United States Court of Appeals
For the First Circuit
No. 10-1891
UNITED STATES OF AMERICA,
Appellee,
v.
JOHNNY RODRIGUEZ,
a/k/a ROBERTO MELENDEZ, a/k/a EDWIN BERMUDEZQUINONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Eduardo Masferrer, by appointment of the court, with whom
Masferrer & Associates, P.C. was on brief for appellant.
Elizabeth L. Prevett, Federal Public Defender Office, on brief
for the Federal Public Defender Office for the Districts of
Massachusetts, New Hampshire and Rhode Island, Amicus Curiae.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
October 13, 2011
BOUDIN, Circuit Judge. In June 2009, police took Johnny
Rodriguez into custody while executing a search warrant at his
apartment in Lynn, Massachusetts. After obtaining a separate
warrant to search for illegal drugs and weapons, the police
recovered 5 firearms, 398 rounds of ammunition, firearms-related
items (including a rifle scope, rifle case, and holsters), 29.4
grams of marijuana, 243.49 grams of cocaine, knotted plastic
baggies, and $6,556 cash.
A one-count information in November 2009 alleged that
Rodriguez was a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1) (2006). Rodriguez waived indictment and pled guilty to
the information. In June 2010, the district court sentenced
Rodriguez to 180 months' imprisonment plus 5 years of supervised
release, the minimum permissible under the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 924(e). Whether the ACCA applied is the
question before us.
To be sentenced under the ACCA, Rodriguez had to be
convicted of at least three prior violent felonies, serious drug
offenses, or a combination thereof. 18 U.S.C. § 924(e)(1). The
Probation Office identified four qualifying ACCA predicates: (1)
a 1995 conviction for arson in New Jersey; (2) a 1998 conviction
for possession with intent to distribute controlled substances in
Massachusetts; (3) a 1998 conviction for larceny from the person in
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Massachusetts; and (4) a 2003 conviction for assault and battery in
Massachusetts.
Rodriguez objected at sentencing to application of the
ACCA, arguing that his larceny and assault and battery convictions
were not qualifying predicates. The district court found that
Rodriguez's larceny from the person conviction was a violent felony
providing the third required predicate and thus did not address the
assault and battery conviction. Our own subsequent holding in
United States v. Holloway, 630 F.3d 252, 262 (1st Cir. 2011), made
clear that a simple assault and battery conviction under
Massachusetts law would not, without more, qualify as an ACCA
predicate.
It is a different question whether Massachusetts' crime
of larceny from the person, Mass. Gen. Laws ch. 266, § 25(b)
(2008), is a "violent felony" that qualifies as an ACCA predicate,
18 U.S.C. § 924(e)(2)(B). The ACCA defines a "violent felony" 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.
18 U.S.C. § 924(e)(2)(B).
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The use of physical force is not an element of the
offense. Commonwealth v. Jones, 283 N.E.2d 840, 843 (Mass. 1972)
(robbery's additional element of "the exertion of force . . .
remains the principal distinguishing characteristic" from larceny).
But the government contends, and we agree, that under ACCA's so-
called residual clause, the offense "presents a serious potential
risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
United States v. De Jesus, 984 F.2d 21, 25 (1st Cir.
1993), earlier held that Massachusetts' crime of larceny from the
person is a "crime of violence" under the residual clause of
U.S.S.G. § 4B1.2(a)(2).1 Because larceny from the person "requires
theft from either the victim's person or the victim's immediate
vicinity," De Jesus concluded that "a sufficiently serious
potential for confrontation and physical injury invariably exists"
such that larceny from the person qualifies as a crime of violence.
De Jesus, 984 F.2d at 24.
The panel compared the degree of risk posed by larceny
from the person to that of the "closest analog among the enumerated
offenses" so designated--namely, burglary. James v. United States,
550 U.S. 192, 203 (2007). And, noting that burglary might involve
an unarmed burglar breaking and entering an abandoned warehouse,
1
The "terms 'crime of violence' and 'violent felony' are
nearly identical in meaning," and "decisions construing one term
inform the construction of the other." Holloway, 630 F.3d at 254
n.1.
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"we fail[ed] to see how larceny from the person that necessarily
involves theft from within the victim's immediate presence can be
thought to pose a significantly lesser risk of violent eruption."
De Jesus, 984 F.2d at 24-25.
De Jesus rests on sound reasoning and represents an
uncontroversial view among the circuits.2 As the burglary example
indicates, the test is whether a substantial risk of violence is
present, not a certainty. James, 550 U.S. at 208. And De Jesus
governs this panel as a matter of general practice unless its
authority has been impaired between its issuance and the present
appeal. United States v. Rodríguez, 527 F.3d 221, 224-25 (1st Cir.
2008).
Rodriguez relies on Begay v. United States, 553 U.S. 137
(2008). There, ruling out driving while intoxicated as a violent
felony, the Supreme Court relied on the quality of the crime as to
scienter, finding that New Mexico's DUI offense lacked the
"purposeful, violent, and aggressive conduct" typically involved in
the enumerated offenses. Begay, 553 U.S. at 144-45 (modifications
omitted). Marking the limits of Begay, Sykes v. United States, 131
2
See, e.g., United States v. Abari, 638 F.3d 847, 848-51 (8th
Cir. 2011), cert. denied, 2011 WL 4536028 (Oct. 3, 2011); United
States v. Alderman, 601 F.3d 949, 953 (9th Cir. 2010); United
States v. Jarmon, 596 F.3d 228, 233 (4th Cir.), cert. denied, 131
S. Ct. 145 (2010); United States v. Patillar, 595 F.3d 1138, 1140
(10th Cir.), cert. denied, 130 S. Ct. 3464 (2010); United States v.
Thrower, 584 F.3d 70, 75 (2d Cir. 2009), cert. denied, 131 S. Ct.
176 (2010).
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S. Ct. 2267, 2270 (2011), then found to be a violent felony
Indiana's offense of intentional vehicular flight, Ind. Code
§ 35–44–3–3 (2004), stressing intentionality--which is equally
present here.
According to Sykes, Begay's "purposeful, violent, and
aggressive formulation will be redundant with the inquiry into
risk" when the felony at issue "is not a strict liability,
negligence, or recklessness crime." Sykes, 131 S. Ct. at 2275-76.
Where the prior felony has a "stringent mens rea requirement," id.
at 2275--as is the case here, Commonwealth v. Johnson, 396 N.E.2d
974, 977 (Mass. 1979)--Begay provides no shelter. Nor does its
quoted language establish a minimum quantitative risk test, which
would arguably not be met even by burglary.
Rodriguez and amicus Federal Public Defender say that
Commonwealth v. Jones, 283 N.E.2d 840, shows that where the victim
is aware of the theft--creating a clear potential for
confrontation--the crime is deemed a robbery under Massachusetts
law. At least one Massachusetts court observed that larceny
"characteristically involves stealth and a lack of awareness of the
taking by the victim." Commonwealth v. Davis, 385 N.E.2d 278, 279
(Mass. App. Ct. 1979).
But the "principal distinguishing characteristic" of
robbery under Massachusetts law is force. Davis, 385 N.E.2d at 279
(quoting Jones, 283 N.E.2d at 843). Thus a defendant could easily
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steal from an aware victim and be liable only for larceny, while in
other cases robbery might be the more suitable charge. And,
putting aside these fine distinctions, a defendant not aware at the
moment of the taking could quickly become aware and an altercation
follow. Treating Massachusetts larceny as a category, the
potential for violence is no less than burglary and arguably more.
Finally, Jones and Davis predate De Jesus. Rodriguez
cites Commonwealth v. Zangari, 677 N.E.2d 702 (Mass. App. Ct.
1997), to provide a case postdating De Jesus. But Zangari merely
restates the rule set out in Jones, which, as we have just
explained, Rodriguez over-reads to support his position. The
state-law argument is not supervening authority nor, in considering
the argument on the merits, do we think it undermines De Jesus.
Affirmed.
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