FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. George Z. Singal, U.S. District Judge
Renée M. Bunker, Assistant United States Attorney,
with whom Thomas E. Delahanty II, United States Attorney, was
on brief, for appellant.
Hilary Billings, Assistant Federal Defender, for appellee.
Torruella, Thompson, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
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.
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. Thirteen years later, Carter was
indicted for violating 18 U.S.C. § 922(g)(9) by
possessing a firearm that 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).
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.
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.).
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 [Shepard documents may ultimately [have]
show[n] that Carter's conviction was under one of the
other two mens-rea prongs of the
'knowingly.'" Id. at 18-19 n.11. The
panel therefore "vacate[d] [Carter's] conviction and
the district court's denial of his 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."
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 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.
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
leaves two related loose ends: Carter's appeal from the
calculation of his sentence, and the related question of how
best to craft our ...