Lassend v. United States

United States Court of Appeals
For the First Circuit

No. 17-1900

KIRK LASSEND,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Karen A. Pickett, with whom Pickett Law Offices, P.C., was on
brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

August 2, 2018
 LYNCH, Circuit Judge. Kirk Lassend appeals from the

district court's denial of his § 2255 petition. United States v.

Lassend, No. CR 10-40019, 2017 WL 2960518 (D. Mass. July 11, 2017),

certificate of appealability granted, 265 F. Supp. 3d 103 (D. Mass.

2017). He argues that his sentence as an armed career criminal

under the Armed Career Criminal Act ("ACCA") is unconstitutional

under Supreme Court precedent decided after his earlier appeal

from his conviction was rejected in 2013.

We affirm the district court and find that the three

prior convictions are ACCA predicates. We again hold that a

Massachusetts conviction for assault with a deadly weapon is a

predicate offense under the ACCA's force clause. As to Lassend's

New York conviction for attempted second-degree assault, we

conclude that a conviction under New York Penal Law § 120.05(7)

qualifies as a violent felony under the ACCA's force clause. We

reach the same conclusion as to Lassend's conviction for New York

first-degree robbery under New York Penal Law § 160.15(4). Our

analysis is consistent with that of many other circuits, and as to

the New York first-degree robbery conviction, consistent with the

views of the Second Circuit in Stuckey v. United States, 878 F.3d

62 (2d Cir. 2017), petition for cert. filed, No. 17-9369 (U.S.

June 11, 2018). Lassend's sentence stands.

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 I. Background

A. Lassend's Arrest and Conviction

In July 2010, two individuals in Fitchburg,

Massachusetts called 911 to report that Lassend had been walking

up and down the street with a gun and firing shots into the air.

Police officers placed Lassend under arrest at the scene. The

officers recovered ammunition from Lassend's pocket and found a

gun in an unlocked closet in the common hallway of a nearby

apartment building. A search of Lassend's residence uncovered a

holster that appeared to fit that gun, and additional ammunition.

In September 2010, Lassend was indicted on charges of

being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1) (Count One), and being a felon in possession of

ammunition, also in violation of § 922(g)(1) (Count Two). After

a five-day trial, the jury convicted Lassend of both counts in

October 2011.

B. Original District Court Sentencing Proceedings

The Probation Office's 2012 presentence report ("PSR")

determined that Lassend was subject to a sentencing enhancement

under the ACCA because he had at least three prior convictions for

a violent felony or a serious drug offense. The PSR identified

four of his prior convictions as qualifying ACCA predicates: (1) a

1992 New York conviction for "Robbery in First Degree: Forcible

Theft Armed with Deadly Weapon"; (2) a 1997 New York conviction

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for "Robbery in First Degree: Display What Appears to [Be a]

Firearm"; (3) a 1998 New York conviction for "Assault in Second

Degree"; and (4) a 2010 Massachusetts conviction for "Assault and

Battery by Dangerous Weapon" ("ABDW") and "Assault by Dangerous

Weapon" ("ADW").

The PSR determined that Lassend's Guidelines sentencing

range ("GSR") was 235 to 293 months, with a mandatory minimum of

15 years under the ACCA. Lassend objected, inter alia, in the

district court to the PSR's conclusion that he was subject to an

ACCA enhancement, arguing that the residual clause of the ACCA was

"unconstitutionally void for vagueness."

At sentencing, in March 2012, the district court

overruled Lassend's objections to the PSR, including his objection

to the PSR's determination that he was subject to an ACCA

enhancement. Lassend stated that he had no other objections to

the PSR "just as long as [his] objection to the [ACCA] on grounds

that it's constitutionally void for vagueness [wa]s preserved."

The district court then adopted the PSR's calculations and

determined that Lassend's GSR was 235 to 293 months. After hearing

from both parties, the district court sentenced Lassend to a term

of imprisonment of 235 months on each count, to be served

concurrently, followed by a five-year term of supervised release.

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C. Direct Appeal

Lassend filed a direct appeal challenging his

conviction. See United States v. Lassend, 545 F. App'x 3 (1st

Cir. 2013) (per curiam). He did not appeal his sentence, nor argue

that the residual clause of the ACCA was unconstitutional. See

id. Lassend's conviction was affirmed in October 2013. See id.

Lassend did not petition for certiorari.

D. Habeas Corpus Proceedings Before the District Court

The Supreme Court later decided Johnson v. United States

("Johnson II"), 135 S. Ct. 2551 (2015), on June 26, 2015. On

July 20, 2015, Lassend filed a supplemental1 pro se petition under

§ 2255, arguing that he should not have been sentenced under the

ACCA in light of Johnson II. The government opposed his petition.

After the district court appointed counsel to represent

Lassend in the § 2255 proceedings, Lassend filed another

supplemental petition in which he argued that his sentence was

unconstitutional because the government could not show that his

criminal record contained violent felonies under the ACCA's force

clause, 18 U.S.C. § 924(e)(2)(B)(i). Consequently, he argued, his

ACCA sentence must have been based on predicates that relied on

the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), which

1 On October 14, 2014, Lassend had filed a timely pro se
petition under 28 U.S.C. § 2255, challenging his conviction on
four grounds.

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was declared unconstitutionally vague in Johnson II, see 135 S. Ct.

at 2563. In particular, Lassend argued that (1) his New York

conviction for attempted second-degree assault does not qualify as

a violent felony because the crime can be committed recklessly;

(2) his New York first-degree robbery convictions do not qualify

as violent felonies because they do not require the use of violent

force; (3) his Massachusetts ABDW conviction does not qualify as

a violent felony because the crime can be committed recklessly and

by a mere touching; and (4) his Massachusetts ADW conviction does

not qualify as a violent felony because it does not require the

intentional use of violent force.

The government opposed these arguments for the same

reasons it now gives in support of the district court's decision.2

It also argued those issues should not be reached because Lassend

had procedurally defaulted his Johnson II claims. We deal with

the procedural default and merits arguments below.

We also note that the government obtained the indictment

and plea-colloquy transcript for Lassend's New York attempted

second-degree assault conviction and placed them in the record

2 The government also explained that the district court
need not reach the issue of whether Lassend's Massachusetts ABDW
conviction should also be considered a violent felony given that
Lassend's criminal record contained three other predicate violent
felonies.

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before the district court.3 The government argued that although

the indictment did not cite the statutory provision for the counts

charged, it contained language mirroring the statutory language of

New York Penal Law § 120.05(2) as to the first count and New York

Penal Law § 120.05(7) (prisoner assault) as to the second count.

The government argued that the plea-colloquy transcript showed

that Lassend pled guilty to the second count of the indictment,

and, consequently, the applicable statutory provision for his

conviction was § 120.05(7).

At the hearing on Lassend's § 2255 petition in May 2017,

Lassend argued for the first time that his New York first-degree

robbery conviction under New York Penal Law § 160.15(4) is not a

violent felony because the statute does not require the actual use

of a dangerous weapon to threaten the victim, nor, he says, does

it require that the perpetrator himself intentionally use violent

force.

On July 11, 2017, the district court denied Lassend's

§ 2255 petition in a careful decision. See Lassend, 2017 WL

2960518, at *1. Addressing Lassend's procedural default on his

ACCA claim, the district court noted that the Supreme Court had

3 The government also obtained certified copies of
convictions showing that Lassend's 1992 first-degree robbery
conviction was for violating § 160.15(2) and that his 1997 first-
degree robbery conviction was for violating § 160.15(4). Lassend
does not dispute that he was convicted under these statutes.

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rejected vagueness challenges to the ACCA's residual clause in

James v. United States, 550 U.S. 192 (2007), overruled by Johnson

II, 135 S. Ct. 2551, and Sykes v. United States, 564 U.S. 1 (2011),

overruled by Johnson II, 135 S. Ct. 2551, and those decisions were

controlling at the time of Lassend's sentencing and direct appeal.

Lassend, 2017 WL 2960518, at *8. Moreover, Lassend's direct appeal

was filed, argued, and decided before the Supreme Court granted

certiorari in Johnson II. Id. As such, the district court found

that a Johnson II claim was not reasonably available to Lassend at

the time of his direct appeal, thereby establishing cause. Id.

The district court also reasoned that the prejudice inquiry merged

with Lassend's merits claims because if Lassend could show that he

should not have been sentenced under the ACCA in light of

Johnson II, "his failure to raise that claim obviously resulted in

prejudice." Id.

As to the merits of Lassend's claims, the district court

first found that, under clear First Circuit precedent, Lassend's

Massachusetts ADW conviction qualifies as a violent felony under

the ACCA's force clause. Id. at *10. The district court also

found that Lassend's New York attempted second-degree assault

conviction qualifies as an ACCA predicate under the force clause.

Id. at *10-12. Applying the modified categorical approach, the

district court determined that Lassend had been convicted under

New York Penal Law § 120.05(7) because the relevant Shepard

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documents -- the state court indictment and the plea-colloquy

transcript -- showed that Lassend had pled guilty to the second

count of the indictment, the language of which mirrored that of

§ 120.05(7). Lassend, 2017 WL 2960518, at *11. The district court

rejected Lassend's argument that a conviction under § 120.05(7)

does not constitute a violent felony because a perpetrator can

violate subsection (7) without using violent force in causing

injury. Id. at *11-12. In doing so, the district court noted

that the Supreme Court's decision in United States v. Castleman,

134 S. Ct. 1405 (2014), undermined cases suggesting that the

indirect application of force cannot involve the use of physical

force as required by the force clause. Lassend, 2017 WL 2960518,

at *12.

The district court next found that Lassend's 1997 New

York first-degree robbery conviction qualifies as a violent

felony. Id. at *12-16. It applied the modified categorical

approach to determine that Lassend had been convicted under

§ 160.15(4). Id. at *13. It then determined that the "[d]isplays

what appears to be a . . . firearm" element of that subsection

involves the threatened use of physical force, thereby qualifying

the 1997 conviction as a violent felony. Id. at *14-15 (alteration

in original) (quoting N.Y. Penal Law § 160.15(4)). The district

court also determined that § 160.15(4) satisfies both the intent

requirement of Leocal v. Ashcroft, 543 U.S. 1 (2004), and the force

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requirement of Johnson v. United States ("Johnson I"), 559 U.S.

133 (2010). Lassend, 2017 WL 2960518, at *16 (citing Stuckey v.

United States, 224 F. Supp. 3d. 219, 225-230 (S.D.N.Y. 2016)).

The district court accordingly held that Lassend was

properly sentenced as an armed career criminal. Id.

The district court granted Lassend a certificate of

appealability on Lassend's claim that his ACCA sentence violates

the Constitution.

II. Discussion

An individual in federal custody may petition for post-

conviction relief under 28 U.S.C. § 2255(a) if, inter alia, the

individual's sentence "was imposed in violation of the

Constitution or laws of the United States" or "is otherwise subject

to collateral attack." Id. The petitioner bears the burden of

proof. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015)

(citing David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)).

When reviewing a district court's denial of a § 2255 petition, we

review the district court's legal conclusions de novo and any

factual findings for clear error. Id. (citing Owens v. United

States, 483 F.3d 48, 57 (1st Cir. 2007), abrogated on other grounds

by Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)).

A. Procedural Default

"[C]laims not raised on direct appeal may not be raised

on collateral review unless the petitioner shows cause and

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prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003)

(citing United States v. Frady, 456 U.S. 152, 167-68 (1982);

Bousley v. United States, 523 U.S. 614, 622 (1998)). The

procedural default rule is "adhered to by the courts to conserve

judicial resources and to respect the law's important interest in

the finality of judgments." Id.

1. Cause

A petitioner has cause for procedurally defaulting a

constitutional claim where that claim was "so novel that its legal

basis [wa]s not reasonably available to counsel" at the time of

the default. Reed v. Ross, 468 U.S. 1, 16 (1984). Despite that

broad language of reasonableness, the Supreme Court also held in

Reed that a claim "will almost certainly have [had] . . . no

reasonable basis" when the claim is based on a "constitutional

principle that had not been previously recognized but which is

held to have retroactive application," and the constitutional

principle arises from a decision in which the Court (1) "explicitly

overrule[s] one of [its own] precedents," or (2) "overtur[ns] a

longstanding and widespread practice to which [the] Court ha[d]

not spoken, but which a near-unanimous body of lower court

authority ha[d] expressly approved." Id. at 17. We are bound by

those latter statements.

At the time of Lassend's direct appeal in 2013, the

Supreme Court's decisions in James and Sykes were still good law.

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Both of those decisions had rejected challenges to the ACCA's

residual clause on constitutional vagueness grounds. Sykes, 564

U.S. at 28 (Scalia, J., dissenting); James, 550 U.S. at 210 n.6.

Johnson II expressly overruled James and Sykes in relation to the

ACCA. See 135 S. Ct. at 2563. Even though Lassend had made a

vagueness argument in the district court and had abandoned it on

appeal, under Reed, we find that Lassend has shown cause for his

procedural default. See United States v. Snyder, 871 F.3d 1122,

1127 (10th Cir. 2017) (holding that petitioner's procedurally

defaulted Johnson II claim was not reasonably available because

Johnson II overruled Sykes and James, thus satisfying the first

prong of Reed).

The government argues that Bousley requires that we find

that Lassend had no cause. In that case, the petitioner argued

that he had cause for his procedural default because it would have

been futile to raise the argument in question. Bousley, 523 U.S.

at 623. The Court rejected this contention, stating that "futility

cannot constitute cause if it means simply that a claim was

'unacceptable to that particular court at that particular time.'"

Id. (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). The

government uses this case to argue that Lassend had no cause for

procedurally defaulting his ACCA constitutionality argument even

though Sykes and James foreclosed such a challenge. Bousley is no

help to the government because the petitioner's argument in that

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case was not based on a constitutional right created by the Supreme

Court's overruling of its own precedent. See 523 U.S. at 622.

Reed stated that, where the Supreme Court "explicitly overrule[s]

one of [its own] precedents, . . . the failure of a defendant's

attorney to have pressed such a claim . . . is sufficiently

excusable to satisfy the cause requirement." 468 U.S. at 17. That

is what happened here. Unlike the defaulted argument in Bousley,

Lassend's argument was not "available at all," Smith v. Murray,

477 U.S. 527, 537 (1986) (internal quotation marks omitted), until

the Supreme Court "explicitly overrule[d]" Sykes and James, Reed,

468 U.S. at 17.

2. Prejudice

To overcome procedural default, Lassend must also show

"'actual prejudice' resulting from the errors of which he

complains." Frady, 456 U.S. at 168. If Lassend is correct that

the prior convictions he is challenging are not violent felonies,

he can argue actual prejudice because his sentence was undoubtedly

influenced by the determination that he had qualifying ACCA

predicates.4 On the other hand, if Lassend's challenge fails on

4 The finding that Lassend was an armed career criminal
under the ACCA subjected him to a statutory minimum sentence of 15
years for violating 18 U.S.C. § 922(g)(1), see id. § 924(e)(1),
compared to a ten-year statutory maximum that would otherwise be
applicable, see id. § 924(a)(2). The finding also increased his
total offense level, and thereby his GSR, under the Sentencing
Guidelines. See U.S.S.G. § 4B1.4.

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the merits, there cannot be actual prejudice because there would

be no error from which such prejudice would flow. While we have

found little law on the topic of prejudice, we think that the

prejudice inquiry dovetails with the merits inquiry, and is not

satisfied by mere argument. Contra Snyder, 871 F.3d at 1128.

B. Merits of Constitutional Challenge to the ACCA

An individual who violates 18 U.S.C. § 922(g)(1) is

generally subject to a maximum penalty of ten years' imprisonment.

See id. § 924(a)(2). However, under the ACCA, a violation of

§ 922(g)(1) carries a mandatory minimum of fifteen years'

imprisonment if the defendant has "three previous

convictions . . . for a violent felony . . . ." Id. § 924(e)(1).

The ACCA's force clause defines "violent felony" as a conviction

that carries a maximum term of imprisonment of more than one year,

and that "has as an element the use, attempted use, or threatened

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

§ 924(e)(2)(B)(i). The Supreme Court has defined "physical force"

under the force clause as "violent force -- that is, force capable

of causing physical pain or injury to another person." Johnson I,

559 U.S. at 140 (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th

Cir. 2003)).

On appeal, Lassend challenges the district court's

determination that his convictions for Massachusetts ADW, New York

attempted second-degree assault, and New York first-degree robbery

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qualify as predicates under the ACCA's force requirement, as

defined in Johnson I, making different arguments as to each. The

parties agree that each of the statutes giving rise to these three

convictions are divisible. Hence, we apply the modified

categorical approach. See id. at 144. Under it, we first

determine "which of the multiple offenses listed in the statute[s]

w[ere] the crime[s] committed by the defendant," United States v.

Faust, 853 F.3d 39, 53 (1st Cir.), reh'g denied, 869 F.3d 11 (1st

Cir. 2017), and then evaluate whether those offenses meet the

ACCA's violent-force requirement, see United States v. Starks, 861

F.3d 306, 315-16 (1st Cir. 2017). We consider whether the least

serious conduct covered by the offense "necessarily involves the

use[, attempted use, or threatened use] of violent force," but

there must be "a 'realistic probability' of a charge and

conviction" for that conduct. Id. at 315 (citing Moncrieffe v.

Holder, 569 U.S. 184, 190-91 (2013); United States v. Fish, 758

F.3d 1, 6 (1st Cir. 2014)).5

1. Massachusetts ADW

The Massachusetts ADW statute provides that

[w]hoever, by means of a dangerous weapon,
commits an assault upon another shall be

5 For the purposes of our analysis, we assume that
decisions construing the term "crime of violence" in the Sentencing
Guidelines and decisions construing the term "crime of violence"
in 18 U.S.C. § 16(a) inform the construction of the term "violent
felony" in the ACCA. See Fish, 758 F.3d at 9; United States v.
Hart, 674 F.3d 33, 41 n.5 (1st Cir. 2012).

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 punished by imprisonment in the state prison
for not more than five years or by a fine of
not more than one thousand dollars or
imprisonment in jail for not more than two and
one-half years.

Mass. Gen. Laws ch. 265, § 15B(b). Lassend does not dispute that

he was convicted under this statute.

In United States v. Whindleton, 797 F.3d 105, 116 (1st

Cir. 2015), we rejected the argument that Johnson I overruled our

holding in United States v. Am, 564 F.3d 25 (1st Cir. 2009), that

the Massachusetts ADW statute "'has as an element the use,

attempted use, or threatened use of physical force' as required by

the ACCA's Force Clause." Whindleton, 797 F.3d at 116 (citing Am,

564 F.3d at 33). While Whindleton left open the question as to

whether Massachusetts ADW fails to qualify as a violent felony

under ACCA because it lacks a requirement that the use or threat

be intentional, id. at 116 n.12, we answered that question in the

negative in United States v. Hudson, 823 F.3d 11 (1st Cir. 2016).

There, we held that a conviction under the Massachusetts ADW

statute "includes a mens rea requirement sufficient to qualify the

conviction as a predicate under the ACCA's force clause." Id.

at 17.

Of course, "newly constituted panels in a multi-panel

circuit court are bound by prior panel decisions that are closely

on point." United States v. Wurie, 867 F.3d 28, 34 (1st Cir. 2017)

(quoting San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st

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Cir. 2010)), cert. denied, 138 S. Ct. 690 (2018). Lassend fails

to even make the argument that an exception6 to this rule applies.

We are bound by the law of the circuit that a conviction under

Mass. Gen. Laws ch. 265, § 15B(b) constitutes a violent felony

under the ACCA's force clause.

2. New York Attempted Second-Degree Assault under
Subsection (7)

Under New York Penal Law § 120.05(7),

[a] person is guilty of assault in the second
degree when . . . [h]aving been charged with
or convicted of a crime and while confined in
a correctional facility, as defined in
subdivision three of section forty of the
correction law, pursuant to such charge or
conviction, with intent to cause physical
injury to another person, he causes such
injury to such person or to a third
person . . . .

Id. Reading the second count of the indictment underlying

Lassend's conviction for attempted second-degree assault and his

plea colloquy, it is clear that Lassend was convicted under New

York Penal Law § 120.05(7).7

6 There are narrow exceptions to the law of the circuit
rule, including (1) "when the holding of the prior panel is
'contradicted by controlling authority, subsequently announced'";
or (2) when "authority that postdates the original decision,
although not directly controlling, nevertheless offers a sound
reason for believing that the former panel, in light of fresh
developments, would change its collective mind." Wurie, 867 F.3d
at 34 (first quoting San Juan Cable, 612 F.3d at 33; then quoting
United States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)).
7 The second count of the indictment stated the following:

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 Both the indictment and the plea-colloquy transcript are

Shepard-approved documents. See Mathis v. United States, 136 S.

Ct. 2243, 2249 (2016) (citing Shepard v. United States, 544 U.S.

13, 26 (2005)). The district court correctly concluded that

§ 120.05(7) was the applicable statue of conviction.

We reject8 Lassend's assertion that the indictment must

expressly cite § 120.05(7) for the documents to establish that he

was convicted under that statutory provision. See United States

The grand jury of the County of the Bronx by
this indictment, accuses the defendant Kirk
Lassend of the crime of assault in the second
degree committed as follows:

The defendant, Kirk Lassend, . . . with intent
to cause physical injury to another person,
Willie Wells, did cause such injury to Willie
Wells, where at the time of the commission of
the act, the defendant was confined in a
correctional facility pursuant to having been
charged with or convicted of a crime.

And defense counsel stated that "Mr. Lassend has authorized me
. . . to enter a plea of guilty to attempted assault in the second
degree, under count two of [the] indictment . . . ." (emphasis
added). The trial court also confirmed with Lassend that he was
pleading guilty to "attempted assault in the second degree under
the second count of the indictment . . . ." (emphasis added).
8 We also reject Lassend's claim that the documents do not
establish that he was convicted under § 120.05(7) because the plea-
colloquy transcript shows that he pled guilty to "attempted
assault" whereas the indictment charged assault. Lassend fails to
explain how this alleged discrepancy is material, given that
Lassend acknowledged during the plea colloquy that he was pleading
guilty to count two of the indictment. Moreover, the ACCA's force
clause expressly encompasses crimes involving the "attempted . . .
use of physical force." 18 U.S.C. § 924(e)(2)(B)(i) (emphasis
added).

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v. Sanchez-Espinal, 762 F.3d 425, 430 (5th Cir. 2014) (holding

that "[a] charging [document] that closely tracks the language of

a particular statute can establish that the defendant was charged

under that section").

Lassend next argues that a conviction under § 120.05(7)

does not qualify as a violent felony because the statute does not

actually require that physical force be used to cause the injury.

To support this argument, Lassend relies primarily on two district

court decisions from other circuits, which concern a different

subsection of § 120.05 and purport to rely on a suggestion from

Second Circuit reasoning in Chrzanoski v. Ashcroft, 327 F.3d 188

(2d Cir. 2003), which the Second Circuit may have itself

disavowed.9 The Second Circuit recently recognized that, to the

9 Lassend relies on United States v. Poindexter, No. 3:97-
CR-00079, 2016 WL 6595919 (E.D. Va. Nov. 7, 2016) and Grant v.
United States, No. 06-CR-732, 2017 WL 2881132 (E.D.N.Y. July 5,
2017). The district courts in both Poindexter and Grant held that
a conviction for second-degree assault under New York Penal Law
§ 120.05(1) is not a violent felony under the ACCA's force clause.
Grant, 2017 WL 2881132, at *5; Poindexter, 2016 WL 6595919, at *4.
Under § 120.05(1), second-degree assault is committed when an
individual, "[w]ith intent to cause serious physical injury to
another person, causes such injury to such person or to a third
person." N.Y. Penal Law § 120.05(1). Both Poindexter and Grant
relied on the Second Circuit's reasoning in Chrzanoski v. Ashcroft,
327 F.3d 188 (2d Cir. 2003). See Grant, 2017 WL 2881132, at *5-
6; Poindexter, 2016 WL 6595919, at *4. In Chrzanoski, the Second
Circuit held that a conviction under Connecticut General Statutes
§ 53a-61(a)(1) -- which contains virtually identical language to
New York Penal Law § 120.05(1) -- does not qualify as a crime of
violence pursuant to 18 U.S.C. § 16(a). 327 F.3d at 192, 195. In
so holding, the Second Circuit noted that

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extent that its reasoning in Chrzanoski suggests that the use of

physical force cannot be indirect, that logic does not survive the

Supreme Court's decision in Castleman. See United States v. Hill,

890 F.3d 51, 60 (2d Cir. 2018). In Castleman, the Court held that

the common law concept of physical force "encompasses even its

indirect application," so, for example, sprinkling poison in a

victim's drink constitutes the use of physical force because the

use of force is not the sprinkling of the poison, but "the act of

employing poison knowingly as a device to cause physical harm."

134 S. Ct. at 1414-15.

it seems an individual could be convicted of
intentional assault in the third degree for
injury caused not by physical force, but by
guile, deception, or even deliberate
omission. . . . [H]uman experience suggests
numerous examples of intentionally causing
physical injury without the use of force, such
as a doctor who deliberately withholds vital
medicine from a sick patient. . . .

Id. at 195-96. Like the Second Circuit in Chrzanoski, we held in
Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015), that a conviction
under Connecticut General Statutes § 53a-61(a)(1) does not qualify
as a crime of violence under 18 U.S.C. § 16(a). Whyte, 807 F.3d
at 467, 471. However, the government in Whyte had waived the
argument that, under the Supreme Court's reasoning in Castleman,
causing injury categorically "involves the use of physical force
by the defendant himself even if the defendant's misconduct was
limited to guile, deception, or deliberate omission." Whyte v.
Lynch, 815 F.3d 92, 92-93 (1st Cir. 2016) (internal quotation marks
omitted) (denying petition for rehearing). Moreover, as we explain
below, there is a material difference between generic assault
statutes like Connecticut General Statutes § 53a-61(a)(1) and New
York Penal Law § 120.05(1), on the one hand, and New York Penal
Law § 120.05(7), on the other.

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 The Court in Castleman also held that "the knowing or

intentional causation of bodily injury necessarily involves the

use of physical force" under 18 U.S.C. § 921(a)(33)(A). 134 S. Ct.

at 1414 (emphasis added). But the Court recognized that while the

term "physical force" as used in § 921(a)(33)(A) should be given

its presumptive common law meaning of "offensive touching," the

same cannot be said for the term "physical force" in the ACCA's

force clause. Id. at 1410. Specifically, the ACCA deals with

violent felonies and, consequently, violent force -- not merely

offensive touching -- is required for a crime to satisfy the ACCA's

force clause. Id. As such, the Court expressly stated that it

was not reaching the issue of "[w]hether or not the causation of

bodily injury necessarily entails violent force." Id. at 1413

(emphasis added).10

We need not decide whether some methods of indirectly

causing physical harm11 -- for example, deliberately withholding

10 Justice Scalia concurred in Castleman. 134 S. Ct. at
1416 (Scalia, J., concurring in part and concurring in the
judgment). Under his view, the term "physical force" in
§ 921(a)(33)(A)(ii) should be given the same meaning as the term
"physical force" in the ACCA's force clause. Id. at 1417.
Moreover, Justice Scalia believed that "'intentionally or
knowingly causi[n]g bodily injury' . . . categorically involves
the use of 'force capable of causing physical pain or injury to
another person.'" Id. (citation omitted).
11 Following Castleman, the Fourth Circuit has consistently
drawn a distinction between the causation of bodily injury and the
use of violent force. See United States v. Middleton, 883 F.3d
485, 491 (4th Cir. 2018) (noting that "the use of violent force"
cannot be conflated "with the causation of injury"); United States

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vital medicine -- do not involve the use of violent force, because

Lassend's challenge to the use of § 120.05(7) as an ACCA predicate

suffers from an antecedent flaw.

In evaluating whether a crime satisfies the force

clause, we examine "the least serious conduct for which there is

a 'realistic probability' of a charge and conviction." Starks,

861 F.3d at 315 (emphasis added) (citing Moncrieffe, 569 U.S. at

190-91; Fish, 758 F.3d at 6). Lassend has not shown how there is

a realistic probability of violating § 120.05(7) -- which requires

that the assault be committed by a prisoner in a correctional

facility -- without using violent force. It is hard to imagine

how a prisoner could intentionally cause physical harm to someone

in prison by, for instance, failing to fulfill a legal duty.12 And

v. McNeal, 818 F.3d 141, 156 & 156 n.10 (4th Cir. 2016) (same).
On the other hand, other circuits have not recognized such a
distinction. See, e.g., United States v. Ontiveros, 875 F.3d 533,
535, 538 (10th Cir. 2017) (concluding that a conviction for
Colorado second-degree assault -- which is committed when a person
"[w]ith intent to cause bodily injury to another person, . . .
causes serious bodily injury to that person or another person,"
Colo. Rev. Stat. § 18-3-203(1)(g) -- is a crime of violence under
U.S.S.G. § 4B1.2(a)(1) because it is impossible to cause bodily
injury without the use of physical force), cert. denied, 138 S. Ct.
2005 (2018); United States v. Ovalle-Chun, 815 F.3d 222, 226 (5th
Cir. 2016) ("Impairing a person's physical condition or causing a
person substantial pain is consistent with a force violent enough
to constitute a crime of violence under U.S.S.G. § 2L1.2.").
12 It is possible that the hypothetical conduct described
in Chrzanoski -- withholding vital medicine -- can be the basis of
an assault charge under § 120.05(1), at least where there is a
legal duty to provide such medicine, see People v. Miranda, 612
N.Y.S.2d 65, 66 (App. Div. 1994).

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Lassend does not point us to a single New York case in which a

conviction under § 120.05(7) has been obtained based on nonviolent

conduct. Because "[w]e are not supposed to imagine 'fanciful,

hypothetical scenarios' in assessing what the least serious

conduct is that the statute covers," United States v. Ellison, 866

F.3d 32, 38 (1st Cir. 2017) (quoting Fish, 758 F.3d at 6), we

conclude that Lassend's conviction under § 120.05(7) qualifies as

a violent felony under the ACCA's force clause.

3. New York First-Degree Robbery

Lassend was convicted under New York Penal Law

§ 160.15(4), which provides, in relevant part, that:

A person is guilty of robbery in the first
degree when he forcibly steals property and
when, in the course of the commission of the
crime or of immediate flight therefrom, he or
another participant in the crime . . .
[d]isplays what appears to be a pistol,
revolver, rifle, shotgun, machine gun or other
firearm . . . .

Id. (emphasis added). New York Penal Law § 160.15(4) requires

the state to prove that a defendant displayed an item that appears

to be a firearm in the course of "forcibly steal[ing]" property.

Id. "A person 'forcibly steals' when the person 'uses or threatens

the immediate use of physical force upon another person for the

purpose of . . . [c]ompelling the owner of such property or another

person to deliver up the property." People v. Lamont, 33 N.E.3d

1275, 1278 (N.Y. 2015) (alteration in original) (quoting N.Y. Penal

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Law § 160.00(2)). The government satisfies the display requirement

by "show[ing] that the defendant consciously displayed something

that could reasonably be perceived as a firearm, with the intent

of forcibly taking property, and that the victim actually perceived

the display." People v. Lopez, 535 N.E.2d 1328, 1331 (N.Y. 1989)

(citing People v. Baskerville, 457 N.E.2d 752, 756 (N.Y. 1983)).

That display objectively puts a victim in reasonable fear of

physical harm, regardless of whether the item displayed is actually

capable of producing such harm. As such, as the district court

correctly held, § 160.15(4) "has as an element the . . . threatened

use of physical force against the person of another." 18 U.S.C.

§ 924(e)(2)(B)(i).

As the New York Court of Appeals stated in People v.

Miller, 661 N.E.2d 1358 (N.Y. 1995), the core robbery offense

"involves the misappropriation of property under circumstances

that pose a danger not only to the property but to the person."

Id. at 1362 (emphasis added). "It is the robber's intent . . . to

permanently deprive the victim of property by compelling the victim

to give up property or quashing any resistance to that act that is

prohibited by law." Id.

The court went on to discuss the "attendant

circumstances" (such as displaying a weapon), noting that these

aggravating circumstances embody a "legislative determination"

that the "'aggravating factors' exacerbate[] the core criminal act

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and increase[] the danger of serious physical injury . . . , thus

warranting harsher punishment for the robber." Id. at 1361.

Lassend does not contest the fact that he was convicted

under § 160.15(4). Nor does he contest that his conviction shows

that he intended to forcibly steal property. That alone, he says,

is not enough.13 He challenges the use of his conviction as an

ACCA predicate on two aspects of the aggravating circumstances.

i. Display of What Appears To Be a Firearm

Lassend first argues that the display element of

§ 160.15(4) does not satisfy Johnson I's violent-force requirement

because a defendant can display an item that is not actually

dangerous. He focuses his argument on the language "displays what

appears to be a pistol, revolver, rifle, shotgun, machine gun or

other firearm." N.Y. Penal Law § 160.15(4) (emphasis added). He

says our decision in United States v. Starks, 861 F.3d 306 (1st

Cir. 2017), requires that we rule in his favor.

Lassend is correct that, under New York law, an

individual can violate § 160.15(4) by displaying an item that is

not actually a firearm, but only appears to the victim to be such.14

13 Neither party disputes that the "forcibly steals
property" element of § 160.15(4) does not satisfy Johnson I's
violent-force requirement in light of our decision in United States
v. Steed, 879 F.3d 440 (1st Cir. 2018).
14 A defendant charged under § 160.15(4) can present an
affirmative defense that the firearm displayed "was not a loaded
weapon from which a shot, readily capable of producing death or
other serious physical injury, could be discharged." This

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There is a New York case suggesting that "[a] towel wrapped around

a black object . . . , a toothbrush held in a pocket . . . [,] or

even a hand consciously concealed in clothing" can satisfy the

display element of § 160.15(4) "if under all the circumstances the

defendant's conduct could reasonably lead the victim to believe

that a gun is being used during the robbery." Lopez, 535 N.E.2d

at 1331. "[I]t must appear to the victim by sight, touch or sound

that he is threatened by a firearm." Baskerville, 457 N.E.2d at

756. What matters for § 160.15(4) is not whether the defendant's

displayed item is actually capable of inflicting physical injury,

but rather whether the defendant's actions cause the victim to be

in reasonable fear of bodily harm.

Case law has long made it clear that display of what

appears to be a weapon increases fear of bodily harm. Lassend's

reliance on our decision in Starks does not work because that case

involved the crime of Massachusetts armed robbery, which we found

not to be a violent felony. See 861 F.3d at 320, 324. That crime

does not require the defendant to use, or make the victim aware of

the display of what appears to be a weapon. Id. at 320.

Our own case law requires rejection of Lassend's

argument, as does the law of other circuits. In Ellison, we held

affirmative defense does not "constitute a defense to a prosecution
for, or preclude a conviction of, robbery in the second degree,
robbery in the third degree or any other crime." Id.

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that federal bank robbery is categorically a crime of violence

under U.S.S.G. § 4B1.2(a), even though it can be committed "by

intimidation," 18 U.S.C. § 2113(a). 866 F.3d at 33-34.

Intimidation is shown through evidence that the defendant's

actions "would, as an objective matter, cause a fear of bodily

harm" in the victim. Id. at 37. Similarly, in United States v.

Luna, 649 F.3d 91 (1st Cir. 2011), we held that Massachusetts armed

robbery involving only "threatening words or gestures" satisfies

the ACCA's force clause because it has "as an element the . . .

attempted use[] or threatened use of physical force." Id. at 108

(alteration in original) (citing 18 U.S.C. § 924(e)(2)(B)(i)). In

both cases, we focused on whether the victim reasonably perceived

a threat of bodily harm, not on whether the defendant could have

carried out that threat.

Case law from other circuits follows the same approach.

The Fifth Circuit in United States v. Ovalle-Chun, 815 F.3d 222

(5th Cir. 2016), held that a conviction under the Delaware

aggravated-menacing statute -- which is violated "when by

displaying what appears to be a deadly weapon[, a] person

intentionally places another person in fear of imminent physical

injury," Del. Code Ann. tit. 11, § 602(b) -- qualifies as a "crime

of violence" under U.S.S.G. § 2L1.2(b)(1). Ovalle-Chun, 815 F.3d

at 224, 226-27; see also Ledoue v. Att'y Gen., 462 Fed. App'x 162,

165-66 (3d Cir. 2011) (per curiam) (unpublished) (similar). In

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doing so, the Fifth Circuit explicitly rejected the defendant's

argument "that aggravated menacing does not involve physical force

because it only requires that the victim have the perception that

there is a weapon but does not require an actual weapon." Ovalle-

Chun, 815 F.3d at 226.

The Sixth Circuit reached a similar conclusion in United

States v. Gloss, 661 F.3d 317 (6th Cir. 2011), with respect to the

Tennessee aggravated robbery statute, which covers

"the intentional or knowing theft of property
from the person of another by violence or by
putting the person in fear," where that theft
is "[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to
lead the victim to reasonably believe it to be
a deadly weapon; or . . . [w]here the victim
suffers serious bodily injury."

Id. at 318 (alteration in original) (quoting Tenn. Code. Ann.

§§ 39-13-401, 39-13-402). The Sixth Circuit held that a conviction

under the Tennessee statute qualifies as a violent felony under

the ACCA's force clause because "[a]ny robbery accomplished with

a real or disguised deadly weapon . . . falls under the first

clause of the definition of violent felony, as it necessarily

involves 'the use, attempted use, or threatened use of physical

force against the person of another.'" Id. at 319 (quoting

18 U.S.C. § 924(e)(2)(B)(i)).

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 ii. Accomplice

Lassend next urges us to hold that a conviction under

§ 160.15(4) is not a violent felony under Leocal and Johnson I

because the statute does not require a defendant to intend the use

of violent force as to the display of a firearm. In Leocal, the

Supreme Court held that the phrase "use . . . of physical force

against the person or property of another" in 18 U.S.C. § 16(a)

"most naturally suggests a higher degree of intent than negligent

or merely accidental conduct." 543 U.S. at 9. Accordingly, the

Court determined that a conviction under Florida's DUI statute --

which makes it a third-degree felony to operate a vehicle while

under the influence and "by reason of such operation, caus[e] . . .

[s]erious bodily injury to another," Fla. Stat. § 316.193(3)(c)(2)

-- is not a crime of violence under § 16(a). Leocal, 543 U.S. at

7-10. Lassend contends that, under § 160.15(4), a defendant can

be convicted of first-degree robbery if an accomplice displays a

weapon without the defendant's knowledge. Lassend argues that

this means that § 160.15(4) does not require a level of intent

"higher . . . than negligent or merely accidental conduct."

Leocal, 543 U.S. at 9.

We reject Lassend's argument that the fact that a

defendant can be convicted when an accomplice displays a firearm

or what appears to be a firearm means that § 160.15(4) does not

satisfy the ACCA's intent requirement under Leocal.

- 29 -
 The ACCA defines a violent felony 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." 18 U.S.C.

§ 924(e)(2)(B) (emphasis added). This definition focuses on the

elements of the crime of conviction, not on the particular act

committed by the defendant or the circumstances of his conviction.

What matters for the force clause, then, is whether a felony's

legal definition involves violent force, not whether a particular

individual actually employed or intended to employ violent force

in committing that felony. In order for there to be a conviction

under § 160.15(4), one of the offenders must have threatened the

use of violent force.15 The force clause does not inquire into

which offender in fact made that threat.

The Supreme Court addressed similar language in Dean v.

United States, 556 U.S. 568 (2009). That case concerned 18 U.S.C.

§ 924(c)(1)(iii), which provides a mandatory minimum sentence of

10 years to a person who uses or carries a firearm during and in

15 To the extent Lassend may be arguing that a defendant
can be convicted where he unintentionally displays a weapon, he
has waived that argument by failing to develop it. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The argument would
fail even if properly raised. In order to sustain a conviction
under § 160.15(4), the prosecution must show, inter alia, "that
the defendant consciously displayed something that could
reasonably be perceived as a firearm." See, e.g., People v. Smith,
75 N.E.3d 84, 87-88 (N.Y. 2017) (emphasis added) (quoting Lopez,
535 N.E.2d at 1331).

- 30 -
relation to any violent crime or drug-trafficking crime, or

possesses a firearm in furtherance of such a crime, "if the firearm

is discharged." Dean, 556 U.S. at 572, 578 (citing 18 U.S.C.

§ 924(c)(1)(A)(iii)). The petitioner in that case argued that he

could not be sentenced under that provision because he did not

intend for the firearm to be discharged. Id. at 571. The Court

rejected that argument, holding that § 924(c)(1)(A)(iii) did not

impose an intent requirement as to the discharge of the firearm.

Id. at 572-74. The Court reasoned that the phrase "if the firearm

is discharged," "focuses on an event that occurs without respect

to a specific actor, and therefore without respect to any actor's

intent or culpability." Id. at 572. From that, the Court

determined that the statute was concerned with "whether something

happened -- not how or why it happened." Id. The same logic

applies here. The force clause focuses on the elements of the

crime of conviction -- i.e., what acts occurred -- "without respect

to any actor's intent or culpability." Id.

Our interpretation of the ACCA's force cause is

consistent with that of the Second Circuit, which recently rejected

an identical § 160.15(4) argument in Stuckey. It noted that "the

intent and force requirements outlined in Leocal and [Johnson I]

are examined separately." Stuckey, 878 F.3d at 70. It determined

that (1) § 160.15(4) satisfies Leocal's requirement that a

defendant have "a higher degree of intent than negligent or merely

- 31 -
accidental conduct," because the state is required to establish

the defendant's intent to commit forcible stealing, id. at 71

(quoting Leocal, 543 U.S. at 9), and (2) that Johnson I's violent-

force requirement is separately met by the statute's aggravating-

circumstance element, id.

The Second Circuit began by acknowledging that the

parties agreed that first-degree robbery under New York law

required the display of a weapon "in the course of a robbery,"

which "well exceeds the degree of violent physical force the ACCA

requires." Id. at 70. As explained above, we agree that

§ 160.15(4) meets the force requirement. The court reasoned that

the intent requirement announced in Leocal was met because, in

order to be convicted, "[t]he defendant must . . . actively and

intentionally engage in the commission of the robbery -- precisely

what Leocal requires . . . ." Id. at 71. Because § 160.15(4)

requires as an element of the offense that there be a use of force

or threatened use of force that is more than merely negligent,

this case is distinguishable from Leocal, which involved a Florida

reckless driving statute that did not require criminal intent.

Id.

Indeed, our holding also comports with traditional

accomplice-liability principles. As the Second Circuit noted,

§ 160.15(4) "reflects the principle of criminal law that a

defendant may be held responsible for actions taken by an

- 32 -
accomplice to certain crimes." Stuckey, 878 F.3d at 70 (citing

United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938); Francis

Bowes Sayre, Criminal Responsibility for the Acts of Another, 43

Harv. L. Rev. 689, 702–04 (1930)). The government says it found

one other case that supports this. See United States v. Young,

229 F. App'x 423, 424 (8th Cir. 2007) (per curiam) (unpublished)

(noting that recognizing a distinction between "solo and group

crimes" in evaluating whether an offense is a violent felony under

the ACCA "would be inconsistent with the general principle that a

person convicted as an accomplice is guilty of the same underlying

offense as the principal").

The Supreme Court dealt with the culpability of

principals and accomplices in Gonzales v. Duenas-Alvarez, 549 U.S.

183 (2007). In that case, the Court applied the categorical

approach to determine whether aiding and abetting a vehicle theft

offense under California law was a generic theft offense for the

purposes of 8 U.S.C. § 1101(a)(43)(G). Duenas-Alvarez, 549 U.S.

at 185. The California statute in that case stated in relevant

part that "any person who is a party or an accessory to or an

accomplice in the driving or unauthorized taking or stealing [of

a vehicle], is guilty of a public offense. Cal. Veh. Code Ann.

§ 10851(a) (emphasis added). The Ninth Circuit had held that

§ 10851(a) was not a generic theft offense because "generic theft

has as an element the taking or control of others' property" and

- 33 -
the Ninth Circuit "believed that one might 'aid' or 'abet' a theft

without taking or controlling property." Duenas-Alvarez, 549 U.S.

at 188 (citing Penuliar v. Ashcroft, 395 F.3d 1037, 1044-45 (9th

Cir. 2005)).

The Court, in reversing the Ninth Circuit, recognized

that "every jurisdiction -- all States and the Federal Government

-- has 'expressly abrogated the distinction'" between principals,

aiders and abettors present at the scene of a crime, and

accessories before the fact. Id. at 189-90 (quoting 2 W. LaFave,

Substantive Criminal Law § 13.1(e), at 333 (2d ed. 2003)). Given

that accomplices are to be treated the same as principals for the

purposes of state and federal law, it is perfectly natural that

§ 160.15(4) holds a defendant responsible when a fellow robbery

participant displays a weapon.

The government draws a similar analogy to the felony

murder rule. In Dean, the Court observed that:

It is unusual to impose criminal punishment
for the consequences of purely accidental
conduct. But it is not unusual to punish
individuals for the unintended consequences of
their unlawful acts. See 2 W. LaFave,
Substantive Criminal Law § 14.4, pp. 436–437
(2d ed. 2003). The felony-murder rule is a
familiar example: If a defendant commits an
unintended homicide while committing another
felony, the defendant can be convicted of
murder. See 18 U.S.C. § 1111.

Dean, 556 U.S. at 575. The Court also noted that 18 U.S.C.

§ 924(c)(1)(A)(iii)

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 accounts for the risk of harm resulting from
the manner in which the crime is carried out,
for which the defendant is responsible. An
individual who brings a loaded weapon to
commit a crime runs the risk that the gun will
discharge accidentally. A gunshot in such
circumstances -- whether accidental or
intended -- increases the risk that others
will be injured, that people will panic, or
that violence (with its own danger to those
nearby) will be used in response. Those
criminals wishing to avoid the penalty for an
inadvertent discharge can lock or unload the
firearm, handle it with care during the
underlying violent or drug trafficking crime,
leave the gun at home, or -- best yet -- avoid
committing the felony in the first place.

Dean, 556 U.S. at 576 (citation omitted). Similarly, an individual

who commits first-degree robbery with an accomplice "runs the

risk," id., that the accomplice will employ or threaten violent

force to facilitate the robbery. And when such violent force is

actually employed or threatened during the robbery, "the risk of

harm resulting from the manner in which the crime is carried out,"

id., increases, and all participants in the crime are fairly

burdened with enhanced sentences under the ACCA.16

16 In line with Dean, many circuits have explained that it
is typical to hold defendants accountable for the unintended
consequences of intentional criminal acts. See, e.g., United
States v. McDuffy, 890 F.3d 796, 802 (9th Cir. 2018) (holding that
there is "no need to read a mens rea requirement" into 18 U.S.C.
§ 2113(e), which punishes criminals for killing someone in the
course of a bank robbery, because "[c]ommitting the basic crime of
bank robbery is already wrongful conduct"); United States v.
Burwell, 690 F.3d 500, 502, 507 (D.C. Cir. 2012) (en banc) (holding
that there is no need to read a mens rea requirement into 18 U.S.C.
§ 924(c)(1)(B)(ii), which imposes a mandatory minimum sentence of
30 years' imprisonment for an individual who carries a machine gun

- 35 -
 The intent requirement for conviction as an accomplice

or accessary can vary by crime and jurisdiction. Compare Rosemond

v. United States, 134 S. Ct. 1240, 1243 (2014) (holding that, under

federal law, to prove aiding and abetting the crime of using or

carrying a firearm during a crime of violence, the government must

prove "that the defendant actively participated in the underlying

[crime] . . . with advance knowledge that a confederate would use

or carry a gun during the crime's commission") with Miller, 661

N.E.2d at 1363 (holding that strict liability attaches to the

aggravating circumstances under New York Penal Law § 160.15). When

Congress passed the ACCA, it was presumably aware that various

states imposed vicarious liability under certain criminal laws.

Congress made no attempt to exclude convictions under such laws

from the force clause.

If Congress had desired to preclude convictions from

qualifying as ACCA predicates where the defendant acted as an

accomplice and did not intend the principal's use of force, it

would have done so clearly. Congress could have included an

while committing a crime of violence because, inter alia, it is
not "unusual to punish individuals for the unintended consequences
of their unlawful acts"); United States v. Taylor, 659 F.3d 339,
343-44 (4th Cir. 2011) (upholding the validity of U.S.S.G.
§ 2k2.1(b)(4)(A) -- which increases a defendant's offense level by
two points if a firearm involved in a § 922(g) offense was stolen,
regardless of whether the defendant knew or had reason to believe
that the firearm was stolen -- because "[a]n unlawful course of
conduct inevitably carries its share of risks").

- 36 -
express intent requirement in the ACCA's force clause, as it did

in other subsections of 18 U.S.C. § 924. See, e.g., 18 U.S.C.

§ 924(a)(1), (a)(2), (a)(3), (a)(5), (a)(6)(B), (a)(7), (b),

(d)(1), (f), (h), (i)(1), (k); see also Dean, 556 U.S. at 572-73

(refusing to read an intent requirement into 18 U.S.C.

§ 924(c)(1)(A)(iii) in part because "Congress expressly included

an intent requirement" for the preceding subsection, 18 U.S.C.

§ 924(c)(1)(A)(ii) (citing Russello v. United States, 464 U.S. 16,

23 (1983))).

For these reasons, we hold, consistent with the Second

Circuit, that § 160.15(4) meets the requirements of Leocal and

Johnson I. First, § 160.15(4)'s display element independently

meets Johnson I's violent-force requirement. Second, § 160.15(4)

does not criminalize the type of "negligent or merely accidental

conduct" that Leocal discussed, 543 U.S. at 9, because a weapon

must be consciously displayed during forcible stealing to violate

§ 160.15(4). Hence, a conviction under § 160.15(4) is a violent

felony under the ACCA's force clause.

III. Conclusion

Because three of Lassend's convictions qualify as

violent felonies under the ACCA's force clause,17 we affirm the

district court's dismissal of his § 2255 petition.

17 Because we have determined that three of Lassend's
convictions qualify as ACCA predicates, we need not decide whether

- 37 -
his conviction for forcible theft while armed with a deadly weapon
under New York Penal Law § 160.15(2) is an ACCA predicate. See
United States v. Mastera, 435 F.3d 56, 62 (1st Cir. 2006).

- 38 -