United States v. Blodgett

• Court: Court of Appeals for the First Circuit
• Decided: November 10, 1997
• Docket: 97-1299
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 97-1299



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  PAUL A. BLODGETT,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                          and Bownes, Senior Circuit Judge.
                                      ____________________



                                 ____________________



            Jane Elizabeth Lee for appellant.
            __________________

            Margaret  D. McGaughey,  Assistant  United States  Attorney,  with
            ______________________

        whom Richard W.  Murphy, Assistant United States Attorney,  and Jay P.
             __________________                                         ______

        McCloskey, United States Attorney, were on brief for appellee.
        _________


____________________



                                   November 7, 1997

                                 ____________________

                      STAHL, Circuit Judge.  Appellant Paul  A. Blodgett,
                      STAHL, Circuit Judge.
                             _____________



            convicted and  sentenced on  two counts of  being a  felon in



possession of a  firearm, see 18 U.S.C.    922(g)(1), appeals
                                      ___



            the  district  court's  decision  to   enhance  his  sentence



            pursuant to the  Armed Career Criminal  Act ("ACCA"), see  18
                                                                  ___



            U.S.C.    924(e).   Specifically, Blodgett disputes  that his



            prior criminal record  reflects the three  predicate offenses



            necessary  for an  ACCA enhancement.   Finding  no  error, we



            affirm.



                           Background and Prior Proceedings
                           Background and Prior Proceedings



                      On May 9, 1996, police in Old Orchard Beach, Maine,



            arrested  Blodgett after a  high-speed automobile pursuit and



            subsequent  foot chase.   The  police  found Blodgett  hiding



            under  a  blanket,   holding  a  loaded  and   half-cocked  9



            millimeter  handgun.   The government  charged  Blodgett with



            four   weapons  related  counts,  two  pertaining  to  the  9



            millimeter  handgun and two pertaining  to a 12 gauge shotgun



            subsequently  found  in  Blodgett's car.    A  jury convicted



            Blodgett on  the counts relating to the 9 millimeter handgun.


The  district court  imposed a 293  month sentence.



            The court based  its sentence in part on  its conclusion that



            Blodgett's  criminal   history  triggered   the  fifteen-year



            mandatory  minimum sentence provided  in the ACCA.   Although



            Blodgett had eight  juvenile and  nineteen adult  convictions



            that   produced  no  criminal   history  points,   the  court



            determined  that Blodgett  had  five other  convictions which


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supplied  the predicate  necessary for  an ACCA  enhancement.



            Blodgett conceded two  of the five convictions,  but disputed



            that  any  of  the  remaining  three,  a  1984  Massachusetts



            conviction for breaking and entering, a 1983 Maine conviction



            for  reckless conduct  with  a dangerous  weapon, and  a 1987



            Maine  conviction  for  burglary,  should  count  toward  the



            enhancement.   Blodgett's challenge  to the  district court's



            ACCA enhancement forms the basis of this appeal.



                                      Discussion
                                      Discussion



                      "Whether a  conviction  for a  particular  type  of



            crime  qualifies as  a predicate  offense  presents a  purely



            legal question, sparking  de novo review."   United States v.
                                      __ ____            _____________



            Winter,  22  F.3d  15,  18 (1st  Cir.  1994)  (citing  United
            ______                                                 ______



            States v. DeJesus, 984 F.2d 21,  23 n.4 (1st Cir. 1993)); see
            ______    _______                                         ___



            United  States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992)).  Our
            ______________    _____



            de novo review leads us to conclude that at least one  of the
            __ ____



            convictions  Blodgett  challenges,   the  1984  Massachusetts



            conviction for breaking  and entering, serves as  a predicate



            offense for purposes  of the ACCA enhancement.   Accordingly,



            we affirm.



                      The  ACCA provides that anyone convicted as a felon



            in possession  of a firearm  who has three  previous "violent



            felony" or "serious drug" convictions will receive a fifteen-



            year mandatory minimum sentence.  18 U.S.C.   924(e)(1).  The



            ACCA defines  "violent felony"  as "any  crime punishable  by


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imprisonment for a term exceeding one year" that reflects any



            of  several  enumerated  violent  attributes.1   18  U.S.C.  



            924(e)(2).   Certain crimes, however, do not  fall within the



            statutory definition  of a "crime  punishable by imprisonment



            for  a term  exceeding one  year."   Such crimes  include any



            offense that a  state classifies as  a misdemeanor and  which



            carries a maximum penalty of two years or less, see 18 U.S.C.
                                                            ___



              921(a)(20)(B), and  any offense for which a  person has had



            his civil rights restored, unless  that restoration expressly



            provides  that the person may not ship, transport, possess or



            receive firearms, see 18 U.S.C.   921(a)(20).
                              ___



                      In  1984, Blodgett  was convicted for  breaking and



            entering  and sentenced  to 18  months in  the state  prison.



            Blodgett now  claims that the  offense does not  constitute a



            felony, and, even if  it does, that he never lost  one of his



            civil rights and had the  others restored subsequent to  that



                                
            ____________________



            1.  Specifically,  a violent felony is a "crime punishable by

            imprisonment for a term exceeding one year" that:



                           (i) has as an element the  use,

                           attempted use or threatened use

                           of force against  the person of

                           another; or



                           (ii) is  burglary,  arson,   or

                           extortion, involves the  use of

                           explosives,     or    otherwise

                           involves conduct that  presents

                           a  serious  potential  risk  of

                           physical injury to another. . .

                           . 



            18 U.S.C.   924(e)(2).  



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                                          5



conviction and prior to his  most recent offense.  Neither of



            Blodgett's arguments is availing.  



                      Contrary   to   Blodgett's  assertion,   the   1984



            Massachusetts conviction clearly  falls within the definition



            of  a "crime punishable by imprisonment  for a term exceeding



            one year."   18 U.S.C.    921(a)(20).  Massachusetts  defines



            "felony" as "[a] crime punishable by death or imprisonment in



            the state  prison. .  . ."   Mass.  Gen.  Laws ch.  274,    1



            (noting  that  all  other  crimes  are  misdemeanors).    The



            breaking and entering statute that underlies  Blodgett's 1984



            Massachusetts conviction provides for a maximum punishment of



            twenty years  imprisonment.  See  Mass. Gen. Laws ch.  266,  
                                         ___



            16.    In  other words,  Massachusetts  classifies Blodgett's



            conviction as a felony, and, even if it  did not, the maximum



            sentence Blodgett could have  received removes his conviction



            from the exception of   921(a)(20)(B).   See United States v.
                                                     ___ _____________



            Indelicato, 97 F.3d 627, 628 n.1 (1st Cir. 1996) (considering
            __________



            the  maximum  statutorily authorized  punishment  rather than



            actual sentence for  purposes of 18 U.S.C.    921(a)(20)(B)),



            cert. denied, 117 S. Ct. 1013 (1997).
            _____ ______



                      Blodgett insists  that even if the  conviction does



            constitute a felony, Massachusetts  restored his civil rights



            which precludes the  conviction from counting toward  an ACCA



            enhancement.  See 18 U.S.C.    921(a)(20).  "In this circuit,
                          ___



            the  civil  rights  that  must  be  restored to  trigger  the


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exception are the rights to  vote, hold public office, and to



            serve on a jury."  United  States v. Estrella, 104 F.3d 3,  6
                               ______________    ________



            (1st  Cir.  1997).   We  consider civil  rights  restored for



            purposes  of   921(a)(20) whether by automatic application of



            law or by  affirmative,  executive act.  See United States v.
                                                     ___ _____________



            Caron, 77 F.3d 1,  4 (1st Cir. 1996)  (en banc).  As  we have
            _____



            noted, a convicted  felon in Massachusetts retains  the right



            to  vote, loses  the  right  to hold  public  office for  the



            duration of  any sentence, and loses the  right to serve on a



            jury for seven  years after conviction.   See id. at 2.   The
                                                      ___ ___



            government does  not dispute that  Massachusetts has restored



            Blodgett's core civil rights.



                      Blodgett, however, is not  home free.   Restoration



            of civil rights removes the conviction from the realm of ACCA



            predicate  offenses "unless  . .  .  such restoration  . .  .



            expressly provides that  the person may not  ship, transport,



            possess, or receive  firearms."  18 U.S.C.    921(a)(20).  In



            United States  v. Estrella, 104  F.3d 3, 8 (1st  Cir.), cert.
            _____________     ________                              _____



            denied, 117 S. Ct. 2494 (1997), we held that the restrictions
            ______



            Massachusetts  imposes on  a felon's  right  to own  firearms



            trigger the "unless" clause in   921(a)(20).  Felons desiring



            to own firearms in Massachusetts must have been released from



            custody for  five  years,  and  then must  obtain  a  firearm



            identification card.  See id. at 7.  A firearm identification
                                  ___ ___



            card permits a felon to possess a handgun in his residence or


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place of business  and to possess a rifle  anywhere.  See id.
                                                                  ___ ___



            Notably, a  felon may  not possess a  handgun outside  of his



            residence or  place of  business, nor sell,  rent or  lease a



            firearm to  another person.   See  id.   Estrella, therefore,
                                          ___  ___   ________



            precludes Blodgett's argument.  



                      Blodgett   points   out   that  Estrella determined
                                                      ________



            whether  such a  Massachusetts conviction  could  serve as  a



            felony supporting  a conviction  under the  federal felon  in



            possession of a  firearm statute.  See 18  U.S.C.   922(g)(1)
                                               ___



            (providing   criminal  penalties   for  felons   who  possess



            firearms).  He  maintains that "[t]here are  reasons why this



            Court  might  choose   to  interpret  Massachusetts   law  as



            preserving the federal ban on  handgun possession by a felon,



            and yet not interpret Massachusetts law as allowing  a severe



            enhancement of defendant's  sentence where defendant's  civil



            rights  have been  restored."   Blodgett  does not  enumerate



            these reasons, but generally  seems to argue for a  different



            interpretation of Massachusetts law depending on whether  the



            government  seeks to  use the  conviction  for purposes  of  



            922(g) or   921(a)(20), and, therefore,   924(e).



                      In United States  v. Alston, 112  F.3d 32, 37  (1st
                         _____________     ______



            Cir. 1997), we  rejected the precise argument  Blodgett makes



            in  this  appeal.   The  defendant  in  Alston challenged the
                                                    ______



            inclusion  of a prior Massachusetts conviction as a predicate



            offense for ACCA purposes because  his civil rights had  been


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restored.   112  F.3d at  37.   We noted  that "Massachusetts



            materially restricts an ex-felon's right to carry and traffic



            in firearms regardless of the passage of time," id., and that
                                                            ___



            such  restrictions  trigger  the  "unless"  exception  to    



            921(a)(20), see id. at 38  (citing Estrella, 104 F.3d  at 8).
                        ___ ___                ________



            On that basis  we affirmed the enhancement of the defendant's



            sentence  pursuant to  the ACCA.    See id.; see also  United
                                                ___ ___  ___ ____  ______



            States  v. Palazzi,  115  F.3d  906,  908  (11th  Cir.  1997)
            ______     _______



            (adopting  Estrella's  interpretation  of  Massachusetts  law
                       ________



            under  the "unless" clause  of   921(a)(20)  and affirming an



            ACCA enhancement on that basis).  We see no reason to deviate



            from  Alston in this  case.  We  therefore conclude  that the
                  ______



            district   court   properly    considered   Blodgett's   1984



            Massachusetts  conviction  as  a predicate  offense  for  a  



            924(e) enhancement.



                                      Conclusion
                                      Conclusion



                      Blodgett concedes that two of his prior convictions



            constitute  predicate offenses,  and we  find  that his  1984



            Massachusetts   conviction   for    breaking   and   entering



            constitutes the  third predicate offense for ACCA enhancement



            purposes.  We need not consider the remaining two  challenged



            convictions.  See  18 U.S.C.   924(e)  (requiring three prior
                          ___



            violent felony convictions to trigger enhancement).    



                      Affirmed.
                      Affirmed.


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Bownes,  Senior Circuit  Judge,  concurring in  the
                      Bownes,  Senior Circuit  Judge,  concurring in  the
                      ___________________________________________________



            judgment:  I write separately  because I am concerned that we
            judgment
            ________



            have significantly expanded a prior precedent,  United States
                                                            _____________



            v.  Estrella, 104  F.3d  3 (1st  Cir.  1997), without  giving
                ________



            serious  consideration to the difference between Estrella and
                                                             ________



            the circumstances attending the present case.  



                      The defendant  in Estrella appealed  his conviction
                                        ________



            under the  federal felon-in-possession  statute, 18  U.S.C.  



            922(g)(1),  arguing   that  a   prior  Massachusetts   felony



            conviction  could not serve  as a predicate  felony under the



            federal statute because his civil rights had been restored by



            operation  of Massachusetts  law.    This  court  held  that,



            notwithstanding the retention of a  felon's right to vote and



            the restoration  of his rights  to hold public office  and to



            serve on a  jury, the restrictions Massachusetts imposes on a



            convicted  felon's right to own firearms trigger the "unless"



            clause  in  18  U.S.C.     921(a)(20),  which  nullifies  the



            ordinary rule that a civil rights restoration will remove the



            conviction  from  consideration as  a  predicate offense  for



            purposes  of the  federal felon-in-possession  statute.   See
                                                                      ___



            Estrella, 104 F.3d at 8.   Estrella's holding went no further
            ________                   ________



            than the context  of that case:   it merely permitted such  a



            prior conviction to serve as  a predicate felony to support a



            federal  conviction  under the  felon-in-possession  statute.



            Id.  
            ___


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In  the present  case,  the  majority applies  this



            conclusion  to an  entirely different  context:   to  enhance



            Blodgett's  sentence  under  the  Armed  Career Criminal  Act



            (ACCA).   As  the  opinion  notes,  Blodgett  maintains  that



            "[t]here are reasons why this Court might choose to interpret



            Massachusetts  law as preserving  the federal ban  on handgun



            possession  by a felon,  and yet not  interpret Massachusetts



            law  as allowing a severe enhancement of defendant's sentence



            where defendant's civil rights have been restored."  Ante, at



            7.   Even if Massachusetts'  restrictions on the right  of an



            individual, previously  convicted of a  Massachusetts felony,



            to  own firearms  should have  a bearing  on the  question of



            whether to  criminalize federally an  individual's possession



            of  a firearm,  it is  not at  all clear  that Massachusetts'



            restrictions have any effect upon the very different question



            of whether that  individual's Massachusetts conviction should



            result  in an  enhanced sentence  upon conviction of  a later



            federal  offense.  Accordingly, before we expand the Estrella
                                                                 ________



            holding  from one  context to  the other,  I think  we should



            carefully consider whether such expansion is appropriate, and



            we should discuss our reasoning if we decide to go ahead with



            the expansion.



                      I do not  think we did this in  Alston.  The Alston
                                                      ______       ______



            decision focused almost exclusively on a completely different



            issue (whether the prosecution's significant alteration of  a


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gun  should have precluded  its being received  in evidence).



            Alston's  expansive  reading  of  Estrella   was  offered  in
            ______                            ________



            response to  the last of several also-ran  arguments that the



            court dealt with only very  briefly.  We conclusorily applied



            Estrella, noting simply that: 
            ________



                      In  Estrella,  we   found  these  limited
                          ________

                      [Massachusetts] restrictions  trigger the

                      above-quoted  'unless'  exception  to the

                      provision  relied   upon  by   Alston  as

                      restoring his civil rights.   18 U.S.C.  

                      921(a)(20).   Estrella was  decided after
                                    ________

                      Alston's   sentence   and   the  original

                      briefing [in  this court], but  his reply

                      brief  has no  effective  answer to  that

                      decision.



            Alston,  112 F.3d  at 38.   Thus,  far from  "reject[ing] the
            ______



            precise  argument  Blodgett  makes in  this  appeal,"  as the



            majority  asserts  ante  at 7,  Alston  never  addressed that
                               ____         ______



            argument.  The court in  Alston did not even acknowledge that
                                     ______



            it  was applying  the  Estrella  conclusion  to  a  different
                                   ________



            context  -- which  is Blodgett's argument  here --  much less



            provide any  reasoning for  such an expansion.   Nor  did the



            defendant  in Alston brief  the question of  whether Estrella
                          ______                                 ________



            should be applied in the sentence enhancement context.



                      In the present  case, in contrast, as  the majority



            acknowledges, Blodgett  does at  least raise  the issue  that



            Estrella on its face does not address the present context.  I
            ________



            do not  think we  should assert that  Estrella's holding  has
                                                  ________



            been significantly enlarged to  the sentencing context merely



            by  referring   to  Alston's   conclusion  (without   further
                                ______


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analysis)  and stating that we will not "deviate from Alston"
                                                                  ______



            here.  If we  are going to enshrine this expansion into solid



            precedent, we should  discuss its consistency with  the plain



            language  (first) and the context and legislative history (if



            the  plain language is not clear)  of the relevant provisions



            of the enhanced sentencing statute (ACCA).  



                      Nevertheless,  as  the   majority  notes,  although



            Blodgett  does direct our attention to the implicit expansion



            that  would  inhere in  our  application of  Estrella  to the
                                                         ________



            enhanced  sentencing context,  he has  not  provided us  with



            developed argumentation  explaining why such  expansion would



            be  inconsistent   with  legislative   intent  or   otherwise



            violative  of law.   It  is  a "settled  appellate rule  that



            issues  adverted to in a perfunctory manner, unaccompanied by



            some effort  at developed argumentation," are  deemed waived.



            Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d
            ____________________    ___________________________



            370, 375 (1st Cir. 1991).   For this reason, I concur in  the



            majority's judgment affirming the district court's sentence.


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