United States Court of Appeals
For the First Circuit
No. 10-1155
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL TORRES-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Selya and Dyk,*
Circuit Judges.
James B. Krasnoo, by appointment of the court, with whom
Benjamin L. Falkner and Krasnoo Klehm LLP were on brief for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
September 23, 2011
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Circuit Judge. On March 6, 2008, law enforcement
officers executed a search warrant at 8 George Street, Apt. 1, in
New Bedford, Massachusetts, the residence of defendant-appellant
Rafael Torres-Rosario, his girlfriend Miriam Pellot, and Pellot's
son Wilfredo Guerra. Under the mattress in Torres-Rosario and
Pellot's bedroom, the officers found a loaded firearm and Torres-
Rosario's wallet, including photo identification and other
paperwork. In the same room, the officers also found five bags of
heroin, each bag twisted and tied into a knot with the ends cut
off, as well as a bag of cocaine, $500 in cash, scissors, a razor
blade, and many more empty baggies.
In custody and en route to the police barracks,
Torres-Rosario waived his Miranda rights and told the police that
he had bought the gun and that the gun belonged to him.
Thereafter, Torres-Rosario was indicted for being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1) (2006), and, after
trial, found guilty by jury. On January 21, 2010, Torres-Rosario
was sentenced as an armed career criminal, 18 U.S.C. § 924(e), to
226 months in prison.
Torres-Rosario first contends that, given District of
Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of
Chicago, 130 S. Ct. 3020 (2010), section 922(g)(1) is an
unconstitutional exercise of Congress's authority. Because the
issue was not raised below, we would typically review only for
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plain error, United States v. Catalán-Roman, 585 F.3d 453, 463 n.8
(1st Cir. 2009), cert. denied, 130 S. Ct. 3377 (2010), but the
claim implies actual innocence, will be a recurring issue and can
here be resolved on the merits without affecting the outcome in the
district.
The Supreme Court said that its opinions in Heller and
McDonald "did not cast doubt on such longstanding regulatory
measures as prohibition on the possession of firearms by felons."
McDonald, 130 S. Ct. at 3047 (internal quotation omitted). All of
the circuits to face the issue post Heller have rejected blanket
challenges to felon in possession laws.1 Although the Court may
have qualified this approval by describing such longstanding bans
as "presumptively lawful," Heller, 554 U.S. at 627 n.26, we assume
that at most that description reserves the possibility of yet to be
developed qualifications.
Torres-Rosario does make what he describes as an
as-applied challenge, saying that he has no prior convictions for
1
See United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011);
United States v. Barton, 633 F.3d 168, 170-75 (3d Cir. 2011);
United States v. Williams, 616 F.3d 685, 691-94 (7th Cir.), cert.
denied, 131 S. Ct. 294 (2010); United States v. Rozier, 598 F.3d
768, 770-71 (11th Cir.), cert. denied, 130 S. Ct. 3399 (2010);
United States v. Vongxay, 594 F.3d 1111, 1114-15 (9th Cir.), cert.
denied, 131 S. Ct. 294 (2010); United States v. Khami, 362 F. App’x
501, 507 (6th Cir.), cert. denied, 130 S. Ct. 3345 (2010); United
States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), cert.
denied, 130 S. Ct. 1686 (2010); United States v. Stuckey, 317 F.
App’x 48, 50 (2d Cir. 2009); United States v. Anderson, 559 F.3d
348, 352 n.6 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009).
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any violent felony. "It is well-established that felons are more
likely to commit violent crimes than are other law-abiding
citizens." Barton, 633 F.3d at 175. But--given the "presumptively
lawful" reference in Heller--the Supreme Court may be open to
claims that some felonies do not indicate potential violence and
cannot be the basis for applying a categorical ban.
Possibly it might even be open to highly fact-specific
objections. In Britt v. State, 681 S.E.2d 320 (N.C. 2009), the
North Carolina Supreme Court held that Britt's conviction 30 years
earlier, on a guilty plea to one count of possession of drugs with
intent to distribute, was insufficient to deprive him of his right
to keep and bear arms under the state constitution. But such an
approach, applied to countless variations in individual
circumstances, would obviously present serious problems of
administration, consistency and fair warning.
In all events, two of Torres-Rosario's prior convictions
were for serious drug offenses--distribution and possession with
intent to distribute Class A controlled substances--and drug
dealing is notoriously linked to violence. United States v.
Luciano, 329 F.3d 1, 6 (1st Cir. 2003); United States v. Green, 887
F.2d 25, 27 (1st Cir. 1989). Assuming arguendo that the Supreme
Court might find some felonies so tame and technical as to be
insufficient to justify the ban, drug dealing is not likely to be
among them.
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In a quite different claim of error, Torres-Rosario takes
issue with several statements of the government, made in its
closing argument to the jury, along the following lines:
[I]n this case, there's only one reasonable
inference, and that's that Mr. Rosario . . .
took possession and control of that gun and
put it under the bed. And because of the
government's evidence in this case, you know
why he did it. The reason that he did that is
that he is a drug dealer. . . . It is not in
any way hard to understand why a drug dealer
would want a gun in his room.
Torres-Rosario objected at trial and asserts on appeal that such
comments were improper, adding that the court prevented a searching
officer from giving "an opinion" as to whether the drugs found in
the apartment were intended to be distributed.
The closing argument was not improper. The government
had to establish that Torres-Rosario possessed the gun, and while
much of the evidence including an admission pointed in that
direction, his own defense sought to cast doubt on that charge.
The discovery of drugs and baggies in Torres-Rosario's bedroom was
in evidence--no objection was made to that--and the government was
free to invite the jury to infer that Torres-Rosario dealt in
drugs, furnishing a motive for him also to possess a gun to protect
them.
The fact that he was not charged with drug crimes does
not preclude the government from offering "other crime" evidence so
long as it is relevant for some purpose other than propensity and
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"motive" is a traditional example listed in the rule itself. Fed.
R. Evid. 404(b). Of course, the judge has authority to screen out
such evidence where it is unduly prejudicial, Fed. R. Evid. 403;
United States v. Smith, 292 F.3d 90, 100 (1st Cir. 2002), cert.
denied, 538 U.S. 933 (2003), but that is not the present objection
and the drugs' presence was already in evidence.
That the searching officer was not allowed to give his
"opinion" is not inconsistent and is beside the point. There are
various reasons why the judge might have excluded an opinion of
this kind, one being that the jury needed no help in concluding
that drugs and numerous baggies point toward distribution. The
jury did not need an opinion from the officer to draw a common
sense inference. Cf. United States v. Meadows, 571 F.3d 131, 145
(1st Cir.), cert. denied, 130 S. Ct. 569 (2009).
Torres-Rosario's next claim of error concerns excluded
evidence. The thrust of Torres-Rosario's defense at trial was that
Pellot's son Guerra, and not he, possessed the gun. In support of
that theory, Waleska Torres, Torres-Rosario's sister, testified
that she spent most of her time at Torres-Rosario's apartment and
had seen Guerra with the gun but never Torres-Rosario. That
testimony came in without objection.
However, the government did object on hearsay grounds
when Waleska Torres further sought to testify that, apparently on
the first occasion that Torres-Rosario saw Guerra holding the gun
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in the apartment, Torres-Rosario told Guerra that "he didn't want
that weapon there." This event had occurred a week or two before
the police search that discovered the gun and drugs. The district
court upheld an objection to the admissibility of the statement
and, based on a subsequent colloquy, probably deemed it a hearsay
statement which did not also qualify for the long-established state
of mind exception.
The statement was certainly offered to suggest that
Torres-Rosario himself associated Guerra with the gun. Confusion
sometimes arises over use of the hearsay label where the statement
taken literally is not "offered for the truth of the matter
asserted" (here, Torres-Rosario's professed desire that the gun be
removed) but its probative value depends (as here) indirectly on
the declarant's veracity. Cf. 2 K. Broun, McCormick on Evidence
§ 246, at 130 (6th ed. 2006). Even if classified as hearsay, it
would seemingly be rescued by the exception for statements of "the
declarant's then existing state of mind . . . ." Fed. R. Evid.
803(3).
The government argued to the district judge and repeats
here that the statement was not contemporaneous with the later
seizure, and so does not show Torres-Rosario's state of mind at the
relevant time. The contemporaneity requirement--that the statement
evidence a "then existing" state of mind--is part of the rationale
since spontaneity in expressing one's present state of mind is
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thought to reduce the risk of deception. United States v. Rivera-
Hernández, 497 F.3d 71, 81 (1st Cir. 2007). But if Guerra
possessed the gun at the time of the statement, it might make more
likely his possession of the gun at some later point.
The real difficulty is that, in the context of other
evidence in the case, Guerra's sometime possession of the
gun--which was already known to the jury by Waleska Torres'
admitted testimony--did little to negate the overwhelming evidence
that Torres-Rosario possessed the gun at the time of the drug
seizure. It was found under Torres-Rosario's mattress and next to
his wallet--Waleska Torres had told a police officer that
Torres-Rosario had put the gun there--and Torres-Rosario admitted
to the police that it was his gun. Against this, the excluded
statement was almost useless, and its exclusion harmless by any
standard.
There remains Torres-Rosario's most powerful objection on
appeal, namely, to his sentence. This sentence was greatly
increased because of the district court's findings that Torres-
Rosario was subject to an enhanced sentence under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and that he possessed
the firearm in connection with a controlled substance offense,
U.S.S.G. § 4B1.4(b)(3)(A), (c)(2). The latter is a secure finding
but, through no fault of the district judge, the former is not.
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To trigger the ACCA, Torres-Rosario had to be convicted
previously of at least three violent felonies, serious drug
offenses, or a combination thereof. 18 U.S.C. § 924(e)(1). The
government established two prior serious drug offenses but the
third (and fourth) felonies relied on by the government were for
assault and battery under Massachusetts law, Mass. Gen. Laws ch.
265, § 13A. After Torres-Rosario was sentenced, this court
reversed prior precedent that had automatically classified such
Massachusetts assault and battery convictions as "violent felonies"
under the ACCA.
This about-face, in United States v. Holloway, 630 F.3d
252 (1st. Cir 2011), was prompted by intervening Supreme Court
precedent, Johnson v. United States, 130 S. Ct. 1265 (2010), and by
further analysis of Massachusetts state law. Holloway held that a
Massachusetts assault and battery conviction does not qualify as an
ACCA predicate unless the government can make a showing, itself
limited as to the sources of evidence, Shepard v. United States,
544 U.S. 13 (2005), that the defendant was convicted of a subset of
the A and B offense applicable to violent conduct. Holloway, 630
F.3d at 259-60.
The government says that the objection was not raised in
the district court and was explicitly waived when Torres-Rosario's
attorney conceded at sentencing "that [Torres-Rosario] is an Armed
Career Criminal under the statute." Waiver, where it occurs, is
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treated as an "intentional," and therefore permanent, abandonment
of a position. United States v. Walker, 538 F.3d 21, 22 (1st Cir.
2008). By contrast, a mere failure to object "forfeits" a claim,
so review on appeal is only for plain error--requirements that are
taxing but (as we explain below) can be satisfied here.
Courts are not always consistent in their use of the term
waiver. On the one hand, they often quote the familiar rubric that
waiver is intentional relinquishment of a known right, Johnson v.
Zerbst, 304 U.S. 458, 464 (1938), and then ignore on appeal a
failure to object at trial where a controlling precedent is
thereafter overruled. United States v. Dancy, 640 F.3d 455, 465
(1st Cir. 2011). On the other hand, an explicit concession can
waive both existing and yet-to-be-recognized rights. 7 LaFave,
Criminal Procedure § 27.5(c), at 78 (3d ed. 2007).
At least where a party makes an explicit and specific
concession, practical reasons favor holding a party to such a
concession, whether given in exchange for a quid pro quo or merely
to avoid evidence that the party would prefer not to be presented
(such as the nature of the prior felony in a felon-in-possession
case). Such undertakings are critical in managing the business of
courts. If a lawyer wishes to preserve a possible claim despite an
express concession or stipulation, identifying and reserving the
claim is the customary approach. See, e.g., United States v.
Weber, 668 F.2d 552 (1st Cir. 1981), cert. denied 457 U.S.
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1105 (1982); cf. United States v. Caraballo-Cruz, 52 F.3d 390, 392
(1st Cir. 1995).
Here, without reservation, Torres-Rosario conceded that
he fell within the armed career criminal statute. But courts may
excuse waivers and disregard stipulations where justice so
requires.2 We think that is the appropriate course in this
instance. Failure to allow the challenge based on Holloway would
likely mean a much longer and arguably unjustified prior term for
Torres-Rosario; and, as we explain, there is no reason to think
that the government would be unfairly prejudiced by reopening the
issue.
Forgiving waiver, however, merely remits Torres-Rosario's
Holloway argument to the test of plain error, see Morgan, 384 F.3d
at 8, which is not easy to meet, because it requires error,
plainness, prejudice to the defendant and the threat of a
miscarriage of justice. United States v. Olano, 507 U.S. 725,
732-36 (1993). How far Olano embraces concerns of prejudice to the
other side might be debated--a further reason for retaining a court
leash on the withdrawal of a plea or stipulation.
Nevertheless, in this case the plain error tests are
satisfied and no threat exists of unfair prejudice to the
2
United States v. Morgan, 384 F.3d 1, 7 (1st Cir. 2004)
(waiver for failure to present issue in briefs on appeal); United
States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001) (presentence
appeal waiver); Am. Honda Motor Co. v. Richard Lundgren, Inc., 314
F.3d 17, 21 (1st Cir. 2002) (stipulation).
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government. Because both error and plainness are judged as of the
time of appeal, United States v. Barone, 114 F.3d 1284, 1294 (1st
Cir.), cert. denied, 522 U.S. 1021 (1997), treating a Massachusetts
assault and battery conviction as an ACCA predicate, without
further evidence of violence, is now plain error under Holloway,
although (as we noted) the district judge was merely following
then-existing circuit precedent.
As for likely prejudice to Torres-Rosario, district
courts have regained considerable discretion in sentencing but the
guidelines are still highly influential. Indeed, an ACCA
designation carries with it a 15-year mandatory minimum sentence,
18 U.S.C. § 924(e), and, under the guidelines, a hefty potential
increase both in the defendant's offense level and in his criminal
history category, U.S.S.G. § 4B1.4. But for the designation,
something less than a 20-year sentence would likely have been
imposed.3
On remand, the government remains entitled to establish
the ACCA designation, United States v. Pratt, 568 F.3d 11, 21 (1st
Cir.), cert. denied, 130 S. Ct. 425 (2009), by showing that one of
3
Without the ACCA enhancements, it appears (we do not decide
the issue) that the appropriate guideline sentencing range could
have been 110-137 months--based on the district court's
determination of an offense level of 28 and criminal history
category IV, absent ACCA. Whether the 10 year maximum sentence
prescribed for the felon in possession offense, 18 U.S.C.
§ 924(a)(2), applies to Torres-Rosario is a matter for the parties
to address on remand.
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the assault and battery convictions was a crime of violence, thus
adding the necessary third predicate for an ACCA sentence. But the
government would have to offer proof severely constrained by
Shepard, 544 U.S. at 16, 24-26 (2005), and Pratt, 568 F.3d at 21,
and nothing so far indicates that it necessarily can or will do so.
Finally, as to the threat of miscarriage of justice if we
declined to remand, the difference in potential jail time would be
a concern in any balance. The Shepard issue is easily addressed on
remand without any need for a new trial on the merits. And, to the
extent relevant to plain error, no prejudice to the government is
likely to flow from the delay, given the nature of the type of
evidence to which the government may resort.
Accordingly, we affirm Torres-Rosario's conviction, but
vacate his sentence, and remand for resentencing consistent with
this decision.
It is so ordered.
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