United States Court of Appeals
For the First Circuit
No. 05-1670
UNITED STATES OF AMERICA,
Appellee,
v.
JESSE LEAHY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Michael R. Schneider, with whom Salsberg & Schneider was on
brief, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
January 19, 2007
SELYA, Circuit Judge. This appeal calls upon us to
confront a question explicitly reserved in United States v. Diaz,
285 F.3d 92, 97 (1st Cir. 2002), concerning the allocation of the
burden of proof when a criminal defendant in a federal felon-in-
possession case attempts to exonerate himself by claiming that he
took possession of the firearm purely in self-defense.1 We hold
that there is a justification defense available in felon-in-
possession cases, which typically encompasses duress, necessity,
and self-defense. Relatedly, we hold that where, as here, proof of
the justification defense does not negate an element of the charged
crime, the burden of proof in connection with that defense rests
with the defendant. These holdings, coupled with our rejection of
a variety of other proffered assignments of error, lead us to
affirm the judgment below.
I. BACKGROUND
While the factual scenario portrayed at trial is littered
with testimonial conflicts and is at some points shrouded in
ambiguity, the facts relevant to this appeal are comparatively
straightforward.
On July 27, 2003, defendant-appellant Jesse Leahy, a
convicted felon, had an altercation with a group of teenagers near
1
The case at hand does not involve a claim of self-defense
via-à-vis a law enforcement officer. Such cases may present
special considerations and, thus, are beyond the scope of this
opinion.
-2-
his mother's home in Kezar Falls, Maine. According to Leahy, he
withdrew from the scene, but the youths followed him and attempted
forcibly to enter his mother's house. Ostensibly fearing the
maddened crowd, Leahy grabbed an Astra 9mm pistol that he knew his
mother kept in a kitchen drawer. He emerged from the residence
armed and confronted his tormentors.
During the ensuing imbroglio, Leahy admittedly fired the
weapon. The protagonists' versions of what happened differ
materially. Leahy asserts that he did no more than fire warning
shots into the ground to scare away attackers who were attempting
to inflict serious bodily injury on him. Other witnesses describe
Leahy as the aggressor and assert that he chased after the youths,
shot towards them, and pistol-whipped two of their number.
In all events, the youths fled. Once that occurred,
Leahy went back into the dwelling and hid the gun. Police soon
arrived at the scene. After a twelve-hour standoff, they entered
the premises and arrested Leahy. A search revealed not only the
hidden pistol but also a Marlin rifle stashed in a pantry closet.
Male DNA profiles found on the rifle were consistent with those
found on the pistol (although no DNA was specifically matched to
Leahy). In due season, a federal grand jury handed up an
indictment that charged Leahy with being a felon in possession of
a firearm. See 18 U.S.C. § 922(g)(1). The indictment referenced
both the pistol and the rifle.
-3-
Leahy's criminal record included felony convictions for
assault and carrying a dangerous weapon. At trial, his then-
counsel did not press for a stipulation that Leahy was a previously
convicted felon (one exchange with the judge suggests that counsel
may not have realized that he could compel the government to
stipulate to this point). In the absence of a stipulation, the
prosecutor was able to introduce independent evidence of the prior
convictions.
Once both sides had rested, Leahy proffered a proposed
instruction on self-defense — one that placed the burden of proof
on the prosecution to disprove self-defense beyond a reasonable
doubt. The government rejoined that the facts did not warrant a
self-defense instruction. The district court took a middle path:
over Leahy's objection, it gave an instruction on "justification"
(defined so as to encompass self-defense), in which it told the
jury, in effect, that Leahy's possession of a firearm would be
justified (and, therefore, a guilty verdict would be unwarranted)
if (i) Leahy was under an unlawful and present threat of death or
serious bodily injury; (ii) he did not recklessly place himself in
a situation in which he would be forced to engage in criminal
conduct; (iii) he had no reasonable legal alternative but to engage
in that conduct; and (iv) there was a direct causal relationship
between his criminal conduct and the need to avoid the threatened
harm. This instruction treated justification as an affirmative
-4-
defense, see United States v. Willis, 38 F.3d 170, 179 (5th Cir.
1994), and placed the burden on Leahy to prove that affirmative
defense by a preponderance of the evidence.
Following deliberations, the jury found Leahy guilty. At
the disposition hearing, the district court, finding that in the
past Leahy had thrice been convicted of violent felonies,
classified him as an armed career criminal. See 18 U.S.C. § 924(e).
The court also determined that Leahy was subject to two separate
sentencing enhancements, one for possessing the firearm in
connection with an uncharged crime of violence and the other for
obstruction of justice arising out of perjurious trial testimony.
After making a series of other findings and computations, the court
imposed a 262-month incarcerative sentence. This timely appeal
followed.
II. BURDEN OF PROOF
Leahy's flagship claim is that, once he had made a
threshold showing of self-defense, the district court erred in
requiring him to prove self-defense rather than requiring the
government to negate his colorable claim. The proper allocation of
the burden of proof on such a defense, however denominated, is an
open question in this circuit with respect to felon-in-possession
cases. See Diaz, 285 F.3d at 97. The Constitution permits us to
answer this question either way; there is no constitutional
requirement that the burden of disproving self-defense reside with
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the prosecution. See Patterson v. New York, 432 U.S. 197, 210-211
(1977) (upholding murder statute that placed burden of proving
affirmative defense on defendant when proof of that defense did not
negate an element of the offense). Because the question turns on
what is essentially a matter of statutory interpretation — what
Congress intended — we afford de novo review. See United States v.
Hartsock, 347 F.3d 1, 4 (1st Cir. 2003).
We introduce our analysis in case-specific terms. The
principal issue at trial was whether Leahy, as a convicted felon,
was legally justified in taking possession of the handgun. The
government argued that Leahy was not so justified because he was
the aggressor and, moreover, he was never under any realistic
threat of imminent harm. Leahy, in contrast, argued that his bona
fide fear of imminent harm justified him in taking possession of
the handgun and defensively using it to repel his attackers. Cf.
United States v. Holliday, 457 F.3d 121, 127 (1st Cir. 2006)
(explaining that a felon possessing a gun to "avoid the imminent
danger of his own death" is "the classic scenario in a self-defense
case"). This issue calls into question whether justification is a
defense to a felon-in-possession charge and if so, which party
bears the burden of proof.
The federal felon-in-possession statute itself, 18 U.S.C.
§ 922(g), makes no express provision for any affirmative defenses.
Thus, the logical starting place is the Supreme Court's recent
-6-
decision in Dixon v. United States, 126 S. Ct. 2437 (2006). There,
the Court assumed arguendo that duress would be a viable defense to
a section 922 charge2 and, on that assumption, ruled that the
defendant should bear the burden of proving duress. Id. at 2447.
The Court noted that the court of appeals had distilled the defense
into four elements. See id. at 2440 n.2. With one exception,
discussed infra note 8, those four elements were nearly identical
to the elements of "justification" delineated by the trial court in
this case.
Although the Dixon Court, for this purpose, used the term
"duress," that usage appears to have been a carry-over of the usage
employed below. See United States v. Dixon, 413 F.3d 520, 525 (5th
Cir. 2005) (using "duress" and "justification" interchangeably).
This imprecision is understandable. Since the federal felon-in-
possession statute does not explicitly admit of any affirmative
defenses, courts have been able only to infer the availability of
such defenses, though in appropriate circumstances they have not
hesitated to do so. See, e.g., United States v. Deleveaux, 205
F.3d 1292, 1297 & n.7 (11th Cir. 2000) (collecting cases from six
other circuits). We ourselves have intimated that, in appropriate
2
In Dixon, the charges were receiving a firearm while under
indictment, 18 U.S.C. § 922(n), and making false statements in
connection with the acquisition of a firearm, id. § 922(a). The
Court did not discuss these charges separately, and the decision
would appear to be fully applicable to violations of 18 U.S.C.
§ 922(g).
-7-
circumstances, we would recognize a justification defense to a
federal felon-in-possession charge. See United States v. Holt, 464
F.3d 101, 107 & n.4 (1st Cir. 2006); see also Holliday, 457 F.3d at
127 (assuming, arguendo, the availability of a justification
defense of self-defense in a § 922(g) case).
This inferential process, which requires courts to draw
on common law doctrines, has produced confusion over nomenclature.
See, e.g., United States v. Panter, 688 F.2d 268, 272 n.7 (5th Cir.
1982) (discussing whether "necessity" or "self-defense" is the
appropriate label for a defense to a federal felon-in-possession
charge). Many courts have sought to avoid this confusion by
treating a compendium of common law defenses — duress, necessity,
and self-defense — as interchangeable in this context (that is, in
a felon-in-possession case in which proof of the affirmative
defense will not negate any element of the charged crime) and
lumping them under the rubric of "justification."3 See, e.g.,
United States v. Beasley, 346 F.3d 930, 934-35 (9th Cir. 2003); see
also Deleveaux, 205 F.3d at 1295 n.2 (collecting cases). Our
canvass of the authorities elsewhere discloses that although some
courts have performed separate self-defense and necessity analyses,
see, e.g., United States v. Elder, 16 F.3d 733, 738-39 (7th Cir.
3
One court has crafted an affirmative defense of "innocent
possession," independent of any justification defense. See United
States v. Mason, 233 F.3d 619 (D.C. Cir. 2000). We have rejected
that taxonomy. See Holt, 464 F.3d at 107.
-8-
1994); see also Holliday, 457 F.3d at 127-28 & n.8 (discussing
self-defense and necessity separately, but taking no position on
whether those defenses could be viewed as interchangeable), no case
holds that the burden of proof will vary automatically depending on
whether duress, necessity, or self-defense is asserted.4 We
conclude, therefore, that ease in administration favors treating
these three defenses, in a federal felon-in-possession case, under
a single, unitary rubric: justification. This conclusion is
important because it strongly suggests that Dixon — which, as we
have said, placed the burden of proving duress on the defendant —
bars Leahy's path.
In hopes of distinguishing Dixon, Leahy beseeches us to
disambiguate self-defense from the broader category of
justification. He emphasizes that the Dixon Court looked at the
state of the law in 1968 (when Congress first conceived the federal
felon-in-possession statute)5 to help determine what allocation of
4
In a post-argument letter, see Fed. R. App. P. 28(j), Leahy
has directed us to a terse exchange between government counsel and
the Supreme Court during oral argument in Dixon. That exchange
raised the possibility of establishing different burden-of-proof
allocations for duress and self-defense. Transcript of Oral
Argument, Dixon v. United States, 126 S. Ct. 2437, 2006 WL 1194533,
at *28-30 (2006). In our view, the mere fact that government
counsel answered a hypothetical question in a manner advantageous
to the government's position in Dixon has no precedential value for
present purposes.
5
The origin of section 922 can be found in the Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 922, 82
Stat. 197, 228. That statute included an early precursor to
section 922(g)(1). See id. at § 922(f), 82 Stat. at 231.
-9-
the burden of proof Congress most likely would have chosen had it
inserted a duress defense into the statutory text. See Dixon, 126
S. Ct. at 2445-47. He then asseverates, citing Mullaney v. Wilbur,
421 U.S. 684, 702 n.30 (1975), that the same methodology, if
applied in this case, would favor placing the burden of proof on
the prosecution because, in 1968, that was the majority rule in
self-defense cases.
Leahy's premise is incorrect. Although seven Justices
joined the opinion of the Dixon Court, Justice Kennedy wrote a
concurring opinion that distanced him from the date-centric
methodology employed in that opinion and wrote that, as a general
matter, "we can assume that Congress would not want to foreclose
the courts from consulting . . . newer sources and considering
innovative arguments." Dixon, 126 S. Ct. at 2448 (Kennedy, J.,
concurring). Justice Alito, joined by Justice Scalia, also wrote
a separate concurrence rejecting reliance on the date-centric
methodology and stressing the value of looking to the state of the
law "when Congress began enacting federal criminal statues." Id.
at 2449 (Alito, J., concurring). Finally, Justice Breyer, joined
by Justice Souter, wrote a dissent in which he argued that
determination of the appropriate burden of proof allocation was a
question of federal common law. Id. at 2450 (Breyer, J.,
dissenting) (explicitly declining to follow the date-centric
approach). Thus, the most that we can glean from the several
-10-
opinions in Dixon is that the state of the law in 1968 is one
possible source of enlightenment as to how Congress would have
wanted to allocate the burden of proof had it explicitly created a
justification defense to a felon-in-possession charge; other
possible sources of enlightenment (such as the nature of the
offense, the evolution of the defense and its accouterments when
the Constitution was ratified, and generic policy considerations)
must also be factored into the mix.
It can also be argued that, as an historical matter,
self-defense circa 1968 was generally limited to assaultive crimes.
See 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(a), at 143
(2d ed. 2003); George E. Dix & M. Michael Sharlot, Criminal Law:
Cases and Materials 776 (5th ed. 2002).6 This strong correlation
between self-defense and assaultive crimes is evident from Leahy's
citation to Mullaney. See Mullaney, 421 U.S. at 702 (indicating
that the discussion contained therein is intrinsically tied to
cases involving the "commission of [a] homicide"). We think a
powerful argument can be made that, had Congress meant to weave the
common law of self-defense into the fabric of a non-assaultive
offense like that created by the federal felon-in-possession
6
While some modern innovation has expanded the breadth of
self-defense, see, e.g., Boget v. State, 74 S.W.3d 23, 29-30 (Tex.
Crim. App. 2002); see also Holliday, 457 F.3d at 127 (noting, in
the present tense, that "self-defense is not limited to 'assaultive
crimes'"), this relatively recent development is irrelevant to
Leahy's argument about what the Congress that enacted section
922(g) in 1968 intended.
-11-
statute, it would have represented a radical departure from the
mainstream of jurisprudential thought circa 1968 and, thus, would
have warranted some explicit statement. To impute such an
intention to Congress on the basis of the Dixon methodology alone
would, therefore, make very little sense.
We need not dwell on the distinction between assaultive
and non-assaultive crimes, for there is a more fundamental flaw in
Leahy's thesis. The crimes historically associated with self-
defense (homicide, for example) all carry substantial mens rea
requirements. The federal felon-in-possession statute requires
proof that the defendant knowingly possessed a firearm.7 See
United States v. Carpenter, 403 F.3d 9, 10 (1st Cir. 2005). Beyond
that, however, 18 U.S.C. § 922(g) is a strict liability statute,
which contains no specific mens rea element at all. See Dixon, 126
S. Ct. at 2447; Diaz, 285 F.3d at 97. Literally, the felon-in-
possession statute encompasses both the felon who intentionally
arms himself to rob a bank and the felon who frustrates the robbery
by snatching the gun out of the robber's hand. This is a salient
distinction: while an individual who kills another in self-defense
lacks the malice required to support, say, a conviction for first-
degree murder, a felon who knowingly takes possession of a firearm
thereby satisfies every statutory element of the felon-in-
7
The justification defense asserted by Leahy in this case does
not go to knowledge; Leahy readily concedes that he knowingly
seized the handgun.
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possession offense regardless of whether he was motivated by
concern for his own safety.
The absence of a mens rea requirement has obvious
implications. In a felon-in-possession case (unlike in, say, an
assaultive crime), evidence of facts concerning self-defense
neither contradicts nor tends to disprove any element of the
charged crime. Cf. Dixon, 126 S. Ct. at 2444 (reaching the same
conclusion as to duress vis-à-vis similar section 922 violations).
This means that disproving self-defense beyond a reasonable doubt
is not inherent in the prosecution's burden of proving every
element of the offense charged. See generally In re Winship, 397
U.S. 358, 364 (1970). So viewed, there is no good reason to
eschew, in the felon-in-possession context, the burden allocation
that affirmative defenses normally carry.
Most of the other courts that have considered this
question have come to the same conclusion. Four of our sister
circuits have squarely confronted the issue of allocating the
burden of proof on a justification defense other than duress to
federal felon-in-possession charges, where proof of the defense
would not negate any of the elements of the charged crime. Three of
the four have assigned the burden of proving such a defense to the
defendant. See Beasley, 346 F.3d at 935; United States v. Dodd,
225 F.3d 340, 350 (3d Cir. 2000); Deleveaux, 205 F.3d at 1301.
Although one respected court of appeals has held to the contrary,
-13-
see United States v. Talbott, 78 F.3d 1183, 1186 (7th Cir. 1996)
(per curiam), we find the reasoning of Beasley, Dodd, and Deleveaux
more persuasive.
Leahy argues that pragmatic considerations counsel in
favor of assigning the burden of proof to the government. We think
that these considerations tilt the other way. When self-defense is
an issue in a felon-in-possession case, the defendant is likely to
have greater access to the relevant facts than the government. See
Deleveaux, 205 F.3d at 1300. While there always will be a witness
when a defendant claims self-defense — the source of the alleged
threat — that witness may or may not be available and, if
available, may or may not be cooperative. For that reason, the
defendant, himself a witness to the threat, is better positioned
than the government to depict the circumstances under which he came
into possession of the gun.
To sum up, we confirm the suggestion previously made in
Holt and Holliday, and add our voice to the weight of authority by
holding that, in some circumstances, justification — a term that we
define to include, inter alia, self-defense — can comprise an
affirmative defense to a federal felon-in-possession charge.
Furthermore, we think it highly unlikely that Congress, in enacting
the federal felon-in-possession law, intended to require the
government to prove beyond a reasonable doubt the existence of a
fact that it did not specify as an element of the offense.
-14-
Consequently, we hold that in a federal felon-in-possession
prosecution, there is no sound basis for treating that defense
differently from other justification defenses. It follows that a
defendant who asserts self-defense in such a case must carry the
devoir of persuasion on that defense by a preponderance of the
evidence.
In that regard, we adopt the four-part framework for
justification discussed by the Supreme Court in Dixon, 126 S. Ct.
at 2440 n.2. That framework has been embraced by a number of other
courts. See Deleveaux, 205 F.3d at 1297 (collecting cases). Here,
the lower court used a version of that four-part framework and
(apart from questioning the allocation of the burden of proof)
Leahy has not challenged either the wording of the pertinent jury
instruction or the sufficiency of the evidence underlying the
jury's apparent rejection of justification as a defense.8
It is evident from what we have said that Leahy's
principal claim of error fails. We think it is prudent, however,
to add two caveats. First, this holding is limited to
8
As to the second element of the framework, the court charged
the jury that Leahy had to prove that he did not "recklessly" place
himself in a situation in which he would be forced to engage in
criminal conduct. The authorities are divided on the question of
whether the second element extends to negligence as well as
recklessness. Compare, e.g., Dixon, 413 F.3d at 523 (including
negligence along with recklessness), with, e.g., Beasley, 346 F.3d
at 933 n.2 (limiting the second element to reckless conduct). The
case at hand does not require us to take sides in this debate.
-15-
justification defenses that do not go to the elements of the felon-
in-possession offense. We leave open the possibility that a
defense within the rubric of justification might negate an element
of the felon-in-possession offense. In that event, the burden of
disproving the defense would rest on the prosecution. Second,
although we believe it is useful to speak of a single justification
defense, we caution that different factual scenarios may require
variations in the phrasing of the four-factor test. For example,
the first factor, which requires that the defendant be under a
present and unlawful threat of death or serious bodily injury, will
require modification in cases in which the defendant allegedly acts
in defense of a third party. Those nuances remain to be developed
in future cases.
III. UNANIMITY
The indictment in this case contained only a single
count. That count mentioned two guns — the pistol and the rifle —
and the government adduced evidence at trial about both weapons.
The jury returned a general verdict. Based on this collocation of
circumstances, Leahy suggests that he may have been convicted
because some jurors believed that he possessed the rifle while
others believed that he possessed the pistol but did not act in
self-defense. To safeguard against this possibility, his thesis
runs, the district court should have instructed the jury that
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unanimity as to the identity of the weapon unlawfully possessed was
required.
Leahy's concern for unanimity is of recent vintage: he
did not request such an instruction below. The issue is, therefore,
forfeited. See, e.g., United States v. Gomez, 255 F.3d 31, 37 (1st
Cir. 2001). As a forfeited issue, it may be reviewed on appeal
only for plain error. See id.
The plain error hurdle is high. United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). To surmount it, an
objector must make four showings: "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Leahy
cannot clear this four-tiered hurdle.
It is settled law that "Congress did not intend the
possession of a particular firearm to be an element of a §
922(g)(1) violation." United States v. Verrecchia, 196 F.3d 294,
301 (1st Cir. 1999). Consequently, there is no need for unanimity
within the relevant unit of prosecution, that is, with respect to
weapons possessed "in one place at one time." Id. at 298.
Were this objection preserved, we would be forced to
delve into the geography of the relevant unit of prosecution and
determine whether the pistol (taken from a kitchen drawer one
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evening) and the rifle (stowed in the pantry but perhaps handled at
some indeterminate point) were sufficiently related in "time" and
"place". But the objection was not preserved, and Verrecchia is
tenebrous as to the temporal and spatial contours of the "relevant
unit of prosecution." That combination defeats a claim that an
obvious error occurred. Hence, Leahy cannot satisfy the strictures
of plain error review.
IV. INEFFECTIVE ASSISTANCE
Leahy next complains that his trial counsel did not offer
to stipulate to the fact the he was a previously convicted felon —
an omission that opened the door for the government to introduce
evidence of the unattractive particulars of Leahy's prior misdeeds.
Since the government would have had no choice but to enter into
such a stipulation upon a timely request, see Old Chief v. United
States, 519 U.S. 172, 174 (1997), this strategy does seem puzzling.
The problem, however, is that this claim is newly advanced. "We
have held with a regularity bordering on the monotonous that fact-
specific claims of ineffective assistance cannot make their debut
on direct review of criminal convictions, but, rather, must
originally be presented to, and acted upon by, the trial court."
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).
To be sure, there is a narrow exception to this rule for
cases in which the record is adequately developed to permit
reasoned consideration of the claim. See, e.g., United States v.
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Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Here, however, that
exception does not pertain. The record below contains nothing
approaching an adequate elaboration of why counsel adopted the
course that he followed (Leahy suggests that his lawyer did not
know of the Old Chief decision, but that fact is not pellucid from
the record), nor does it provide the district court's first-hand
insights as to what (if any) quantum of prejudice might have
attended this strategy. Given the need for further factfinding, we
decline Leahy's invitation to address the ineffective assistance of
counsel claim for the first time on direct appeal. Instead, we
remit him, should he desire to pursue the matter, to his remedies
under 28 U.S.C. § 2255. We intimate no view of the likely outcome
of such a proceeding.
V. SENTENCING
As a tail-end matter, Leahy raises three objections to
his sentence. We address them sequentially.
A. Armed Career Criminal.
As said, the district court sentenced Leahy under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court
adopted this taxonomy after having found that Leahy's record
included the necessary predicate: three prior convictions for
violent felonies. See id. As a result of this determination,
Leahy faced a fifteen-year mandatory minimum sentence, see id., and
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automatically incurred elevated criminal history and offense level
placements, see USSG §4B1.4.
Pertinently, ACCA defines a "violent felony" as a crime
punishable by "imprisonment for a term exceeding one year" that
"involves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. § 924(e)(2)(B). Three such
felony convictions are required to trigger the statute, and Leahy
asserts that one of his three prior convictions — namely, a
Massachusetts conviction for indecent assault and battery, see
Mass. Gen. Laws ch. 265, § 13H9 — does not qualify and, therefore,
ACCA does not apply.
The determination of whether a particular crime is a
violent felony is a question of law and, thus, engenders de novo
review. See United States v. Bishop, 453 F.3d 30, 32 (1st Cir.
2006). The question here is whether Leahy's indecent assault and
battery conviction is for a crime that "presents a serious
potential risk of physical injury to another." We agree with the
sentencing court that the conviction meets this definition.
9
The provision reads in relevant part:
Whoever commits an indecent assault and
battery on a person who has attained age
fourteen shall be punished by imprisonment in
the state prison for not more than five years,
or by imprisonment for not more than two and
one-half years in a jail or house of
correction.
-20-
The methodology for deducing whether a given offense
constitutes a violent felony derives from Taylor v. United States,
495 U.S. 575 (1990). We take a categorical approach, looking to
the fact of conviction and the statutory definition of the offense.
Id. at 602. If a statute encompasses acts that could constitute
both violent and non-violent felonies, we may also look to certain
materials particular to a given case (such as the charging document
and jury instructions). See id.; see also Shepard v. United
States, 544 U.S. 13, 26 (2005).
The district court concluded that, under this approach,
all section 13H convictions were convictions for violent felonies.
In reaching this conclusion, the court relied heavily on Sutherland
v. Reno, 228 F.3d 171, 177 (2d Cir. 2000), in which the Second
Circuit found, in an immigration proceeding, that a conviction
under section 13H was a conviction for a "crime of violence." For
the Sutherland court, the pivotal fact was that "lack of consent is
. . . a requisite element of a § 13H violation." Id. at 176
(citing Maghsoudi v. INS, 181 F.3d 8, 15 (1st Cir. 1999)). Since
"the crime involves a non-consensual act upon another person, there
is a substantial risk that physical force may be used in the course
of committing the offense." Id. (quoting United States v. Reyes-
Castro, 13 F.3d 377, 379 (10th Cir. 1993)).
Leahy attempts to distinguish Sutherland by noting that
the opinion deals with the definition of "crime of violence" found
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in 8 U.S.C. § 16(b). Building on that foundation, he points out
that while ACCA's definition of "violent felony" has been deemed
substantively identical to the definition of "crime of violence"
used in the federal sentencing guidelines, see United States v.
Jackson, 409 F.3d 479, 480 n.1 (1st Cir. 2005), both the Supreme
Court and this court have distinguished section 16(b) from the
pertinent guidelines provision, USSG §4B1.2, on the ground that the
former is concerned with a risk of force whereas the latter is
concerned with risk of injury. See Leocal v. Ashcroft, 543 U.S. 1,
10 n.7 (2004); Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006).
Leahy deploys the transitive property to reach the conclusion that
ACCA must also be distinguishable from section 16(b). He then
argues that while indecent assault and battery may entail a
substantial risk of force, offensive touching does not entail a
serious risk of physical injury.
Leahy's argument does not withstand scrutiny. To begin,
both Leocal and Aguiar treat section 4B1.2 as reaching conduct
beyond the scope of section 16(b). See Leocal, 543 U.S. at 10 n.7;
Aguiar, 438 F.3d at 88. Neither decision in any way suggests that
the reverse is true. Moreover, even if one can conceive of a risk
of force bereft of a corresponding risk of injury, the logic of
Sutherland still would compel the result reached by the district
court. After all, just as there is "a substantial risk that force
may be used in order to overcome the victim's lack of consent,"
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Sutherland, 228 F.3d at 176, so too is there a substantial risk of
physical injury from the unwanted touching.10
This conclusion is buttressed by our decision in United
States v. McVicar, 907 F.2d 1 (1st Cir. 1990). There, we held that
a statute encompassing the crime of pickpocketing satisfied section
4B1.2 because "[t]aking property directly from a person seems to us
to run a 'substantial' or 'serious' risk that 'physical force' or
'physical injury' will follow." Id. at 2. If the risk of injury
presented by pickpocketing — a crime in which the perpetrator's
goal is to leave his victim unaware of the contact — satisfies
section 4B1.2 (and, by extension, ACCA), it seems inescapable that
the risk of physical injury posed by a crime in which the touching
is the end, not merely the means, would likewise entail the
necessary degree of risk.
Leahy makes much of the fact that Massachusetts does not
include indecent assault and battery in its own list of "sexually
violent offenses." See Mass. Gen. Laws ch. 6, § 178C. That fact
is of little moment. "Because a state's classification of a crime
generally reflects different policy considerations than the federal
classification, it is simply not relevant to the determination of
10
Both sides debate the significance to this issue of our
decision in United States v. Sherwood, 156 F.3d 219 (1st Cir.
1998). However, that case involved a child molestation statute and
the opinion is largely focused on the special vulnerability of
young children. See id. at 221-22. With respect to the case at
hand, we think that the logic used in Sutherland hits closer to
home.
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whether a crime is a 'violent felony,' which, under federal law, is
based on an assessment of the risk of physical injury associated
with the typical conduct underlying that crime." United States v.
Sacko, 247 F.3d 21, 25 (1st Cir. 2001).
The short of it is that the lower court correctly
sentenced Leahy as an armed career criminal.
B. Judicial Factfinding.
When a defendant is found to be an armed career criminal,
USSG §4B1.4 applies to his case. By reason of that paradigm, the
defendant faces increases in both his offense level and his
criminal history category if he is found to have used or possessed
the firearm in connection with a crime of violence (whether charged
or uncharged). See Holliday, 457 F.3d at 130. Applying this
guideline, the district court found, under a preponderance of the
evidence standard, that Leahy, during his interactions with the
gaggle of teenagers on July 27, 2003, had committed the uncharged
state crimes of aggravated assault and reckless conduct. See Me.
Rev. Stat. Ann. tit. 17-A, §§ 208, 211. The court upwardly
adjusted Leahy's offense level and criminal history category
accordingly.
Leahy argues that, under the Sixth Amendment, he was
entitled to have these determinations made by a jury beyond a
reasonable doubt. He frankly acknowledges that this argument
contradicts the combined holding of United States v. Watts, 519
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U.S. 148, 157 (1997) (per curiam), and Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998). He nonetheless posits that
they have not survived the decision in United States v. Booker, 543
U.S. 220 (2005).
This argument need not detain us. We have recently held
in precisely analogous circumstances (involving a USSG §4B1.4
enhancement predicated upon an uncharged crime of violence) that
"even after Booker, [there is no need that] the facts underlying
the enhancement be found by a jury. Under the advisory guidelines
regime, the district court can use the preponderance of the
evidence standard to determine whether an enhancement applies."
Holliday, 457 at 130. This holding obliterates Leahy's objection.
C. Obstruction of Justice.
Finally, Leahy objects to a two-level sentencing
enhancement for obstruction of justice. See USSG §3C1.1. In his
view, the enhancement rests on shaky ground because the sentencing
court did not make findings that identified perjurious statements
with particularity. See United States v. Dunnigan, 507 U.S. 87, 98
(1993).
Our review of the record indicates that the district
court in fact identified some aspects of Leahy's testimony that it
found incredible. Still, it is unnecessary to probe that point;
the short, dispositive rejoinder to Leahy's plaint is that any
error was harmless. We explain briefly.
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On the basis of its determination that Leahy had
obstructed justice, the district court adjusted his offense level
from 28 to 30. This adjustment became irrelevant, however, when
the court found Leahy to have been an armed career criminal who
possessed a firearm in connection with an uncharged crime of
violence. See supra Parts V(A)-(B). That finding triggered an
overriding offense level of 34, which came into play without regard
to other enhancements. See USSG §4B1.4(b). The superimposition of
this enhancement rendered the putative enhancement for obstruction
of justice moot. See United States v. Cruz, 156 F.3d 22, 29-30
(1st Cir. 1998).
VI. CONCLUSION
We need go no further. For aught that appears, Leahy was
fairly tried, justly convicted, and lawfully sentenced.
Consequently, we uphold the conviction and sentence, without
prejudice, however, to Leahy's right, should he so elect, to revive
his ineffective assistance of counsel claim on collateral review.
Affirmed.
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