the offense.
See U.S.S.G. § 3B1.1(c). Both parties agreed that this enhancement
should not apply, and the district court did not apply it. In any
event, the leadership enhancement ultimately had no bearing on the
Guidelines sentencing range the PSR recommended.

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to both ends of the grouped counts' recommended sentencing range

of 262–327 months, see U.S.S.G. § 4B1.1(c)(2)(A), the PSR

ultimately produced a total Guidelines sentencing range of 346–

411 months.

Reed argued that neither the career offender Guidelines

enhancement nor the ACCA applied to him. The district court

disagreed on both points, approving the PSR's determinations in

relevant part. Nonetheless, the district court accepted the

government's recommendation that it apply a three-level downward

departure from the range recommended in the PSR and instead use a

range of 235-293 months as a "jumping off point" for Reed's

sentence. From this baseline, the government recommended a

downwardly variant or low-end sentence between 180 and 240 months.

For his part, Reed recommended a sentence of 156 months. The

district court agreed that a downward variance was appropriate and

imposed a 192-month sentence,4 specifically observing that "this

4The district court did not explain its justification for
sentencing Reed below 264 months, despite the PSR's observation
that the 84-month mandatory minimum applicable to the brandishing
count under 18 U.S.C. § 924(c) "must be imposed consecutively" to
the sentence on the grouped ACCA and robbery counts, which
themselves carried a 180-month mandatory minimum sentence. See
Abbott v. United States, 562 U.S. 8, 13 (2010) ("[A] defendant is
subject to a mandatory, consecutive sentence for a . . . conviction
[under 18 U.S.C. § 924(c)], and is not spared from that sentence
by virtue of receiving a higher mandatory minimum on a different
count of conviction."). Because the government raises no challenge
to Reed's 192-month sentence, however, we do not consider whether
that sentence should have been longer. See Greenlaw v. United
States, 554 U.S. 237, 240 (2008).

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[was] the right sentence for the crime that was committed" and

that it "would [have] impose[d] the same sentence under the

[sentencing factors laid out in 18 U.S.C. § 3553(a)]" even had it

not found Reed to be a career offender under the Guidelines. Reed

now appeals his sentence.5

II. Analysis

A. Standard of Review

Where a defendant has preserved a claim that his past

convictions are insufficient to trigger the ACCA's mandatory

minimum or the Guidelines' career offender enhancement, we review

the claim de novo. See United States v. Hart, 674 F.3d 33, 40

(1st Cir. 2012); United States v. Santos, 363 F.3d 19, 22 (1st

Cir. 2004). We uphold the district court's resolution of any

subsidiary factual disputes, however, unless clearly erroneous.

See Santos, 363 F.3d at 22. Finally, even where an error in

sentencing occurs, we may nevertheless affirm the sentence if the

government demonstrates that "'the district court would have

imposed the same sentence' even without the error." United States

v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (quoting Williams v.

United States, 503 U.S. 193, 203 (1992)); cf. also Molina-Martinez

v. United States, 136 S. Ct. 1338, 1346 (2016) (error in

5Because Reed's sentence exceeds 180 months, both parties
agree that the terms of the appeal waiver in Reed's plea agreement
allow him to bring this appeal. See United States v. Serrano-
Mercado, 784 F.3d 838, 841 n.1 (1st Cir. 2015).

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calculating Guidelines sentencing range may be harmless on plain-

error review when the record shows that "the district court thought

the sentence it chose was appropriate irrespective of the

Guidelines range").

B. Career Offender Enhancement

The Guidelines provide that

[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). Reed does not dispute that the first two

factors apply in this case; he argues only that he lacks the

requisite two prior felony convictions.

The basis for Reed's argument rests in the Guidelines'

stipulation that, in order to constitute "two prior felony

convictions," the sentences for the convictions in question must

be "counted separately" under certain Guidelines provisions. Id.

§ 4B1.2(c). To determine whether the sentences are so counted,

the Guidelines further provide:

Prior sentences always are counted separately
if the sentences were imposed for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). If there is no intervening arrest,
prior sentences are counted separately unless

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 (A) the sentences resulted from offenses
contained in the same charging instrument; or
(B) the sentences were imposed on the same
day. Treat any prior sentence covered by (A)
or (B) as a single sentence.

Id. § 4A1.2(a)(2). Relying on condition (B), Reed argues that the

three predicate felony convictions upon which the district court

relied--two convictions in state court for drug trafficking

offenses committed in July and September 2008 and one conviction

in state court for a previous bank robbery committed in November

2008--should have been counted as only a single conviction because

Reed pled guilty to all three offenses on the same date pursuant

to a comprehensive plea agreement that consolidated all three

offenses and that resulted in what Reed characterizes as a "de

facto" single sentence imposed on the day of the plea.6

6 Under the comprehensive plea agreement, signed on July 16,
2009, Reed agreed to a sentence of four years, with all but one
year suspended, on one of the drug trafficking offenses, with
sentencing on the remaining two offenses deferred until after
Reed's completion of Adult Drug Treatment Court ("ADTC"). Reed
was sentenced on the first offense on July 16, 2009, and on the
remaining two offenses on November 18, 2010, upon his successful
completion of ADTC. Reed argues, however, that because his plea
agreement outlined "the sentencing parameters of all his predicate
offenses," including the sentencing consequences of either
completing or failing to complete ADTC, he was "de facto" sentenced
for all three offenses the day he was sentenced in line with the
plea agreement on July 16, 2009. The district court rejected this
characterization of Reed's sentence, observing that it "couldn't
conclude from the [submitted] documents . . . that [Reed was]
sentenced on all three of [the predicate convictions] on the same
date." Because we find that Reed's argument fails for other
reasons, we express no view on whether the district court was
correct to reject Reed's argument on this point.

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 This entire argument concerning condition (B) is beside

the point. Condition (B) plainly applies only "[i]f there is no

intervening arrest" between predicate offenses. Id. In Reed's

case, it is undisputed that there was such an arrest. Reed

committed his first predicate drug-trafficking offense on July 3,

2008. He was arrested for this offense on September 15, 2008, and

it was only after this arrest that he committed his second

predicate drug-trafficking offense, on September 24, 2008. Below,

Reed initially objected to the September 15, 2008, arrest date,

arguing that he had not been arrested for the first drug offense

until October 29, 2008, over a month after he had committed the

second drug offense. When questioned by the district court at a

presentencing conference, however, defense counsel affirmatively

stated, "I think I withdraw my objection" to the September 15,

2008, arrest date. And even now on appeal, Reed's brief accepts

September 15, 2008, as the date of arrest for the first predicate

felony.

The district court therefore committed no error in

finding that Reed had at least "two prior felony convictions of

either a crime of violence or a controlled substance offense,"7

7Reed does not dispute that his drug-trafficking convictions
were for "controlled substance offense[s]." U.S.S.G. § 4B1.1(a).
And because these two convictions suffice for imposition of the
Guidelines' career offender enhancement, we have no occasion to
determine whether Reed's conviction under Maine's robbery statute
could also properly serve as a predicate for the enhancement.

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id. § 4B1.1(a), and that, as a result, he was subject to the career

offender enhancement under the Guidelines.

C. Mandatory Minimum Under the ACCA

Reed separately challenges the district court's

determination that the ACCA's 15-year mandatory minimum applied in

his case.8 Under the ACCA, a felon in possession of a firearm is

subject to the mandatory minimum if he "has three previous

convictions . . . for a violent felony or a serious drug offense,

or both, committed on occasions different from one another." 18

U.S.C. § 924(e)(1). Here, too, it is undisputed that Reed has

previously been convicted in Maine state court for (1) a drug

trafficking offense committed in July 2008; (2) a drug trafficking

offense committed in September 2008; and (3) a previous bank

robbery committed in November 2008.

Reed points out, however, as he did in the district

court, that his three predicate convictions, relating to offenses

that occurred within a single five-month span, were consolidated

as a result of a comprehensive July 2009 plea agreement in state

court. Therefore, he reasons, he does not have three predicate

convictions for the purposes of the ACCA, but has instead only

one. But each conviction was registered in a separate judgment,

The government has not argued that Reed's guilty plea to an
8

ACCA count constitutes an affirmative waiver of any challenge to
the applicability of the mandatory minimum, so we do not consider
the effect, if any, of Reed's plea agreement.

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and this circuit has already rejected the idea that the

consolidation of convictions for the purposes of sentencing

suffices to merge those convictions into a single ACCA predicate.

See United States v. Riddle, 47 F.3d 460, 461–62 (1st Cir. 1995)

(per curiam). Reed makes no persuasive argument that the temporal

proximity of his offenses establishes that they were not "committed

on occasions different from one another." 18 U.S.C. § 924(e)(1).

Indeed, Reed as much as concedes that this string of offenses

cannot be characterized as a single spree. Cf. United States v.

Gillies, 851 F.2d 492, 497 (1st Cir. 1988) (convictions for

robberies of two different drug stores were treated separately,

even where the robberies were committed on consecutive days and

garnered concurrent sentences). And although Reed attempts to

argue that his single cluster of prior felony offenses does not

represent the sort of "career" of criminal conduct Congress sought

to address through the ACCA, this broadly purposivist argument,

too, has previously been rejected in this circuit. See Riddle, 47

F.3d at 462. The district court, in other words, did not err in

rejecting the ACCA arguments that Reed advanced below.

On appeal, Reed lodges an alternative attack against the

application of the ACCA. Despite making no such argument below,

Reed now suggests that his predicate convictions were not for

"violent felon[ies] or . . . serious drug offense[s]." 18 U.S.C.

§ 924(e)(1). Because he raises this argument for the first time

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on appeal, we review it under the plain-error standard. See United

States v. Madsen, 809 F.3d 712, 717 (1st Cir. 2016). Under this

standard, Reed must demonstrate an obvious error that affected his

substantial rights and that "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)).

Reed concedes that his two prior drug trafficking

convictions, although pertaining to relatively small drug

quantities, carried maximum sentences of at least ten years and so

we conclude that they were "serious drug offense[s]" as that term

is defined by the ACCA. See 18 U.S.C. § 924(e)(2)(A)(ii). Reed

is left, then, with the argument that his prior robbery conviction

was not a "violent felony" under the ACCA. Id. § 924(e)(1).

The ACCA defines "violent felony" in relevant part as:

[A]ny crime punishable by imprisonment for a
term exceeding one year, . . . that--

(i) has as an element the use,
attempted use, or threatened use of
physical force against the person of
another; or

(ii) is burglary, arson, or
extortion, involves use of
explosives, or otherwise involves
conduct that presents a serious
potential risk of physical injury to
another . . . .

Id. § 924(e)(2)(B). In Johnson v. United States, 135 S. Ct. 2551

(2015), the Supreme Court invalidated as unconstitutionally vague

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the clause in subsection (ii) permitting a crime that "involves

conduct that presents a serious potential risk of physical injury

to another" to serve as an ACCA predicate, see id. at 2557. Were

the district court to have relied on this clause in holding that

Reed's robbery conviction was a conviction for a violent felony,

it would have committed obvious error. See Henderson v. United

States, 133 S. Ct. 1121, 1130–31 (2013) ("[W]hether a legal

question was settled or unsettled at the time of trial, 'it is

enough that an error be "plain" at the time of appellate

consideration' . . . ." (quoting Johnson v. United States, 520

U.S. 461, 468 (1997))).

However, the district court never suggested that it was

relying on the invalidated portion of subsection (ii). Nor does

Reed claim that it did. So Reed's argument hinges on demonstrating

that his robbery offense fails to qualify as a violent felony under

subsection (i), the so-called "force clause," which encompasses

crimes that "ha[ve] as an element the use, attempted use, or

threatened use of physical force against the person of another."

18 U.S.C. § 924(e)(2)(B)(i). Reed, though, offers no argument at

all, even on appeal, that Maine's robbery offense does not so

qualify. Indeed, even after the government's brief proffered only

a possibility that Maine's robbery statute describes an offense

that qualifies as a violent felony under the force clause, Reed

offered no rebuttal. He has therefore not carried his burden of

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showing that an obvious error has occurred. See United States v.

Jimenez, 512 F.3d 1, 3 (1st Cir. 2007) (burden of showing plain

error rests with appellant).

We do observe that even if Reed had successfully shown

clear error, his request for a remand likely would have failed, as

he has also barely ventured to make any showing that any error in

applying the ACCA would likely have affected his substantial

rights. After all, we have already determined that the district

court correctly applied the entirely separate career offender

enhancement, which resulted in a Guidelines sentencing range of

346–411 months--well above ACCA's 180-month mandatory minimum.

Despite this "stratospher[ic]" range, the district court applied

a substantial downward departure and, on top of that, a further

downward variance, ultimately arriving at a 192-month sentence.

Reed makes no argument that the district court would have varied

downward still further had the ACCA not applied.9

He would have been hard-pressed to support such an

argument. The district court had before it Reed's request for a

13-year sentence and the government's statement that it was

"comfortable with" a 15-year sentence. Nevertheless, the district

court found these suggested sentences inadequate in the face of

9 Indeed, were we to rule in Reed's favor, he would have no
guarantee that the district court on remand would exercise its
sentencing discretion so favorably toward him.

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Reed's "very serious offense," which "opened the door to the risk

to a lot of people," and the fact that Reed's "behavior with the

gun set[] [him] apart" from his codefendants. Accordingly, the

district court found that a 16-year sentence was "the right

sentence for the crime that was committed, for the person who [Reed

is] and what [he] bring[s] to the Court." Although we may in some

cases find that the improper application of a mandatory minimum is

presumptively prejudicial even in the absence of any direct

indication that the district court relied on that minimum in

fashioning a sentence, this is not such a case. The district

court's proper calculation of a Guidelines range well above the

statutory minimum, along with its considered application of the

statutory sentencing factors and its determination that Reed's

sentence was "correct" in light of those factors, satisfy us that

even if it were error to apply the ACCA's mandatory minimum, that

error would likely have had no impact on Reed's ultimate sentence.

Cf. United States v. Teague, 469 F.3d 205, 209–10 (1st Cir. 2006)

(erroneous application of career offender enhancement was harmless

where district court sentenced defendant within the range that

would have resulted had enhancement not been applied and where

district court "carefully explained the reasons for the sentence,"

reflecting "appropriate statutory considerations," id. at 209).

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 III. Conclusion

Finding no error in the district court's application of

the Guidelines' career offender enhancement, and finding no plain

error resulting from the district court's application of the ACCA's

mandatory minimum, we affirm Reed's sentence.

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