
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                                         -3-                                          3            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                                         -4-                                          4            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).                                           -5-                                          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                                         -6-                                          6            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                                         -7-                                          7            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                                         -8-                                          8            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.                                         -9-                                          9                      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.              ___                                         -10-                                          10                      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                                         -11-                                          11            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                                ______                                         -12-                                          12            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.                                         -13-                                          13
