United States Court of Appeals For the First Circuit
No. 19-1613
UNITED STATES OF AMERICA,
Appellee,
v.
JEROME CAPELTON, a/k/a ANTHONY COLEMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Barron, Circuit Judges.
Samia Hossain, Federal Public Defender Office, on brief for appellant. Donald C. Lockhart, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellee.
July 16, 2020 TORRUELLA, Circuit Judge. Defendant-Appellant
Jerome Capelton ("Capelton") challenges the district court's
determination on resentencing pursuant to the 2018 First Step Act
that he is a career offender under section 4B1.1 of the
U.S. Sentencing Guidelines (the "Guidelines"). In classifying
Capelton as a career offender, the court relied on two
Massachusetts drug convictions from 1992 and 1996, which Capelton
claims do not qualify as predicate "controlled substance
offense[s]" under the career-offender guideline. He argues that
the convictions implicitly include aiding and abetting liability
under Massachusetts law -- then called "joint venture"1 -- which
is broader in scope than generic aiding and abetting liability
and, consequently, there cannot be a categorical match between the
convictions and the definition of "controlled substance offense."
According to Capelton, at the time of his Massachusetts
convictions, a defendant could be convicted under the relevant
Massachusetts drug statute on a theory of joint venture by proving
knowledge of the crime alone, rather than by proving shared intent
with the principal to promote or facilitate the crime, as would be
required to be convicted as an aider and abettor of a generic
1 Massachusetts's "joint venture" theory of liability "finds its roots in the concept of accessorial or accomplice liability." Commonwealth v. Zanetti, 910 N.E.2d 869, 879 (Mass. 2009).
-2- "controlled substance offense." Because Capelton failed to
establish that the scope of joint venture liability under
Massachusetts law is any broader than under the generic standard,
we find no error in the district court's determination of his
career-offender status and affirm the sentence.
I. Background
On September 26, 2001, a jury convicted Capelton of one
count of conspiracy to possess with intent to distribute at least
fifty grams of cocaine base, in violation of 21 U.S.C. § 846, and
three counts of distribution and possession with intent to
distribute at least fifty grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1). The presentence investigation report
("PSR") issued after Capelton's conviction indicated that the
Guidelines' career-offender provisions, U.S.S.G. § 4B1.1, were
applicable because Capelton was over the age of eighteen, the
instant offenses involved a controlled substance violation, and
Capelton had several Massachusetts state felony convictions, at
least two of which were for either a crime of violence or a crime
involving an applicable controlled substance violation.2 With the
2 Section 4B1.1(a) of the Guidelines provides that a defendant qualifies as a career offender if
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a
-3- career-offender guideline governing, Capelton's total offense
level was thirty-seven3 and his criminal history category was VI,
which yielded a guideline sentencing range ("GSR") of 360 months'
to life imprisonment.
The district court adopted the PSR's recommendations,
and after denying Capelton's request for a downward departure,4 it
imposed sentences of 360 months of imprisonment followed by a five-
year term of supervised release on each count, to be served
concurrently. On direct appeal, Capelton raised several trial
errors and challenged the district court's sentencing
determination denying his request for a downward departure from
the Guidelines. See United States v. Capelton, 350 F.3d 231 (1st
Cir. 2003). We affirmed his conviction and sentence. See id. at
235. Subsequently, Capelton attempted to collaterally attack his
conviction and sentence on several occasions without success.5 See
controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 3 The PSR did not apply any other adjustments. 4 Capelton grounded his request for a downward variance on sections 4A1.3 (Departures Based on Inadequacy of Criminal History Category) and 5H1.6 (Family Ties and Responsibilities) of the Guidelines. 5 Some of Capelton's petitions included a challenge to his career- offender designation, albeit on grounds different than the one presented in his argument now before us. See Capelton v. United States, No. 15-cv-312-JL, 2016 WL 3102200, at *1 (D.N.H.
-4- Capelton v. United States, No. 15-cv-312-JL, 2016 WL 3102200, at
*1 (D.N.H. Jan. 5, 2016).
In August 2010, the Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372, was signed into law. As it pertains
to this appeal, the statute amended the Controlled Substances Act,
21 U.S.C. § 841(b)(1), by raising the quantity of crack cocaine
necessary to trigger both the ten-year statutory-minimum sentence
and statutory-maximum penalty of life imprisonment from fifty to
280 grams. See 21 U.S.C. § 841(b); Fair Sentencing Act of 2010,
Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372. These amendments
applied only to defendants who were sentenced on or after the Fair
Sentencing Act's effective date of August 3, 2010. See Dorsey v.
United States, 567 U.S. 260, 264 (2012). However, in December
2018, the First Step Act was enacted into law, allowing certain
defendants, like Capelton, who were convicted for crack cocaine
offenses under 21 U.S.C. § 841 prior to the enactment of the Fair
Sentencing Act, to seek a retroactive sentencing reduction. See
First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194,
5222.
In light of the First Step Act, on March 6, 2019, the
United States Probation Office ("Probation") issued a memorandum
Jan. 5, 2016).
-5- supplementing the PSR it had initially prepared for Capelton's
sentencing back in 2002. The memorandum explained that Capelton
still qualified as a career offender based on two prior
Massachusetts drug convictions: a 1992 conviction for possession
of a class B substance with intent to distribute, in violation of
Mass. Gen. Laws ch. 94C, § 32A(a), and a 1996 conviction for
distribution of a class B substance, in violation of Mass. Gen.
Laws ch. 94C, § 32A(b). However, because the statutory maximum
term of imprisonment was reduced to forty years from life,
Capelton's corresponding offense level was now thirty-four (down
from thirty-seven). According to the memorandum, with the career-
offender enhancement, Capelton's GSR was 262 to 327 months of
imprisonment, and without it, his GSR was 168 to 210 months of
imprisonment. Under either scenario, Capelton faced a supervised
release term of a minimum of four years.
Capelton sought relief under the First Step Act on
March 20, 2019. He requested to be resentenced under
section 404(b) of that Act and without the application of the
career-offender enhancement. Specifically, Capelton objected to
his continued designation as a career offender, arguing that the
two Massachusetts drug offenses identified in Probation's
memorandum did not qualify as predicate "controlled substance
offense[s]" under U.S.S.G. § 4B1.1 because, at the time of the
-6- offenses, generic aiding and abetting liability required proof of
an element -- shared intent -- that joint venture liability under
Massachusetts state law did not, which rendered the Massachusetts
offenses categorically overbroad. Because Capelton had already
served nearly nineteen years in prison, he requested a sentence of
time served. On the other hand, the Government recommended that
Capelton receive a sentence at the high end of the updated career-
offender GSR.
The district court held a resentencing hearing on
June 5, 2019. First, it acknowledged that Capelton's eligibility
for a reduced sentence following the passage of the First Step Act
was undisputed. It then turned to Capelton's career-offender
status. Capelton expanded on the argument presented in his motion
for relief, which he now also presses on appeal: that, under
Massachusetts law prior to the 2009 opinion of the Supreme Judicial
Court ("SJC") in Commonwealth v. Zanetti, 910 N.E.2d 869
(Mass. 2009), a person could be found guilty of aiding and abetting
a drug crime without necessarily having an intent to participate
in the crime if the person was present with knowledge that the
crime was being committed and willing to assist in the commission
of the crime. According to Capelton, because the generic controlled
substances offenses contemplated by the career-offender guideline
required that a person have the intent to commit the crime, his
-7- Massachusetts state offenses were broader in scope and therefore
a categorical mismatch with the guideline.
The district court questioned Capelton's argument
because it had difficulty understanding "how someone can
participate in possession of a drug with intent to distribute
without having any intent to participate in a crime involving an
intent to distribute." Ultimately, it rejected his theory as
"imaginative but unsound," concluding that there was no "realistic
probability that any jury would find an individual guilty of either
of [the two Massachusetts drug crimes for which Capelton was
convicted, even as an aider and abettor,] without finding beyond
a reasonable doubt that there [wa]s an intent to commit that
crime." Upholding Capelton's designation as a career offender,
the court adopted a GSR of 262 to 327 months of imprisonment. It
then granted a ten-month downward variance from the low end of the
GSR based on Capelton's "very difficult upbringing" and the family
support shown towards him. Accordingly, the court imposed a revised
sentence of 252 months of imprisonment and four years of supervised
release. Capelton then filed this appeal.6
6 Since filing the notice of appeal, Capelton was released from prison in December 2019 and began his term of supervised release. However, his supervised release was revoked two months later on February 12, 2020, because he violated three conditions of his term of supervision. Consequently, the court sentenced him to three months of imprisonment to be followed by forty-five months of supervised release. On April 10, 2020, due to the COVID-19
-8- II. Discussion
On appeal, Capelton disputes that his 1992 and 1996
Massachusetts convictions qualify as predicate "controlled
substance offense[s]" under U.S.S.G. § 4B1.2(b) for career
offender purposes. Specifically, Capelton avers that we should
apply the "categorical approach" in analyzing whether his
Massachusetts offenses fall within the career-offender guideline
because, at the time of those offenses, aiding and abetting
liability was indivisible from the Massachusetts substantive
offenses -- i.e., Massachusetts law did not require a specific
finding by the jury that it was convicting a defendant as a
principal or as a joint venturer. He further contends that in
1992 and 1996, Massachusetts joint venture liability was broader
than generic aiding and abetting liability and therefore the
Massachusetts offenses were not categorically "controlled
substance offense[s]." According to Capelton, when he was
convicted in 1992 and 1996, Massachusetts could convict a defendant
on a joint venture theory simply by proving a mens rea of knowledge
that another participant intended to commit a crime, rather than
pandemic and the short time remaining before Capelton's release, the court modified his sentence to time-served, ordered his release to home confinement, and amended the supervised release portion of the judgment to substitute a five-month period of home confinement in place of residential re-entry, but the other conditions of supervised release remained untouched.
-9- a mens rea of specific intent to promote or facilitate the crime,
as generic aiding and abetting requires. Consequently, Capelton
reasons that Massachusetts joint venture liability criminalized
more conduct than generic aiding and abetting liability and, thus,
his prior convictions were overbroad and cannot serve as predicates
for career offender purposes.
In response, the Government disputes that Massachusetts
joint venture liability is broader in scope than generic aiding
and abetting liability, arguing that Capelton misinterprets
Massachusetts case law, which does require proof of shared intent
in order to convict on a joint venture theory and thus does not
allow a conviction based on mere knowledge. The Government also
contends that we must uphold Capelton's conviction because, first,
he waived his challenge during the 2019 resentencing by endorsing
the sentence, and second, any error was harmless because Capelton
has already completed his term of imprisonment, and his term of
supervised release is mandated by statute.7
We need not resolve whether Capelton waived his
sentencing challenge because as we will explain, we reject his
7 The Government also suggests (in a footnote) that the district court was not authorized under the First Step Act to revisit Capelton's career-offender determination at resentencing, but we do not resolve this "antecedent statutory authority question here," nor does the Government ask us to, for we find other grounds to affirm Capelton's sentence.
-10- claim on the merits. See United States v. Llanos-Falero, 847 F.3d
29, 33 n.2 (1st Cir. 2017) (opting to bypass an appellate-waiver
argument to address the merits instead because the issues raised
by the appellant all failed); Yeboah-Sefah v. Ficco, 556 F.3d 53,
68 n.6 (1st Cir. 2009) (withholding resolution of a waiver dispute
because the petitioner's claim could be "easily reject[ed]" on the
merits). We hold that Capelton's Massachusetts convictions
qualify as "controlled substance offense[s]" and therefore
constitute valid predicate offenses under the relevant provision
of the career-offender guideline.
A.
We review whether a prior conviction qualifies as a
predicate offense under section 4B1.1 de novo. United States v.
Mohamed, 920 F.3d 94, 99 (1st Cir. 2019) (quoting United States v.
Davis, 873 F.3d 343, 345 (1st Cir. 2017); United States v. Almenas,
553 F.3d 27, 31 (1st Cir. 2009). To qualify as a career offender,
a defendant must have, among other requirements, "at least two
prior felony convictions of either a crime of violence or a
controlled substance offense." U.S.S.G. § 4B1.1(a). Capelton
concedes that he has two prior felony convictions but disputes
that they satisfy the Guidelines' definition of "controlled
-11- substance offense." For purposes of the career-offender guideline,
a "controlled substance offense" is defined as
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
Id. § 4B1.2(b). The Guidelines' application note 1 to § 4B1.2
specifies that the offense of aiding and abetting is included in
the definition of "controlled substance offense." Id. § 4B1.2
cmt. n.1; see also United States v. Benítez-Beltrán, 892 F.3d 462,
467 n.4 (1st Cir. 2018); cf. United States v. Lewis, No. 18-1916,
2020 WL 3249058, at *8 (1st Cir. June 16, 2020) (Torruella, J.,
and Thompson, J., concurring) (expressing "discomfort with the
practical effect of the deference to Application Note 1" regarding
inchoate offenses).
We apply the "categorical approach" set forth by the
Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), to
determine whether a prior offense qualifies as a "controlled
substance offense" under section 4B1.1. United States v.
García-Cartagena, 953 F.3d 14, 18 (1st Cir. 2020); see also
Benítez-Beltrán, 892 F.3d at 466 ("We use a 'categorical approach'
to determine whether the offense for which a defendant was
previously convicted matches an expressly enumerated offense under
-12- § 4B1.2(a)." (citing United States v. Castro-Vázquez, 802 F.3d 28,
35 (1st Cir. 2015))). Under this approach, we look only to the
elements of the offense, not to "'how a given defendant actually
perpetrated the crime,' to decide if the offense, as defined in
the statute, matches § 4B1.2's criteria" for a "controlled
substance offense." García-Cartagena, 953 F.3d at 18 (quoting
Mathis v. United States, 136 S. Ct. 2243, 2248, 2251-52 (2016));
see also Benítez-Beltrán, 892 F.3d at 466 ("[A] prior conviction
qualifies as one for a ['controlled substance offense'] so long as
the elements of the prior offense encompass no more conduct than
do the elements of the 'generic' version of an offense that the
guideline expressly enumerates." (citing Castro-Vázquez, 802 F.3d
at 35)).
B.
Based on an application of the categorical approach,
Capelton argues that the Massachusetts joint venture liability
standard in 1992 and 1996 (the years of his purported predicate
felony convictions) encompassed more conduct than the generic
definition of aiding and abetting, resulting in a categorical
mismatch. Capelton's argument relies on the following analytical
steps: (1) that aiding and abetting liability is implicit in every
Massachusetts criminal charge; (2) that the categorical approach
requires that we consider, in looking to the minimum conduct
-13- criminalized by a statute, the scope of aiding and abetting
liability; and (3) that the principal and accomplice theories of
guilt are indivisible from the substantive offense. We neither
accept nor reject any of those premises because, as the Government
proposes in its brief, we assume without deciding that they are
true; after all, the Government does not address them, and the
parties' dispute hinges on a comparison of the mens rea required
to prove joint venture liability in Massachusetts and generic
aiding and abetting liability at the time of Capelton's purported
predicate offenses in 1992 and 1996.
The parties generally agree that generic aiding and
abetting liability requires a shared intent with the principal and
that knowledge alone is insufficient to meet the mens rea
requirement.8 Therefore, for purposes of this appeal, we assume
8 Capelton adopts the generic aiding and abetting liability standard from the Ninth Circuit decision in United States v. Franklin, 904 F.3d 793, 799 (9th Cir. 2018), abrogated on other grounds by Shular v. United States, 140 S. Ct. 779 (2020). On the other hand, the Government relies primarily on Rosemond v. United States, 572 U.S. 65, 70-71 (2014), which sets forth the federal aiding and abetting liability standard (not necessarily the generic one). But both approaches require shared intent. Compare Franklin, 904 F.3d at 799 ("[G]eneral principles of accomplice liability establish that '[a] person is an "accomplice" of another in committing a crime if, with the intent to promote or facilitate the commission of the crime,' he commits certain acts; 'a person's . . . knowledge that a crime is being committed or is about to be committed, without more, does not make him an accomplice.'" (second and third alterations in original) (quoting 1 Wharton's Criminal Law § 38 (15th ed.))), with Rosemond, 572 U.S. at 71 ("[A] person is liable under [the federal aiding and
-14- that the generic aiding and abetting liability standard proposed
by the parties is correct. See United States v. Boleyn, 929 F.3d
932, 940 (8th Cir. 2019) (adopting this approach), cert. denied,
140 S. Ct. 1138 (2020). The narrower issue before us, then, is to
determine the mens rea that was required to prove joint venture
liability in Massachusetts in 1992 and 1996. Capelton argues that
only "mere knowledge" was required, while the Government contends
that Massachusetts law required more than that because shared
intent had to be shown.
We side with the Government. We have been warned that
in applying the categorical approach, the "focus on the minimum
conduct criminalized by the state statute is not an invitation to
apply 'legal imagination' to the state offense; there must be 'a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime.'" Moncrieffe v. Holder, 569 U.S.
184, 191 (2013) (quoting Gonzáles v. Dueñas-Álvarez, 549 U.S. 183,
193 (2007)). As we explain next, Capelton has not persuaded us
that, at the time of his Massachusetts convictions in 1992 and
1996, Massachusetts applied its aiding and abetting liability
abetting statute, 18 U.S.C. § 2,] if (and only if) he (1) takes an affirmative act in furtherance of th[e] offense, (2) with the intent of facilitating the offense's commission.").
-15- standard to encompass more conduct than the generic form of that
standard. Put another way, Capelton has not shown that a jury in
Massachusetts could convict a defendant on a joint venture theory
of guilt without finding that the defendant had a shared intent
with the principal to commit the crime. Accordingly, we reject
Capelton's contention that his prior convictions are overbroad.
C.
In 1979, the SJC articulated the theory of joint venture
liability in Commonwealth v. Soares, stating that to convict a
defendant on such theory, the prosecution had to show that the
defendant shared the intent required for the underlying crime with
the principal. See 387 N.E.2d 499, 506 (Mass. 1979) ("The theory
underlying joint enterprise is that one who aids, commands,
counsels, or encourages commission of a crime while sharing with
the principal the mental state required for the crime is guilty as
a principal."). Four years later, in Commonwealth v. Bianco, the
SJC articulated the Soares joint venture liability standard as a
three-part test, recognizing joint venture liability when a
defendant was "(1) present at the scene of the crime, (2) with
knowledge that another intends to commit the crime or with intent
to commit a crime, and (3) by agreement is willing and available
to help the other if necessary." 446 N.E.2d 1041, 1047
-16- (Mass. 1983) (citing Commonwealth v. Casale, 408 N.E.2d 841
(Mass. 1980), and Soares, 387 N.E.2d at 499).
The Bianco three-part test was the standard in place at
the time of Capelton's Massachusetts convictions. Capelton argues
that the SJC's use of the conjunctive word "or" in the second prong
of the Bianco test suggests that knowledge and intent were separate
elements of joint venture liability and, thus, a defendant could
be convicted under that theory "upon proof of mere knowledge that
another intended to commit the crime, without proof of specific
intent to commit the crime."
The Government persuasively argues that Capelton
erroneously isolates the second prong of the test when, in context,
the three prongs read together "plainly require intent." In
support, the Government explains that "[o]ne who is actually
present at the scene of an impending crime, and who has knowledge
that the principal intends to commit the crime, and who even has
a prior 'agreement' with the principal that he is 'willing and
available to help' . . . shares the intent of the principal." In
response, Capelton argues that only the second prong of the test
concerns the mens rea requirement, and that if the Government's
reasoning were correct, the "with intent to commit a crime" clause
of the second prong would be superfluous.
-17- It is hard to imagine a situation relevant to the drug
crimes at issue here (possession with intent to distribute and
distribution of a controlled substance) in which the combination
of the second prong -- "knowledge that another intends to commit
the crime" -- with the third prong -- the "agreement [to be]
willing and available to help the other [commit the crime] if
necessary" -- does not amount to having a shared intent with the
principal "to promote or facilitate the commission of the crime,"
as the parties agree generic aiding and abetting requires. And
while Capelton proposes that Bianco "did not include the shared
mental state language" from Soares, the SJC in Bianco rejected the
argument that the defendants in that case could be convicted on a
joint enterprise theory "because there was insufficient evidence
that they shared the mental state required of joint venturers,"
and cited Soares to support this conclusion. See Bianco, 446
N.E.2d at 1045 (emphasis added).
Capelton makes much of the post-Bianco case Zanetti, 910
N.E.2d 869, arguing that it changed the joint venture standard
articulated in Bianco by implementing a heightened mens rea
requirement of shared intent. According to Capelton, Soares's
shared mental state requirement that the SJC had eliminated in
Bianco in 1983 was not reintroduced until 2009 in Zanetti.
However, a close reading of Zanetti instead supports the
-18- Government's contention that, in 1992 and 1996, the Massachusetts
joint venture theory of liability required a showing of shared
intent.
In Zanetti, the SJC implemented procedural reforms to
the jury instructions in an attempt to clarify the law on joint
venture. 910 N.E.2d at 871, 883. It recognized that Bianco's
definition of joint venture liability "ha[d] proven to be a source
of confusion to jurors and judges." Id. at 880-81. The confusion
arose from an outdated and "false distinction between a principal
and an accomplice" (or joint venturer) created by the language in
the model jury instructions. Id. at 881. The SJC explained that
at the time, the model jury instructions "encourage[d] judges to
instruct on the required elements of the charged offense, and then
separately instruct on joint venture liability, identifying the
three familiar elements [of the Bianco test]." Id. at 882.
Seeking to eliminate "the confusion and complexity" created by the
separate narration of the elements in the instructions, the SJC
reformulated the standard for joint venture liability by requiring
that the jury be instructed simply that "the defendant is guilty
if the Commonwealth has proved beyond a reasonable doubt that the
defendant knowingly participated in the commission of the crime
charged, alone or with others, with the intent required for that
offense." Id. at 883 (emphasis added).
-19- Contrary to Capelton's contention, there is no
indication in Zanetti that the SJC thought that Bianco had
eliminated the shared intent requirement from Soares, which it
then had to reintroduce in Zanetti as a requirement to prove joint
venture liability. Rather, it appears to us that the SJC was
concerned that, with the instructions for principal liability
being separated from the instructions for joint venture liability,
the jury would not understand that, "to find the defendant guilty
as a joint venturer, [it] must find that the Commonwealth ha[d]
proved both the elements of the offense and the defendant's knowing
participation in the offense." Id. at 882. The SJC also expressed
concern that, in cases where a lesser crime escalates into a more
serious crime, the severed jury instructions could confuse the
jury about whether a defendant needed to share the intent of the
principal in the initial crime and/or in the subsequent one. Id.
at 882 n.20.
Furthermore, the SJC expressly stated that the
reformulated joint venture standard was "hardly novel" and that
"it best reflect[ed] the spirit behind the common law as . . .
reflected in the aiding and abetting statute, which declares the
aider and abettor to be as culpable as the chief perpetrator of
the offense." Id. at 883 (citation omitted); see Mass. Gen. Laws
ch. 274, § 2. The SJC recognized that, "[a]t its core, joint
-20- venture criminal liability has two essential elements: that the
defendant knowingly participated in the commission of the crime
charged, and that the defendant had or shared the required criminal
intent." Zanetti, 910 N.E.2d at 883. Thus, the SJC expressed
that it was merely "[s]treamlining the [jury] instruction" for
accomplice liability, id., "hop[ing] to provide clearer guidance
to jurors and diminish the risk of juror confusion in cases where
two or more persons may have committed criminal acts," id. at 884.
The shift in language, the SJC clarified, "d[id] not enlarge or
diminish the scope of existing joint venture liability." Id.
In our view, the series of cases decided between Bianco
and Zanetti to which both Capelton and the Government cite also
tend to support the Government's position that the Commonwealth
had to prove shared intent in the wake of Bianco. See, e.g.,
Commonwealth v. Clemente, 893 N.E.2d 19, 51 (Mass. 2008)
(concluding that a joint venturer "must share the mental state of
the principal," and jury instructions that quoted the Bianco test
verbatim, "considered as a whole, explained that concept to the
jury"); Commonwealth v. Cannon, 869 N.E.2d 594, 600 (Mass. 2007)
(upholding jury instruction requiring proof of shared intent to be
convicted of the crime as a joint venturer); Commonwealth v.
Hernández, 790 N.E.2d 1083, 1087-88 (Mass. 2003) ("Under the joint
venture theory, for a trafficking conviction, the defendant need
-21- not have possessed the drugs, actually or constructively. He need
only have shared the intent of the principal to distribute."
(citations omitted)); Commonwealth v. Blake, 696 N.E.2d 929, 934
(Mass. 1998) (affirming conviction under a joint venture theory of
liability where sufficient evidence supported an inference that
the defendant "and the other shooters shared the intent to aid
each other and to engage in a shooting spree"); Commonwealth v.
Brooks, 664 N.E.2d 801, 804-05 (Mass. 1996) (reciting the Bianco
three-factor test, while requiring that defendant share the
shooters' intent to be convicted as a joint venturer); Commonwealth
v. Semedo, 665 N.E.2d 638, 641 (Mass. 1996) (noting that, to
sustain a conviction for joint venture, in addition to "knowledge
that another intended to commit a crime," the Commonwealth had to
show "that the defendant shared with the principal the mental state
required for the crime"); Commonwealth v. Cunningham, 543 N.E.2d
12, 20 (Mass. 1989) ("To sustain a conviction based on a joint
venture, the Commonwealth need only show that each defendant shared
the mental state required for the crime of which he was convicted,
and that he satisfied the other elements of the test for joint
venture.").
This leads us to conclude that Massachusetts required a
showing of shared intent to convict a defendant on a theory of
joint venture pre- and post-Zanetti, and importantly to this
-22- appeal, during the time period Capelton was convicted of his drug
offenses in Massachusetts. Thus, Capelton has not shown, as
required by Moncrieffe, that there is "a realistic probability"
that Massachusetts would have applied its drug statute at issue
here to conduct that fell outside the generic definition of aiding
and abetting, namely, where the joint venturer lacked the requisite
intent to distribute. See Moncrieffe, 569 U.S. at 191 (quoting
Dueñas-Álvarez, 549 U.S. at 193). Accordingly, we reject
Capelton's contention that his two prior state convictions are
overbroad and do not qualify as "controlled substance offense[s],"
and we hold that the district court correctly sentenced Capelton
under the career-offender guideline. Our conclusion makes it
unnecessary to reach the parties' harmless error arguments.
III. Conclusion
For the foregoing reasons, Capelton's sentence is
affirmed.
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