United States of America v. Jorge Hiram Báez-Martínez

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1 The carjacking convictions were under the since-repealed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enacted Aug. 5, 1993, amended Apr. 4, 1998, repealed June 18,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

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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)

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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

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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),

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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).

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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

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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

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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.

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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

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(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)

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("'[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

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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.").

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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.)

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(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

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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.

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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

For the foregoing reasons, we affirm Baéz-Martínez's

ACCA sentence.