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United States v. Carter

United States Court of Appeals, First Circuit

June 22, 2017

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

          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.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          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 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.

         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.).

         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 [Shepard[2] 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 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 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.

         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 ...


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