United States v. Maldonado ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1525
UNITED STATES,
Appellant,
v.
CARLOS MALDONADO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellant.
Samia Hossain, Assistant Federal Public Defender, with whom
Miriam Conrad, Federal Public Defender, was on brief, for appellee.
February 18, 2021
KAYATTA, Circuit Judge. This appeal turns on whether a
conviction under Massachusetts law for armed assault with intent
to murder qualifies as a crime of violence under section 4B1.2(a)
of the United States Sentencing Guidelines if the conviction was
or may have been based on a joint venture theory under
Massachusetts law as it stood in 2007. The answer to this question
determines whether Defendant Carlos Maldonado is deemed a career
offender under section 4B1.1(a) in the wake of his 2018 guilty
plea to charges of distributing and possessing with intent to
distribute cocaine.
In the district court, Maldonado advanced two arguments
for why his prior conviction as a joint venturer for an otherwise
admittedly violent crime does not qualify him for career-offender
status. First, he argued that section 4B1.2(a)'s definition of
"crime of violence" does not include convictions that were or may
have been based on aiding another in committing a crime. In
support of this argument, he necessarily asserted that Application
Note 1 of the commentary to section 4B1.2, which expressly says
that section 4B1.2(a)'s definition of "crime of violence" includes
aiding and abetting any crime of violence, must be rejected as
impermissibly expanding the actual guideline's definition.
Second, he argued that even if section 4B1.2(a)'s definition of
"crime of violence" includes aiding and abetting crimes of
violence, joint venture liability under Massachusetts law as it
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stood at the time of his conviction in 2007 was categorically
broader than the aiding and abetting liability referred to in
Application Note 1 because it did not require that each joint
venturer share the principal's intent to commit the underlying
offense.
The district court agreed with the second of these
arguments, and perhaps the first as well (it is not entirely
clear). It consequently calculated a Guidelines sentencing range
of 15–21 months -- far lower than the 210–262 months that would
have come with the career-offender designation. The district court
then sentenced Maldonado to thirty months' imprisonment and six
years of supervised release.
The government brought this appeal, arguing that the
district court's decision not to apply the career-offender
enhancement was error. After the parties filed briefs addressing
Maldonado's two arguments for sustaining the district court's
Guidelines calculation, this court issued opinions in two
unrelated cases rejecting those very same arguments. See United
States v. Lewis, 963 F.3d 16, 22–23 (1st Cir. 2020); United States
v. Capelton, 966 F.3d 1, 6–10 (1st Cir. 2020).
In Lewis, we confirmed that under controlling circuit
precedent, the definition of "crime of violence" under
section 4B1.2(a) includes the variants described in Application
Note 1 to that section. See 963 F.3d at 22–23; see also United
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States v. Nieves-Borrero, 856 F.3d 5, 9 (1st Cir. 2017); United
States v. Piper, 35 F.3d 611, 617–19 (1st Cir. 1994); United States
v. Fiore, 983 F.2d 1, 2–4 (1st Cir. 1992). Those variants include
"aiding and abetting." U.S.S.G. § 4B1.2, cmt. n.1. We therefore
agree with the government, on de novo review, that Maldonado cannot
avoid application of the career-offender guideline by arguing that
Application Note 1 impermissibly expands the definition of "crime
of violence" under section 4B1.2(a).
In Capelton, we found that, despite different language
employed at different times, Massachusetts joint venture liability
has since at least 1979 effectively required a showing of mens rea
no different from the aiding and abetting liability referred to in
Application Note 1 to section 4B1.2(a). See 966 F.3d at 6–10
(reviewing decades of Massachusetts caselaw). As such, we agree
with the government that the district court erred to the extent
that it concluded otherwise.
Maldonado argues that we must nevertheless affirm
because the government never argued before the district court that
the two respective mens rea requirements were the same. Rather,
the government argued that the two were "not that far [apart],"
given that Massachusetts joint venture law in 2007 required proof
of the defendant's willingness to assist the principal in
committing the crime. Therefore, contends Maldonado, the
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government's appeal on this issue is subject to only plain error
review.
Even were we to narrowly construe the government's
preserved "not that far apart" argument, de novo review of that
argument would lead us to ask what differences exist between the
two mens rea formulations, and whether any differences are relevant
to designating Maldonado's conviction as a crime of violence under
the Guidelines. That in turn would lead us right back to the
answer given in Capelton: Although the language differs, the two
mens rea formulations effectively require the same showing of
shared intent. 966 F.3d at 10. So a finding of forfeiture by the
government would not in the end preserve Maldonado's victory --
rather, it would simply require the government to pursue a more
circuitous route. All in all, it makes more sense to put the case
on a direct path as now marked out by Capelton.
We therefore vacate the sentence and remand for
resentencing in accord with this opinion. While this will call
for a new calculation of the Guidelines sentencing range, nothing
in this opinion otherwise limits in any way the district court's
customary discretion in setting a just and appropriate sentence.
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