          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


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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.

            Affirmed.




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