United States v. Farrell

United States Court of Appeals
For the First Circuit

No. 10-1140

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES F. FARRELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Lipez and Howard,
Circuit Judges.

Tina Schneider for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, and Stephanie S.
Browne, Assistant United States Attorney, were on brief, for
appellee.

February 17, 2012
 HOWARD, Circuit Judge. Following a jury trial, James

Farrell was convicted of being a felon in possession of a firearm.

Finding that Farrell had three prior violent felony convictions,

the district court sentenced Farrell to fifteen years in prison,

the mandatory minimum sentence under the Armed Career Criminal Act

(ACCA). See 18 U.S.C. § 924(e). On appeal, Farrell claims that

his prior convictions did not fall within the ambit of the ACCA and

seeks remand for resentencing. He also argues that his attorney

was constitutionally deficient in failing to properly object to his

sentence. After careful review, we remand for resentencing.

I.

In June 2005, a federal grand jury in Rhode Island

indicted Farrell on one count of possessing a firearm as a

convicted felon, in violation of 18 U.S.C. § 922(g).1 Prior to

trial, the government, pursuant to 21 U.S.C. § 851, filed an

information alleging that Farrell was subject to the ACCA's

mandatory minimum sentence based on his three prior convictions,

which were for two Pennsylvania burglaries and a Massachusetts

breaking-and-entering. The government also submitted state court

records relating to those convictions. Farrell's first trial ended

1
See 18 U.S.C. § 922(g)(1) ("It shall be unlawful for any
person . . . who has been convicted . . . of[] a crime punishable
by imprisonment for a term exceeding one year . . . to . . .
possess . . . any firearm or ammunition . . . .").

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in a hung jury in September 2009. He was convicted after a second

trial roughly a month later.

A Presentence Investigation Report (PSR) addressed the

predicate convictions, observed that they satisfied the ACCA, and

concluded that Farrell was subject to a United States Sentencing

Guidelines (Guidelines) range of 188-235 months imprisonment.

Farrell objected to neither the section 851 information nor the

contents of the PSR. The sentencing hearing was similarly bereft

of acrimony. The defense proffered no objection to the Guidelines

calculation; the government, taking into account Farrell's age

(67), recommended a sentence at the bottom end of the range and

offered little rebuke to defense counsel's request for a variance

from the Guidelines range down to the statutory mandatory minimum

of 180 months. The district court acceded to the defense request

and sentenced Farrell accordingly.

II.

Farrell claims on appeal that none of the prior

convictions lodged against him were "violent felonies" within the

meaning of the ACCA. Relatedly, he argues that his attorney's

failure to object to the PSR or at sentencing amounted to

ineffective assistance of counsel in violation of his Sixth

Amendment rights.

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A. Standard of Review

Ordinarily, we engage in de novo review of a district

court's legal conclusion that a prior conviction is a violent

felony under the ACCA. United States v. Luna, 649 F.3d 91, 106

(1st. Cir. 2011), cert. denied, No. 11-7278, 2011 WL 5523266 (Dec.

12, 2011). Because, however, Farrell did not object below to the

inclusion of the alleged predicate offenses at issue, we review for

plain error. United States v. Weekes, 611 F.3d 68, 72 (1st Cir.

2010), cert. denied, 131 S. Ct. 3021 (2011). In order to meet this

rigorous standard, Farrell must identify: 1) an error 2) that was

clear and obvious 3) that affected his substantial rights, and 4)

that seriously impaired the fairness, integrity, or public

reputation of the judicial proceeding. United States v. Ríos-

Hernández, 645 F.3d 456, 462 (1st Cir. 2011).

B. The ACCA

The ACCA mandates a fifteen-year minimum prison sentence

for anyone convicted of being a felon in possession of a firearm

who also has three previous convictions for a violent felony. 18

U.S.C. § 924(e). A prior offense qualifies as a "violent felony"

under the ACCA if it is both punishable by a prison term longer

than one year and either "(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 the use

of explosives, or otherwise involves conduct that presents a

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serious potential risk of physical injury to another." Id. §

924(e)(2)(B). We have referred to clause (i) as the "force clause"

and the section of clause (ii) after the four enumerated offenses

as the "residual clause." See United States v. Holloway, 630 F.3d

252, 256 (1st Cir. 2011).

We take a "categorical approach" in determining whether

a prior conviction qualifies as a "violent felony" under the ACCA.

Id. (citing Taylor v. United States, 495 U.S. 575, 600 (1990)).

"[W]e may consider only the offense's legal definition, forgoing

any inquiry into how the defendant may have committed the offense."

Id. (citing Taylor, 495 U.S. at 600; Begay v. United States, 553

U.S. 137, 141 (2008)).

The first step in this process is identifying the offense

of conviction. Id. (citing United States v. Giggey, 589 F.3d 38,

41 (1st Cir. 2009) ("Giggey II")). As this case demonstrates, this

task can be a complicated one when a prior conviction is based on

a statute that covers multiple offenses. In that scenario, the

sentencing court is permitted to consider a limited group of

records (hereinafter "Shepard documents") to assist in determining

which particular offense was the actual foundation for the

conviction. Shepard v. United States, 544 U.S. 13, 26 (2005);

Giggey II, 589 F.3d at 41. The Supreme Court has observed that

"approved" records include charging documents, plea agreements and

colloquies, bench trial fact-finding and legal conclusions, jury

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instructions and verdict forms, or some comparable judicial record.

Shepard, 544 U.S. at 26; Holloway, 630 F.3d at 257; see also

Johnson v. United States, 130 S. Ct. 1265, 1273 (2010); United

States v. Pratt, 568 F.3d 11, 21 (1st Cir. 2009). A court may not,

however, rely on police reports to inform its decision. Shepard,

544 U.S. at 16.

Finally, "if at least one of the possible offenses of

conviction would not qualify as a violent felony, the conviction

may not be relied on for ACCA purposes. In such a case, it is

impossible to tell whether the defendant was convicted of a violent

or non-violent felony." Holloway, 630 F.3d at 257 (emphasis in

original).

C. Predicate Offenses

1. 1977 Pennsylvania Burglary

In October 1977, Farrell was convicted of burglary, in

violation of 18 Pa. Cons. Stat. Ann. § 3502(a), which provided,2 in

relevant part, as follows:

A person is guilty of burglary if he enters a
building or occupied structure, or separately
secured or occupied portion thereof, with
intent to commit a crime therein, unless the
premises are at the time open to the public or
the actor is licensed or privileged to enter.

The statute is further illuminated by the definition of "occupied

structure" as "[a]ny structure, vehicle or place adapted for

2
The statute has since been amended in ways not relevant here.

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overnight accommodation of persons, or for carrying on business

therein, whether or not a person is actually present." 18 Pa.

Cons. Stat. Ann. § 3501.

This statute does not have as an element the threat or

use of physical force, so it does not come within clause (i) of the

ACCA. With respect to clause (ii), the Supreme Court has held that

"burglary," within the meaning of clause (ii), refers only to

"generic burglary," which the Court has defined as "the unlawful or

unprivileged entry into, or remaining in, a building or structure,

with intent to commit a crime." Taylor, 495 U.S. at 599. A state

statute that proscribes such conduct in a wider array of places

"such as automobiles and vending machines, other than buildings" is

broader than "generic burglary" and is thus not within the purview

of clause (ii). Id. The government, recognizing the Third

Circuit's holding in United States v. Bennett, 100 F.3d 1105, 1109

(3rd Cir. 1996), concedes that the "occupied structure" definition

makes the Pennsylvania statute non-generic on its face. We turn

then to the Shepard documents to determine whether the Farrell's

conviction necessarily included the elements of generic burglary.

See Taylor, 495 U.S. at 602 (holding that offense constitutes ACCA

"burglary" if either the statutory definition substantially

corresponds to generic burglary or the charging papers and jury

instructions actually required the jury to find all the elements of

generic burglary in order to convict the defendant).

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 The government has submitted on appeal documents

underlying the alleged predicate convictions. These records were,

for the most part, not before the district court. We generally do

not consider evidence that was not part of the district court

record. See, e.g., United States v. Rosario-Peralta, 175 F.3d 48,

56 (1st Cir. 1999). Farrell, however, does not contest our

consideration of the government's supplemental submission,

conceding at oral argument that had he objected below, the evidence

would likely have been submitted to the district court.3 See also

United States v. Kane, 434 F. App'x. 175, 176-77 (4th Cir. 2011)

(taking judicial notice in ACCA appeal of state court indictment

not submitted to district court at sentencing); United States v.

Mercado, 412 F.3d 243, 247-48 (1st Cir. 2005) (taking judicial

notice of state court docket entries).

3
We reject the government's contention that Farrell has waived
-- rather than forfeited -- his ACCA argument. Under the
circumstances of this case, the failure to object to the PSR does
not constitute an "intentional relinquishment or abandonment" of
the right to contest the legal adequacy of the ACCA finding.
United States v. Olano, 507 U.S. 725, 733 (1993); see United States
v. Jiminez, 512 F.3d 1, 6 (1st Cir. 2007) (finding waiver where
defendant was "expressly invited" to object to inclusion of
predicate offenses in PSR). Similarly, defense counsel's request
for leniency -- in the form of an eight month variance down to the
statutory minimum -- is not an abandonment of the claim made here
that the predicates do not qualify for ACCA consideration.

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 The criminal complaint4 filed in connection with the 1977

case provided that Farrell:

did unlawfully enter the St. Joseph's convent
. . . and did at this time enter the second
floor portion of this residence which is the
area which contains the convent safe, money
and valuables. The . . . defendant . . . was
confronted by Sister Rita Marie Zahorchimny.
The defendant did . . . physically grab [her]
by the arms and throw her across the room
[and] did then flee the premises.

The subsequent information echoed the complaint, charging

that Farrell "did feloniously enter a building or occupied

structure, or separately secure or occupied portion thereof,

property of, St. Joseph Convent . . . with intent to commit a crime

therein." Farrell pled guilty to the charge. The record of the

plea noted that Farrell admitted to committing the crime charged.

Against this backdrop, we can find no error, and

certainly no error that was plain, in the district court's implicit

conclusion that Farrell's 1977 burglary conviction fits squarely

within the contours of "generic burglary." See Taylor, 495 U.S. at

599.

4
Criminal complaints in Pennsylvania are considered charging
instruments. See Garcia v. Att'y Gen., 462 F.3d 287, 292 (3d Cir.
2006) (citing Commonwealth v. Mitchell, 372 A.2d 826, 829 (Pa.
1977)); cf. Shepard, 544 U.S. at 16 (holding that sentencing courts
may not rely on police reports or complaint applications in ACCA
predicate felony analyses).

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 2. 1980 Pennsylvania Burglary

In September 1980, Farrell was charged with violating the

same Pennsylvania burglary statute. He was convicted in 1981. The

complaint charged him with entering a:

building, occupied structure or separately
secured or occupied portion thereof . . .
being a house, next to a church, property of
St. Patrick's Catholic church and the
residence of Father Snyder with the intent to
commit a crime therein in that he did break
open [sic] outside door of house leading into
the bedroom of Father Snyder and he did enter
the house and room, and when confronted by
Father Snyder he did run from said house.

The jury verdict slip noted that Farrell was found guilty of both

burglary and criminal trespass. Considering these facts, which

bear no significant difference from the 1977 burglary, we find no

plain error in the finding below that the 1980 Pennsylvania

burglary was properly considered an ACCA predicate.

3. 1980 Massachusetts Breaking-and-Entering

Farrell's 1980 Massachusetts conviction presents a

stickier wicket. The government relies on the same evidence that

it submitted in the district court -- a single entry which it

claims is from a Newburyport (Mass.) District Court docket sheet.

The entry itself, however, while attested-to as a "true copy," is

devoid of information as to the document's identity. An entry

indicates that a defendant named "James Farrel"5 was charged in

5
The correct spelling of the appellant's surname is "Farrell."

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March 1980 in case number 2482 of breaking-and-entering in the

daytime to commit a felony. A judgment of guilty was noted on June

2, 1980, as was a one-year suspended sentence and probation.6

Despite the paucity of information, the parties agree

that, among several extant Massachusetts statutes, there were only

two possible statutes of conviction.7 During the relevant time

period, Mass. Gen. Laws ch. 266, § 17 provided that:

Whoever . . . breaks and enters in the day
time, a building, ship or vessel, with intent
to commit a felony, the owner or any other
person lawfully therein being put in fear,
shall be punished by imprisonment in the state
prison for not more than ten years.

Mass. Gen Laws ch. 266, § 18 provided that:

Whoever . . . breaks and enters in the day
time a building, ship or vessel, with intent
to commit a felony, no person lawfully therein
being put in fear, shall be punished by
imprisonment in the state prison for not more
than ten years and by a fine of not more than
five hundred dollars and imprisonment in jail
for not more than two years.

The parties further agree that the inclusion of "ship[s]

or vessel[s]" within the statutory proscriptions takes the statute

of conviction outside the confines of "generic" burglary, which

6
Although the government states in its brief that Farrell pled
guilty to the charge, the submitted document notes only an original
plea of not guilty in April 1980 and an entry of "guilty" dated "6-
2-80" under the column headed "judgment." There is no indication
whether the judgment followed a trial or guilty plea.
7
Both statutes have since been amended to include vehicles
within their ambit.

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requires a building or other structure as a target. Taylor, 495

U.S. at 598. Moreover, in light of the scant available records,

the possibility that the burglary was of a vessel or ship cannot be

excluded.8 Thus, the government's only available argument is that

Farrell's Massachusetts conviction fits within the ACCA's residual

clause because it "otherwise involves conduct that presents a

serious potential risk of physical injury to another." See 18

U.S.C. § 924(e)(2)(B)(ii).

In making this assessment, we again employ a categorical

approach, "comparing the elements of the state crime against the

residual otherwise clause . . . supplementing that comparison only

with the information" from the permissible documents discussed

above. United States v. Holloway, 630 F.3d 252, 260 (1st Cir.

2011) (citing United States v. Giggey, 551 F.3d 27, 29 (1st Cir.

2008) ("Giggey I")). To fit within the ACCA's residual clause, the

predicate "offense at issue must: (1) present a risk of physical

injury similar to the risk presented by the clause's enumerated

offenses and (2) be similar 'in kind' to those offenses." Id.

(quoting Giggey I, 551 F.3d at 41-42). An offense is "similar in

kind" to an enumerated offense if it "typically involve[s]

purposeful, violent and aggressive conduct." Id. (citations and

8
The government's brief contains a parenthetical aside
suggesting that there are other sources showing that the crime did
not involve a vessel or ship. If we were permitted to consider
such other sources, the government presumably would have made them
available.

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internal quotation marks omitted); see also United States v.

Peterson, 233 F.3d 101, 110 (1st Cir. 2000) (refusing to include

within ACCA residual clause Rhode Island breaking and entering

statute that lacked requirement of intent to commit a crime because

"in order to fall under the 'otherwise' clause, a breaking and

entering offense must contain elements truly comparable to those of

a burglary -- comparable enough that the offense poses an

equivalent risk of physical injury.").

The government first suggests that affirmance is

foreordained by James v. United States, 550 U.S. 192, 212-213

(2007). There, the Court held that the ACCA's residual clause

encompassed attempted burglary of a dwelling under a Florida

statute which included the dwelling's curtilage within its

proscription.9 The government also points to our decision in

United States v. Sanchez-Ramirez, 570 F.3d 75 (1st Cir. 2009),

where, applying James, we held that the defendant's prior Florida

conviction for burglary of an unoccupied structure -- a church --

satisfied the elements of the ACCA residual clause. Id. at 83. As

we noted in Sanchez-Ramirez, the Court in James based its holding

on the observation that an attempt to enter a dwelling's curtilage

-- defined as "an enclosed area surrounding a structure," 550 U.S.

at 213 -- "requires both physical proximity to the structure and an

9
James also held that attempt crimes are not categorically
excluded from the ACCA residual clause. 550 U.S. at 213. That
issue is not presented by this case.

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overt act directed toward breaching the enclosure [and thus]

presents a serious potential risk that violence will ensue and

someone will be injured." Sanchez-Ramirez, 570 F.3d at 83

(citation and internal quotation marks omitted). The Court in

James further noted that the injury risk stemmed from the

possibility that an innocent person might appear while the crime

was in progress or from a confrontation with police or bystanders

who might investigate. Id. (citing James, 550 U.S. at 203).

Building on these factors, we ultimately concluded that the risks

to persons identified by the Court in James in relation to a

dwelling-curtilage burglary, were equally present in Sanchez-

Ramirez's structure-curtilage burglary. Id.

Here, although the Massachusetts statutes include the

requisite specific intent to commit a felony, see Peterson, 233

F.3d at 108, we must operate under the premise that the elements of

the asserted predicate do not necessarily include either a dwelling

or other structure, unlike the predicate crimes in James and

Sanchez-Ramirez. Additionally, given the dearth of available

Shepard documents, we cannot assume that Farrell was convicted

under Mass. Gen. Laws ch. 266, § 17, which requires that a person

"be put in fear," and not section 18, which lacks the "put in fear"

element. See Holloway, 630 F.3d at 259 (holding that government

bears burden of showing that defendant was convicted of violent

variety of Massachusetts assault and battery); cf. Giggey II, 589

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F.3d at 42 (noting that defendant's state court guilty plea left no

uncertainty as to which of several possible burglary offenses was

at issue in assessing whether the predicate offense was a "crime of

violence" under Sentencing Guidelines career offender provision).10

In this light, James and Sanchez-Ramirez are of limited utility to

the government's position. The government asks us to find that the

completed breaking-and-entering in this case involved a level of

risk comparable to generic burglary, as James found when comparing

attempted burglary to burglary simpliciter. The gist of the

argument is that, as was observed in James and Sanchez-Ramirez, in

each case there is a realistic possibility that a perpetrator will

be interrupted and violence will ensue. But such an argument could

be applied to almost any crime in which "getting caught in the act"

escalates the potential for violence. We require a more fine-

toothed approach. See Holloway, 630 F.3d at 260-62 (analyzing ACCA

implications of Massachusetts reckless battery statute). Applying

the now-established approach, we conclude that Farrell's conviction

does not come within ACCA's residual clause.

10
See United States v. Willings, 588 F.3d 56, 58 n.2 (1st Cir.
2009) (observing that "crime of violence" under Guidelines and
"violent felony" under the ACCA are nearly identical in meaning and
that decisions construing one inform the construction of the
other). This symbiosis, however, does not necessarily extend to
analysis of burglaries, because the guideline definition is
narrower, including only dwelling burglary among its enumerated
offenses. Id.; U.S.S.G. § 4B1.2(a)(2).

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 We have not previously directly addressed the precise

issue that we face here: whether breaking and entering a ship or

vessel in the daytime is within the ACCA's residual clause. But a

case decided while this appeal has been pending portends with

unmistakable clarity our answer to the question. In United States

v. Brown, 631 F.3d 573 (1st Cir. 2011), we held that burglary of a

non-dwelling building under Massachusetts' night-time breaking and

entering statute did not qualify as a "crime of violence" under the

Sentencing Guidelines' career offender provision.11 We observed

that, while burglary of a non-dwelling building is "comparable in

kind to one of the listed offenses (burglary of a dwelling) . . .

we do not think that the risks of burglary of a 'building' -- at

least given Massachusetts' broad definition -- are comparable to

burglary of a 'dwelling,' . . ." Id. at 579. Specifically, we

noted that while dwellings are regularly occupied and thus create

the risk of night-time surprise encounters that could lead to

violence, "the reality is that many buildings are wholly unoccupied

at night. . . . [T]he Massachusetts statute covers a wide range of

structures like storage sheds or detached garages where one might

rarely encounter someone else at night." Id.

11
Although the statute, Mass. Gen. Laws. ch. 266, §16, included
ships and vessels within its proscriptions, the parties in Brown
agreed that the alleged predicate involved a non-dwelling building.
Brown, 631 F.3d at 578-79.

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 It must be acknowledged that Brown is not on all fours

with this case. There are differences between the offenses

enumerated in the ACCA (at issue here) and those in the career

offender guideline that we analyzed in Brown. See supra, n.10.

Moreover, in the present case we review only for plain error -- as

opposed to Brown's de novo standard. And the substance of the

interpretive issues is also not identical. Specifically, whereas

in Brown the comparison was between breaking and entering into a

non-dwelling building in the night-time and burglary of a dwelling,

here we must determine whether daytime breaking and entering into

a non-structure, such as a vessel or a ship, is comparable in kind

and in degree of risk to generic burglary of a building. But

ultimately those differences are immaterial to our analysis;

similarly to our holding in Brown, we conclude that the predicate

crime in this case and generic burglary are insufficiently

congenerous.

In reaching this conclusion, we turn to the construction

of Massachusetts law rendered by the Commonwealth's courts.

Holloway, 630 F.3d at 259. In assessing the violent or aggressive

nature of the predicate, Giggey I, 551 F.3d at 41-42, we note that

conduct that constitutes the element of "breaking" includes opening

a closed but unlocked door or window. See Commonwealth v. Lewis,

191 N.E.2d 753, 756 (Mass. 1963). Also, "entering" is satisfied by

"some portion of the defendant's hand or arm" coming within the

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house. Commonwealth v. Moore, 741 N.E.2d 86, 89 (Mass. App. Ct.)

(citing Lewis, 191 N.E.2d at 756), review denied, 751 N.E.2d 419

(2001). Conduct that satisfies these elements does not strike us

as being typically "violent or aggressive," Giggey I, 551 F.3d at

41-42, and violence is not necessarily a hallmark of breaking-and-

entering convictions in the Massachusetts cases. See, e.g., Maher

v. Justices of the Quincy Div. of the Dist. Ct. Dept., 855 N.E.2d

1106, 1107 (Mass. App. Ct. 2006) (noting a municipal employee's

conviction under Mass. Gen. Laws. ch 166 § 18 for breaking into a

personnel office on a Saturday to view and pilfer file documents).

As we noted in Brown, "buildings" under Massachusetts law

include "detached garages and storage facilities . . . that may

invite theft of property, but would rarely expose individuals to

violence." 631 F.3d at 579. The same rationale applies with even

more force to the "ship or vessel" potentially at issue here. As

in Brown, "[i]f [Farrell] had been tried for . . . 'armed'

burglary . . . this would be a different case." Id. at 580.

Similarly, if theft of the vessel itself were an element, or the

Shepard documents revealed that the charge included the "person put

in fear" element, the calculus might lead to a different result.

The government asks us to follow cases from two circuits

in which predicate burglaries have been classified as violent

felonies under the ACCA residual clause where the relevant statutes

included non-structures such as tents or watercraft within their

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ambit. We are not persuaded that those cases should inform the

analysis in this one. In United States v. Scoville, 561 F.3d 1174

(10th Cir. 2009), the court found that violation of two Ohio

burglary statutes posed risks of injury or violence that were

similar in kind to generic burglary due to their requirements that

persons be present or that the structures be occupied or adapted

for overnight accommodation. Id. at 1180-81. The Massachusetts

statutes at issue in this case, however, do not require the

presence of similar conditions.

The government also relies on United States v. Mayer, 560

F.3d 948 (9th Cir. 2009), in which the court held that Oregon's

first degree burglary statute fell within the ACCA residual clause.

Unlike the statutes at issue here, however, the Oregon law limits

its application to either dwellings or "structure[s] adapted for

overnight accommodation of persons or for carrying on business

therein." Id. at 959. Additionally, conviction under the Oregon

statute requires being armed with a weapon or other dangerous

object, use of a dangerous weapon, or causing or attempting to

cause physical injury. Id. Finally, the remaining case relied on

by the government, United States v. Terrell, 593 F.3d 1084 (9th

Cir.), reh'g denied, 621 F.3d 1154 (2010), cert. denied, 131 S. Ct.

2094 (2011), is similarly distinguishable because the relevant

state burglary statutes at issue there limited their reach to

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structures adapted for residential use, business use, or overnight

stay. Id. at 1091-92.

Against this backdrop, and given the limited scope of

Shepard-permissible evidence, we conclude that the district court

necessarily erred in finding that Farrell's 1980 Massachusetts

breaking-and-entering conviction was a violent felony within the

meaning of the ACCA.

Having determined that the first prong of the plain error

test is met, we turn to the second requirement: that the error be

"obvious and clear under current law." United States v. Newell,

658 F.3d 1, 28 (1st Cir.), cert. denied, 132 S. Ct. 430 (2011). We

have said that "current law" means the law at the time of appellate

consideration, United States v. Antonakopoulos, 399 F.3d 68, 77

(1st Cir. 2005), but there is some debate over whether that rule

applies when the law was unsettled at the time of trial. In

Johnson v. United States, 520 U.S. 461, 468 (1997), the Supreme

Court established that "where the law at the time of trial was

settled and clearly contrary to the law at the time of appeal[,] it

is enough that an error be 'plain' at the time of appellate

consideration." The Court, however, left open the question of

whether plain error would be established where the law was

unsettled at the time of trial, and subsequently clarified while

the appeal was pending. The circuits are divided on this issue.

Some have deemed Johnson a narrow exception to the rule that error

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is plain only if it was clear at the time of a district court's

decision. See, e.g., United States v. Mouling, 557 F.3d 658, 663-

64 (D.C. Cir. 2009); United States v. Turman, 122 F.3d 1167, 1170

(9th Cir. 1997); United States v. David, 83 F.3d 638, 643 (4th Cir.

1996). Others have held that "the time of appellate consideration"

standard applies regardless of the law's clarity at the time of

trial. See, e.g., United States v. Smith, 402 F.3d 1303, 1315 n.7

(11th Cir. 2005), vacated on other grounds by 545 U.S. 1125 (2005);

United States v. Cordery, 656 F.3d 1103, 1106 (10th Cir. 2011);

United States v. Ross, 77 F.3d 1525, 1539-40 (7th Cir. 1996);

United States v. Cosgrove, 637 F.3d 646, 656-57 (6th Cir. 2011);

United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (per

curiam).

We subscribe to the latter view: the plainness of the

error should be evaluated at the time of appellate consideration,

regardless of whether the law at the time of trial was settled and

clearly contrary to the law at the time that the appeal is

considered, or whether the law was unsettled at the time of trial.

This approach is consistent with the principles

undergirding the forfeiture doctrine, and the stringency of its

accompanying plain error standard of review. Plain error review is

not a vehicle for gauging the magnitude of the district court's

mistake; rather, it functions as a limitation on the appellate

court's discretion. We do not correct forfeited errors that are

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questionable or inconsequential, but only those that are "plain"

and "affect substantial rights." See United States v. Laboy-

Delgado, 84 F.3d 22, 31 n.9 (1st Cir. 1996). In other words, the

focus of plain error review should be "whether the severity of the

error's harm demands reversal," and not "whether the district

court's action . . . deserves rebuke." United States v. Ross, 77

F.3d 1525, 1539-40 (7th Cir. 1996). When viewed as a restriction

on our discretion, rather than as a measure of district court

fault, it is clear that the "plainness" inquiry must be undertaken

from the vantage of the appellate court. See id. Moreover, as a

matter of practice, assessing the plainness of error at the time of

appellate consideration allows the reviewing court to avoid the

elusive and potentially onerous case-by-case determination of

whether the law was "settled" or "unsettled" at the time of trial.

Smith, 402 F.3d at 1315 n.7.

Accordingly, we need not consider whether the law at the

time of Farrell's sentencing was merely unsettled or was clearly

contrary to the law as it stands now. The question here is whether

our intervening decision in Brown makes the error in this case

clear and obvious at the present time. We hold that it does.

We have pointed out the differences between Brown and

Farrell's sentencing: there, we construed the Sentencing

Guidelines -- here, the ACCA; there, the distinction was between

burglary of a dwelling and nighttime breaking and entering a non-

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dwelling building -- here, it is between a building and a vessel.

But to describe those differences is to answer the question. As we

concluded in determining that there was error, if breaking and

entering a building at night is not similar in kind and does not

pose a degree of risk similar to burglary of a dwelling, then

neither can breaking and entering a vessel be similar in kind to,

nor pose a degree of risk similar to, burglary of a building.

If only because of the differences between the physical

characteristics of a vessel and a building, and the general ability

to observe whether anyone is aboard a vessel, happening upon a

person is far less likely to take place while breaking and entering

a vessel than it is while burglarizing a building. Cf. Mass. Gen.

Laws ch. 90B § 1 (2009) (in statute regulating motorboats, other

vessels and recreational vehicles, "vessel" means "watercraft of

every description, except a seaplane on the water used or capable

of being used as a means of transportation on water"); Barker v.

Fairhaven, 163 N.E. 901, 902 (Mass. 1928) (as used in tax statutes,

"vessel" is a "craft for navigation on the water and larger than a

common rowboat"; "ships" are vessels that are not "propelled by

oars, paddles or the like"). While not all vessels are so easily

distinguished from buildings, we are concerned here with the scope

of the statute and the likelihood of physical injury, not simply

with whether subclasses of vessels exist. See Brown, 631 F.3d at

579 (the statute "covers a wide range of structures . . . where one

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might rarely encounter someone else" and "would rarely expose

individuals to violence"). After Brown, it is plain that reliance

on the 1980 Massachusetts conviction was error.

Finally, in this case, the prejudice and unfairness

prongs of the plain error doctrine may be addressed summarily. The

government makes no argument with respect to them, and both the

mandatory minimum sentence of imprisonment for fifteen years under

the ACCA and the career offender determination under the Guidelines

were arrived at in reliance on the error. No more need be said.

III.

We remand for resentencing consistent with this opinion.12

12
In light of our disposition of this issue, we do not address
the ineffective assistance of counsel claim. Farrell also posits
that his sentence violates the Fifth and Sixth Amendments because
a jury did not find, beyond a reasonable doubt, that he had the
requisite predicate felonies. We have repeatedly rejected this
attempt to avoid the Supreme Court's holding in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), and do so again here. See
United States v. Goncalves, 642 F.3d 245, 255 (1st Cir. 2011) (and
cases cited therein).

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