United States Court of Appeals

For the First Circuit

No. 09-1485

UNITED STATES,

Appellee,

v.

ANDRE ELLIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Howard and Thompson,

Circuit Judges.

Syrie D. Fried, Federal Public Defender, on brief for

appellant.

Robert E. Richardson, Assistant U.S. Attorney and Carmen M.

Ortiz, United States Attorney, on brief for appellee.

September 2, 2010
-2-

Per Curiam. We have reviewed the record and the parties'

submissions. We allow the government's motion for summary

disposition, and we affirm.

Under the mandate rule, "a legal decision made at one

stage of a civil or criminal case, unchallenged in a subsequent

appeal despite the existence of ample opportunity to do so, becomes

the law of the case for future stages of the same litigation, and

the aggrieved party is deemed to have forfeited any right to

challenge that particular decision at a subsequent date." United

States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). Still, the

district court may review its earlier decision if it concludes that

the decision amounted to a blatant error that, if left uncorrected,

will result in a serious injustice. Id. at 251. Where the mandate

rule is in effect, a district court's decision whether to review an

earlier decision in the proceedings is reviewed by this court for

an abuse of discretion. See Harlow v. Children's Hosp., 432 F.3d

50, 55-56 (1st Cir. 2005).

We agree with the district court that there was no

blatant error in its previous decision to sentence the appellant,

Andre Ellis ("Ellis"), under the Armed Career Criminal Act

("ACCA"), 18 U.S.C. § 924(e). The ACCA applies where a person

convicted under 18 U.S.C. § 922(g) has three previous convictions

for a violent felony or a serious drug offense. A "conviction"

"includes a finding that a person has committed an act of juvenile
-3-

delinquency involving a violent felony." 18 U.S.C. § 924(e)(2)(C).

A "violent felony" is defined in subsection 924(e)(2) as follows:

[T]he term "violent felony" means any crime

punishable by imprisonment for a term

exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a

firearm, knife, or destructive device that

would be punishable by imprisonment for such

term if committed by an adult, that –

(i) has as an element the use, attempted

use, or threatened use of physical force

against the person of another[.]

18 U.S.C. § 924(e)(2)(B). Ellis' criminal record shows a previous

juvenile adjudication for assault and battery with a dangerous

weapon (a handgun). Whether this juvenile adjudication qualifies

as a "violent felony," however, depends on whether it was an act of

juvenile delinquency that would have been "punishable by

imprisonment for a term exceeding one year" if committed by an

adult. Subsection 921(a)(20) of Title 18 provides that certain

crimes are not considered to be crimes "punishable by imprisonment

for a term exceeding one year".

What constitutes a conviction of such a crime

shall be determined in accordance with the law

of the jurisdiction in which the proceedings

were held. Any conviction which has been

expunged, or set aside or for which a person

has been pardoned or has had civil rights

restored shall not be considered a conviction

for purposes of this chapter, unless such

pardon, expungement, or restoration of civil

rights expressly provides that the person may

not ship, transport, possess, or receive

firearms.

18 U.S.C. § 921(a)(20).
-4-

Ellis contends that his juvenile adjudication for assault

and battery with a dangerous weapon was "set aside" by operation of

Mass. Gen. Laws ch. 120, § 21. That statute provides:

Whenever a person committed to the department

[of Youth Services] by a court upon conviction

of a crime is discharged from its control such

discharge shall, when so ordered by the

department, restore such person to all civil

rights and shall have the effect of setting

aside the conviction.

Mass. Gen. Laws ch. 120, § 21. Although the Massachusetts statute

in question only sets aside a juvenile adjudication "when so

ordered by the department [of Youth Services]", Ellis did not

present any evidence or documentation in the district court to show

that the Department of Youth Services did, in fact, set aside his

juvenile adjudication. He takes the position that any such setaside is automatic; essentially, then, he argues that the statutory

language in question (i.e., "when so ordered by the department") is

superfluous. The government has not contested this position on

appeal, and we bypass it.

Even if a juvenile adjudication is automatically "set

aside" upon discharge from control of the Department of Youth

Services, that adjudication is not set aside for all purposes. In

particular, the adjudication still may be considered in any future

criminal proceedings against the individual. See Mass. Gen. Laws

ch. 120, § 21 ("A commitment to the department shall not be

received in evidence or used in any way in any proceeding in any
-5-

court [] except in imposing sentence in any criminal proceeding

against the same person.") (emphasis added). Given that state law

provides that juvenile adjudications are not "set aside" for the

purpose of imposing sentence in later criminal proceedings against

the individual, it is far from clear that Massachusetts juvenile

convictions should never be treated as predicate offenses under the

ACCA. Accordingly, it was not blatant error for the sentencing

court to take Ellis' juvenile adjudication into consideration for

the purpose of applying the ACCA.

We do not purport to decide at this juncture whether

Massachusetts juvenile adjudications for violent crimes should ever

be treated as predicate offenses under the ACCA. We only decide

that, given the procedural posture of this case, there was no

blatant error in treating Ellis' juvenile adjudication as a

predicate offense.

Affirmed. See 1st Cir. R. 27.0(c).