United States Court of Appeals For the First Circuit

No. 19-1525

UNITED STATES,

Appellant,

v.

CARLOS MALDONADO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. Samia Hossain, Assistant Federal Public Defender, with whom Miriam Conrad, Federal Public Defender, was on brief, for appellee.

February 18, 2021 KAYATTA, Circuit Judge. This appeal turns on whether a

conviction under Massachusetts law for armed assault with intent

to murder qualifies as a crime of violence under section 4B1.2(a)

of the United States Sentencing Guidelines if the conviction was

or may have been based on a joint venture theory under

Massachusetts law as it stood in 2007. The answer to this question

determines whether Defendant Carlos Maldonado is deemed a career

offender under section 4B1.1(a) in the wake of his 2018 guilty

plea to charges of distributing and possessing with intent to

distribute cocaine.

In the district court, Maldonado advanced two arguments

for why his prior conviction as a joint venturer for an otherwise

admittedly violent crime does not qualify him for career-offender

status. First, he argued that section 4B1.2(a)'s definition of

"crime of violence" does not include convictions that were or may

have been based on aiding another in committing a crime. In

support of this argument, he necessarily asserted that Application

Note 1 of the commentary to section 4B1.2, which expressly says

that section 4B1.2(a)'s definition of "crime of violence" includes

aiding and abetting any crime of violence, must be rejected as

impermissibly expanding the actual guideline's definition.

Second, he argued that even if section 4B1.2(a)'s definition of

"crime of violence" includes aiding and abetting crimes of

violence, joint venture liability under Massachusetts law as it

- 2 - stood at the time of his conviction in 2007 was categorically

broader than the aiding and abetting liability referred to in

Application Note 1 because it did not require that each joint

venturer share the principal's intent to commit the underlying

offense.

The district court agreed with the second of these

arguments, and perhaps the first as well (it is not entirely

clear). It consequently calculated a Guidelines sentencing range

of 15–21 months -- far lower than the 210–262 months that would

have come with the career-offender designation. The district court

then sentenced Maldonado to thirty months' imprisonment and six

years of supervised release.

The government brought this appeal, arguing that the

district court's decision not to apply the career-offender

enhancement was error. After the parties filed briefs addressing

Maldonado's two arguments for sustaining the district court's

Guidelines calculation, this court issued opinions in two

unrelated cases rejecting those very same arguments. See United

States v. Lewis,

, 22–23 (1st Cir. 2020); United States

v. Capelton,

, 6–10 (1st Cir. 2020).

In Lewis, we confirmed that under controlling circuit

precedent, the definition of "crime of violence" under

section 4B1.2(a) includes the variants described in Application

Note 1 to that section. See 963 F.3d at 22–23; see also United

- 3 - States v. Nieves-Borrero,

(1st Cir. 2017); United

States v. Piper,

, 617–19 (1st Cir. 1994); United States

v. Fiore,

, 2–4 (1st Cir. 1992). Those variants include

"aiding and abetting." U.S.S.G. § 4B1.2, cmt. n.1. We therefore

agree with the government, on de novo review, that Maldonado cannot

avoid application of the career-offender guideline by arguing that

Application Note 1 impermissibly expands the definition of "crime

of violence" under section 4B1.2(a).

In Capelton, we found that, despite different language

employed at different times, Massachusetts joint venture liability

has since at least 1979 effectively required a showing of mens rea

no different from the aiding and abetting liability referred to in

Application Note 1 to section 4B1.2(a). See 966 F.3d at 6–10

(reviewing decades of Massachusetts caselaw). As such, we agree

with the government that the district court erred to the extent

that it concluded otherwise.

Maldonado argues that we must nevertheless affirm

because the government never argued before the district court that

the two respective mens rea requirements were the same. Rather,

the government argued that the two were "not that far [apart],"

given that Massachusetts joint venture law in 2007 required proof

of the defendant's willingness to assist the principal in

committing the crime. Therefore, contends Maldonado, the

- 4 - government's appeal on this issue is subject to only plain error

review.

Even were we to narrowly construe the government's

preserved "not that far apart" argument, de novo review of that

argument would lead us to ask what differences exist between the

two mens rea formulations, and whether any differences are relevant

to designating Maldonado's conviction as a crime of violence under

the Guidelines. That in turn would lead us right back to the

answer given in Capelton: Although the language differs, the two

mens rea formulations effectively require the same showing of

shared intent.

. So a finding of forfeiture by the

government would not in the end preserve Maldonado's victory --

rather, it would simply require the government to pursue a more

circuitous route. All in all, it makes more sense to put the case

on a direct path as now marked out by Capelton.

We therefore vacate the sentence and remand for

resentencing in accord with this opinion. While this will call

for a new calculation of the Guidelines sentencing range, nothing

in this opinion otherwise limits in any way the district court's

customary discretion in setting a just and appropriate sentence.

- 5 -