Torruella, Lynch, and Barron, Circuit Judges.
petition for rehearing is denied.
Circuit Judge, dissenting from the denial of panel rehearing.
concurred in the judgment reached by the panel in United
States v. Faust, 853 F.3d 39 (1st Cir.
2017). The panel in Faust held that the
Massachusetts offense of assault and battery on a police
officer ("ABPO") is divisible and that its
intentional form does not count as a "violent
felony" under the Armed Career Criminal Act
("ACCA"), which mandates a minimum of 15 years'
imprisonment for "a person who violates [18 U.S.C.
§ 922(g)] and has three previous convictions . . . for a
violent felony or a serious drug offense, or both." 18
U.S.C. § 924(e)(1); see Faust, 853 F.3d at 58.
In the course of its analysis, the panel opinion suggested --
without deciding -- that a sentencing court may be limited to
consulting "the law . . . at the time of [a
defendant's] conviction" when determining whether
that conviction counts as a predicate offense for the ACCA
sentencing enhancement. Faust, 853 F.3d at 57
(emphasis added). The government has petitioned for panel
rehearing, seeking clarification on whether a court
conducting the predicate-offense analysis is confined to
considering only those precedents that existed at the time of
the defendant's prior conviction. This is an important
question to which the panel should devote more attention. I
would grant the government's petition.
the Supreme Court's decision in McNeill
v. United States, 563 U.S. 816 (2011), the
Faust panel opinion stated "that when applying
the ACCA[, ] the task for the sentencing court is to
determine the defendant's 'previous conviction'
and '[t]he only way to answer this backward-looking
question is to consult the law that applied at the time of
that conviction.'" Faust, 853 F.3d at 57
(second alteration in original) (quoting McNeill,
563 U.S. at 820). Faust further observed that in
McNeill, a unanimous Court "pointed to its
previous ACCA cases, which [had] looked to the versions of
state law that were current at the time of the
defendant's convictions, not at the time of the
Court's decision." Id. (citing
McNeill, 563 U.S. at 821-22). In light of
McNeill, the Faust panel expressed concern
about whether we could employ, in the ACCA context, the
"informed prophecy" approach that this circuit set
forth in United States v. Tavares,
a Sentencing Guidelines case. See Tavares, 843 F.3d
1, 14-17 (1st Cir. 2016) (analyzing whether the Massachusetts
offense of assault and battery with a dangerous weapon is a
"crime of violence" under the Sentencing Guidelines
and noting that, when a state's highest court has not
spoken on an issue of state law, we must predict how that
court would rule).
government's petition notes, however, McNeill
involved a state statute that had been legislatively
rewritten. In the period between 1991 and 1994, during which
the defendant in that case racked up six North Carolina
drug-trafficking convictions, each of the relevant crimes
carried a ten-year maximum sentence, thus satisfying
ACCA's definition of a "serious drug offense."
McNeill, 563 U.S. at 818; see also 18
U.S.C. § 924(e)(2)(A)(ii) (defining "serious drug
offense" as "an offense under State law, involving
. . . a controlled substance . . . for which a maximum term
of imprisonment of ten years or more is prescribed by
law"). As of October 1, 1994, the North Carolina
legislature reduced the maximum sentence for one of the
crimes to 38 months and for another of the crimes to 30
months. McNeill, 563 U.S. at 818. Under those
circumstances, the Supreme Court held that the district
court, at the defendant's federal sentencing, had
properly consulted the version of state law that was in
effect at the time of the defendant's state convictions,
rather than the version in effect following those
convictions. Id. at 820-24.
far from clear whether McNeill should govern the
analysis in a case like Faust, in which the text of
the Massachusetts ABPO statute remains unchanged and only
judicial interpretations of that statute have developed over
time. Cf. DIRECTV, Inc. v.
Imburgia, 136 S.Ct. 463, 469 (2015)
("[J]udicial construction of a statute ordinarily
applies retroactively." (citing Rivers
v. Roadway Express, Inc., 511 U.S. 298,
312-313 (1994))). Indeed, with ACCA's enactment, Congress
intended to affect federal sentencing at the time of a
defendant's federal conviction, not at the time of his
prior predicate state convictions. Given this purpose behind
ACCA, it is at least sensible to think that the predicate
status of a state conviction is meant to be determined with
reference to the law existing at the time of the
defendant's § 922(g) federal sentencing.
Supreme Court has yet to squarely address this question. In
the meantime, the government argues that this aspect of
Faust, if taken as law, will further complicate
federal sentencing law: sentencing courts may restrict their
consideration to only the elements of the offense as they
were understood at the time of the defendant's state
conviction. This risks turning ACCA's divisibility
inquiry, the government says, "into an archeological dig
aimed at figuring out how courts construed the elements in
the past and what [jury] instructions may have been given at
a particular moment in time." This matter strikes me as
sufficiently important to warrant rehearing the case, so that
we may further clarify our views.
prior concurring opinion in Faust, I made the point
that issues like this one were not necessary to the outcome
of the case. See Faust, 853 F.3d at 60-61 (Lynch,
J., concurring). Nonetheless, in light of the
government's reasonable concerns about the potential