                United States Court of Appeals
                                 For the First Circuit
                               ______________________________

No. 14-2292
                                UNITED STATES OFAMERICA,

                                             Appellee,

                                                  v.

                                          TODD FAUST,

                                    Defendant - Appellant.
                              _______________________________

                                                Before

                           Torruella, Lynch, and Barron, Circuit Judges.

                                 ___________________________

                                       ORDER OF COURT

                                     Entered:     July 19, 2017


       Appellee's petition for rehearing is denied.

        LYNCH, Circuit Judge, dissenting from the denial of panel rehearing. I 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.

        Citing 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).

        As the 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.

        It is 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.

      The 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
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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.

       In my 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 implications of
the Faust decision, I would grant the government's petition.




                                                      By the Court:

                                                      /s/ Margaret Carter, Clerk


cc:
Hon. Michael A. Ponsor
Robert Farrell, Clerk, United States District Court for the District of Massachusetts
Todd E. Newhouse
Dina Michael Chaitowitz
Randall Ernest Kromm
Myles Jacobson
Todd Faust
Judith H. Mizner




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