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United States v. Whindleton

United States Court of Appeals, First Circuit

August 10, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JERMAINE WHINDLETON, Defendant, Appellant

Page 106

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. Nancy Torresen, U.S. District Judge.

J. Hilary Billings, Assistant Federal Defender, for appellant.

René e M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Lynch, Thompson, and Kayatta, Circuit Judges.

OPINION

Page 107

LYNCH, Circuit Judge.

Jermaine Whindleton appeals his fifteen-year sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (" ACCA" ), a defendant convicted under § 922(g)(1) faces a mandatory minimum sentence of fifteen years if he or she has three previous convictions for " a violent felony or a serious drug offense." Id. § 924(e). Whindleton concedes that one of his prior convictions qualifies as an ACCA predicate, but challenges on appeal the other two convictions identified by the district court.

We must resolve, first, whether Whindleton's prior conviction for Criminal Sale of a Controlled Substance under New York Penal Law § 220.39(1) qualifies as a " serious drug offense." Second, we must resolve whether Whindleton's prior conviction for Assault with a Dangerous Weapon under Massachusetts General Laws ch. 265, § 15B(b), qualifies as a " violent felony." Precedent informs our resolution of the former and mandates the latter. Since we conclude that both of the challenged convictions qualify as ACCA predicate offenses, we affirm Whindleton's sentence.

I.

Whindleton was arrested after using the barrel of a shotgun to strike Christopher Frey in the head during an argument in June of 2012 over a drug debt that Frey owed to Whindleton. Whindleton was later indicted for " knowingly possess[ing] . . . a Mossberg, Model 500B, 16 Gauge shotgun" after having been convicted of four felonies in violation of 18 U.S.C. § § 922(g)(1) and 924(e). Specifically, Whindleton had been previously convicted of (1) Criminal Sale of a Controlled Substance in the Third Degree in New York in 2005; (2) Assault in the Second Degree in New York in 2006; (3) Assault with a Dangerous Weapon (" ADW" ) in Massachusetts in 2009; and (4) Possession with Intent to Distribute in Massachusetts in 2009.

A conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), requires the defendant to possess a firearm after any one felony conviction. A jury found Whindleton guilty " of possession of a firearm by a convicted felon" on April 9, 2014.

An enhanced sentence under the ACCA, 18 U.S.C. § 924(e), requires the defendant to violate § 922(g) after three prior convictions for a " violent felony" or a " serious drug offense," as these terms are defined by the statute. If the ACCA applied to Whindleton's criminal history, he faced a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(1). If not, he faced a maximum sentence of ten years. Id. § 924(a)(2).

At sentencing, Whindleton conceded that his Massachusetts conviction for Possession

Page 108

with Intent to Distribute qualified as a " serious drug offense." Over Whindleton's objection, the district court concluded that Whindleton's New York conviction for Criminal Sale of a Controlled Substance in the Third Degree also qualified as a " serious drug offense," and that Whindleton's Massachusetts conviction for ADW qualified as " a violent felony." [1] As a result, the district court imposed the mandatory minimum sentence under the ACCA of 180 months, or 15 years.

II.

Section 922(g)(1) prohibits any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year from shipping, possessing, or receiving firearms. 18 U.S.C. § 922(g)(1). The ACCA increases the mandatory minimum sentence for this crime to fifteen years if the defendant has three prior convictions for " a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. § 924(e)(1). In this case, Whindleton argues that the district court erred when it concluded that his conviction for Criminal Sale of a Controlled Substance in the Third Degree qualified as a " serious drug offense," and that his conviction for ADW qualified as a " violent felony."

Whether a prior conviction qualifies as an ACCA predicate offense is a legal question we review de novo. United States v. Carrigan, 724 F.3d 39, 48 (1st Cir. 2013). We employ a categorical approach, under which " we may consider only the offense's legal definition, forgoing any inquiry into how the defendant may have committed the offense." United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011); see also United States v. Bryant, 571 F.3d 147, 157 n.7 (1st Cir. 2009) (applying the same approach to controlled substances offenses).

The categorical approach is " modified" if the defendant was convicted under a statute which " sets out one or more elements of the offense in the alternative." See Descamps v. United States,133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under the modified categorical approach, the court may " consult a limited class of documents . . . to determine which alternative formed the basis of the defendant's prior conviction." Id. If these documents do not identify the basis of the defendant's prior conviction, the court must ensure that " each of ...


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