United States v. Carter

United States Court of Appeals
For the First Circuit

No. 14-1844

UNITED STATES OF AMERICA,

Appellant,

v.

WAYNE CARTER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellant.
J. Hilary Billings, Assistant Federal Defender, for appellee.

June 22, 2017
 KAYATTA, Circuit Judge. This appeal challenges us to

figure out how best to put a case back on track following a

conviction, a vacation of that conviction on appeal, a dismissal

of the indictment on remand, a government appeal of that dismissal,

and the subsequent issuance of controlling authority making it

clear that the original conviction was proper. For the following

reasons, we again remand the case, this time for reentry of the

judgment of conviction and the sentence, albeit with leave for the

defendant to proceed with a previously preserved challenge to his

sentence.

I.

On April 1, 1997, Carter pled guilty in state court to

violating Maine's assault statute, Me. Stat. tit. 17-A,

§ 207(1)(A). The victim was Carter's girlfriend and the mother of

one of his children.1 Thirteen years later, Carter was indicted

for violating 18 U.S.C. § 922(g)(9) by possessing a firearm that

1 "[T]he domestic relationship, although it must be
established beyond a reasonable doubt in a § 922(g)(9) firearms
possession prosecution, need not be a defining element of the
predicate offense." United States v. Hayes, 555 U.S. 415, 418
(2009). Carter's relationship to the victim of the 1997 assault
is described in the prosecution's version of the facts, which was
filed the day before Carter's conditional plea. No transcript of
the change-of-plea colloquy exists, so we cannot verify that Carter
admitted this particular fact during his guilty plea.
Nevertheless, Carter has not challenged that this element of the
offense was satisfied, and he admitted in his sentencing memoranda
that the assault victim was his "live-in girl friend [sic]" and
"domestic partner."

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he had inherited, kept, pawned, and redeemed after the 1997 assault

conviction. Under § 922(g)(9), it is unlawful for a person "who

has been convicted in any court of a misdemeanor crime of domestic

violence" to possess a firearm. A "misdemeanor crime of domestic

violence" includes any state-law misdemeanor that "has, as an

element, the use or attempted use of physical force . . .

committed . . . by a person with whom the victim shares a child in

common . . . or by a person similarly situated to a spouse . . .

of the victim." 18 U.S.C. § 921(a)(33)(A)(i)–(ii).

Carter moved to dismiss the indictment on the ground

that the Maine assault statute could be violated with a mens rea

of recklessness and that a reckless assault does not have as an

element the "use" of physical force. Later, he filed a

supplemental motion to dismiss arguing that § 922(g)(9)

unconstitutionally infringes on his Second Amendment rights. The

district court denied these motions in July 2011 and March 2012,

respectively. Based on this court's then-recent opinion in United

States v. Booker, 644 F.3d 12, 21 (1st Cir. 2011), the district

court rejected the argument that a misdemeanor crime of domestic

violence does not include any crime for which recklessness is a

sufficient mens rea. Carter ultimately pled guilty but reserved

his right to appeal the denial of his motions to dismiss and his

sentence.

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 While Carter's appeal was pending, the Supreme Court

decided United States v. Castleman, 134 S. Ct. 1405 (2014), which

held that "physical force" in 18 U.S.C. § 921(a)(33)(A) means only

the amount of force required for common law battery and not the

"violent force" required for a violent felony by Johnson v. United

States, 559 U.S. 133, 140 (2010). Castleman, 134 S. Ct. at 1413.

The mens rea required for a "use" of physical force was not at

issue in Castleman, but the opinion volunteered that "the merely

reckless causation of bodily injury . . . may not be a 'use' of

force." Id. at 1414. Supporting that possibility, the Court added

a footnote stating that "[a]lthough [Leocal v. Ashcroft, 543 U.S.

1 (2004),] reserved the question whether a reckless application of

force could constitute a 'use' of force, the Courts of Appeals

have almost uniformly held that recklessness is not sufficient."

Castleman, 134 S. Ct. at 1414 n.8 (citation omitted). That

footnote contained a "[b]ut see" citation to Booker. Id. Piling

tangible action on top of dictum, the Court subsequently granted,

vacated, and remanded both United States v. Armstrong, 706 F.3d 1

(1st Cir. 2013), which had followed Booker on this point, see id.

at 4–5, and United States v. Voisine, 495 F. App'x 101 (1st Cir.

2013), which had followed Armstrong, see id. at 101–02. The

Supreme Court instructed this court to reconsider both cases in

light of Castleman. See Armstrong v. United States, 134 S. Ct.

1759 (2014) (Mem.).

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 The panel that heard Carter's appeal paid attention to

these signals. It observed that although Booker and Armstrong

would normally require it to hold that reckless assault is a

misdemeanor crime of domestic violence, there was "sound reason

for thinking that the Booker panel might well change its collective

mind in light of Castleman." United States v. Carter, 752 F.3d 8,

18–19 n.11 (1st Cir. 2014) (citations omitted). Noting the

uncertainty generated by Castleman and the remand of Armstrong,

the panel opted to see if further development of the record might

moot the question. Id. at 21. Specifically, the panel observed

that the parties did not dispute that the Maine assault statute

was divisible into different forms of the offense with different

mens rea elements. Id. at 17. In such circumstances, gathering

and assessing "the underlying [Shepard2] documents may ultimately

[have] show[n] that Carter's conviction was under one of the other

two mens-rea prongs of the statute--'intentionally' or

'knowingly.'" Id. at 18–19 n.11. The panel therefore "vacate[d]

[Carter's] conviction and the district court's denial of his

2Shepard v. United States, 544 U.S. 13 (2005), allows a court
determining which form of a divisible offense a prior conviction
fell under to "'consult[] the trial record--including charging
documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms'--in order to 'determine which
statutory phrase was the basis for the conviction.'" Carter, 752
F.3d at 19 (alteration in original) (quoting Johnson, 559 U.S. at
144).

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original motion to dismiss the indictment on statutory grounds"

and "remand[ed] the case to the district court for further

proceedings consistent with th[e] opinion and in light of the

Supreme Court's opinion in Castleman and its vacation of [this

court's] judgment in Armstrong." Id. at 21 (citations omitted).

In so doing, the panel plainly left open the ultimate resolution

of Carter's challenge to his conviction. See id. at 18–19 n.11

("[W]e need not decide today whether, in light of Castleman, a

conviction under the 'recklessly' prong of the Maine statute

satisfies the 'use or attempted use of physical force' requirement

for purposes of § 922(g)(9) . . . ."); see also United States v.

Voisine, 778 F.3d 176, 186 (1st Cir. 2015) ("In United States v.

Carter, . . . [t]he opinion noted that Castleman 'casts doubt'

upon Booker, but it explicitly did 'not decide' the question before

this court." (citations omitted)).

On remand, it turned out that no Shepard documents

demonstrated that the state-court conviction was for the

intentional or knowing version of the assault offense. Thus, the

question whether an offense resting on reckless conduct

constituted a misdemeanor crime of domestic violence remained

front and center. Also viewing Castleman as a harbinger, the

district court reversed course and concluded that the reckless

form of the Maine assault statute did not qualify as a misdemeanor

crime of domestic violence. The district court understood the

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Supreme Court to have vacated Armstrong in order to pull this

circuit into line with the other circuits with respect to whether

one can "use . . . physical force" recklessly within the meaning

of § 921(a)(33)(A)(ii). It also understood the observation in

Carter that the Booker panel might "change its collective mind in

light of Castleman" to mean that Booker was no longer binding.

After finding that the Shepard documents did not establish the

form of assault of which Carter was convicted, the district court

dismissed the indictment. The government filed this appeal.

The appeal was stayed pending this court's decisions in

Armstrong and Voisine, which were consolidated for

reconsideration. As it turned out, Castleman's augury proved

false. This court concluded that, notwithstanding Castleman, the

reckless form of the Maine assault statute is a misdemeanor crime

of domestic violence within the meaning of § 921(a)(33)(A)(ii).

See Voisine, 778 F.3d at 177. The Supreme Court affirmed. See

Voisine v. United States, 136 S. Ct. 2272, 2276 (2016). In so

doing, it plainly and finally resolved the uncertain issue of law

that has sent this case around the barn and back. As the district

court first held in 2012, Carter's conviction for assault was a

conviction for a misdemeanor crime of domestic violence. We must,

therefore, reverse the decision below and order the indictment

reinstated in light of Voisine.

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 That leaves two related loose ends: Carter's appeal

from the calculation of his sentence, and the related question of

how best to craft our mandate to facilitate the completion of this

case.3

II.

Carter's challenge to his sentence trains on a single

issue: whether the district court erred in finding that Carter's

unlawful possession of firearms did not qualify for a substantially

lower guidelines sentencing range based on what we have called the

"'sporting purposes or collection' exception." See Carter, 752

F.3d at 12; U.S. Sentencing Guidelines Manual § 2K2.1(b)(2).

Carter properly preserved his objections to the district court's

finding both in the district court and on his original appeal.

The panel hearing that appeal nevertheless did not reach the

sentencing challenge because it remanded for reconsideration of

the conviction. See Carter, 752 F.3d at 21. When the district

court on remand dismissed the indictment, any questions concerning

the sentence dropped out, only now to be revived by our conclusion

that the conviction was proper.

3 Carter also argues that § 922(g)(9) violates the Second
Amendment as applied to him. He recognizes, however, that this
court rejected this exact constitutional challenge in Carter. 752
F.3d at 12–13. The law of the case and the law of the circuit
thus both foreclose this argument.

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 The fact that Carter has completed his prison sentence

does not moot his sentencing challenge. See United States v.

Molak, 276 F.3d 45, 48 (1st Cir. 2002). In simple terms, if the

sentencing guidelines treated his criminal conduct as warranting

much less prison time than the district court thought was the case,

the district court might well adjust the length of supervised

release deemed appropriate.4

The government complains that Carter has yet to serve

his supervised release only because, while out on bail for this

case, he committed a state crime that extended his incarceration.

That may be so, but the fact remains that he still has a real stake

in challenging his sentence, so the challenge is not moot. Cf.

United States v. DeLeon, 444 F.3d 41, 55 (1st Cir. 2006) (finding

sentencing challenge moot despite pending supervised release term

only because defendant was "in immigration custody and facing

imminent deportation from the United States").

Ideally, we would decide the sentencing issue now

ourselves. The parties agree, though, that (in the words of

4 The district court's decision not to apply the sporting
purposes or collection exception made a significant difference to
Carter's guidelines sentencing range. Without the exception,
Carter's guidelines sentencing range was eighteen to twenty-four
months. If the district court had applied the exception, Carter's
guidelines sentencing range may have been as low as zero to six
months. Carter's year-and-a-day sentence of imprisonment, which
was a downward variance from the guidelines sentencing range the
district court used, would have been an upward variance from the
guidelines sentencing range if the exception applied.

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Carter's brief) "the 'Sporting Purposes or Collection' exception

issue is not appropriately presented for consideration in the

context of this appeal." The government has not briefed the

merits. And this docket does not contain the full record germane

to the issue. So prudence requires a remand to get it teed up.

III.

That leaves the question of what we should order the

district court to do on remand. The relevant statutes and case

law grant this court broad power to craft remand orders.

[A]ny . . . court of appellate jurisdiction
may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a
court lawfully brought before it for review,
and may remand the cause and direct the entry
of such appropriate judgment, decree, or
order, or require such further proceedings to
be had as may be just under the circumstances.

28 U.S.C. § 2106. This court has interpreted this power to allow

it, for instance, to order the entry of a conviction for a lesser-

included offense when the evidence is insufficient to sustain a

conviction for a greater offense. See United States v. Sepúlveda-

Hernández, 752 F.3d 22, 28–31 (1st Cir. 2014).

Carter argues that it would not be appropriate to

reinstate the indictment, conviction, and sentence. Effectively,

Carter argues that the only appropriate order is one that would

place him in a position similar to where he would have been had

the district court, after the remand, correctly predicted how this

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court and the Supreme Court would rule in Voisine. Had the

district court done so, Carter argues, he may have been able to

resist reinstitution of the vacated conviction based on his

original guilty plea, and gone to trial. But there is another

possible retrospective reconstruction: We could craft an order

that places Carter in a situation similar to where he would have

been had the previous panel of this court correctly predicted how

this court and the Supreme Court would rule in Voisine. Had that

panel done so, it never would have vacated the conviction and

sentence. We see no reason why the former approach would be more

appropriate than the latter in these circumstances. As we have

explained, Carter did not decide the question resolved in Voisine,

so the latter approach is not inconsistent with Carter. Moreover,

at this point, Carter has not demonstrated any error in either his

conviction or his sentence, and he points to no remaining basis

upon which he might assert innocence.

Nor do Carter's unspecified "concerns" under the Speedy

Trial Act or the statute of limitations alter this conclusion.

Carter has not made any legal argument that the proceedings thus

far have violated these statutes. On appeal, intimations toward

potential arguments are insufficient. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely

to mention a possible argument in the most skeletal way, leaving

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the court to do counsel's work, create the ossature for the

argument, and put flesh on its bones.").

While there are no perfect options, we think it best to

get the parties back to where they would have been but for the

Castleman-Voisine detour: before a panel of this court on a

complete record with the sole remaining sentencing issue fully

briefed. There is time to do this because Carter has finished his

prison sentence, yet not begun his two-year period of supervised

release.5 So on remand, the district court will promptly

reinstitute the original conviction and sentence, ensuring before

it does so that the record contains all materials germane to the

sporting purposes or collection exception. Carter may then appeal

that single issue, and it will be decided as it would have been

but for the detour we have described above. The appeal will likely

be expedited should Carter so request.

IV.

For the foregoing reasons, we reverse the order of the

district court dismissing the indictment and remand the case to

the district court for reinstatement of the indictment. We order,

further, that (1) the district court shall reenter the April 23,

2012 judgment, modified to indicate that Carter has already served

5 At oral argument, the government represented that Carter
completed his state prison sentence in March 2016, so the
supervised release term will commence once the sentence is
reinstated.

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the term of imprisonment and that only the supervised release term

remains to be served; (2) the district court shall ensure that the

record contains all materials germane to its prior decision not to

apply the sporting purposes or collection exception; and (3) Carter

shall have fourteen days from the date the district court reenters

the conviction and sentence to file a notice of appeal challenging

the district court's ruling on the sporting purposes or collection

exception at his sentencing hearing. The proceeding shall

otherwise go forward in accordance with this opinion.

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