United States District Court, D. Rhode Island
WILLIAM E. SMITH, Chief United States District Judge
MEMORANDUM AND ORDER
J. MCCONNELL, JR., United States District Judge.
the Court are the Defendants' motions under 28 U.S.C.
§ 2255 to vacate, set aside, or correct their sentences.
All the Defendants were sentenced after being convicted of
violating 18 U.S.C. § 922(g), which makes it unlawful
for felons “to possess in or affecting commerce, any
firearm or ammunition.” All the Defendants received
mandatory sentences of at least 15 years pursuant to the
Armed Career Criminal Act (ACCA), which requires a sentence
of at least that length for possessing a firearm or
ammunition when a person has three prior convictions by any
court for violent felonies or serious drug offenses or a
combination of both. 18 U.S.C. § 924(e). For persons
without three qualifying predicate convictions, the statute
permits a maximum sentence of 10 years. 18 U.S.C. §
924(a)(2). The Defendants argue that they no longer have
three qualifying predicate convictions because of the United
States Supreme Court's recent decision in Johnson v.
United States (Johnson II), 135 S.Ct. 2551
(2015), which invalidated the ACCA's residual clause for
being unconstitutionally vague. Specifically, the Defendants
argue that their convictions for the Rhode Island offense of
Felony Assault/Assault with a Dangerous Weapon
(“ADW”) no longer qualify as ACCA predicate
Court holds that because Rhode Island's ADW can be
satisfied with a mens rea of recklessness, and the ACCA
requires a mens rea of more than recklessness to constitute a
violent felony under 18 U.S.C. § 924, six of the
Defendants (Weems, Sabetta, Paige, Rodriguez, Rose, and Lee)
no longer have the necessary three predicate convictions to
qualify as an Armed Career Criminal. The sole exception is
Defendant Young, whose motion raises additional issues that
need further analysis. Accordingly, the Court will schedule the
Defendants, individually, for hearings on their motions to
vacate and re-sentencings forthwith.
Johnson II, the Supreme Court narrowed the scope of
crimes that qualify as “violent felonies” by
invalidating the residual clause of that term's
definition in the ACCA. 135 S.Ct. at 2563. The residual
clause had defined a violent felony to include any felony
that “involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii). Without that clause, the
definition of a violent felony comprises the “force
clause” and the “enumerated offenses
clause.” The statute states:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(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, [or] involves use of
. . . .
18 U.S.C. § 924(e)(2)(B)(i)-(ii). In Welch v. United
States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court
held that Johnson II announced a substantive rule
that applied retroactively on collateral review.
Defendants contend that after Johnson II invalidated
the residual clause, they have fewer than three
ACCA-predicate convictions. In other words, they argue that
at least one of their predicate convictions only qualified as
a violent felony under the residual clause and does not
qualify under either the force clause or the enumerated
offenses clause. The Government responds that all the
Defendants still have three predicate qualifying convictions
because their contested convictions all have “as an
element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. §
924(e)(2)(B)(i). The Court is tasked with deciding whether
the convictions contested by the Defendants qualify as
violent felonies under the statute's force clause.
Court's analysis proceeds in three steps. First, the
Court determines whether to apply the categorical or the
modified categorical approach in evaluating Rhode
Island's felony assault statute. As discussed below, the
modified categorical approach is appropriate because the
underlying state statute is divisible. The Court therefore
must review Shepard-approved documents of the
individual Defendants' underlying convictions to
determine which specific offenses within the divisible
statute served as the bases for the convictions. For six of
the Defendants, the offense was assault with a dangerous
weapon; for Defendant Lee, it was felony assault by use of
devices similar in appearance to a firearm, which is
functionally the same as ADW.
the Court asks whether ADW has as an element, the
use, attempted use, or threatened
use of violent force against the person of
another. The defendants argue that it does not because
it can be committed with a mere recklessness mens rea. To
address this argument, the Court must answer two additional
questions, one of state law and the second of federal law.
The first question is whether proving a recklessness mens rea
is sufficient for an ADW conviction in Rhode Island. It is.
The second question is whether a crime can qualify as a
violent felony under the ACCA's force clause if it only
requires proving a recklessness mens rea. It cannot.
Concluding that a Rhode Island conviction for ADW does not
require proving the use, attempted use, or threatened use of
violent force against the person of another, the Court
concludes that it is not categorically a violent felony as
the ACCA defines that term.
the Court finds that procedural default does not bar the
claims of six of the Defendants (Weems, Sabetta, Paige,
Rodriguez, Rose, and Lee) and reserves judgment as to
whether ADW in Rhode Island is a violent felony for purposes
of ACCA is not a straight-forward task. Over 100 years of
Rhode Island case law on ADW has meant that the state court
has discussed the mens rea component in a variety of ways.
The central questions we must decide here are not easy, and
the answers are at times not clear. So, we are guided by the
principal that “[t]he rule of lenity requires
interpreters to resolve ambiguity in criminal laws in favor
of defendants.” Whitman v. United States, 135
S.Ct. 352, 353 (2014) (Scalia, J., statement respecting the
denial of certiorari); see also United States v.
Santos, 553 U.S. 507, 514 (2008) (“The rule of
lenity requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them.”);
United States v. Gray, 780 F.3d 458, 468 (1st Cir.
explained below, the Court finds that ADW can be committed
recklessly under Rhode Island state law. While we recognize
that this is a close call for the reasons discussed below, we
come to this conclusion because: first, assault has been
defined by the Rhode Island Supreme Court as requiring an
intent of malice or wantonness, State v. Jeremiah,
546 A.2d 183, 186 (R.I. 1988), abrogated on other grounds
by State v. Jackson, 752 A.2d 5 (R.I. 2000); second,
wantonness has been recognized to include reckless
conduct, see State v. Gilligan, 50 A. 844, 847 (R.I.
1901); and third, the First Circuit has instructed us that an
offense that may be completed recklessly is not a violent
felony as that term is defined by the ACCA, see United
States v. Fish, 758 F.3d 1, 16 (1st Cir. 2014).
Modified Categorical Approach
determine whether an offense qualifies as a violent felony,
the Court may “look only to the fact of conviction and
the statutory definition of the prior offense, ” which
is termed the “categorical approach.” Taylor
v. United States, 495 U.S. 575, 602 (1990). To satisfy
the force clause under the categorical approach, the use,
attempted use, or threatened use of violent force must be an
element of the prior offense. See Descamps v. United
States, 133 S.Ct. 2276, 2293 (2013). If a conviction for
the offense is possible without proof of attempted,
threatened, or actual use of violent force, then the
conviction does not qualify as a violent felony, even if the
defendant in fact used, attempted to use, or threatened to
use violent force in the commission of the crime. See
Id. The facts of the defendant's crime do not
matter, only the elements of the offense do.
the categorical approach is simple when a statute sets out a
single set of elements that defines a single crime but
becomes complicated when the statute lists several
alternative elements defining multiple crimes. Mathis v.
United States, 136 S.Ct. 2243, 2249 (2016). In the
latter case, the Court cannot tell which elements comprised
the defendant's conviction just by looking at the
statutory text. Descamps, 133 S.Ct. at 2279. To
address that problem, the Court approved the “modified
categorical approach, ” which permits looking at a
limited class of documents-often called
Shepard-approved documents-for the sole purpose of
determining the defendant's relevant offense under a
divisible statute. Shepard v. United States, 544
U.S. 13, 20 (2005). There is one hoop that courts must jump
through before applying the modified categorical approach,
which is determining whether the statute is divisible.
threshold determination about a statute's divisibility
requires the Court to decide if the statute lists alternative
elements (i.e., it is divisible) or instead enumerates
various factual means of committing a single element (i.e.,
it is indivisible). Mathis, 136 S.Ct. at 2256
(“The first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether
its listed items are elements or means.”). If the
statute lists various means of committing a single element,
then the court must stick to the categorical approach.
However, if the statute lists alternative elements, then
courts may apply the modified categorical approach to
determine the actual offense underlying the defendant's
Mathis, the Supreme Court easily deciphered the
means versus elements conundrum because the state's
highest court had previously resolved the question.
Id. The issue is also simple when statutory
alternatives carry different punishments-those must be
elements. Id. In some situations, “a statute
may itself identify which things must be charged (and so are
elements) and which need not be (and so are means).”
Id. When the statute does not address the question,
courts should look to state law for answers, as did the
Mathis Court. Id.
Rhode Island's Statute
Defendants, except for Lee, were each convicted of R.I. Gen.
Laws § 11-5-2, titled “Felony Assault.”
Subsection (a) of the statute states: “Every person who
shall make an assault or battery, or both, with a dangerous
weapon, or with acid or other dangerous substance, or by
fire, or an assault or battery which results in serious
bodily injury, shall be punished by imprisonment for not more
than twenty (20) ...