United States Court of Appeals
For the First Circuit
No. 09-1485
UNITED STATES,
Appellee,
v.
ANDRE ELLIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Syrie D. Fried, Federal Public Defender, on brief for
appellant.
Robert E. Richardson, Assistant U.S. Attorney and Carmen M.
Ortiz, United States Attorney, on brief for appellee.
September 2, 2010
Per Curiam. We have reviewed the record and the parties'
submissions. We allow the government's motion for summary
disposition, and we affirm.
Under the mandate rule, "a legal decision made at one
stage of a civil or criminal case, unchallenged in a subsequent
appeal despite the existence of ample opportunity to do so, becomes
the law of the case for future stages of the same litigation, and
the aggrieved party is deemed to have forfeited any right to
challenge that particular decision at a subsequent date." United
States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). Still, the
district court may review its earlier decision if it concludes that
the decision amounted to a blatant error that, if left uncorrected,
will result in a serious injustice. Id. at 251. Where the mandate
rule is in effect, a district court's decision whether to review an
earlier decision in the proceedings is reviewed by this court for
an abuse of discretion. See Harlow v. Children's Hosp., 432 F.3d
50, 55-56 (1st Cir. 2005).
We agree with the district court that there was no
blatant error in its previous decision to sentence the appellant,
Andre Ellis ("Ellis"), under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e). The ACCA applies where a person
convicted under 18 U.S.C. § 922(g) has three previous convictions
for a violent felony or a serious drug offense. A "conviction"
"includes a finding that a person has committed an act of juvenile
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delinquency involving a violent felony." 18 U.S.C. § 924(e)(2)(C).
A "violent felony" is defined in subsection 924(e)(2) as follows:
[T]he term "violent felony" means any crime
punishable by imprisonment for a term
exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a
firearm, knife, or destructive device that
would be punishable by imprisonment for such
term if committed by an adult, that –
(i) 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). Ellis' criminal record shows a previous
juvenile adjudication for assault and battery with a dangerous
weapon (a handgun). Whether this juvenile adjudication qualifies
as a "violent felony," however, depends on whether it was an act of
juvenile delinquency that would have been "punishable by
imprisonment for a term exceeding one year" if committed by an
adult. Subsection 921(a)(20) of Title 18 provides that certain
crimes are not considered to be crimes "punishable by imprisonment
for a term exceeding one year".
What constitutes a conviction of such a crime
shall be determined in accordance with the law
of the jurisdiction in which the proceedings
were held. Any conviction which has been
expunged, or set aside or for which a person
has been pardoned or has had civil rights
restored shall not be considered a conviction
for purposes of this chapter, unless such
pardon, expungement, or restoration of civil
rights expressly provides that the person may
not ship, transport, possess, or receive
firearms.
18 U.S.C. § 921(a)(20).
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Ellis contends that his juvenile adjudication for assault
and battery with a dangerous weapon was "set aside" by operation of
Mass. Gen. Laws ch. 120, § 21. That statute provides:
Whenever a person committed to the department
[of Youth Services] by a court upon conviction
of a crime is discharged from its control such
discharge shall, when so ordered by the
department, restore such person to all civil
rights and shall have the effect of setting
aside the conviction.
Mass. Gen. Laws ch. 120, § 21. Although the Massachusetts statute
in question only sets aside a juvenile adjudication "when so
ordered by the department [of Youth Services]", Ellis did not
present any evidence or documentation in the district court to show
that the Department of Youth Services did, in fact, set aside his
juvenile adjudication. He takes the position that any such set-
aside is automatic; essentially, then, he argues that the statutory
language in question (i.e., "when so ordered by the department") is
superfluous. The government has not contested this position on
appeal, and we bypass it.
Even if a juvenile adjudication is automatically "set
aside" upon discharge from control of the Department of Youth
Services, that adjudication is not set aside for all purposes. In
particular, the adjudication still may be considered in any future
criminal proceedings against the individual. See Mass. Gen. Laws
ch. 120, § 21 ("A commitment to the department shall not be
received in evidence or used in any way in any proceeding in any
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court [] except in imposing sentence in any criminal proceeding
against the same person.") (emphasis added). Given that state law
provides that juvenile adjudications are not "set aside" for the
purpose of imposing sentence in later criminal proceedings against
the individual, it is far from clear that Massachusetts juvenile
convictions should never be treated as predicate offenses under the
ACCA. Accordingly, it was not blatant error for the sentencing
court to take Ellis' juvenile adjudication into consideration for
the purpose of applying the ACCA.
We do not purport to decide at this juncture whether
Massachusetts juvenile adjudications for violent crimes should ever
be treated as predicate offenses under the ACCA. We only decide
that, given the procedural posture of this case, there was no
blatant error in treating Ellis' juvenile adjudication as a
predicate offense.
Affirmed. See 1st Cir. R. 27.0(c).
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