United States v. Matthews

United States Court of Appeals
For the First Circuit

Nos. 05-1655, 05-1925

UNITED STATES OF AMERICA,

Appellee,

v.

LARRY MATTHEWS,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

William A. Hahn, with whom Hahn & Matkov was on brief, for
appellant.
Sandra S. Bower, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

August 7, 2007
 LIPEZ, Circuit Judge. Appellant Larry Matthews was

convicted of being a felon in possession of a firearm and sentenced

under the Armed Career Criminal Act ("ACCA") to the statutory

minimum fifteen-year term of imprisonment. See 18 U.S.C.

§ 924(e)(1). His sentencing challenge requires us to consider an

issue on which other circuits have split and ours has not yet

explicitly spoken: whether juvenile adjudications constitutionally

may be used as predicate convictions to support an ACCA

enhancement. After a careful review of the relevant law in the

context of this case, we find no due process barrier to the use of

appellant's juvenile proceeding. His other sentencing arguments

are equally unavailing, as are his trial-based claims of

insufficient evidence and instructional error. We therefore affirm

both his conviction and sentence.1

I.

The facts as the jury could have found them are as

follows. During the evening of August 11, 2003, four Boston police

officers assigned to the Youth Violence Strike Force were driving

through the city's Roxbury section in an unmarked police car when

they observed a small group of men drinking alcohol outside the

Lenox Street housing development. After appellant saw the police

1
Judgment of conviction was entered on March 8, 2005, and
appellant filed a timely notice of appeal on March 10. A separate
appeal was taken from the subsequent denial of his renewed motion
for judgment of acquittal, and the two appeals were consolidated.

-2-
vehicle, he was observed making what appeared to be a "security

adjustment" to an object at his waist. As the officers pulled up

beside the men and Officer Bresnahan called out to appellant by

name, appellant made a second adjustment and began to walk quickly

away from the scene; he subsequently accelerated into a run.

Appellant, who was known to three of the officers, had never run

from them during previous encounters.

Two of the officers, Sullivan and Bresnahan, got out of

the car and gave chase, following the defendant into the courtyard

of the housing development and then into the building at 10

Lattimore Court.2 As Sullivan entered the building, he saw

appellant rise from a crouched position near an apartment door, and

then run out of the building. After Sullivan moved to the spot

where he had seen appellant, he discovered a .22-caliber pistol

under the doormat in front of Apartment 87. Sullivan then yelled

"gun" as Bresnahan, still chasing appellant, ran past Sullivan and

back out to the courtyard.

Meanwhile, the other two officers, Brown and Freire, had

driven into the parking lot of the complex and then into the

courtyard from another direction. They saw appellant coming from

the direction of 10 Lattimore Court and, after repeatedly ordering

appellant to get to the ground, Friere forced him down, handcuffed

2
Although originally scheduled to testify, Bresnahan did not
appear at trial because of an injury.

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him, and placed him under arrest. No fingerprints were found on

the gun or the ammunition in it. Appellant subsequently was

charged with being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1).

At trial, the government sought to prove circumstantially

that appellant had put the gun under the doormat while fleeing from

the officers. In addition to presenting testimony from the

officers, the government called as a witness Kelly Gonzales, a

tenant of Apartment 87. She reported that she left the apartment

between noon and 1 p.m. on the day of the incident, that she stood

on the mat to lock the door, and that the gun was not there at that

time. She also testified that neither she nor her mother, with

whom she lived, owned a gun.

In seeking to discredit the officers' account of what

occurred, the defendant presented the testimony of an architect,

John Cunningham, who had prepared several diagrams depicting the

layout of the first floor of 10 Lattimore Court. Cunningham

testified about the field of view from various points in the lobby

between the front entrance and the back exit. By means of shading

in different colors, one of his illustrations showed which parts of

the floor could be seen fully by someone standing just inside the

entry door and which areas had restricted visibility because of a

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stairwell located directly in front of the entrance.3 Appellant's

girlfriend, Marissa Wallace, also testified, and stated that she

had never seen appellant with a gun.

A jury found appellant guilty, and the district court

sentenced him to a term of 180 months under the ACCA, finding that

he had the requisite three prior convictions for violent felonies

or serious drug offenses. See 18 U.S.C. § 924(e)(1). On appeal,

he claims that the evidence presented at trial was insufficient to

support the jury's finding of guilt and that the district court

gave an erroneous instruction on intent. He also challenges his

sentencing as a career offender, raising a number of arguments

about the district court's use of his prior convictions. Foremost

among those claims is the contention that the court violated his

due process and fair trial rights by considering a 1992 juvenile

adjudication. He also claims that the court erred by: (1) failing

to submit any of his qualifying convictions to a jury for proof

beyond a reasonable doubt; (2) double-counting one of his prior

convictions by using it both as the prerequisite offense for the

felon-in-possession charge and as one of the three ACCA predicates;

and (3) classifying a 1995 drug conviction as a "serious drug

offense" within the meaning of the ACCA.

3
Sullivan had testified that he saw the defendant stand up
from a crouched position on the far side of the stairwell and that
the movement was visible through a gap between a beam and the
stairwell.

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 We begin with the sufficiency and instructional

challenges, and then turn to appellant's claims of sentencing

error.

II.

Appellant argues that the jury's verdict must be vacated

because the evidence presented at trial failed to connect him to

the gun and ammunition. He points out that no one saw him with the

firearm, which was found in a public place, and there were no

fingerprints or other evidence tying him to the weapon. The case,

he asserts, is "entirely circumstantial."

We review a defendant's challenge to the sufficiency of

the evidence de novo. United States v. Gobbi, 471 F.3d 302, 308

(1st Cir. 2006). In examining the record, we consider whether the

"'total evidence, with all reasonable inferences made in the light

most favorable to the government, [is] such that a rational trier

of fact could have found guilt beyond a reasonable doubt.'" Id. at

308-09 (quoting United States v. Loder, 23 F.3d 586, 590 (1st Cir.

1994)) (alteration in original). Circumstantial, as well as direct

evidence, is properly taken into account, and we must uphold the

jury's verdict "when it is 'supported by a plausible rendition of

the record.'" Id. at 309 (quoting United States v. Ortiz, 966 F.2d

709, 711 (1st Cir. 1992)).

The evidence here, although "entirely circumstantial,"

amply supported the jury's conclusion that appellant possessed and

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then placed the firearm under the mat in front of Apartment 87.

Officer Sullivan testified that he followed appellant into the

apartment building after the officers saw appellant twice make

movements toward his waist and then run from the officers – conduct

that was unusual for him. The jurors reasonably could credit the

officer's testimony that he could see appellant rise from a

crouched position near where the gun was found, notwithstanding the

architect's testimony that some locations within the lobby had

obstructed views. The architect also testified that the visibility

was clear, from floor to ceiling, in other locations. From the

facts before them, the jurors reasonably could conclude that

appellant fled from the officers because he was carrying the gun

and that, when Sullivan saw him in the apartment hallway, appellant

was just standing up after hiding the gun under the mat.

Appellant attempts to discredit the prosecution's version

of the facts by pointing to the lack of fingerprints on the gun and

by suggesting that Sullivan's testimony should not have been

credited. If, as Sullivan testified, the officer had been close in

pursuit when appellant entered the apartment building, appellant

argues that he would not have had time to put anything under the

mat. Alternatively, appellant asserts, if the officer's testimony

about being close is believed, a question arises as to why Sullivan

did not see him put the gun under the mat. Appellant further

attempts to bolster his claim by distinguishing the circumstances

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here from cases in which defendants were found either in actual

possession of, or near, a gun or illegal drugs.

While direct evidence of possession unquestionably would

be more potent, the jury was entitled to rely on plausible

inferences. See, e.g., United States v. Berrios, 132 F.3d 834, 843

(1st Cir. 1998) ("The fact that the entire case against [the

defendant] is based on circumstantial, rather than direct, evidence

has no bearing on sufficiency; both types of evidence provide an

adequate basis for conviction."); United States v. Spinney, 65 F.3d

231, 234 (1st Cir. 1995) ("Reliance on indirect, as opposed to

direct, evidence in a criminal case is both permissible and

commonplace. . . . [W]hen a jury draws inferences from

circumstantial evidence, a reviewing court should refrain from

second-guessing the ensuing conclusions as long as (1) the

inferences derive support from a plausible rendition of the record,

and (2) the conclusions flow rationally from those inferences.").

The absence of any fingerprints on the gun is not inconsistent with

a finding of guilt, and Sullivan's testimony about his timing and

location was fully consistent with both the architect's testimony

and the physical evidence.4 Given appellant's movements, his

4
By contrast, in United States v. Morales, 902 F.2d 604 (7th
Cir. 1990), a case on which appellant relies, the court found that
a felon-in-possession conviction was undermined by inconsistencies
in the testifying officer's various reports about what he had seen
and by evidence indicating that the gun at issue had not been fired
– a fact that also raised doubts about the officer's account. Id.
at 606-08; id. at 607 ("We are left with a case that is full of

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flight, his proximity to the weapon's location, the testimony that

the gun was not under the mat earlier in the day, and the absence

of contradictory evidence, a rational fact finder could conclude

beyond a reasonable doubt that appellant possessed the firearm.

III.

Appellant claims that the district court committed

reversible error by failing to provide the jurors with a definition

of "specific intent" after instructing that, "in order to convict,

the government must prove that the defendant acted with the

specific intent to disobey or disregard the law." The appellant

did not object to the instruction at trial; his claim is therefore

reviewable only for plain error. See United States v. Martínez-

Vives, 475 F.3d 48, 51 (1st Cir. 2007).

To establish plain error, a defendant must show that a

"clear or obvious" error both affected his substantial rights and

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Id. Although the court did give an

incorrect instruction, it erred by imposing the burden of proving

such intent on the government in the first place, not in failing to

define "specific intent." To establish a violation of 18 U.S.C. §

922(g)(1), "'the government need not prove that the defendant

knowingly violated the law; rather, it only need prove . . . that

the defendant knowingly possessed firearms.'" United States v.

puzzles.").

-9-
Estrella, 104 F.3d 3, 9 (1st Cir. 1997) (quoting United States v.

Smith, 940 F.2d 710, 713 (1st Cir. 1991)) (omission in original).

Absent unusual circumstances, a defendant will not be

prejudiced by an instruction that erroneously increases the

government's burden of proof. See, e.g., United States v. Lizardo,

445 F.3d 73, 86 (1st Cir. 2006) (rejecting claim of prejudice from

an unclear instruction "[s]ince [the instruction] raised the

government's burden of proof"); United States v. Royal, 100 F.3d

1019, 1027 (1st Cir. 1996) ("[T]he district court's instructions,

by using language that impose[d] a higher burden on the government

than the law requires, did not prejudice Royal."); United States v.

Barnes, 890 F.2d 545, 551 n.6 (1st Cir. 1989) (finding no harm from

an erroneous instruction "since it created a greater burden for the

government, not for the defendant"). Here, where the plain error

standard requires appellant to show a serious defect in the

fairness of his trial, his attempt to win reversal of his

conviction on the basis of an overly favorable instruction is

hopeless. That outcome is all the more inevitable given that

appellant does not challenge the incorrect instruction itself, but

only the failure to elaborate on it. Cf., e.g., United States v.

Mercado, 412 F.3d 243, 251 (1st Cir. 2005) (noting that a district

court's refusal to issue a jury instruction amounts to reversible

error only if the proposed instruction was "correct as a matter of

substantive law") (citations omitted).

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 In sum, because appellant fails to identify – and we do

not see – any way in which jury confusion about the correct

standard could have disadvantaged him, we find no reversible error.

IV.

Under the ACCA, a defendant with three prior convictions

for either serious drug offenses or violent felonies is subject to

a mandatory minimum sentence of fifteen years. See United States

v. Miller, 478 F.3d 48, 49 (1st Cir. 2007); 18 U.S.C. § 924(e)(1).

Appellant offers multiple reasons why the district court erred in

finding that his prior convictions qualified him for the ACCA

sentencing enhancement:5 (1) the predicate offenses were not

submitted to the jury and proved beyond a reasonable doubt; (2) one

of the crimes, a 1995 drug conviction, does not meet the ACCA

definition of a "serious" drug offense; (3) the court improperly

double-counted one of his predicate offenses, using it as both a

predicate ACCA crime and as the "felony" that supported the felon-

in-possession charge; (4) a juvenile adjudication relied on by the

court may not constitutionally be considered a conviction for

purposes of the ACCA. We turn first to the more substantial issue

5
Appellant's presentence report identified the following
three prior crimes as the ACCA predicates: (1) a 1992 juvenile
adjudication for assault with intent to kill and assault and
battery with a dangerous weapon, (2) a 1995 conviction for
possession of heroin with intent to distribute, and (3) a 1996
conviction for assault and battery with a dangerous weapon.

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involving the juvenile crime and then address the other three

claims, all of which are easily dispatched.

A. ACCA Status of a Juvenile Adjudication

The ACCA provides that certain juvenile conduct,

including an "act of juvenile delinquency" that involved use of a

knife and physical force against another person, is a "violent

felony" for purposes of the ACCA, and a finding of such conduct

qualifies as a "conviction." See 18 U.S.C. § 924(e)(2).6 It is

undisputed that appellant's 1992 adjudication of juvenile

delinquency meets the statutory requirements.7 However, he argues

6
Section 924(e)(2) provides in relevant part:

(B) the 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; 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;
and

(C) the term "conviction" includes a finding that a
person has committed an act of juvenile delinquency
involving a violent felony.
7
A Boston Police Incident Report prepared in connection with
the juvenile adjudication at issue here reported a witness's
statement that appellant had stabbed an individual with a knife.

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that the Constitution prohibits the use of his juvenile conduct as

an ACCA "conviction."

Under Massachusetts law, a juvenile adjudication is not

deemed to be criminal in nature, see Mass. Gen. Laws Ann. ch. 119,

§ 53, and appellant asserts that Congress may not constitutionally

classify a juvenile adjudication as a criminal conviction when

state law provides otherwise. In addition, he claims that, because

juvenile proceedings lack important procedural safeguards, the fact

of a juvenile adjudication may not be used to enhance a sentence

without proof to a jury beyond a reasonable doubt. See Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (establishing "the fact of a

prior conviction" as an exception to the jury finding requirement

for facts that increase the statutory maximum penalty); see also

Jones v. United States, 526 U.S. 227, 249 (1999) (recognizing that,

"unlike virtually any other consideration used to enlarge the

possible penalty for an offense, . . . a prior conviction must

itself have been established through procedures satisfying the fair

notice, reasonable doubt, and jury trial guarantees").

We can quickly dispose of appellant's contention that a

juvenile proceeding classified as non-criminal under state law may

not be treated as criminal in nature under federal law. This

argument was not made in the district court, and it therefore is

reviewable only for plain error. See United States v. Leahy, 473

F.3d 401, 409-10 (1st Cir. 2007). Appellant falls far short of

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meeting that standard, offering only indirect support for the

claim. He asserts that the Apprendi-Booker line of cases requires

courts to closely examine statutory sentencing requirements for

constitutional infirmity, see United States v. Booker, 543 U.S.

220, 230 (2005), and he maintains that the Fifth and Sixth

Amendments, and "possibly" also the Tenth, are implicated by

Congress's attempt to override the traditional state law treatment

of juvenile adjudications as non-criminal proceedings.

However, he cites no cases holding that Congress

oversteps constitutional bounds by ignoring state law

classifications and treating particular juvenile acts as criminal

in nature. The ACCA does not effect a wholesale conversion of

juvenile adjudications into criminal convictions. Instead, it

narrowly extends the statute's reach to specific juvenile conduct.

We see no basis for denying Congress that prerogative. See United

States v. Gray, 177 F.3d 86, 93 (1st Cir. 1999) ("States enjoy a

broad range of flexibility in choosing how they will treat those

who offend their laws. But they may not dictate how the federal

government will vindicate its own interests in punishing those who

commit federal crimes."); cf. Lopez v. Gonzales, 127 S. Ct. 625,

633 (2006) (holding that federal classification of certain drug

crimes as misdemeanors prevails over state's felony classification

for the designated conduct).

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 A more substantial question is whether the assumption of

reliability that underlies Apprendi's exception for prior

convictions – eliminating the need to prove the fact of conviction

to a jury beyond a reasonable doubt – is properly extended to

juvenile adjudications. See United States v. Smalley, 294 F.3d

1030, 1031-32 (8th Cir. 2002) ("[W]hether juvenile adjudications

can be characterized as 'prior convictions' for Apprendi purposes

is a constitutional question implicating [the defendant's] right

not to be deprived of liberty without 'due process of law,' and

Congress's characterization, therefore, is not dispositive.")

(citation omitted). Four circuits have held that juvenile

adjudications may be deemed qualifying convictions under the ACCA,

consistent with Apprendi, and therefore need not be submitted to

the jury for fact-finding. See United States v. Crowell, No. 06-

5902, 2007 WL 1814333, at *5 (6th Cir. June 26, 2007); United

States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir. 2005); United

States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003); Smalley, 294

F.3d at 1033.

However, the Ninth Circuit, in a decision that provoked

a dissent, held to the contrary in United States v. Tighe, 266 F.3d

1187 (9th Cir. 2001). The majority in Tighe reasoned that juvenile

adjudications did not feature the "fundamental triumvirate of

procedural protections" that guaranteed reliability – "fair notice,

reasonable doubt and the right to a jury trial." Id. at 1193.

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Noting its concern about the absence of one of those fundamentals

– the right to trial by jury – the Ninth Circuit majority held that

"Apprendi's narrow 'prior conviction' exception is limited to prior

convictions resulting from proceedings that afforded the procedural

necessities of a jury trial and proof beyond a reasonable doubt."

Id. at 1194. In so concluding, the court pointed to language in

Apprendi and Jones suggesting that the reliability of the jury

process provides a basis for distinguishing between the fact of a

prior conviction and other sentence-enhancing facts. Id. at 1193-

94 (quoting Apprendi, 530 U.S. at 4968; Jones, 526 U.S. at 2499).

The four circuits that count juvenile adjudications as

predicate crimes, whose decisions came after Tighe, also focused on

8
The Apprendi passage stated:

[T]here is a vast difference between accepting the
validity of a prior judgment of conviction entered in a
proceeding in which the defendant had the right to a jury
trial and the right to require the prosecutor to prove
guilt beyond a reasonable doubt, and allowing the judge
to find the required fact under a lesser standard of
proof.

530 U.S. at 496.
9
The Jones passage stated:

One basis for that possible constitutional
distinctiveness [of prior convictions] is not hard to
see: unlike virtually any other consideration used to
enlarge the possible penalty for an offense, . . . a
prior conviction must itself have been established
through procedures satisfying the fair notice, reasonable
doubt, and jury trial guarantees.

526 U.S. at 249.

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whether juvenile adjudications are accompanied by sufficient

procedural protections to justify the Apprendi exception. They

disagreed, however, that a jury trial was a prerequisite.

Recognizing that defendants in juvenile proceedings have no

constitutional right to a jury trial, see McKeiver v. Pennsylvania,

403 U.S. 528, 545 (1971) (plurality opinion), the Eighth Circuit

concluded that "the use of a jury in the juvenile context would

'not strengthen greatly, if at all, the fact-finding function,'"

Smalley, 294 F.3d at 1033 (quoting McKeiver, 403 U.S. at 547). The

court also cited In re Winship, 397 U.S. 358, 368 (1970),10 in

observing that the safeguards that are required for juvenile

offenses – the right to notice, the right to counsel, the right to

confront and cross-examine witnesses, the privilege against self-

incrimination, and proof of guilt beyond a reasonable doubt – "are

more than sufficient to ensure the reliability that Apprendi

requires." Smalley, 294 F.3d at 1033.11

10
The Court in Winship extended the right to proof beyond a
reasonable doubt to juvenile delinquency proceedings.
11
The Smalley court noted that the language from Apprendi and
Jones cited by the Ninth Circuit did not necessarily indicate that
"the fundamental triumvirate of procedural protections" are
necessary for an adjudication to fall within the Apprendi
exception, but only that such safeguards would be sufficient. See
294 F.3d at 1032 ("[W]hile the Court established what constitutes
sufficient procedural safeguards (a right to jury trial and proof
beyond a reasonable doubt), and what does not (judge-made findings
under a lesser standard of proof), the Court did not take a
position on possibilities that lie in between these two poles.").

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 The Third Circuit in Jones adopted the Eighth Circuit's

reasoning and held that "[a] prior nonjury juvenile adjudication

that was afforded all constitutionally-required procedural

safeguards can properly be characterized as a prior conviction for

Apprendi purposes." 332 F.3d at 696. Because the right to a jury

trial is not constitutionally required in the juvenile context, its

"absence . . . does not automatically disqualify juvenile

adjudications for purposes of the Apprendi exception." Id. The

Eleventh Circuit in Burghe and the Sixth Circuit in Crowell

subsequently came to the same conclusion. See Burghe, 407 F.3d at

1190-91 ("We base our holding on the reasoning of our sister

circuits in Smalley and Jones."); Crowell, 2007 WL 1814333, at *5

("[W]e join the Third, Eighth, and Eleventh circuits in finding

that the imposition of a sentence enhancement under the ACCA based

on a defendant's juvenile adjudication without a jury trial does

not violate the defendant's due process rights or run afoul of

Apprendi.").

Thus, while their outcomes differed, all of the courts to

consider the issue have agreed that "the question of whether

juvenile adjudications should be exempt from Apprendi's general

rule should [] turn on . . . an examination of whether juvenile

adjudications, like adult convictions, are so reliable that due

process of law is not offended by such an exemption." Smalley, 294

F.3d at 1032-33. We share that view of the question. For purposes

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of Apprendi's recidivism exception, we see no distinction between

juvenile adjudications and adult convictions; both reflect the sort

of proven prior conduct that courts historically have used in

sentencing. If their reliability is also equivalent, the prior

conviction exception presumably would apply to juvenile

adjudications with equal force.

We need not resolve in this case, however, whether trial

by jury – the only one of the "fundamental triumvirate of

procedural protections" not constitutionally mandated in juvenile

proceedings – is a necessary assurance of reliability for Apprendi

purposes. Massachusetts law gives juveniles the right to a jury

trial, see Mass. Gen. Laws Ann. ch. 119, § 55A,12 and the certified

copy of the docket in appellant's juvenile case shows that he was

offered, and declined, a jury.13 Appellant therefore was provided

more process than he was constitutionally due in his juvenile

proceeding and, even under the Ninth Circuit's more restrictive

12
Massachusetts law also requires that a delinquency
adjudication be proven beyond a reasonable doubt. Mass. Gen. Laws
Ann. ch. 119, § 58.
13
Appellant suggests that his right to a jury trial was
compromised because Massachusetts did not add procedural
protections relating to waiver of the right until 1996, after his
adjudication. See Mass. Gen. Laws Ann. ch. 119, § 55A. Given
that appellant was represented by counsel when he waived his right
to a jury trial, we are satisfied that he had meaningful access to
a jury.

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approach, his adjudication of delinquency would qualify as a

predicate conviction for purposes of the ACCA.14

In sum, we detect no constitutional barrier to the use of

that adjudication to support appellant's enhanced sentence.

B. Other Claims of Error

Appellant's argument that the government must prove to a

jury beyond a reasonable doubt the fact of a conviction that is

used as a sentencing predicate has now been rejected repeatedly by

this court, see, e.g., Miller, 478 F.3d at 52; United States v.

Richards, 456 F.3d 260, 262 (1st Cir. 2006), and no more need be

said on that issue. Likewise, as appellant concedes, the claim

that his 1995 drug conviction does not qualify as an ACCA predicate

is foreclosed by our precedent. Under the ACCA, a "serious drug

offense" is one punishable by imprisonment of ten years or more.

See 18 U.S.C. § 924(e)(2)(A). Although appellant's challenged

conviction occurred in state district court, where the maximum

allowable penalty is a term of two and one-half years, the statute

14
We note, moreover, that Massachusetts courts have relied on
juvenile adjudications for purposes of state recidivist statutes
similar to the ACCA. In Commonwealth v. Furr, 788 N.E.2d 592, 594-
95 (2003), habeas denial aff'd, Furr v. Brady, 440 F.3d 34 (1st
Cir. 2006), the court majority rejected defendant's contention that
only adult convictions counted as predicate crimes under the
Massachusetts analogue to the ACCA, Mass. Gen. Laws Ann. ch. 269,
§ 10G, and affirmed an enhanced sentence for a firearms violation
based on the defendant's earlier adjudication as a youthful
offender. See also Commonwealth v. Connor C., 738 N.E.2d 731, 738
(2000) (treating a prior delinquency adjudication for a firearms
violation as a "conviction" for purposes of Mass. Gen. Laws Ann.
ch. 269, § 10(d)).

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under which appellant was prosecuted sets a maximum of ten years'

incarceration. We held in United States v. Moore, 286 F.3d 47, 49

(1st Cir. 2002), that it is the statutory maximum and not the

maximum sentence allowed in Massachusetts district court that is

relevant under the ACCA. We decline to revisit that holding;

indeed, appellant has made only a cursory argument in support of

his request that we do so. See United States v. Guzmán, 419 F.3d

27, 31 (1st Cir. 2005) (noting that subsequent panels of judges

within the same circuit must follow prior panel decisions directly

on point); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

("[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.").

Appellant's final argument, though apparently novel in

this circuit, is equally unavailing. He claims that the government

may not use the same felony to trigger the charge of felon-in-

possession of a firearm and also as one of the three predicate ACCA

convictions. He points to the ACCA language providing for a

minimum mandatory sentence of fifteen years "[i]n the case of a

person who violates section 922(g) of this title and has three

previous convictions by any court," 18 U.S.C. § 924(e)(1) (emphasis

added), and argues that the word "and" indicates that the three

ACCA felonies must be "in addition to" the one used to prove that

he was "a person who violate[d] section 922(g)." His claim, in his

words, is that the government "used up" one prior felony to

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establish his felon-in-possession status and must rely on three

others to trigger the enhanced penalty. He argues that, beyond the

issue of statutory construction, this is a "question of fundamental

fairness under the Due Process Clause."

Appellant's first difficulty with this argument is that

it was not raised below and the claim therefore may be reviewed

only for plain error. Leahy, 473 F.3d at 409-10. He offers no

supporting case law, however, while at least two circuits already

have rejected his position. See United States v. Bates, 77 F.3d

1101, 1106 (8th Cir. 1996); United States v. Wallace, 889 F.2d 580,

584 (5th Cir. 1989). In light of that contrary precedent, his

conclusory invocation of the Rule of Lenity and principles of due

process is insufficient to show obvious error. See Leahy, 473 F.3d

at 410 ("The plain error hurdle is high.").

The government also points out that, even if appellant's

construction of the statute were viable, it would not affect this

case because appellant has an "extra" qualifying conviction. In

addition to the three predicates on which the district court based

its ACCA finding, he had a state conviction for buying or receiving

a stolen motor vehicle that could have been used to establish his

felon status for purposes of § 922(g)(1).15 Thus, none of

15
Section 922(g)(1) prohibits possession of a firearm by
anyone "who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year." Section
921(a)(20)(B) excludes crimes that are classified as misdemeanors
under state law if they are "punishable by a term of imprisonment

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appellant's arguments undermine the district court's finding that

his prior record met the ACCA requirements.

Accordingly, for the reasons expressed above, we uphold

both appellant's conviction and his sentence.

Affirmed.

of two years or less." Appellant's motor vehicle conviction does
not fall within the exclusion because the Massachusetts crime of
buying or receiving stolen property is punishable, in its least
serious version, by imprisonment for up to two and one-half years.
See Mass. Gen. Laws Ann. ch. 266, § 60.

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