On appeal from The UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ">

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Date: 11-23-2021

Case Style:

United States of America v. Jorge Hiram Báez-Martínez

Case Number: 18-1289

Judge:

Court: United States Court of Appeals For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Plaintiff's Attorney: Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division

Defendant's Attorney:


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Description:

Boston, MA - Criminal defense lawyer represented defendant with possession of a firearm charge.



In 2012, Báez-Martínez was convicted at a jury trial for
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The unobjected-to Presentence Investigation Report
("PSR") included the following prior offenses, all in violation of
Puerto Rico law: (1) one conviction for second-degree murder;
(2) two convictions for attempted murder; and (3) two convictions
for carjacking,1 each committed on the same occasion as the two
attempted murders.2 The PSR stated that the ACCA, 18 U.S.C.
§ 924(e)(1), applied, meaning that Báez-Martínez was subject to a
statutory minimum of fifteen years' imprisonment. The district
1 The carjacking convictions were under the since-repealed
Article 173B. See P.R. Laws Ann. tit. 33, § 4279b (originally
enacted Aug. 5, 1993, amended Apr. 4, 1998, repealed June 18,
2004); see also United States v. Carrera González, Cr. No. 05-366,
2006 WL 2092569, at *3 n.1 (D.P.R. July 26, 2006).
2 The PSR included several other prior convictions, including
for robbery and kidnapping, but the government is not contending
here that any of these offenses should be considered violent
felonies under the ACCA.
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court agreed and sentenced Báez-Martínez to fifteen years. We
affirmed his conviction. See United States v. Báez-Martínez, 786
F.3d 121, 130 (1st Cir. 2015).
In 2015, the Supreme Court declared the residual clause
of the ACCA's definition of "violent felony" unconstitutional.
See Johnson v. United States ("Johnson II"), 135 S. Ct. 2551, 2563
(2015). In light of this holding, the Supreme Court vacated
Báez-Martínez's sentence and remanded to determine whether the
ACCA still applied. See Báez-Martínez v. United States, 136 S. Ct.
545 (2015) (mem.). On remand, the district court held that
attempted murder and second-degree murder are violent felonies
under the force clause, thus satisfying the ACCA's threepredicate-felony requirement. See United States v. Báez-Martínez,
258 F. Supp. 3d 228, 239–40 (D.P.R. 2017). The court did not
address carjacking. The court again sentenced Báez-Martínez to
fifteen years, remarking, "[I w]ish that I wouldn't have to
sentence you to 180 months, but that is the minimum."3
Báez-Martínez timely appealed. We review de novo his
preserved claim that his prior convictions do not constitute
3 The apparent basis for the district court's statement seems
to be the testimony about Báez-Martínez's concerted efforts at
rehabilitation during the period of his incarceration as well as
his impressive achievement of having successfully pursued his
Johnson II case, pro se, up to the Supreme Court.
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violent felonies under the ACCA. See United States v. Kennedy,
881 F.3d 14, 19 (1st Cir. 2018).
II.
The ACCA mandates a minimum sentence of fifteen years
for qualifying defendants who violate § 922(g). 18 U.S.C.
§ 924(e)(1). A qualifying defendant is anyone who "has three
previous convictions . . . for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another." Id. Báez-Martínez has no prior drug-related
convictions, so we consider only potential violent felonies.
"[V]iolent felony" is defined under the ACCA as:
any crime punishable by imprisonment for a
term exceeding one year . . . that . . . has
as an element the use, attempted use, or
threatened use of physical force against the
person of another; or . . . is burglary,
arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another . . . .
Id. § 924(e)(2)(B).
Báez-Martínez does not dispute that second-degree
murder, attempted murder, and carjacking are "punishable by
imprisonment for a term exceeding one year." So we train our
attention on the rest of the definition, which divides into three
parts: the "force clause" (sometimes called the "elements
clause"), the "enumerated clause," and the "residual clause."
Stokeling v. United States, 139 S. Ct. 544, 556 (2019). The
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residual clause is defunct after Johnson II, 135 S. Ct. at 2563.
And since none of Báez-Martínez's prior convictions fall within
the list of enumerated offenses, that leaves only the force clause.
So, we ask if the crimes at issue "ha[ve] as an element the use,
attempted use, or threatened use of physical force against the
person of another."
In answering this question, we apply the "categorical
approach," which we have explained in detail many times before.
See, e.g., United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017).
In brief, we must presume that the defendant's prior offense was
for the least culpable conduct for which there is a "realistic
probability" of a conviction under the statute. United States v.
Starks, 861 F.3d 306, 315 (1st Cir. 2017) (citing Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013)); see Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). And in ascertaining the requirements of
state law, we are "bound by [the state] Supreme Court's
interpretation of state law, including its determination of the
elements of" the criminal statute. Johnson v. United States
("Johnson I"), 559 U.S. 133, 138 (2010).4
With this approach in mind, we turn to considering the
Puerto Rico offenses of second-degree murder and attempted murder.
4 For these purposes, we treat Puerto Rico law as state law.
See González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318
(1st Cir. 2009) ("In regard to law-determination, Puerto Rico is
the functional equivalent of a state.").
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For the reasons that follow, we find that each offense "has as an
element the use, attempted use, or threatened use of physical force
against the person of another." Báez-Martínez's conviction for
second-degree murder and his two convictions for attempted murder
under Puerto Rico law therefore satisfy the ACCA's threepredicate-felony rule. We save for another day whether carjacking
also categorically counts as a violent felony.
A. Second-Degree Murder
Báez-Martínez argues on appeal that second-degree murder
under Puerto Rico law does not categorically satisfy the mens rea
requirement of the force clause because, he contends, seconddegree murder can be committed with a mens rea of "recklessness."
As we will explain, our case law supports the contention that one
who acts only recklessly does not "use . . . physical force against
the person of another" within the meaning of the ACCA's force
clause. But, as we will also explain, Puerto Rico law -- like the
law of most jurisdictions -- requires proof of a heightened degree
of recklessness to convict a person of second-degree murder. And
as we will finally explain, that heightened form of recklessness
is sufficient for purposes of the force clause even though ordinary
recklessness is not. We offer these explanations in reverse order.
1.
The incorporation of a mens rea component into the
"violent felony" definition traces back to the Supreme Court's
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decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). There, the
Court interpreted the word "use" in the force clause of 18 U.S.C.
§ 16(a), defining "crime of violence" in nearly identical terms as
the ACCA defines "violent felony," to require "a higher degree of
intent than negligent or merely accidental conduct." Id. at 9.
The Court reserved the question whether "reckless" conduct could
suffice. Id. at 13.
The mens rea analysis made the jump to the ACCA in Begay
v. United States, 553 U.S. 137 (2008). There, the Supreme Court
held that drunk-driving statutes, which generally punish reckless
conduct or possibly have no mens rea requirement at all, fall
outside the scope of the ACCA's residual clause. Id. at 144–45;
see also Sykes v. United States, 564 U.S. 1, 13 (2011). In a
series of cases thereafter, we -- like many circuit courts -- drew
an increasingly hard line against treating statutes encompassing
reckless conduct as violent felonies. See United States v.
Holloway, 630 F.3d 252, 261 (1st Cir. 2011); see also United States
v. Fish, 758 F.3d 1, 9–10 (1st Cir. 2014) (interpreting 18 U.S.C.
§ 16(b)). Despite this approach having been marked as not yet
finally resolved by the Supreme Court, see Voisine v. United
States, 136 S. Ct. 2272, 2279 (2016) ("[N]othing in Leocal . . .
suggests . . . that 'use' marks a dividing line between reckless
and knowing conduct."), we have since reaffirmed this bright-line
rule in evaluating crimes under the force clause, see United States
- 8 -
v. Rose, 896 F.3d 104, 109–10 (1st Cir. 2018) (citing Bennett v.
United States, 868 F.3d 1 (1st Cir.), opinion withdrawn as moot,
870 F.3d 34, 36 (1st Cir. 2017) (per curiam), reasoning adopted by
United States v. Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017) (per
curiam)); Kennedy, 881 F.3d at 19–20.5
But murder (including second-degree murder) requires
more than ordinary recklessness. The mens rea required for murder
at common law was and remains "malice aforethought." 2 Wayne R.
LaFave, Substantive Criminal Law § 14.1 (3d ed. 2017). Malice
aforethought comes in four flavors: (1) intent to kill, (2) intent
to cause serious bodily injury, (3) depraved heart (also referred
to as "reckless indifference" or "extreme recklessness"), and
(4) intent to commit a felony (the felony-murder rule). Id.; see
United States v. Pineda-Doval, 614 F.3d 1019, 1038–40 (9th Cir.
5 The Supreme Court recently granted, then dismissed,
certiorari to settle the question of whether a crime encompassing
ordinary recklessness can satisfy the ACCA's force clause. See
Walker v. United States, 769 F. App'x 195 (6th Cir. 2019), cert.
granted, 2019 WL 6042320 (U.S. Nov. 15, 2019) (No. 19-373), and
cert. dismissed, 2020 WL 411668 (U.S. Jan. 27, 2020) (dismissing
due to petitioner's death). But see Solicitor General's Response
to Suggestion of Death, id. (Jan. 23, 2020) (recommending that the
Court take up the issue in another case). Whatever the ultimate
resolution of that issue in the Supreme Court, our decision here
will not necessarily be changed. Assuming the Court upholds our
holding in Bennett and Windley concerning ordinary recklessness,
our analysis here would likely remain unchanged unless the Supreme
Court should opine in a manner broad enough to eliminate all forms
of recklessness as sufficient. If the Court instead holds that
reckless crimes can be violent felonies, then a fortiori crimes
requiring heightened recklessness can, too.
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2010); see also Samuel H. Pillsbury, Crimes of Indifference, 49
Rutgers L. Rev. 105, 116–21, 118 n.28 (1996). It is the third
category that concerns us in this case.
Whatever the label, this "depraved heart" type of mental
state is consistently distinguished from ordinary recklessness.
See generally John C. Duffy, Note, Reality Check: How Practical
Circumstances Affect the Interpretation of Depraved Indifference
Murder, 57 Duke L.J. 425 (2007); Alan C. Michaels, Note, Defining
Unintended Murder, 85 Colum. L. Rev. 786 (1985). For example, the
Model Penal Code defines the term "recklessly" in its ordinary
sense as follows:
A person acts recklessly . . . when he
consciously disregards a substantial and
unjustifiable risk that the material element
exists or will result from his conduct. The
risk must be of such a nature and degree
that . . . its disregard involves a gross
deviation from the standard of conduct that a
law-abiding person would observe in the
actor's situation.
Model Penal Code § 2.02(2)(c). But for homicide to constitute
murder, the defendant must act "recklessly under circumstances
manifesting extreme indifference to the value of human life." Id.
§ 210.2(1)(b). A criminal homicide that satisfies the former,
ordinary standard of recklessness but not the latter, heightened
standard is classified as "manslaughter." Id. § 210.3(1)(a).
Thus, if a defendant "shoot[s] a gun into a room that
[he] knows to be occupied" and one of the occupants is killed,
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the defendant could be found guilty of murder because he acted not
only recklessly, but with reckless indifference to human life.
United States v. Begay, 934 F.3d 1033, 1041 (9th Cir. 2019)
(quoting Pineda-Doval, 614 F.3d at 1039). If, on the other hand,
a defendant recklessly shoots a gun in the woods while hunting and
kills another person, the defendant has merely committed
manslaughter because the probability that death would result was
much lower. See State v. Perfetto, 424 A.2d 1095, 1098 (Me. 1981).
Similarly, "the vast majority of vehicular homicides," including
"the average drunk driving homicide," are treated only as
manslaughter, United States v. Fleming, 739 F.2d 945, 948 (4th
Cir. 1984), but when a defendant with a blood alcohol content of
.315% drives nearly 100 miles per hour in the oncoming lane of a
busy thoroughfare and kills another driver in a collision, a murder
conviction can result, see id. at 947–48.
Of course, this distinction between ordinary
recklessness and "extreme" recklessness only matters to the extent
it undercuts the rationale for reckless conduct not qualifying
under the force clause of the ACCA. That rationale trains on the
statutory phrase "use . . . of physical force against the person
of another." 18 U.S.C. § 924(e)(2)(B)(i). In Voisine, the Supreme
Court held that reckless conduct could entail a "use" of force
under 18 U.S.C. § 921(33)(A)(ii) (defining "misdemeanor crime of
domestic violence"). 136 S. Ct. at 2278–79. But § 921(33)(A)(ii)
- 11 -
requires only the "use . . . of physical force," not the "use . . .
of physical force against the person of another." In holding that
reckless conduct did not qualify under the ACCA, we relied on those
additional five words, reasoning that the phrase "against the
person of another" in the ACCA force clause materially
distinguishes Voisine. See Bennett, 868 F.3d at 19. "The injury
caused to another by the volitional action in a reckless assault,"
we reasoned, was not "a result known to the perpetrator to be
practically certain to occur." Id. at 18. So "reckless conduct
bereft of an intent to employ force against another falls short of
the mens rea required under" the ACCA. Id. at 12 (emphasis in
original) (quoting Fish, 758 F.3d at 16). Thus, for purposes of
the ACCA, the dividing line is somewhere between recklessness and
the more culpable mental state of "knowledge," at least under our
precedent. Id. at 2–3; cf. Voisine, 136 S. Ct. at 2279 (remarking
on the "dividing line between reckless and knowing conduct"). But
we recognized it was a close call, and we ultimately resorted to
the rule of lenity to determine that recklessness was not enough.
See Bennett, 868 F.3d at 3.
Malice-aforethought-style recklessness falls somewhere
between ordinary recklessness and knowledge on the mens rea
spectrum. See Duffy, supra, at 429. Per the Model Penal Code
commentary, "recklessness that can fairly be assimilated to
purpose or knowledge should be treated as murder, [whereas] less
- 12 -
extreme recklessness should be punished as manslaughter." Model
Penal Code § 210.2(1)(b) cmt. 4 (Am. Law Inst. 1980). So this
heightened recklessness is at least as close to knowledge as it is
to ordinary recklessness. See United States v. Marrero, 743 F.3d
389, 401 (3d Cir. 2014) (observing that depraved-heart
recklessness "is tantamount to an actual desire to injure or kill"
(quoting Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. Ct.
1999))); cf. Tison v. Arizona, 481 U.S. 137, 157 (1987)
("[R]eckless disregard for human life . . . represents a highly
culpable mental state . . . ."). And since we found it a close
call that ordinary recklessness did not satisfy the Leocal standard
after Voisine, we find less difficulty in saying that heightened
recklessness approaching knowledge does satisfy that standard.
This makes sense when we consider the rationale behind
these cases, too. In Bennett, the fact that reckless conduct was
not "practically certain" to result in injury, and that an
identifiable victim might not be ascertained during the conduct,
meant that there was no active employment of force "'against'
another" in the ordinary sense. 868 F.3d at 18; see Leocal, 543
U.S. at 9 ("'[U]se' requires active employment."). But what
separates malice aforethought is the "extreme indifference to the
value of human life." Model Penal Code § 210.2(1)(b). So the
defendant who shoots a gun into a crowded room has acted with
malice aforethought precisely because there is a much higher
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probability -- a practical certainty -- that injury to another
will result. And the defendant certainly must be aware that there
are potential victims before he can act with indifference toward
them. See United States v. Dixon, 419 F.2d 288, 292–93 (D.C. Cir.
1969) (Leventhal, J., concurring) ("The difference between that
recklessness which displays depravity and such extreme and wanton
disregard for human life as to constitute 'malice' and that
recklessness that amounts only to manslaughter lies in the quality
of awareness of the risk."). So the defendant who acts in this
manner can more fairly be said to have actively employed force
(i.e., "use[d]" force) "against the person of another."
In holding that second-degree murder qualifies as a
violent felony under the ACCA even though the offense requires no
showing of mens rea beyond malice-aforethought-variety
recklessness, we make two additional points. First, in
interpreting any statute, we must not lose sight of the common
sense that likely informed Congress's understanding of the ACCA's
terms. See United States v. Turkette, 452 U.S. 576, 580 (1981)
("[A]bsurd results are to be avoided . . . ."); United States v.
D'Amario, 412 F.3d 253, 255 (1st Cir. 2005) (recognizing that we
apply "common sense" in interpreting criminal statutes).6 Second,
6 Indeed, Congress seems to have assumed (sensibly) that
courts would treat murder as a "crime of violence," at least before
Johnson II was decided. See, e.g., 18 U.S.C. § 3559(f)(1)
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"in terms of moral depravity," murder is often said to stand alone
among all other crimes. Kennedy v. Louisiana, 554 U.S. 407, 438
(2008) (quoting Coker v. Georgia, 433 U.S. 584, 598 (1977)
(plurality opinion)). We therefore decline to follow the majority
in the Ninth Circuit's decision in Begay, 934 F.3d at 1038–41
(holding that federal second-degree murder is not a crime of
violence for purposes of § 924(c)), and align instead with the
Fourth Circuit's decision in In re Irby, 858 F.3d 231, 237 (4th
Cir. 2017) (holding that federal second-degree murder is a crime
of violence, although not considering the precise argument made
here).
2.
Báez-Martínez was convicted of second-degree murder
under Puerto Rico law, not under some generic common-law murder
formula. So our preceding analysis only matters if Puerto Rico
murder -- and Puerto Rico second-degree murder in
particular -- fits the general model we have laid out.
Murder in Puerto Rico, like in most states, is defined
as the "killing of a human being with malice aforethought." Pueblo
v. Lucret Quiñones, 11 P.R. Offic. Trans. 904, 927, 929 (1981).
Second-degree murder is any murder that is not first-degree murder,
where first-degree murder includes any "willful, deliberate, and

(increasing the mandatory minimum for federal crimes of violence
against children "if the crime of violence is murder").
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premeditated killing," plus a few other methods. Id. The Supreme
Court of Puerto Rico has stated that "[t]he concept of malice
aforethought implies the absence of just cause or excuse in causing
death and implies, also, the existence of the intent to kill a
fellow human being." Pueblo v. Rivera Alicea, 125 P.R. Dec. 37,
1989 WL 608548 (1989) (English translation) (emphasis in
original). For second-degree murder, though, "malice aforethought
is enough, without the specific intent to kill." Pueblo v.
Rosario, 160 P.R. Dec. 592, 609–10 (2003) (certified translation).
Malice aforethought "denotes a state or condition in the actor
formed by an inherent deficiency in his or her sense of morality
and righteousness as a result of having stopped caring about the
respect and safety of human life." Id. at 609. In other words,
Puerto Rico recognizes "depraved heart" murder and, like many
states, classifies this as second-degree murder in most cases.
That would be the end of the matter, but for one wrinkle
that remains to be ironed out. Báez-Martínez was convicted of
second-degree murder in 1996.7 At that time, the Puerto Rico Penal
Code defined two general mental states: "intent" and
"negligence."8 P.R. Laws Ann. tit. 33, §§ 3061–3063 (repealed
7 The murder itself was committed in 1995.
8 In 2014, Puerto Rico updated its penal code to reflect the
four Model Penal Code mental states of "purposely," "knowingly,"
"recklessly," and "negligently." See United States v. Voisine,
778 F.3d 176, 203 n.13 (1st Cir.) (Torruella, J., dissenting),
- 16 -
June 18, 2004); see Pueblo v. Castañón Pérez, 14 P.R. Offic. Trans.
688, 693 (1983) (plurality opinion). "Intent" included crimes in
which "the result, though unwanted, has been foreseen or could
have been foreseen by the person as a natural or probable
consequence of his act or omission," P.R. Laws Ann. tit. 33,
§ 3062, which sounds a lot like the Model Penal Code definition of
ordinary "recklessness." And because Puerto Rico law in 1996
defined "malice" to include the commission of an "intentional act,"
id. § 3022(19), "malice" at least arguably incorporated the
definition of "intent," recklessness included. Thus,
Báez-Martínez argues, "malice aforethought" in Puerto Rico
included ordinary recklessness at the time of his conviction.
There are a few problems with Báez-Martínez's reasoning.
For starters, it equates "malice" with "malice aforethought," even
though the latter is a term of art specific to the crime of murder.
See Wilbur v. Mullaney, 496 F.2d 1303, 1306 (1st Cir. 1974);
2 LaFave, supra, § 14.1; Dannye Holley, Culpability Evaluations in
the State Supreme Courts from 1977 to 1999: A "Model" Assessment,
34 Akron L. Rev. 401, 410 n.93 (2001). The only case Báez-Martínez
cites discussing the definition of "malice" is Castañón Pérez,
which involved the use of that term in the crime of mayhem, not
murder. 14 P.R. Offic. Trans. at 692. Also, the plurality in

cert. granted in part, 136 S. Ct. 386 (2015), and aff'd, 136 S. Ct.
2272 (2016).
- 17 -
Castañón Pérez stated that mere reckless conduct would fall under
the statutory definition of "negligence," not "intent." See id.
at 693 ("The new provision introduces the classification of the
offense as either intentional or willful; and negligent or
culpable, equivalent to reckless negligence."); see also Pueblo v.
Rivera-Rivera, 23 P.R. Offic. Trans. 641 (1989) ("Puerto Rican
[criminal] negligence, with its modalities of recklessness,
carelessness, want of skill, inattention, nonobservance of the law
or regulations, is equivalent to civil-law [g]uilt." (emphasis
added)). Finally, many states have been inconsistent with mens
rea terminology, including "recklessness," see Voisine, 136 S. Ct.
at 2281, so Puerto Rico is not unique in this regard. This
inconsistency does not change the fact that "malice aforethought"
is a peculiar kind of recklessness. And since Puerto Rico law in
1996 required proof of malice aforethought for all Puerto Rico
murder convictions, see Lucret Quiñones, 11 P.R. Offic. Trans. at
927, 929, we must reject Báez-Martínez's argument that his 1996
conviction for second-degree murder under Puerto Rico law does not
count as a violent felony.
As a final salvo, Báez-Martínez asks that we apply the
rule of lenity to determine that Puerto Rico murder could have
encompassed ordinary recklessness in 1996. We invoke the rule of
lenity only if there is some "grievous ambiguity or uncertainty"
about how the law should be applied, Muscarello v. United States,
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524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511
U.S. 600, 619 n.17 (1994)), and we find no such ambiguity in Puerto
Rico law requiring malice aforethought.
Moreover, we question whether the rule of lenity could
help Báez-Martínez in trying to broaden the reach of the offense
of conviction. Our task at this stage of the categorical approach
is to discern the elements of state criminal law. See, e.g.,
Stokeling, 139 S. Ct. at 554–55 (deciphering Florida's robbery
statute). If that law were so ambiguous as to warrant application
of lenity, lenity might favor the narrower rather than the broader
reading of the state law. See United States v. Santos, 553 U.S.
507, 514 (2008) (plurality opinion) ("The rule of lenity requires
ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them."). Here, for example, if it were
entirely uncertain whether a person could be convicted of seconddegree murder in Puerto Rico only on a showing of ordinary
recklessness, lenity would ordinarily favor a negative answer.
The rule of lenity is a tool of statutory interpretation, see Rule
of Lenity, Black's Law Dictionary (11th ed. 2019) ("The judicial
doctrine holding that a court, in construing an ambiguous criminal
statute that sets out multiple or inconsistent punishments, should
resolve the ambiguity in favor of the more lenient punishment."),
so lenity would arguably favor an ACCA defendant only when the
uncertainty resides in the ACCA itself, see, e.g., Bennett, 868
- 19 -
F.3d at 3; see also Leocal, 543 U.S. at 11 n.8 (uncertainty in
§ 16). In any event, since we find no grievous ambiguity in the
Puerto Rico law at issue, lenity can play no role here, no matter
what its role might otherwise be.
B. Attempted Murder
Báez-Martínez has two prior convictions for attempted
murder. The question whether Congress intended attempted murder
to be a violent felony has an easy answer: of course it did. And
the ACCA as enacted contained a residual clause that easily
encompassed attempted murder. See James v. United States, 550
U.S. 192, 208 (2007) (using attempted murder as an obvious example
of a crime that fell within the residual clause), overruled by
Johnson II, 135 S. Ct. at 2563. The residual clause, however,
suffered from being too vague at its margins, and in Johnson II,
the Supreme Court struck the clause as void for vagueness. 135
S. Ct. at 2563. Now courts try to see if crimes that were likely
well encompassed by that clause might find refuge in the force
clause. So the precise issue before us is not that easy-to-answer
question (Did Congress intend to include attempted murder as a
violent felony under the ACCA?), but the more difficult, workaround
question (Does attempted murder qualify under the force clause?).
The Supreme Court first spelled out the standard for
"physical force" in Johnson I, 559 U.S. 133. "[P]hysical force,"
the Court tells us, means "violent force" or "a substantial degree
- 20 -
of force" that is "capable of causing physical pain or injury to
another person." Id. at 140 (emphasis in original).
"[M]ere[ ]touching" as an element of a crime is insufficient. See
id. at 141. The force must be "exerted by and through concrete
bodies." Id. at 138. "Intellectual force or emotional force"
does not count. Id.
We apply this standard to attempted murder under Puerto
Rico law. As noted, murder is "the killing of a human being with
malice aforethought." Lucret Quiñones, 11 P.R. Offic. Trans. at
929. Attempted murder requires a specific intent to kill. Pueblo
v. Bonilla Ortiz, 23 P.R. Offic. Trans. 393 (1989). "[A]ttempted
murder occurs when a person commits acts or incurs omissions
unequivocally directed to cause the death of a human being with
malice aforethought." Id.9 This is true of attempted murder (and
murder) in most states, so Puerto Rico attempted murder fits the
general common-law model in this regard. See 2 LaFave, supra,
§ 14.3 ("[M]urder may be committed by an omission to act, in
violation of a duty to act, when accompanied by an intent to
kill . . . ."). See generally Model Penal Code § 2.01 (describing
circumstances under which an omission can form a basis for criminal
liability).
9 The government has not argued that attempted murder is
"divisible" along these grounds (i.e., omission versus act), so we
stick with the basic "categorical approach" and not the familiar
"modified categorical approach." See Rose, 896 F.3d at 107.
- 21 -
Báez-Martínez's argument builds on the fact that murder,
and thus attempted murder, can be committed "when a person . . .
incurs omissions unequivocally directed to cause the death of a
human being with malice aforethought." He argues that an omission
(i.e., doing nothing) cannot be considered "violent force"
"exerted by and through concrete bodies" under Johnson I.
Therefore there is no "physical force" and thus the force clause
does not apply. On a blank slate, we might well agree. When a
child dies from not being fed, the death is not -- in nonlegal
terms -- a result of "force." Nor is it the result of "forceful
physical properties as a matter of organic chemistry" as where a
defendant "sprinkles poison in a victim's drink." United States
v. Castleman, 572 U.S. 157, 171 (2014) (internal quotation marks
omitted). The human body is a highly organized organic system
that requires input (energy in the form of food) to sustain itself.
Without that input, the body naturally tends toward a state of
disorder and eventually death as a result of entropy. See
generally Enrico Fermi, Thermodynamics (1936). "Force" has
nothing to do with it.
For this reason, several courts -- including our
own -- have at least suggested that crimes that can be completed
by omission fall outside the scope of the force clause. See United
States v. Teague, 469 F.3d 205, 208 (1st Cir. 2006) (Texas child
endangerment); see also United States v. Mayo, 901 F.3d 218, 230
- 22 -
(3d Cir. 2018) (Pennsylvania aggravated assault); United States v.
Resendiz-Moreno, 705 F.3d 203, 205 (5th Cir. 2013) (Georgia firstdegree child neglect), overruled by United States v.
Reyes-Contreras, 910 F.3d 169, 187 (5th Cir. 2018); cf. Chambers
v. United States, 555 U.S. 122, 127–28 (2009) (holding that a
"failure to report" crime is not a violent felony because "the
crime amounts to a form of inaction"); United States v. Middleton,
883 F.3d 485, 489–90 (4th Cir. 2018) (holding that South Carolina
involuntary manslaughter is not a violent felony because it can be
committed by providing alcohol to minors). But see United States
v. Jennings, 860 F.3d 450, 459–60 (7th Cir. 2017) ("[W]hy should
it matter that the mechanism of harm is
negative ( . . . withholding an EpiPen® in the midst of a severe
allergic reaction) or positive (swinging a fist or administering
a poison)?"). In short, common sense and the laws of physics
support Báez-Martínez's position.
But while nature follows the laws of physics, circuit
courts must follow the law as announced by the Supreme Court. See,
e.g., Parker v. Matthews, 567 U.S. 37, 48–49 (2012) (per curiam).
And in Castleman, the Supreme Court declared: "[T]he knowing or
intentional causation of bodily injury necessarily involves the
use of physical force. . . . [A] 'bodily injury' must result from
'physical force.'" 572 U.S. at 169–70; see also id. at 175
(Scalia, J., concurring in part and concurring in the judgment)
- 23 -
("'[I]ntentionally or knowingly caus[ing] bodily injury,'
categorically involves the use of 'force capable of causing pain
or injury to another person' . . . ." (second alteration in
original) (citation omitted) (quoting id. and Johnson I, 559 U.S.
at 140)).
Castleman involved the "misdemeanor crime of domestic
violence" standard under § 921(a)(33)(A). The Court decided for
those purposes that "offensive touching" would be sufficient for
"physical force" even though it would not satisfy Johnson I's
"violent force" standard for the ACCA. Id. at 162–63 (majority
opinion). But see id. at 175 (Scalia, J., concurring in part and
concurring in the judgment) (believing the standards should be the
same). The Court thus reserved whether bodily injury, such as a
cut, would necessarily entail that higher level of "violent" force.
Id. at 167 (majority opinion) ("Whether or not the causation of
bodily injury necessarily entails violent force [is] a question we
do not reach."). We, too, have since avoided answering that
question. See Lassend v. United States, 898 F.3d 115, 126–27 (1st
Cir. 2018); Whyte v. Lynch, 815 F.3d 92, 92–93 (1st Cir. 2016)
(per curiam). And we need not answer it in full today, because
this case does not involve a minor injury such as a cut or a
bruise.
But if all bodily injuries necessarily entail some
force, as Castleman declares, then it seems to us that a serious
- 24 -
bodily injury must necessarily entail violent force under
Castleman's reasoning of "injury, ergo force." "Violent" force,
after all, is simply physical force distinguished by the degree of
harm sought to be caused. See Violence, Black's Law Dictionary,
supra ("The use of physical force . . . esp., physical force
unlawfully exercised with the intent to harm."); Violence,
Merriam–Webster's Collegiate Dictionary (11th ed. 2012)
("[E]xertion of physical force so as to injure or abuse . . . .");
see also Offense, Black's Law Dictionary, supra (defining "violent
offense" as a "crime characterized by extreme physical force, such
as murder"); cf. Johnson I, 559 U.S. at 140–41 (citing various
dictionary definitions of the word "violent"). And since murder
always results in death (and death is the ultimate injury), the
violent-force requirement is satisfied.
Attempted murder, of course, is separated from murder in
that the victim does not die. We do not think this makes a
difference. The force clause covers both the "use" and "attempted
use" of force. So, if murder requires violent force because death
results, then attempted murder does, too, because the defendant
attempted to reach that result. Cf. United States v. García-Ortiz,
904 F.3d 102, 107–08 (1st Cir. 2018) ("[P]lacing someone in fear
of bodily injury . . . involve[s] the use of physical force, if
'force' encapsulates the concept of causing or threatening to cause
bodily injury.").
- 25 -
We have considered whether we might nevertheless stay
within our circuit lane and still accept Báez-Martínez's argument
by distinguishing Castleman. The Supreme Court did not expressly
consider the problem of omissions -- like starving a child -- when
it decided Castleman. It instead considered harm that "occurs
indirectly" like in the poison example. Castleman, 572 U.S. at
171; see also United States v. Edwards, 857 F.3d 420, 427 (1st
Cir. 2017). But its categorical pronouncement that "[i]t is
impossible to cause bodily injury without applying force in the
common-law sense" plainly encompasses any bodily injury, deeming
the injury to be the fingerprint of force. 572 U.S. at 170. And
when the Supreme Court is plain on a point, even in dicta, we are
generally expected to follow its lead. See LaPierre v. City of
Lawrence, 819 F.3d 558, 563–64 (1st Cir. 2016) ("[W]e 'are bound
by the Supreme Court's considered dicta almost as firmly as by the
Court's outright holdings.'" (quoting Cuevas v. United States,
778 F.3d 267, 272–73 (1st Cir. 2015))).
We also note that two other circuits have recently
marched to the Castleman drum on this issue, holding that attempted
murder is a crime of violence under analogous definitions. See
United States v. Peeples, 879 F.3d 282, 286–87 (8th Cir.) (holding
that attempted murder is a crime of violence under the force clause
of U.S.S.G. § 4B1.2(a)), cert. denied, 138 S. Ct. 2640 (2018); see
also United States v. Studhorse, 883 F.3d 1198, 1204–06 (9th Cir.)
- 26 -
(holding that attempted murder is a crime of violence under the
force clause of § 16(a), although not considering the murder-byomission argument), cert. denied, 139 S. Ct. 127 (2018). We are
bound to agree. Therefore, Báez-Martínez's two convictions for
attempted murder must also be counted as violent felonies.
III.
One final issue remains. Báez-Martínez argued in the
district court, by way of a pro se filing, that the government
waived ACCA sentencing by failing to designate which of his prior
convictions constituted predicate felonies under the ACCA at his
initial sentencing. On appeal, Báez-Martínez renews this
argument, again in a pro se supplemental brief filed after his
opening brief, claiming that due process prohibits the government
from redesignating predicate convictions after his successful
appeal to the Supreme Court.
In support of his argument, Báez-Martínez observes that
other courts have held that defendants have a due process right to
be notified that a prior conviction is being used as an ACCA
predicate. See United States v. Moore, 208 F.3d 411, 414 (2d Cir.
2000); United States v. O'Neal, 180 F.3d 115, 125–26 (4th Cir.
1999). Those same cases, however, hold that this notice
requirement is satisfied so long as the PSR lists the conviction.
See Moore, 208 F.3d at 414; O'Neal, 180 F.3d at 125–26; see also
United States v. Tracy, 36 F.3d 187, 198 (1st Cir. 1994) (holding
- 27 -
that predicate felonies need not be listed in an indictment).
Here, Báez-Martínez's PSR listed all the relied-upon convictions,
so these cases do not help him much.
Báez-Martínez next observes that other courts have held
that, in instances where a PSR specifically designates some prior
convictions as ACCA predicates but not others, the government is
precluded from substituting those other offenses on remand after
a defendant's successful appeal. See United States v. Hodge, 902
F.3d 420, 430 (4th Cir. 2018); cf. Bryant v. Warden, FCC Coleman–
Medium, 738 F.3d 1253, 1259 (11th Cir. 2013), overruled on other
grounds by McCarthan v. Dir. of Goodwill Indus.–Suncoast, Inc.,
851 F.3d 1076 (11th Cir. 2017). Again, these cases are inapposite.
The rule in these cases is based on the doctrine of expressio unius
est exclusio alterius; the defendant's "notice" as to the unlisted
convictions drops out from the listing of other convictions. See
Hodge, 902 F.3d at 427–28 (citing NLRB v. Sw. Gen., Inc., 137
S. Ct. 929, 940 (2017)); cf. United States v. Wallace, 573 F.3d
82, 88 (1st Cir. 2009) (discussing the "mandate rule"). Here, the
PSR did not designate any particular prior conviction as an ACCA
predicate; all convictions listed in the PSR were treated the same.
As such, expressio unius does not apply because Báez-Martínez was
on equal notice as to each of his convictions that they might be
considered a predicate felony.
- 28 -
Báez-Martínez asks us to do what no other court has done:
hold that the government must specifically and exhaustively
designate all ACCA predicates from the outset, or else forfeit
ACCA sentencing. We decline the invitation. Báez-Martínez was on
notice that the prior convictions listed in his PSR might be
considered for ACCA sentencing, and the government has maintained
at all stages of this litigation that, at a minimum, his
convictions for second-degree murder, attempted murder, and
carjacking were for violent felonies.10

Outcome: For the foregoing reasons, we affirm Baéz-Martínez's
ACCA sentence.

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