UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gerard Boulanger
v. Case No. 16-cv-266-PB Opinion No. 2017 DNH 253 United States of America
MEMORANDUM AND ORDER
Gerard Boulanger was convicted of several crimes stemming
from a pharmacy robbery, including one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1). Boulanger’s sentence on the felon in possession
charge was subject to a sentencing enhancement authorized by the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), that
applies when a felon in possession has three or more prior
convictions for a “violent felony or a serious drug offense.”
As a result, Boulanger was subject to a 15-year mandatory
minimum sentence and a maximum sentence of life on the felon in
possession charge rather than the ten-year maximum sentence that
ordinarily applies to such charges.
Boulanger has filed a motion pursuant to 28 U.S.C. § 2255
challenging his sentence on the felon in possession count. His
argument is that he no longer qualifies as an armed career criminal after the Supreme Court’s decision in Johnson v. United
States (“Johnson II”), 135 S. Ct. 2551, 2563 (2015).
I. BACKGROUND
On October 8, 2004, a jury convicted Boulanger of: robbery
involving controlled substances, in violation of 18 U.S.C. §
2118(a)-(c)(1) (Count One); use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c) (Count Two);
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (Count Three); and possession of a controlled
substance with intent to distribute, in violation of 18 U.S.C.
841(a)(1) (Count Five).
Boulanger’s presentence investigation report (“PSR”)
detailed his lengthy criminal history and outlined appropriate
sentencing options. As the PSR explained, multiple prior felony
convictions had a significant impact on his eventual sentence by
triggering certain statutory enhancements and Sentencing
Guidelines adjustments. The relevant convictions included:
One 1979 burglary conviction in Strafford County, NH.
See PSR ¶40.
Two 1981 robbery convictions in Rockingham County,
NH. See PSR ¶¶41, 45.
2 One 1981 robbery conviction in Strafford County, NH.
See PSR ¶42.
One 1981 armed robbery conviction in Hillsborough
County, NH. See PSR ¶44.
One 1981 armed robbery conviction in York County, ME.
See PSR ¶46.
Three 1984 armed robbery convictions in Rockingham
County, NH. See PSR ¶¶ 47, 48, 50.
One 1988 escape conviction in Merrimack County, NH.
See PSR ¶52.
The PSR concluded that Boulanger’s sentence on the felon in
possession charge was subject to the ACCA’s sentencing
enhancement based on at least three prior violent felony
convictions.1 PSR, Addendum II (Mar. 25, 2005). The PSR also
noted that Boulanger faced an 84-month consecutive sentence for
the use of a firearm during a crime of violence. Finally, the
1 The original PSR failed to reference the enhancement, an error that the probation officer corrected with an addendum to the PSR. The superseding indictment had previously identified four prior convictions that allegedly qualified as violent felonies, including (i) Boulanger’s 1981 armed robbery conviction in Hillsborough County, NH; (ii) his 1981 armed robbery conviction in Strafford County, NH; (iii) his 1984 armed robbery conviction in Rockingham County, NH; and (iv) his 1988 escape conviction in Merrimack County, NH. See Superseding Indictment at 4-5, United States v. Boulanger, No. 03-cr-218 (D. N.H. Aug. 5, 2004). 3 PSR determined that Boulanger should be treated as a career
offender based on his escape conviction and one of his 1984
robbery convictions. After taking this information into
account, the PSR concluded that Boulanger’s applicable guideline
range was 360 months to life.
On March 8, 2005, I adopted the PSR and sentenced Boulanger
to concurrent sentences of 376 months on the felon in possession
charge, 300 months on the robbery charge, and 240 months on the
possession with intent to distribute charge. I then imposed a
consecutive sentence of 84 months on the use of a firearm during
a crime of violence charge, which resulted in a total sentence
of 460 months.
Boulanger’s conviction and sentence were affirmed on
appeal. United States v. Boulanger, 444 F.3d 76 (1st Cir.
2006). I denied his first § 2255 petition on September 24,
2007. Nearly a decade later, Boulanger sought permission from
the First Circuit Court of Appeals to file a second § 2255
motion. His request presented three arguments: (1) his current
challenge to the ACCA enhancement; (2) a claim that he was
improperly treated as a career offender; and (3) a challenge to
his conviction for using a firearm during a crime of violence.
On June 20, 2016, the court of appeals granted Boulanger
permission to proceed with his ACCA challenge and instructed me
4 to determine whether he should be permitted to proceed with his
other claims. See Judgment, Boulanger v. United States, No. 16-
1488 (1st Cir. June 20, 2016). Boulanger’s career offender
challenge became moot in light of the Supreme Court’s decision
in Beckles v. United States, 137 S. Ct. 886 (2017), and I
determined in Kucinski v. United States, 2016 DNH 163, that his
challenge to his conviction for using a firearm during a crime
of violence was premature. Thus, the only issue that remains to
be decided is Boulanger’s challenge to the ACCA enhancement.
II. ANALYSIS Boulanger contends that he is entitled to be resentenced on
the felon in possession charge because he can no longer be
treated as an armed career criminal after the Supreme Court’s
decision in Johnson II. The government responds by claiming
that Johnson II does not alter Boulanger’s status as an armed
career criminal because he has multiple New Hampshire state
court convictions for robbery and armed robbery that continue to
qualify as violent felonies.2 I analyze the parties’ arguments
2 Boulanger has three other types of prior state court convictions that could conceivably qualify as “violent felonies,” i.e. Maine robbery, New Hampshire escape, and New Hampshire burglary. The government asserts, however, that those convictions cannot serve as ACCA predicates following Johnson II and Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). 5 by first explaining how the ACCA has been affected by Johnson II
and then apply the Act to Boulanger’s robbery and armed robbery
convictions.
A. The ACCA and Johnson II
The penalty for a felon in possession conviction is
enhanced under the ACCA if the defendant has three prior
qualifying convictions for “a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is “any
crime punishable by imprisonment for a term exceeding one year”
that (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
explosives”; or (iii) “otherwise involves conduct that presents
a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(i)-(ii). These three clauses are known
respectively as the “elements clause,”3 the “enumerated offense
Additionally, the First Circuit, in United States v. Mulkern, recently held that robbery under Maine law categorically fails as an ACCA predicate. 854 F.3d 87, 94 (1st Cir. 2017). Thus, I focus my analysis on whether Boulanger qualifies as an armed career criminal based on his robbery and armed robbery convictions.
3 The “elements clause” is also commonly referred to as the “force clause.” See United States v. Hudson, 823 F.3d 11, 15 (1st Cir. 2016).
6 clause,” and the “residual clause.” United States v. O’Shea,
256 F. Supp. 3d 72, 77-78 (D. Mass. 2017); see United States v.
Starks, 861 F.3d 306, 314 (1st Cir. 2017).
The Supreme Court determined in Johnson II that the ACCA’s
residual clause was unconstitutionally vague. 135 S. Ct. at
2563. It also later ruled in Welch v. United States, 136 S. Ct.
1254, 1265 (2016), that Johnson II applies retroactively to
cases on collateral review. In light of these decisions,
Boulanger cannot be deemed to be an armed career criminal under
the residual clause. Further, because the government does not
argue that any of Boulanger’s prior convictions qualify as
violent felonies under the enumerated offense clause, his right
to resentencing turns on whether he is subject to the
enhancement under the elements clause.
A prior conviction qualifies as a violent felony under the
elements clause if it is for a crime that has as an element the
use, attempted use, or threatened use of “physical force.” 18
U.S.C. § 924(e)(2)(B)(1). “Physical force” means “violent force
– that is force capable of causing physical pain or injury to
another person.” Johnson v. United States (Johnson I), 559 U.S.
133, 140 (2010).
I use the so-called “categorical approach” to determine
whether any of Boulanger’s convictions qualify as a violent
7 felony under the elements clause. See Starks, 861 F.3d at 315.
When using this approach, a court may consider only “the
statutory definitions – i.e., the elements – of a defendant's
prior offense[] and not . . . the particular facts underlying
[the offense]” in deciding whether that offense qualifies as a
violent felony. Descamps v. United States, 133 S. Ct. 2276,
2283 (2013) (emphasis in original) (internal quotes and
citations omitted).
To do so, I focus on the “minimum conduct criminalized” or,
stated differently, the “least serious conduct for which there
is a ‘realistic probability’ of a charge and conviction.”
Starks, 861 F.3d at 315; United States v. Edwards, 857 F.3d 420,
423 (1st Cir. 2017). If the “minimum conduct criminalized”
necessarily involves the use, attempted use, or threatened use
of “violent force,” i.e. “force capable of causing physical pain
or injury to another person,” see Johnson I, 559 U.S. at 140,
the prior conviction is categorically an ACCA predicate. United
States v. Mulkern, 854 F.3d 87, 90-91 (1st Cir. 2017); Edwards,
857 F.3d at 423. By contrast, if the “minimum conduct
criminalized” does not necessarily involve such force, then the
prior conviction categorically fails to qualify as a violent
felony. See United States v. Fish, 758 F.3d 1, 5 (1st Cir.
8 2014) (citing Karimi v. Holder, 715 F.3d 561, 567 (4th Cir.
2013)).
Importantly, this “minimum-conduct focus ‘is not an
invitation to apply legal imagination to the state offense.’”
Edwards, 857 F.3d at 423 (quoting Moncrieffe v. Holder, 569 U.S.
184, 133 S. Ct. 1678, 1684-85 (2013)) (other internal quotes and
citations omitted). Rather, the minimum conduct criminalized is
conduct that has a “realistic probability, not a theoretical
possibility,” of supporting a conviction under the law or
statute in question. See id.; Gonzales v. Duenas-Alvarez, 549
U.S. 183, 193 (2007) (discussing same categorical framework in
context of alien removal); Fletcher v. United States, 858 F.3d
501, 507 (8th Cir. 2017); United States v. Hill, 832 F.3d 135,
142 (2d. Cir. 2016). “Decisions from the state supreme court
best indicate a ‘realistic probability,’” United States v.
Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).
B. The New Hampshire Robbery Statute
The New Hampshire robbery statute “creates two offenses”:
(1) simple robbery, a Class B felony, see N.H. Rev. Stat. §
636:1, I, and (2) armed robbery or robbery with serious injury,
a Class A felony, see id. § 636:1, III. State v. Shannon, 125
N.H. 653, 666 (1984). A person commits simple robbery if, in
the course of committing a theft, he: (a) [u]ses physical force
9 on the person of another and such person is aware of such force;
or (b) [t]hreatens another with or purposely puts him in fear of
immediate use of physical force.” N.H. Rev. Stat. § 636:1, I.
A simple robbery becomes armed robbery if during the robbery,
the defendant: (1) was actually armed with a deadly weapon; (2)
reasonably appeared to the victim to be armed with such a
weapon, or (3) inflicted or attempted to inflict death or
serious injury on another. N.H. Rev. Stat. Ann. § 636:1, III.
The government argues that all of Boulanger’s New Hampshire
robbery and armed robbery convictions qualify as violent
felonies because all forms of robbery under § 636:1 require the
actual or threatened use of “physical force,” which the
government construes to mean violent force. Boulanger advances
the contrary argument that a conviction under § 636:1 cannot be
considered a violent felony because “physical force” does not
require violent force. Using the categorical approach, the
question thus becomes whether the minimal degree of force
sufficient to qualify as “physical force” under § 636:1 equates
to “violent force – that is, force capable of causing physical
pain or injury to another person.” See Johnson I, 559 U.S. at
140.
In assessing the parties’ positions on this issue, I first
apply New Hampshire law to identify the minimum conduct
10 criminalized by § 636:1. See Johnson I, 559 U.S. at 138;
Starks, 861 F.3d at 315. Next, I turn to federal law to
determine whether the minimum conduct criminalized under § 636:1
necessarily requires violent force. See Starks, 861 F.3d at
315-16; Johnson I, 559 U.S. at 138.
1. Minimum Conduct Criminalized
States differ as to the nature of the force required to
support a robbery conviction. Robbery was understood to be a
violent crime at common law. See United States v. Harris, 844
F.3d 1260, 1266-67 (10th Cir. 2017); United States v. Pena, 161
F.Supp.3d 268, 276 (S.D.N.Y. 2016). Although a large number of
states continue to follow some version of the common law
approach, see, e.g., People v. Borghesi, 66 P.3d 93, 100-101
(Colo. 2003) (“[j]ust as the common law of robbery emphasizes .
. . [w]e have stated that the gravamen of the offense of robbery
is the violent nature of the taking.”); Robinson v. State, 692
So.2d 883, 886 (Fla. 1997) (“force or violence” under Florida
robbery statute requires “more than the force necessary to
remove the property from the person”); People v. Patton, 389
N.E.2d 1174, 1177 (Ill. 1979) (“[W]here an article is taken . .
. without any sensible or material violence to the person . . .
the offense will be held to be theft from the person rather than
robbery.”), other states, such as Massachusetts and Maine, have
11 adopted robbery statutes that do not require the use of violent
force. See Raymond v. State, 467 A.2d 161, 164-65 (Me. 1983)
(“any physical force,” with the intent to commit theft, is
sufficient to constitute robbery); Commonwealth v. Jones, 283
N.E.2d 840, 843 (Mass. 1972) (departing from “majority
jurisdiction rule” at the time in holding that only “enough
force to make the victim aware” of the theft is required to
constitute robbery); see also Walton v. State, 218 N.W.2d 309,
312-13 (Wisc. 1974)(“Although actual force . . . implies
personal violence, the degree of force used is immaterial, so
long as it is sufficient to compel the victim to part with his
property.”); State v. Sawyer, 29 S.E.2d 34 (N.C. 1944)(degree
of force used is immaterial, so long as sufficient to compel
victim to part with property); Maxwell v. Commonwealth, 183 S.E.
452, 454 (Va. 1936)(Virginia common law robbery requires only
“slight” degree of force). Thus, convictions under some state
robbery statutes will be treated as violent felonies under the
ACCA whereas convictions under the other state statutes will
not. Compare Harris, 844 F.3d at 1271 (Colorado is an ACCA
predicate because Colorado Supreme Court “has emphasized that
robbery requires a violent taking consistent with the common
law), and United States v. Doctor, 842 F.3d 306, 312 (4th Cir.
2016)(South Carolina robbery requiring “violence or putting in
12 fear” qualifies as ACCA predicate where no state court cases
indicated de minimis force could be sufficient to satisfy
violence under the statute), with United States v. Gardner, 823
F.3d 793, 803 (4th Cir. 2016) (North Carolina common law robbery
not an ACCA predicate because “even de minimis contact can
constitute the ‘violence’ necessary” for a conviction), and
Stewart v. United States, 191 F. Supp. 3d 923, 932 (E.D. Wisc.
2016)(Wisconsin robbery not an ACCA predicate because it
“requires only minimal force,” thus abandoning the common law
definition).
In State v. Goodrum, 123 N.H. 77 (1983) the New Hampshire
Supreme Court hewed to a version of the common law approach.
The victim in Goodrum was a thirteen-year-old paperboy who the
defendant deprived of $22.56 after knocking him from the curb
onto the street. Id. at 78. The defendant argued that his
criminal act did not qualify as a robbery under § 636:1 because
he did not use “physical force” on the victim. Id. at 79. In
affirming the defendant’s conviction, the Supreme Court noted
that the trial court “properly gave the jury the option of
convicting the defendant of mere theft if they did not conclude
that an unarmed robbery occurred.” Id. at 78. It then praised
the trial court for giving the jury two examples to explain the
difference between robbery and theft. The first described a
13 case in which a victim was “shoved,” which would support a
robbery conviction, and the second involved a theft in which the
victim was “merely bumped,” which would only support a
conviction for theft. Id. The court then reasoned that the
evidence was sufficient to sustain the defendant’s conviction
for robbery because a jury reasonably could have found from the
evidence that “the victim ended up being forcibly moved from the
sidewalk falling into the street.” Id. at 79. In
distinguishing between a mere bump, which could not support a
robbery conviction, from a shove, which could, the Goodrum court
thus construed the New Hampshire robbery statute to require more
force than mere touching to support a conviction.4
4 Any doubt as to Goodrum’s construction of § 636:1’s force element is dispelled by the court’s citation to Illinois law, which has been unequivocal in its continued allegiance to common law robbery. See Patton, 289 N.E.2d at 1175-76. Prior to reaching its conclusion, the Goodrum court first looked to the Illinois Supreme Court’s construction of its own state’s robbery statute, which the court noted was “similar” to § 636:1. See Goodrum, 123 N.H. at 78. In so doing, the court cited two Illinois cases to illustrate the degree of force that delineates the boundary between theft and robbery under Illinois law. See id. The court noted that where grabbing a purse from the victim’s fingertips, without more, is insufficient force to constitute a robbery, see Patton, 389 N.E.2d at 1177, grabbing a purse from a victim’s hand “while pushing her into a garage” is sufficient. See People v. Sherman, 409 N.E.2d 486, 489 (Ill. App. Ct. 1980), vacated on other grounds, 428 N.E.2d 1186 (1981). The court then used that illustration to support its own construction of § 636:1. Thus, the “push” or “shove,” as discussed, constitutes the force sufficient to elevate theft to robbery and is therefore the minimum conduct criminalized. 14 Boulanger nevertheless argues that a robbery conviction
under § 636:1 can no longer be considered a violent felony under
the ACCA in light of the First Circuit’s decisions in Mulkern,
which held that robbery under Maine law is not a violent felony,
854 F.3d 87, and the Ninth Circuit’s decision in Parnell, which
reached a similar conclusion with respect to the Massachusetts
robbery statute, 818 F.3d 974.5 I reject this argument because
it fails to account for the fact that the New Hampshire robbery
statute is substantially narrower in scope than its Maine and
Massachusetts counterparts due to the greater degree of force
required to commit the crime under New Hampshire law. The
statutes at issue in Mulkern and Parnell, as construed by their
states’ highest courts, reflect a departure from common law
robbery in that they encompass takings accomplished by use of de
minimis force. See Starks, 861 F.3d at 319 (Massachusetts
robbery “depart[s] from more common rule” in requiring only
force sufficient to render the victim aware of the taking);
Mulkern, 854 F.3d at 93-94 (Maine robbery requires “any physical
force”); Parnell, 818 F.3d at 978-79) (noting that
Massachusetts, by its own admission, has declined to follow the
5 After briefing in this case was completed, the First Circuit followed the Ninth Circuit in concluding that a robbery conviction under Massachusetts law cannot be considered a violent felony in Starks, 861 F.3d at 315. 15 “majority rule” that mere snatching does not involve sufficient
force to constitute robbery); see also 3 Wayne R. LaFave,
Substantive Criminal Law § 20.3(d) n.48 (2d ed. & 2015 Update)
(citing cases representative of majority and minority views with
respect to “purse snatching” cases). By contrast, § 636:1, as
construed in Goodrum, endorses the traditional view that robbery
requires significantly greater force. See Goodrum, 123 N.H. at
73; Patton, 389 N.E.2d at 1175-76 (discussing “sufficient
violence” under common law approach); see also Starks, 861 F.3d
at 319 (the “more common rule” is that “robbery requires some
resistance by or injury to the victim.”); Harris, 844 F.3d at
1267-68 (discussing distinction between state robbery statutes
committed to common law definition of robbery and those that
have departed therefrom); Stewart, 191 F. Supp. 3d at 932
(same). Accordingly, neither Mulkern nor Parnell support
Boulanger’s argument.
In concluding that New Hampshire follows a version of the
common law approach to robbery, I recognize that the relevant
statutory language does not definitively require that result. I
also understand that while Goodrum holds that a shove is
sufficient to support a robbery conviction, it merely suggests
that a bump will not suffice, without specifying whether there
is any middle ground between the two examples that will support
16 a robbery conviction. Ordinarily, the “venerable rule of lenity”
might be invoked in such circumstances to protect a defendant
from a lack of legislative clarity. See United States v.
R.L.C., 503 U.S. 291, 305 (1992). For good reasons, however,
the Supreme Court has instructed courts to refrain from
exercising “legal imagination” when attempting to determine the
least serious conduct criminalized by state statutes. See
Moncrieffe, 569 U.S. at 190. After all, while a broad reading
of robbery under New Hampshire law might benefit defendants
facing an ACCA enhancement under federal law, it may well hurt
state court defendants who might be able to escape a robbery
conviction under a narrower reading of the statute. Here,
Goodrum provides the strongest signal as to the force required
to support a New Hampshire robbery conviction and the signal
sent suggests that robbery requires force comparable to a shove.
2. The ACCA
Having determined that the minimal “physical force”
required to commit a robbery under § 636:1 is akin to a shove
rather than a mere bump, it requires little effort to also
conclude that a New Hampshire robbery conviction qualifies as a
violent felony under the ACCA because a shove is, in the words
of the Supreme Court, “capable of causing physical pain or
injury.” See Johnson I, 559 U.S. at 140; United States v.
17 Castleman, 134 S. Ct. 1405, 1417, 1421-22 (2014) (Scalia, J.,
concurring in part and concurring in judgment) (rejecting
argument that “physical force” requires force capable of causing
“serious bodily injury” rather than “any pain or bodily injury”
beyond a mere offensive touching, such as “hitting, slapping,
shoving, grabbing, pinching, biting and hair pulling.”); see
also, e.g., United States v. Jennings, 860 F.3d 450, 457 (7th
Cir. 2017) (“Any number of physical acts may cause physical pain
[and] any number of forceful acts beyond simple touching may in
context suffice to inflict bodily harm upon a victim (or instill
fear of such harm).”); Harris, 844 F.3d at 1265-66 (accord);
Robinett v. United States, No. 16-00155-CV-W, 2016 WL 2745883,
at *3 (W.D. Mo. May 11, 2016) (“Shoving certainly meets the
definition of physical force in Johnson I as it is capable of
causing physical injury or pain.”).
IV. CONCLUSION
In sum, New Hampshire robbery, as defined in § 636:1 and
subsequently construed by the New Hampshire Supreme Court, is
categorically a violent felony under the ACCA because it ”has as
an element the use, attempted use, or threatened use of physical
[violent] force against the person of another.” New Hampshire
armed robbery, defined under the same section, is also a violent
18 felony, because it requires the use or threatened use of the
same force required by robbery, its lesser-included offense.
Because Boulanger, at the time of sentencing, had three or more
prior convictions for New Hampshire robbery and armed robbery,
he was properly sentenced as an armed career criminal.
Accordingly, I deny his motion for relief under § 2255. See
Doc. No. 1-1. Because reasonable jurists can disagree on this
issue, however, I grant Boulanger a certificate of appealability
as to whether he was properly subjected to the ACCA’s sentencing
enhancement.6 See 28 U.S.C. § 2253(c)(2); R. Governing Sec. 2255
Proc. 11; First Cir. LR 22.0.
The clerk of court shall enter judgment and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge December 21, 2017
cc: Seth R. Aframe, Esq. Jonathan R. Saxe, Esq.
6 I previously granted Boulanger a certificate of appealability with respect to the issue I addressed in Kucinski v. United States, 2016 DNH 163. Accordingly, Boulanger is free to appeal either or both issues.